Central Administrative Tribunal - Chandigarh
Sanjay Pandey vs Central Ground Water Board on 27 October, 2020
-1- O.A. No.060/01288/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Hearing by Video Conferencing
O.A. No.060/01288/2019
Chandigarh, this the 27th day of October, 2020
(Order reserved on18.09.2020)
HON'BLE MR. SANJEEV KAUSHIK, MEMBER (J)
HON'BLE MS. AJANTA DAYALAN, MEMBER (A)
Sanjay Pandey (age 47 years) son of Late Sh. Ramayan
Pandey, Assistant Hydrogeologist (Scientist-B) Office of
Regional Director, Central Ground Water Board, Madhya
Marg, Sector 27-A, Chandigarh-160019, resident of # 25 B,
Central Government Residential Complex, Sector 38-A,
Chandigarh-160036 (Group B)
....Applicant
(BY: Mr. Dhiraj Chawla, Advocate)
Versus
1. Union of India through Secretary, Ministry of Water
Resources, RD & GR, Shram Shakti Bhawan, Rafi Marg,
New Delhi - 110001.
2. Central Ground Water Board, NH-IV, Bhujal Bhawan,
Faridabad, Haryana through its Chairman-121001.
... .Respondents
(BY: Mr. B.B. Sharma, Advocate)
ORDER
SANJEEV KAUSHIK, MEMBER (J):
1. Applicant Sanjay Pandey, Assistant Hydrogeologist (Scientist-B) has approached this Tribunal by filing the present O.A. under Section 19 of Administrative Tribunals Act, 1985, seeking issuance of a direction to Respondent
-2- O.A. No.060/01288/2019 No. 2 to reinstate him in service from the date the initial period of 90 days expired, with 100% of the subsistence allowance, and to release the arrears thereof, subject to the outcome of the criminal trial.
2. The facts of the case which led to the filing of the present O.A. are that the applicant was appointed as Assistant Hydrogeologist (Scientist-B) by way of direct recruitment through UPSC and joined as such on 01.01.2004. While the applicant was posted at Chandigarh, an FIR No. RCCHG2017A0020 dated 10.10.2017 under Sections 7, 12, 13 (2) read with 13 (1)(d) of P.C. Act 1988 read with Section 120-B IPC was registered against him and three other persons, on the allegations that he along with one Chander Parkash Midha, Technician at Institute of Microbial Technology, CSIR, Sector 39 A Chandigarh entered into a criminal conspiracy for taking illegal gratification of Rs.1.5 to 2.0 lacs from private parties. Applicant was arrested on 11.10.2017 and was sent to the judicial custody. He was bailed out on 22.12.2017, as per order dated 22.12.2017 of the Hon‟ble High Court in CRM- M-46989 of 2017. Before that the respondents passed order dated 16.11.2017 placing the applicant under deemed suspension w.e.f. 10.10.2017. Respondents did not carry out review of suspension period, after expiry of
-3- O.A. No.060/01288/2019 period of 90 days, as contemplated under Rule 10(6) of Central Civil Services (CCA) Rules, 1965. Therefore, he claims that the action of the respondents in not reviewing the suspension of the applicant and keeping him under continuous suspension beyond a period of 90 days is illegal, against the rules and is liable to be quashed. It is, therefore, prayed that the respondents be directed to reinstate the applicant into service from the date the initial period of 90 days of suspension had expired and 100% subsistence allowance be also paid to him along with arrears thereof.
3. On notice, the respondents have filed written statement, admitting therein the factual accuracy of the case. However, they submit that vide order dated 17.12.2019, for the first time, the case of the applicant was considered for review of suspension w.e.f. 19.11.2019. It is also submitted therein that the order dated 17.12.2019 is not under challenge in the present O.A. and therefore, it is liable to be dismissed on this ground alone.
Subsequently, the case of the applicant has also been considered by the Review Committee and vide order dated 19.02.2020, the suspension period of the applicant was extended and then again vide order dated 22.05.2020 it was extended for a further period of another 90 days. On
-4- O.A. No.060/01288/2019 merit, it is submitted that no charges have been framed against the applicant in the criminal case which is pending before the CBI Court Chandigarh, and that no charge- sheet in departmental case has been issued to him.
