Central Administrative Tribunal - Delhi
Ashok Kumar Aggarwal vs Union Of India Through on 1 June, 2012
0CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
OA No.495 of 2012
Reserved on : 28.05.2012
Pronounced on : 01.06.2012
HONBLE MR. JUSTICE S.C. SHARMA, ACTING CHAIRMAN
HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A)
Ashok Kumar Aggarwal
S/o R. B. Aggarwal,
R/o 56, Ashoka Road,
New Delhi-110001. Applicant
(By Advocates: Sh. Vikas Singh, Senior Advocate with
Shri S.K. Gupta)
Versus
1. Union of India through
Secretary, Department of Revenue,
Ministry of Finance, North Block,
New Delhi.
2. The Chairman,
Central Board of Direct Taxes,
Department of Revenue,
Ministry of Finance,
North Block,
New Delhi. Respondents
(By Advocate: Sh. R.N. Singh)
O R D E R
Dr. Ramesh Chandra Panda, Member (A):
The applicant, Shri Ashok Kumar Aggarwal, a 1985 Batch of Indian Revenue Service (Income Tax) Officer having put in 14 years of service was placed under suspension in 1999 subsequent to registration of two criminal cases against him and consequently getting arrested on two occasions once on 23.12.1999 and second time on 19.10.2000. However, the suspension order of the officer was quashed by this Tribunal in OA No. 783/2000 on 17.01.2003 granting opportunity to the respondents to pass fresh order as appropriate based on facts of the case and the second suspension order was issued almost back to back in the sense that the revocation of suspension was passed on 25.04.2003 and on the same day a fresh suspension order was issued. Since then the applicant has been continuing under suspension. It is the applicants case that against the said order he filed OA No. 1105/2003 which was dismissed. Against the Tribunals order he moved the Honble High Court of Delhi and was allowed to withdraw the same on 11.08.2010 with liberty to approach the Tribunal to challenge the continuing suspension on the basis of subsequent events. He, therefore, filed OA No. 2842/2010 which was decided on 16.12.2011. As such, as on date the applicant is under suspension for about 12 years i.e. from December, 1999. He has approached in different OAs and MAs in the past challenging the continuance of his suspension. The continuance of the suspension was lastly agitated by the applicant in OA No. 2842/2010 which was decided on 16.12.2011 in an exhaustive order. In the said order there was a direction to the respondents to convene a Special Review Committee to consider the revocation of suspension of the applicant. As the respondent did not pass any speaking and reasoned order, the applicant moved MA No.59/2012 seeking execution of the order and on coming to know of the said MA the respondents filed MA No. 61/2012 seeking six months time to decide the case. It is appropriate for us to refer to the directional part of the order dated 16.12.2011. The pertinent part of the direction is in paragraph 21 of the said order, which reads as follows:-
21. In totality of the facts and circumstances of this case, we dispose of this Original Application by directing the respondents to convene a meeting of the review committee within a period of two weeks from today to reconsider revocation or continuation of suspension of the applicant after taking into consideration the factors as fully detailed above. If the view of the review committee and that of the competent authority may still be to continue the suspension of the applicant, speaking order in that regard shall be passed. Reasons although in brevity may be stated, but the points raised by the applicant, and as mentioned above, shall have to be met. If the grievance of the applicant may still subsist, it shall be open for him to file fresh Application challenging the order to be now passed. In peculiar facts and circumstances of the case, costs of the litigation are made easy.
2. Pursuant to the above order of the Tribunal, the respondent-competent authority having received the recommendation of the Review Committee passed order dated 12.01.2012 whereby suspension order of the applicant was continued. As in the said order the views of the Central Bureau of Investigation (CBI) were not available, the Suspension Review Committee (SRC) could not give its reasoned and speaking recommendation and on the basis of which the competent authority simply continued the suspension of the applicant vide order dated 12.01.2012. Subsequently, on receipt of the report from CBI dated 27.01.2012, the Review Committee met, considered the views of the CBI and recommended the continuance of suspension on the basis of which the Competent Authority decided to continue the suspension of the applicant, vide order dated 03.02.2012. Being aggrieved by both the orders dated 12.01.2012 and 03.02.2012 and impugning the same the applicant has instituted the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 with prayers to quash and set aside both the orders of continuance of his suspension and also to and also to direct the respondents to reinstate the applicant forthwith with all consequential benefits.
3. Shri Vikas Singh, Learned Senior Advocate along with Shri S.K. Gupta, learned advocate for the applicant highlighted the long history of the applicants suspension including the status of the two criminal cases pending against him. Shri Singh anchored his contentions on three major grounds to submit that both the impugned orders dated 12.01.2012 and 03.02.2012 do not comply with the directions issued by this Tribunal in its order dated 16.12.2011 in OA No.2842/2010 so much so that the grounds taken by the applicant and the factors stated by the Tribunal have not been addressed in the impugned orders. Firstly, he submits that there is a clear non-application of mind by the Competent Authority and also the SRC in as much as there has been no analysis of the factors indicated by the Tribunal in its order. Secondly, the lack of independent view writs large on the face of the impugned orders as the Competent Authority has narrated the facts of the case in its order dated 12.01.2012 and decided to continue the suspension of the applicant and, inter alia, indicated that it is not feasible to pass a reasoned order considering all the points raised in the Tribunals order as the views of the CBI were not available on that date. Shri Singh would, however, contend that on 12.01.2012 i.e. the date of passing of the impugned order, the CBI comments on various paragraphs of the Tribunals order were very much available and, therefore, the impugned order passed on 12.01.2012 suffers from non-application of mind. His third major contention is that both the impugned orders lack independent view of the Competent Authority. He refers to the impugned order dated 03.02.2012 to say that in the said order the Competent Authority has narrated the facts of the case from paragraph 1 upto paragraph 9, in paragraph 10 of the order, the order takes verbatim views of the CBI, and only in the last paragraph i.e. paragraph 11 in three lines the Competent Authority, after taking note of the facts and circumstances of the case and comments received from the CBI, decided that the suspension of the applicant should be continued. In his opinion, the Competent Authority has not given any reason to continue applicants suspension. He has been merely guided by the views of CBI endorsed by the Suspension Review Committee. His contention is that the order dated 03.02.2012 does not disclose the independent view of the Competent Authority. He, therefore, reiterating the above views urges that both the impugned orders suffer from (i) non-application of mind; (ii) lack of independent view; and (iii) non-speaking and non-reasoned order and on these grounds alone OA should be allowed.
4. However, the learned senior advocate for the applicant refers to his other grounds. On the allegation of the respondents that in case the applicant is reinstated he may manage to further prolong the trial of the two criminal cases pending against him by agitating either on one issue or the other on frivolous grounds, Mr. Singh, in this regard, referred to the Honble Supreme Court proceedings in SLP (Cr.) No.7266/2007 and 7601/2007 and submitted that the Honble Supreme Court had stayed the criminal trial in both the criminal proceedings, vide its order dated 10.12.2007 until further orders. The said stay order has been continued since then. Even in the said two criminal cases, Shri Singh places before us a bunch of copies of the records of proceedings of Honble Supreme Court to state that the applicant has been cooperating whereas for one reason or the other the respondents have been seeking adjournments. It is, therefore, contended that to say that the applicant would interfere in the proceedings of the trial court is far from truth.
