Central Administrative Tribunal - Hyderabad
D S Murthy vs M/O Defence on 19 July, 2021
OA No.1403/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
OA/021/01403/2015
HYDERABAD, this the 19th day of July, 2021
Hon'ble Mr. Ashish Kalia, Judl. Member
Hon'ble Mr. B.V. Sudhakar, Admn. Member
D.S.Murthy S/o Sri DRK Prasad, aged 46 yrs,
Administrative Officer-I, HQrs, Eastern Naval Command,
Visakhapatnam, R/o Flat No.304, Kailash Enclave,
HPCL, Visakhapatnam 22. ...Applicant
(By Advocate :Dr.P.B.Vijay Kumar)
Vs.
1.Union of India, rep., by its Secretary, Ministry of Defence,
Sena Bhavan, New Delhi.
2. The Chief of Personal, Integrated Hqrs-Min of Defence (Navy),
C.Wing, Sena Bhavan, New Delhi.
3.The Flag Officer Commanding-in-Chief,
Hqrs Eastern Naval Command, Visakhapatnam 530 014.
....Respondents
(By Advocate : Mr.A.Surender Reddy, Addl. CGSC)
---
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OA No.1403/2015
ORAL ORDER
(As per Hon'ble Mr.B.V.Sudhakar, Administrative Member) Through Video Conferencing:
2. The OA is filed in regard to revocation of suspension of the applicant from 2010.
3. Brief facts are that the applicant while working as Staff Officer was suspended for alleged leakage of question paper vide memo 29.10.2010 after CBI took him into custody for the alleged offense and detained for more than 48 hours. Suspension of the applicant was revoked on 15.2.2011 and in the same order, it was mentioned that the applicant was involved in another CBI case and hence, the suspension was continued w.e.f. 16.2.2011. Applicant submitted an appeal on 20.6.2011 to revoke the suspension and when it was rejected, OA 1186 of 2011 was filed wherein it was directed to enhance the subsistence allowance to 75% and pay the difference of subsistence allowance due. Respondents challenged the Tribunal order before the Hon'ble High Court in WP No. 15379/2013, which is said to be pending adjudication. Aggrieved over the continued suspension, the OA is filed.
4. The contentions of the applicant are that he is in no way connected to the leakage of question paper. A tender was awarded to M/s. Athava Consultancy and Allied Services, to print the question paper secretly and supply as per tender terms and conditions. Suspension was extended without increasing the suspension allowance on the ground that CBI has not filed the charge sheet. Suspension can be revoked and applicant can be posted anywhere in the organization. Sri R.S.Saini, who was co-accused Page 2 of 9 OA No.1403/2015 has been reinstated and applicant was discriminated. CCS (CCA) Rules 1965 have been violated and the law on the subject as laid down by the Hon'ble Apex Court in O.P. Gupta v Union of India, AIR 1987 SC 2257 has been infringed.
5. Respondents in the reply statement state that the applicant while working as staff officer applied for Casual leave to go over to his native place Vijayawada but went to Mumbai where he was arrested by the CBI on 26.9.2010 for alleged leakage of question paper pertaining to the exam held for the post of LDC by the Western Naval Command. Having been detained for more than 48 hours applicant was kept under deemed suspension from 26.9.2010 vide memo dated 29.10.2010 and the same was extended for a further period of 90 days w.e.f. 25.12.2010. Further, after being granted bail on 30.11.2010, deemed suspension of the applicant was revoked and he was placed under regular suspension w.e.f. 16.02.20211 vide order dt.15.02.2011 (Annexure R-1). Charge sheet has been filed by the CBI on 25.1.2012 in the competent court at Mumbai. Further CBI has registered another case under RC 0362010A on 21.12.2010 in regard to civilian recruitment undertaken by the Eastern Naval Command during the period 2008-2010. Concurrently, major penalty disciplinary proceedings were issued on 23.8.2010 under Rule 14 of CCS (CCA) Rules, 1965 with reference to the Mumbai case. Suspension has been continued by the review committee periodically, since criminal case, disciplinary proceedings and CBI investigations in regard to Eastern Naval Command are under progress. The decision of the Tribunal in OA 1186/2011 with respect to subsistence allowance has been challenged in WP 15379/2013 Page 3 of 9 OA No.1403/2015 and pending adjudication applicant is being paid subsistence @ 75% vide order dated 27.07.2012. Reinstatement will impede investigation. Sri R.Saini, Commander Rank Officer is governed by the Navy Act whereas the applicant's case was dealt as per CCS (CCA) Rules 1965.