4. We have heard learned counsel for the parties.
5. Mr. Dhiraj Chawla, learned counsel for the applicant, vehemently argued that continuous suspension of the applicant beyond initial period of 90 days starting from 10.10.2017 is illegal, arbitrary and be declared as such by this Court. He argues that the subsequent orders placing the applicant under suspension are also against the provisions of CCS (CCA) Rules, 1965 and therefore, be quashed and set aside. He argued that since no review committee was constituted by the department to review the suspension of the applicant after a period of 90 days as per the Rules of 1965, despite repeated representations from the applicant, therefore the action of the respondents in keeping the applicant under continuous suspension and then after lapse of two years extending the suspension period vide order dated 17.12.2019 and 19.02.2020 is arbitrary and illegal. He prayed that a direction be issued to the respondents to reinstate the applicant in service with effect from the date the initial period of 90 days expired, with all consequential benefits.
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6. To buttress his plea, learned counsel for the applicant has placed reliance upon judgments of the Hon‟ble Supreme Court in the cases of Union of India and Others Vs. Dipak Mali, 2010 (2) SCC 222 and Ajay Kumar Choudhary Vs. Union of India through its Secretary (2015) 7 SCC 291.
7. Per contra, Mr. B.B. Sharma, learned counsel for the respondents, reiterated what has been stated in the written statement. He, however, admitted this fact that the case of the applicant for review of suspension was, for the first time, considered on 17.12.2019 and he was placed under suspension w.e.f. 19.11.2019 (Annexure R-
3). Respondents also placed reliance upon a judgment of the Hon‟ble Supreme Court in the case of P.V. Srinivasa Sastry Vs. Comptroller & Auditor General of India, (1993) 1 SCC 19, holding that the Court will refrain from judicial review in the matter of suspension. Reliance has also been placed upon another judgment of the Hon‟ble Supreme Court in the case of Allahabad Bank and Another Vs. Deepak Kumar Bhola, (1997) 4 SCC 157.
8. We have given our thoughtful consideration to the entire matter.
9. Admittedly, an FIR was registered against the applicant on 10.10.2017 and he was arrested on 11.10.2017. Vide
-6- O.A. No.060/01288/2019 order dated 16.11.2017, the applicant was placed under deemed suspension w.e.f. 10.10.2017. Though the applicant was bailed out vide order dated 27.12.2017, the applicant was kept continuously under suspension since 10.10.2017, without carrying out any review of suspension as mandatorily required under the CCS (CCA) Rules, 1965.
10. Now the short question that arises for our consideration is as to whether continuous suspension, which was not reviewed and extended after a period of 90 days, as contemplated under Rule 10(6) of CCS (CCA) Rules, 1965 is legal or not.
11. For better appreciation of the controversy, Rule 10 in Chapter IV of Rules, 1965 which deals with suspension is reproduced hereunder:-
"10. SUSPENSION:
(1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension-
(a) where a disciplinary proceeding against him is contemplated or is pending; or (aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or
(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:
Provided that, except in case of an order of suspension made by the Comptroller and Auditor - General in regard to a member of the Indian Audit and Accounts Service and in regard to an Assistant Accountant General or equivalent (other than a regular member of the Indian Audit and Accounts Service), where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made.
-7- O.A. No.060/01288/2019 (2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority -
(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;
(b) with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.
EXPLANATION - The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.
(3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders:
Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.
"(5)(a) Subject to the provisions contained in sub-rule (7), an order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so."
(b) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension until the termination of all or any of such proceedings.
(c) An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.
(6) 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 effective date 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.
-8- O.A. No.060/01288/2019 (7) An order of suspension made or deemed to have been made under sub-rules (1) or (2) 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:
Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2), if the Government servant continues to be under suspension at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later."
12. The present controversy hinges around Rule 10(6) and 10 (7) ibid. Rule 10(6) says that the order of suspension made or deemed to have been made under this Rule shall be reviewed by the authority which is competent to modify or revoke the suspension, before expiry of 90 days from the date of suspension, on the recommendations of the Review Committee constituted for the purpose and pass order either extending or revoking 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. Sub Rule 7 of Rule 10 stipulates that an order of suspension made or deemed to have been made under sub-rules (1) or (2) 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. Thus, it becomes clear that initial order of suspension or deemed suspension for a period of 90 days has to be reviewed before expiry of 90 days.
