Central Administrative Tribunal - Delhi
Ravi Shanker Srivastava vs Union Of India Through on 22 December, 2008
Central Administrative Tribunal Principal Bench OA No.718/2006 With OA No. 2075/2006 New Delhi this the 22nd day of December, 2008 Honble Shri Shanker Raju, Member (J) Honble Dr. R.C.Panda, Member (A) OA No. 718/2006 Ravi Shanker Srivastava, IAS, S/o late Shri S.P. Srivastava, R/o N-9, Gandhi Nagar, Jaipur -Applicant (By Advocate: Shri NN Aggarwal) -V E R S U S- 1. Union of India through The Secretary to Govt., Ministry of Personnel, Public Grievances & Pension, GOI, New Delhi. 2. State of Rajasthan, Chief Secretary, Govt. of Rajasthan, Govt. Secretariat, Jaipur 3. Secretary, Department of Personnel, Govt. of Rajasthan, Govt. Secretariat, Rajasthan, Jaipur -Respondents,. (By Advocate: Shri Amarjeet Sigh Bedi) OA No. 2075/2006 Ravi Shanker Srivastava, IAS, S/o late Shri S.P. Srivastava, R/o N-9, Gandhi Nagar, Jaipur -Applicant. (By Advocate: Shri N.N. Aggarwal) -V E R S U S- 1. Union of India through The Secretary to Govt., Ministry of Personnel, Public Grievances & Pension, GOI, New Delhi. 2. State of Rajasthan, Chief Secretary, Govt. of Rajasthan, Govt. Secretariat, Jaipur -Respondents. (By Advocate: Shri Amarjeet Singh Bedi) O R D E R
Shri Shanker Raju:
As a trite law, suspension not being a punishment does not severe off relationship between master and servant, rather it is a methodology where Govt. servant facing investigation for a criminal offence or a trial and also disciplinary proceeding to ensure that they are not allowed to work on attending office with a view to prevent abuse of their official position and ultimately jeopardizing the proceedings.
2. Suspension resorted to in cases where a Government servant is facing either on registration of a criminal case, investigation or a trial for criminal offence sub judice on grave misconduct is not a rule that he should be reinstated on revocation of suspension but a review to reexamine the circumstances and the decision as to suspension should be continued or not is obligatory on the part of the administrative authorities for which under the statutory rules like All India Service (Discipline and Appeal) Rules, 1969, Rule 3 operates suspension and guidelines for review in the schedule appended to it.
3. It is also trite that a continued suspension irrespective of its duration resorted to on grave charges in criminal proceeding, it is not advisable to put back the Govt. servant especially in corruption charges to bestow, premium to him of his alleged misconduct.
4. It is also trite law as applied to the criminal jurisprudence that mere registration of FIR, which is a prima facie involvement of one in criminal offence is not a proof to hold him guilty of the charge unless it is so decided on culmination of the trial.
5. Applicant, an IAS officer of 1985 batch of Rajasthan cadre while working as Joint Secretary and posted as Member of the Revenue Board involved allegedly in FIR NO. 109 and 110 of 2004 under the Prevention of Corruption Act, 1988. Pending criminal investigation in the case, he was placed under suspension on 12.6.2004. This has been challenged in OA 2622/2005 wherein directions on the basis of DOP&T OM dated 7.1.2004, this Tribunal directed the respondents to reinstate the applicant forthwith with liberty to hold review justifying any other material. When an order passed on 1.3.2006, continued suspension of the applicant for 180 days led to filing of OA NO. 2075/2006 and also assailed in OA No. 718/2006, on the ground that non-application of mind by the Review Committee and also ground of discrimination in non-revocation of suspension of the applicant, OAs were allowed by an order dated 25.4.2007. The aforesaid when assailed in WP(C) No. 4215/2008, an order passed by Honble High Court on 29.5.2008 accorded liberty to the applicant to file review application, which is directed to be considered by the Tribunal on merit and on the ground that other legal grounds have not been raised.
6. An order passed in RA No. 92/2008 on 25.11.2008 allowed the RA and restored the OAs No. 718 and 2075 of 2006 to be proceeded and deliberated on other legal grounds. The various other proceedings have also been filed by the applicant before the Tribunal, including OA No. 391/2008. During this interregnum, in pursuance of an interim direction in OA No. 391/2008, statutory appeal preferred by the applicant under Rule 16 of the All India Service Rules was also turned down on 22.9.2008 and a review undertaken by the respondents of the applicants suspension on 22.7.2008 extended it for further period of 180 days.
7. Learned senior counsel of the applicant, at the outset, fairly contended that the only scope in the remanded OAs is to raise legal grounds, which have not been adjudicated. As such, the ground of non-filing of the chargesheet within one year and revocation of suspension thereof as well as non-consideration of the dicta of the Tribunal in OA No. 2622/2005 having already been dealt with, need no deliberation. However, it is stated that as per Rule 3 of All India Service, a Member of Service against whom an investigation or trial relating to criminal charge is pending, may at the discretion of the Government to place under suspension and it would be till the termination of all the proceedings relating to the charge, if it is connected with the official position and likely to embarrass him in the discharge of his duties or involved in moral turpitude.
