Central Administrative Tribunal - Delhi
Sh. A.A.Farooquee vs Union Of India on 19 March, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA NO. 1091/2006 New Delhi, this the 19th day of March, 2009 Honble Mr. Justice V.K. Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) Sh. A.A.Farooquee Deputy Commissioner of Police S/o Shri Abdul Jabbar R/o Flat No.1 P.S.Rajouri Garden New Delhi-110027. Applicant (By Advocate: Sh. B.B.Sawhney, Sr. counsel with Sh. M.T.Siddiqui) V E R S U S 1. Union of India through its Secretary, Ministry of Home Affairs, North Block, New Delhi-110001. 2. Union of India through Under Secretary, Ministry of Home Affairs, North Block, New Delhi-110001. 3. Govt. of N.C.T. of Delhi through Chief Secretary, Secretariat, I.P.Estate, New Delhi-110002. 4. Principal Secretary (Home), Govt. of N.C.T. of Delhi Delhi Secretariat, I.P.Estate, New Delhi-110002. 5. The Commissioner of Police, Police Headquarters, I.P.Estate, New Delhi-110002. Respondents (By Advocate: Sh. R.N.Singh) ORDER
Honble Shri L.K.Joshi, Vice Chairman (A) Mr. A.A.Farooquee, a Junior Administrative Grade (JAG) officer of Delhi, Andaman & Nicobar Islands, Lakshdweep, Daman & Diu and Dadar & Nagar Haveli Police Service (DANIPS), the Applicant in the instant Original Application under consideration, is challenging the order dated 10.02.2006, by which the period of his suspension, initially effected by order dated 18.11.2005, has been continued beyond 15.02.2006 for a period of 180 days and subsequent orders by virtue of which he has remained under suspension till date. The various dates on which period of his suspension has been extended have been mentioned in the table below:
S.No. Date of order of suspension/ Period of Suspension Continuing of suspension suspension with effect (in days) from 1. 18.11.2005 90 18.11.2005 2. 10.02.2006 180 15.02.2006 3. 18.08.2006 90 13.08.2006 4. 03.11.2006 180 10.11.2006 5. 08.05.2007 90 08.05.2007 6. 03.08.2007 180 08.08.2007 7. 25.01.2008 180 01.02.2008 8. 29.07.2008 90 30.07.2008 9. 27.10.2008 90 28.10.2008 10. 23.01.2009 90 26.01.2009
2. The facts, stated comprehensively, are that the Applicant, an officer of DANIPS, joined Delhi Police as Assistant Commissioner of Police (ACP) on 05.05.1978. He was promoted to the rank of Deputy Commissioner of Police (DCP) first on ad hoc basis and then on regular basis from 29.04.1987. He has been in the grade of DCP since then. At the time of being placed under suspension, he was working as DCP in the X Battalion of the District Armed Police (DAP). On 5.04.2005, an FIR was registered on oral information against the Applicant by the CBI. The Applicants house was raided.
3. The CBI, asked the Applicant through the Delhi Police, on 8.06.2005 and 30.08.2005 to fill up information in the prescribed forms I to VI. He was required to give information about moveable and immoveable properties, purchased during the last 20 years by the Applicant and his dependants. The Applicant was not given access to records, which were necessary for filling up the aforesaid forms and which had been seized. He made a request to the Joint Commissioner of Police, requesting him to facilitate inspection of records (Annex-G). When this did not bear any fruit, the Applicant made an application before the learned Special Judge on 20.10.2005 (Annex-I) to allow him access to the records needed for filling up the forms I to VI. The learned Special Judge by his order dated 21.11.2005 permitted the Applicant to inspect the records (Annex-L). Meanwhile by letter dated 26/31.10.2005 the CBI, inter alia, informed the Commissioner of Police, Delhi that the Applicant was not submitting the required information asked by the CBI from time to time (Annex-K). In yet another letter dated 13/14.10.2005, the CBI wrote to the Commissioner of Police that in spite of the lapse of more than six months, the Delhi Police had not given to the CBI the information asked for in the letters dated 5.04.2005 and 20.04.2005 (Annex-H). The Delhi Police was reminded by the CBI even as late as 6.02.2007 about delay in giving information regarding the Applicants case, asked for by the CBI (Annex T-5).
