Central Administrative Tribunal - Jabalpur
S.P. Trivedi, Ias vs Union Of India (Uoi) And Anr. on 16 July, 1998
JUDGMENT
M.V. Tamaskar, Vice Chairman (J)
1. The applicant is a State Civil Service Officer. He was holding the post of Special Assistant to the Revenue Minister of State of Madhya Pradesh in the year 1984. He was given ex-officio status of Undersecretary in the Revenue Department of Madhya Pradesh. One of the duties of the applicant was to communicate the oral order of the Ministers to the department for suitable action. The applicant then being in the State Civil sent a note to the then Special Secretary- Shri U.K. Samal. The said note was approved and orders were given orally for taking action in the matter. The controversy arose later on when the allotment of land to Jabalpur Motor Part Dealers Association situated at Madhotal, Jabalpur. Though the Principal Secretary (Revenue) had clearly stated that the application for grant of exemption is rejected, the applicant and the then Special Secretary Shri U.K. Samal are alleged to have manipulated the note sheets stating that after the application for exemption is rejected by the State of Madhya Pradesh, the orders of allotment in favour of Motor Part Dealers Association be issued. Ultimately, in the year 1994, the Government issued the order of allotment in favour of Motor Part Dealers. The said incident became a matter of controversy and went up to the Lokayukt. The Lokayukt investigated the matter and found that there was a clear manipulation in which, apart from the applicant, the then Special Secretary U.K. Samal was also involved. It was alleged that even in absence of any application, allotment was made on 28.9.1984. The Lokayukt reported for prosecuting the by Chief Minister and Minister and both the officers. However, the State of M.P. refused to accept the report of the Lokayukt. In the mean while some persons approached the High Court of Madhya Pradesh, Jabalpur in Writ Petition No. 1861/97. The High Court while deciding the said Writ Petition on 9.12.97. directed the State Government to consider the matter relating to grant of sanction for prosecution expeditiously. Even then the State Govt, refused to grant sanction and passed a reasoned order. A charge sheet has been filed against the applicant on the basis of the investigation by the Lokayukt before the Special Judge, Bhopal. The applicant has been placed under suspension vide order dated 26.8.97 (Annexure-A-4) which is under challenge in this Application. The order is reproduced as under:
vkns'k Hkksiky] fnukad 26 vxLr] 1997 Øekad gh&2@74@97@1@6 % pwafd iqfyl LFkiuk] yksdk;qä dk;kZy; e/;izns'k Hkksiky }kjk vijk/k Øekad 122@96 esa foospuk mijkar /kkjk 468] 471] 120&ch ek- n- l- ,oa /kkjk 5¼1½ ¼Mh½ lgifBr /kkjk 5¼2½ Hkz"Vkpkj fuokj.k vf/kfu;e 1947 lgifBr u, Hkz"Vkpkj fuokj.k vf/kfu;e 1988 dh /kkjk 13 ¼1½ ¼Mh½ lgifBr /kkjk 13¼2½ ds varxZr vkjksih Jh f'koizdk'k f=osnh ¼vkbZ- ,- ,l-] e-iz-&1983½ rRdkyhu voj lfpo jktLo ,oa rRdkyhu jktLo ea=h ds fo'ks"k lgk;d ds fo:) vfHk;kstu dh LohÑfr pkgh xbZ FkhA vkSj pwafd izdj.k ea laiw.kZ nLrkostksa vkSj lkf{k;ksa ds dFku ds ijh{k.k mijkar jkT; 'kklu ds fof/k foHkkx ds vkns'k Øekad 8&6@97@430@21&d ¼vfHk-½ fnukad 11 twu] 1997 }kjk Jh f'koizdk'k f=osnh ¼vkbZ- ,- ,l- e-iz- 1983½ tks o"kZ 1984 esa voj lfpo jktLo ,oa rRdkyhu jktLo ea=h ds fo'ks"k lgk;d ds in ij inLFk Fks] ds fo:) mijksä /kkjkvksa ds vUrxZr vfHk;kstu dh LohÑfr iznku dh xbZ gSA vkSj pwafd mi;qZä vfHk;kstu LohÑfr ds vk/kkj ij fo'ks"k iqfyl LFkkiuk] yksdk;qä dk;kZy; e-iz- Hkksiky }kjk Jh f'koizdk'k f=osnh ¼vkbZ- ,- ,l-] e-iz- 1983½ ds fo:) fo'ks"k l= U;k;k/kh'k Hkksiky ds U;k;ky; esa fnukad 24 twu] 1997 dks pkyku izLrqr fd;k x;k vkSj ftls ls'ku Vªk;y uacj 12@97 ij ntZ fd;k x;k gSA vkSj pwafd jkT; 'kklu us mi;qZä ifjfLFkfr;ksa ij fopkj dj fu.kZ; fy;k gS] fd Jh f'koizdk'k f=osnh ¼vkbZ- ,- ,l-] e-iz- 1983½ orZeku esa vij lfpo] e-iz- 'kklu] foÙk foHkkx Hkksiky dks vf[ky Hkkjrh; lsok ¼vuq'kklu rFkk vihy½ fu;e 1969 ds fu;e 3¼3½ ds varxZr iznÙk 'kfä;ksa dk iz;ksx djrs gq, fuyafcr djrk gSA fuyacu vof/k esa mudk eq[;ky; Hkksiky fu/kkZfjr fd;k tkrk gSA fuyacu vof/k esa Jh f=osnh dks fu;ekuqlkj thou fuokZg HkÙks dh ik=rk gksxhA e/;izns'k ds jkT;iky ds uke ls rFkk vkns'kkuqlkj ¼,u- ,e- HkVukxj½ mi lfpo e/;izns'k 'kklu lkekU; iz'kklu foHkkx
2. The submission of the applicant is that the Minister had passed oral orders in the presence of the Special Secretary, which is also very clear from the report of the Lokayukt and as such confirmation if any, from the Principal Secretary should have been sought by the Special Secretary and not by him. He states that it is an allegation, that he did not refer the matter to the Principal Secretary or the Revenue Minister. He also states that he was neither the authority to sanction or transfer the allotment of land to a third party. Whatever the Ministers ordered, it was the duty of the Special Secretary to carry the order. As such the submission of the applicant is that, he should not be alone held responsible for the incident in question. Without entering into the controversy as to whether the applicant is responsible or nor, it would not be out of place to mention here that the writing of the note sheets begins from the level of Under Secretary and it goes up to the highest levels after at the various stages. The action of the applicant as well as that of Shri U.K. Samal has already been dealt with in the report of the Lokayukt.
3. The applicant has also filed Rules of State of M.P. pertaining to recording of verbal orders and have drawn our attention to Paras 52, 53 and 54 of the said Rules. The same are reproduced as follows :
"52. Record of Verbal Orders, etc.--All verbal orders or instructions given by officers Ministers, and where necessary, the circumstances leading to such orders/instructions should be recorded on the files.
53. A Secretary is expected to write a full and comprehensive note for the guidance of the Minister so that the latter may have before him ail points for and against the proposal. After final orders are passed by a Minister there shall be no further noting on the file. If a Secretary finds that there is any point which he had omitted to bring to the notice of the Minister concerned, and which he thinks is of sufficient importance to be brought to the notice of the Minister, he should write it on a routine note and mark it to the Minister or take the file to him personally and explain it to him. It would be for the Minister, if he thinks the point raised by the Secretary to be of sufficient importance, to record his opinion on the file, stating the suggestion made and review his previous orders, which would otherwise stand.
54. The above instructions, of course, do not apply to expression of opinion or recording of views by one department on a case referred to it by another department. Where a case is sent from one department to another under the Business Rules for the latter's views or concurrence, the Secretary of the other department can express the views of that department even though they may not be in accord with the views of the Minister in charge of to the first department. He will be deemed to be writing to his own Minister who will record his opinion or views which will be the final opinion or views of his department.
55. Officers not to deal with files concerning them--Secretariat Officers are prohibited from seeing or noting on files which deal with matters relating to themselves."
