Central Administrative Tribunal - Allahabad
S.R.K. Varshney (1984 Batch Ifs) vs Union Of India Through Secretary on 1 July, 2011
(RESERVED) CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ALLAHABAD this the ___________ day of ____________, 2012 Present: HONBLE MR. SANJEEV KAUSHIK, MEMBER- J HONBLE MR. SHASHI PRAKASH, MEMBER-A ORIGINAL APPLICATION NO. 1369 of 2011 S.R.K. Varshney (1984 Batch IFS), aged about 55 years, son of G.P. Gupta, presently posted as Chief Conservator of Forest (Project). Applicant. V E R S U S 1. Union of India through Secretary, Department of Environment & Forest, Ministry of Environment & Forest, Lodhi Road, New Delhi. 2. The National Agriculture Co-operative Marketing Federation of India Limited, New Delhi through its Managing Director. 3. The State of U.P through Principal Secretary, Department of Forest, U.P. Civil Secretariat, Lucknow. 4. The Principal Chief Conservator of Forests, U.P., Lucknow. 5. Shri Chanchal Tewari, Principal Secretary, Department of Forest, U.P Civil Secretariat, Lucknow. . . . . . . . . . . . . Respondents Present for the Applicant: Shri Anil Kumar Srivastava Shri Swarn Kumar Srivastava Present for the Respondents: Shri Saumitra Singh Shri K.P. Singh O R D E R
By Honble Mr. Sanjeev Kaushik, JM An order passed by the respondents on 12.10.2011 is being assailed by the applicant whereby he has been placed under suspension in contemplation of departmental proceeding under rule 8 of All India Services (Discipline & Appeal) Rules 1969. The applicant seeks quashing of the order with all consequential benefits.
2. Before we advert to the legal pleas taken, a brief matrix is relevant to be highlighted.
3. The applicant Shri S.R.K. Varshney belongs to Indian Forest Service 1984 Batch. He was sent on deputation with National Agriculture Co-operative Marketing Federation of India Limited, New Delhi (in short NAFED) . Accordingly he was relieved on 15.12.2006 and joined NAFED on 16.12.2006. On 10.03.2010 the applicant was served with show cause notice issued by the respondent No. 4 alleging several charges. The applicant filed reply on 25.03.2010. On 08.12.2010 the applicant stated to have moved application under Right to Information Act 2005 whereby sought some information from the respondents. An applicant was also made on 04.01.2011 to the Managing Director, NAFED wherein he categorically stated that he has already sought information under RTI Act, therefore, same be provided as the documents are with the NAFED. Again a representation was made on 18.01.2011 to the respondent No. 3. The respondent No. 4 again issued a show cause notice on 30.03.2011, which was communicated to the applicant vide letter dated 08.04.2011 and the applicant was granted 15 days time to file his explanation or else an ex-parte decision shall be taken on the basis of available record. Alongwith show cause notice article of charged leveled against the applicant was also provided. Again a request was made on 05.05.201 to respondent No. 3 and also to Managing Director, NAFED for providing necessary documents. On 29.06.2011, a letter was written by Deputy Secretary (Forest), U.P, directing the applicant to ensure furnishing explanation within a week or else an ex-parte decision shall be taken on the basis of available record. The applicant again preferred a representation on 29.06.2011 reiterating his earlier request for furnishing desired documents enabling him to submit his reply to the show cause notice dated 30.03.2011. By impugned order dated 12.10.2011, which was served upon the applicant on 13.10.2011, the applicant was placed under suspension (Annexure A-1), hence the O.A.
3. Pursuance to the notice the respondent Nos. 1 & 2 appeared through Shri Saumitra Singh, Advocate and respondent Nos. 3 to 5 through Shri K.P. Singh, Advocate. The respondents resisted the claim of the applicant by filing separate Counter Affidavit.
4. In the Counter Affidavit filed by respondent Nos. 1 & 2 , they have taken a preliminary objection that the instant Original Application is not maintainable as the NAFED is a Co-operative Society registered with the Central Registrar under Multi State Cooperative Societies Act 2002 and as such neither a State Authority or Instrumental or Agency within the meaning of Article 12 of the Constitution of India, therefore, the O.A is liable to be dismissed. Secondly the NAFED does not come within the jurisdiction of this Tribunal as the same has not been notified Under Section 14(2) of Administrative Tribunals Act 1985, therefore, the O.A is liable to be dismissed.
5. On merits, it is submitted that the applicant while he was posted as Additional Managing Director during 2008-09 and 2009-10, was found to have committed irregularities and account of his action the NAFED has suffered huge financial loses for which action has been initiated against him firstly by placing him under suspension and secondly, by issuing charge sheet. In the Counter Affidavit filed by respondent Nos. 3 & 4 a stand has been taken that the applicant was issued show cause notice firstly on 10.03.2010 and secondly on 30.03.2011 with article of charges on the basis of the letter of NAFED for the loses incurred during 2008-09 and 2009-10.
6. The applicant also filed Rejoinder Affidavit to the Counter Affidavit filed by respondent Nos. 3 and 4 in which he has contradicted the averments made by the respondents therein.
