Central Administrative Tribunal - Delhi
Rakesh Chhabra vs New Delhi Municipal Council on 6 December, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
OA No.2701/2018
Order Reserved on: 03.12.2018
Pronounced on: 06.12.2018
Hon'ble Mr. K.N. Shrivastava, Member (A)
Hon'ble Mr. S.N. Terdal, Member (J)
Rakesh Chhabra,
DOB 27.08.1959, age 59 years,
S/o Shri M.N. Chhabra,
R/o D.47, Ashok Vihar, Phase-I,
Delhi-52.
-Applicant
(By Advocates Shri R.V. Sinha, Shri B. Kishan and Shri Amit Sinha)
Versus
New Delhi Municipal Council,
Palika Kendra, New Delhi
Through : the Chairman)
-Respondent
(By Advocates Mrs. Sriparna Chatterjee and Shri Nirrikar Verma)
ORDER
Shri K.N.Shrivastava, Member (A):
Through the medium of this Original Application (OA), filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:
"(b) Declare the Order dated 27.03.2018 (Annexure-A-1 Impugned) and Order dated 12.06.2018 (Annexure-A-2 Impugned) and any subsequent order based on such impugned orders continuing the suspension of the applicant as illegal, arbitrary and discriminatory and consequently quash/revoke/ 2 (OA No.2701/2018) set aside the same and graciously further order payment of subsistence allowance as due and admissible;
(c) Declare that the Applicant is deemed to have been reinstated in service under Respondent with all consequential benefits:"
2. The factual matrix of the case, as noticed from the records, is as under:
2.1 The applicant worked as Deputy Director during the year 2014 in the Municipal Housing Department of New Delhi Municipal Council (NDMC). A complaint dated 01.03.2016 (p. 76-77) from Commando Surender Singh, MLA was received that irregularities have been committed in NDMC in the allotment of houses on out of turn basis under 5% quota. It was alleged that more 50% of the houses were allotted on out of turn basis. The applicant had already been transferred from the Municipal Housing Department to some other department on 21.05.2014. The Chairman, NDMC, who is the Disciplinary Authority (DA) for the applicant, acting on the complaint, placed the applicant under suspension vide impugned Annexure A-1 order dated 27.03.2018. The suspension period was extended vide Annexure A-2 order dated 12.06.2018 for a further period of 180 days. However, no charge-memo was issued to the applicant within the stipulated period of 90 days from the date of suspension. The applicant placing reliance on the judgment of the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary v. Union of India, [AIR 2015 SC 2389] has pleaded 3 (OA No.2701/2018) that he is entitled for re-instatement after the expiry of 90 days from the date of suspension, i.e., 27.03.2018, as no charge-memo has been issued to him within the period of 90 days. Accordingly, he has approached the Tribunal in the instant OA, praying for the reliefs as indicated in para-1 supra.
3. Pursuant to the notices issued, the respondent entered appearance and filed the reply in which, inter alia, it is stated that for the irregularities committed by the applicant in the operation of the 5% out of turn allotment quota during the period he worked as Deputy Director in the Municipal Housing Department, he was placed under suspension which has been extended on 27.03.2018 it was further extended for a period of 180 days on the recommendation of the Review Committee vide Annexure A-2 order dated 12.06.2018. It is further stated that in about two months time from the date of issuance of Annexure A-2 order, a charge-
memo dated 16.08.2018 has been served upon the applicant. Placing reliance on the judgment of the Hon'ble High Court of Delhi in the case of GNCTD v. Dr. Rishi Anand, [W.P. (C) 8134/2017, decided on 13.09.2017], it is stated that the applicant is not entitled for re-instatement in view of the fact that in his case the Review Committee had already recommended extension of his suspension period well before the expiry of the period of 90 days from the date 4 (OA No.2701/2018) of suspension and two months later the charge-memo has also been served.
4. On completion of the pleadings, the case was listed for hearing on 03.12.2018. Arguments of learned counsel for the parties were heard. The learned counsel for the applicant submitted that the ratio of law laid down by the Hon'ble Supreme Court in Ajay Kumar Choudhary (supra) is unambiguous. If no charge-memo is served on a suspended government servant within 90 days of suspension, he is entitled for re-instatement. Shri Sinha vehemently argued that in the in the instant case charge-memo has been served upon the applicant only on 16.08.2018, i.e. beyond 90 days from the date of suspension and hence the applicant is entitled for re-instatement as per the ratio laid down by the Hon'ble Apex Court. He further argued that this Hon'ble Tribunal in many cases, following the ibid ratio of law, has ordered for re-instatement of the suspended government servants. Shri Sinha drew our attention to the Tribunal's order in the following cases:
i) Bishan Lal v. Govt. of NCT of Delhi & Ors., [OA No.3200/2015, decided on 14.09.2015];
ii) Manoj Kumar v. Union of India & Ors., [OA No.4159/2017, decided on 21.12.2017];
iii) Navneet Kumar v. Union of India & Ors., [OA No.915/2018, decided on 02.04.2018].
