Bombay High Court
Union Of India The Secretary Ministry Of ... vs Veerabhadram Vislavath Son Of Bhav ... on 30 November, 2022
Author: Chief Justice
Bench: Dipankar Datta, Abhay Ahuja
Oral Judgment-WPL.33749.2022 (1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 33749 OF 2022
Union of India and Ors. } Petitioners
Versus
Veerabhadram Vislavath }
son of Bhav Singh Vislavath } Respondent
Mr. R. R. Shetty with Mr. D. P. Singh
for the petitioners.
Mr. Altaf Naik, Senior Advocate with
Mr. Rahul Walia for the respondent.
CORAM: DIPANKAR DATTA, CJ. &
ABHAY AHUJA, J.
DATE: NOVEMBER 30, 2022
ORAL JUDGMENT (Per CHIEF JUSTICE):
1. The original respondents in Original Application No. 21 of 2021, on the file of the Central Administrative Tribunal, Mumbai Bench, Mumbai (hereafter "Tribunal"), have invoked our writ jurisdiction under Article 226 of the Constitution of India as petitioners. They call in question the judgment and order dated 23rd August 2022 passed by the Tribunal disposing of the original application. The operative part of the order reads as follows: -
"17. In the light of the facts, arguments and the rules related to the issue at hand, the OA is allowed to the extent that the latest order dated 13.05.2022, vide which the suspension of the applicant has been extended for a further period of 180 days is set aside. The applicant shall be deemed to have been reinstated w.e.f. 14.05.2022, with all the consequential Page 1 of 14 J.V.Salunke,PS Oral Judgment-WPL.33749.2022 (1) entitlements effective from that date. We further direct that the competent authority, in accordance with the rules and established procedure, shall review all the previous orders of extension of suspension passed beyond 17.03.2021, the date on which the applicant was acquitted in a criminal case and pass appropriate orders afresh within a period of six weeks from the date of this order.".
2. Normally, a tribunal constituted under the Administrative Tribunals Act, 1985 or a writ court, for that matter, is slow to interfere with an order of suspension. What essentially, we are tasked to decide is, whether the Tribunal was justified in its interference with the order of suspension, since continued by several subsequent orders and directing the original respondents (hereafter "petitioners") to reinstate the original applicant (hereafter "respondent") in the manner as directed.
3. However, before we embark on such a task, it would be worthwhile to note the facts and circumstances giving rise to the original application before the Tribunal.
4. The respondent is an officer borne in the Indian Revenue Service cadre. Upon the respondent being detained in custody for a period in excess of 48 hours in connection with investigation of Crime No. 169/2018 registered at Gamdevi Police Station, Mumbai, inter alia, under sections 4, 6, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (hereafter "POCSO Act"), an order dated 14th September 2018 was issued by the Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, placing the respondent under suspension in terms of sub-rule (2) of rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 [hereafter "CCS (CCA) Rules"] until Page 2 of 14 J.V.Salunke,PS Oral Judgment-WPL.33749.2022 (1) further orders. It was indicated in the said order that the respondent was deemed to have been suspended with effect from the date of detention, i.e., 5th September 2018. It is not in dispute that the Suspension Review Committee constituted for the purpose of reviewing whether the suspension should continue or not, had made recommendations from time to time and in terms thereof, the suspension of the respondent has continued for over 4 (four) years.
5. In the meanwhile, investigation of Crime No. 169/2018 led to taking of cognizance of offence committed by the respondent and he was prosecuted for having committed offences punishable under sections 376(2)(i), 323 and 506 of the Indian Penal Code, 1860 (hereafter "IPC") as well as under sections 4, 6, 8 and 12 of the POCSO Act. This was followed by a trial in POCSO Special Case No. 641 of 2018, arising out of CNR No. MHC-CC02-015341-2018.
