Central Administrative Tribunal - Delhi
K. Narsimha S/O K. Bakkiah vs Ministry Of Home Affairs Through on 23 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.4080 of 2010 This the 23rd day of December, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) K. Narsimha S/O K. Bakkiah, R/O 33/34, Rajpur Road, Civil Lines, Delhi. Applicant ( By Shri Rakesh Tikku, Advocate ) Versus 1. Ministry of Home Affairs through Secretary, Government of India, North Block, New Delhi. 2. Department of Personnel & Training through Secretary, Government of India, North Block, New Delhi. Respondents O R D E R Justice V. K. Bali, Chairman:
K. Narsimha, an Indian Administrative Service officer, was placed under suspension vide order dated 14.11.2006, which is being continued on compulsory periodical reviews from time to time. When his suspension was reviewed vide order dated 2.7.2009, he challenged the same by filing OA No.2731/2009 in this Tribunal, which was dismissed on 6.10.2009. The applicant challenged the order aforesaid before the Honble High Court of Delhi by way of a writ petition, which was withdrawn on the statement of the counsel that the applicant would file a petition seeking review of the order of the Tribunal dated 6.10.2009. The application seeking review was also dismissed vide order dated 1.2.2010. The applicant filed another writ bearing WP(C) No.1952/2010 before the High Court of Delhi which was dismissed vide order dated 12.4.2010, wherein the orders passed by this Tribunal in the Original and Review Applications were upheld. Present is the second Original Application for the same relief, even though the order under challenge may be dated 20.7.2010 continuing the suspension of the applicant for a further period of 90 days with effect from 24.7.2010, as also order dated 25.10.2010 continuing his suspension for a further period of 90 days with effect from 22.10.2010. Even though, the facts of the case have been mentioned by us in our order dated 6.10.2010 dismissing the first OA of the applicant, the same shall have to be stated again, though in brevity.
2. The applicant is facing trial under Section 13(2) read with Section 13(1)(a) of the Prevention of Corruption Act, 1988. The review committee in its orders passed from time to time, while reviewing the suspension of the applicant and continuing the same, noted that the allegations relating to moral turpitude and possession of disproportionate assets by the applicant are of serious dimensions. The committee also considered the report submitted by the Department of Revenue and noted that the enquiry conducted by the said agency would prima facie indicate an alleged business nexus between the applicant and a businessman, Dr. Ramesh Kapur, Managing Director of Radisson group of hotels, and that the details of bank accounts and other moveable and immoveable properties of the applicant were being ascertained and were yet to be accounted for. The allegation of indulging in corrupt practices and amassing assets disproportionate to his known sources of income had been made against the applicant while he was working during the period 15th September, 1991 to 19th October, 2006 as Secretary, Government of Mizoram. During the said period, he also acquired moveable and immoveable assets. In the order dated 20.7.2010, continuing the suspension of the applicant for a further period of 90 days from 24.7.2010, it has been mentioned that the order of suspension against him was passed on 14.11.2006 in pursuance of recovery made by the Department of Revenue, CBDT of a large amount of cash from his suitcase (Rs.3.00 lakhs) and his locker (Rs.17.20 lakhs) when he was staying in Hotel Manohar, Hyderabad. It is also mentioned that the review committee considered the latest reports submitted by CBI and Department of Revenue, and that CBI had recommended that keeping in view the seriousness of charges leveled against the applicant, his suspension should be continued. It is also mentioned that DOP&T has accorded sanction for prosecution of the applicant vide letter dated 7.6.2010, and chargesheet for major penalty has also been issued to him vide memorandum dated 7.7.2010. It is in view of the facts as mentioned above and the seriousness of the allegations that the review committee recommended that the suspension of the applicant be continued. The order dated 25.10.2010 gives almost the same reasons for continued suspension of the applicant for a further period of 90 days w.e.f. 22.10.2010.
