Central Administrative Tribunal - Ahmedabad
Neetu Singh vs Central Board Of Indirect Taxes & ... on 29 March, 2022
:: 1 :: O.A./249/2021 .
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
Original Application No.249/2021.
Dated this the 29th day of March, 2022.
CORAM:
Hon'ble Sh. Jayesh V. Bhairavia, Member (J)
Hon'ble Sh. Dr. A.K. Dubey, Member (A)
1. Neetu Singh - Aged 36 years,
W/o Shri Anil Kumar Tripathi,
Group „A‟, Joint commissioner (under Suspension)
O/o: Chief Commissioner of Central Goods and Service Tax,
Ahmedabad Zone, Department of Revenue,
Ministry of Finance, 7th Floor, CGST Bhavan,
Rajasava Marag, Ambawadi, Ahmedabad - 380015.
Currently residing at: Flat No.2, Type-5,
Customs and CGST Officers Colony,
Uganda Park, Subhash Chowk, Memnagar,
Ahmedabad - 380 052.
Mobile No. 9408664760.
...Applicant
(By Advocate Mr. Tushar Mohanty)
Vs
1. Union of India through
The Secretary,
Department of Revenue, Ministry of Finance,
North Block, New Delhi - 110 001.
2. The Chairperson,
Central Board of Indirect Taxes and Customs,
Department of Revenue, Ministry of Finance,
North Block, New Delhi - 110 001.
...Respondents
(By Advocate Mr. H. D. Shukla)
ORAL(ORDER)
Per: Hon'ble Shri Jayesh V. Bhairavia, Member (J)
1. The applicant has filed the present application under Section 19 of the Administrative Tribunals Act 1985, aggrieved with the impugned order dated 24.06.2021 (Annexure A/1), whereby the :: 2 :: O.A./249/2021 .
respondents has extended the Suspension period of the applicant for further 180 days w.e.f 25.06.2021 seeking following reliefs :-
"8 8.1. to allow the present application;
8.2. to quash and set aside the Extension of Suspension Order dated 24.06.2021 [Annexure: A-1] as being bad in law;
8.3. to consequently direct that the period of suspension of the Applicant beyond 24.06.2021 should be treated as duty for all purposes;
8.4. to consequently direct the Respondents o pay the Salary and other Allowances for the period of suspension of the applicant beyond 24.06.2021 to the Applicant within a prescribed period;
8.5. to grant Compound Interest @ per annum, compounded monthly, for the above amount to be paid, from the date is due to the date it is actually paid;
8.6. to allow exemplary costs of the application; and 8.7. to issue any such and further order/directions this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case."
2. The brief facts as stated by the applicant are as under:-
2.1 The Applicant is a direct recruit officer of the Indian Customs and Central Excise Service of 2011 Batch.
While working as Joint Commissioner in the Office of the Chief Commissioner of Central Goods and Service Tax, Ahmedabad Zone, Ahmedabad a complaint dated 26.03.2021 (Annexure A/2), was filed by one Anilbhai against the applicant and other officers before the Anti Corruption Bureau.
2.2 An FIR being no. 03/2021 was filed on 27.03.2021 at Ahmedabad City, ACB Police Station for the offence punishable under sections 7, 12, 13(1) & (2) of the :: 3 :: O.A./249/2021 .
Prevention of Corruption Act, 1988 (Annexure A/3) against the applicant and others. On the same day, ie:
27.03.2021, the applicant came to be arrested by the Anti Corruption Bureau.
Thereafter, the applicant was placed under deemed suspension vide order dated 04.05.2021 w.e.f 27.03.2021 under Rule 10(2)(a) of the CCS (CCA) Rules, 1965 (Annexure A/5).
2.3 On completion of the investigation, the ACB had filed charge sheet on 24.05.2021 in the court of Special Judge (ACB) & District and Sessions Judge, Ahmedabad (Rural), Mirzapur. Thereafter, the Additional District and Sessions Judge, Ahmedabad (Rural) granted regular bail to applicant on 08.06.2021 (Annexure A/6).
2.4 Thereafter vide impugned order dated 24.06.2021 (Annexure A/1), the suspension period has been further continued for 180 days w.e.f. 25.06.2021 by the respondents. Hence, this OA.
3. Learned counsel Mr. Mohanty, in support of the prayer sought by the applicant in this OA, mainly submitted as under:-
3.1 It is stated that the impugned order of extension of suspension beyond the initial 90 days (beyond 24.06.2021) is not sustainable unless the government has issued a major penalty charge sheet by that time. Since, in the case of applicant no Disciplinary Proceeding has been instituted till date the impugned order of Extension of Suspension is not sustainable in the eyes of law.