3. Another fact, which needs to be mentioned at this stage is that the Ministry of Home Affairs (MHA), the cadre controlling authority of the Applicant and the first Respondent in the present OA, wrote to the CBI on 25.04.2005, soon after the registration of the FIR on 5.04.2005 against the Applicant, asking if it would be desirable to place the Applicant under suspension in terms of Rule 10 (1) (b) of the CCS (CCA) Rules, 1965, as a case against him for a criminal offence was under investigation. The CBI, by its letter dated 13/20.06.2005 replied thus:
The case is under investigation and decision regarding suspension of Shri A.A.Farooquee, DCP, Delhi Police could be taken by the department in accordance with the rules/guidelines of Govt. of India. On 26/31.10.2005, the CBI wrote to the Commissioner of Police, a communication to which reference has already been made in the previous paragraph. In addition to what is mentioned in the previous paragraph regarding the contents of this letter, it also stated thus:
3 It is also observed that he [the Applicant herein] is threatening the witnesses directly or indirectly so that they do not depose before CBI. A number of complaints have been received against Sh. Farooquee for alleged threats and harassment from various private persons including a complaint referred from CVC vide No.004-DLH-035/758 dated 4.7.2005 for taking necessary action. Recently, he has been transferred to DAP, 10th Bn., Pitampura. In view of non-cooperation, threatening of witnesses and attempts of tampering with documents by Sh. Farooquee, no substantive progress could be made in the investigation of the case. Thus in the interest of the case, the suspension of Sh. Farooquee is recommended in public interest.
4. As per the Govt. of India MHA OM No.43/56/64/AVD-I dated 22nd Oct. 1986 and OM No.142/5/84/AVD-I and also CVCs guidelines vide No.000/VGL/70 dated 25.9.2000 and para 2.5, Sec.5 of CVC Manual, the disciplinary authority is fully justified and it is appropriate to place a govt. servant under suspension when in a case where on conducting search it has been found that the govt. servant is in possession of assets disproportionate to his known sources of income and it appears prima facie that charge u/s 13 (1) (e) r/w 13 (2) of PC Act, 1988 i.e. Sec. 5 (1)(e) of PC Act, 1947 is made out. It is also mentioned in para 17 of the Directive on investigation of cases by the SPE Division of the CBI, that CBI would recommend suspension of employees in appropriate cases.
5. In view of the above, the immediate suspension of Sh. A.A.Farooquee, DCP, presently posted as Commdt. 10th Bn., DAP, is recommended in the interest of natural justice.
On 18.11.2005, the Applicant was placed under suspension by the MHA (Annex-A). The Applicant filed a representation to the Respondent on 20.12.2005 for reviewing the order of suspension and reinstating him in service. However, the suspension of the Applicant has been continued on the recommendation of the committee constituted to consider continuation of suspension as provided in Sub-Rules (6) and (7) of Rule 10 of the CCS (CCA) Rules, 1965.
4. On 18.07.2008, during the pendency of the OA, the President of India accorded sanction under Section 19(1) of the Prevention of Corruption Act, 1988 for prosecution of the Applicant. A copy of the document F.No. 14033/08/2008-UTS-II was produced by the Applicant and placed on record. This fact is also mentioned in the order dated 23.01.2009 by which the suspension of the Applicant has been continued for 90 days with effect from 26.01.2009. As seen from the records placed before us by the first Respondent, charge sheet has been filed in the court of the Special Judge, New Delhi on 24.07.2008. The matter was fixed for framing of charge on 23.01.2009, which has been adjourned to March, 2009.
