Central Administrative Tribunal - Jabalpur
L.K.Dwivedi vs State Of Madhya Pradesh on 22 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL,JABALPUR BENCH Circuit Sitting: Gwalior ORIGINAL APPLICATION NO.936 OF 2010 Jabalpur, this the 22nd day of March, 2011 HONBLE MR. MANORANJAN MOHANTY, VICE CHAIRMAN HONBLE MR.HRIDAY NARAIN, ADMINISTRATIVE MEMBER L.K.Dwivedi, S/o Late Devisharan Dwivedi, Aged about 54 years, I.A.S., Secretary, Board of Secondary Education, Bhopal (under suspension) R/o H.No.E-12, Prashasanik Academy Campus, Bhopal-462001 (M.P.) - Applicant (By Advocate Shri A.S.Raizada) V e r s u s 1. State of Madhya Pradesh, Through Chief Secretary, Vallabh Bhawan, Bhopal-462004 (M.P.) 2. Union of India, Through Secretary, Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, North Block, New Delhi-110 001 - Respondents (By Advocate Shri R.S.Siddiqui for Respondent-UOI & Shri Shashank Shekhar for Respondent-Govt of MP) O R D E R
By Hriday Narain, AM.-
Applicant, a promotee member of Indian Administrative Service, was placed under suspension by order dated 29.07.2010 of the General Administration Department of Government of Madhya Pradesh under Annexure A-1. Sanction to prosecute him in a criminal court was accorded by the State Government on 03.04.2010. He represented to the Chief Secretary to Government of Madhya Pradesh on 02.08.2010 under Annexure A-2. Additional Secretary to Government of India in the Ministry of Personnel, Public Grievances & Pensions (DOPT), vide his D.O. letter under Annexure A/3 dated 01/03.09.2010, informed the Chief Secretary to Government of Madhya Pradesh that (for the reason of MOPPG&P/DOPT Office Memo under Annexure A/4 dated 27.10.1999) sanction for prosecution under the Prevention of Corruption Act,1947 was required (in respect of the Applicant) from Government of India and, therefore, it was instructed, to follow the procedure prescribed in the GOI/OM dated 27.10.1999. In the meantime, vide order under Annexure A/5 dated 26.10.2010 of the Government of Madhya Pradesh, the period of suspension of the Applicant was extended for 180 days w.e.f. 27.10.2010. Thereafter, the Applicant submitted a representation (under Annexure A/6) to the Secretary to the Government of Madhya Pradesh in General Administration Department with prayer to revoke the order of suspension. By way of filing (on 18.11.2010) this Original Application under Section 19 of the Administrative Tribunals Act, 1985, the Applicant has prayed as under:-
8.A To quash the suspension order and the order of extending suspension.
B. To grant all consequential benefits.
C. To call for the entire record pertaining to Petitioners initial suspension and extension of suspension.
D. To pass any other writ/writs order/orders, direction/directions which the Honble Tribunal feels just and proper in the facts and circumstances of the case.
2. By way of filing a Preliminary Objection on 16.12.2010 and a Written Reply on 12.01.2011 on behalf of the Respondent-State Government of Madhya Pradesh, it has been pointed out that in exercise of the powers vested under Section 19(2) of the Prevention of Corruption Act, 1947, the State Government of Madhya Pradesh (who was the competent authority to grant sanction for prosecution, in respect of the Applicant, at the time of commission of offence alleged against the Applicant in the Criminal Case) rightly accorded sanction for prosecution against the Applicant and that the executive instruction under Annexure A/4 dated 27.10.1999 can not be allowed to supersede the statutory provisions in the Prevention of Corruption Act,1947 and that the Applicant has been placed under suspension in exercise of the discretionary powers vested under Rule 3(3) of the All India Services (Discipline & Appeal) Rules,1969.
3. Applicants side has placed on record (on 28.02.2011) a copy of his Appeal (preferred by him on 11.02.2011) addressed to the Secretary to the Ministry of Human Resources Development, Department of Personnel, Training and Public Grievances, New Delhi, stated to be directed against the order of suspension dated 29.07.2010 and the Order (extending suspension) dated 26.10.2010. It has been stated in the application (MA No.223/2011) filed on 28.02.2011 (without due verification/supporting affidavit) that Appeal of the Applicant has not been decided. The said Appeal was addressed to the Secretary to the Government of India in the Ministry of Human Resource Development; although it should have been addressed to the Ministry of Personnel, Public Grievances and Pension. As it appears, there is no Department of Personnel Training & Public Grievances in the Ministry of Human Resource Development. Thus, as it appears, the Applicant addressed his Appeal (dated 11.02.2011) to a wrong authority.