3.2. It is submitted that the Hon‟ble Apex Court in Ajay Kumar Choudhary v. Union of India (2015) 7 SCC 291held that the currency of a Suspension Order should not extend beyond three months if within this period a :: 4 :: O.A./249/2021 .
Memorandum of Charges/Charge-sheet is not served on the delinquent officer/employee (Annexure A/7).
It is submitted that in compliance of the judgment passed in Ajay Kumar Choudhary‟s case (supra), the DoP&T vide OM dated 23.08.2016 (Annexure A/8), decided that where a government servant is placed under suspension, the order of suspension should not extend beyond three months, if within this period the Charge- sheet is not served to the Charged Officer. It is submitted that in the present case, till date the applicant is not served with Memorandum of Charge. Therefore, the impugned order is contrary to the law laid down in the case of Ajay Kumar Choudhary as well as the instructions contained in OM dated 23.08.2016 (Annexure A/8)..
3.3 It is submitted that the law laid down in Ajay Kumar Choudhary has been consistently followed by the High Court, Principal Bench & other Co-ordinate Benches of this Tribunal in the identical cases and had quashed and set aside the order for further extension of the suspension which was issued beyond initial 90 days that too without issuance of Memorandum of Charge within the stipulated time. In this regard, he placed reliance on following orders passed by Principal Bench and other Co-ordinate Benches of this Tribunal.
(i) Manoj Kumar v/s Union of India,
Department of Revenue & Ors OA
No.4159/2017 decided on 21.12.2017 by
PB, CAT, New Delhi (Annexure A/10),
(ii) Navneet Kumar v/s Union of India & Ors in
OA No.915/2018 decided on 02.04.2018 by
PB, CAT, New Delhi (Annexure A/11).
:: 5 :: O.A./249/2021 .
(iii) OA No.1224/2018 decided on 31.05.2018 by PB, CAT, New Delhi (Annexure A/12).
3.4 It is submitted that the order passed by Principal Bench and other Co-ordinate Benches in identical cases has been implemented by the respondent department and the order of further suspension was revoked.
Further, the Hon‟ble High Court of Delhi in the case of Kulamani Biswal v/s UoI & Anr. WP(C) 6859 of 2018 decided on 31.10.2018 (Annexure A/15) by following the law laid down in Ajay Kumar Choudhary (supra) as also by referring judgment passed by Division Bench of Delhi High Court in the case of GNCTD v/s Dr Rishi Anand (2017 SCC online Del 10506) & other judgments held that the continuation of currency of suspension in absence of Memorandum of charges served upon the delinquent is not tenable and the respondents are bound by the judgment passed by Hon‟ble Apex Court in Ajay Kumar Choudhary.
Learned counsel submits that Hon‟ble Apex Court in the case of Shreedharan Kallat v/s Union of India reported in (1995) 4 SCC 207 (Annexure A/14) held that "in service matter where validity or interpretation of rule is concerned, any order passed by the Court which achieve finality is binding on the department." Therefore, it is submitted that in the case of applicant same principle is applicable and the impugned order needs to quashed and set aside.
3.5 The learned counsel also placed reliance on the judgment passed by Hon‟ble Apex Court in the case of State of Tamil Nadu Rep, by Secretary to Government (Home) v/s Pramod Kumar IPS and Ors. wherein by following the :: 6 :: O.A./249/2021 .
law laid down in Ajay Kumar Chaudhary (supra), the continued suspension was set aside.
3.6 Further, learned counsel placed reliance on order passed by Ernakulam Bench in matter of Dr. Jacob Thomas, IPS v/s State of Kerala & Ors OA No.04/2019 decided on 29.07.2019 (Annexure A/17). Further it is submitted that in the case of Sandeep G M Yadav, Dy. Commissioner, CBSE, Bhubaneshwar v/s UoI & Ors in OA 617/2019 and in the case of Ashiquzzanan, Dy. Commissioner, CBSE, Rourkela v/s UoI & Ors., in OA 693/2019, the Cuttack Bench of this Tribunal vide its common order dated 31.01.2020 (Annexure A/20), by referring and following the law laid down in the case of Ajay Kumar Chaudhary quashed and set aside the suspension order.
It is stated that the Hon‟ble High Court of Orissa vide judgment dated 31.07.2020 upheld the order passed by Cuttack Bench of this Tribunal. (Annexure A/21 referred). The SLP filed by the respondents against the said judgment was dismissed vide order dated 18.01.2021 (Annexure A/23).