3. Shri Tikku, learned counsel who appears in support of the Application, at the very outset, states that the allegations against the applicant may be of very serious nature, and the same shall so remain till such time the applicant may be exonerated in the departmental and criminal proceedings launched against him, but that would not mean that the applicant who is under suspension eversince 14.11.2006 shall have to remain under suspension till such time the proceedings may culminate in his favour, which may take number of years. He also contends that even if on the earlier occasion when the applicant filed OA No.2731/2009, he may not have been able to give names of officers equally situate or those who might have been caught red-handed accepting bribes, and in whose cases suspension was revoked after keeping them under suspension for short periods, but in the present OA the applicant has given all such names and, therefore, the reason given earlier by this Tribunal that unless names of the officers with particulars of the allegations against them are disclosed, no case of discrimination can be pleaded, would no longer exist. The applicant, it is stated, is now able to convincingly show that he has been meted out with hostile discrimination, inasmuch as persons having been caught red-handed accepting bribes are in office, whereas the applicant is made to live on a meager and pittance subsistence allowance. It is also urged that there cannot be any res judicata in cases such as suspension, and any change in the circumstances would entitle an employee to file successive petitions, and, therefore, dismissal of the earlier OA of the applicant even up to the level of the Honble High Court, would not come in his way in seeking the desired relief. The counsel contends that there is significant change in the circumstances, inasmuch as that an assessment order dated 31.12.2008 came to be passed by the Income Tax department, wherein the liability of the entire alleged amount of Rs.20.2 lakhs found during search and seizure operation at Hotel Manohar, Hyderabad was assessed to be belonging to Dr. Ramesh Kapoor, and the applicant was assessed for additional amount of Rs.6,07,500/-, but this assessment order was challenged by the applicant before the Commissioner of Income Tax (Appeals) which was heard and finally an order came to be passed in that regard on 2.3.2010, and the said appellate authority has deleted the additions made to the income of the applicant, which were subject matter of dispute in the criminal case, and that while passing the order now impugned, this aspect was not considered by the review committee.
4. We have heard the learned counsel representing the applicant and with his assistance examined the records of the case. Whereas, we may agree that even if an order of suspension is upheld by the Tribunal or the High Court, the employee would not be debarred from filing any number of petitions challenging his suspension if the circumstances may have changed, and, therefore, present Application would not be barred by principles of res judicata, we are, however, not inclined to agree with the learned counsel that the applicant has been met with hostile discrimination in the matter of his continuous suspension. His plea as regards change in circumstances would need elaboration, but at this stage, we may only mention that whereas some circumstances may have changed to the advantage of the applicant, others have changed to his disadvantage.
5. Insofar as, the contention of the learned counsel as regards discrimination is concerned, we may mention that it is the case of the applicant that number of officers, who were even trapped and caught red-handed accepting bribes and who misused their official positions, were not placed under suspension or their suspension was revoked immediately. The applicant in that connection has referred to the cases of Shri C. S. Kherwal, IAS, Shri R. K. Srivastava, IAS and Shri Rakesh Mohan, IAS. The applicant has not even now come up with proper particulars to compare his case with those mentioned by him. There is no mention of the dates when they were put under suspension, and as to when they were reinstated, or suspension revoked in their cases. There are no particulars of the exact allegations against them. Neither the orders placing them under suspension nor orders revoking suspension have been placed on records. In these circumstances, it would be difficult to make out as to whether there was substantial change in the circumstances or not when orders of their suspension were revoked. Further, it may be true that one of the reasons given for repelling the contention of the learned counsel based upon discrimination in our order dated 6.10.2009 in the earlier OA filed by the applicant was that no particulars of the officers who may have been favoured had been given, but we gave another reason as well, which was that no ground of discrimination could be pleaded by simply pleading illegality committed by the respondents as regards others, and that negative discrimination could not be a ground to set aside the impugned orders. It is trite that the right of equality is not a negative concept and a wrong action on the part of the executive would not give rise to a