5. In the above backdrop, the order of suspension dated 18.11.2005 and its periodic continuance has been assailed on several grounds by the learned senior counsel for the Applicant. It is stated that the FIR was registered against the Applicant on 5.04.2005, allegedly on oral complaint but actually at the instance of one Mr. Abdul Mannan and Ms. Abida Begum in collusion with Mr. J.K.Jain, Advocate of the above mentioned persons. These persons have dispute regarding some properties, including Batla House property belonging to the Applicants mother-in-law, who died on 9.12.2003 claimed by the Applicant and his wife and also by these two persons. It is stated that Mr. J.K.Jain is the brother-in-law of Mr. N.K.Jain, an officer of the CBI and the investigating officer in the Applicants case. It is urged that the F.I.R. was registered at the instigation of Mr. Abdul Mannan and Ms. Abida Begum by Mr. N.K.Jain and raid conducted at the Applicants house. It is contended that the FIR has been registered in contravention of the law laid down by the Honourable Supreme court in State of U.P. Vs. Bhagwat Kishore Joshi, AIR 1964 SC 221, P.Sirajuddin V. State of Madras, 1970 (1) SCC 595 and State of Haryana V. Bhajan Lal, AIR 1992 SC 604. The Honourable Supreme Court has cautioned that some suitable preliminary investigation of the allegation should be made before registering the FIR. No preliminary investigation was done in this case and within hours of registering the FIR, raid was conducted at the house of the Applicant. It is pointed out that the CBI Manual provides that a case of disproportionate assets should be registered only after careful preliminary verification. The instructions contained in the Manual have been reproduced in paragraph 5 of the rejoinder filed by the Applicant to the counter affidavit of the first and second Respondents, which advised the investigating officers that cases of disproportionate asset should be registered only after careful preliminary verification. The whole action of the CBI is motivated and based on malafide intents, contends the learned senior counsel for the Applicant. It is stated that it would become clear from the fact that the facts of the case were deliberately misrepresented to the press, to defame the Applicant, by reporting that one kilogram of gold and Rs. One lakh were recovered from the Applicants house, whereas the seizure memo showed recovery of 650 gms. of gold and Rs.8,125/- in cash. The news reports are placed at Annex-D (colly). The Applicant, it is stated, immediately brought the malicious act to the notice of higher authorities (Annex-E). A lot of emphasis has been placed on the fact that Mr. Abdul Mannan and Ms. Abida Begum are antagonistic towards the Applicant and his wife and that they have filed civil suits against them with the intention of grabbing their property. These people are instrumental in the registration of the FIR against the Applicant in collusion with their advocate Mr. J.K.Jain, who is the brother-in-law of the investigating officer of the CBI in this case. The CBI has gone to the extent of showing the property belonging to his mother-in-law, in the name of his wife.
6. It is strenuously urged that the CBI had maliciously cited, in letter dated 31.10.2005, adverted to above, non-cooperation by the Applicant in the enquiry by delaying submission of information asked for as a ground for placing the Applicant under suspension. The Applicant was asked to give information in forms I to VI regarding details of moveable and immoveable properties acquired by him and his wife during the last 20 years. The records relating to these had been seized from his possession and, in spite of his request, he was not given any access to the records by the CBI. Only when he approached the Court of the learned Special Judge, did he get the permission on 21.11.2005 for inspection of records. It is stated that the information was supplied immediately thereafter by the Applicant. It was, on the other hand, the Delhi Police, which was delaying supplying of information to the CBI as would be clear from the letters dated 14.10.2005 and 6.02.2007, written by the CBI to the Delhi Police, adverted to in paragraph 2 of this order, admonishing the latter for delay in giving information. Blame for delay and non-cooperation cannot be laid at the doors of the Applicant, it is argued.
7. Reference has also been made to the letter dated 25.04.2005 of the MHA addressed to the CBI, asking if the latter would recommend placing the Applicant under suspension and the CBIs reply dated 20.06.2005 to the effect that MHA may take a view as per the existing rules in the matter. Meanwhile, in May 2005, the Applicant had been transferred to 10th Battalion of the Delhi Armed Police. Seven months later the CBI recommended the Applicants suspension, which was accepted by the appointing authority without any application of mind. Reference is made to DG P&Ts letter no. 201/43/76-Disc.II dated 15.07.2006 quoted in Swamys Compilation on suspension and Reinstatement, Muthuswamy and Brinda, Swamy Publisher (P) Ltd., Page 212, Tenth Edition. Paragraph 3 (C) of the letter cited is extracted below:
(C) While placing an official under suspension, the Competent Authority should consider whether the purpose cannot be served by transferring the official from his post to a post where he may not repeat the misconduct or influence the investigations, if any, in progress. If the authority finds that the purpose cannot be served by transferring the official from his post to another post, then he should record reason therefor before placing the official under suspension.