8. Learned counsel contends that though Rule 3(7) of the Rules, the order of suspension shall continue to remain in force until it is modified and Rule 3 (8) (a) of the Rules makes validity of suspension order for first 90 days and at best for a total period of 180 days with a mandate to review the suspension by the competent authority on recommendation of review committee that the procedure as per Rule 3 (8) (c) has been laid down under schedule attached to the rules.
9. In the above backdrop, it is stated that even if, there is serious criminal charge against a Member of Service allegedly, yet it is obligated upon the respondents to review the suspension for which the functions of the review committee to the cases of the Officers as per Clause (ii) of the Schedule to the Rule to determine whether they have sufficient grounds for continuation of suspension and while stating the parameters, as procedure laid down under Clause (iii) of the schedule, it is stated that in the matter of continued suspension, it is the duty of the review committee to look into the progress of investigation by seeking relevant information from the authorities and on examination of the case, the consideration of tempering with evidence and influencing the investigation are to be deliberated, reasons and recommendations should also be forwarded to the competent authority. Accordingly, it is stated that the order passed by the respondents on 20.8.2006 in OA NO. 2075/2006 has not considered the above aspect of the matter and merely on the basis of the nature and gravity of the charge, the suspension was continued. Likewise in OA No.718/2006, while challenging the order passed on 1.3.2006, it is stated that the only consideration is that no new facts have come to the notice of the authorities, and the nature of the charges and gravity persuaded the respondents to continue suspension for 180 days.
10. Learned counsel has taken an another second plea by stating that whereas in OA 718/2006 in the rejoinder, applicant has taken plea of invidious discrimination as number of Officers, including Smt. Neera Yadav, IAS, UP Cadre, Mr. Udai Narain, Commissioner, Customs and Excise and Sh. Subhash Sharma, IAS 1970 batch, UP Cadre against whom FIRs have been lodged under Prevention of Corruption Act by the CBI, they all have been reinstated back. Learned counsel has also raised invidious discrimination by citing example of Shri Ashutosh Bhargava, who was placed under suspension by the Government of Rajasthan and his suspension has been revoked and he was reinstated on 22.6.2006. It is also stated that IPS Officers of Rajasthan Cadre, similarly circumstanced, have also been reinstated back in service. In this regard, Articles 14 and 16 of the Constitution of India is stated to have been violated.
11. Lastly, it is stated that the review committee has not applied its mind while undertaking the review of continued suspension and on ipse dixit, mechanically extended the same without adherence to the guidelines and the rules.
12. On the other hand, respondents counsel opposed the contentions and by relying upon the decision of the Apex Court in Union of India & Ors. Vs. Udai Narain, (1998) 5 SCC 535, it is stated that in case of continued suspension on account of involvement in grave criminal charge of accepting bribe, suspension cannot be revoked.
13. Learned counsel would also contend that an appeal preferred by the applicant under Rule 16 of the Rules since been rejected complying with the interim direction in OA No. 996/2007, the ground of discrimination has also been considered. It is also stated that though the orders on review to continue suspension of the applicant by 180 days is non-speaking, yet the reasons have been recorded in the file.
14. Learned counsel states that in case of Sh. Ashutosh Bhargava, who has challenged the proceedings before the High Court on prayer of quashing the FIRs. In pursuance of stay of proceedings, the circular issued by Rajasthan Government on 3.6.2006 where FIR was challenged as well as one has to be put back in service on reinstatement subject to outcome of the criminal proceedings.
15. We have carefully considered the rival contentions of the parties and perused the material on record.
16. The Apex Court in All India Service case of K.Sukdhendar Reddy Vs. State of A.P. & Anr., ATJ 2000 (1) SC 734 while dealing with Rule 3(3) of the All India Service Rules, regarding suspension observed as under:-
7. Another vital fact which has come on record is that in the criminal case a number of Senior IAS Officers, even senior to the applicant, may be found involved, but nothing positive or definite can be said as yet the investigation is likely to take time. The matter is pending which the police since 1.12.1996 when the FIR was lodged at Anakapalli Town Police Station. The investigation has not been completed although about two and a half years have passed. We do not know how long it will take to complete the investigation. That being so, the officer of the rank of the appellant, against whom it has now come out that the disciplinary proceedings are not contemplated, cannot be kept under suspension for an indefinite period, particularly in a situation where many more senior officers may ultimately be found involved, but the appellant alone has been placed under suspension. The Government cannot be permitted to resort to selective suspension. It cannot be permitted to place an officer under suspension just to exhibit and feign that action against the officers, irrespective of their high status in the service hierarchy, would be taken. If one has regard to the above, selective suspension is an antithesis to principle of equality.