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13. The aforesaid rule came up for consideration before the Hon‟ble Supreme Court in the case of Dipak Mali (supra) wherein it was held that if necessary review of suspension order to extend or revoke the suspension order is not carried out within 90 days, as provided under Rule 10(6) Rules, 1965, then the suspension order ceases to hold its validity and that revocation or extension of suspension thereafter is not permissible as subsequent review and extension could not revive the order which had already become invalid after expiry of 90 days from the date of suspension. Therefore, it shall be apposite to record necessary observations as contained in paras 10 and 11 of the aforesaid case.
"10. Having carefully considered the submissions made on behalf of the parties and having also considered the relevant dates relating to suspension of the Respondent and when the Petitioner's case came up for review on 20th October, 2004, we are inclined to agree with the views expressed by the Central Administrative Tribunal, as confirmed by the High Court, that having regard to the amended provisions of Sub- rules (6) and (7) of Rule 10, the review for modification or revocation of the order of suspension was required to be done before the expiry of 90 days from the date of order of suspension and as categorically provided under Sub- rule (7), the order of suspension made or deemed would not be valid after a period of 90 days unless it was extended after review for a further period of 90 days.
11. The case sought to be made out on behalf of the petitioner, Union of India as to the cause of delay in reviewing the Respondent's case, is not very convincing. Section 19(4) of the Administrative Tribunals Act, 1985, speaks of abatement of proceedings once an original application under the said Act was admitted. In this case, what is important is that by operation of Sub-rule (6) of Rule 10 of the 1965 Rules, the order of suspension would not survive after the period of 90 days unless it was extended after review. Since admittedly the review had not been conducted within 90 days from the date of suspension, it became invalid after 90 days, since neither was there any review nor extension within the said period of 90 days. Subsequent review and extension, in our view, could not revive the order which had already become invalid after the expiry of 90 days from the date of suspension.
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14. Not only that the Hon‟ble Apex Court has considered the issue threadbare in the celebrated case of AJAY KUMAR CHOUDHARY V. UNION OF INDIA, (2015) 7 SCC 291.
After going through the Rule in question, the Court has ruled in clear terms that the suspension of an employee shall not be extended beyond a period of three months, if within this period the Memorandum of Charges / charge-sheet is not served on the delinquent employee. The Government has also issued instructions that it should be ensured that the charge sheet is issued before expiry of 90 days from the date of suspension and has also said that as the suspension will lapse in case this time line is not adhered to. These directions are contained in the Office Memorandum vide F. No. 11012/04/2016-Estt.(A) dated 23.08.2016 of the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training. This O.M. has taken note of directions given by the Hon‟ble Supreme Court in the case of Ajay Kumar Chaudhary (Supra):
"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
-11- O.A. No.060/01288/2019 documents till the stage of his having to prepare his defence. ... ...
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."
The decision of the Hon‟ble Apex Court leaves no manner of doubt that timely review of suspension 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. The Lordships noted that the imposition of a limit on the period of suspension had not been discussed in earlier case laws, and would not be contrary to the interests of justice. Their Lordship discussed the importance of speedy trial and misuse of suspension provision in paras 8 and 9 which are reproduced as under:-
"8. Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature.
Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the Memorandum of Charges, and eventually culminate after even longer delay.
9. Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his Department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is to determine his innocence or iniquity. Much too often this has now become an accompaniment to retirement. Indubitably the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the accused. But we must remember that both these factors
-12- O.A. No.060/01288/2019 are legal ground norms, are inextricable tenets of common law jurisprudence, antedating even the Magna Carta of 1215, which assures that - "We will sell to no man, we will not deny or defer to any man either justice or right." In similar vein the Sixth Amendment to the Constitution of the United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. Article 12 of the Universal Declaration of Human Rights, 1948 assures that - "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks". More recently, the European Convention on Human Rights in Article 6(1) promises that "in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time...." and in its second sub article that "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".