4. We have heard Mr.A.S.Raizada, learned counsel for the Applicant and Mr.Shashank Shekhar, learned counsel for the Respondent-State Government of Madhya Pradesh. It is the stand of the Applicant (as argued by his counsel) that sanction order having not been accorded (for criminal prosecution) by a competent authority, the suspension was bad.
5. Whether, a sanction order is valid or not can be examined by the competent criminal court (even during the trial) from various angle. For example, apart from the point of jurisdiction/ competency of the Authority of granting sanction, the order (of sanction) can also be examined from the angle of application or non-application of mind etc. etc. Entering into all these aspects by this Tribunal (at this stage) apart from a doubtful proposition (about the jurisdiction of this Tribunal) would amount to prejudging the issue. That is why we are leaving the matter to be examined by the competent criminal court. In the event it would be found out by the competent criminal court that the sanction was bad, then the criminal trial may abate/Applicant can get relief.
6. A Criminal Case has already been set to motion against the Applicant and, as it appears, a charge-sheet against him has already been filed in the Criminal Court with a sanction order. Under the law {(Rule 3(3) of AIS (D&A) Rules} an All India Service Officer can be placed under suspension during pendency of an enquiry/investigation/trial of a criminal case. In the present case a criminal case has not only been set to motion, a charge-sheet has already been filed against him, obviously, after finding a prima-facie case against him. In the said premises, the Applicant has been placed under suspension in exercise of the discretion vested under the Rules referred to.
7. On perusal of the materials produced from the Government file of State Government of Madhya Pradesh, we found that a decision was taken, at the stage of granting sanction/filing of charge-sheet in the Criminal Court, to place the Applicant under suspension. It is also seen that the Review Committee did not recommend to extend the suspension. Yet, the Chief Minister, in exercise of his discretion, decided to extend the suspension.
8. At this stage it has been argued on behalf of the Applicant that at the time of suspension, the Applicant was placed/posted in a different office (un-connected, even remotely, with the post in which he committed the alleged offence) and by that time enquiry & investigation (in the criminal case) was all over and that, unless it is shown that the Applicant is likely to tamper with the evidence or influence the witnesses to be examined in the criminal trial, no order of suspension should have been passed. It has been argued further that, for the same reason, the period of suspension ought not to have been extended.
9. We have carefully considered the arguments raised by the parties and have gone through the materials available on record.
10. Suspension is undoubtedly not a punishment, but it does imply great inconvenience and disadvantage to a Government servant. Therefore, the Applicants anxiety in filing the present OA and also in sending a representation to the Government of Madhya Pradesh and in sending an appeal to the Ministry of Human Resources Development, Department of Personnel & Training and Public Grievances, New Delhi can be well understood. However, a Court is not to be carried away by sentiments or emotions. It has to strictly go by the law. Section 20 of the Administrative Tribunals Act, 1985 clearly lays down that it shall not ordinarily admit an application unless it is satisfied that the Applicant had availed all the remedies available to him under the relevant service rules as to the redressal of grievances. No extra-ordinary situation has been proved before us to entitle us to travel away from the ordinary and common stipulation of law enshrined in Section 20 of the Administrative Tribunals Act,1985. Rule 16 of the All India Services (Discipline & Appeal) Rules, 1969 clearly provided for an appeal to the Central Government against an order of suspension. In the present case the appeal lay to the Secretary, Department of Personnel & Training, Government of India, New Delhi. Obviously, the Applicant did not avail of this remedy and has approached this Tribunal. The one appeal which the Applicant has filed is addressed to a wrong/non-existent appellate authority. In order not to prejudice to the Appellate Authority/ to any side, we are not expressing any opinion on the various submissions made by the Applicant before us or on the submissions made by the counsel for the State of Madhya Pradesh. We grant liberty to the Applicant to file a comprehensive appeal as per the rules prescribed {specifically Rule 18 of All India Services (Discipline & Appeal) Rules, 1969} addressed to the Secretary, Department of Personnel & Training, Government of India, New Delhi within 10 days from the receipt of this order. We also direct that in case such an appeal is filed by the Applicant, the State of Madhya Pradesh should forward the same with its comments to the Appellate Authority within 15 days of the receipt of the Appeal. The Appellate Authority on receipt of such an appeal of the Applicant and on receipt of the comments from the State of Madhya Pradesh shall entertain such an appeal on merits and shall not reject the same on the ground of limitation. The Appellate Authority shall decide the appeal of the Applicant as per rules within a further period of 30 days from the receipt of the appeal of the Applicant. The Appellate Authority thereafter shall communicate its decision to the Applicant as well as to the State of Madhya Pradesh as per the prescribed procedure. The OA is thus disposed of with the above directions, with no order as to costs.
11. Send copies of this order to the Applicant and to all the Respondents. Free copies of this order be supplied to the learned counsel appearing for the parties.
(Hriday Narain) (Manoranjan Mohanty) Administrative Member Vice Chairman rkv