claim to reinforce equity. We stand by our view as reflected in our order dated 6.10.2009, which, as mentioned above, has also been upheld by the Honble High Court. Insofar as, the change in the circumstances is concerned, we may first refer to the circumstances which may become more adverse to the applicant. It may be recalled that whereas on earlier occasions the criminal case registered against the applicant by CBI was under investigation, as of now sanction for prosecution has already been accorded, and challan has also been put in the court. The applicant has also been issued charge memo for major departmental proceedings. These steps show that the investigating agency has collected sufficient evidence, which, according to it, may sustain conviction against the applicant as otherwise the matter ought to have been sent as untraced. Framing of charge by the department also would show that the department has enough material, as per its view, to secure punishment against the applicant. The circumstance that has become more favourable to the applicant is as regards another development referred to above. In that regard, we may mention that on 31.12.2008, an assessment order came to be passed by the Income Tax department, wherein the liability of the entire alleged amount of Rs.20.2 lakhs found during search and seizure operation at Hotel Manohar, Hyderabad was assessed to have belonged to Dr. Ramesh Kapoor, and the applicant was assessed for additional amount of Rs.4,57,500/-. This assessment order was challenged by the applicant before Commissioner (Appeals), who decided the appeal vide order dated 2.3.2010. It is the case of the applicant that the appellate authority deleted the additions made to the income of the applicant which were subject matter of dispute in the criminal case, and while passing the impugned orders the respondents did not consider the fact of passing of the order 2.3.2010 by the Commissioner (Appeals), who has clearly given a finding in favour of the applicant that the money which was recovered from the hotel at Hyderabad did not belong to the applicant. What we find from order dated 2.3.2010 is that the applicant had challenged the addition in his income so made by the assessing authority to the tune of Rs.4,57,500/-. While giving narration of facts in para 3.1 of the order, the appellate authority has mentioned that one Dr. Ramesh Kapoor, MD of A.B. Hotels was intercepted with huge quantity of cash. It was admitted by him that he was carrying the cash in connection with some land dealings at Hyderabad. On enquiry and investigation, it revealed that in the said land deal the applicant was assisting Dr. Ramesh Kapoor. Accordingly, a search and seizure action u/s 132 was undertaken on 20.10.2006 at Hotel Manohar, Hyderabad, where the applicant and one Shri U. S. Dass were staying. Consequently, searches on 23.10.2006 at residential premises of the applicant at Anantaram Village, Nalagoda (AP) as also at his residences at Delhi and Aizawl were conducted. During the course of search cash amounting to Rs.3,00,000/0 was recovered from one briefcase, Rs.17.20 lakhs from a locker at Hotel Manohar and loose papers and a diary were also seized. During the assessment proceedings, the amount of Rs.3,00,000/- found from the briefcase and Rs.17.20 lakhs found from the locker at Hotel Manohar was also held as not belonging to the applicant. The assessing authority, however, during assessment proceedings, referring to some papers in the case of Dr. Ramesh Kapoor, concluded that the applicant must be earning brokerage income on the land transaction done by Dr. Kapoor, and estimated the amount of brokerage at Rs.4,57,500.
6. At the time when the earlier OA of the applicant came to be dismissed, assessment order dated 31.12.2008 had already been passed by the Income Tax department holding that the amount of Rs.20.2 lakhs, i.e., Rs.3,00,000/- found from a briefcase and Rs.17.20 lakhs from the locker of a hotel at Hyderabad did not belong to the applicant. The said amount, it had already been held, belonged to Dr. Ramesh Kapoor, but in the assessment order, it was held that the applicant must be earning brokerage income on the land transaction done by Dr. Kapoor. This finding came to be recorded on the basis of material available before the assessing authority. The amount of brokerage was estimated at Rs.4,57,500/- being half share in 1% of total turnover as regards total transaction of the land deal of Rs.9.15 crores. According to the assessing authority, the applicant must have received brokerage of 0.5% each from the seller and buyer. It was assumed that this brokerage was shared between the applicant and U. S. Dass, and the brokerage in the case of the applicant was estimated at Rs.4,57,500/-. Accordingly, addition in the income of the applicant to the tune of amount aforesaid was made. While dealing with the appeal of the applicant Commissioner of Income Tax (Appeals) observed that no evidence had been brought on record by the assessing authority to link any brokerage to the applicant, and that none of the seized documents referred to any brokerage paid or to be paid to the applicant. The appellate authority also observed that from the circumstantial evidence it could be concluded