Central Administrative Tribunal - Delhi
G. S. Matharoo S/O Piara Singh vs Municipal Corporation Of Delhi on 18 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.34/2010 with Original Application No.221/2010 This the 18th day of November, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) O.A. NO.34/2010 G. S. Matharoo S/O Piara Singh, R/O W-21, Second Floor, Greater Kailash Part-I, New Delhi-110048. Applicant (By Shri Anil Grover with Shri Rakesh Garg and Shri S. K. Kapoor, Advocates ) Versus 1. Municipal Corporation of Delhi, Municipal Secretary, Town Hall, Chandni Chowk, Delhi-110006. 2. Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi-110006. 3. Manoj Kumar Singh, N-30, Malviya Nagar, New Delhi-110017. Respondents ( By Ms. Madhu Tewatia with Ms. Sidhi Arora and Ms. Nilava Bandopadhyaya for Respondent MCD, Advocates ) O.A. NO.221/2010 G. S. Matharoo S/O Piara Singh, R/O W-21, Second Floor, Greater Kailash Part-I, New Delhi-110048. Applicant (By Shri Anil Grover with Shri Rakesh Garg and Shri S. K. Kapoor, Advocates ) Versus 1. Municipal Corporation of Delhi, Municipal Secretary, Town Hall, Chandni Chowk, Delhi-110006. 2. Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi-110006. 3. Assistant Commissioner, Municipal Corporation of Delhi, Central Establishment Department, Town Hall, Chandni Chowk, Delhi-110006. 4. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 5. Manoj Kumar Singh, N-30, Malviya Nagar, New Delhi-110017. Respondents ( By Ms. Madhu Tewatia with Ms. Sidhi Arora and Ms. Nilava Bandopadhyaya for Respondent MCD, and Ms. Jaishri Raj for Shri A. K. Bhardwaj for Respondent No.4, Advocates ) O R D E R Justice V. K. Bali, Chairman:
G. S. Matharoo, Secretary to Commissioner, MCD, the applicant herein, was suspended vide order dated 17.1.2008 for his involvement in a criminal case u/s 120-B read with 420/468/471 IPC read with sec. 13(2)/13(1)(d) of the Prevention of Corruption Act, 1988 as per provision of regulation 5 of the DMC Services (Control & Appeal) Regulations, 1959 (hereinafter to be referred as the Regulations of 1959). When the CBI sent cancellation report with regard to the FIR referred to above and when a high powered committee, after going into the issue, recommended that the applicant should no more be under suspension, and yet the applicant was continued to be under suspension, OA bearing number 34/2010 came to be filed calling in question the order of suspension and continuance thereof. The OA was fled on 5.1.2010 and it came up for hearing on 7.1.2010, when, in consideration of the contention raised by the learned counsel that the CBI had already sent its report for cancellation of the FIR and also the high powered committee, after going into the issue, had recommended that the applicant should be no more under suspension, and yet the applicant was continued to be under suspension, notice was issued returnable on 22.1.2010, on the very next day of the applicant filing the OA aforesaid, i.e., on 6.1.2010, the respondent MCD passed an order that the competent authority vide order dated 30.12.2009 had terminated and revoked the deputation of the applicant from the Government of India to MCD, and his subsequent absorption as Secretary to Commissioner, MCD with immediate effect as it was found contrary to the extant rules. Aggrieved of the order aforesaid, the applicant has filed OA bearing number 221/2010 calling in question the order aforesaid. Notice in this OA was issued on 20.1.2010 with interim directions staying operation of the order, while taking into consideration the primary contentions raised by the learned counsel representing the applicant. The said order reads, thus:
Counsel, inter alia, contends that the applicant is the original employee of Ministry of Home Affairs. He came on deputation with Municipal Corporation of Delhi on 24.09.2001 and was absorbed therein on 03.11.2003 and that now vide impugned order dated 01.01.2010, wherein reference of order dated 31.12.2009 is made, both the deputation and absorption of the applicant have been terminated and revoked despite the fact that he had tendered his technical resignation from his parent department on 13.02.2004, which was accepted w.e.f. 03.11.2003, and thus he cannot join back his parent department. The impugned order, it is further urged, has been passed without putting the applicant to notice or without hearing him, which will virtually amount to his removal from service. The applicant has also given the history as to how he was tormented and harassed by some of the persons there in the office and further every attempt made by them to tarnish his image by involving him in different cases.
2. Issue notice to the respondents returnable on 03.02.2010. Meanwhile, stay of operation of order dated 06.01.2010 is stayed.
2. Pursuant to notice issued by this Tribunal in the OAs referred to above, the respondent Corporation has entered appearance and by filing its reply contested the cause of the applicant. By this common order we propose to dispose of both the Applications, as suspension of the applicant and the order revoking his deputation and absorption appear to be based on same set of facts. Learned counsel representing the parties have also addressed arguments in both the OAs at the same time.
3. The applicant as per the case set out by him in OA No.34/2010, qualified in the Assistants Grade Examination conducted by UPSC in the year 1979 and was appointed as a member of the Central Secretariat Service (CSS) in the grade of Assistant in the cadre of the Ministry of Home Affairs in February, 1981. He was promoted as Section Officer in CSS in the year 1988 on qualifying the limited departmental competitive examination held in 1987. He was further promoted to Grade-I of the Service (Under Secretary) in August, 1999. The applicant applied for the post of Addition Deputy Commissioner in the respondent MCD and was selected in the year 2001 for appointment on deputation basis. On being relieved by the Ministry of Home Affairs vide office order dated 24.9.2001, he joined the MCD as Additional Deputy Commissioner on that day itself. While working in that capacity, the applicant was transferred and posted as Secretary to the Commissioner, MCD w.e.f. 1.2.2002. The respondent MCD issued circular dated 11.9.2003 inviting applications for filling up the post of Secretary to the Commissioner, MCD on deputation/absorption basis. The applicant, who was already working as Secretary to the Commissioner, submitted an application for consideration of his name and was selected against the said post. It is the case of the applicant that his service record from 1996-97 to March, 2002, which was outstanding, was considered when he was absorbed in MCD. No objection certificate was sought from the Ministry of Home Affairs by Director (Personnel), MCD so that formal orders regarding his absorption as Secretary to the Commissioner, MCD could be issued. Ministry of Home Affairs vide letter dated 31.10.2003 informed that they had no objection to the absorption of the applicant in MCD, subject to his tendering technical resignation from the post of Under Secretary in the said Ministry from the date of his absorption in MCD. Consequent upon receipt of no objection from the Ministry of Home Affairs, vide order dated 3.11.2003 the applicant was absorbed as Secretary to Commissioner, MCD in the pay scale of `12000-16500. On his appointment and permanent absorption as Secretary to Commissioner, MCD, and on tendering technical resignation from the post of Under Secretary in his parent department, Ministry of Home Affairs issued office order dated 13.2.2004 accepting the technical resignation of the applicant w.e.f. 3.11.2003. It is the case of the applicant that his exemplary and efficient performance in MCD during his deputation period and his subsequent permanent absorption as Secretary to Commissioner, MCD, apparently created discontentment and jealousy amongst some of his colleagues, who made out a game-plan involving a campaign of false vilification of the applicant through a series of false complaints, to inflict harm to him by getting him removed from the services of MCD. The first salvo in that direction was fired when, on anonymous/pseudonymous complaints against his absorption in MCD, the then Commissioner, MCD, referred the matter to Chief Law Officer, MCD to examine whether the absorption of the applicant on the post of Secretary to Commissioner was in accordance with law. The Chief Law Officer examined the matter and gave a detailed note to the Commissioner highlighting the following issues and suggesting that the opinion of the learned Additional Solicitor General of India be sought:
1) Whether the process of appointment of Sh. G.S.Matharoo to the post of Secretary to Commissioner is in accordance with law and/or recruitment regulations?
2) Whether the concurrence of UPSC is mandatory before making any appointment by the Commissioner under Section 96 of the DMC Act, 1957?
3) Whether the approval of Delhi Government is required before making any appointment by the Commissioner under Section 92 of the DMC Act, 1957?
4) Whether the lien of Sh. G.S.Matharoo in his parent cadre in the Ministry of Home Affairs shall stand terminated on his absorption as Secretary to Commissioner in MCD and acquiring a lien on the post of Secretary to Commissioner? The matter was referred to the Additional Solicitor General for his opinion, who opined as follows:
1) x x x x x Therefore, in my opinion, the appointment of Sh. G.S.Matharoo appears in conformity with the provisions of Section 92 of the DMC Act.
2) Mr. Matharoo was holding the post and was in the service of Central Govt. and therefore, there was no need to take the concurrence of UPSC before taking him on deputation in terms of the proviso to Section 96 of the DMC Act.
3) That on a plain reading of Section 92 in so far as the appointment is concerned there is no need to obtain approval of the Delhi Government before making the appointment on a plain reading of Section 92 of the Act.