Applicant filed a rejoinder stating that the applicant did seek casual leave to go over to his native place, but at the last minute changed it to go over to Mumbai for pursuing employment opportunities. Reasons given for not revoking the suspension given in the reply statement were not mentioned in the suspension order. IPC sections apply equally to R.Saini and to the applicant. There has been no application of mind in dealing with the request for revocation of the suspension.
6. Heard both the counsel and perused the pleadings on record. 7 I. The dispute is about non revocation of the suspension of the applicant for being involved in an alleged leakage of question paper and issues relating to civilian recruitment. On culling the facts, it is evident that the applicant while working as Staff Officer was suspended vide memo dated 29.10.2010 after he was arrested by CBI, in regard to alleged leakage of question paper of LDC exam associated with the Western Naval Command. CBI has investigated the case and filed a charge sheet in the competent criminal court at Mumbai on 25.1.2012 in Special Case No.11/2012. Simultaneously, disciplinary proceedings were initiated by issuing Rule 14 charge memo dated 23.8.2012. The suspension of the applicant was revoked on 15.2.2011 and in the same order it was stated that the suspension is extended w.e.f. 16.2.2011 since the applicant was involved in another criminal case registered by the CBI in RC 0362010A Page 4 of 9 OA No.1403/2015 on 21.12.2010 involving civilian recruitment taken up by the Eastern Naval Command. The suspension is being extended by the respondents by claiming that the criminal case, disciplinary case and the CBI investigations in regard to Eastern Naval Command civilian recruitment are under progress.
II. Aggrieved over the continued suspension and payment of subsistence allowance, applicant did approach the Tribunal in OA 1186/2011, wherein, Tribunal granted relief in regard to subsistence allowance, on 26.09.2012 as under:
"4. At this stage, learned counsel for the applicant submits that when the authorities failed to pay subsistence allowance of 75% to the applicant after expiry of three months, this Tribunal has given direction on 26.04.2012 ordering for payment of subsistence allowance at 75% to the applicant. In pursuance of such order, the respondents have paid subsistence allowance at 75% to the applicant with effect from 26.04.2012 and also issued proceedings dated 11.7.2012. The contest of the applicant is that such payment of 75% of subsistence allowance is required to be paid after expiry of 90 days as per FR 53(1), (2) (i).
In view of the above circumstances, the respondents are directed to pay the subsistence allowance immediately after expiry of three months as per FR 53 (1), (2) (i) at 75% as claimed by the applicant, within four weeks from the date of receipt of copy of the said order.
5. With the above direction, the OA is disposed of with no order as to costs."
The order of the Tribunal was challenged in the Hon'ble High Court in WP No.15379/2013 wherein Hon'ble High Court has stayed the order of this Tribunal in OA 1186/2011. Pending final adjudication by the Hon'ble High Court, applicant is being paid subsistence @ 75% from 26.4.2012 vide order dated 27.7.2012 and the applicant is continued to be kept under suspension.
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III. The rules and law are clear in regard to revocation of suspension of Govt. Employees. DOPT has vide memodated 23.8.2016has made it emphatic that if a charge sheet is not issued within 90 days from the date of suspending the employee, then the suspension does not stand valid. The relevant portion is extracted hereunder:
"2. In compliance of the above judgement, it has been decided that where a Government servant: is placed under suspension, the order of suspension should not extend beyond three months, if within this period the charge-sheet is not served to the charged officer. As such, it should be ensured that the charge sheet is issued before expiry of 90 days from the date of suspension. As the suspension will lapse in case this time line is not adhered to, a close watch needs to be kept at all levels to ensure that charge sheets are issued in time.
