Central Administrative Tribunal - Delhi
Shri K. Narsimha vs Ministry Of Home Affairs on 24 October, 2011
Central Administrative Tribunal Principal Bench OA No.1835/2011 New Delhi, this the 24th day of October, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri K. Narsimha, S/o Shri K. Bakkaiah, R/o 33/34, Rajpur Road, Civil Lines, Delhi. .... Applicant. (By Advocate : Shri Rakesh Tikku, Sr. Advocate with Shri Prakash Gautam) Versus 1. Ministry of Home Affairs, Through its Secretary, Government of India, North Block, New Delhi-110001. 2. Department of Personnel & Training, Through its Secretary, Government of India, North Block, New Delhi-110001. Respondents. (By Advocate : Shri H.K. Gangwani) : O R D E R :
Dr. Ramesh Chandra Panda, Member (A) Shri K. Narasimha, belonging to the Indian Administrative Service (IAS) of 1991 batch of AGMU cadre, the applicant herein, is visiting this Tribunal for 3rd time and assailing the continuance of his suspension and has sought direction to the respondents to revoke his suspension and to reinstate him with immediate effect with all consequential benefits.
2. Brief facts of the case would show that while the applicant was functioning as Secretary to Government of Mizoram on 19.10.2006, the Investigation Wing of the Income Tax Department recovered large sum of cash from a hotel room number 311 in The Manohar hotel in Hyderabad occupied by the applicant w.e.f. 10.10.2006. `53.80 lakh were found in search operation including `3.00 lakh in a suit case belonging to the applicant. A locker in the hotel allotted to him, the key of which was found in his suit case, when opened, `17.20 lakh were found. The above matter was sequel to the interrogation of Dr. Ramesh Kapur, Managing Director of M/s AB Hotels Ltd. (Radison Group of Hotels) and his son (Shri N. Kapur) who were carrying cash of `2.80 crore in their personal baggage on the flight from Delhi to Hyderabad. It is the case of the applicant that Dr. Kapur was carrying the said amount for the purpose of completing a real estate transaction. The applicant was suspended vide order dated 14.11.2006 (Annexure-A2) and the CBI registered a criminal case in the FIR No.RC/26/A/2006CBI/Hyderbad on 22.12.2006. He seeks suspension was reviewed periodically as per rules and the suspension had been continuing since then. He approached this Tribunal in OA No.2731/2009 which was dismissed in the order dated 6.10.2009 in following terms :-
2. With the kind of allegations that are made against the applicant, and in particular, his involvement in a corruption case, there would be nothing wrong, in our view, for the authorities to keep him under suspension. Shri Shyam Babu, learned counsel representing the applicant would, however, contend that the applicant has been given discriminatory treatment inasmuch as, other officers who were trapped red handed and who misused their official position were either not placed under suspension or their suspension was revoked immediately, and further that initial suspension of the applicant and continuance thereof is because of non-application of mind by the disciplinary authority. There are other grounds as well taken in the Application, but stress during the course of arguments is upon the two-fold contentions of the learned counsel as noted above. We find absolutely no merit in either of the contention of the learned counsel. In the first instance, we may state that no particulars of any other officer who might have been trapped red handed and yet either having not been suspended or his suspension having been revoked immediately, have been given in the Application. In these circumstances, it is difficult to compare the case of the applicant with others. That apart, if in a given case, an officer who may, in the facts and circumstances, has not been actually suspended, no case of discrimination would be made out. If someone has been favoured by committing an illegality, the applicant cannot take advantage of that. Insofar as, the second contention of the learned counsel that the order has been passed without application of mind is concerned, the same is also made only to be rejected. We have referred to the contents of one of the orders dated 9.2.2007. All possible aspects of the case have been taken into consideration and the orders have been passed upon reports of duly constituted committee based upon concrete data gathered from responsible agencies or departments.
3. Against the above order, he filed WP(C) No.13755/2009 in High Court of Delhi which was dismissed on 10.12.2009 granting liberty to seek review of the above order in this Tribunal. The RA No.15/2010 filed by him in the OA No.2731/2009 was dismissed in circulation on 01.02.2010. Feeling aggrieved by the dismissal of the RA and referring to the non consideration of the effect of DOP&T OM No.11014/4/2003-Estt.(A) dated 07.01.2004, he filed WP(C) No.1952/2010, in High Court of Delhi which was decided on 12.4.2010 in dismissing the writ. The relevant part of the order reads as follows :-
Considering all the facts and circumstances, even this Court is of the view that the order of the respondents continuing the suspension of the petitioner is not contrary to the tenor of OM dated 7th January, 2004 nor there are any grounds for setting aside the order of suspension dated 28th July, 2009 and subsequent orders passed by the Tribunal. The order dated 1st February, 2010 dismissing the application of the petitioner to review in the facts and circumstances does not have any illegality or irregularity which will require any interference by this Court.
