Central Administrative Tribunal - Delhi
Phanikant Mishra S/O Vijay Kant Mishra vs Union Of India Through on 1 June, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application NO.488/2010 This the 1st day of June, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI SHAILENDRA PANDEY, MEMBER (A) Phanikant Mishra S/O Vijay Kant Mishra, Superintending Archaeologist (under suspension), Archaeological Survey of India, Officers Quarter in Office Complex, Patna circle, J.C. Road, Antaghat, Patna-800001. Applicant (By Shri Sanjay Kumar Das, Advocate ) Versus 1. Union of India through Secretary, Ministry of Culture, Shastri Bhawan, New Delhi-110001. 2. Director General, Archaeological Survey of India, Ministry of Culture, Janpath, New Delhi-110001. Respondents ( Ms. Rekha Palli, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Phanikant Mishra, the applicant herein, a Group A officer of Archaeological Survey of India, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking to set aside the order of suspension dated 12.12.2008, and in consequence thereof, to direct the respondents to issue him posting orders. In the context of the very limited plea raised for getting the relief as may subsist now, or as may have been pressed now, the facts may be given in brevity shorn of unnecessary details.
2. The applicant was arrested by Anti Corruption Branch, Central Bureau of Investigation, Patna on 8.12.2008. Vide order dated 12.12.2008 he was placed under deemed suspension in terms of rule 10(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter to be referred as the Rules of 1965). He was granted bail on 9.2.2009. CBI has so far not filed the chargesheet. The applicant eversince the order of suspension as referred to above, is continuing under suspension. Even though, it is pleaded that the order of suspension would not be valid as having not been passed by the competent authority, but during the course of arguments all that has been urged by the learned counsel representing the applicant is that the order of suspension dated 12.12.2008 was not reviewed within 90 days as statutorily required to be done, and, therefore, his continued suspension after expiry of 90 days from the date of his suspension would be wholly illegal and without jurisdiction. It is not in dispute that the order of suspension was passed on 12.12.2008 and it has now been reviewed only on 27.4.2010. The continued suspension of the applicant beyond 90 days from 12.12.2008, it could not be even disputed during the course of arguments, would be illegal. We may, however, refer to a latest decision recorded by the Honble Supreme Court on that behalf in the matter of Union of India & Others v Dipak Mali (SLP(C) No.6661 of 2006, decided on 15.12.2009), wherein it has been held that having regard to the amended sub-rules (6) and (7) of rule 10 of the Rules of 965, the review for modification or revocation of the order of suspension is required to be done before the expiry of 90 days from the date of order of suspension, and as categorically provided under sub-rule (7), the order of suspension made or deemed would not be valid after a period of 90 days unless it was extended after review for a further period of 90 days. Admittedly, in the present case, the review of suspension has been done only on 27.4.2010. That being so, suspension of the applicant after expiry of 90 days from 12.12.2008 would be illegal. The order carrying out review of the suspension order dated 12.12.2008 shall also be illegal and thus has to be set aside.
3. Ms. Rekha Palli, learned counsel representing the respondents, in all fairness, while not disputing the legal position as mentioned above, would, however, contend that present is a case where the Government should be a liberty to once again place the applicant under suspension. She states that a criminal case u/s 120B IPC read with Section 7 of Prevention of Corruption Act was registered against the applicant, Superintending Archeologist, while posted at Patna Circle, by Anti Corruption Branch, CBI, Patna. He was arrested on 8.12.2008 and remanded to judicial custody. Even though, the chargesheet may not have been filed in the case aforesaid, but the CBI vide its letter dated 6.4.2010 has informed that a fresh case no.RC0232008A0031 against the applicant has been registered by CBI for possession of assets disproportionate to his known sources of income, and that the investigation in the said case is under process. Insofar as, the first case wherein chargesheet is yet to be submitted by the prosecution in the court is concerned, it was a trap case. The applicant demanded a sum of Rs.90000/- as bribe from one Dhirendra Kumar through Rajesh Kumar, an LDC in the Archeological Survey of India, Patna, for passing his bill of Rs.850454/- in respect of supply of materials at archaeological site at Chainpur under ASI Sasaram Sub-Circle. Since Dhirendra Kumar did not want to give bribe to the applicant, he submitted a complaint to SP, CBI. Follow up action was taken by CBI and two independent witnesses also joined the team. Pre-trap formalities were carried out and the applicant was caught red-handed accepting bribe of Rs.90000/-. The Government on 13/16.4.2010 has already granted sanction to prosecute the applicant. It is urged by the learned counsel that it would not be desirable for such a person as the applicant, who is facing two criminal cases, both pertaining to his indulging in corruption, to be in active service, and that he needs to remain under suspension.
4. It would not be desirable for this Tribunal to make any observations and give a final verdict on the issue as to whether the applicant should continue to be under suspension or should be reinstated. However, the facts of this case are such that if the Government may, on assessment of the facts, come to the conclusion that the applicant needs to remain under suspension, in our considered view, it would be at liberty to do so. The order dated 27.4.2010 reviewing suspension of the applicant, as mentioned above, shall have to be set aside. Ordered accordingly. Resultantly, the applicant would be entitled to his pay and other emoluments from expiry of 90 days from the date of his suspension, i.e., 12.12.2008, which shall be made over to him within six weeks from today.
5. This Application is disposed of in the manner indicated above. There shall, however, be no order as to costs.
( Shailendra Pandey ) ( V. K. Bali )
Member (A) Chairman
/as/