5. Shri Singh submits that the impugned order clearly discloses that the CBI did not offer its comments to six paragraphs of the Tribunals order. The Competent Authority which is directly concerned with those six paragraphs did not offer its reasons less to speak of even analyze the same. Both the impugned orders have been passed in a routine manner without applying its mind.
6. Shri Vikas Singh further submits that continuance of the suspension of the applicant is based on two criminal cases pending in the trial court but both the criminal cases having been stayed by the Honble Supreme Court, he wonders as to how the applicant would influence the witnesses or tamper with the evidence. His contention is that over so many years of the applicants suspension, the CBI has already completed its investigation and has filed the challans before the trial court in both the criminal cases. At this stage, the criminal proceedings have been stayed by the Honble Supreme Court. Referring to the charges framed against the applicant in a disciplinary proceedings, the Tribunal has quashed the charges as the same were not approved by the Honble Finance Minister, the Competent Authority. Though the Tribunal order has been challenged in the higher judicial fora but there is no stay of the operation of the Tribunal order. His submission is that there is stay of the criminal trial of the applicant and charges in the departmental case have been quashed. Further, he refers to the contentions taken by him that the alleged forged fax message on verification has been found to be genuine facts and as such to say that the applicant had a hand in the manipulation of the facts for which the criminal cases have been initiated against him does not hold water. His submission is that in both the criminal cases, CBI has completed the investigation and submitted the challan before the trial court, and as such to say that the applicant would influence the witnesses or tamper with the evidence even after the challan having been filed before the trial court is not proper and, as such, the comments of the CBI may not be proper to continue the applicants suspension. In this regard, he placed his reliance on the orders of this Tribunal in OA No. 3944/2010 decided on 19.05.2011 in the matter of Shri Ajoy Kumar Singh versus Union of India and Others and highlighted the pertinent paragraphs of the order to say that in the said case it has been stated that in criminal trials, the plea that the accused would tamper with the evidence or influence the witnesses is normally taken till such time the challan is presented in the court. In the present case, the challan has been presented before the trial court in both the criminal cases and his submission is that there is no chance of tampering with the evidence and influencing the witnesses by the applicant. Therefore, the continuance of suspension of the applicant is not justified. He placed his reliance on the judgment of Honble Supreme Court in the matter of O.P. Gupta versus Union of India [AIR 1987 SC 2257]. He would contend that in the entire CBI report which has been quoted in the impugned order dated 03.02.2012, there is no reference to the punitive nature of the prolonged suspension, which was the basic thrust of the observations of the Tribunal in its order dated 16.12.2011. Shri Singh placed his reliance on the judgments of the Honble Supreme Court in the matter of Satyendra Chandra Jain versus Punjab National Bank and Others [(1997) 11 SCC 444] and Nagaraj Shivarao Karjagi versus Syndicate Bank, Head Office [(1991) 3 SCC 219] to say that dependence of the Competent Authority on the views of CVC would reflect non-application of mind. His contention is that in the present case dependence on the views of CBI would be like that of the dependence on the views of CVC as has been observed by the Honble Supreme Court in the above referred cases.
7. Learned senior counsel of the applicant would also refer to the DOP&T OM dated 07.01.2004 to submit that after the completion of one year of suspension, the Competent Authority should take careful decision by properly analyzing the case as to whether there should be a review of the suspension periodically and to take into account all such developments taken place between the previous review and the current review which may be relevant for consideration of revocation or continuation of suspension of an employee. Otherwise the very purpose of laying down the instructions in the said OM would defeat the intention of the policy makers.
8. From all these points of view, Shri Vikas Singh urges that the sufficient grounds exist to quash and set aside both he impugned orders with direction to the respondents to reinstate the applicant into service with all consequential benefits.
9. The respondents have controverted the allegations leveled by the applicant in the OA by filing the reply affidavit on 05.03.2012 through Shri R.N. Singh, learned Senior Central Government counsel. Opposing the contentions raised by the counsel for the applicant Shri Singh would submit that the applicant has alleged in many places of the OA that CBI report dated 12.01.2012 was available with the department and hence could have passed a speaking and reasoned order as directed by this Tribunal dated 16.12.2011, but it was not done in order to continue the applicants suspension vide order dated 12.01.2012. He also refers to the allegation that the department has procured another report from CBI dated 27.01.2012 based on which without application of mind the impugned order dated 03.02.2012 was passed. Shri Singh would submit that the Suspension Review Committee (SRC) met on 10.01.2012 whereas the report of the CBI dated 12.01.2012 could not have been available before the SRC to take into account the same. Further, he submits that the CBI report was not on the specific observations made by the Tribunal. Even if the said report could have been considered by the competent authority, it would not have been constituted as compliance of the Tribunals specific directions. Further, as the review would have got barred by limitation and last date was on 14.01.2012, the statutory and legal obligation cast on the department was to pass order prior to the last date and accordingly the competent authority passed the order on 12.01.2012. Therefore, this order is legally sustainable. Shri R.N. Singh also submits that no sooner the detailed comments and views of the CBI could be obtained on the direction of the Tribunal, the same was examined by the SRC and a fresh order was passed by the Competent Authority on 03.02.2012. He, therefore, submits that both the orders are valid in the eyes of law and continuance of the applicants suspension is legally sustainable.
10. Further, learned counsel for the respondents drew our attention to the observations made by Sh. P. Chidambaram, the then Honble Finance Minister on 27.12.2005 that the applicant was having access to various files and had annexed photocopies of a number of documents which normally should not be in his possession. He has further observed that there is no reason why the applicant, who is a suspended officer, should frequently visit North Block and has directed the competent respondent to enquire into the matter and ensure that stringent action is taken against those in-charge of the files and to ensure that the applicant has no access to those documents. In view of the said specific remarks of the then Honble Finance Minister, Shri Singh contends that if the applicant is reinstated, he would be having access to the documents and would also influence the witnesses against the trial of two criminal cases. Further, Shri Singh drew our attention to the allegations made by the respondents indicating therein that the applicant was a resourceful accused who had been consistently trying to use his clout for his undue benefits and by filing several petitions against the CBI and its officers in Honble High Court and Honble Supreme Court of India numbering about 27. He has not allowed any meaningful progress to take in the trials of both the criminal cases pending in the trial court. He, therefore, contends that the applicants reinstatement would be prejudicial to the trial of both criminal cases pending against him in the trial court.
11. Refuting the allegations of the applicant that the impugned orders suffer from non-application of mind, lacks independent view of the competent authority and the orders are non-reasoned order, Shri Singh submits that the review of suspension of the applicant was first considered by the SRC and then decided by the Competent Authority, who had taken into account the relevant facts and information and the views of the CBI on the direction of the Tribunal and came to the conclusion that the applicants continuance of suspension would be necessary. The competent authority has taken the independent decision on the basis of the SRC minutes and decided to continue applicants suspension. In this context, he placed original file in the subject for our perusal.