3.7 Thereafter, the respondents had revoked the suspension in the case of Shri Ashiquzzanan, Dy. Commissioner, CBSE, Rourkela with effect from 22.07.2019 vide order dated 08.03.2021 (Annexure A/24).
The review petition filed in the case of one Shri Sandeep Yadav was dismissed by Hon‟ble High Court vide order dated 09.03.2021 (Annexure A/25) as also the second review filed by the respondent was dismissed vide order dated 09.04.2021 (Annexure A/26). Thereafter, the suspension order in the case of Sandeep G M Yadav, Dy Commissioner was revoked by the respondents vide order dated 18.06.2021 (Annexure A/27).
:: 7 :: O.A./249/2021 .
3.8 Learned counsel submits that in the above referred cases the continuation of suspension was quashed and set aside in compliance of it, the respondents have revoked the suspension order. As the applicant herein is identically placed, his case is squarely covered by aforesaid judgment and the decision. Therefore, the impugned order in the present case requires to be quashed and set aside.
3.9 Learned counsel by relying upon the extant instructions with regard to suspension which are published in Chapter III of Swamy‟s Manual on Disciplinary Proceedings for Central Government Servants, 9th edition 2003, submits that the various instructions on the subject of continuation of suspension reiterate that though suspension may not be considered as a punishment, it does constitute very great hardship for government servant. Therefore, it is essential to ensure that the suspension period is reduced to the barest minimum. However, the suspension of the applicant has been unduly prolonged without any reason at all as also in contravention of law laid down in the case of Ajay Kumar Choudhary (supra).
Learned counsel submits that the Hon‟ble Supreme Court in the case of O P Gupta v/s UoI reported in AIR 1987 SC 2257 has deeply sympathized with the government servant under suspension by referring the observations of the Supreme Court in the case of Khem Chand v/s Union of India (1958) SCR 1080 to the effect that "there is no doubt that an order of suspensions unless the departmental inquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression "Subsistence Allowance" has undeniable penal significance."
:: 8 :: O.A./249/2021 .
Further, it is submitted that vide impugned order the respondents have further extended the suspension period for 180 days that too without increasing subsistence allowances and in utter violation of various instructions time and again issued by the DoP&T, therefore, the impugned order required to be quashed and set aside.
4. Per contra, respondents have filed their reply and denied the contentions of the Applicant. Learned Counsel Mr. H. D. Shukla for the respondents mainly submitted as under:-
4.1 The applicant came to be arrested on 27.03.2021 by the Anti Corruption Bureau, Ahmedabad and remained in judicial custody for more than 48 hours, consequent upon her detention, the applicant was placed under deemed suspension w.e.f. the date of his arrest i.e. 27/03/2021, in terms of Rule 10(2)(a) of CCS(CCA) Rules 1965, vide order dated 04.05.2021.
4.2 Further it is submitted that Competent Authority can place the government servant under suspension when any criminal proceeding including trial is pending as per Rule 10(1)(b) of CCS(CCA) Rules, 1965. In the present case the ACB, Ahmedabad had registered FIR 3/2021 against the Applicant and file the charge-sheet, since the criminal case is pending at the stage of "Framing of Charge" and the competent authority i.e. President in the present case had already granted Prosecution Sanction under Section 19(1)(a) of Prevention of Corruption (Amendment) Act, 2018, the continuation of suspension of the applicant is just and proper.
4.3 It is submitted that the applicant being a Member of Group-A service, is expected to exhibit high ethics and standard of conduct and integrity. The suspension of the :: 9 :: O.A./249/2021 .
applicant cannot be revoked as the allegation against the applicant in the case filed by the ACB is serious in nature.
4.4 It is submitted that the suspension of the applicant has been extended with the approval of Competent Authority under Relevant Provision of Rule 10 (1) (b) and 10 (6) of CCS (CCA) Rules, 1965.
4.5 It is submitted that the Hon‟ble High Court of Delhi in the case of Government of NCT of Delhi Vs Dr. Rishi Anand, judgment dated 13.09.2017 held that "it may not always be possible for the Government to serve the Charge Sheet on the officer concerned within a period of 90 days, or even the extended period, for myriad justifiable reasons. At the same time, there may be cases where the conduct of the Government Servant may be such, that it may be undesirable to recall the suspension and put him in position once again, even after sanitizing the environment so that he may not interfere in the proposed inquiry. Further it is submitted that applicant is a senior officer and hence possibility of influencing the witness and tempering with the evidences is quite high.