6. Two events of importance require to be taken note of at this stage.
7. First, during the pendency of the trial, the respondent was proceeded against departmentally. By a Memorandum dated 4th January 2019, he was informed of drawal of charge- sheet against him under the relevant provisions of the CCS (CCA) Rules. The said memorandum contained a sole article of charge, reading as follows: -
"ARTICLE OF CHARGE-1 Shri G.P. Patil, Sr. Police Inspector Gaondevi Police Station, Mumbai vide letter bearing G.No. 7001/vaponi/gapotha/2018 dated 06.09.2018 informed that Shri. Veerbhadram Vislavath (Civil Code: 11131), DCIT (TDS) 1 (3), Mumbai (presently under suspension) was arrested on 05.09.2018 at 06.45 PM in connection Page 3 of 14 J.V.Salunke,PS Oral Judgment-WPL.33749.2022 (1) with Criminal Case No. 169/18 under Section 376(2) (1). 503,323 and Section 4,6,8.12 under the Protection of Children from Sexual Offences (POSCO) Act, 2012 and his custody was obtained from the Hon'ble Sessions Court till 10.09.2018. It was subsequently informed by the said Sr. Police Inspector vide letter bearing G.No. 8022/vaponi/gapotha/2018 dated 11.09.2018 that the judicial custody of Shri. Veerbhadram was obtained from Hon'ble 35th Sessions Court till 24.09.2018. The Hon'ble Sessions Court rejected Bail application of Shri Veerbhadra Vilsavath on 17.09.2018. Shri Veerbhadram Vislavath was released from custody on 07.10.2018.
By the aforesaid acts, Shri Veerbhadram Vislavath has exhibited conduct unbecoming of a Government servant, thereby contravened the provision of Rules 3 (1) (iii) & Rule 3(1) (xviii) of CCS (Conduct) Rules, 1964."
8. The charge, which was nothing but a narration of facts commencing with registration of the FIR and culminating in the release of the respondent on bail, was inquired into by appointing an Inquiring Authority. It is too obvious that the incidents/events comprising the charge not being disputed, were found to be proved. We, however, wonder whether during the pendency of an investigation or a trial, when the accused is in custody and his guilt is yet to be proved, it can be alleged in a departmental charge-sheet by the disciplinary authority of an accused, if he be a Government servant, that he is guilty of having committed 'misconduct' punishable under the CCS (CCA) Rules and also whether he could at all be visited with any punishment, should the charge be proved. Replying to our query, Mr. Shetty, learned advocate for the petitioners, has not been able to invite our attention to any provision that only because a Government servant governed by the CCS (CCA) Rules is arrested in connection with Page 4 of 14 J.V.Salunke,PS Oral Judgment-WPL.33749.2022 (1) investigation of a crime, that could, per se, be a ground for holding that he has committed misconduct warranting punishment. Be that as it may, we need not dilate further on this point because of the information given to us by Mr. Shetty that the matter is now pending before the Union Public Service Commission (hereafter "UPSC") for its recommendation.
9. The other event is that POCSO Special Case No. 641 of 2018 came to be decided by a judgment and order dated 17th March 2021 of the Special Judge under the POCSO Act. The operative part of the order passed by the learned Special Judge reads as follows: -
"1) Accused Veerabhadram Bhavsingh Vislavath is hereby acquitted vide Section 235(2) of the Code of Criminal Procedure for the offences punishable under section 376 (2)(i), 323 and 506 of Indian Penal Code and under section 4, 6, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012.
2) The Bail Bonds of the accused shall stands cancelled.
3) Accused shall execute a Personal Bond in the sum of Rs. 15,000/- (Rs. Fifteen Thousand Only) with one solvent surety in the equal sum in compliance with the provisions of Section 437-A of the Code of Criminal Procedure."
10. After the respondent was acquitted by the Special Judge, no appeal has reportedly been carried from the judgment and order dated 17th March 2021 and the same is considered to have attained finality.