15. Be that as it may, the Government of India has also itself specifically taken a conscious decision by issuing Office Memorandums dated 7.1.2004 and 2.1.2014 [Annexure A-11 (Coolly)], particularly relating to Rule 10(5), (6) and (7) of CCS (CCA) Rules, 1965, that an order of suspension made or deemed to have been made 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. It is admitted position that after lodging of FIR dated 10.10.2017 u/s 7, 12, 13(2) read with 13(1)(d) of P.C. Act, 1988 read with Section 120-B IPC, against the applicant, the first hearing in the criminal case took place on 7.9.2018. As per order Sheet dated 1.11.2019 (Annexure A-7) of CBI Court in the case of CBI ACB Chd Vs. Sanjay Pandey etc. mentioned in para 4 (viii) of the O.A., no charges had been framed against him by that date. The respondents have taken a clear stand in para 11 of "Preliminary Submissions" that "no departmental enquiry has been filed against applicant on the charges leveled by CBI,
-13- O.A. No.060/01288/2019 ACB, Chandigarh, till date". This reply is signed and is duly notarized on 5.9.2020.
16. Thus, when we apply the ratio laid down in the case of Dipak Mali (supra) and Ajay Kumar Chaudhary (supra) read with Govt. of India Instructions on the issue, to the facts of the present case, it becomes clear that the action of the respondents in placing the applicant under continued suspension after expiry of initial 90 days of suspension without there being any review of suspension order within indicated period and there being no lawful reasons for continued suspension, is illegal and has therefore, to be quashed an set aside. Ordered accordingly. The respondents are directed to reinstate the applicant in service and grant him all consequential benefits within three weeks from the date of receipt of a copy of this order. The O.A. stands disposed of accordingly. No costs.
(AJANTA DAYALAN) (SANJEEV KAUSHIK)
MEMBER (A) Member (J)
Place: Chandigarh
Dated: 27.10.2020
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Hearing by Video Conferencing
O.A. No. 060/01288/2019
Order pronounced on: 27.10.2020
Order Reserved on: 18.09.2020
HON'BLE MR. SANJEEV KAUSHIK, MEMBER (J)
HON'BLE MRS. AJANTA DAYALAN, MEMBER(A)
Sanjay Pandey (age 47 years) son of Late Sh. Ramayan Pandey, Assistant Hydrogeologist (Scientist-B) Office of Regional Director, Central Ground Water Board, Madhya Marg, Sector 27-A, Chandigarh-160 019, resident of # 25 B, Central Government Residential Complex, Sector 38-A, Chandigarh- 160 036 (Group B).
...Applicant (By Advocate: Mr. Dhiraj Chawla) Versus
1. Union of India through Secretary, Ministry of Water Resources, RD & GR, Shram Shakti Bhawan, Rafi Marg, New Delhi-110 001.
2. Central Ground Water Board, NH-IV, Bhujal Bawan, Faridabad, Haryana through its Chairman-121 001.
... Respondents (By Advocate: Mr. B.B. Sharma) ORDER AJANTA DAYALAN, MEMBER (A):
For the reasons given hereinafter, I am not inclined to agree with the views of Hon'ble Member (J):
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1. The applicant in the OA has interalia sought the following relief(s):
"(i) To direct the respondent no. 2 to reinstate the applicant subject to outcome of the criminal trial as the continued suspension against the provision of Rule 10 (6) (7) of the CCS (CCA) Rules, 1965 as the suspension of the applicant ordered vide order dated 16.11.2017 (Annexure A-2) has not been reviewed after the expiry of 90 days as no Review Committee has ever been constituted to recommend either the extension or the revocation of the suspension thereby rendering the same illegal.
(ii) To further direct the respondent No. 2 to reinstate the applicant after the expiry of 90 days at 100% of the subsistence allowance and to consequently release the arrears of the subsistence allowance."
.
2. The facts of the case are largely undisputed. The applicant was initially appointed as Assistant Hydrogeologist in Central Ground Water Board in the year 2000 and was promoted as Assistant Hydrogeologist (Scientist-B) in 2004. While he was posted at Chandigarh, an FIR was registered against him on 10.10.2017 (Annexure A-1) for criminal conspiracy, illegal gratification and misuse of official position. In the FIR, it was alleged that the applicant along with others entered into a criminal conspiracy of taking illegal gratification of Rs. 1.5 to 2.0 lakh each from various private industries in Haryana and Punjab for getting their application forms forwarded from regional office to Delhi office with recommendation for issuance of NOC/permission to extract ground water for industrial use. The applicant was arrested on
-16- O.A. No.060/01288/2019 11.10.2017. He was ordered to be on deemed suspension w.e.f. 10.10.2017 vide order dated 16.11.2017 (Annexure A-2). Order for payment of subsistence allowance to be paid as if he was on half pay leave plus dearness allowance was made on 22.12.2017 (Annexure A-3). Sanction for prosecution was granted on 02.02.2018 (Annexure A-5). Charge sheet against the applicant was filed on 07.12.2017 as informed vide CBI letter dated 10.01.2018 (Annexure R-2). First hearing in the case was also made on 07.09.2018.