4.6 It is submitted that the decision of Ajay Kumar Choudhary Vs Union of India is not applicable in light of judgment passed by Hon‟ble Delhi High Court in case of Dr. Rishi Anand (supra).
It is submitted that the instructions contained in DoPT, OM dated 23.08.2016 has only directed to ensure that charge memorandum should be issued within 90 days of placing the Government Servant under suspension. However, it no where states that suspension will automatically lapse if the charge sheet is not issued within 90 days. It is submitted that under Rule 10 of :: 10 :: O.A./249/2021 .
CCS (CCA) Rules, there is no provision for automatic revocation of suspension or reinstatement of a suspended Government servant in absence of charge sheet being issued upon expiry of 90 days or the extended period of suspension.
4.7 Learned Counsel submits that the case laws cited by the counsel for the Applicant are not relevant to the facts and circumstances of the present case. In this regard, it is submitted that the order passed in OA No. 4159/2017 as relied upon by the applicant is pertains to Group - „B‟ officer wherein the applicant herein is a Group - „A‟ officer, further the order passed in OA No. 915/2018 as relied upon by the applicant has been challenged by way of filing a Writ Petition No. 7917/2018 before the Hon‟ble Delhi High Court and stayed the operation of impugned order dated 02.04.2018 passed in the said OA.
4.8 Learned counsel for the respondents further submits that the Hon‟ble High Court of Uttarakhand at Nainitaal in Special Appeal No. 576/2019 in Naresh Kumar Vs State of Uttarakhand & Ors. in Para 24, 29 distinguished the judgment passed by the Hon‟ble Apex Court in Ajay Kumar Choudhary Case (supra). It is submitted that the suspension order dated 04.05.2021 and extension suspension dated 24.06.2021(impugned herein) are in accordance with the Rules. Therefore, the applicant is not entitled for any relief as sought for in this OA.
5. The applicant has filed rejoinder and denied the averments of the respondents as stated by them in their counter reply. Additionally, it is contended as under:-
5.1 The applicant denied the contention of the respondents that applicant being a Group - „A‟ officer there was a possibility of influencing the witnesses and tampering :: 11 :: O.A./249/2021 .
with evidence in respect to criminal proceeding pending before the Sessions Court, Ahmedabad. In this regard, it is further stated that if in a criminal case there is a fear that the accused could tamper with prosecution witnesses then the prosecution should take up the issue with the criminal court. As far as Domestic Disciplinary proceedings are concerned, if the charged officer is in position to coerce the witnesses or tamper with documents, then the charged officer may be placed under suspension. However, there is no provision to intermingle the two situations and no Government employee can be suspended for long time just because the prosecution in the criminal case thinks that the Government employee should be suspended.
It is submitted that in the present case there is absolutely no material or evidence placed on record by the respondents in support of their allegation of tampering with evidence or influencing any witnesses of criminal proceedings. The respondents had admitted that no disciplinary proceeding has been initiated against the applicant as yet. Therefore, the reason as assigned by the respondent that, there is possibility of tampering with the evidence is not tenable.
5.2 Further, it is submitted that the judgment passed in Dr. Rishi Anand Case (supra), was considered by the Principal Bench of this Tribunal in OA No. 1224 of 2018 (Annexure A/12) and the said order was implemented by Union of India vide order dated 26.06.2018 (Annexure A/13 referred). Further, it is submitted that the judgment passed in Dr. Rishi Anand Case (supra), has been discussed in great detail by the Hon‟ble Delhi High Court in another judgment dated 31.10.2018 passed in :: 12 :: O.A./249/2021 .
W.P. (C) No. 6859 /2018 (Annexure A/15 referred), as also by the Hon‟ble High Court of Orissa in judgment dated 31.07.2020 in W.P. (C) No. 12859/2020 & 12861/2020 (Annexure A/21 referred) and the SLP thereon was dismissed by the Hon‟ble Apex Court (Annexure A/23 referred), therefore, the law laid down by the Hon‟ble Apex Court in the case of Ajay Kumar Choudhary (supra) hold the field and the impugned decision (Annexure A/1) is contrary to the law laid down by the Hon‟ble Apex Court.