12. Further, he refutes the allegation of the applicant that there has been discrimination of the applicant vis-`-vis other officers who were placed under suspension and their suspension was later on revoked. Shri Singh submits that there is no discrimination against the applicant. The SRC being an impartial and independent body has considered the relevant materials furnished before it by the CBI and on examination has recommended the continuance of applicants suspension. He, therefore, submits that each case of suspension is different from the other and is examined on its own merits and proper application of mind. Hence, the ground of discrimination alleged by the applicant is untenable. In this regard, he also informed that the CBI has been consistently of the opinion that the suspension of the applicant should not be revoked.
13. Referring to the long period of suspension of the applicant as the ground for revocation of suspension, Shri Singh submits that mere longevity of the suspension would not vitiate the suspension and he relied on the judgment of Honble Supreme Court in the matter of Union of India versus Rajeev Kumar, reported in JT 2003 (5) SC 617. He also drew our attention to the judgment of this Tribunal in the matter of Sh. A.A. Farooquee versus Union of India and others (OA No. 1091/2006 decided on 19.03.2009) which indicates that the mere fact that a long time have elapsed since the applicant has been placed under suspension would not itself be enough reason to revoke the suspension of the applicant. He also placed reliance on the judgment of Honble Supreme Court in the matter of Allahabad Bank and Another versus Deepak Kumar Bhola, 1997 (4) SCC 1, to indicate that the suspension pending criminal trial within the long period of continuance of suspension was held as legally tenable by the Honble Supreme Court. In the said judgment mere expiry of a long period of ten yeas since the filing of the chargesheet in the Court was held not appropriate ground for his reinstatement. He also referred to the judgment of Honble High Court of Delhi in LPA No. 1599/2005 decided on 26.05.2006 in the case of Medical Council of India versus K.K. Arora and Another, 2006 (VI) AD (Delhi) 749. In this regard, his reliance was to highlight that the employee may be continued under suspension even when there is a remote or even no possibility of his repeating the very same misconduct.
14. For the above contentions advanced by Mr. Singh, learned counsel for the respondents, he urges that the OA is devoid of merits and the same should be dismissed.
15. The applicant has filed the rejoinder to the above counter affidavit filed by the respondents, where the applicant has repeated most of the facts and grounds as indicated in the OA. He has added a Chart indicating the observations of the Tribunal passed in its order dated 16.12.2011 and the comments of the CBI as reflected in paragraph 10 of the order dated 03.02.2012 and on the said observation, the applicants remarks have been furnished. He has also refuted the allegations advanced by the respondents against the applicant to submit that the stay granted by the Honble Supreme Court has been continuing and a number of adjournments have been taken by the CBI and as such the applicant cannot be held responsible for the same. Further, it has been stated that in utmost disregard to the direction of the Tribunal in its order dated 16.12.2011, the respondents issued order dated 12.01.2012 which was more or less contemptuous in nature. Therefore, when the applicant filed a contempt petition, the respondents have issued one more order dated 03.02.2012.
16. On receipt of the rejoinder, the respondents preferred to file an additional affidavit on 02.05.2012 wherein the applicants allegations that the competent authoritys action was contemptuous of the Tribunals direction has been denied. In the additional affidavit, the respondents have given a brief background of the two criminal cases. More or less chronological events have been indicated. It has been stated that the applicant has been facing two criminal cases (a) RC No. S 19/E006/99 and (b) RC No. SIU8-E001/99. To the additional affidavit of the respondents, the applicant has also filed a reply on 07.05.2012 more or less pleading the same points which he has indicated in the Original Application.
17. Having heard the contentions of the rival parties, with the assistance of the learned counsel for the parties, we have perused the pleadings and relied on judgments. We have also perused the original file in which order of continuance of the applicants suspension has been passed by the Competent Authority. For brevity purpose, we are not referring to all the judgments which have been relied upon by the parties. It is in the fitness of things to mention that some of those judgments have already been noted by the Tribunal in its earlier order dated 16.12.2011. Therefore, we would be confining ourselves to some of the judgments only which would be relevant in the facts and circumstances of the present case.
18. Before us are two sets of issues for consideration and determination. The first set of issues relates to the question whether the impugned orders dated 12.01.2012 and 03.02.2012 are in compliance with the directions issued by this Tribunal and are tenable or not? The second set of issues concern the issue of continuance or revocation of suspension of the applicant.
19. We now examine the first set of issues. In the order of the Tribunal in OA No. 2842/2010 decided on 16.12.2011, facts of the case and background of the controversies have been narrated at greater length. It may not be necessary for us to repeat the same except the relevant matter which would be necessary. In the said order, a direction was issued to the respondents to convene a meeting of the Suspension Review Committee (SRC) within a period of two weeks from the date of issue of the order to reconsider revocation or continuance of suspension of the applicant after taking into consideration the factors as fully detailed above. In the body of the said order, various factors have been brought out for consideration of the respondents and the respondents were granted the opportunity to take into consideration those factors and in case the SRC finds it necessary to continue the suspension of the applicant, a speaking order needs to be passed in that regard. It has also been indicated that reasons although in brevity may be stated, but the points raised by the applicant, and as mentioned within the order, should also be met. In this context, we refer to the continuation of the suspension order dated 12.01.2012 which has analyzed the long history of the two criminal cases and the departmental proceedings and has taken note of the stay granted by the Honble Supreme Court in the criminal proceedings and the chargesheets in the departmental proceedings have been quashed by the Tribunal on 24.02.2010 against which the SLPs have been filed and are pending before the Honble Apex Court. It has taken note of serious allegations leveled against the applicant and the reports of the CBI thereon. The order also goes on to analyze the observations and directions of the Tribunal in paragraphs 5 & 6 and in paragraph 7 it refers to the DOP&T OM dated 07.01.2004 and has recorded its decision in the following manner:-
8. Whereas, the Competent Authority has reviewed the suspension of Shri Ashok Kumar Aggarwal on the recommendation of the Review Committee, as provided in Government of Indias DOP&T notification GSR No.2 and DOP&Ts OM No.11012/4/2003-Estt.(A) dated 07.01.2004 and after carefully considering all the facts and circumstances of the case including the CAT, Principal Benchs order dtd. 16.12.2011 in OA No.2842/2010 read with the CATs direction dtd.09.01.2012 in MA No.59/2012 in OA No.2842/2010 & the CBIs report.
9. Whereas, taking into account all facts & circumstances, the Competent Authority is of the view that it is not feasible to pass a reasoned and speaking order considering all points raised in the impugned CATs order at this juncture. As directed by the Tribunal, the order under consideration may be passed after the CBIs report is received.
10. Accordingly, the Competent Authority has decided to continue the suspension of the officer, meanwhile, in terms of DoP&Ts Notification GSR No.2 (F.No.11012/4/2003-Estt.(A) published in the Gazette of India dated 03.01.2004 read with that Departments O.M. dtd. 07.01.2004.