8. Yet another argument on behalf of the Applicant is about continuation of his suspension mechanically by the first Respondent, without considering the circumstances of the case and without paying any heed to the instructions issued by the Government of India about it. The Applicant, it is contended had filed an appeal against his suspension by order dated 18.11.2005 and made a request for its revocation. Period of his suspension was continued without even considering his appeal and the period was extended for 180 days by order dated 10.02.2006 only on the basis of CBIs report that the Applicants suspension should not be revoked as there was apprehension that he might tamper with documents and influence the witness. The Applicant had been transferred to a different office in May 2005 and was not in a position to tamper with the documents. The complaints of threats being given by the Applicant were made by Mr. Abdul Mannan and Ms.Abida Begam, who were the interested parties in the case against the Applicant. We may mention at this stage that the Respondents had filed an additional affidavit, about the facts concerning the Applicant threatening the witnesses against him, on the basis of information given by the CBI. The contents of the additional affidavit have been strongly refuted. It is urged that most of the complaints, copies of which have been given in the affidavit, pertain to the period after 13.03.2008, when directions were given by this Tribunal to produce the material regarding threats given by the Applicant to witnesses. The complaints given earlier than 13.03.2008 pertain not to the alleged threats by the Applicant to the witnesses. There are allegations by Mr.Abdul Manan and Ms. Abida begum about the alleged encroachment by the Applicant on some land, alleged illegal construction by the Applicant and undesirable activities of some persons living in some of the disputed parties. It is contended that these two persons are only hostile and motivated litigants in property matters involving the Applicant. The complaints have nothing to do with the case of disproportionate assets against the Applicant.
9. It is further urged on the Applicants behalf that the period of his suspension after 18.11.2005 was over on 15.02.2006. He was not served any order continuing his suspension on 16.02.2006 on which date he joined duty. The order continuing his suspension for a further period of 180 days was received only on 18.02.2006. Such an order is illegal. The Applicant could not have continued his suspension from a retrospective date. They should have passed a fresh order of suspension.
10. Reference has been made to the MHAs OM No.221/18/65-AVD, dated 7.09.1965, the relevant paragraphs of which read thus:
2. Even though suspension may not be considered as a punishment, it does not constitute a very great hardship for a Government servant. In fairness to him, it is essential to ensure that this period is reduced to the barest minimum.
3. It has, therefore, been decided that in cases of officers under suspension, the investigation should be completed and a charge-sheet filed in a Court of competent jurisdiction in cases of prosecution or served on the officer in cases of departmental proceedings within six months as a rule. If the investigation is likely to take more time, it should be considered whether the suspension order should be revoked and the officer permitted to resume duty. If the presence of the officer is considered detrimental to the collection of evidence, etc., or if he is likely to tamper with the evidence, he may be transferred on revocation of the suspension order. Advertence has also been made to paragraph 4 of the DoP&Ts OM No.39/39/70-Ests(A), dated 4.02.1971:
4. In partial modification of the above orders, it has been decided that every effort should be made to file the charge-sheet in Court or serve the charge-sheet on the Government servant, as the case may be, within three months of the date of suspension, and in cases in which it may not be possible to do so, the Disciplinary Authority should report the matter to the next higher authority explaining the reasons for the delay. The other OM of DoP&T, which has been cited is OM No.39/33/72-Ests (A), dated 16.12.1972:
5. It would be observed that the Government have already reduced the period of suspension during investigation, barring exceptional cases which are to be reported to the higher authority, from six months to three months. It has now been decided that while the orders contained in the O.M. of 4th February, 1971, would continue to be operative in regard to cases pending in Courts in respect of the period of suspension pending investigation before the filing of a charge-sheet in the Court as also in respect of serving of the charge-sheet on the Government servant in cases of departmental proceedings, in cases other than those pending in Courts, the total period of suspension, viz., both in respect of investigation and disciplinary proceedings, should nor ordinarily exceed six months. In exceptional cases where it is not possible to adhere to this time-limit, the Disciplinary Authority should report the matter to the next higher authority, explaining the reasons for the delay. The argument is that there has been unconscionable delay in completing the enquiry and yet no consideration was given to the revocation of the suspension.