6. The respondents have filed their sur-rejoinder and reiterated their submissions as stated in their counter reply.
7. Learned counsel for the applicant has submitted his written argument/submission wherein he has reiterated what is argued by him and stated in the OA as well in the rejoinder. Additionally, he placed reliance on order dated 21.01.2022 passed by this Tribunal in the case of Sandeep Jot Singh (Deputy Commissioner of Customs) Vs UOI & Ors. i.e., OA No. 503/2020 (Annexure A/31), and submitted that in the said case after considering the judgment in the case of Ajay Kumar Choudhary (supra), the judgment passed by Hon‟ble High Court of Orissa in the case of Sandeep G M Yadav (supra), judgment passed by Delhi High Court in the case of Rishi Anand (supra), the instructions contained in OM dated 23.08.2016 and 21.07.2016 issued by DoP&T (supra), as also considering similar submission of the respondents, this Tribunal held that the respondents failed to adhere to the time limit stipulated in the OM issued by the DoP&T and it is trite law that suspension cannot take the form of punishment, hence, the prolonged suspension of the applicant therein was set aside, (Annexure A/31). Therefore, it is submitted that the said order is also squarely applicable to the case of applicant herein. It is :: 13 :: O.A./249/2021 .
submitted that the extension of suspension of the applicant beyond the initial 90 days (beyond 24.06.2021) is de hors the well settled law and needs to be set aside.
8. Heard the learned counsel for both the parties and perused the material on record.
9. It is noticed that the applicant herein while working as Joint Commissioner, Central Board of Indirect Taxes and Custom, came to be arrested in connection with Crime Registered No. 03/2021 by ACB, Gujarat on 27.03.2021. The Competent Authority in exercise of Power conferred by Rule 10 (ii) (a) of CCS (CCA) Rules, 1965, vide order dated 04.05.2021 placed the applicant under deemed suspension w.e.f date of arrest i.e. 27.03.2021. Thereafter, based on the recommendation of the suspension review committee, the Competent Authority vide impugned order dated 24.06.2021 (Annexure A/1), extended the suspension of applicant for a further period of 180 days w.e.f 25.06.2021, without any change in substantial allowance.
10. It is noticed that in the impugned order dated 24.06.2021 the competent authority for extending the suspension period has assigned the reason that the suspension review committee noted that, charge-sheet dated 24.05.2021 in connection with criminal case no. 03/2021 registered against the applicant under the provision of Prevention of Corruption Act, has been filed before the Court and the CVC vide its Circular No. 000/VGL/70 dated 25.09.2000 issued guidelines that revocation of suspension of public servant facing serious charges of corruption should not be considered in a routine manner. Accordingly, the said Committee was of the view that it would be appropriate to continue with the suspension to demonstrate the zero tolerant policy of Government against the Government servant facing serious charge of Corruption and to ensure that the officer is not able to tamper with any evidence/documents/witness related to :: 14 :: O.A./249/2021 .
the case, the Committee, therefore, recommended that the suspension of the applicant should be continued for a further period of 180 days. The Disciplinary Authority has noted that the applicant has been granted bail vide order dated 08.06.2021 and decided to accept the recommendation of the Suspension Review Committee. Based on the aforesaid ground and reasons, the Competent Authority has passed the impugned order dated 24.06.2021.
11. To justify the impugned decision, learned counsel for the respondents mainly submitted that the charges levelled against the applicant are serious in nature and the applicant herein being Group-„A‟ officer and to ensure the officer is not able to tamper with any evidence/documents/witnesses related to the said criminal case, the competent authority by accepting the recommendation of the suspension review committee and the disciplinary authority decided to extend the suspension for a further period of 180 days. By relying upon the judgement passed by Delhi High Court in case of Dr. Rishi Anand (supra) it is submitted that even in absence of initiation of any departmental disciplinary proceeding or issuance of memorandum of charge/charge-sheet against the Government officer, the respondent can place the Government servant under suspension by considering the pendency of Criminal Proceeding against the said officer.
12. In challenge to impugned order of further extension of suspension period of the applicant, Mr. Mohanty Counsel for the applicant thrust upon the fact that after applicant has been placed under suspension no departmental proceeding has been initiated against the applicant till date. The Review Committee or the Disciplinary Authority while recommending for extension of suspension of the applicant has not placed on record any material or evidence to prove or establish that :: 15 :: O.A./249/2021 .
applicant attempted to tamper with any evidence or create any hindrance in court proceeding with respect to pending criminal case or initiation of Departmental Proceedings. As such, the said criminal proceeding is yet at the stage of "framing of charges". Further, he submits that in compliance of the direction issued by the Hon‟ble Apex Court in the case of Ajay Kumar Choudhary Vs Union of India (supra), the DoP&T vide OM dated 23.08.2016 (Annexure A/8) directed, that where a Government servant is placed under suspension, the order of suspension should not extend beyond 3 months, if, within this period the charge sheet is not served to the charge officer.