3. Request made by the applicant for increase in subsistence allowance from 50% to 75% was accepted and the subsistence allowance was enhanced w.e.f. 11.07.2018 vide letter dated 31.07.2018 (Annexure R-1). The applicant further requested for increase in subsistence allowance from 75% to 100% vide application dated 15.05.2019. This was not agreed to as he was already getting the maximum permissible amount under the rules.
4. The suspension period of the applicant was extended for a further period of 90 days w.e.f. 19.11.2019 vide order dated 17.12.2019 (Annexure R-3). This was further extended for 90 days w.e.f. 19.02.2020 (Annexure R-4). The period was again extended w.e.f. 19.05.2020 and 17.08.2020 (Annexures R-5 and R-6 respectively).
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5. The applicant made representations dated 22.01.2018, 29.01.2019, 15.05.2019 and 14.10.2019 (Annexures A-4, A-8, A-9 and A-10 respectively) regarding his reinstatement and enhancement in subsistence allowance.
6. The main ground taken by the applicant in the OA is that his original order of suspension issued w.e.f. 10.10.2017 vide order dated 16.11.2017 (Annexure A-2) was never reviewed by the competent authority within a period of 90 days as mandated under Rule 10 of CCS(CCA) Rules, 1965. Further, he has stated that no Review Committee was ever constituted for considering extension/revocation of his suspension and as such, the extension of suspension is illegal and, he needs to be reinstated after expiry of 90 days from his initial suspension.
7. It is true that after initial deemed suspension on 10.10.2017, the first order for extension of suspension was issued only on 17.12.2019, extending the period of suspension for further 90 days w.e.f. 19.11.2019. It is also noted that thereafter systematic review of suspension has been made after every 90 days. Hence, subsequent extension of suspension orders has been issued extending the suspension for further 90 days w.e.f. 19.02.2020, 19.05.2020 & 17.08.2020. In case the plea of the applicant is accepted, the cause of action for the applicant arose 90 days after his initial suspension w.e.f. 10.10.2017, i.e. in January, 2018. However, the OA has been
-18- O.A. No.060/01288/2019 filed only on December 12, 2019 i.e. after a gap of almost 2 years. No delay condonation application has been moved with the OA. The Central Administrative Tribunals Act, 1985 does not permit admission of any application beyond the time limit prescribed therein without sufficient cause for not making application within time (Section 21). It is also settled law by the Apex Court in case of C. Jacob vs. Director of Geology & Mining & anr. in SLP (C) No. 25795 of 2008 decided on 03.10.2008 as well as in many other cases that the period of limitation has to be applied rigorously and not taken lightly. Even orders by Tribunal and courts do not extend the period of limitation. The OA is therefore not maintainable purely on this ground.
8. Besides, it is observed that the suspension period of the applicant was first extended vide order dated 17.12.2019 (Annexure R-3). However, this order has not been challenged in the OA. In case this order is not challenged and quashed, it is not understood how any relief can be granted to the applicant. Similarly, other orders of extension w.e.f. 19.02.2020, 19.05.2020 & 17.08.2020 have also not been challenged. Again, without quashing of the same, no relief can be granted to the applicant.
9. Besides above, the charge against the applicant is very serious and relates to criminal conspiracy, illegal gratification
-19- O.A. No.060/01288/2019 and misuse of official position. He is alleged to have entered into criminal conspiracy for taking illegal gratification of Rs. 1.5 to Rs. 2.0 lakh each from various private industries in Punjab and Haryana for getting their applications forwarded to Delhi Office with recommendation for issuance of NOC/permission to extract ground water for industrial use. Considering that the applicant was a public servant, his entering into criminal conspiracy for illegal gratification is a very serious charge and has to be kept in mind while taking a view on his case.