20. In view of the above order it would be appropriate for us to refer to the Minutes of the meeting of the SRC held on 10.01.2012. In the said Minutes, the facts of the case including the criminal and departmental proceedings have been recorded. With regard to the Tribunals direction in the order dated 16.12.2011, the respondents have called for the views of the CBI and in the absence of the CBI report on the same, they have referred to the CBI letter dated 17.06.2011 wherein the applicants suspension was requested to be continued. Subsequently, another communication dated 25.08.2011 was also received from the CBI giving details of the manipulative tactics of the applicant who, with the help of his connections and influence at high places, was trying to cripple the trial in the criminal cases filed against him under the Prevention of Corruption Act. The acts of bringing political and other outside influence to further ones interest on the part of the applicant are in the nature of administrative misconduct. Action in this regard is pending in the department. It is also noted that the SRC has taken into account four Original Applications and one Writ Petition filed by the applicant (it is noticed that all the four OAs have already been decided by the Tribunal). It also takes into account the directions issued by the Tribunal in its order dated 16.12.2011. The SRC also considered three opinions of the Central Government Standing Counsel (CGSC) dated 24.12.2011, 05.01.2012 and 09.01.2012, where the respondents have been inter alia advised to challenge the order of the Tribunal in the higher judicial Fora under Article 226 of the Constitution of India. The SRC has also noted the developments after receipt of the Tribunals order wherein it has been mentioned that the Department has filed MA No. 59/2012 in OA No. 2842/2010 seeking extension of time of six weeks to enable the Competent Authority to comply with the Tribunals order. The applicant also filed Execution Petition in the Tribunal. The Tribunal disposed off both the MAs directing the Department to dispose of the matter by 14.01.2012. The applicant has filed Caveat Petition in the Honble High Court of Delhi seeking to serve a complete set of paper book to him in advance in case suit/petition is filed by the Department, and on the basis of the recommendation of the CGSC, the Ministry of Law and Justice was being consulted to examine the feasibility of filing a writ petition against the Tribunals order. The SRC has also noted the representation of the applicant for revocation of his suspension and for grant of ad hoc promotion to the grade of Commissioner of Income tax. Taking into account all these facts of the case, the Review Committee has recommended continuance of the applicants suspension, on the basis of which the Competent Authority approved the continuance of suspension of the applicant. At this stage, it should be noted that between the previous review and the current review held on 10.01.2012, the developments which have been noted by the Review Committee are relating to the status of the Original Applications and consultation process being undertaken with the CBI and Ministry of Law and Justice. Such developments may be partly relevant, but are not directly related to the developments which would be the grounds to necessitate the continuance of applicants suspension.
21. We may now refer to the next impugned order dated 03.02.2012 passed by the Competent Authority in continuing suspension of the applicant, wherein extensive reference and reliance has been made to the report of CBI dated 27.01.2012. The CBI has given its advice in respect of the issues mentioned in paragraphs 5, 6, 7, 8, 9, 11, 12, 14, 15, 16, 17 and 18 of the Tribunals order dated 16.12.2011. Though the Competent Authority has taken into account the views of the CBI but there are some paragraphs on which the Competent Authority and more so the SRC should have considered the directions and observations of the Tribunal but the same have not been noticed in the body of the impugned order dated 03.02.2012.
22. In this regard, the learned counsel for the applicant has furnished a Chart in the rejoinder in which specific analysis has been made by him to indicate whether the SRC and the Competent Authority have considered the directions of the Tribunal or not and if so in what manner. For brevity of reasons, we may briefly refer to the same but it is not necessary to narrate the long comparative statements given in the said Chart.
23. The impugned order is based on the recommendation of the SRC, which met on 31.01.2012, which considered the continuance or otherwise of the applicant keeping in view the report of the CBI received by it. A careful perusal of the Minutes of the meeting would disclose that in a large part of its Minutes, the SRC has recollected and repeated the facts and background of the case as has been done by the SRC in its previous meeting held on 10.01.2012. We do not intend to repeat the same as the same may burden this judgment. However, the recommendation of the Review Committee is extracted below:-
VI. Recommendation of the Review Committee:- During the last meeting of the Review Committee read with minutes dated 10-01-2012, the Committee was of the view that it was difficult to pass a reasoned and speaking order considering all points raised in the impugned CATs order as the CBIs report was awaited. The Review Committee was also of the view that suspension of the officer, meanwhile, in terms of DoP&Ts notification GSR No.2 (F.No.11012/4/2003-Estt.(A) published in the Gazette of India dated 3.1.2004 read with that Departments O.M. dtd 7.1.2004 and the Honble CATs order dtd 16-12-2011 in OA no.2842/2010 read with order dtd 09-01-2012 in MA no-59/2012 in OA no-2842/2010; be reviewed and suspension of the officer be continued. The committees above recommendation was approved by the Honble FM and order dtd 12-01-2012 was passed against which contempt petition has been filed by Sh. A.K. Aggarwal in the CAT, Principal Bench; coming up for hearing on 03-02-2012.
However, the CBIs report dtd. 27-01-2012 has been discussed during the meeting as on 31-01-2012 by the Review Committee. Taking into all facts & circumstances as mentioned in the report, the Review Committee is of the view that suspension of the officer may be continued & a reasoned and speaking order incorporating the CBIs report may be passed with the due approval of the Competent Authority
24. On the basis of the above recommendation, when the papers were placed before the Competent Authority (Shri Pranab Mukherjee, Honble Finance Minister, the following orders were passed:-
This case is to be dealt with care. Merit of the case should be reviewed during the next review meeting. CBIs response in respect of CAT order should also be obtained.
25. The Honble Finance Minister has passed this observation on 02.02.2012 on official Note submitted by the Deputy Secretary (V&L), Convener Secretary, who has recorded in paragraph 4 of the said Note that the CBI has sent its report dated 27.01.2012 in form of Para-wise comments on order dated 16.12.2011 in OA No.2842/2010, marked C. In view of the said observation available from the original file of the respondents, the learned senior counsel for the applicant would submit that the Competent Authority has not approved the continuance of suspension of the applicant as recommended by the SRC but has sought clarification and consideration. On the other hand, Shri R.N. Singh, learned Senior Government Counsel, opposes to say that only after the approval of continuance of suspension that observation has been made. It would be appropriate for us at this juncture to note that by implication and inference, the order of the Competent Authority can be construed to have been accorded the sanction for continuance of suspension of the application but has also simultaneously made the observation which gives an impression that observations and directions of the Tribunal issued in its order dated 16.12.2011 have not been adequately addressed. Despite the availability of the CBI report dated 27.01.2012 in the file when the Competent Authority perused for passing the orders, the observation extracted above manifests inadequate consideration of the case on merits and on the factors flagged by the Tribunal in its order dated 16.12.201. Thus, we feel that there is inadequate application of mind while passing the impugned order dated 03.02.2012.
26. Apart from the above reasons, we may advert to the specific observations and directions of the Tribunal in the order dated 16.12.2011 in OA No. 2842/2010 and examine the manner in which some of those have been considered by the SRC, Competent Authority and CBI.
27. Our analysis in the following paragraphs gives us impression that entire relevant information were not available before the SRC and the Competent Authority. Had the proper facts been placed before them, their informed and considered conclusion would have been different.