11. The learned counsel for the Respondents, on the other hand, has stoutly defended the action of the Respondents in placing the Applicant under suspension and its continuance. It is urged that there are serious charges of corruption against the Applicant. The first Respondent has already sanctioned his prosecution and charge sheet has been filed. There is a strong case against the Applicant. It is stated that the instructions of the Government of India, as elucidated in MHAs letter No.43/56/64-AVD dated 22.10.1964 state that suspension of an officer, under aforementioned circumstances, is justified. The aforesaid OM is reproduced below:
(1) Guiding principles for placing a Government servant under suspension it has been decided that public interest should be the guiding factor in deciding to place a Government servant under suspension, and the Disciplinary Authority should have the discretion to decide this taking all factors into account. However, the following circumstances are indicated in which a Disciplinary Authority may consider it appropriate to place a Government servant under suspension. These are only intended for guidance and should not be taken as mandatory:-
Cases where continuance in office of the Government servant will prejudice the investigation, trial or any inquiry (e.g., apprehended tampering with witnesses or documents);
Where the continuance in office of the Government servant is likely to seriously subvert discipline in the office in which the public servant is working;
Where the continuance in office of the Government servant will be against the wider public interest other than those covered by (i) and (ii) such as there is a public scandal and it is necessary to place the Government servant under suspension to demonstrate the policy of the Government to deal strictly with officers involved in such scandals; particularly corruption;
Where allegations have been made against the Government servant and the preliminary inquiry has revealed that a prima facie case is made out which would justify his prosecution or his being proceeded against in departmental proceedings, and where the proceedings are likely to end in his conviction and/ or dismissal, removal or compulsory retirement from service.
NOTE (a) In the first three circumstances, the disciplinary authority may exercise his discretion to place a Government servant under suspension even when the case is under investigation and before a prima facie case is made out.
NOTE (b) - Certain types of misdemeanor where suspension may be desirable in the four circumstances mentioned, are indicated below-
any offence or conduct involving moral turpitude;
corruption, embezzlement or misappropriation of Government money, possession of disproportionate assets, misuse of official power for personal gain;
serious negligence and dereliction of duty resulting in considerable loss to Government;
desertion of duty;
refusal or deliberate failure to carry out written orders of superior officers.
In respect of the type of misdemeanour specified in sub-clauses (iii),(iv) and (v), discretion has to be exercised with care. It is further contended that the period of suspension of the Applicant, valid for 90 days after the initial suspension on 18.11.2005 was extended on the recommendation of the Review Committee, constituted for reviewing the case of the Applicants suspension, for 180 days by order dated 10.02.2006. The suspension was valid till 15.02.2006. It is argued that the order of suspension becomes operative on the day it is passed even though it might have been served late. Our attention has been drawn to Annex R-IV at pages 111-112 of the paper book, which is a letter addressed by the first Respondent to the Commissioner of Police, the fifth Respondents precisely on this point. Paragraph 4 of the letter reads as follows:
4. The contention of the applicant that the order dated 10.2.2006, extending the suspension period after the review of the suspension, came to an end because he received the said order on or after 15.2.2006 is immaterial and misconceived in view of the trite law that the suspension order is effective immediately after it is passed and issued by the competent authority and it is immaterial as to whether it was received by the official concerned immediately or after some time for whatsoever reasons. As indicated in para 18 of Chapter 3 of the Swamys Manual on Disciplinary Proceedings, Except in cases in which an employee is deemed to have been placed under suspension under Rule 10(2) of the CCS (CCA) Rules, 1965, an order of suspension will normally take effect from the date on which it is made. It is further stated that no rule or instruction requires the actual service of the suspension order before it takes effect. Reliance is made to the judgment of Honble Apex Court in State of Punjab Vs. Khemi Ram, reported in AIR 1970 SC 214 : 1969 (3) SCC 28 and Division Bench judgement of Honble Calcutta High Court in Uma Shanker Chatterjee Vs. Union of India, 1982 (2) SLR 724 in this regard.
5. In view of the position indicated above, the order dated 10.2.2006 of this Ministry continuing the suspension of Shri Farooquee for further period of 180 days w.e.f. 15.2.2006 stands and no modification/clarifications are required in the same. The contention of the officer that he had not received the said order dated 10.2.2006 is not correct as on 20.2.2006 he had made a reference to this Ministry, wherein he referred to the said order dated 10.2.2006. In pursuance of the said letter dated 20.2.2006 of the applicant, this Ministry had issued a corrigendum on 23.2.2006 correcting the date of order granting subsistence allowance to him. The suspension of the officer has been continued after following due procedure and is as per rules and instructions on the subject and his so called joining report dated 16.2.2006 is of no value.