10. It is also observed that the applicant is claiming 100% subsistence allowance. He has not supported this claim with any provision of rules. The respondents have clearly submitted that maximum permissible amount as per the rules is only 75%. We do not find any reason to doubt this statement. On the other hand, provisions of rules as contained in Swamy's Compilation of CCS(CCA|) Rules, Chapter 4, Suspension- Entitlements, para (1) (ii) (based on Fundamental Rule 53) support the statement of the respondents. FR 53 and Para (1)(ii) clearly provides that subsistence allowance shall be an amount equal to the leave salary which the Government servant would have drawn if he had been on leave on half average pay or on half pay and in addition, dearness allowance, if admissible on the basis of such leave salary. Further, it is provided that amount may be increased by a suitable amount "not exceeding
-20- O.A. No.060/01288/2019 50% of the subsistence allowance admissible during the period of the first three months", if the period of suspension is prolonged for reasons not directly attributable to the Government servant. Thus, in effect, subsistence allowance cannot be more than 75% of the salary of Government servant.
11. It is also noted that in the present case, there is no disciplinary case. Rather, a criminal case has been filed in the court. A charge sheet has also been filed against the applicant on 07.12.2017 as informed by the CBI. Hearing in that case is going on. As the applicant was arrested on 11.10.2017 and was on deemed suspension w.e.f. 10.10.2017, the charge sheet was filed within 90 days. It is true that no review was undertaken by the department within 90 days as mandated. However, I do not see how a different view than continuing suspension could have been taken even if a review had been conducted. This is more so as there were no departmental proceedings and there was no question of delay on the part of the department with regard to disciplinary proceeding. Also, a criminal case involving the applicant involving illegal gratification is pending in the court of law. A purely administrative delay of this nature cannot be allowed to let officers allegedly involved in criminal conspiracy be given benefit. This would not serve the larger public interest.
12. I am also of the view that the plea of the applicant that there was no review within 90 days, is mainly a technical point. Factually and technically this point may be correct. However, the
-21- O.A. No.060/01288/2019 applicant who has himself moved the case almost two years after arising of cause of action and has not even moved an application for condonation of delay - what to talk of explaining the delay to the satisfaction of the Tribunal, cannot take shelter under this technicality. The applicant himself is responsible for delay in moving the OA. The OA is therefore not maintainable on this ground alone. He has also not challenged the subsequent review orders. Without quashing of these orders, he cannot get any relief.
13. It is also observed that the applicant has made an attempt to mislead this Tribunal. This is obvious from the fact that in para 8 of the OA, it is, interalia, stated as follows:
"(i) To direct the respondent No. 2 to reinstate the applicant subject to outcome of the criminal trial as the continued suspension against the provision of Rule 10 (6) (7) of the CCS (CCA) Rules, 1965 as the suspension of the applicant ordered vide order dated 16.11.2017 (Annexure A-2) has not been reviewed after the expiry of 90 days as no Review Committee has ever been constituted to recommend either the extension or the revocation of the suspension thereby rendering the same illegal."
Thus, the applicant has claimed that "no Review Committee has ever been constituted" to review the suspension. This is contrary to the statement made by the respondents. In their reply, they have categorically stated that the case has been reviewed by constituted committees and all orders of extending suspension have been issued after such consideration. This is also clear from all orders of extension which specifically state this fact. Thus, the statement made by the applicant that no review committee has
-22- O.A. No.060/01288/2019 ever been constituted, is clearly not based on facts and seems to be an attempt to mislead this court. As per law laid down by the Apex Court, applicant who approaches the Tribunal not with clean hands, cannot claim equity and is not entitled to any relief .
14. Thus, in brief, the OA is not only filed beyond the limitation period but does not challenge the crucial orders without which no relief can be given to the applicant. The applicant has also tried to mislead this Tribunal as indicated above. Besides, the charges against him are grave involving criminal conspiracy, illegal gratification and misuse of official position. For these charges, a charge sheet already stands filed by CBI on 07.12.2017 and the case is pending in the court. The applicant is already getting the maximum permissible amount of subsistence allowance as admissible under the rules.
15. In view of all above, I do not find justification for granting relief to the applicant. OA deserves to be dismissed being not maintainable due to delay as well as being devoid of merits. OA is dismissed accordingly. No costs.
(Ajanta Dayalan) Member (A) Place: Chandigarh Dated: 27.10.2020 ND*