3. It should also be ensured that disciplinary proceedings are initiated as far as practicable in cases where an investigating agency is seized of the matter or criminal proceedings have been launched. Clarifications in this regard have already been issued vide O.M. No. 11012/6/2007-Estt.A-Ill dated 21.07.2016."
In respect of the case of the applicant, the suspension ordered on 29.10.2010 in connection with the case pertaining to Western Naval Command, was revoked vide memo dated 15.2.2011 and in the same order suspension was ordered to be extended w.e.f. 16.2.2011, on the ground that the CBI is investigating the case concerning the civilian recruitment by the Eastern Naval recruitment for the years 2008-2010. Nearly 10 years have passed and yet the suspension has not been revoked violating the DOPT instruction cited supra. The DOPT order cited was issued based on the order of the Hon'ble Supreme Court in A.K.Chourdary v. Union Of India, through Its Secretary & Anr, on 16 February, 2015, Civil Appeal No. 1912 of 2015 (Arising out of SLP No. 31761 of 2013), wherein it was observed as under:
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"14. We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/ Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges/ Chargesheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us.
Therefore, prolonged suspension of the applicant without issue of a charge sheet, pending CBI investigation in regard to the civilian recruitment related to Eastern Naval Command, for nearly a decade is gross infringement of the law laid down by the Hon'ble Apex Court.
IV. We also observe that charge sheet in the case relating to the Western Naval Command has been filed on 25.1.2012 in the competent Criminal court and simultaneous disciplinary proceedings were initiated in the said case vide memo dated 23.8.2012, whereas in respect of the CBI case with reference to Eastern Naval Command, Ld. Counsel for the Applicant submits that the investigations are not yet over. Respondents contention that the suspension has been extended, by the review committee keeping in view the criminal case, disciplinary proceedings and the ongoing CBI investigation in relation to the civilian recruitment of Eastern Naval Page 7 of 9 OA No.1403/2015 command, is invalid as the same is not in accordance with rules and law referred to above.
V. Further, respondents reinstating the co-accused Sri R.Saini, a commander level officer, in the Western Naval Command case, affirming that he is covered by the Navy Act would not hold good, since provisions of IPC equally apply to all the accused whoever they may be. Therefore, reinstating Sri R.Saini and not the applicant who is similarly placed as far as the Western Naval Command case is concerned, would tantamount to discrimination and such action infringes Article 14 of the Constitution.
VI. Besides, the respondents need to note that the applicant is being paid subsistence allowance @ 75% for years together without allowing him to work by not revoking the suspension. We are of the view that it is superfluous expenditure and the respondents owe a responsibility to curb such expenditure. Moreover, respondents can post the applicant in any non- sensitive post wherever they want by giving specific directions to the concerned for regulating the work of the applicant, as observed in A.K.Choudary judgment cited supra. The judgments cited by the applicant in O.P. Gupta v. Union of India, AIR 1987 SCC 2257 also supports the cause of the applicant. Investigations may take time but action in regard to revocation of suspension has to be in harmony with rules and law. Moreover, it is well settled in law that disciplinary inquiry has to come to a finality within period of 6 months or at the most in a period of one year, as observed by the Hon'ble Apex Court in Prem Nath Bali Vs. Registrar, High Court of Delhi & Anr. in Civil Appeal No. 958/2010 dt. 16.12.2015. In the instant case, not even a charge sheet has been issued in respect of the Page 8 of 9 OA No.1403/2015 case relating to the Eastern Naval command and therefore, what to speak of the inquiry. Hence, it is all the more necessary to revoke the suspension.
VII. Thus, in view of the aforesaid, as the action of the respondents is not in agreement with the rules and law on the subject, we direct the respondents to revoke the suspension within a period of 30 days from the date of receipt of this order, keeping in view the fact that the applicant was kept under suspension for nearly a decade, which is neither in the interest of the respondents organization nor that of the applicant.
VIII. With the above direction, the OA is allowed with no order as to costs.
(B.V.SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
evr
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