12. Reference has also been made to the instructions contained in DOP&Ts OM No. 142/5/84-AVD.I dated 20.06.1986, which has partly been reproduced below:
Sub: Suspension of suspect officials in corruption cases.
The undersigned is directed to refer to Ministry of Home Affairs O.M. No.43/56/64-AVD(I) dated 22nd October, 1964 and its Departments O.M. of even number dated 16th February, 1985 (copy enclosed) which indicate broadly the circumstances in which the disciplinary authority may consider it appropriate to place a Government Servant under suspension. It has been brought to the notice of this Department that the request of the Central Bureau of Investigation to the Administrative Department for placing under suspension the concerned Government servant involved in a case of corruption is not being acted upon in some cases inter alia on the ground that the rules/instructions do not provide for the same. The matter has, therefore, been considered further in this Department and it is clarified that in the following cases, there may be adequate justification for placing the concerned Government servant under suspension, on the request received from the CBI or otherwise, at the stage indicated against each type of case:-
(i) In a case where a trap has been laid to apprehend a government servant while committing an act of corruption (usually receiving illegal gratification) and the Govt. servant has been so apprehended, immediately after the Govt. servant has been so apprehended.
(ii) In a case where, on conducting a search, it is found that a Govt. servant is in possession of assets disproportionate to his known sources of income and it appears, prima facie that a charge under section 5 (i) ) of the prevention of corruption Act could be laid against him, immediately after the prima facie conclusion has been reached.
(iii) In a case where a chargesheet accusing a Govt. Servant of specific acts of corruption or any other offence involving moral turpitude has been filed in a criminal court, immediately after the filing of the chargesheet.
(iv) In a case where, after investigation by the CBI a prima facie case is made out and pursuant thereto Regular Departmental Action for imposition of a major penalty has been instituted against a Government Servant and a chargesheet has been served upon him alleging specific acts of corruption or gross misconduct involving moral turpitude, immediately after the chargesheet has been served upon the Government Servant. The other circular referred to is Central Vigilance Commissions circular dated 25.09.2000, which has been reproduced below in toto:
Subject: - Suspension of public servants involved in criminal/departmental proceedings.
Suspension is an effective tool for checking corruption. There have been many instances where senior officials, who had been trapped or were alleged to have disproportionate wealth or who were facing charge sheets on other serious charges, had not been suspended. It has also come to notice that officers charged of corruption, if not suspended, manage to get their inquiries delayed because delay in criminal/departmental proceedings enables them to continue in service even though the charges against them are grave enough to deserve the punishment of dismissal from service. Such officials can also use the opportunity of continuance in service for earning money through illegal/corrupt means. The Commission, therefore, is of the view that officers facing criminal/ departmental proceedings on serious charges of corruption should be placed under suspension as early as possible and their suspension should not be revoked in a routine manner.
2. It has been provided in para 2.4, Chapter V of the Vigilance Manual, Volume-I, that public interest should be the guiding factor in deciding whether, or not, a public servant should be placed under suspension; or whether such action should be taken even while the matter is under investigation and before a prima-facie case has been established. The instructions provide that it would be appropriate to place a person under suspension if: -
(i) the continuance of the public servant in office is likely to prejudice investigation, trial or inquiry [apprehending tampering with documents or witness]; or
(ii) where the continuance in office of the public servant is likely to seriously subvert discipline in the office in which he is working;
(iii) where the continuance in office of the public servant will be against the wider public interest, e.g., if there is a public scandal and it is considered necessary to place the public servant under suspension to demonstrate the policy of the Government to deal strictly with officers involved in such scandals, particularly corruption;
(iv) where the investigation has revealed a prima-facie case justifying criminal/departmental proceedings which are likely to lead to his conviction and/or dismissal, removal or compulsory retirement from service; or
(v) where the public servant is suspected to have engaged himself in activities prejudicial to the interest of the security of the State.