that the applicant might have assisted Dr. Ramesh Kapoor in organizing some estate agents etc. in and around Hyderabad to show the land but no material had been found in entire search proceedings to suggest that the applicant had acted as a broker and that too in association with U. S. Dass to earn brokerage. The addition made by the assessing authority to the income of the applicant of an amount of Rs.4,57,500/- was deleted. The earlier OA of the applicant was dismissed by this Tribunal on 6.10.2009, and more than a year has thus gone by. Para 3 of DOP&T OM dated 7.1.2004 contemplates that the review committee may take a view regarding revocation/continuation of suspension keeping in view the facts and circumstances of the case and also taking into account unduly long suspension, which, while putting the employee concerned to undue hardship, also involves payment of subsistence allowance without the employee performing any useful service to the Government. It is also stipulated that if the employee has been under suspension for one year without any charges being filed in a court of law or no charge memo having 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 accused of serious crime or a matter involving national security, the review committee may recommend continuation of his suspension. The said OM was taken into consideration by the High Court in the writ filed by the applicant against our orders, but the contention of the learned counsel for the applicant based thereupon was rejected by observing that the last order of suspension dated 28.7.2009 which was impugned by the applicant categorically considered the fact of recovery of large amount of cash, i.e., Rs.3,00,000/- from the briefcase of the applicant and Rs.17.2 lakhs from his locker when he was staying in a hotel at Hydeabad, and that the allegations against him were serious in nature. It was also observed that in consideration of the report submitted by CBI and Department of Revenue (CBDT) and considering the seriousness of the allegations, the recommendation was of continuation of the suspension of the applicant, and that even OM dated 7.1.2004 also contemplates that in case the officer concerned is accused of serious crime or a matter involving national security, despite his having been under suspension for one year, the review committee may recommend continuation of his suspension, and, therefore, the applicant had not been able to make out a case for revocation of the order of suspension on the basis of the OM relied upon by him. The circumstance of recovery of Rs.3,00,000/- from the briefcase and Rs.17.2 lakhs from the locker, in view of the fact that the Income Tax authorities have held the same to be not belonging to the applicant and even the business linkage between the applicant and Dr. Ramesh Kapoor having not been established, and the money earned by the applicant as brokerage having not been established, is indeed a change in circumstances in favour of the applicant. If perhaps, the circumstance against the applicant was only as regards recovery of the amount as mentioned above, we would have considered the matter in more details, but as mentioned above, the applicant is also facing criminal trial under provisions of the Prevention of Corruption Act, for which not only challans has been put in the court, but in the departmental proceedings for major penalty as well, charge memo has been issued to the applicant. The last order keeping the applicant under continuous suspension is dated 25.10.2010. He has been continued to remain under suspension for further period of ninety days with effect from 22.10.2010. Ninety days would come to an end on 21.1.2011. Only about a month is left when the respondents shall have to compulsorily deal with the case of the applicant for further continuance of his suspension. The order dated 2.3.2010 passed by the Commissioner of Income Tax (Appeals), fully referred to above, it is no doubt true, has not been taken into consideration in either of the orders impugned in the present OA.
7. In totality of the facts and circumstances of the case, while disposing of this Original Application at this stage, we direct that when the case of the applicant is reviewed for further continuation of his suspension, the following facts and circumstances would be taken into consideration by the review committee:
(1) That the applicant is now under suspension for a period of more than four years. This aspect shall be considered in the context of OM dated 7.1.2004 referred to above.
(2) That the culmination of the criminal and departmental proceedings, in the very nature of things, and as per ground realities, may take a long time.
(3) That the circumstance of recovery of Rs.3,00,000/- from the brief case and Rs.17.2 lakhs from a hotel locker shall have to be considered in the light of the order passed by the Commissioner of Income Tax (Appeals) dated 2.3.2010.
(4) Desirability of the applicant in the circumstances to be put on some non-sensitive post.
A reasoned order taking into consideration above facts shall be passed. The applicant shall have liberty to challenge the order that may be passed on or before 21.1.2011, if the occasion may so arise.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/