28. The Tribunal in its order dated 16.12.2011 at paragraph 13 observed as follows:
It is urged that there is a purpose of providing mandatory review after every 90 days, and that is to see whether any developments have taken place which may have officer, and if the same were not to be taken into consideration and order of review of suspension is to be passed mechanically without application of mind, the same would defeat the very object of the instructions, thus contend the applicant and his counsel. There cannot be any dispute as regards the object of issuing instructions to review suspension periodically, as mentioned above. There has indeed been no contest on this aspect of the case during the course of hearing. Having heard the learned counsel representing the parties, we are of the firm view that all developments that may be relevant to the continuation or otherwise of suspension of an employee have necessarily to be taken into consideration, as otherwise, the very purpose of laying down the instructions shall stand defeated. This has been so held by us in number of judgments. Once, there is no dispute as regards the object of laying down the instructions, it would be unnecessary to refer to such decisions, which will only burden the judgment. The applicant and his counsel would submit that not only wrong facts came to be recorded in the orders of suspension, but the respondents would not consider the developments that have taken place since last more than 12 years, for which period the applicant has remained under suspension, and that this in itself would be enough to vitiate the orders of suspension passed from time to time. The CBI has not given any comment on the above as it pertains to the respondents. The SRC and the Competent Authority are silent on the issue. For last some reviews, it is noted that there are no specific developments to allow the applicants continuance under suspension. We have no information from the file to know whether any developments have taken place which may have warranted the continuance of applicants suspension. As the same are not considered the order of review of suspension passed is considered mechanical and non-application of mind.
29. Further the Tribunal in the said order dated 16.12.2011 at paragraph 14 has observed that some of the orders extending suspension of the applicant record departmental proceedings as also one of the grounds for his continued suspension and the respondents were to look into this factor while deciding the review of suspension. Relevant portion is extracted below:-
Despite that, in the review carried out by the respondents vide order dated 15.07.2010, suspension of the applicant has been extended on the ground that the allegations made against him are grave in nature, as also that he had not filed written statement of defence (WSD) in another departmental proceedings. The reason that the applicant had not filed WSD is factually incorrect. Once on 15.07.2010, no departmental enquiry was pending against the applicant, there was no question for him to have filed any WSD. It is difficult to believe that the respondents who were party to the OA culminating into order dated 24.02.2010, would be oblivious of the charge memorandum against the applicant having since already been quashed and set aside. Be that as it may, mention of a totally wrong fact in the review order dated 15.07.2010 would tend to show non-application of mind and extending the period of suspension of the applicant in a casual manner. In this regard the CBI has not given any comment as it pertains to the respondents. The SRC having noted the above observation and the status did not properly appreciate to record its views, for which reasons the Competent Authority has fallen into error in being silent on the issue. We do not find from the file to know what was in the mind of the competent authority in taking those facts into consideration while deciding the continuance of applicants suspension. Thus, the decision making process tends to show non-application of mind in extending the period of suspension of the applicant in a casual manner.
30. Next aspect we may refer relates to the paragraph 14 and 15 of the Tribunal order dated 16.12.2011 in which detailed discussion on two criminal cases has been noted. The CBI has furnished its views on the same and stated that as regards the exclusion of information relating to LR from Swiss Authorities in the SPs report is factually incorrect. It may be noted that the said LR was mentioned in the list of documents attached to the SPs report sent by the CBI to Ministry of Finance for sanction for prosecution against Sh. Aggarwal. Moreover, this issue was examined by Shri P. Chidambaram, the then Finance Minister, vide his noting dated 18.06.2005 available in F.No.16/1/99-Ad.I-C. In the said note, the then Finance Minister has written that I am, therefore, satisfied that the sanctioning authority had before it all the material relied upon by the CBI while sanctioning prosecution. I am also satisfied that the allegations made by Shri Ashok Kumar Aggarwal that crucial documents were not considered by the sanctioning authority is not tenable. The learned counsel for the applicant submits that the CBI has not dealt with the self contained note recorded by the officers of Department of Revenue including Additional Secretary cum CVO containing the facts that the reply to LR had not been sent by the CBI to the sanctioning authority. It was stated that CBI had sent only a SPs report to the sanctioning authority and did not send any relied upon materials including the statements of all the witnesses and other documents including reply to LR which fact could be verified from the files of the Department. His contention is that no document including reply to LR was ever sent by the CBI to the sanctioning authority. He alleges that CBI has once again suppressed crucial findings made by the then Honble Finance Minister in his note dated 15.01.2007 made subsequent to his earlier findings on 18.06.2005 as that did not support the case of CBI. He referred to the relevant extracts of the said noting of Honble Finance Minister which we reproduce below:-
11. The self contained note is a document prepared by the Department on the basis of facts available before the Department and containing inferences or conclusions drawn by the Department from such facts. Whether the inferences or conclusions drawn in the self contained note are correct or not can only be established in detailed inquiry into the chain of facts constituting the offence and the chain of facts leading to the grant of sanction for prosecution. Whether any link in the chain of facts leading to the grant of sanction for prosecution was not before the sanctioning authority is a matter which can only be established in a detailed investigation. I may however, point out that I have already reached the prima facie conclusion that the documents listed at Sl. No. 41, which is the letter rogatory issued on 29.01.2001 and the reply from the Federal Department of Justice and Appeals (Switzerland) (dated 11.07.2001) were shown by the then DSP, CBI to Dr. G.C. Srivastava, the then Additional Secretary and CVO.
12. Consequently, I am not in a position now to reach any other conclusion. It is for the accused to raise this issue, if so advised, before the trial court and it is for the court to decide whether the sanction was accorded after applying mind to all the relevant documents, including specific documents which Shri Ashok Kumar Aggarwal alleges were not before the sanctioning authority whereas the CBI states that they were shown to the sanctioning authority. A careful study of the file placed before us we do not find that SRC and the competent authority have considered the above points in respect of the observation on the pertinent allegations against the applicant in the relevant criminal case.
31. An associated observation of the Tribunal in the order dated 16.12.2011 may also be referred to. That aspect is as follows:
The fax message is said to have been forged by Abhishek Verma at the instance of the applicant. If on the Letter Rogatory it comes that the fax message was indeed received, would not that be relevant to form an opinion as regards the seriousness of the crime committed by the applicant? As mentioned above, we may not give our opinion on this issue at this stage at least, but surely, this was a development germane to consider the continuation of suspension of the applicant, and as mentioned above, does not appear to have been taken into consideration ever. With reference to the above observation, CBI has informed that regarding the reply to LR sent by the CBI is factually not correct and the contents of the said LR execution report have been misinterpreted by the applicant. We note from the minutes of SRC, analysis done by the Department and the order of the Competent Authority no specific stand has been taken.