4) That in view of the facts mentioned above and the subsequent events that have transpired, Mr. Matharoo has no lien of service with his parent department (i.e.) Union Ministry of Home affairs. It is further the case of the applicant that being frustrated that their malicious campaign against the applicant had not succeeded, the aforesaid disgruntled persons made a further series of diabolical and false complaints against him with a view to malign, persecute and harass him. In that regard the vested elements conspired to get a false FIR registered under Arms Act against the applicant at Ranchi and non-bailable warrants were got generated on that basis. It is the case of the applicant that this incident was condemned by the Standing Committee of MCD vide resolution No.656 dated 30.3.2005, and the then Mayor wrote a letter dated 1.4.2005 to the Union Home Minister stating that the applicant was an upright, hard working and competent officer, who had been the victim of harassment by vested interests subsequent to his permanent absorption in MCD, requesting CBI investigation into the victimization of the applicant. Copies of resolution dated 30.3.2005 of the Standing Committee and letter dated 1.4.2005 written by the then Mayor, have been placed on records as Annexures A/8 and A/9 respectively. It is then the case of the applicant that the Jharkhand Government also took the matter seriously and after conducting detailed inquiry at the level of Deputy Commissioner, Ranchi and SSP, Ranchi, it was revealed that the whole incident was manipulated by vested interests in MCD in connivance with some unscrupulous officials of Jharkhand police. Vide communication dated 7.6.2005 sent to Commissioner, MCD, the Deputy Secretary (Home), Jharkhand Government informed that the applicant was falsely implicated in the said case and that both the SHO and ASI concerned had been placed under suspension. It was also informed that the arrest warrant had been cancelled. It is then pleaded that in furtherance of their frustrations and mischievous designs, two of the vested persons forced their way into the office of the applicant on 28.3.2005 and brandishing a revolver, threatened the applicant of dire consequences, including liquidating him. The applicant reported the matter to Deputy Commissioner of Police, Central District and case for criminal intimidation under Section 506 IPC was registered against the persons involved. It is the case of the applicant that failure of these disgruntled persons to implicate the applicant in false cases further infuriated them and they in connivance with CBI officials headed by Shri R. K. Sharma, DIG, without any preliminary verification, got frivolous RC No.EOU-1-2005-A-0005 registered against the applicant on a set of totally false and baseless allegations touted as source information. Subsequently, on the complaint of the applicant to Director, CBI pointing out his harassment and implication in false case, CBI registered a PE No.AC-I 2008-A-001 against Shri R. K. Sharma along with others, who was incharge of the EOU-I unit when the above mentioned RC was registered against the applicant. In June, 2006, it is further the case of the applicant, when he was posted as Deputy Commissioner in the Rohini Zone of MCD, these vested interests made further complaints alleging irregularities, and that in the face of this continued campaign of vilification against him, the applicant proceeded on leave with effect from 18.8.2006, to save himself from further harassment at their hands. Notwithstanding this sustained campaign to ruin both the reputation and career of the applicant, it is further pleaded, these vested interests made further complaints against him alleging irregularities in the process of his appointment as Additional Deputy Commissioner/Joint Assessor & Collector, MCD on deputation basis, as also his appointment as Secretary to Commissioner, MCD on permanent absorption basis, and that based on these false and motivated complaints, CBI registered another RC No.DAI-2008-A-0008 dated 1.1.2008 against the applicant. On registration of RC as mentioned above, CBI made a recommendation to MCD, vide letter dated 3.1.2008, for placing the applicant under suspension. Commissioner, MCD, it is stated, mechanically, without application of mind, vide impugned order dated 17.1.2008 placed the applicant under suspension under regulation 5(1)(iii) of the Regulations of 1959. It is the case of the applicant that as per amendment in the Regulations aforesaid carried out by full House of the Corporation vide resolution No.313 dated 6.9.2004, the MCD was required to follow the same procedure in the matter of review of suspension cases as prescribed under the CCS (CCA) Rules, 1972. Following sub-regulations (8) and (9) have been inserted in regulation 5 of the Regulations of 1959, vide resolution dated 6.9.2004:
(8) An order of suspension made or deemed to have been made under this Rule shall be reviewed by the authority competent to modify or revoke the suspension, before expiry of ninety days from the date of order of suspension, on the recommendation of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension. Subsequent reviews shall be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time.
(9) Notwithstanding anything contained in Sub-Regulation 6, an order of suspension made or deemed to have been made under Sub-Rule (2) or (3) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days. In view of the amendments reproduced above, it is the case of the applicant that the first review of his suspension was to have been carried out by the duly constituted review committee within three months from the date of his suspension, i.e., by 17.4.2008, and thereafter at the interval of 180 days each, to determine whether the continued suspension of the applicant was justified. These amendments further provide that in case such reviews are not undertaken, the officer placed under suspension is deemed to have been reinstated in service with full benefits accruing to him as if he had continued to be in active service. It is pleaded that no such review was undertaken in the case of the applicant, which would render his suspension void ab initio. The applicant made several petitions/representations to the 2nd respondent, i.e., Commissioner, MCD, requesting revocation of his suspension and reinstatement in service. Copies of such petitions/ representations have been placed on records as annexure A/14 (colly.). The 2nd respondent, however, did not take any action on these representations. Being aggrieved, the applicant submitted a petition dated 27.5.2009 to MCD through Mayor. MCD in the meeting of its House on 31.7.2009 took up for consideration the agenda item no.23 regarding the petition dated 27.5.2009 submitted by the applicant and resolved to constitute a high level committee consisting of three members, being (i) Chairman, Standing Committee, (ii) Leader of Opposition and Member of Standing Committee and (iii) former Chairman of Standing Committee and present Member of Standing Committee, to examine in detail the said petition in the light of the standing rules and regulations and the relevant records, and submit its report. The investigation report furnished by CBI on the basis of the RC case registered against the applicant and his continued suspension without any review was considered in depth by the high level committee set up by the MCD, being the competent authority to impose major penalty upon the applicant. The said committee in its report held that the findings of CBI were without any basis and recommended that there was no justification for sanction of prosecution of the applicant as sought by CBI in the said case. The committee also observed that there was no justification whatsoever for the continued suspension of the applicant and recommended for his immediate reinstatement in the post. The findings aforesaid of the high level committee have been reproduced by the applicant as follows:
In view of the above material on record, judicial pronouncements and the relevant rules and regulations, this committee is of the confirmed opinion that:
This is not a case where sanction for the prosecution of Sh. G.S.Matharoo is warranted. As such this committee strongly recommends for declining the sanction of prosecution against Sh. G.S.Matharoo; and There is no justification whatsoever for the continued suspension of Shri Matharoo. As such, this Committee strongly recommends the immediate reinstatement of Shri Matharoo in the post which he held at the time he was placed under suspension. The CBI after carrying out detailed investigation into RC dated 1.1.2008 registered against the applicant, concluded that the investigation did not reveal any criminal misconduct on the part of the applicant and filed a closure report in the Court of Special Judge on 30.6.2009.
4. In wake of the facts and circumstances as mentioned above, learned counsel representing the applicant would contend that the order placing the applicant under suspension dated 17.1.2008 would be illegal and so would be his continued suspension till date.
5. In the counter filed by respondent MCD in OA No.34/2010, by way of preliminary submissions it has inter alia been pleaded that the OA suffers from deliberate concealment of material facts. It is stated that the applicant has chosen to refer to the findings of the high powered committee recommending revocation of his suspension, but he has deliberately withheld the fact that the Corporation in its meeting dated 10.8.2009 did not accept the recommendations of the said committee and has referred back the matter to the special committee to reconsider the petition and to look into the original documents, previous and present employment details, present status of employment and the opinion of Commissioner, MCD in the matter. It is then stated that the applicant has chosen to make a mention of the report of CBI regarding cancellation of the FIR, but he has deliberately not mentioned that the Special Judge so far has not accepted the closure report, and further that while sending the closure report, CBI has mentioned that the applicant needs to be departmentally tried. Reference has been made to parts of the report given by CBI, wherein the applicant is held to have suppressed vital facts as regards his eligibility for the post. It is stated that it would be open and justifiable for MCD to take departmental action against the applicant even as per the report submitted by CBI. The applicant, it is stated, has no legally enforceable right to be appointed to the post of ADC/Jt.A&C/Secretary (Class-I post) inasmuch as, he did not fulfill the eligibility criteria of being a Class-I Central Services Officer as laid down in the recruitment regulations governing the said post at the time of his appointment. The suspension of the applicant is sought to be justified on the ground that a Government servant can be placed under suspension where disciplinary proceedings against him are contemplated or pending or where a case against him in respect of any criminal offence is under investigation, enquiry or trial, or where his continuance in office is likely to prejudice the investigation or is likely to subvert discipline in office. It is pleaded that since the closure report has not yet been accepted and CBI vide report dated 24.8.2009 has recommended initiation of major penalty proceedings against the applicant, it is stated that it would be in the fitness of things to carry on the suspension of the applicant. Following points are highlighted in justification of suspension and continuation thereof:
i. CBI has recommended initiation of regular departmental action in the case of procurement of employment by illegal means and forgery after submission of the closure report. This conclusively indicates sufficient ground to continue with the suspension of the applicant.
ii. The Report/recommendations of the sub-committee have not been accepted by the corporation and the matter has been referred back.
iii. The closure report is of no consequence in the wake of the recommendations of the CBI to initiate RDA for major penalty proceedings against the applicant and in view of the fact that the departmental disciplinary proceedings and proceedings in a criminal case are of completely distinct nature.
iv. The applicant has no legally enforceable right in the light of the fact that the applicant was not Class-I officer at the time of appointment as PS to Commissioner, MCD, the applicant was not eligible to occupy a Class A post in the MCD. The applicant was appointed in-situ to the post of Under Secretary in the MHA which means that the Applicant was substantively a Class II officer in the central services and therefore he was not eligible to claim appointment against a class-I post in the MCD for which the qualification prescribed was Central Services Group-I post. Insofar as, the plea of the applicant as regards no review having been carried out in the matter of his suspension is concerned, it is pleaded that his suspension was reviewed by the competent authority on 7.8.2008 who ordered to extend the same, and that an office order dated 28.8.2008 was issued intimating the applicant in this regard. It is further pleaded that the suspension of the applicant was again reviewed by the suspension review committee held on 24.11.2009. The committee recommended enhancement of subsistence allowance of the applicant from 50% to 75% with immediate effect. The recommendations of the committee were accepted by the Commissioner, MCD vide order dated 27.11.2009, and an office order dated 7.12.2009 came to be issued in this regard. CBI vide letter dated 24.7.2008 informed that the investigations of the case against the applicant were still under progress and his reinstatement may hamper the investigations, and recommended that his suspension may not be revoked. As regards the opinion of the Additional Solicitor General, it is pleaded that even though the Chief Law Officer vide letter dated 31.1.2005 referred the matter for obtaining legal opinion from ASG regarding appointment of the applicant, at that point of time, interpolation/obliteration of the words in situ at two places in the application and the NOC dated 31.10.2003 granted by MHA had not come to light. As regards amendment in Regulations of 1959 as adverted to by the applicant, it is the case of respondent MCD that the same have not been notified till date, and, therefore, the amendment would not be operative. It is also the case of the respondent that on 19.1.2009, Superintendent of Police, CBI, had addressed a letter to Chief Vigilance Officer, MCD, which would show that there was sufficient material for launching prosecution against the applicant, and sanction for prosecution under section 19(1) of the Prevention of Corruption Act, 1988, it is mentioned in the letter, was required for taking cognizance by the court against the applicant. Superintendent of Police, CBI in his detailed report placed on records of the OA (pages 197-229 of the paper book) has already recommended prosecution of the applicant under section 109 IPC read with section 13(2)/13(1)(e) of the Prevention of Corruption Act with regard to another case of possessing assets disproportionate to known sources of income. Departmental action has also been recommended against the applicant for non-intimation of various transactions of properties to his department and for not obtaining prior permission from the department for visiting abroad. It is stated that in these circumstances, there would be no choice with the respondent but to continue the applicant under suspension.
