Central Administrative Tribunal - Delhi
Prem Raj Sharma vs Union Of India on 2 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA NO. 3904/2013 Order reserved on 25.05.2015 Pronounced On 02.07.2015 Honble Shri Ashok Kumar, Member (A) Honble Shri Raj Vir Sharma, Member (J) Prem Raj Sharma S/o Late Sh. Lila Dhar Gaur R/o B-307, Nanda Devi Aptt. Sector-10, Plot No. 19, Dwarka, New Delhi-110078. .Applicant (By Advocate: R.K. Jain) VERSUS 1. Union of India Through the Secretary Ministry of Health & Family Welfare, Department of Ayush, Ayush Bhawan INA, New Delhi 2. President Central Council of Indian Medicine 61-65, Institutional Area Janakpuri, New Delhi-110058 3. Central Council of India Medicine Through Secretary 61-65, Institutional Area Janakpuri, New Delhi-110058 .. Respondents (By Advocate: Mr. Yashwardhan Bardi for Mr. Mehmood Pracha) O R D E R Mr. Ashok Kumar, Member (A):
This OA has been filed against the impugned order dated 22.10.2013 by which the applicant was placed under suspension (Annexure-A/1).
2. Brief facts stated in this OA are that the applicant is working as Secretary in the Central Council of Indian Medicine (CCIM). The powers of the President CCIM have been provided as under:-
The President shall exercise such powers and perform powers as may be assigned to him by or under the provisions of the Act and the regulations made thereunder.
3. As per the provisions of Section 12 (b) of IMCC Act 1970, the standing order dated 10.03.1986 of the Govt. of India is applicable in respect of service conditions of the employees of CCIM. Any interpretation regarding any of the provision of this order would under by law 58 have to be referred for interpretation to the Ministry of Health and Family Welfare (MH&FW), whose decision shall be final.
4. According to the applicant, on 17.04.2013 the then President, CCIM Dr. Ved Prakash Tyagi passed the impugned order placing him under suspension with immediate effect on the ground that a criminal complaint had been made with the police for investigation. It was also stated that disciplinary proceedings were contemplated against him under Rule 10(1) of CCS (CCA) Rules 1965. The applicant was placed under suspension vide copy of order at annexure A/4 dated 17.04.2013 issued under Rule 10(1) of the CCS/CCA Rules with immediate effect. It is further stated that no FIR has been registered on the criminal complaint filed by Dr. Ved Prakash Tyagi and in any case this could not be registered without a proper sanction of the CCIM, which is a statutory body under the Ministry of Health & Family Welfare. The applicant was served with a show cause notice on 09.04.2013, copy of which is at Annexure A/2. He submitted reply thereto on 12.04.2013 which is at Annexure A/3. However, without applying his mind to the interim reply dated 17.04.2013, the suspension period was again extended for a further period of 180 days from 11.07.2013. The applicant preferred an appeal thereafter for revoking his suspension. On 26.08.2013, based on the representation of the applicant, and having regard to the facts of the case, since no departmental enquiry has been initiated, nor had any criminal case been registered against him, and finding the applicant innocent in the preliminary enquiry, the suspension of the applicant was set aside by the Executive Committee of CCIM and he was directed to join the office with immediate effect pending the departmental enquiry and criminal complaint (Annexure A/8). All of a sudden, after his reinstatement, the President-in-Charge issued the impugned order dated 22.10.2013 (Annexure A/1) whereby the decision of revocation of suspension of the applicant was withdrawn on the basis of some legal opinion. The applicant has challenged the impugned order of suspension as well as the revocation of suspension in the OA.
5. The reliefs that have been sought in the OA are as under:-
(i) The impugned order of suspension dated 22.10.2013 may kindly be quashed and set aside being illegal;
(ii) The respondents may be directed to reinstate the applicant as Secretary IMCC and the period of suspension be decided as period spent on duty for all intents and purposes.
(iii) Any other relief, which this Honble Tribunal may deem fit and proper in the circumstances of the case, may also be passed in favour of the Applicant.
(iv) Cost of the proceedings be awarded in favour of the Applicant and against the Respondents.
6. Among the grounds that have been stated, one is that the President-in-charge does not get elected to the post of President merely by virtue of the earlier President having demitted office but on the other hand, it has to be filled up by the process of election in which the Members of the Central Council cast their vote to elect the President. This process has not been followed and hence the statutory powers of the President cannot be exercised by the President-in-Charge. He can only act as Caretaker and cannot pass an order as disciplinary authority or as appellate authority or any punitive order exercising statutory powers.
7. Secondly, it has been contended that the constitution of the Executive Committee is not complete without the elected President, CCIM. The Executive Committee, therefore, in the absence of the elected President, cannot take the decision to suspend an employee. Neither the President-in-Charge has any powers to suspend the applicant, nor has the representation of the applicant dated 28.10.2013 against his suspension been considered and decided.