Shri Sinha also relied on the following judgments:
a) Order/Judgment dated 22.03.2016 of Hon'ble High Court of Judicature at Madras in WP No.10701/2016 in WP No.10701/2016 - titled S. 5 (OA No.2701/2018) Vijayakumar v. Principal Secretary/Transport Commissioner, Chepauk.
b) Order/Judgment dated 17.11.2016 of the Hon'ble High Court of Madras in WP (MD) No.3997/2016 and WPMP (MD) No.3590/2016 titled J. John De Brittoo v. The District Collector, Dingigul District.
c) Union of India & Anr. v. S.A. Sari,, 2017 SCC Online Ker 3575.
d) K. Padma Kumar v. State of Kerala & Ors., [2017 SCC Online Ker 3575.
e) Union of India v. B. Anil Kumar, [2017 SCC Online Ker 39978].
f) State of Tamil Nadu v. Pramod Kumar, IPS, [AIR 2018 SC 4060].
g) Sandipta Gangopadhyay v. Allahabad Bank, [2015 SCC Online Cal.3894].
h) Gulshan Choudhary v. Punjab & Sind Bank, [2017 SCC Online J&K 284].
i) Order/judgment dated 24.5.2018 of the Principal Bench, CAT in OA No.1224/2018 titled Tushar Ranjan Mohanty v. UOI & Ors.
j) Order/judgment dated 22.03.2018 of the Principal Bench, CAT in OA No.3634/2017 titled Jagbir Singh v. Govt. of NCT of Delhi.
h) Govt. of NCT of Delhi v. Vijay Kumar Jha, [2016 SCC Online Del 4167].
i) Director of Settlement v. M.R. Appa Rao & Ors., [(2012) 4 SCC 638].
j) Official Liquidator v. Dayanand & Ors., [(2008) 10 SCC 1].
5. Per contra, Mrs. Sriparna Chatterjee, learned counsel for the respondent submitted that the judgment of the Hon'ble Apex Court in Ajay Kumar Choudhary (supra) does not apply to the instant case. She submitted that in Ajay Kumar Choudhary (supra) no review of the suspension period was done within 90 days whereas in the instant case the review has been done and the Review Committee has recommended for extension of the suspension period by 180 days and accordingly Annexure A-2 order extending 6 (OA No.2701/2018) the suspension period has been issued. She further submitted that a charge-memo 16.08.2018 has already been issued to the applicant. Buttressing her arguments, the learned counsel submitted that in Rishi Anand (supra), the Hon'ble High Court of Delhi noticed the judgment of the Hon'ble Apex Court in Ajay Kumar Choudhary (supra) and said that the respondent (government servant) therein, cannot be granted the benefits of Ajay Kumar Choudhary (supra) due to facts being different. She particularly drew our attention to para-25 of the judgment of the Hon'ble High Court of Delhi, which is extracted below:
"Thus, it is only if the suspension is not extended after review within the initial period of 90 days (in a case to which sub-rule (2) does not apply), that the suspension of the government servant would lapse automatically. In all other cases, the suspension would continue unless and until it is modified or revoked by the competent authority though it would not imply that there is no requirement to conduct periodic renewal of the suspension. This is so provided in sub-rule (5)(a) of Rule 10, which reads as follows:
"10 (5)(a) Subject to the provisions contained in sub-rule (7), an order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so."
(Emphasis supplied)
6. Mrs. Chatterjee also relied on the judgment of the Hon'ble Madras High Court in the case of Arigar Anna Sugar Mills Ltd. v. R. Vengatasamy & Anr., [W.A. (MD) No.1312 of 2017, decided on 27.10.2017] wherein the view taken is identical to that taken by the Hon'ble High Court of Delhi in Rishi Anand (supra). 7
(OA No.2701/2018)
7. We have considered the arguments of the learned counsel for the parties and have also perused the pleadings. It is not in dispute that the applicant was placed under suspension on 27.03.2018 and the charge-memo has been issued to him on 16.08.2018. The charge-memo has not been issued within the statutory period of 90 days. The purpose of the suspension is to block access of the accused official to such documents which he could misuse to his advantage. The suspension is not a punishment. The applicant at the relevant point of time was working as a Deputy Director in the Municipal Housing Department of NDMC from where he was transferred way back on 21.05.2014 itself. The respondent is having all the liberty to post the applicant in such a department where he has no access to the official documents of Municipal Housing Department which he could misuse to his advantage.
8. The ratio of law laid down by the Hon'ble Apex Court in Ajay Kumar Choudhary (supra) leaves no room for any ambiguity. A government servant under suspension is entitled for re-instatement if no charge-memo is served upon him within 90 days of his suspension. The intent of this ratio is clearly discernible. The law laid down enjoins the DA to show alacrity in the accomplishment of the disciplinary enquiry proceedings and to ensure that a government servant is not placed under suspension for unduly longer period of time just with a view to harass him. This Tribunal 8 (OA No.2701/2018) has granted relief in many cases strictly in accordance with the ratio laid down by the Hon'ble Apex Court in Ajay Kumar Choudhary (supra).
9. In view of the discussions in the foregoing paras, this OA is allowed. The respondent is directed to re-instate the applicant within a period of four weeks from the date of receipt of a certified copy of this order. The respondent, however, is at liberty to proceed ahead with the disciplinary enquiry proceedings pursuant to the charge memo dated 16.08.2018. The respondent is also granted liberty to post the applicant in such department where he is not able to interfere with the enquiry proceedings by virtue of his official position.
10. There shall be no order as to costs.
(S.N. Terdal) (K.N. Shrivastava) Member (J) Member (A) 'San.'