In the circumstances, this Court does not find any illegality or irregularity in the order dated 1st February, 2010 dismissing the application for review of order dated 6th October, 2009 by which order the original application seeking quashing of suspension order was set aside.
The petitioner has also produced along with the writ petition, the copy of the order dated 25th January, 2010, by which the suspension of the petitioner has been extended for a further period of 90 days w.e.f. 27th October, 2009, especially as the case of petitioner for suspension, according to the respondents, is still under consideration of the Govt. (DOPT). Considering the seriousness of allegations the suspension has been extended for 90 days w.e.f. 25th January, 2010 on the similar grounds which have been upheld by the Tribunal and by this Court.
In the totality of facts and circumstances, the learned counsel for the petitioner has not been able to make out any ground for interference with the orders of the Tribunal or to set aside the suspension orders passed by the respondent in the facts of the case. The writ petition is without any merit and, it is therefore, dismissed.
4. In the meantime, applicants suspension was continued from time to time as per law after proper review. The Review Committee noted that the allegations of possession of disproportionate assets by the applicant being serious and finding that there was alleged business nexus between the applicant and Dr. Kapur, recommended the continuance of suspension. The Committee also noted that the DOP&T had accorded sanction for prosecution of the applicant vide letter dated 7.6.2010 and the charge sheet for major penalty had been issued on 7.7.2010. His suspension was continued for a further period of 90 days w.e.f. 22.10.2010. In this backdrop of the development, the applicant filed one more application before this Tribunal in OA No.4080/2010. After considering the progress of the applicants case, the Tribunal issued following directions in the order dated 23.12.2010 :-
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.
5. Pursuant to the above directions of the Tribunal, the competent authority continued his suspension for a further period of 90 days w.e.f. 20.1.2011 vide order dated 20.01.2011 (Annexure-A30). In the meantime, he moved the Tribunal with Contempt Petition No.254/2011 which was closed with the direction to the respondents to pass a fresh order on continuing him under suspension on or before 28.4.2011. In compliance of the Tribunal directions, the respondents passed the impugned order dated 19.4.2011 continuing his suspension for a further period of 90 days w.e.f. 20.4.2011. Feeling aggrieved by the action of the respondents to prolong his suspension for more than 4= years, he has come to the Tribunal for the third time.
6. Shri Rakesh Tikku, learned Sr. Advocate assisted by Shri Prakash Gautam learned counsel would state that the applicant was suspended on 14.11.2006 and eversince, his suspension had been continuing in a routine manner and should not continue as such till the applicant could get himself exonerated in both criminal and departmental proceedings. Shri Tikku would contend that the points raised by the Tribunal in its order dated 23.12.2010 have not been fully covered while passing the orders in compliance of the same in the impugned order dated 19.4.2011. He submits that the respondents have not considered the DOP&T OM dated 07.01.2004 and also whether the posting of the applicant in some non sensitive post would have met the guidelines issued in the OM dated 07.01.2004. His contention is that though the impugned order gives sequence of the events to a large extent, the non consideration of posting the applicant in a non-sensitive post should be re-looked into. Rebutting the allegations of the respondents that he is not cooperating in both the departmental and criminal cases, Shri Tikku submits that the applicant has been cooperating fully with the concerned authorities in both criminal and departmental cases, and the applicant, has, however, right to raise the specific legal and factual issues which the Inquiry Officer in the departmental case and prosecution side in the criminal case need to meet. The queries and the documents requested by the applicant in those cases cannot be considered to be delaying tactics of the applicant. He drew our attention to the averments made in the OA and submitted that the respondents had reinstated in the past large number of officers who were also trapped red handed and mis-used their official position but the respondents have revoked their suspension. He submits that the applicant is similarly situated with those cases of Shri C.S. Kherwal, IAS, UT Cadre , Shri R.K. Srivastava, IAS, Shri Rakesh Mohan, IAS. Shri Tikku would contend that all those officers were placed in worse situation compared to the applicant and he having been under suspension for more that 4= years and having been served with charge sheet in the departmental disciplinary proceedings and the CBI having filed challan in the criminal case before the Trial Court, it is the right time that the respondents should revoke applicants suspension and reinstate him to a post befitting to his position. Referring to the respondents criticism of the applicants appeal against the revised assessments done by the Income Tax Authorities, he would contend that the applicant has right to appeal against orders so passed and exercise of such right would not stand against the applicants plea for revocation of his suspension. In these circumstances and on the basis of the latest position of the case, he submits that the respondents have further extended the applicants period of suspension which would not be appropriate as the continuous of suspension is the challenge before the Tribunal. He, therefore, urges that the OA should be allowed with a direction to the respondents to revoke the applicants suspension and to reinstate him in service by posting him to the post which is befitting to his status.