8. Counter reply has been filed on behalf of respondent Nos. 2 and 3. Regarding Rule 10 of the CCS/CCA Rules, the respondents have stated that the applicant falls within the provisions of suspension under Rule 10 (1) whereunder a person can be suspended when a disciplinary proceeding is contemplated or is pending against him, or when a case against him in respect of any criminal offence is under investigation, inquiry or trial. Referring to Rule 10(6) of the CCS (CCA) Rules as well as Regulation 33(1) and (3) as also 67(1) and (2), the respondents have stated that the suspension of the applicant is justified. It is relevant that Rule 10 (6) provides that an order of suspension made or deemed to have been made under this rule shall be reviewed by the authority competent to modify or revoke the suspension, before the expiry of ninety days from the effective date of suspension, on the recommendation of the Review Committed constituted for the purpose which shall pass orders either extending or revoking the suspension. The allegations against the applicant have been mentioned in the counter reply and in the light of the suspicion regarding the note sheet dated 28.06.2011, it was referred for forensic examination, which confirmed tampering of official records. Show cause notice was issued and a complaint was filed by the Executive Committee of CCIM on 17.04.2013 and on the same date the applicant was placed under suspension for ninety days. On subsequent review by the Review Committee on 11.07.2013, the period of suspension was extended beyond 15.07.2013. This suspension was later revoked by the President-in-Charge on 26.08.2013. However, the applicant was placed under suspension in pursuance of the meeting of the Executive Committee on 22.10.2013 because of the serious nature of allegations pending against him relating to forging of official records and documents. The action of the President-in-Charge is stated to be in conformity with the Regulations. Various judgments have been cited in the counter affidavit, including the judgment in the case of Machhindra Pandurang Chavan vs State of Maharashtra And Others, 1989 (3) Bom CR 501, wherein it has been held by the Honble Bombay High Court that, .The need to suspend a Government servant against whom serious allegations of misconduct are made cannot be doubted. The object of suspending the Government servant who is facing serious allegations/charges is to put him out of the field of his influence to enable a fair investigation into the charges
9. In view of the said judgment of the Honble Bombay High Court and in the light of the averments in the counter affidavit, the respondents have prayed that the OA be dismissed.
10. Rejoinder has been filed by the applicant reiterating the various provisions in the General Regulations of the CCIM. It has been stated that the Executive Committee failed to take notice of the letter dated 31.10.2013 from the SHO, Hari Nagar in reply to the CCIMs letter wherein it has been informed that no further action was being taken on the complaint filed with the Police against the applicant. It is also stated that no departmental enquiry is pending with respect to the applicant. It is also stated that no chargesheet has been issued to the applicant up to 26.08.2013 or even up to 22.10.2013, nor has the representation of the applicant against his suspension order been placed before the Executive Committee so far.
11. We have heard learned counsel Mr. R.K. Jain, who argued for the applicant and learned counsel, Mr. Yashvardhan, who argued on behalf of Mr. Mehmood Pracha for the respondents. First of all, it has to be observed that the rule 10(1) of the CCS (CCA) Rules relating to suspension of the Govt. employees provides as under:-
(i) When a disciplinary proceeding against him is contemplated or is pending; or
(ii) When a case against him in respect of any criminal offence is under investigation, inquiry or trial
12. In the present case, it appears that in the absence of there being any charge sheet issued to the applicant he cannot be treated to be covered by any disciplinary proceedings. It is also not alleged that the applicant has engaged himself in activities prejudicial to the interest of the security of the State or that he was facing any investigation / enquiry in any criminal offence. The respondents have merely averred that a disciplinary proceeding was contemplated against him. The first order of suspension was issued to the applicant on 17.04.2013 in which it was stated that the disciplinary proceedings were contemplated against him. The suspension order was revoked on 26.08.2013, which was further extended for 180 days w.e.f. 11.07.2013 pending departmental enquiry and criminal complaint. On 26.08.2013 the applicant was directed to join office with immediate effect. In this way, right from the initial date of suspension i.e. 17.04.2013 till the revocation of his suspension, although it was stated in the order that departmental enquiry and criminal complaint was pending against him, it is on record that no disciplinary proceeding was initiated against the applicant by way of issuing a charge sheet. In the rejoinder the applicant has also brought this fact to notice that no criminal complaint had yet been registered against him. Merely saying that departmental proceedings were contemplated against the applicant cannot be prima facie accepted because even during the intervening months, no action was initiated by way of issuance of charge sheet, nor was any complaint registered by the competent authority against the applicant. Even till filing of the counter reply by respondent Nos. 2 and 3 on 28.11.2013, there is no averment to show that the charge sheet had been issued. There is therefore no document or record to support the contention of the respondents that since a departmental proceeding was continuing against the applicant, hence his suspension was justified. In these circumstances, this plea of the respondents cannot be accepted.
13. On the other hand no criminal case was pending against the applicant as informed by the SHO, Hari Nagar, Police Station vide letter dated 13.10.2013 in which it was informed that no action was being taken against the applicant on the complaint filed with the Police. It, therefore, appears that in terms of the provision of Rule 10(1) of CCS/CCA Rules, the action of the respondents cannot, be held to be justified. We do not find any justification on the basis of which the applicant could have been suspended and thereafter continued under suspension.
14. Another aspect of the matter is regarding the withdrawal of revocation of suspension of the applicant vide the impugned order dated 22.10.2013 (Annexure A/1). The order that has been issued states that it is based on some legal opinion received from the Legal Axis dated 19.10.2013. Here again, the Executive Committees decision pending enquiry proceeding has been cited. It is not clear from the impugned order as to what was the opinion on the basis of which it was decided to withdraw the revocation of suspension of the applicant. The applicant has thus been denied the opportunity to make effective representation against the said order. This does not meet the requirements of natural justice because it does not provide reasonable opportunity to the applicant to represent against the withdrawal of his revocation of suspension order in the absence of the disclosure of the ground on which this decision was taken. From this point of view also, the order dated 22.10.2013 is not legally sustainable.
15. In view of above the impugned order of suspension dated 22.10.2013 is not found to be legally sustainable. We accordingly quash and set aside the same. Respondents are directed to reinstate the applicant against the post from which he was placed under suspension with further direction to regulate all consequential benefits admissible to the applicant arising out of this order.
16. In effect, OA is allowed with aforenoted directions. There shall be no order as to costs.
(Raj Vir Sharma) Member (J) (Ashok Kumar) Member (A) /daya/