13. In the present case, it is not in dispute that after the applicant was placed under deemed suspension w.e.f 27.03.2021 and till the order dated 24.06.2021 issued for further extension of suspension, the respondents have not initiated any disciplinary proceedings against the applicant herein. During the course of pendency of this OA, it has been brought to the knowledge of this Tribunal that after the expiry of extended suspension period (impugned order-Annexure A/1), the respondents has passed second order dated 21.12.2021 extending the suspension period of applicant for 180 days w.e.f. 22.12.2021 till 19.06.2022 with 50% increase in subsistence allowance, presently being paid to the applicant. Copy of the said order of suspension dated 21.12.2021 has been placed on record by the counsel for applicant. Examination of the said order, reveals that till date no memorandum of Charge/ Charge-Sheet has been issued to the applicant. In other words, no Departmental Proceedings have been initiated against the applicant till date and only the Criminal Proceeding is pending at the stage of "framing of charge".
Further we take note that identical reasons as in the first order of extension of suspension dated 24.06.2021 have been :: 16 :: O.A./249/2021 .
assigned by the competent authority in its second order dated 22.12.2021 for further extension of suspension. Additionally, it is stated therein that the investigation report has been received from Office of ACB, Ahmedabad vide letter dated 21.05.2021 seeking sanction for prosecution against the applicant herein. The CVC has advised for sanction for prosecution vide OM dated 02.09.2021 and matter is under process for obtaining the DA‟s sanction for prosecution of the officer. Further, the suspension allowance has been increased to 50%. Except the aforesaid grounds, no new grounds or reasons has been assigned.
14. At this stage, it is appropriate to mention that the prolonged suspension of government servant and the practice of protracted suspension have been deprecated by Hon‟ble Apex Court in catena of decision. In the case of Ajay Kumar Choudhary Vs. UOI, Civil (2015) 7 SCC 291 "(11) 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.
(12) 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 :: 17 :: O.A./249/2021 .
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 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 United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial.
Further, the Hon‟ble Apex Court in the said judgment after referring to the law laid down in the case of Kartar Singh v/s State of Punjab (1994) 3 SCC 569; Abdul Rehman Antulay v/s R.S Nayak (1992) 1 SCC 225; State of Punjab v/s Chamanlal Goyal (1995) 2 SCC 570; Raghubir Singh v/s State of Bihar (1986) 4 SCC 481 emphasised the point of the legal expectation of expedition and diligence being present at every stage of a criminal trial and fortiori in departmental enquiries and in this regard it has been further held that :
Para(20) "..................we are spurred to extrapolate quintessence of the proviso to :: 18 :: O.A./249/2021 .
Section 167(2) CrPC, 1973 to moderate suspension orders in cases of departmental/disciplinary enquiries also. It
seems to us that the parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accuse of commission of the most heinous crime, of fortiori suspension should not be continued after the expiry of the similar period especially when a memorandum of charges/chargesheet has not been served on the suspended person. It is true that the proviso to section 167 (2) CrPC postulates personal freedom, but respect and preservation of human dignity as well as to a speedy trial should also be placed on the same pedestal.
Para (21) 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. ................"
15. It is noticed that in compliance of the direction /observation made by Hon‟ble Apex Court in para 21 in Ajay Kumar Choudhary case (supra), the DoP&T in its OM dated 23.08.2016, has issued instruction that:-
"where a government servant is placed under suspension, the order of suspension should not extend beyond three months, if within this period the charge-sheet is not served to the charged officer. As such, it :: 19 :: O.A./249/2021 .
should be ensured that the charge-sheet is issued before expiry of 90 days from the date of suspension. As the suspension will lapse in case this time line is not adhered to, a close watch needs to be kept at all levels to ensure that charge-sheets are issued in time."
16. Further, it is noticed that by following the dictum laid down by the Hon‟ble Apex Court in the case of Ajay Kumar Choudhary (supra) as also referring to the judgment passed by Hon‟ble Delhi High Court in case of Govt. of NCT, Delhi Vs. Dr. Rishi Anand the Principal Bench of this Tribunal in its order dated 31/05/2018 passed in OA No.1224/2018, rejected the submission of the respondents (therein) that even if the Disciplinary Authority failed to issue charge-sheet within 90 days of the initial suspension, the Court will not automatically quash the suspension order. In the said order the Tribunal further held that the dictum laid down in Ajay Kumar Choudhary‟s Case (supra) clearly stipulates that in case no Memorandum of Charges / charge-sheet is issued within 90 days from the date of initial suspension of an employee, the prolonged order of suspension is not tenable. Accordingly, the continuation of suspension of applicant therein beyond initial period of 90 days was set aside and quashed.