32. In Paragraph 16, the observation of the Tribunal in the order dated 16.12.2011 has taken note of the applicants ground on the issue of sanction of prosecution against the applicant and during the hearing in the instant OA the same issue was raised by the senior counsel of the applicant to say that CBI has misled the Tribunal. He submits that the relied upon material were not sent to the sanctioning authority for granting prosecution sanction in one case in which Shri Jaswant Singh, the then Honble Finance Minister had approved the sanction for prosecution and has filed the said affidavit but the CBI was confusing with the other criminal case. The pertinent observation of the Tribunal reds thus:
Shri Jaswant Singh, the then Finance Minister, had submitted an affidavit in the court of Special Judge, CBI on 03.11.2007, wherein it is mentioned that he was the Finance Minister during the period and was the sanctioning authority. He, while confirming the statement of facts in paragraph 8 and some other paragraph of the order of the High Court, which cannot be read from the photo copy of the affidavit available at pages 194-195 of the paper book, stated that no statement of witnesses or documents relied in the charge-sheet are ordinarily forwarded to the Finance Minister of the day, and what is sent is a draft order, where after sanction by the Minister is normally a routine acceptance of the draft. It is further stated that what was considered by him was only that which was sent or recommended to him, and that if the obligation was to consider more than which was sent, then that had not been done, and, therefore, unwittingly prejudice might have been caused and justice miscarried. It is then stated that he would leave it to the court to decide the matter. This affidavit of the then Finance Minister, once again, it appears, was never considered by the concerned authorities while extending the period of suspension of the applicant. We note that CBI has given its views on the same. But we arein dark despite study of the Minutes of the SRC and the impugned order to know which version is true. It is not for thr Tribunal to undertake roving enquiry, however we feel that if the said contradictory information could have checked by the SRC, the correct information would have guided properly the decision taking process.
33. Yet another important aspect which is relevant in deciding the issue of continuation of applicants suspension or other wise relates to the factor high lighted by the Tribunal in the order dated 16.12.2011. We may briefly refer the same. It was the case of the applicant that he represented on 17.12.2009 wherein he supplied number of orders passed by the courts, including two orders passed by the High Court of Delhi ordering registration of two FIRs against two CBI officers for fabricating documents and conducting padded investigation, as also the affidavit filed by the then sanctioning authority. In the orders of the Tribunal it has been noted that the applicant made a representation on 11.07.2011 to the Revenue Secretary, but the same was not considered by the SRC in its meeting held thereafter in July, 2011.
34. The observations made by the Tribunal in order dated 16.12.2011 have interalia narrated the relevant legal points which have importance in the instant case. We may reproduce below the same;
Before we may part with this aspect of the case, we may mention that even if the opinion of CBI may be available with the review committee at the time of extension of suspension of the applicant, there is no mention in the reply that the opinion of CBI to continue the suspension was based upon certain facts. Normally, be it CBI or any investigating agency, it may opine continuation of suspension on seriousness of the offence and the likelihood of an accused tampering with evidence. The two criminal cases registered against the applicant, it would appear to us, would be based upon documentary evidence. The investigation in both cases is complete and the final report or challan under section 173 Cr.PC has already been submitted in the court. There is no doubt that an influential person involved in a crime may be able to suborn the witnesses or tamper with evidence even after challan may have been put up in the court, but surely and admittedly, the intensity of the plea as regards tampering with evidence, after the challan is put up in the court diminishes manifolds. On the above observation the CBI has taken the stand that there are chances of tampering with evidence by the applicant and have mentioned that he is very resourceful and has clout for the same. He has filed several as many as 27 petitions and some of those are against CBI and its officials in Honble Delhi High Court and Honble Supreme Court of India. Refuting these allegations the senior counsel has contended that the CBI is having grudge against the applicant as he has filed few case against them for fabrication of documents and torturing and threatening the applicant and his family members and for causing physical injuries to them. It is not for the Tribunal to enter into the domain outside our jurisdiction to look into all the cases faced by the applicant or filed by him. It would suffice to state that SRC and the competent authority should have examined the applicants allegations and representation in a dispassionate manner keeping in view the Tribunal observations.
35. Considering the above facts and for the reasons given within, we are of the considered opinion that both the impugned orders passed by the Competent Authority are simple, routine and non-reasoned orders in extending the suspension of the applicant. Though CBI has done its responsibility in giving some information on the observations and directions of the Tribunal but the SRC has partly done its duties but failed to analyze and give its views specifically on many factors identified by the Tribunal within its judgment and non consideration of the applicants representation while recommending continuance of suspension of the applicant. There was a specific direction in paragraph 21 of the Tribunals order to the SRC i.e. In totality of the facts and circumstances of this case, we dispose of this Original Application by directing the respondents to convene a meeting of the review committee and the said SRC would re-consider revocation or continuance of suspension of the application after taking into account various factors as detailed in the judgment and the said order of the Tribunal has also indicated that Reasons although in brevity may be stated, but the points raised by the applicant, and as mentioned above, shall have to be met. On careful perusal of both the impugned orders, report of the CBI, minutes of the SRC, we are of the firm view that the impugned orders dated 12.01.2012 and 03.02.2012 are not complete compliance of the Tribunal order. Hence, both the orders are liable to be quashed and set aside. We order accordingly.
36. The second set of issues coming up for our consideration relate to the continuance of the applicants suspension. Having considered the first issue that both the impugned orders passed by the Competent Authority in continuing the suspension of the applicant has not adequately addressed the directions and observations of the Tribunal contained in order dated 16.12.2011 passed in OA No. 2842/2010 and having set aside the same, the resultant corollary would be that the continuance of applicants suspension is not legally tenable. However, we would carefully examine this issue further.
37. Generally, in the matters of suspension and continuance thereof of the delinquent officer, the Tribunal would remand the case to be considered by the SRC and the Competent Authority but this is not a case of general nature. This is an exceptional case of typical nature where the long period of suspension coupled with stay of the criminal cases have to be taken into account by the Tribunal to decide the issue. In the order passed by the Tribunal in OA No. 2842/2010 decided on 16.12.2011, the Tribunal remanded the matter to the respondents to re-consider the same, but in our view the dispassionate consideration has not been done and, therefore, we are of the view that Tribunals interference in this matter of suspension would be necessary.