7. Opposing the grounds taken by the applicant, the respondents have filed their reply affidavit on 12.8.2011. Shri H.K. Gangwani, learned Sr. Central Government counsel submitted that the applicant had been facing serious criminal case under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 and the CBI has filed the challan of draft charges before the Trial Court and the Court is expected to frame charges shortly against the accused including the applicant. Further, he is facing disciplinary proceeding on the charges of violation of Rule 3 of the All India Services (Conduction) Rules for non-intimation of the acquisition of properties and being in possession of assets disproportionate to his known sources of income. A major penalty charge sheet has been served upon him. Shri Gangwani would, therefore, contend that there was no bar against initiating criminal and departmental action simultaneously as the objective and the approach in the criminal and departmental proceedings would not be same. He labouriously argues that delay in concluding the departmental proceedings is attributable to the applicant. Referring to the reinstatement of many IAS and IPS officers involvement in the disproportionate asset cases Shri H.K. Gangwani submits that similarity cannot be drawn with the cases of other officers as each case is decided on the basis of its own facts and circumstances besides its own merits. Shri Gangwani referred to the circular dated 25.09.2010 issued by the Central Vigilance Commission (CVC) to state that officers facing criminal/departmental proceedings on serious charges of corruption should be placed under suspension and should not be revoked in a routine manner. In that background, it was contended that the applicant being involved in the serious disproportionate case and recovery of unaccounted huge cash from him, was a fit case to continue suspension. She further argues that the applicant is not cooperating with the authorities in both criminal and departmental proceedings for finalization of the cases against him. It is informed that CBI has recommended the continuance of applicants suspension, as the CBIs investigation has revealed applicants disproportionate assets to the tune of `8360474/- which is 194.73% of his known sources of income. It is submitted that the Commissioner of Income Tax has passed the revisionary order under Section 263 of the Income Tax Act on 24.12.2010 for the Assessment years 2001-02 to 2007-08 and raised various issues on the applicants income which has been appealed by him. The Income Tax Department has shown number of properties in the IPR but applicant is evading to respond for more than seven months. In view of his above contentions, it was urged to dismiss the OA.
8. Having heard the contentions of the rival parties, we have carefully gone through the pleadings. We were informed that the next review of his suspension was conducted and the Competent Authority further extended the period of suspension of the applicant. The only issue that comes before us is whether continuation of applicants suspension is legally tenable in view of the extant guidelines of the Government of India in the OM dated 07.01.2004?
9. The applicant is involved in the alleged misconduct for which charge memo has already been served on him in the departmental proceedings. In the criminal case the CBI has also filed the challan and Trial Court may shortly consider the same to frame charges. Thus, both departmental and criminal proceedings, would continue where the applicant would have enough opportunity to defend himself to prove his innocence. With regard to the appeal by the applicant before the Appellate Authority of the Income Tax Department regarding re-opening of his Income Tax returns in view of the alleged disproportionate assets held by the applicant, those are based on such facts which may be relevant to the departmental and criminal proceedings. It is appropriate to refer to the DOP&T Office Memorandum No.11012/4/2003-Estt.(A) dated 07.01.2004 which provides the guidelines to the concerned authorities on the matters of suspension of Government servant, review thereof and continuance of the suspension. The said OM inter alia provides Review Committee for the purpose of reviewing the suspension cases and guides as to how the Review Committee should conduct the review. It may be mentioned that, there is no contention of raising incompetency of the Reviewing Authority or belated issue of the continuance of the suspension of the applicant. OM dated 07.01.2004 inter alia provides on the issue of how the Review Committee should consider the request for revocation coming from the charged officer from one side and continuation of the suspension raised by the authorities of the Government and the guidelines given therein reads as follows :-
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.