At this stage, it is apt to mention that the aforesaid order was accepted by the respondent therein and by exercising the powers conferred by Clause - 10(5)(c) of CCS (CCA) Rules, 1965,vide order dated 26,06.2018 revoked the suspension of the applicant in OA No.1224/2018 (Ann. A/18 ).
17. Further, Hon‟ble Apex Court in the case of State of Tamil Nadu Rep. by Secretary to Govt. (Home) Vs. Promod Kumar, IPS & Anr reported in (2018) 17 SCC 677 : 2019 (2) :: 20 :: O.A./249/2021 .
SCC L&S 127, while dealing with the issue relating to the prolonged continuation of suspension of the Officer / employee, the Hon‟ble Apex Court after taking into consideration the fact that the officer who was under suspension for more than 6 years and there was no complaint by the investigation agency CBI with regard to any tampering with the evidence by the applicant therein, the noting of Review Committee for extension of the suspension that the CO is capable of exerting pressure and influencing witnesses and there is every likelihood of misusing office if he is reinstated as IG of Police, as also referring to the observation made in Ajay Kumar Choudhary‟s Case (supra) that "this Court has frowned upon the practice of protracted suspension and held that suspension must necessarily be for a short duration", the Hon‟ble Apex Court concluded that "no useful purpose would be served by continuing the suspension any longer and that his reinstatement would not be threat to a fair trial by reiterating the observation of the High Court that the Appellate State has the liberty to appoint the officer in the non-sensitive post."
18. Further, it is appropriate to mention that in an identical case of an officer working in the same department as Deputy Commissioner namely, Shri Sandeep G M Yadav who was also placed under suspension based on CBI case, the department failed to issue charge-sheet/ Charge Memorandum within time line stipulated by DoP&T in OM dated 23.08.2016 and continued to keep him under suspension, the said order/decision for extension of suspension of the said officer was quashed and set aside by the by the Cuttack Bench of this Tribunal in OA No.617/19 dated 31.01.2020. The said order came to be upheld but Hon‟ble High Court of Orissa and the SLP filed thereon was also dismissed.
:: 21 :: O.A./249/2021 .
Similarly, in another case of identically placed officer of the same department, namely, Shri Ashiqzzaman, Deputy Commissioner, who was placed under suspension on his arrest by the CBI in connection with offence punishable under the under the P C Act 1988 as well under the IPC. His prolonged suspension that too without initiating disciplinary proceeding before expiry of the initial period of suspension was quashed and set aside in OA No.693/2019 by Cuttack Bench of this Tribunal vide order dated 31.01.2020, the Hon‟ble High Court of Orissa upheld the said decision and the SLP filed thereon was also dismissed. The respondent department the O/o. Central Board of Indirect Taxes and Custom Department of Revenue, New Delhi by accepting the said dictum, has revoked the suspension order of both the officers and reinstated them in service vide order dated 18.06.2021 in the case of Sandeep G M Yadav (Ann. A/30 referred) and order dated 08.03.2021 in the case of Shri Ashiqzzaman, (Annexure A/25 referred).
19. From the above, it can be seen that the Hon‟ble Apex Court as well the High Court and this Tribunal in various judgments and orders consistently deprecated the prolonged suspension of the government employee and set aside the continuation of such prolonged suspension during the pendency of disciplinary/proceedings as well as criminal proceedings against the Officer. It can be seen that the respondent herein, in the case of similarly placed officers revoked such prolonged suspension in light of law laid down by Hon‟ble Apex Court in the case of Ajay Kumar Choudhary (supra) and other judgments / orders referred hereinabove.
At this stage we also take note of judgments passed by Hon‟ble High Court of Gujarat in the case of Maneesh Kushalchandra Shukla v/s State of Gujarat Thru Dy. Secretary in SCA No.4843 of 2019 decided on 16.09.2019 reported in :: 22 :: O.A./249/2021 .
(2021) 1 GLR 710 : (2020) 1 GLS 1 wherein the Division Bench of Hon‟ble High Court by considering the principles laid down in the case of Ajay Kumar Choudhary (supra), and considering the fact that the charge-sheet was filed in the criminal case which remained pending and the petitioner therein who was placed under suspension for prolonged three years without initiating any disciplinary proceedings against him, the Hon‟ble High Court deprecated the continuation of protracted suspension and the said prolonged suspension was held to be arbitrary and in violation of article 14 & 16 of the Constitution of India. As a result, the impugned suspension order therein was set aside with a direction to take back the petitioner in service.