7. We have heard Shri Anil Kumar Srivastava, learned counsel for the applicant and Shri Saumitra Singh for respondent Nos. 1&2 and Shri K.P. Singh for respondent Nos. 3 &4.
8. Learned counsel for the applicant attacked the impugned order on two grounds. Firstly on the ground of issuance of charge sheet belatedly. He averred that the charge sheet has been issued on 30.03.2011 for the alleged incidence which occurred in the year 2007-08 , therefore, the suspension of the applicant at this stage is unwarranted. Secondly, learned counsel for the applicant argued that on identical charges a charge sheet has been issued to one Shri Ashok Kumar, Manager (Pulses), NAFED and after full-fledged inquiry he has already been exonerated by the NAFED vide order dated 05.10.2011, therefore, there was no occasion for the respondents to place the applicant under suspension at his belated stage on the same very set of charges, which had already been looked into by the respondents. Finally he argued that there was no occasion for the respondents to place the applicant under suspension as there is no whisper against the applicant that he is interfering in the inquiry proceeding, which has not yet been initiated. In support of his contention, learned counsel for the applicant has placed reliance on following orders of Honble High Court, Allahabad: -
a. Order dated 17.05.2006 passed in Writ Petition No. 27262/2006 Dhirendra Sahai Vs. State of U.P & Ors; b. Order dated 11.05.2011 passed in Writ Petition No. 27178 of 2011 Rai Ram Vs. The State of U.P & others; c. Order dated 11.08.2011 passed in Writ Petition No. 44939 of 2011 Chandra Kant Dwivedi Vs. State of U.P and Others; d. Order dated 16.09.2011 passed in Writ Petition No. 47069 of 2011- Rakesh Kumar Srivastava Vs. State of U.P and others; e. Order dated 10.11.2010 passed in Writ Petition No. 66112 of 2010 Rajesh Yadav Vs. State of U.P and Others; f. Order dated 11.11.2010 passed in Writ Petition No. 66693 of 2010 Sanjai Kumar Pandey Vs. State of U.P and Anoher; g. Order dated 02.04.2010 passed in Writ Petition No. 17461 of 2010 Ratan Kumar Vs. State of U.P and Others.
9. On the other hand Sri K.P. Singh, learned counsel representing the State of U.P argued that the applicant was placed under suspension in contemplation of charge sheet, which was drafted by the NAFED and issued by the respondents for the alleged irregularities committed by him while he was on deputation with NAFED. Since the applicant was charge sheeted for financial irregularities, therefore, the competent authority decided to place the applicant under suspension. He also placed reliance on the judgment passed by Honble Supreme Court in the case of Secretary to Government, Prohibition & Excise Department Vs. L. Srinivasan decided on 15.02.1996, S.A. Khan Vs. State of Haryana and others decided on 18.12.1992 and Public Services Tribunal Bar Association Vs. State of U.P and Anr decided on 29.01.2003. Sri Saumitra Singh, learned counsel representing the Government of India and NAFED has adopted the arguments raised by Sri K.P. Singh. In supplement to that he argued that the applicant cannot seek parity to that of Sri Ashok Kumar, who exonerated as the applicant was his boss and all the decisions were taken at his end.
10. We have considered the rival submissions and have gone through the pleadings as well as the judgments and orders cited by the respective parties with their able assistance. Firstly we would like to observe that suspension is not a punishment as has been held by Honble Supreme Court in catena of judgments. The word Suspension in its literal sense as per the Oxford Dictionary, has been defined as a temporary deprivation of ones office or position. As suspension has an object to temporarily keep-off a Government servant from duty where there is every likelihood of his being tempering or influencing the procurement of the material either for the purpose of the disciplinary proceedings or criminal proceedings and to ensure that the witnesses are not threatened to let the smooth move of the proceedings take shape into finality of trial or disciplinary proceedings. Time to time, instructions have been issued with regard to the suspension and guiding principles have been laid down by GI, MHA letter No. 43/56/64-AVD dated 22.101964 where, in public interest, guiding principle to place the Government servant under suspension, which would find appropriate by the concerned Disciplinary Authority where continuance in office of a Government servant will prejudice the investigation or trial, e.g apprehended tempering with witnesses or documents. The second object is that serious subversion of discipline in the office would be likely on continuance of such an officer. The suspension would be continued if the continuance of the officer is against the wider public interest i.e. either a public scandal or demonstrate as a policy to others as to strict dealing with the officers involved in corruption charges. To Quote para 28 and 31 is pending.
12. In the instant case, as submitted above, the applicant served with a show cause notice on 10.03.2010 for the first time and on 30.03.2011 served with another show cause notice alongwith article of charges. It is even after seven months of issuance of charges, the applicant was placed under suspension on 12.10.2011. No material or any averment has been made either by the respondent Nos. 1 and 2 or respondent Nos. 3 and 4 to the effect that the applicant after issuance of charge sheet is making hurdle or influencing the witnesses which compel them to place the applicant under suspension.
(Shashi Prakash) (Sanjeev Kaushik)
Member-A Member-J
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