6. The applicant has filed rejoinder. We may only mention that as regards pleadings made by the respondent MCD that the applicant is involved in another case of corruption as well, the applicant has pleaded that he would rely upon the findings of the high level committee with regard to the allegations of disproportionate assets. It is pleaded that when the harassment of the applicant and the misconduct of CBI officials was brought to the notice of highest authority in CBI, after finding substance in the allegations, PE has been registered by CBI itself against its officials and the matter is under investigation.
7. The facts leading to filing of OA No.221/2010 are same. The grounds challenging the impugned order dated 6.1.2010 are obviously different. The primary plea raised by the counsel representing the applicant is that the impugned order would be illegal as the same amounts to terminating the services of the applicant on allegations which would be stigmatic, and that the same could not be passed without holding a regular departmental enquiry. Since this OA needs to be determined on the legal plea raised by the learned counsel, and we are proposing to decide it before we may decide OA No.34/2010, we may refer to the pleadings made by the respondents in contesting the OA aforesaid.
8. Before we may, however, refer to the pleadings made by the respondent in its counter reply, we may mention that the applicant has impleaded the Union of India through Secretary, Ministry of Home Affairs as the 4th respondent. The said respondent has also filed its reply. We may first advert to the reply filed on behalf of the Union of India. This reply has been filed in OA No.221/2010, in which the applicant has challenged the order dated 6.1.2010 revoking his deputation and absorption in MCD. The reply has been filed by the Union of India through Shyamala Mohan, Deputy Secretary, Government of India, Ministry of Home Affairs. It has been mentioned in the affidavit that the applicant joined MCD as ACD/Joint Assessor and Collector on 24.9.2001 on deputation, and thereafter, on request of the respondents 1 to 3, i.e., MCD, the answering respondent conveyed no objection to his absorption in MCD as Secretary to Commissioner, MCD, subject to his tendering technical resignation under rule 26(2) of the CCS (Pension) Rules, 1972. Respondents 1 to 3 issued order dated 3.11.2003 conveying the absorption of the applicant, and his technical resignation was accepted by the answering respondent w.e.f. 3.11.2003 and was conveyed to respondents 1 to 3. It is then stated that in view of aforementioned, the part of the office order dated 6.1.2010 issued by MCD directing the applicant to report to MHA would be ultra vires and unknown to law, as after acceptance of his resignation from the post of Under Secretary (in site), Central Secretariat Service w.e.f. 3.11.2003 by the competent authority, his severance of relationship with the Central Secretariat Service and MHA was complete.
9. As we have already mentioned, the facts leading to filing of OA No.221/2010 are same, even though the grounds challenging the order impugned therein are different. Since the contention raised by the counsel representing the applicant in challenging the impugned order at this stage is legal, there may not be any need to mention the facts, which, as mentioned above, are, in any case, almost the same as given in OA No.34/2010. However, we may advert to the relevant part of the reply filed on behalf of the respondent MCD. It has inter alia been pleaded that the appointment of the applicant being void ab initio warranted passing of the impugned order. It is stated that the applicant during the period 2001 was working in MHA as Section Officer in the scale of `6500-10500. Vide OM dated 20.8.1999 MHA upgraded 85 posts of Desk Officers/Section Officers temporarily to the grade of Under Secretary to give upgradation on personal in situ basis in the pay scale of `10000-15200. The said order of MHA stated that the appointment against the upgraded post of Under Secretary would not entitle the officers to claim any regular appointment as Under Secretary or seniority in the grade. The applicant, it is pleaded, was holding the post of Section Officer in MHA Class-II on regular basis, and that he was only given temporary upgradation to the rank of Under Secretary in situ in the pay scale of `10000-15200 w.e.f. 20.8.1999. His minimum pay in August 2001 was less than `12000/-. In situ promotion, it is the case of the respondent, is not a regular promotion and the employee concerned continues to be borne on the lower cadre/post and does not involve higher duties and responsibilities, and that such appointment per se does not involve any change in the existing command and control and level/channel of reporting, and under no circumstances, an officer appointed in situ can be posted on regular basis. In situ appointment to the higher grade is personal to the incumbent and does not entitle the officer to claim regular appointment/ seniority against the post on which the officer is appointed/promoted in situ. The upgraded post reverts to the original level as and when the officer vacates the post on his actual promotion in the higher grade. It is pleaded that the applicant was not eligible for the job on deputation on the post of ADC/Joint A&C in MCD as he did not fulfill the conditions laid down in the recruitment regulations for the said post, and that the applicant knowing fully well that he was not eligible for the post of ADC/Jt A&C/Secretary, still applied for the said post and concealed his proper designation of Section Officer Class-B/Under Secretary in situ and got the appointment and consequent absorption by inducing the MCD officials to believe that he being an Under Secretary holding a Group A post was eligible to join on deputation in the rank of ADC/Jt A&C in the scale of `12000-16500. It is further pleaded that the applicant got into service of MCD by conscious concealment of facts and by deceitful means, and thus has rightly been repatriated. It is then pleaded that the matter as regards the fraudulent appointment was investigated by CBI which submitted its report while recommending regular departmental action for major penalty. The investigation revealed that in the application addressed to the Commissioner, MCD dated 24.8.2001 the applicant had mentioned his post as Under Secretary instead of Under Secretary (in situ). It also revealed that the relieving order attached by the applicant was not the original copy but a photocopy on which a tick mark had been made by blue pen in front of the name of Director (P) and in both the copies the word in situ was missing and there was a gap after the words Under Secretary which would conclusively prove that the word in situ had been obliterated. The NOC dated 31.10.2003 granted by MHA again mentioned the designation of the applicant as Under Secretary (in situ). However, in the NOC the word in situ had been obliterated at two places. The word Mathroo had also been altered to Matharoo at two places. Two photocopies of the letter in which the word in situ had been obliterated at two places, had been recovered from the house search of the applicant. The investigation also revealed that the word in situ had been obliterated by using while fluid. On the basis of the said NOC order of absorption of the applicant was issued by MCD. It is further pleaded that the closure report clearly stated that employment on deputation and ultimate absorption in MCD was taken by suppression of vital facts as regards the eligibility of the applicant for the post. It is on the facts as mentioned above that it is stated that the present is a clear case where the deputation and absorption of the applicant would be illegal and void ab initio, in which view of the matter the impugned order has been passed.
10. The applicant has filed rejoinder to the written statement filed on behalf of the respondent MCD, wherein it is inter alia pleaded that he was promoted to the post of Under Secretary in MHA vide order dated 20.8.1999. Vide the said office order 85 posts of Section Officer/Desk Officer in MHA cadre were temporarily upgraded with immediate effect to the grade of Under Secretary. Thereupon 85 posts of Section/Desk Officers ceased to exist and 85 posts of Under Secretaries came into existence, even though temporarily. The said creation of 85 posts of Under Secretaries was subject to the condition that once the incumbent relinquished any of the post, then the said post(s) would revert back to the original status of Section/Desk Officers, which would mean that the post itself would exist as that of an Under Secretary as long as it was to be held by an incumbent who was promoted/appointed as Under Secretary. The said office order would further indicate that the officials whose names are indicated in the order, were appointed as Under Secretaries against the said temporarily upgraded posts, on personal/in situ basis. It is pleaded that it would be evident from the wording of the said order that posts have been upgraded temporarily/ conditionally and the officers were appointed as Under Secretary with no indication/condition that the appointment would be presumed to be either temporary or ad hoc, and that just as the order indicates that posts of Section/Desk Officers were upgraded temporarily, nothing prevented the Government to indicate in the order that appointments as Under Secretary would be temporary/ad hoc, had that been the situation. The omission of these words in the order of appointment as Under Secretary, and the distinction between the appointment of persons and upgradation of the posts, it is pleaded, would clearly indicate that the appointment of the applicant as Under Secretary vide order dated 19.8.1999, was neither temporary nor ad hoc, and further that after upgradation, the upgraded posts came to be designated as Under Secretary and the incumbent, in any case, had been promoted as Under Secretary without there being any other condition, and that the applicant was holding the post of Under Secretary on regular basis as there was no condition in the order of promotion to the effect that he would cease to be an Under Secretary at any stage. The applicant stood promoted to the regular scale of `10000-15200 on regular basis vide order aforesaid. It was the post which was conditionally upgraded till the applicant was holding it, which would mean that till he retired or was transferred to another post of the same or higher rank. Insofar as, the status of the applicant is concerned, it is pleaded that the same is of Under Secretary with effect from the date of his promotion and remained so till he was absorbed in MCD. The applicant after his appointment as Under Secretary was assigned the duties of Under Secretary, and there was clear change in the command and control and channel of reporting, and he was not required to report to any other Under Secretary and was directly reporting to the Deputy Secretary; similarly, Sections Officers started reporting to him. This position, it is pleaded, would be further clear from the queries made under the Right to Information Act, 2005 to DOP&T, and the replies given against each query by DOP&T vide letter dated 1.4.2008. The queries and replies thereto, as mentioned in the rejoinder, are reproduced below:
Question 1: Whether the CCS officers on promotion as Under Secretary/Deputy Secretary on an in-situ, ad-hoc or regular basis are required to state in all official correspondence the status of their appointment Under/Deputy Secretary (in-situ/ad-hoc/regular) or they are to simply write their designation only i.e. Under/Deputy Secretary without indicating the status of their appointment?
Answer 1: There is no need to write the status of the grade but merely the grade in which the officer is serving while making official correspondence.
Question 2: Whether there is any mandatory requirement for these Under Secretaries/Deputy Secretaries to write the status of their appointment as US/DS while applying for any ex-cadre/deputation post?
Answer 2: No such rule has come to notice.
Question 3: Whether there is any difference in the powers/responsibilities of the regularly appointed USs/DSs and ones appointed as such on in-situ or ad-hoc basis?