20. Keeping in mind the aforesaid settled principles of law on the point of prolonged suspension, in the present case undisputedly it is not the case of respondents that due to reasons attributed to the applicant the respondents could not meet with the time line stipulated in the OM issued by DoP&T (supra) for issuing charge memorandum. As such, no disciplinary proceeding has been initiated against the applicant. In absence of any instances or material on the record, the submission of respondents that the applicant will tamper with the evidence/documents/witnesses is not tenable. Further, it is noticed that the competent authority while extending the period of suspension, recorded one of the reasons that the applicant has been charged with serious offence. In this regard, it is required to mention that there cannot be any dispute with regard to zero tolerance policy with respect to charge of corruption. At the same time, it is apt to mention that it is trite of law that once the criminal proceedings initiated against the Government servant in the competent court of law, the said proceeding should reach its logical conclusion and till then it cannot be said that the alleged charges are proved and officer cannot be held guilty before the trial. As :: 23 :: O.A./249/2021 .
noted hereinabove the criminal proceeding against the applicant is at the stage of "framing of charges". Undisputedly, there is no instance of tampering with evidence with respect to pending criminal proceeding or any hurdle created by the applicant to initiate disciplinary proceedings against her placed on record by the respondents. Under the circumstances, the attempt made by the respondents to justify the impugned order on the ground of seriousness of allegation leveled against the applicant in criminal proceedings is also not tenable.
21. On a conjoint reading of the judgment passed by Hon‟ble Apex Court in the case of Ajay Kumar Choudhary (supra), State of Tamil Nadu rep. by Secy. to Govt (Home) v/s Promod Kumar IPS & Anr (supra), and the judgment of Hon‟ble High Court of Orissa in case of Sandeep GM Yadav (supra), judgment passed by Delhi high Court in case of Rishi Anand (supra) and judgment passed by Hon‟ble High Court of Gujarat in the case of Maneesh K Shukla (supra), in our considered view the dictum laid down in the aforesaid cases are squarely applicable to the case on hand. The respondents failed to follow the binding instructions contained in OM dated 23.08.2016 and 21.07.2016 (supra) of DoP&T. Besides the above, the recommendations made by the Suspension Review Committee for extension of duration of the suspension of the applicant appear to be based on no good and sufficient reasoning. As a matter of course, in the absence of any memorandum of charge being issued to the applicant, although this fact ought to have been considered by the competent authority while extending the period of suspension, the same have not been considered at all. Therefore, we conclude that even if Rule 10(6) of CCS (CCA) Rules, 1965 authorize the competent authority to extend the duration of suspension beyond a period of 90 days, that extension by no stretch of imagination could be bereft of good and sufficient reasons to meet with dictum laid down by the :: 24 :: O.A./249/2021 .
Hon‟ble Apex Court referred herein above, as well the instruction contained in the OM issued by the DoP&T with regard to continuation and extension of the Government servant i.e., applicant herein.
At this stage, it is important to mention that as referred hereinabove in identical cases the respondents have revoked the prolonged suspension orders in compliance of orders passed by this Tribunal, High Court and Apex Court even during the pendency of criminal proceeding as well departmental proceedings and reinstated the officers in service. In the present case, it is reiterated that no memorandum of charge came to be served upon the applicant and the only proceeding pending i.e., criminal proceedings which is at stage of "framing of charges". It is trite law that suspension cannot take the form of punishment.
Therefore, we are of the considered opinion that the impugned order dated 24.06.2021 in our considered view is not tenable as the same suffers from legal infirmity and is also contrary to the law laid down by Hon‟ble Apex Court as discussed above as also the instructions of DoP&T.
22. Resultantly, in view of the above discussion OA is allowed, the very first order of extension of suspension dated 24.06.2021 (Annexure A/1) impugned herein is quashed and set aside. In view of this, any subsequent order in respect to extension of suspension of the applicant also becomes void.
23. As a consequence of quashing of the impugned suspension order dated 24.06.2021, the respondents are directed to revoke the suspension in light of what is held hereinabove and reinstate the applicant in service within one week of receipt of copy of this order. Further, the respondents are directed as under:-
:: 25 :: O.A./249/2021 .
(i) The applicant shall be entitled to salary minus the
subsistence allowance already received by her for the interregnum period, i.e. from the date when her initial suspension ended after 90 days till the date, the applicant is reinstated in service with simple interest @ 8%.
(ii) The treatment of the initial period of suspension shall be decided in accordance with the rules on the subject. .
24. There shall be no orders as to costs.
(A K Dubey) (Jayesh V Bhairavia) Member(A) Member(J) Abp/PA