Central Administrative Tribunal - Lucknow
Imran Ahmed Khan vs Union Of India on 23 September, 2024
CAT,Lucknow Bench OA No. 332/00049 of 2017 Imran Ahmed Khan Vs. U.O.I. &Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No. 332/00049/2017
Dated this 23rdday of September, 2024
Hon'ble Mr. Justice Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Imran Ahmad Khan, aged about 42 years, son of Late Abdul Kayuoom
Khan, resident of Mohalla Ghadiyali, Post Dariyabad, District
Barabanki, working as Chaukidar (No. SS-1510) at 430 (1) ASC Supply
Depot, Station Head Quarter Cantt., Faizabad, U.P.
.....Applicant
By Advocate: Shri Pushpraj Singh
VERSUS
1. Union of India through its Secretary, Ministry of Defence, New Delhi.
2. Officer Commanding, Sup. PL ASC Supply Depot, Cantt. Area,
District, Faizabad.
.....Respondents
By Advocate: Smt. Prayagmati Gupta
O R D E R (O R A L)
Per Hon'ble Mr. Pankaj Kumar, Member-Administrative In this case, the applicant is seeking the following reliefs:
"(i). To quash the impugned orders dated 18/05/2016, 17/08/2016 and 15/11/2016 passed by the opposite party No. 2, contained as Annexure No. A-1 to this Application.
(ii). To issue a direction to the opposite parties to permit the applicant as Chaukidar at ASC Supply Depot, Station Head Quarter Cantt., Faizabad, U.P. in the interest of justice.
(iii). To issue any other order which is deemed just and proper in the facts and circumstances of the case be also passed in favour of the applicant in the interest of justice along with the cost of this Original Application."
2. The facts of the case are that the applicant was appointed on the post of Chaukidar on 02.05.2001 and was posted in the Supply Depot, Faizabad on 01.04.2012. He was implicated in crime case no. 502 of 2015 under sections 419, 420, 467, 468 and 471 of IPC, arrested on Page 1 of 6 CAT,Lucknow Bench OA No. 332/00049 of 2017 Imran Ahmed Khan Vs. U.O.I. &Ors. 21.03.2016 and released on bail on 10.05.2016. He was placed under suspension in terms of rule 10(1) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 [CCS(CCA) Rules, hereafter] vide order dated 16.05.2016. Aggrieved, the applicant has preferred this OA.
3. The applicant contends that he has been framed in the criminal case for manipulation of his educational documents by the respondents because he wanted to lodge a criminal complaint after he was beaten up by a superior officer on 18.10.2014. No charge sheet has been served and no enquiry conducted even as his suspension continues. He approached Hon'ble High Court in Writ Petition (SS) No. 30074 of 2016 which was dismissed on 21.12.2016 with the observation that the applicant should raise his grievance before this Tribunal.
4. The respondents state that the criminal case against the applicant was lodged on the ground that during his appointment, the applicant had submitted class 8 Transfer Certificate from Sanjay Gandhi Janata Sahyogi Secondary School, Dariyabad, District Barabanki which was found to be forged after enquiry. An FIR was lodged and the charge sheet has been filed before the Uper Satra Nyayadhish, Faizabad for adjudication. The respondents, vide affidavit dated 18.04.2023, also submit that the applicant's suspension was extended from time to time.
5. We have heard both the parties.
6.1 The subject matter of suspension of an employee has been dealt with by Hon'ble Supreme Court vide judgment dated 16.02.2015 in Ajay Kumar Choudhary vs Union of India through its Secretary & Anr in Civil Appeal No. 1912 of 2015in the following manner:
"8.Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewalis not Page 2 of 6 CAT,Lucknow Bench OA No. 332/00049 of 2017 Imran Ahmed Khan Vs. U.O.I. &Ors.
based on sound reasoning contemporaneously available on the record, this would render itpunitive in nature. Departmental/disciplinary proceedings invariably commence with delay, areplagued with procrastination prior and post the drawing up of the Memorandum of Charges, andeventually culminate after even longer delay.
9. Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his Department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisitionor 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 counterthat our Constitution does not explicitly guarantee either the right to a speedy trial even to theincarcerated, or assume the presumption of innocence to the accused. But we must remember thatboth 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 notdeny or defer to any man either justice or right." In similar vein the Sixth Amendment to theConstitution of the United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. Article 12 of the Universal Declaration of Human Rights, 1948 assures that - "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks". More recently, the European Convention on Human Rights in Article 6(1) promises that "in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time...." and in its second sub article that "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".