Answer 3: There is no difference in powers/ responsibilities/pay-scales on the basis of status in the grade. However, as on date, no CSS officers are officiating in any grade on in-situ basis. In reply to another application under RTI Act, vide letter dated 18.11.2008 DOP&T clarified that the applicant was promoted as Under Secretary (in situ) vide order dated 20.8.1999, which is a Group A post as per CSS Rules, 1962. The existence or absence of the word in situ, it is the case of the applicant, was inconsequential and of no effect and could not have changed his status as a Group A officer working as Under Secretary. As regards his salary, it is the case of the applicant that as per the recruitment regulations for the post of Additional Deputy Commissioner, MCD notified by Government of India vide notification dated 7.1.1983, whereby the said post is to be filled by transfer on deputation, it has been provided that the officers of the IAS, Central Services Group A and State Civil Services Class-I, drawing a minimum of Rs.1200/- per month could be appointed on deputation, and, therefore, the requirement for the post of Additional Deputy Commissioner, MCD was that the officer in order to be eligible should belong to Central Services Group A and he should be drawing a minimum pay of `1200/- per month, and there was no requirement that the officer should have been working on regular basis in Central Services Group A or that he should have put in a minimum length of regular service in the grade. It is pleaded that the post of Under Secretary in the Government of India initially, after the 3rd CPC, carried the pay scale of `1200-1600 in the year 1983 when the recruitment regulations for the post of Additional Deputy Commissioner, MCD were notified, and after the 4th CPC, in terms of the CCS (Revised Pay) Rules, 1986 the pay scale of `1200-1600 w.e.f. 1.1.1986 was revised to that of `3000-4500, and after 5th CPC, in terms of the Revised Pay Rules, 1997 the scale of `3000-4500 w.e.f. 1.1.1996 was revised to the that of `10000-15200. Thus the pay scale of `1200-1600 was revised to `10000-15200 and the applicant was drawing salary in the said scale when he was transferred on deputation. As regards the allegation that the applicant concealed that he was Under Secretary (in situ), it is his case that MCD was well aware that the applicant was Under Secretary (in situ), and even otherwise, the status and pay scale of the applicant was that of Under Secretary and mentioning of in situ was inconsequential. The applicant while applying for the post of Secretary to Commissioner, MCD, mentioned in his application as follows:
Joined MCD on deputation basis, as Addl. Deputy Commissioner in September, 2001 and presently working on the post of Secretary to the Commissioner since February, 2002 in the pay scale of Rs.12,000-16,500 hence I fulfilled the said requisite condition. The applicant pleads that he neither concealed anything nor misrepresented as is being alleged by the respondent MCD, and on the contrary, the respondent has concealed the fact that the applicant was considered for appointment as Secretary to the Commissioner against the first eligibility criteria in the circular dated 11.9.2003 and as appointed by the competent authority after being found fit, and further that the applicant had no role to play in consideration of his name for appointment by the competent authority. Reference is then made to the pleadings as have been made in the other OA as regards examining of his case for absorption by the Chief Law Officer, MCD and the Additional Solicitor General.
11. Before we may further proceed in the matter, we may mention that on application given by one Manoj Kumar Singh, he was impleaded as a party respondent in the OA. He too has filed reply, but there would be no need to go into the contents thereof, as the learned counsel representing the applicant, during the proceedings of this OA, stated that he is not pressing the allegations made against Manoj Kumar Singh. Thereafter, no appearance has been put on behalf of the said respondent.
12. Having given the facts as made out in the pleadings of the parties, time is now ripe to take into consideration the rival contentions of the learned counsel representing the parties on the controversy involved in the case. Inasmuch as, counsel representing the applicant as regards the impugned order in OA No.221/2010 of terminating and revoking the deputation and subsequent absorption of the applicant in MCD, has raised a pure and simple legal issue, as mentioned above, we would prefer to decide the said OA first, even though filed later. We are not inclined otherwise also to go into the controversy as regards concealment made by the applicant in procuring the post on deputation in MCD or tampering with some of the orders, as is the case of the respondent MCD, as in our view, for the reasons to be given hereinafter, the allegations made by the respondent, which have been hotly contested, have to be tested on a proper enquiry to be held against the applicant, and it would be premature at this stage to determine the same. We may, however, mention at this stage that during one of the hearings, we had required the respondents to produce records pertaining to deputation and absorption of the applicant to at least prima facie find out as to whether there was any truth in the allegation made by the respondent as regards concealment of facts and tampering of records by the applicant while he was brought on deputation to MCD, and on his subsequent absorption. We had also required the respondents to bring for our perusal the orders reviewing the suspension of the applicant from time to time. Whereas, record pertaining to suspension of the applicant and continuance thereof has been brought and shown to us, the record as regards deputation and absorption of the applicant has not been shown to us, by stating that the said record is available with CBI. CBI, as mentioned above, has already sent a cancellation report and, therefore, normally the record should not be with it. However, even if the record was with CBI, once, there were directions by the Tribunal to bring the record, it would not have been difficult for the respondent to get the same from CBI and produce the same for our perusal.
13. The facts are not in dispute that the applicant as a member of CSS in the cadre of MHA was considered for appointment on the post of ADC/Joint Assessor & Collector on deputation basis in MCD. His name was forwarded along with necessary cadre clearance/no objection certificate of MHA, ACRs for the last five years, vigilance clearance and integrity certificate. The applicant was appointed to the post of ADC/Joint Assessor & Collector in the pay scale of `12000-16500 on deputation basis. He was relieved enabling him to join MCD on deputation basis. He held the post of ADC on deputation basis and was later appointed as Secretary to Commissioner, MCD w.e.f. 1.2.2002. Applications were invited vide circular dated 11.9.2003 for filling up the post of Secretary to Commissioner, MCD on deputation/absorption basis. The applicant applied for absorption and was indeed absorbed on the said post on 3.11.2003. He tendered his technical resignation from the post of Under Secretary held by him in MHA, which was accepted. His lien in CSS was terminated and he became a permanent employee of MCD. The applicant is a civil servant holding a post under the State, to whom provisions of Article 311 of the Constitution would be applicable. The impugned order canceling his deputation and permanent absorption in MCD amounts to dismissal from service, particularly, as mentioned above, when the lien of the applicant stood terminated with his previous employer. Such a course, we are in complete agreement with the learned counsel representing the applicant, would amount to termination of services and could not be resorted to unless an enquiry was to be held in which the applicant was to be informed of the charges and given reasonable opportunity of being heard, as per the mandate of Article 311(2). In view of provisions contained in Section 95 of the DMC Act, 1957, no officer or employee of the Corporation shall be reduced in rank, compulsorily retired, removed or dismissed by any authority subordinate to that by which he was appointed, and no officer or employee can be punished unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, except where an officer or other employee is removed or dismissed on the ground of conduct which had led to his conviction on a criminal charge, or where the authority empowered to remove or dismiss such officer or employee is satisfied that for some reason to be recorded by that authority, it is not reasonably practicable to give that person an opportunity of showing cause. Regulations of 1959 clearly provide for an enquiry if an order of punishment is to be imposed upon a municipal officer or employee. Major and minor penalties have been mentioned in regulation 6, which can be imposed upon a municipal officer or employee as per regulation 7. In view of provisions contained in regulation 8, no punishment can be imposed except after an enquiry to be held in the manner provided in the said regulation. The applicant in the present case was not even issued a simple show cause notice, nor naturally heard in the matter. The impugned order Annexure A/1 dated 6.1.2010 even otherwise appears to be contrary to the facts of the case. From the order foresaid, it appears that vide order dated 30.12.2009 the competent authority had terminated and revoked the deputation of the applicant from Government of India to MCD and his subsequent absorption as Secretary to Commissioner, MCD with immediate effect, as it was found contrary to the extant rules. The order dated 30.12.2009 has not been placed on records. However, it is admitted position and is so recorded as well in the order dated 6.1.2010 that deputation of the applicant with MCD and his subsequent absorption were revoked and the applicant was directed to report to his parent department. Once, the applicant had been absorbed, no occasion would arise to terminate his deputation which already stood merged in the order of his permanent absorption. The period of his deputation had come to an end when he was absorbed. It could not thus be revoked after he was absorbed in MCD. Further, once the applicant had resigned from his parent department, i.e., MHA, he could not possibly be repatriated. The impugned order dated 6.1.2010, or for that matter, order dated 30.12.2009, referred to in the said order, for the reason as mentioned above as well, and being wholly illegal, void ab initio and unconstitutional, has to be set aside. We have absolutely no hesitation in setting aside the same. So ordered. The respondent would, however, be at liberty to proceed against the applicant in a regular departmental enquiry, wherein if the charges are proved, the applicant can then only be inflicted with any punishment. It may be recalled that the allegations against the applicant are of concealment of material facts and tampering with records. On the grounds the impugned order has been passed read with the reasons given for passing the said order in the pleadings, it would be absolutely stigmatic. The allegations like concealment of material facts in procuring or manipulating appointment, and while doing so, even tampering with relevant documents, will leave the applicant at such cross roads that it shall be well nigh impossible for him to procure any public employment. There could not be any short-cut to show the exit door to the applicant, and if it has to be so done, proper procedure has to be adopted.
14. In support of OA No.34/2010 as regards placing the applicant under suspension and continuance thereof, from the factual position as fully detailed above, learned counsel representing the applicant vehemently contends that even though, there may be a justification for placing the applicant under suspension when an FIR came to be registered against him, but there would be no justification for carrying on with the same when CBI sent cancellation report and when the high powered committee constituted on that behalf strongly recommended non-continuation of suspension of the applicant. He also urged that MCD was required to follow the same procedure in the matter of review of suspension cases as prescribed under the CCS (CCA) Rules, as inserted vide sub-regulations (8) and (9) to regulation 5 of the Regulations of 1959 vide resolution dated 6.9.2004. The same have since already been reproduced hereinbefore. Ms. Madhu Tewatia, learned counsel representing the respondent MCD, per contra, would contend that even though CBI may have sent a cancellation report, but the matter is still not over as the concerned court seized of the matter has not accepted the cancellation report as yet. It is also urged that CBI even though, may have sent cancellation report, but it has strongly recommended for regular departmental action against the applicant, for which reason as well the applicant could be placed under suspension. It is also urged that the applicant, in any case, is involved in yet another case which is of possessing disproportionate assets commensurate to his known sources of income, and for that reason as well he needs to be continued to be under suspension. It is also urged by her that insertion of sub-regulations (8) and (9) in regulation 5 may not come to the rescue of the applicant as these have so far not been notified.