4. The applicant had approached this Tribunal on 3.10.1997. On 16.10.1997, this Tribunal passed the following order-
"Shri V.K. Tankha for the applicant.
(2) The applicant is an IAS. He is placed under suspension for an act which he had undertaken as Under Secretary (a State Civil Service Officer) in the Revenue Department. It is alleged that the Central Government has not approved or confirmed the order of suspension. An appeal is pending against the same. The applicant has raised the controversy that similarly placed persons who are IAS Officer, have not been placed under suspension. However, it is a matter for the State Government to get the appeal decided, filed by the applicant before the Central Government.
(3) Shri B.da Silva, Senior Standing Counsel is directed to inform the Tribunal as to how much time is likely to be taken to decide the appeal.
(4) List this case for orders on 6.11.97."
By a subsequent, order dated 26.11.1997, further time was granted to file return. On 4.2.1998, the applicant again made a grievance that the appeal was not decided. The Tribunal therefore vide order dated 4.2.1998 directed that the appeal be decided positively by March, 1998 by a speaking order. During the pendency of this Application, the applicant has decided the appeal vide Order dated 3.2.1998 (Annexure-A-8). The same is reproduced as under-
"New Delhi, the 3rd February, 1998 ORDER (1) WHEREAS Shri S.P. Trivedi, IAS (MP:83) was placed under suspension by the Government of Madhya Pradesh by Order dated the 26th August, 1997.
(2) AND WHEREAS Shri S.P.Trivedi filed an Appeal against the Order of suspension under Rule 16 (1) of the All India Services (Discipline & Appeal) Rules, 1969.
(3) AND WHEREAS the Government of Madhya Pradesh forwarded the appeal admitted by the Officer along with their comments on the contents of the Appeal on 4.10.1997.
(4) AND WHEREAS the Central Government has sought specific comments on certain points raised by Shri S.P. Trivedi from the Government of Madhya Pradesh on 16th/17th October, 1997.
(5) AND WHEREAS the State Government has forwarded the requisite clarification on 6th/8th December, 1997.
(6) NOW, THEREFORE, after careful consideration of the material facts and circumstances available on record as above, it has been decided by the Central Government not to accept the Appeal submitted by the officer and orders rejection of the Appeal accordingly.
By Order and in the name of the President.
Sd/-
(K.V. Gopala Rao) DESK OFFICER
5. Shri V.K. Tankha, learned Counsel for the applicant was very critical about the way the appeal has been decided. It is alleged that the appellate order does not disclose any application of mind as such the Tribunal should examine the merits of the order of suspension and pass order as deemed fit in the facts and circumstances of the case. The learned Counsel for the applicant also stated that the action taken by the State Government to suspend the applicant was arbitrary as the applicant was not the sole officer who was responsible in respect of transferring the allotment of land. The order of suspension is therefore liable to be quashed.
6. We have given our anxious consideration to the argument put forth by the learned Counsel of parties. As regards grant of sanction, the situations are given in Rule 19 under Chapter V of the Prevention of Corruption Act, 1988 which read as under-
"19. Previous sanction necessary for prosecution :
(1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction :
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government;
(c) in the case of any other person, or the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under Sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) no finding, sentence or order passed by a special Judge shall be reserved or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under Sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby:
(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity resulted in a failure of justice;
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings;
(4) In determining under Sub-section (3) whether the absence of, or any error, omission or irregularity in such sanction has occasioned or resulted in a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings."
The applicant in the instant case has been considered under Rule 19(b) of the Prevention of Corruption Act, 1988 as the incident relates back to the year 1984 on which date the applicant was in State Civil Service. Whether sanction was properly granted or not for prosecution in a criminal case is not a matter covered under the provisions of the Administrative Tribunals Act. If any illegality has been committed in granting sanction to the applicant, he should have approached the appropriate forum.