10. ... In Kartar Singh vs. State of Punjab (1994) 3 SCC 569 the Constitution Bench of this Court unequivocally construed the right of speedy trial as a fundamental right...
13. It will be useful to recall that prior to 1973 an accused could be detained for continuous and consecutive periods of 15 days, albeit, after judicial scrutiny and supervision. The Cr.P.C. of 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the investigation relates to any other offence. Drawing support from the observations contained of the Division Bench in Raghubir Singh vs. State of Bihar, 1986 (4) SCC 481, and more so of the Constitution Bench in Antulay, we are spurred to extrapolate the quintessence of the proviso of Section 167(2) of the Cr.P.C. 1973 to moderate Suspension Orders in cases of departmental/disciplinary inquiries also. It seems to us that if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a Page 3 of 6 CAT,Lucknow Bench OA No. 332/00049 of 2017 Imran Ahmed Khan Vs. U.O.I. &Ors.
Memorandum of Charges/Chargesheet has not been served on the suspended person. It is true that the proviso to Section 167(2) Cr.P.C. postulates personal freedom, but respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same pedestal.
14.We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us."
(emphasis supplied) An order for bare suspension, therefore, should not subsist beyond three months. Only if the charge sheet is served, should the suspension be extended by way of a reasoned order. It is open to the Government to deploy the delinquent employee suitably.
6.2 It is noted that rule 10 of CCS (CCA) Rules provides for regular review of suspension and its extension upto 180 days at a time [sub-rule (6)]. Further, it is observed that the policy of the Government is to not prolong suspension unnecessarily, as brought out in the instructions quoted below:
"In spite of the instructions referred to above, instances have come to notice in which Government servants continued to be under suspension for unduly long periods. Such unduly long suspension while putting the employee concerned to undue hardship, involves payment of subsistence allowance without the employee performing any useful service to the Government. It is, therefore impressed on all the authorities concerned that they should scrupulously observe the time limits laid down in the Office Memoranda referred to in the preceding Page 4 of 6 CAT,Lucknow Bench OA No. 332/00049 of 2017 Imran Ahmed Khan Vs. U.O.I. &Ors.
paragraph and review the cases of suspension to see whether continued suspension in all cases is really necessary. The authorities superior to the disciplinary authorities should also exercise a strict check on cases in which delay has occurred and give appropriate directions to the disciplinary authorities keeping in view the provisions contained in the aforesaid Office Memoranda.
[Department of Personnel & AR OM No. 11012/7/78-Ests.(A) dated the 14th September, 1978]."
(emphasis supplied) 6.3 It appears to us that the respondents are aware of the above instructions, yet they have not acted on them simply due to the pending criminal case, as we see in the recommendations of the review committee dated 11.05.2020:
"1. The Review Committee (Bd of Offrs) after taking a view regarding revocation/continuation of the suspension keeping in view of the fact and circumstances of the case and also taking into account that unduly long suspension, while putting the employee concerned to undue hardship, involve payment of subsistence allowance without the employee performing any useful service to the Government. Without prejudice to the foregoing, the reviewing committee recommends that No. SS-1510 Chowkidar Imran Ahmed Khan continues to be suspended since no decision has been arrived by the court of law."
(emphasis supplied) It is evident from the above that the respondents have left the issue of revocation of suspension to the outcome of the criminal case against the applicant without exercising their own judgment to the desirability, or otherwise, of continuing with suspension which is now continuing for more than 8 years.
6.4 It is also unfathomable to us as to why the respondents have not considered initiating departmental proceedings against the applicant in consonance with DoPT's OM No. 11012/6/2007-Estt.(A- III) dated 21.07.2016 which recognizes that there is no bar in law for initiation of simultaneous criminal and departmental proceedings on the same set of allegations. The said OM also cites the following observations of Hon'ble Supreme Court made in State of Rajasthan vs. B.K. Meena & Ors. (1996) 6 SCC 417:
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CAT,Lucknow Bench OA No. 332/00049 of 2017 Imran Ahmed Khan Vs. U.O.I. &Ors.
"It must be remembered that interests of administration demand that the undesirable elements are thrown out and any charge of misdemeanor is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanor should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings."
(emphasis supplied) 7.1 In view of the foregoing, we see no justification in continued suspension of the applicant by the respondents without proper application of mind. We, therefore, direct the respondents to revoke the applicant's suspension within a month of receipt of certified copy of this order. It shall be open to the respondents to take such further action as per law as may be appropriate.
7.2 Pending MAs, if any, are also disposed of.
7.3 The Parties shall bear their own costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member (A) Member (J)
vidya
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