15. We have minutely perused the records of the applicant pertaining to his suspension and continuance thereof vide orders of review passed on that behalf from time to time. Insofar as, the initial order of suspension of the applicant is concerned, as mentioned above, no plea has been raised for setting aside the same. We are also of the view that once the applicant was involved in a criminal case when FIR came to be registered against him under section 120B read with 420/468/471 IPC read with section 13(1)(2) and 13(1)(d) of the Prevention of Corruption Act, 1988, he could well be placed under suspension as per regulations 5(2) of the Regulations of 1959.
16. Before we may evaluate the rival contentions of the learned counsel representing the parties as noted above, it would be appropriate to find out as to after the initial suspension of the applicant, whether the respondents have carried out review of the same and if so, on what grounds continuation of his suspension has been ordered. The applicant, it may be recalled, was suspended vide order dated 17.1.2008 (Annexure A/1). First review of suspension of the applicant, as per the records shown to us, was carried out on 7.8.2008. Admittedly, by the time the review was carried out, CBI was investigating the case against the applicant. We find a note dated 1.8.2008 prepared by Junior Law Officer (Vig.) which deals with details of the case. Mention of the recommendation of CBI dated 3.1.2008 to place the applicant under suspension has also been made. It has also been mentioned that the investigation of the case against the applicant was still under progress and, therefore, his reinstatement may hamper the investigation. It is in view of the note prepared by the Jr. Law Officer (Vig.), which appears to have been agreed to by the concerned authorities, that on 7.8.2008 suspension of the applicant was ordered to be continued.
17. Second review of suspension of the applicant was done on 8.12.2008. It appears that review of suspension of number of employees came up for consideration. There were 11 employees against whom CBI cases were pending. Their cases came to be considered collectively. Meeting of the suspension review committee was held on 2.12.2008 in the vigilance department chaired by Commissioner, MCD. The other members who attended the meeting were Chief Vigilance Officer, Director (Vig.), ADC/Vig. and Dy. Law Officer/Vig. The committee reviewed cases of suspension of six different categories of employees. As mentioned above, there was a separate category of 11 employees against whom CBI cases were pending. This was the first category dealt with by the committee. It is mentioned that the Commissioner took a policy decision not to reinstate any employee who had been caught red handed in any case, and, therefore, suspension of 11 employees involved in CBI cases had been decided to be continued by the committee till further orders. We may refer to the relevant part of the proceedings of the committee. The same read, thus:
1. Commissioner took a policy decision not to reinstate any employee who was caught red handed in any case. The suspension of 11 employees involved in CBI cases has been decided to be continued by the Review Committee till further order. The names of the 11 employees are as under:
S. No. Name & Designation Case No.
1. Sh. Balraj Dabas, Insp./RZ 2055/SIO(P)/Vig.2007
2. Sh. Rajpal, ASI 2057/SIO(P)/Vig./2007
3. Sh. S.N.S. Sidhu, Director/S&JJ 2063/SIO(P)/Vig./2007
4. Sh. Sumer Chand Garg, AD/S&JJ 2063/SIO(P)/Vig./2007
5. Sh. Atul Vashist, UDC 2063/SIO(P)/Vig./2007
6. Sh. Sher Singh, AE 2063/SIO(P)/Vig./2007
7. Sh. Nanak Chand Khandelwal, JE 2063/SIO(P)/Vig./2007
8. Sh. Mukand Khante, Insp. 2078/SIO(P)/Vig./2007
9. Sh. Abhinav Maitry, JE 2124/SIO(P)/Vig./2008
10. Sh. G.S. Matharoo, Dy. Cm. 2003/SIO(P)/Vig./2008
11. Sh. R.P.Garg, SE 2148/SIO(P)/Vig./2008 It is pertinent to mention that even though, investigation may be going on by CBI against the applicant, the allegation against him was not of corruption or having been caught red-handed in any case. There is not a word mentioned as regards the investigation carried out against the applicant and with regard to the manner of securing employment by him, as mentioned above.
18. Third review of suspension of the applicant was carried out in the meeting of the suspension review committee held on 24.11.2009. It is a repeat performance of the proceedings of the review committee which was held on 2.12.2008. We may refer to the relevant part of the minutes of the meeting. The same read, thus:
1. Commissioner took a policy decision not to reinstate any employee who was caught red handed in any case. However, the Review Committee has decided to continue suspension of following 13 employees being red handed trap cases till further orders as under:
S. No. Name & Designation Case No.
1. Sh. Balraj Dabas, Insp./RZ 2055/SIO(P)/Vig.2007
2. Sh. Rajpal, ASI 2057/SIO(P)/Vig./2007
3. Sh. Mukand Khante, Insp. 2078/SIO(P)/Vig./2007
4. Sh. Abhinav Maitry, JE 2124/SIO(P)/Vig./2008
5. Sh. R. P. Garg, SE 2148/SIO(P)/Vig./2008
6. Sh. Kapil Kumar, ASI 2176/SIO(P)/Vig./2008
7. Sh. Mehar Singh, SS 2182/SIO(P)/Vig./2009
8. Sh. Rajinder Singh,HC 2193/SIO(P)/Vig./2008
9. Sh. Surinder Kumar, JE 2221/SIO(P)/Vig./2009
10. Sh. Devi Singh, UDC/Reader 2219/SIO(P)/Vig./2009
11. Sh. Shyam Lal Narain, Beldar 2199/SIO(P)/Vig./2009
12. Sh. Desh Deepak Gulati, EE 2226/SIO(P)/Vig./2009
13. Sh. Mohd. Salman Aquil, JE 2237/SIO(P)/Vig./2009 Among aforesaid 13 officials, the Review Committee has decided to enhance the subsistence allowance of Shri G.S. Matharoo, Dy. Cm. from 50% to 75% with immediate effect and has recommended that remaining officials who are drawing subsistence allowance @ 50% will continue to draw the same till further orders. The name of the applicant is not amongst 13 persons shown in the table reproduced above. However, immediately after the table, the name of the applicant has been mentioned with regard to whom a decision was taken that his subsistence allowance would be enhanced from 50% to 75%. The other employees were to continue to draw subsistence allowance at the rate of 50% only. It is also mentioned that the applicant is amongst the aforesaid 13 officials. Even though, therefore, the name of the applicant may not be there in the table, but it is the case of the respondents that his case was reviewed along with others, as mentioned above.
19. What clearly emerges from the facts as mentioned above is that whereas, the first review may have dealt with the pending investigation against the applicant by CBI and its recommendation, the other two reviews appear to be an outcome of total non-application of mind. Categories were made and all those who were involved in cases registered by CBI were to continue to be under suspension as a policy decision that those who had been caught red handed in any case would not be reinstated. It is a case of mass consideration, irrespective of the facts of each case. The committee would not apply its mind even to find out as to whether those who were facing CBI cases were not all those who might have been caught red handed accepting bribe. Surely, insofar as the applicant is concerned, he was not admittedly caught red handed in any case. It may be recalled that when third review was carried on 24.11.2009, the cancellation report had since already been sent by CBI. It was sent on 3.7.2009. Despite that, what came to be mentioned in the review order is that the applicant was caught red-handed. There is no mention whatsoever as regards the cancellation report sent by CBI. On the facts and circumstances of the case as have been fully detailed above, whereas there may be justification in the initial suspension of the applicant and continuance thereof vide first review dated 7.8.2008, there is absolutely no justification emanating from the review orders for continuing the suspension of the applicant. In fact, review carried out, insofar as at least the applicant is concerned, is based upon totally incorrect facts. These review orders, in our view, cannot possibly sustain. Learned counsel representing the respondents would, however, contend that even if this Court may find no justification/ground for reviewing the suspension of the applicant, but nonetheless, he could well be continued to be under suspension as CBI in any case has recommended departmental action against him, and the concerned court has not accepted the cancellation report as yet. We find no merit whatsoever in the aforesaid contention of the learned counsel. Once, the order of suspension against the applicant was passed because of registration of a criminal case against him and because of the recommendation made on that behalf by CBI, there would be a sea change in the circumstances when CBI itself may say that it had not found any evidence which may pin down the applicant with any criminal liability. The order of suspension has to be passed and reviewed from time to time, depending upon the situation. There would be no change in the circumstances till such time the concerned court may reject the cancellation report and order for further investigation or putting challan in the court for trial of the applicant. Surely, if such a situation might have arisen the applicant could have again been placed under suspension, but the mere fact that the cancellation report has not been accepted by the court would not provide justification for the respondents to carry on with the suspension of the applicant. Insofar as, the plea of the respondents as regards recommendation made by CBI for taking departmental action against the applicant is concerned, if the respondents were convinced that as recommended by CBI, departmental action had to be taken, they ought to have taken steps to proceed against the applicant. Admittedly, no such steps ever came to be taken till such time the impugned order dated 6.1.2010 in OA No.221/2010 revoking the deputation and subsequent absorption of the applicant came to be passed. Further, the reason given while reviewing the suspension of the applicant is not the recommendation of CBI to take departmental action against the applicant. The reason rather is that the applicant was caught red handed and, therefore, as a matter of policy, he would have to remain under suspension. Once, we have held that the second and third reviews of the suspension of the applicant would not be justified and would be illegal, no occasion arises to deal with the grounds on which the counsel for the respondents would state that the applicant could be continued to be under suspension. Surely, the suspension and continuance thereof is to be tested on grounds on which the orders are passed and not on the grounds on which it could have been passed or continued. However, we may still touch upon the core controversy as regards this factual aspect for the reason that in a given case where the facts may not warrant any interference, the courts may not interfere even though, there may be some infringement of rules or instructions. To illustrate, where the facts may overwhelmingly show totally nefarious activities indulged in by an employee with a clinching proof placed in that regard before the court, the court may not be inclined to interfere. We are not giving any finding upon the controversy, as surely, the same has to be determined in appropriate proceedings and in appropriate forum. We are just referring to the facts as have been brought to our notice, either emanating from the pleadings or from the contentions raised by the learned counsel representing the parties. We are also touching upon the facts for the reason that the counsel for the respondents would contend that irrespective of the review orders being illegal, the applicant is still to be continued to be placed under suspension, or his continuous suspension would be justified for the reason that even though, cancellation report might have been sent by CBI, but the court, in any case, has not accepted the same, and further that in any case, CBI has recommended departmental action against the applicant, as also in the context of the contention raised by the learned counsel for the respondent that the applicant is involved in yet another criminal case which is of corruption. It is true that FIR RC-EOU-I-2005-A-0005 came to be registered against the applicant on 9.5.2005 on the allegation that he acquired disproportionate assets during his tenure in MCD. It is also true that SP, CBI in his report pertaining to the said FIR, recommended prosecution of the applicant under section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, as also regular departmental action for major penalty for non-intimation of various transactions of properties to his department and for not obtaining prior permission from the department for visiting abroad. It is also true that SP, CBI addressed a letter to CVO, MCD on 19.1.2009 requesting that sanction for prosecution of the applicant be accorded as required under law. It is also true that the vigilance department of MCD addressed a letter to SP, CBI dated 5.1.2010 wherein, it was mentioned that two sets of sanction order (in original) duly accorded by the competent authority in respect of the applicant were being supplied for taking further necessary action. It is mentioned in the letter aforesaid that the Lt. Governor had made the following observations:
