Central Administrative Tribunal - Delhi
Mridul Manohar vs Union Of India Through on 22 July, 2011
Central Administrative Tribunal Principal Bench OA No.891/2011 New Delhi, this the 22nd day of July, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Mridul Manohar S/o Shri Bhudeo Prasad Aged about 47 years, R/o C/o Sh. Baldev Sharma JP Lane, Hirabagh Chowk, Matwari Road, Hazaribagh, Jharkhand. . Applicant. (By Advocate : Shri A. K. Behera) Versus Union of India through 1. The Secretary Ministry of Commerce & Industry Department of Industrial Policy & Promotion, Udyog Bhawan, New Delhi 110 011. 2. Chief Controller of Explosives Petroleum & Explosives Safety Organisation (Formerly Department of Explosives) A Block, 5th Floor, CGO Complex, Seminary Hills, Nagpur 440006. . Respondents. (By Advocate : Sh. M. K. Bhardwaj) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Mridul Manohar, the Applicant herein, an officer in the rank of Controller of Explosives, presently under suspension has assailed; (i) order dated 10.08.2009 (page 11) whereby his deemed suspension was reviewed and ordered to be continued for a period of 180 days beyond 24.03.2009; (ii) the order dated 16.03.2010 (Page 12) wherein, his suspension was reviewed and order to continue his suspension for further period of 180 days beyond 19.03.2010 was issued, (iii) the order dated 13.09.2010 issued by the Respondents whereby the Applicants suspension was further extended for a period of 180 days beyond 15.09.2010. His first suspension was w.e.f. 5.11.2008 but the first review which should have taken place within 90 days from the date of his release from detention on bail i.e. 24.3.2009, was reviewed beyond 90 days. The Applicants main grievance is that the illegality has been committed by the competent authority by not reviewing within 90 days as per law, and has prayed to be reinstated in service. It is in these circumstances, the Applicant has come to the Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s):-
Call for the records of this file;
Quash & set aside the impugned orders dated 10/08/2009, 16/03/2010 and 13/09/2010 at Annexures A-1, A-2 and A-3 respectively.
Direct the respondent to treat as if the applicant has joined duty w.e.f. 05/02/2009 or in the alternative from 05/04/2009 or in the alternative from 06/04/2009 or in the alternative from 24/06/2009 with all consequential benefits;
Direct the respondent to give all consequential benefits including payment of arrears of pay and allowances in the grade of Controller of Explosives to the applicant;
Direct the respondent to pay the cost of litigation to the applicant;
Pass any other order or direction which this Honble Tribunal thinks fit and proper in the facts and circumstances of the case.
2. During the hearing, the limited plea raised for getting his grievances redressed by this Tribunal is with regard to the illegality in running the order of suspension. We may refer to the facts that may be necessary for the purpose of adjudicating the issues raised by the Applicant. While the Applicant was working as Controller of Explosives at Hazaribagh, the Petroleum and Safety Explosive Organisation, Nagpur vide its letter dated 16.11.2008 endorsed a copy of the letter from the Inspector of CBI, Anti Corruption Branch, Ranchi addressed to Jt. CCE Kolkata wherein it was indicated that the Applicant was arrested on 5.11.2008 at 16:10hrs for demanding and accepting illegal gratification of `10,000 from the complainant. It is further stated that the Applicant was produced before the Special Judge, Ranchi and a case was registered under the Prevention of Corruption Act, 1988 (PC Act in short). On receipt of the said information from the CBI, the Applicant was placed under deemed suspension until further orders w.e.f. 5.11.2008 vide order dated 05.01.2009 (page 17) under Rule 10 (2)(a) of Central Civil Services (Classification, Control and Appeal)Rules, 1965. It is stated by the Respondents that CBI submitted a report which inter alia indicated that Shri Firoz Ahmed, a Businessman and friend of Shri Mazar Ali Sidiqui proprietor of M/s Shalimar Transport submitted an application for getting renewal of explosive license for transportation from the office of Dy. Chief Controller of Explosive, Hazaribagh on behalf of the said firm. His application was kept pending and the Applicant was demanding `10000 for its renewal. The proprietor declined to pay the said bribe and lodged a complaint with CBI who laid a trap for the same. The Applicant was caught red handed while accepting bribe from the complainant. The criminal prosecution was launched against him under Section 7 & 13 (2) read with Section 13 (1) (D) of Prevention of Corruption Act, 1988. CBI has already filed a charge sheet No.2/2009 dated 24.03.2009 against the Applicant in the case No.RC 15A (2008)/(R) in the Court of Special Judge of CBI, Ranchi. CBI has also intimated the Respondents that the case is in the advance stage of investigation and the Applicant is likely to