10. It is noted that the applicant has visited this Tribunal and High Court on many occasions in the past where his request for revocation of suspension has been turned down. The grounds raised in those proceedings are also raised in the present OA. In so far as the ground raised by the applicant that he has been discriminated whereas some of the officers who were similarly placed or even as claimed by the applicants counsel some of them are much worse than the applicant, but their suspensions have been revoked within the shortest period whereas the applicant has been under suspension for more than 4= years. It is noted that the same contention was also raised before this Tribunal in OA No.4080/2010 which was rejected on 23.12.2010. In the judgment passed by this Tribunal it has inter alia indicated that the applicant has not 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 their suspension was revoked. He has not given these details even in the present OA. It does not, therefore, emerge that the case of the applicant is similar to those cases where the revocation was ordered by the concerned authorities. Be that as it may, in the matters of suspension or revocation thereof, the facts of each case needs to be considered by the Review Committee and Competent Authority and no similarity can possibly be drawn between the cases. Thus, in our considered view the ground of discrimination does not stand to reason.
11. We have also examined the impugned order dated 19.4.2011 passed by the Competent Authority. The said order is exhaustive. The averments made by the applicant that the order has not covered all the points raised by the Tribunal is far from true. On the other hand, the concerned Competent Authority has taken into account all the points raised by the Tribunal in the order passed by the Tribunal on 23.12.2010 in paragraph 9 of the impugned order in seriatim. The issues flagged by the Tribunal in the order has been analysed and ultimately the Competent Authority has come to the considered conclusion that the recommendations of the Suspension Review Committee as well as the views of CBI and the comments of the Department of Revenue have been taken into account by the Competent Authority and come to the considered conclusion that applicant should continue to remain under suspension for a further period of 90 days w.e.f. 20.4.2011. During the hearing, both parties informed us that further continuance of the suspension had been ordered.
12. Having considered the totality of facts and circumstances of the case, we are aware that the complicated cases like the present one where serious allegations of corruption and disproportionate assets are involved, normally it will take considerable time for the disciplinary and criminal proceeding to reach to the logical conclusion. On the other hand, the applicant is drawing his subsistence allowance and period of suspension is getting unusually prolonged. It is the respondents who are in a better position to take a balanced view in the matter. In view of the above position, we direct the appropriate Competent Authority to constitute a Special Review Committee to take holistic and comprehensive view of the applicants case and take into account para 3 of the OM dated 07.01.2004 and decide whether the continuance of the applicants suspension would be necessary or not. Let the Competent Authority decide the matter on the basis of the considered and informed views of the Special Review Committee as expeditiously as possible but preferably within a period of four weeks from today.
13. In terms of our above directions and observations, the Original Application is disposed of . There is no order as to costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman Per Justice V. K. Bali, Chairman
I have gone through the judgment prepared by my leaned brother Dr. Ramesh Chandra Panda, Honble Member (A). While concurring with the view taken by the Honble Member, I may add few lines.
Mr. Tikku, learned Sr. Advocate representing the applicant, during the course of arguments urged that the allegations against the applicant are indeed serious and shall remain so as long as the criminal trial and/or departmental proceedings pending against him are not concluded, and his innocence, if at all, would be established after conclusion of criminal trial and the departmental proceedings. A period of five years has gone by when the arguments in this case were heard and judgment reserved since the applicant was placed under suspension, and in the very nature of things, as mentioned by the respondents themselves in the impugned order, there may be no hope that the criminal and departmental proceedings will come to an end in near future. In that regard, the learned counsel has referred to the following observations in the impugned order:
That the instant case involved extensive process of investigation of multiple agencies to process the evidences/statements to arrive at prima facie conclusion for framing of charges. There has been, at no point of time, malafide intention on part of administration to delay the process. Whereas, the charge in the departmental proceedings may have been framed against the applicant on 07.07.2010, after about three and a half years when the applicant was suspended, no charge has been framed against the applicant till date by the criminal court seized of the matter. It is urged that a period of five years has already gone by and before the applicant is able to prove his innocence, a period of seven to ten years may further roll by, and that suspension of the applicant for this massive period would be wholly unjustified. Every citizen has a right for speedy trial, be it in criminal case or departmental enquiry, and if the Government is unable to ensure this basic right which may be covered under Fundamental Rights under Article 21 of the Constitution of India as well, the citizen cannot be made to suffer for an indefinite and prolonged period. As regards delay that has been caused in framing charge in the disciplinary proceedings, there are allegations and counter-allegations, but insofar as the charge in the criminal case is concerned, there is no allegation that the applicant, in any case, is responsible for delaying the same, and if the applicant was to be acquitted in the criminal case, there would have been perhaps no need to keep the applicant under suspension thereafter. It is then urged that even though specifically ordered, the respondents have not considered applicability of office memorandum dated 07.01.2004, even though reference to the same has been made. The special review committee, it appears to us, must necessarily go into all these aspects of the case.
(Dr. Ramesh Chandra Panda) ( V. K. Bali ) Member (A) Chairman /rk/