While forwarding the letter of sanction, the CBI may be informed that as it has been found by the CBI that Shri G. S. Matharoos deputation and absorption was contrary to rules, it appears that during the entire period of his service in the MCD, his appointment authority continued de jure to be an officer of the GOI. CBI should, therefore, be advised to simultaneously obtain sanction for prosecution from that competent authority before putting the DA case in court. However, we do not find from records the order sanctioning prosecution of the applicant, may be because the Lt. Governor required simultaneous sanction for prosecution of the applicant from Government of India. We need not, however, further go into this question. What, however, needs necessary mention is that the MCD on a petition filed by the applicant, constituted a committee consisting of Shri Ram Kishan Singhal, Chairman, Standing Committee; Shri J. K. Sharma, Leader of Opposition and Member, Standing Committee; and Shri Vijender Gupta, Member, Standing Committee. The said committee had gone into the facts of both the FIRs that have been registered against the applicant by CBI. The committee gave its detailed report running into 20 pages. The committee, from the proceedings held on 31.7.2009, it appears, was of the view that though Section 59 of the DMC Act, 1957 provides that the Commissioner shall be the disciplinary authority in respect of category A officers of the Corporation, this has to be read in the light of the provisions contained in the relevant provisions of the Regulations of 1959. The committee was further of the view that in terms of the said Regulations, power to remove from service a category A officer of the Corporation vests in the Corporation. The committee was unanimously of the view that in the light of the statutory provisions, the authority empowered to grant or refuse sanction for prosecution of the applicant, a category A officer, in terms of Section 19(1) of the Prevention of Corruption Act vests in the Corporation. We were not told during the course of arguments as to whether the sanction orders, mention whereof has been made in letter dated 5.1.2010, have been passed by the Corporation or somebody else. That apart, the findings/observations made by the committee would completely nail the prosecution case. The same may be true or not. We are not concerned with that aspect of the case at this stage. Surely, if the applicant is to be ultimately tried in a corruption case, the competent court would deal with the issue. We are only referring to the facts as may be relatable to the suspension of the applicant, as available till date. In the summary of facts, it has been mentioned by the committee that the case against the applicant was registered on the basis of so called source information that he had, during the period 2000-2005 while working in MCD, amassed huge assets by abusing his official position. However, the investigation subsequently carried out showed that some of the assets he was alleged to have acquired did not exist at all, or others had been acquired by his father even before he was born or before he was posted in MCD. It is specifically recorded that it is clear that the case against the applicant had been registered on the basis of a motivated source information, and that the investigation was hastily launched, searches made and assets of the entire family, including that of his relatives seized without even carrying out routine pre-verification exercise. It is further recorded that there was some credence to the point made by the applicant that he was being falsely implicated in the case at the behest of vested interests, and that during oral submissions the applicant stated that CBI had also registered a PE against Shri R. K. Sharma, DIG, CBI along with others, who was in-charge of the EOU-I unit when the criminal case was registered against the applicant. We may reproduce some of the findings and conclusions arrived at by the committee in both the cases, which are only for the purpose of deciding the case of continuous suspension of the applicant. The same read, thus:
FINDINGS:-
5. The Committee after a detailed consideration of the matter in its entirety has made the following main findings:
I). Considering the clear position that even as per the report of the CBI, all the properties and assets were in the name of private persons/family members, it has to be seen whether there is any prima facie material to support the CBIs allegation that these assets were benami i.e. held by these family members on behalf of Sh. G.S. Matharoo.
II). The allegation of benami assets in the hands of family members, can be leveled in two eventualities. Either the payment for the assets goes from public servant, and the relatives get the assets without spending any amount. Alternatively the benami transaction can be there wherein the relative receives/holds money in his/her bank account, but cannot explain the source from where the unexplained money suddenly came into the relatives bank account, and then these unexplained funds are used by relatives to acquire any properties.
III). In the present case neither of these types of benami transactions can be alleged. All the assets in question, have been acquired by the father and wife from their well established and documented earnings, duly returned periodically to the Income Tax Department. No amount has gone from Sh. G. S. Matharoo to his family members at the time of purchase of any assets. Nor he received any amount from them at the time of sale of these assets. Sh. G. S. Matharoo has never exhibited any element of ownership or control in relation to these assets. He has never obtained any rental income or borrowed from Banks etc. on the basis of any of these assets.
(IV). As already mentioned above Sh. Piara Singh father and Smt. Neelam Matharoo wife were having established record of independent share trading and investment business, which is well documented by thousands of transactions in the office of Stock Broker, Stock Exchange, corresponding Bank entries et. This is not that type of case where suddenly and in unexplained manner, large funds have abruptly surfaced in the bank accounts of the father, wife etc. These are essentially in the nature of established incomes, including receipts of sale proceeds, in settled possession and ownership of those family members, with a highly credible record of their independent business and earnings by way of sale of movable (shares) and immovable properties (plots/houses), which have all been held in the father/wifes lawfully recorded ownerships for years together, with the source of funds satisfactorily explained.
(V). Once the ownership, the benefit and all the advantages of these assets, have been exclusively of the other private persons, who have acquired same from their own bank account, earnings and sources with which Sh. G.S. Matharoo has no concern or connection, there is not even an iota of evidence which could in any manner suggest that these are benami transactions. It is only by the process of selective clubbing of some parts of the financial transaction and assets purchased by these private persons/relatives, with Sh. G.S. Matharoo, that a wrong impression has been created as if there is a gap between the total value of the assets and the income taken into consideration during the check period. On that basis, imaginary disproportionate assets figure has been attempted to be made out, by adopting one-sided logic.
(VI). The Committee after carefully examining the matter, finds that there being no benami character to the ownership or dealings preferred to in the S.P. Report, and moreover the private persons (father, wife, mother-in-law etc.), having acquired the respective assets from their own separate funds of long and established standing. As such Sh. G.S. Matharoo cannot be alleged to be in possession of those assets at all. Sh. Matharoo had referred to the judgment of the Honble Supreme Court in Krishnanand Agnihotri case (AIR 1977 SC 796) where it was held as under:-
It is well settled that the burden of showing that a particular transaction is benami and the owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an interference of that fact. The essence of benami is the intention of the parties and not uncommon, such intention is shrouded in a thick veil, which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him nor justify the acceptance of mere conjectures or surmises as a substitute for proof. (VII). The committee further finds, in the alternative, that even if the clubbing exercise of the CBI, is assumed for the sake of argument, then the same has to be taken to its logical conclusion. The Committee finds that several of the incomes and property sale proceeds of those relatives, as detailed in Para W above, have been wrongly left out by CBI. If the assets in the name of relatives have to be clubbed, then their incomes have also to be included, and on that basis also, there are no gaps between assets and incomes and hence no disproportionate assets to be explained by Sh. G.S. Matharoo.
(VIII). Thirdly the committee observes that CBI has tried to distort the perspective in relation to a few instances of sale of properties/shares by certain private persons/family members, which have not been initially declared to the Income Tax Department in relation to cash component. In this context, it needs to be noted that once those private persons/family members are established to be doing their own private business, they alone would be responsible for the manner in which they conduct their affairs and Sh. G.S. Matharoo cannot be called upon to explain why there was a delay in disclosure of cash component of property sale transaction by those private persons/family members, who are independent legal entities doing their own business. Similarly, if as per the prevailing custom/practice in the real estate trading, or otherwise, some cash amount are also paid at the time of sale/purchase of the property, then how the seller receiving those amounts, is further investing those cash amounts viz. in Post Office Scheme etc., is also not to be explained/answered by Sh. G.S. Matharoo.
IX). The Committee finds well merited the contention of Sh. Matharoo in the hearing that total value, including cash component, of Rs. 54.50 Lakhs for 418 sq. yds. Plot and Rs. 24 Lakhs for 550 sq. yds, Plot, are by no means excessive figure; and no allegation can be made out suggesting as if these cash amounts were diverted funds of Sh. G.S. Matharoo. Investments are proximate in time to the property transactions and are not found on other occasions, which lend further credence to submissions of Sh. Matharoo.
X). The Committee feels it would be failing in its duty, if it dies not highlight the apparent harshness of the situation by which a competent and hardworking officer, with outstanding performance record, has been subjected to harassment and serious detriment to his career. As set out in Para-E above, after the false FIR in Jharkhand (Ranchi) case, had been exposed by the inquiry conducted by senior Police and Administrative Officials of that District, within just 15 days of the attempt to whisk Sh. Matharoo away under NBW, a detailed reference was made by the then Mayor on the basis of the Resolution of the Statutory Standing Committee of the Corporation, requesting CBI inquiry into the incident.
XI). Instead of taking action thereon, within just 6 weeks or so, Sh. Matharoo was subjected to raid and registration of the present case, by clubbing the properties of his father, wife, mother-in-law etc. which properties were in established possession and ownership of those persons, with the independent source of acquisition thereof duly explained by them and also corroborated by thousands of computerized records and transactions of Stock Exchange, Share Broker and corresponding Bank records. The DIG heading this Wing of CBI, is under P.E for bribe allegation, in this very case.
XII). AS is well known, the D.A case is more or less an accounting exercise. If the CBI leaves out selectively any of the incomes by citing any reason, good, bad or indifferent or even by remaining silent i.e. furnishing no reason at all, then the concerned individual will have to face a career shattering, humiliating and log court battle for years together. During the hearing Sh. G.S. Matharoo submitted that no defence version can be given up to the stage of framing of charge which means that the individual would have to face the whole trial. He also wanted to show to us certain closure reports where even totally implausible explanations have been upheld by the CBI Officials and the matter closed against the actual delinquent officials in those cases. We could not go into those aspects as the matters are not before us. However, we do feel that CBI, at the senior-most levels, should consider such matters with utmost seriousness and sense of responsibility. Whenever the family members of a public servant, are having assets, then by a process of jugglery of figures, the public servant can be placed under doubt, no matter how clear record of sourcing and ownership of the relatives. At the same time, there is no doubt that there are some real black sheep somewhere, with benami properties, who should not be spared.