be charge sheeted in the Court of law. It is the case of the Applicant that as the CBI could not file report Under Section 173 of Cr. P.C. within 60 days, the Trial Court vide its order dated 06.01.2009 (Annexure-A4) he was released on bail. He seems to have given in writing his intimation and joining report on 7.1.2009 (page 16). It is averred that the deemed suspension order of 5.1.2009 was served on him on 23.01.2009. It is the case of the Applicant that though he was placed under deemed suspension with effect from 5.11.2008 vide the Respondents order dated 5.01.2009, review was not conducted within 90 days, as per Rule 10 of CCS(CCA) Rules. Hence, Applicant avers that legal infirmity has been committed by the Respondents by not reviewing the order of suspension dated 5.01.2009 within 90 days. It is also stated that the order of suspension would become invalid if from the date of intimation of release on bail i.e. 6.01.2009 or from the date of intimation of bail by the CBI i.e. 24.03.2009, the Review is not conducted. Feeling aggrieved by inaction of the Respondents to reinstate him to service, he submitted a representation dated 11.09.2009 (Annexure-A7) to the Respondents Miinistry of Commerce and Industry and followed up with another letter dated 25.01.2010 (page 20). Therefore, the Applicants grievance is that illegality needs to be corrected by the Tribunal by quashing and setting aside the suspension order as the first review was conducted on 9.4.2009 and order issued on 10.08.2009 which is beyond the period of 90 days.
3. Shri A. K. Behera, learned Counsel for the Applicant, highlighting the background of the case contended that the competent authority approved the Review committees recommendation only on 10.08.2009 after 90 days from the date of initial suspension and even beyond 90 days from the date of intimation by the Applicant on 07.01.2009 and even from the date of intimation on his release to the Respondent by the CBI on 24.03.2009. Thus, the period of 90 days prescribed under the Rules having not been followed by the Respondents, the suspension order must be treated as non-est in the eyes of law. He, therefore, submits that as the first continuance of the Applicants suspension is illegal, subsequent orders passed to continue Applicants suspension are also illegal. Hence, he contends that the same needs to be interfered with and directions should be issued to the Respondents to reinstate the Applicant forthwith. Shri Behera brought to our notice about the order passed by this Tribunal in the matters of Phanikant Mishra versus Union of India & ors. (OA No.488/2010 decided on 1.06.2010) in which for the similar illegality the Tribunal quashed the orders and directed to reinstate the Applicant into service.
4. On the other hand, the Respondents having received the notice from the Tribunal had submitted their reply affidavit on 16.05.2011 and opposed the contentions raised by the Applicant. Shri M. K. Bhardwaj, learned Counsel for the Respondents, would contend that the Applicant was caught red handed by the CBI demanding and accepting the illegal gratification of `10,000 from the complainant, and on the basis of such a serious criminal offence, the Applicant was arrested and produced before the appropriate Court. The Respondents, following the statutory rules suspended him vide their order dated 5.01.2009 w.e.f. 5.11.2008 as per Rule 10 of CCS (CCA) Rules, 1965. Shri Bhardwaj further submits that under sub Rule (2) of Rule 10 if a government servant continues to be under detention at the time of completion of ninety days of suspension and ninety days period for review in such cases will count from the date on which the fact of his release from detention is intimated to the appointing authority. In the present case, he submits that the information about the Applicants release was received only on 24.03.2009. A Review Committee constituted for the purpose considered the case of the Applicant in its meeting held on 9.04.2009 which was well within the period of 90 days and recommended the continuance of suspension for a period of 180 days beyond 24.03.2009. The Committee also recommended to increase his subsistence allowance from 50% to 75% during the extended period of suspension. Accordingly, the continuance of suspension order was issued vide order dated 10.08.2009. With regard to the issue of the first Review within 90 days period, he submits that due to the nonavailability of the competent authority the continuance of suspension order was issued only on 10.08.2009. He further states that Review Committee met periodically and orders of extension of suspension beyond 180 days as is required under the Rules were issued. He urges that the case is of such a serious nature that the Respondents would plead to dismiss the OA. It would not be desirable for such a person like the Applicant who is facing criminal prosecution on corruption charges to remain in active service and that he needs to remain under continuous suspension.