38. As the basis for applicants suspension and continuance is two criminal cases pending against him, it is apt to note the nature and status of both the cases. Two cases were registered by the CBI in 1999. In RC No.S19/E006/99, a preliminary enquiry was conducted on 17.09.1999 on the allegations of the applicant having disproportionate assets. After processing the applicants case the competent authority sanctioned the prosecution on 02.11.2002 and the prosecution order was issued on 26.11.2002. The CBI filed the Chargesheet (challan) on 05.12.2002 whereby all documents and statements were deposited by the CBI in the Special Court. On 10.01.2003, the trial court took cognizance of the chargesheet and issued summons to the applicant. The applicant filed an application challenging the validity of sanction on 01.05.2003. The applicant filed another application challenging the sanction on 12.09.2005. The arguments commenced on 17.12.2005 on framing of charges. In the meantime, the applicant moved one application under Sections 397 and 398 of the Cr. P.C. seeking to set aside the interlocutory order of the Ld. Special Judge on 17.09.2007. The Ld. Special Judge has passed an order dated 27.09.2007 indicating therein that the issue whether the Competent Authority has passed the prosecution sanction or not shall be decided at the trial stage. As the Honble High Court directed that the matter would be taken up only on the question of stay, CBI filed its reply on 25.09.2007 and on 03.10.2007, the Honble High Court quashed the order of sanction and remanded the matter to the Court of Special Judge. In the meantime on 19.11.2007, CBI filed an SLP before the Honble Supreme Court. Vide order dated 10.12.2007, Honble Apex Court while admitting the Petition stayed the proceedings of the trial court and this status is continuing even as on date. In the second case i.e. RC No.SIU8-E001/99, the CBI registered a regular case against the applicant on 29.01.1999 on the written complaint of one Shri Abhijit Chakraborty, Additional Director, Enforcement Directorate, Ministry of Finance. In the said complaint, it was alleged that the Delhi Zonal Office of the Enforcement Directorate had conducted a search on 01.01.1998 at the office and residential premises of one Sh. Subhash Chandra Barjatya. During the searches, the officers of the Enforcement Directorate seized a FAX message (debit advice) from one of the shops of Shri Barjatya purposely from Swiss Bank Corporation, Zurich, Switzerland which reflected a debit of US $ 150,000/- from the account of Royalle Foundation, Zurich, Switzerland in favour of one Shri S.K.Kapoor, holder of account in Hong Kong & Shanghai Banking Corporation, Head Office of Hong Kong. Shri Barjatya alleged that the FAX message from the said Swiss Bank Corporation was a forged one and was planted in his premises during the course of search conducted on 01.01.1998 in order to frame him. It is appropriate to mention that the learned Special Judge allowed the Petition dated 18.07.2010 filed by one Sh. Abhishek Verma and by a separate order granted pardon to him. The Court, while passing the order, perused the case diaries which included the reply to the letter rogatory. Being aggrieved by the said order of the Special Judge, the CBI filed a Writ Petition before the Honble High Court seeking a writ of certiorari to quash the above mentioned impugned orders of the Ld. Special Judge. The CBI aggrieved by the judgment of the Honble High Court dated 10.07.2001, filed a Special Leave Petition which was dismissed by the Honble Supreme Court on 08.10.2001. In the meantime, Honble High Court directed the Revenue Secretary to consider the record of investigation fairly and objectively taking into consideration all the relevant facts and circumstances and pass appropriate orders and the Competent Authority having gone through the facts of the case granted prosecution sanction against the applicant. The CBI filed a chargesheet before the trial court on 28.06.2002 which was taken cognizance on 08.07.2002. On 17.12.2005, the learned Special Judge after considering all contentions passed an order directing the framing of charges. In the meantime, Honble High Court passed an order on 20.08.2007 setting aside the order granting pardon and remanded the same to the Special Judge to consider the application afresh in the light of the chargesheet and the entire material available with the CBI. Against the said order of the Honble High Court, the SLP filed on 19.11.2007, the Honble Supreme Court vide order dated 10.12.2007 while admitting the SLP stayed the proceedings of the trial court. This position is continuing even today.
39. One of the grounds canvassed by the learned counsel for the respondents in support of the continuation of suspension is that the applicant has been litigating in large number of cases so much so 27 cases have been instituted by either of the parties. He strongly urged that for such reason, the continuance of suspension of the applicant would be necessary. This argument does not convince us for the reason that every aggrieved party, be the individual employee or the Government Department, has the right to agitate for redressal of their respective grievances in the appropriate judicial fora. In case of the applicant, we note that two charges framed against him departmentally have been quashed by this Tribunal in the matter of Shri Ashok Kumar Aggarwal and Others versus Union of India (OA No.2680/2008 and another connected OAs decided by a common order dated 24.02.2012). He has succeeded in his two litigations on departmental proceedings, though the respondents have challenged the same in the SLP filed before the Honble Supreme Court. For his two criminal cases, the applicant has agitated before the Courts but the respondents have moved to the Honble Supreme Court in two SLPs where vide order dated 10.12.2007 the Honble Supreme Court has stayed the proceedings in both the criminal cases pending in the trial court. Keeping in view the above developments and present status in position, we do not find that too many litigations can be the ground to keep the applicant in continuous suspension.
40. At this stage, it is appropriate to note that two criminal cases are the basis for the applicants suspension and continuance. Those two criminal cases have been stayed by the Honble Supreme Court vide its order dated 12.10.2007. As on date the stay of the Honle Supreme Court is operating. In view of the stay granted by the Honble Supreme court, the charges (challans) already filed by the CBI before the trial court in both cases and the same having been taken cognizance of, formal charges have not yet been framed by the trial court. Even if the SLPs are decided expeditiously , it will take considerable time for the trial court to frame the charges, examine the witnesses and come to the final decision whether the applicant deserves to be convicted or acquitted. In case of two departmental proceedings, though the charges were finalized, enquiry report was received but on consideration of the applicants two OAs the charges in both the departmental proceedings have been quashed and set aside. It was stated that in those two cases the Govt. have moved SLPs directly before the Honble Supreme Court. We could not be apprised by the learned counsel for the respondents about the status of those two cases.
41. We are considering the present OA in this piquant and typical situation. Admittedly, the applicant has been under continuous suspension for about 12 years whereby the subsistence allowance is being paid periodically to the delinquent officer without extracting any functional work from the applicant. Over last 12 years substantial amount from the public exchequer would have been spent on the applicant. Let us presume for the time being that the applicant deserves to be punished and allegations of disproportionate assets, corruption, moral turpitude etc. stand proved against him, such an event would arise if the applicant would get convicted in the criminal case or the departmental proceedings would culminate imposing major penalties against the applicant like dismissal/removal from service. But, at the present stage the criminal and departmental proceedings are pending and there is no indication of the completion of those cases in near future. On the other hand, if the applicant proves his innocence in both departmental and criminal proceedings, it would be injustice for such an officer to continue under suspension for a long period of time. In this situation, keeping the applicant under suspension on one side and respondents not getting any work done through him for the official purpose on the other side while public money is being spent on the applicant in the nature of subsistence allowance shocks the conscience of this Tribunal. Therefore, we have to take a balanced view to see whether justice is being done in continuing the suspension of the applicant.
42. In this regard, the question arises why an employee should be suspended? It is an admitted fact that suspension is not a punishment. Suspension is only a disabling action against an employee to discharge the duties of office/post held by him. In other words, suspension is intended to restrain a delinquent officer to avail further opportunity in order to perpetrate the alleged misconduct. The suspension is also meant to prevent an opportunity to the delinquent officer to scuttle the enquiry/investigation or to win over the witnesses or to tamper with the documents and evidences. The suspension is, therefore, a tool in the hands of the Administration to complete the enquiry/investigation smoothly. In this backdrop of admitted legal position on the question of why an employee should be placed under suspension, if we examine the facts of the case, we notice that in two criminal cases investigation by the CBI Apex Investigating Agency, has been completed and challans/charges have been filed before the trial court in both the criminal cases. In departmental enquiry, enquiry report is available. The criminal proceedings have been stayed by the Honble Supreme Court and the departmental charge framed against the applicant have been quashed and set aside by the Tribunal. Therefore, the possibility of the applicant manipulating the evidence, influencing the witnesses and tampering with the documents in departmental proceedings may not be there as the enquiry has been completed and the enquiry officers report is available. But there may be some possibility of influencing the witnesses if at all the stay is vacated in the criminal cases by the Honble Supreme Court and the trial court commences the trial after framing of the charges against the applicant. At the present stage we cannot predict what may happen in near future in both the criminal cases. At present the issue is whether the applicant should continue under suspension. In our opinion, continuance of suspension of the applicant may not be necessary, as he cannot influence witnesses or tamper evidence, which aspect should be examined by the respondents at the relevant point of time and to consider passing of the appropriate orders in case the applicant indulges in such practices. This is such a typical case where it is relevant for us to refer to this Tribunals order dated 16.12.2011 wherein it has been already recorded that the applicant has only spent 14 years of service in discharging his duties and for last 12 years he is now under suspension and the balance part of his service will be about 10 years. If the position of suspension continues it would be absolutely unjust both from the point of view of the applicant as well from the point of view of the Government.