3. Para 2.5, Chapter V of the Vigilance Manual, Volume-I also lays down that it may be considered desirable to suspend a public servant for misdemeanor of the following types: -
an offence or conduct involving moral turpitude;
corruption, embezzlement or misappropriation of Government money, possession of disproportionate assets, misuse of official powers for personal gains;
serious negligence and dereliction of duty resulting in considerable loss to Government;
(iv) desertion of duty; and
(v) refusal or deliberate failure to carry out written orders of superior officers.
[In case of types (iii), (iv) and (v) discretion should be exercised with care].
4. It has also been provided in para 17 of the Directive on investigation of cases by the Special Police Establishment Division of the CBI that the CBI would recommend suspension of the concerned employees in appropriate cases.
5. The Central Vigilance Commission has been empowered, vide para 3 (v) of the Government of Indias Resolution No.371/20/99-AVD.III dated 4th April 1999, to exercise superintendence over the vigilance administration of various Ministries of the Central Government or Corporations established by or under any Central Act, Government Companies, Societies and local authorities, owned or controlled by that Government. Since the suspension of a public servant on serious charges, like corruption, is directly related to the vigilance administration, the Commission hereby desires that all disciplinary authorities should follow the instructions enumerated in paras 2, 3 and 4 supra strictly. It also desires that if the CBI recommends suspension of a public servant and the competent authority does not propose to accept the CBIs recommendation in that regard, it may be treated as a case of difference of opinion between the CBI and the administrative authority and the matter may be referred to the Commission for its advice. It also directs that if a person had been suspended on the recommendations of the CBI, the CBI may be consulted if the administrative authority proposes to revoke the suspension order.
13. It is finally urged that since the investigation has led to filing of charge sheet against the Applicant in the court of the learned Special Judge, under Section 13(2) read with Section 13(1) (e) of the Prevention of Corruption Act, the Tribunal may not interfere with the suspension of the Applicant.
14. We have heard the rival contentions with utmost attention and perused the entire record placed before us, including MHAs file number 14033/9/2005 UTS II, dealing with the suspension and prosecution of the Applicant, which was produced by the learned counsel for the Respondents.
15. We are not persuaded that the FIR was filed against the Applicant on the instigation of the person inimical towards him because of disputes/litigation between such persons and the Applicant. It is far fetched to allege that because of some relationship of the counsel for Mr.Abdul Mannan and Ms.Abida Begum with the investigation officer in the Applicants case, the whole show has been stage managed. All this is in the realm of imagination. It is easy to allege malafides but very difficult to prove these. The fact that the FIR was registered without making some preliminary investigation and, therefore, it is invalid may not be a correct argument especially when it has culminated in filing of charge sheet before an appropriate court. We reject the argument that the action of the CBI is motivated and based on malafide intent as there are not sufficient ground to believe this. It may be conceded that the CBIs grounds for placing the Applicant under suspension on the basis of his non-cooperation, delay in supplying information and threatening witnesses may not be founded on solid foundation, yet the fact remains that the charge against the Applicant was very serious charge of corruption and that now there is a charge sheet filed against him in the court of law, itself would be sufficient basis for his suspension, as per the Governments and the CVCs decisions reflected in the OM of DOP&T dated 20.06.1986 and letter of the CVC dated 25.09.2000, adverted to in para 12 of this order.
16. The Honourable Supreme Court in State of Orissa through its Principal Secretary Home Deptt. V. Bimal Kumar Mohanty, JT 1994 (2) SC 51 have considered this aspect of suspension and its continuance in a similar case after considering its own judgements in R.P.Kapur V. Union of India, (1964) 5 SCR 431 (Constitution Bench), Balvant Railal Ratilal Patel V. State of Maharastra, (1968) 2 SCR 577, V.P. Gindroniya v. the State of Madhya Pradesh and Others, (1970) 3 SCR 448, Government of India and Ministry of Home Affairs & Others vs. Tarak Nath Ghosh, (1971 3 SCR 715 held thus:
13. It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation. It would be another thing if the action is actuated by malafides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. The authority also should keep in mind public interest of the impact of the delinquents continuance in office while facing departmental enquiry or trial of a criminal charge. The charges against the Applicant relate to acts of corruption. An appropriate court is seized of the matter. We would, therefore, be loath to interfere with the original order of suspension or its continuance.
17. The OA is dismissed on above considerations. There will be no order as to costs.
( L.K. Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman `sd