XIII). Sh. G.S. Matharoo during the hearing submitted that it is customary for CBI to prepare a draft sanction order and once a detailed typed matter comes from an apex investigating agency, then very few sanctioning authorities have the aptitude, or expertise, or the courage to independently consider the matter in light of the judgment of Honble Courts in the under mentioned cases, cited by Sh. Matharoo, the relevant portion of which, are quoted below:-
(i). Indu Bhushan Chatterjee Vs State AIR 1955 Cal. 430 The sanctioning authority is placed somewhat in the position of a sentinel at the door of Criminal Courts in order that no irresponsible or malicious prosecution can pass the portals of the court of Justice. It is therefore, essential that persons charged with the responsible duty of granting sanction, which is a duty of deciding whether or not the credit and reputation of another citizen should be put in peril by means of a criminal prosecution should bring to the discharge of their duty a sense of responsibility and the industry required to examine the relevant materials. The duty of granting a proper sanction can hardly be imagined to have been properly discharged by merely putting ones signature on a ready made sanction presented by the police.
(ii). Mohd. Iqbal Ahmed Vs State of A.P. AIR 1979 SC 677 The grant of sanction is not an idle formality . but a solemn and sacrosanct act which affords protection to government servants IX). While going through the records, after the hearing we also found in our file such a 14 pages draft order for sanction sent by CBI. For the reasons set out above, we have tried to the best of our ability to examine the matter objectively on our own understanding, as we felt that the career of the officer being involved, the sanctioning authority cannot act as a rubber stamp and issue sanction of the proposed draft without applying its own mind.
II. SUSPENSION IN CASE NO. RC-DAI-2008A-0002
6. In his oral and written submissions, Sh. Matharoo has in short represented that:
(i) These is no truth in the allegations that he managed top get the appointment on deputation and his absorption in the MCD by suppressing the facts that he was working to the post of Under Secretary (in-situ) in the Central Government. Sh. Matharoo has stated that Ministry of Personnel and Training in reply to his application under RTI Act, vide letter No. 15/4/2008-CS-I (Desk) dated 1.4.2008 has clarified that there is no need to write the status of the grade (in-situ/ad-hoc/regular), but merely the grade in which the officer is serving is to be mentioned. Thus the word in-situ in no way could have reduced his rank or position.
(ii) Sh. Matharoo has further stated that in reply to his another application under RTI Act, vide letter No. 21/1/2008-CS-I (Desk) dated 18.11.2008 the Ministry of Personnel and Training has clarified that Sh. Matharoo was promoted as Under Secretary (in-situ) vide order No. 21/48/99-CS-I dated 20.8.1999, which is a Group A post as per the CSS Rules, 1962. Thus the existence or absence of the word in-situ was inconsequential and of no effect and could not have changed his status as Group A Officer working as Under Secretary.
(iii) Sh. Matharoo has also referred to the RRs for the pos tof Additional Deputy Commissioner in MCD, notified by Government of Delhi vide notification No. 9/66/83-LSG (7.1.1983), whereby the post of Addl. Deputy Commissioner is to be filled by transfer on deputation, which further elaborate as referring to the officers of the IAS, Central Services Group A and State Civil Services Class-I, drawing a minimum of Rs. 1200/- per month. Thus deputation of Sh. Matharoo, being a Group A officer, in the MCD was as per notified RRs and there was no illegality in the same.
(iv) Sh. Matharoo has also referred to the opinion of the Chief Law Officer and Ld. Additional Solicitor General (ASG) on the following specific issues:
1). Whether the process of appointment of She G.S. Matharoo to the post of Secretary to Commissioner is in accordance with law and / or recruitment regulations?
2). Whether the concurrence of UPSC is mandatory when a person is taken on deputation in MCD as per Section 96 of the DMC Act, 1975?
3). Whether the approval of Delhi Government is required before making any appointment by the Commissioner under Section 92 of the DMC Act, 1957?
4). Whether the lien of Sh. G.S. Matharoo in his parent cadre in the Ministry of Home Affairs shall stand terminated on his absorption as Secretary to Commissioner in MCD and acquiring a lien o the post of Secretary to Commissioner?
The Ld. ASG (Sh. Mohan P. Arasaran) gave his opinion on the issues referred to him as under:-
1). Xxxx Therefore, in my opinion, the appointment of Sh. G.S. Matharoo appears in conformity with the provisions of Section 92 of the DMC Act.
2). Mr. Matharoo was holding the post and was in the service of Central Govt. and therefore, there was no need to take the concurrence of UPSC before taking him on deputation in terms of the proviso to Section 96 of the DMC Act.
3). That on a plain reading of Section 92 in so far as the appointment is concerned there is no need to obtain approval of the Delhi Government before making the appointment on a plain reading of Section 92 of the Act.
4). That in view of the facts mentioned above and the subsequent event that have transpired, Mr. Matharoo has no lien of service with his parent department (i.e.) Union Ministry of Home Affairs.
(V). Shri Matharoo has also invited our attention to the fact that contrary to all the rules and regulations on the subject, he has not been paid any subsistence allowance since he was placed under suspension one and a half year back, because of which he has been reduced to very dire financial circumstances. He was at pains to establish that non-payment of the subsistence allowance to him was yet another proof that he was deliberately being victimized at the behest of a small group of officials with vested interest who could not reconcile with his permanent absorption in the MCD.
7. Sh. Matharoo has summarized his submissions that as per the notified RRs for the post of Additional Deputy Commissioner, he was eligible as he was Group A officer, which has also been clarified by the Central Government. Regarding his absorption in MCD against the post of Secretary to the Commissioner, he has stated that he was no where involved in the decision making process and was not having any say in the same as he has only applied against the vacancy circulated by the MCD for that post and could not have influenced the decisions taken by much higher officials of the MCD. His deputation and absorption was as per law and has been scrutinized by the Law department and affirmed by Ld. Additional Solicitor General of India.
8. The Committee has not seen the original records, but has gone through the RC-DAI-2008A-0002 and other relevant records available in the file and also submitted by Sh. Matharoo before this Committee. The Committee considers its duty to examine whether an officer of the Corporation working against the post of Deputy Commissioner should continue to remain under suspension for indefinite period on the basis of allegations, which have not been proved anywhere even after a period of one and half year. The Committee further noted that Sh. Matharoo has been placed under suspension merely on the registration of RC by CBI.
FINDINGS:
9. The Committee has considered in depth the contents of case No. RC-DAI-2008A-0002, the oral and written submissions along with documents, etc. made by Sh. Matharoo and concurring with the contentions of Sh. Matharoo does not find any justification for continuance of his suspension for such a long period. The RC was registered by CBI in January 2008 but the investigation has still not been completed and no charge sheet has been filed in this case. It would, therefore, be unfair to continue the suspension of Sh. Matharoo. The Committee in particular took note of the fact that there are standing instructions of the Government of India for periodic review of suspension cases by a duly constituted committee to ensure that continuous suspension of the officer is justified. No such review by the committee has been made in the case of Sh. Matharoo, despite the fact that the Corporation vide its resolution No. 313 dated 6.9.2004 unanimously approved to adopt the instruct5ions of the Government of India and carry out amendments in the DMC Service (Control & Appeal) Regulations, 1959. The Committee also took serious view of the working of the Vigilance Department that despite 5 years of the passing of the resolution by the Corporation, the same has not been implemented. Even otherwise, natural justice demands that no officer should unnecessarily be kept under suspension.
10. The Committee is of the view that, in the first place, the decision to place Sh. Matharoo under suspension was taken in a mechanical manner solely on the basis of the recommendation made by the CBI without any investigation by the latter. This error has been further aggravated by the continuation of his suspension over a prolonged period without conducting any review by a duly constituted committee as per the standing procedure followed in other Government / Semi-government organizations. On the top of it, Shri Matharoo ahs mentioned in the course of hearing that he has not even been paid, throughout the period of his suspension, any subsistence allowance for his sustenance, which further strengthens his plea that all along he has been treated in an unfair and unjust manner at the behest of a small group of vested officers whose wrath he earned when he was permanently absorbed in the MCD.
CONCLUSION:-
11. In view of the above material on record, judicial pronouncements and the relevant rules and regulations, this committee is of the confirmed opinion that:
This is not a case where sanction for the prosecution of Sh. G. S. Matharoo is warranted. As such this committee strongly recommends for declining the sanction of prosecution against Sh. G. S. Matharoo; and There is no justification whatsoever for the continued suspension of Shri Matharoo. As such, this Committee strongly recommends that the immediate reinstatement of Shri Matharoo in the post which he held at he time he was placed under suspension. In short, the view of the committee is that the applicant is a victim and is being harassed. CBI, in the view of the committee, had not done a proper job. It had gone to the extent of clubbing all assets including those owned by the father and wife of the applicant in making out the case of disproportionate assets. That the father and the wife of the applicant had independent source of income, has been held to be proved by the committee on the basis of overwhelming documentary evidence on that behalf. Insofar as, other case regarding which cancellation report has been sent by CBI is concerned, the finding of the committee based upon several factors, including the opinion of ASG, is that it was not a case of wrong appointment, as a person promoted on in situ basis would also be eligible for appointment. No doubt, it is true that the committee had not seen the records from which an allegation of tampering with records may be made against the applicant. It is also true that in the minutes of the meeting dated 10.8.2009, the Corporation resolved that the report of the committee be referred back to the sub-committee to reconsider the petition and to look into the original documents, previous and present status of employment and Commissioners opinion in the matter, but such exercise, it appears, was never done. It is not even the case of the respondents that as per the resolution of the Corporation, the sub-committee ever met and examined the records, or for that matter, the opinion of the Commissioner was ever sought. As mentioned above, we are not giving any verdict on the allegation made against the applicant that he had concealed facts while coming on deputation post, or when he was absorbed. We are giving the facts only to show that if the applicant had to be placed under suspension, if he was to be departmentally tried, or because he was involved in a criminal case of corruption, the Corporation had really to apply its mind to the facts of the case while indeed taking into consideration the material available as to whether there was any justification to continue the suspension of the applicant or not. They may do it even now, but simply because the applicant could be placed under suspension or his suspension could be continued on grounds other than which have been specifically recorded for doing so, the applicant cannot be continued any more under suspension.