17. Moreover, in J.S. Goel Vs. Union of India & Ors., 1997-2001 ATFBJ 245, Full Bench of the Tribunal while answering a reference on continued suspension in criminal case under Rule 10 (1) CCS (CCA) Rules, observed as under:-
Thus as regards the second question of law referred to us we notice that Rule 10 (1) CCS (CCA) Rules provides a measure of discretion tot eh Disciplinary Authority in deciding whether or not in certain situations to suspend a Govt. servant accused of misconduct. These Rules have the protection of Article 309 of the Constitution and cannot under any circumstances be stated to be arbitrary. The manner in which the discretion is to be exercised is further clarified in th guiding principles issued by respondents from time to time. Those guiding principles supplement Rule 10 CCS (CCA) Rules and do not supplant or run counter to those rules. They strike a proper balance between the public interest and the private rights of individual Govt. servants. For the reasons they are eminently reasonable, and are not arbitrary, whimsical, or capricious. Respondents in issuing the impugned order dated 22.8.1997 after due consideration of the Tribunals judgment dated 31.7.1997 in OA No. 1449/1997 have acted in consonance with Rule 10(1)(b) CCS (CCA) Rules and the accompanying guiding principles referred to above, and for that reason their action can neither be termed as arbitrary nor tainted with malafide.
18. The aforesaid dicta mutatis mutandis applies in case of All India Service Rules where apart from provision in Rule 3, the guidelines in schedule appended to Rule 3 (6) ibid, mandates consideration in review of revocation of suspension on several factors and parameters, the respondents cannot be influenced merely on the basis of offence alleged against the Member of Service.
19. We find that the review committee, from time to time, and recently on 22.7.2008 extended the suspension of the applicant but right from 1.3.2006 till the latest review. The only consideration, which is apparent on the face of record is the gravity of offence alleged against the applicant. It may be true that reasons may be recorded in the file but when in the matter of suspension, there is no dispensation of recording reasons under the All India Service Rules in the matter of passing a review order where the review committee with reasons has to submit its reasons to the competent authority, non-recording of reasons by the competent authority when it acts either as an administrative authority or as a quasi judicial authority is obligated. When the requirement of recording reasons is not dispensed with, the order passed in the review must contain reasons. The Apex Court in a Constitution Bench in S.N. Mukherjee Vs. Union of India & Ors., 1990 (4) SCC 594 laid down the proposition that an administrative authority when acts has to pass a reasoned order.
20. Discrimination of similarly circumstanced is an antithesis to principle of equality. One Shri Ashutosh Bhargava and other IPS Officers of Rajasthan Cadre against whom criminal proceedings were held on corruption charges have been put back in service on reinstatement.
21. In case of one Shri Bhargava, the justification by the respondents is that as he has challenged the criminal proceedings by challenging the FIR on merit, stay of trial has necessitated reinstatement of the concerned on revocation of suspension. We do not subscribe to this justification of the respondents, as the circular issued by the Rajasthan Government on 3.6.2006 envisages reinstatement of such Members of Service, who have challenged their sanction for prosecution and the trial has been stayed.
22. In the light of above, applicant who has approached the Rajasthan High Court in SB Criminal Petition No. 66/2007, an order passed on 9.4.2007 takes cognizance of the fact that while acting as Member of Revenue Board, the applicant either exercised power of judiciary or acted as a quasi judicial authority, in the light of the decision in UP Judicial Officers Association Vs. Union of India & Ors., 1994 (4) SCC 687 and in such an event, the representation preferred by the applicant against the impugned order dated 7.9.2006 whereby cognizance of the offence was taken by a Special Judge, respondents i.e. DOP&T, Central Govt. of India, been directed to dispose of the representation. Till then, trial has been stayed.
23. On logical reading of the aforesaid, the case of the applicant where he has challenged the sanction for prosecution and as representation was to be considered and the trial has been stayed, we find on record that no such order has been passed by the Government, yet it brings the applicant within the ambit of circular dated 3.6.2006. Non-consideration of reinstatement of the applicant irrespective of the nature of the charges, is a differential treatment without any reasonable basis meted out to the applicant, which cannot be countenanced.
24. Though multiplicity of litigation by the applicant has led to utter confusion, as on the drop of hat, the orders passed by the respondents are being challenged in various proceedings, yet we are concerned about the two proceedings in this OAs, which on remand by the High Court of Delhi, are to be disposed of.
25. Resultantly, for the foregoing reasons, OAs are disposed of with a direction to the respondents to reconsider the claim of the applicant for revocation of suspension strictly in accordance with Rule 3 (8) of All India Service Rules and also the schedule appended to it. The invidious discrimination meted out to the applicant vis-`-vis Sh. Ashutosh Bhargava and others All India Service Officers shall also be considered. The aforesaid exercise would culminate into a speaking order to be passed within three months from the date of receipt of a copy of this order. No costs.
Let a copy of this order be kept in each file.
(Dr. R.C. Panda) (Shanker Raju) Member (A) Member (J) lg/