5. As the issue for our determination and statutory rules clearly specifies the procedure, we may refer to the Rule. The Rule 10 (7) of the CCS (CCA) Rules introduced by the DOP&T Notification dated 06.06.2007 holds the field on the legal issue raised in OA and the same reads as follows :-
7. An order of suspension made or deemed to have been made under sub-rule (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.
6. In the background of the above statutory provision, we may analyse the facts of the case. It is admitted fact that the Applicant was placed under deemed suspension w.e.f. 5.11.2008 vide order dated 5.1.2009. It is not in dispute that the Applicant was released on bail in the criminal case, on 6.1.2009. The Applicant avers that he gave his release information on 7.1.2009 which has not been confirmed by the Respondents. There is no doubt about the said information of his release on bail given by the CBI to the Respondents on 24.03.2009. There are two dates i.e. 06.01.2009 when the Applicant was released on bail and 24.3.2009 when the competent authority received from CBI the information of Applicants release. After a careful scrutiny of the pleadings, we find that the crucial date to be reckoned for the start of 90 days is 24.3.2009. Hence, 90 days period counted from 24.3.2009, ends on 21.6.2009. The Respondents have admitted that the order of continuance of the Applicants suspension has been passed and issued on 10.08.2009, which is beyond 90 days after the intimation of the Applicants release on bail was received by the Respondents from CBI. For the above reason, we conclude that the Competent Authority has violated the Rule 10(7) of the CCS (CCA) Rules. We, therefore, find that the illegality has been committed by the competent authority in not getting his suspension reviewed and ordered for continuance within 90 days from 24.03.2009. Thus, the order dated 10.08.2009 being illegal, the same is quashed and set aside. Consequently, all other orders continuing his suspension being non-est in the eyes of law, are quashed. Resultantly, the Applicant would be reinstated in service and would be entitled to the consequential benefits as admissible as per law from expiry of 90 days from the date (24.03.2009) on which the intimation of the Applicants release on bail was received by the Respondents.
7. We may refer to the orders of this Tribunal in the matter of Phanikant Mishra (supra) passed on 1.06.2010, wherein one of us (Justice V. K. Bali, Chariman) was the author of the judgment and the observations made therein are as follows:-
4. It would not be desirable for this Tribunal to make any observations and give a final verdict on the issue as to whether the applicant should continue to be under suspension or should be reinstated. However, the facts of this case are such that if the Government may, on assessment of the facts, come to the conclusion that the applicant needs to remain under suspension, in our considered view, it would be at liberty to do so. The order dated 27.4.2010 reviewing suspension of the applicant, as mentioned above, shall have to be set aside. Ordered accordingly. Resultantly, the applicant would be entitled to his pay and other emoluments from expiry of 90 days from the date of his suspension, i.e., 12.12.2008, which shall be made over to him within six weeks from today. Following the above precedent, we would like to observe that if the Government may on assumption of facts and circumstances of the case come to the conclusion that the Applicant in the present OA needs to be kept under suspension, in our considered view, the competent authority would have the liberty to do so.
8. The Original Application is disposed of in the manner indicated above. There is no order as to costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/