20. We have carefully examined the contention of the learned counsel representing the applicant that for not carrying out the reviews within the stipulated time as emanating from the amended Regulations, the suspension of the applicant would be illegal. We have, however, formed an opinion that it may not be so. Surely and admittedly, there is provision of suspension provided under the Regulations framed by the Corporation itself. Admittedly, in the Regulations framed by the Corporation, there are no provisions for necessarily carrying out periodical reviews in a time-bound manner. In view of clause (2) of regulation 5, the appropriate authority may place any municipal officer or other employee under suspension, where a disciplinary proceeding against him is contemplated or is pending, or where a case against him in respect of any criminal offence is under investigation or trial. The order of suspension made or deemed to have been made at any time can be revoked by the authority which made or is deemed to have made the order, as per provisions contained in clause (6) of regulation 5. Indeed, amendments have been made in the Regulations which are pari materia to the provisions contained in the CCS (CCA) Rules, 1965, but the same have not been notified as yet. In view of the provision contained in Section 480 of the DMC Act, 1957, the Corporation can frame regulations. In view of sub-section (2) of Section 480, no regulation made by the Corporation under the said Act shall have effect until it has been approved by the Central Government and published in the official gazette. It is the positive case of the respondent that the amended regulations have not been notified and this fact is not disputed during the course of arguments. Learned counsel for the applicant would, however, in support of his plea as mentioned above, relied upon a judgment of single Bench of the Honble High Court of Delhi in Sukhbir Singh v Commissioner, MCD & another [125 (2005) Delhi Law Times 672]. Suspension of an employee, as the facts would reveal, was challenged on variety of grounds. Counsel representing the employee had relied upon circular of Government of India dated 7.1.2004, which, as per the contention raised by the counsel, was binding upon MCD. By the said circular, suspension of public and Government servants has to be necessarily reviewed periodically from time to time, after expiry of each block of 90 days. What we find from the judgment is that the argument has been noted, but there is no finding based on any discussion that the said circular would be applicable and binding upon MCD. While setting aside the order of suspension, number of grounds have been mentioned, like inaction on the part of the respondent in reviewing the suspension on one hand, and continuing the petitioner under suspension for a long and unexplained period of four years in spite of the fact that no chargesheet had been issued, and also in view of the memorandum dated 7.1.2004. In view of the provisions contained in Section 98 of the DMC Act, 1957, the Corporation may make regulations to provide for any one or more of the matters provided therein, which include the tenure of office, salaries and allowances, provident funds, pensions, gratuities, leave or absence and other conditions of service of officers and other employees, and any other matters which would be incidental to, or necessary for, the purpose of regulating the appointment and conditions of service of persons appointed to services and posts under the Corporation, and any other matter for which, in the opinion of the Corporation, provisions should be made by the Corporation. In view of the provisions contained in Section 480 of the said Act, any regulation which may be made by the Corporation under the Act, may be made by the Central Government within one year of establishment of the Corporation; and any regulation so made may be altered or rescinded by the Corporation in the exercise of its powers under the Act. No regulation, as per sub-section (2) of Section 480, made by the Corporation under the Act, shall have effect until it has been approved by the Central Government and published in the official gazette. The amendment brought about by the MCD in its regulations, as mentioned above, has not been published in the official gazette. The applicant would not know even whether the same has been approved by the Central Government. There are no pleadings in that regard made in the Application. The binding nature of the memo, in view of the provisions as referred to above, was not gone into by the Honble High Court. The judgments of the High Court are binding upon this Tribunal. There is, however, no discussion and no finding on the issue of law as raised in the present case. It appears that the contention raised by the counsel representing the applicant was not disputed and the order that came to be passed by Honble High Court of Delhi would be either on express or implied concession. During the course of arguments, we have only been shown the said memorandum issued by DOP&T, which is for amending rule 10 of the CCS (CCA) Rules, 1965. There are no pleadings to show that this memorandum was accepted by MCD. Even during the course of arguments also, we have not been told or shown that the Corporation has accepted it. What, however, appears is that the Corporation took steps to amend its regulations pertaining to suspension to bring the same in tune with the memorandum referred to above, but as mentioned above, unless these amended regulations are notified, they will have no effect. Learned counsel has also relied upon another judgment of the High Court of Delhi in N. K. Sethi v India Trade Promotion Organization [2005 III AD (Delhi) 450]. The employer in the case aforesaid was India Trade Promotion Organization (ITPO). The case of the employee was that his suspension was in violation of notification dated23.12.2003 issued by DOP&T and the CCS (CCA) Rules, 1965. The employer had not carried periodical reviews of suspension of the employee and, therefore, the order of suspension could not be extended. It was urged on behalf of the employer that the power to suspend is an inherent power and the employer had its own discipline rules known as ITPO Employees (Conduct, Discipline and Appeal) Rules. The power to suspend is provided in rule 22 of the said Rules, which would not provide for periodical reviews. It was thus urged that the CCS (CCA) Rules would not apply to the respondent since it had its own rules. No amendment had been incorporated in the rules made by the employer. The contention raised by the employer was repelled on the ground that even though, ITPO had its own conduct rules and it had an element of autonomy in its administration, yet there was no denying that ITPO being a Government undertaking comes under the jurisdiction of CVC and directions issued by DOP&T which are made applicable to all Government departments, ministries and undertakings, would also be applicable to ITPO. Rule 39 of the ITPO Rules reads as follows:
39. Notwithstanding anything contained in these rules, the Central Vigilance Commission shall exercise jurisdiction over the employees of the Authority and the vigilance and anti-corruption rules/instructions, orders and clarifications on any corresponding rules, issued by the Central Vigilance Commission and the Government from time to time shall be applicable to the employees of the Authority. Once, rule 39 required that the rules/instructions, orders and clarifications issued by the Central Vigilance Commission and the Government from time to time would be applicable to the employees of ITPO, it was held that the memorandum pressed by the employee would also be applicable. We have already mentioned above that there is no rule, regulation or even an order which might have been shown to us which may state that any rule made by the Central Government would mutatis mutandis apply to the employees of the Corporation as well.
21. Review of suspension may or may not be provided under rules, but in view of the settled position in law that suspension has got adverse implication as it has serious demoralizing effect on a civil servant, as he is looked with contempt amongst his co-employees and also in society, prolonged suspension without any justifiable cause has been held to be illegal. Reviews have to be carried out from time to time, particularly when the fact situation may change. It is also settled proposition of law that suspension is not an order imposing punishment on a person found to be guilty. It is an order made against him before he is found guilty to ensure smooth disposal of the proceedings initiated against him, and such proceedings should be completed expeditiously in the public interest and also in the interest of the government servant concerned. Reference in this connection be made to the decision of the Honble Supreme Court in P. L. Shah v Union of India [1967 CriLJ 1390].
22. In view of the discussion as made above, it may not be possible to annul all orders of review carried out from time to time, as mentioned above, as the reviews were not carried within the stipulated time. However, once the respondents are themselves carrying out the reviews, the court or tribunal would be well within its jurisdiction to examine as to whether there were valid grounds in existence and taken while carrying out the review of suspension of an employee, and the reasons may or may not be sufficient, or may not show any justification for continuance of suspension, the orders can be set at naught. We do not find any merit in the contention of the learned counsel for the respondents that the applicant has not specifically challenged the orders of review of suspension, and, therefore, this Tribunal may not set aside the same. It may be recalled that it is the case of the applicant that no reviews were ever carried out, and once the respondents may show that they had indeed carried out reviews of suspension of the applicant, it would be for them to show that continuance of suspension by way of review was justified.
23. Before we may part with this order, we may mention that the counsel for the applicant had vehemently contended that the applicant is a victim of frame-up; that he has a spotless, unblemished service record; that all his ACRs are outstanding and he had been an asset to every institution where he worked; and that his victimization is only because of jealousy entertained by his own colleagues, and there is no truth whatsoever in any of the allegations made against him. It would not be possible for us to return a finding on these issues. We may, however, mention that the applicant was suspended on 17.1.2008. No subsistence allowance was ever paid to him. Even though, while carrying out the third review, the respondents said that the applicant would be entitled to enhanced subsistence allowance, but it is admitted position that no subsistence allowance was ever paid to the applicant, be it 50% of 75%. When this matter came up before us on 9.4.2010, we recorded the following order:
There will be no time for the Tribunal to transact this case today. List again on 6.05.2010.
We are, however, informed by the counsel for applicant that applicant has been under suspension from January 2008. He has not been paid subsistence allowance. Ms. Madhu Tewatia, counsel for respondents states that applicant had to complete formalities like giving certificate that he is not gainfully employed anywhere, which he has not given. Counsel for applicant informs that applicant has given a certificate on 11.01.2010. Respondents will verify the same and if the applicant has actually given the certificate, as mentioned above, he shall forthwith be paid the subsistence allowance. It appears that the subsistence allowance came to be paid to the applicant only on intervention of the Tribunal. We may also mention that this fact has been specifically recorded by the three-member committee as well. The committee noticed that contrary to all the rules and regulations on the subject, the applicant was not being paid any subsistence allowance since he was placed under suspension in 2008, because of which he was reduced to very dire financial circumstances. The committee, as mentioned above, was also of the view that the applicant is being harassed. We leave the matter at that.
24. In view of the discussion as made above, the OA as regards suspension of the applicant is allowed to the extent that the orders dated 8.12.2008 and 24.11.2009 carrying out the second and third reviews of suspension of the applicant are set aside. The applicant shall be deemed to be in service from 7.12.2008, i.e., immediately the day before the second review was carried out. He shall be entitled to full wages from that period till date. If not made over, the applicant shall be paid subsistence allowance as per rules right from the date of suspension up to the date he remained under suspension, i.e., up to 7.12.2008. It will, however, be open for the respondents to hold a regular departmental enquiry against the applicant and consider placing him under suspension, if the facts and circumstances may so justify. It would also be open for the respondents to place the applicant under suspension in view of his involvement in the second criminal case, as mentioned above, but once again, on application of mind, after taking into consideration the entire material, including the material which may be in favour of the applicant. Costs of the litigation are made easy.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/