7. As regards the suspension of the applicant, it is alleged that the applicant has been suspended under Rule 3 of the All India Services (Discipline and Appeal) Rules, 1969. Rule 3 reads as under :
"3. Suspension- (1) If, having regard to the circumstances in any case and, where articles of charge have been drawn up, the nature of the charges, Government of a State or the Central Government, as the case may be, is satisfied that it is necessary or desirable to place under suspension a member of the Service, against whom disciplinary proceedings are contemplated or are pending, that Government may-
(a) If the member of the Service serving under that Government, pass an order placing him under suspension, or
(b) if the member of the Service is serving under another Government, request that Government to place him under suspension, pending the conclusion of the disciplinary proceedings and the passing of the final order in the case:
Provided that, in cases, where there is a difference of opinion-
(i) between two State Governments, the matter shall be referred to the Central Government for its decision;
(ii) between a State Government and the Central Government, the opinion of the Central Government shall prevail :
Provided further that, where a State Government passes an order placing under suspension a member of the Service against whom disciplinary proceedings are contemplated, such an order shall not be valid unless, before the expiry of a period of forty-five days from the date from which the member is placed under suspension, or such further period not exceeding forty-five days as may be specified by the Government for reasons to be recorded in writing, either disciplinary proceedings are initiated against him or the order of suspension is confirmed by the Central Government."
Since the appeal against the order of suspension was pending, this Tribunal had adjourned the matter and heard it finally after the appeal was decided.
8. In the return filed by the respondents it was stated that the order of suspension has been passed in view of the filing of the charge sheet on 24.6.1997 before the Court of Special Judge, Bhopal which is registered as Trial No. 12/97. The question for consideration is as to who is competent to appoint/remove the applicant from service on the day the order of suspension was passed. Admittedly no officer can be appointed to the IAS except by the Union and as such it is only the Union Government which can place the applicant under suspension. It is alleged by the respondents in para 3 of their return that the State Government under the statutory power vested to it under Rule 3 (3) of the All India Services (Discipline & Appeal) Rules, 1969 has placed the applicant under suspension on account of the pendency of the criminal trial. The argument of the learned Counsel for the applicant is as to whether the order of suspension in case of the applicant alone was necessary and not in the case of other officers who were superior in rank and were more responsible ? And whether the order of suspension in such circumstances suffers from any arbitrary exercise of power ? No doubt it is the jurisdiction of the State Government whether or not to suspend an officer during the pendency of criminal trial but if the action of the State Government is discriminatory, then, whether the Court or the Tribunal should intervene? Though we find there is sufficient reason for suspending the applicant yet we cannot approve the action of the State Government for not acting in a similar way in the case of other officers who were more responsible than the applicant. If such senior officers can continue despite the pendency of the criminal trial, then other officers should also be treated equally. There should nor be any discrimination between the two officers as both were in the Secretariat and had made notings in the same file during the course of their official duty. We are however not quashing the order of suspension but since there is no material to show as to why the officer, higher in rank than the applicant, and was equally responsible for the act, as reported by the Lokayukt, was treated differently, we observe that the State Government and the Union Government shall reconsider the matter and they will be at liberty to take steps within a period of three months from today. If the State Government finds that the other officer who too was responsible but has been treated differently, then it may revoke the order of suspension in respect of the applicant.
9. As regards the order passed in appeal on 3.2.1998 (Annexure-A-8), the Tribunal had specifically directed on 4.2.1998 to decide the appeal of the applicant by speaking order but the Ministry of Personnel has not passed any such order. No reasons have been recorded as required under the Rule and as held by the Hon'ble Supreme Court in the cases of Workmen v. Hindustan Steel, (1984) Supp SCC 554=1985(1) SLJ 109 (SC), Union of India v. Tulsiram Patel, (1985) 3 SCC 398=1985(2) SLJ 145 (SC), Bakshi Sardari Lal v. Union of India, (1987) 4 SCC 114=1987(3) SLJ 147 (SC), CSO v. Singasan, (1991) 1 SCC 729 and by the Principal Bench of the C.A.T. in the case of Inderjit v. Delhi Administration and Ors., (1998) 37 ATC 513=1999(2) SLJ 295 (PB-ND) (CAT). Since we expect the respondents to consider the matter afresh in the light of observations made, we, are not quashing the orders in appeal.
10. In view of what has been stated above, this Application is disposed of. There shall be no order as to costs.