43. In the past through the decisions of this Tribunal the respondents have been provided opportunity to consider the issue of continuance or revocation of suspension of the applicant but the same reason of pendency of the criminal cases has come up again and again in support of the continuance of the suspension of the applicant. In our opinion, there being no other reason by which the continuance of suspension has been considered, it would not be just for the respondent- Competent Authority to continue the applicant under suspension. In this regard, it would be appropriate for us to mention the judgment of Honble Supreme Court in the matter of O.P. Gupta versus Union of India (supra) where the Honble Apex Court observed that keeping the departmental proceedings alive for 20 years and not to have revoked the order of suspension for over 11 years was grossly unjust. From the date of applicants initial suspension in the year 1999, 12 years have passed. From the date of filing of challan in the criminal cases by the CBI before the trial court in both the criminal cases many years have passed. From the date of filing of Enquiry Report in the departmental proceedings, substantial period has elapsed. Even after the stay was granted by the Honble Supreme Court on 12.10.2007 in both the criminal cases, more than 4= years have passed. Looking into the continuance of suspension of the applicant from all these angles, we get the impression that such a long period of suspension in case of the applicant is not currently justified.
44. In various instructions of the Government, it has been spelt out that the competent authority should take all possible steps to keep the period of suspension to the barest minimum. It would be appropriate for us to reproduce below the relevant instructions of the Government in DOP&T OM dated 07.01.2004 in which the Governments intention has been specified that after one year of continuous suspension, review should be done carefully to see whether further continuance of suspension would be necessary. Para 3 of the said OM reads thus:-
3. The Review Committee(s) may take a view regarding revocation/continuation of the suspension keeping in view the facts and circumstances of the case and also taking into account that unduly long suspension, while putting the employee concerned to undue hardship, involve payment of subsistence allowance without the employee performing any useful service to the Government. Without prejudice to the foregoing, if the officer has been under suspension for one year without any charges being filed in a court of law or no charge-memo has been issued in a departmental enquiry, he shall ordinarily be reinstated in service without prejudice to the case against him. However, in case the officer is in police/judicial custody or is accused of a serious crime or a matter involving national security, the Review Committee may recommend the continuation of the suspension of the official concerned. Though the SRC and the Competent Authority have referred to the said OM but have not properly appreciated the intention of the policy makers in laying down the guidelines.
45. It is apt for us to note that though the suspension cannot be considered as a punishment but it cannot also be disputed that suspension causes hardship to the civil servants. The stigma of suspension on the delinquent civil servant cannot be ignored. The object in placing a civil servant against whom the criminal proceedings or departmental proceedings or both are either contemplated or instituted under suspension is generally to enable the Administration to conduct the proceedings smoothly so as to establish the allegations/charges leveled against the civil servant. In this context, if the applicant is allowed to continue on duty there may be occasion for him to tamper with the evidence and the department may not be in a position to successfully prosecute the case but with such a long period of time when both the criminal and departmental proceedings are at a stage as has been mentioned within, the continuance of the applicant under suspension indefinitely on the ground that criminal proceedings are pending may not be justifiable at the present juncture. The ultimate object being the public interest, the continued payment of substantial allowance by way of subsistence allowance to the suspended applicant without extracting any work from him would amount to substantial drain from the public exchequer. In this context only, the Central government has repeatedly laid down instructions and guidelines that the delinquent civil servant should not be placed under suspension for a protracted period and the attempt should be made in the cases to complete both the departmental and criminal proceedings as expeditiously as possible and the periodical review for continuance or revocation of suspension should not be in a routine manner but should clearly understand the relevance or otherwise of the continuance of suspension. On perusal of the original files placed before us, we are of the considered opinion that except the reason of pendency of criminal and disciplinary cases no other reason has been forthcoming for allowing the applicant to remain under suspension. On a conspectus of the facts, we are of the considered opinion that the order of suspension of the applicant should not continue endlessly.
46. During the hearing, both the sides have referred to various correspondence of the CBI to buttress their arguments. The applicant has been alleging that the CBI has been adopting delaying tactics and assisting the respondent-department to harass him. On the other hand, the respondents have taken the plea that it is on the basis of the recommendation of the CBI that the applicant might interfere in two criminal proceedings pending against him, the Competent Authority has been continuing applicants suspension. After hearing both the sides, we thought it proper that we must give our observations in this regard. Though CBI is not arrayed as a party respondent in the present matter, the CBI being the Apex Investigating Agency in the criminal matters, has been pursuing two criminal cases and after appropriate investigation, has filed the charges before the trial court. The CBIs role has been to expedite the proceedings in the trial court so that those two criminal cases against the applicant reach logical conclusion. However, Honble Supreme Court has granted stay of the proceedings in those two criminal cases before the trial court vide its order dated 10.12.2007. Taking the facts into account, the CBI has been doing its job and no observation can be made against the CBI. We may also note that the CBI has furnished its observations and views on the pertinent paragraphs of the Tribunals order dated 16.12.2011. The responsibility lies on the respondent-department to take appropriate action in the matters of the applicant.
47. Considering the totality of the facts and circumstances of the case, we are of the considered opinion that (i) the directions of the Tribunal issued to the respondents in OA No. 2842/2010 decided on 16.12.2011 have not been complied with in both letter and spirit while passing the impugned orders dated 12.01.2012 and 03.02.2012; and (ii) the continuance of the applicants suspension is not tenable. In the result, the orders dated 12.01.2012 and 03.02.2012 are quashed and set aside with direction to the respondents to revoke his suspension and to reinstate him in service. The applicant would be entitled to legally admissible consequential benefits.
48. We make it very clear that taking note of the grave charges leveled against him, the applicant may be posted in a non-sensitive post where the Competent Authority considers that he would have neither access to the relevant records nor would have opportunity to influence the witnesses. We also further add that if at any point of time in future the criminal trial proceedings commence by the trial court, the respondents would have the liberty to consider the possibility of keeping the officer under suspension at that point of time if the facts and circumstances so warrant.
49. In terms of the above orders, directions and observations, the Original Application is allowed. There shall be no order as to the costs.
(Dr. Ramesh Chandra Panda) (S.C. Sharma)
Member (A) Acting Chairman
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