11. It was at this stage that the respondent, on 7th January 2022, approached the Tribunal with his original application. During the pendency of the original application, a further Page 5 of 14 J.V.Salunke,PS Oral Judgment-WPL.33749.2022 (1) order dated 13th May 2022 was issued by the Under Secretary to the Government of India, Ministry of Finance, whereby, the period of suspension was extended by 180 days beyond 13th May 2022. This order was issued bearing in mind the decision dated 28th April 2022 of the Suspension Review Committee, taken by circulation. We propose to refer to the decision of the Suspension Review Committee in some detail at a later part of this judgment.
12. In view of the order dated 13th May 2022, the respondent gamended the original application and upon such amendment, the reliefs claimed by him read as follows: -
"(a) This Hon'ble Tribunal may graciously be pleased to call for records and proceedings which led to the passing of the impugned orders dated 15.11.2021 (Annx. A1), dated 14.05.2021 (Annx. A2), 17.08.2021 (Annx. A3) and Annexure "A-31" dated 13.5.2022 after going through its propriety, legality and constitutional validity be pleased to quash and set aside the same further direction to the Respondents to immediately reinstate the Applicant in service with all consequential benefits or proper pay and wages, w.e.f. 17.3.2021 i.e. difference of pay and salary after deduction of Subsistence Allowance as paid to the Applicant.
(b) This Hon'ble Tribunal may be pleased to hold and declare that the impugned act of the Applicant to continue the Applicant under suspension beyond 17.03.2021 is/was absolutely illegal and wrong and accordingly direct the Respondents to immediately reinstate the Applicant in service with all consequential benefits.
(c) Any other and further orders as this Hon'ble Tribunal may deem fit, proper and necessary in the facts and circumstances of the case.
(d) Costs of this Original Application may be provided for."
13. After hearing the parties, the Tribunal proceeded to dispose of the original application with its judgment and order, Page 6 of 14 J.V.Salunke,PS Oral Judgment-WPL.33749.2022 (1) the operative part whereof has been extracted at the beginning of this judgment.
14. Mr. Shetty, in course of hearing before us, contends that the respondent, prima facie, has been found to indulge in acts of moral turpitude other than the one which led to registration of Crime No. 169 of 2018 and the petitioners having decided to place him under suspension till such time the respondent comes out clean in the disciplinary proceedings, which are pending, as well as the disciplinary proceedings that are proposed based on a preliminary enquiry report dated 2nd March 2022, the Tribunal grossly erred in law in interfering with the order of suspension. He, accordingly, prays for interim stay of the impugned judgment and order.
15. Per contra, Mr. Naik, learned senior advocate for the respondent, has referred to various documents on record to buttress his contention that the judgment and order of the Tribunal is unexceptionable and warrants no interference. He contends that the respondent and his wife have drifted apart and divorce proceedings are pending. The wife comes from an influential family having political connections and that she has spared no effort by carrying her clout to harass the respondent. As a result of the active support of the petitioners, the respondent's wife has been successful in her pursuit so far. However, looking at the facts as it presently stands, there can be little doubt that the respondent has been the victim of circumstances. It is, therefore, prayed that the writ petition be dismissed in limine.
16. Having heard learned advocates for the parties and on consideration of the materials on record, we are ad idem with Page 7 of 14 J.V.Salunke,PS Oral Judgment-WPL.33749.2022 (1) the learned senior advocate for the respondent that this writ petition does not even merit an admission.
17. Undoubtedly, the respondent was detained in custody in excess of 48 hours. He was, thus, deemed to be placed under suspension from the date of detention. There cannot be any quarrel so far as the initial order dated 14 th September 2018 is concerned, whereby suspension of the respondent was ordered and he was required to remain so until further orders. However, what strikes us is that despite the respondent having been acquitted by the POCSO Court, the suspension was continued by the order dated 13th May 2022, to be effective for a further period of 180 days. This order is obviously the fall-out of the decision of the Suspension Review Committee dated 28th April 2022, to which we advert now.
18. What we find from the said decision dated 28th April 2022 is that the petitioners had received an anonymous complaint wherein it was alleged that the respondent had indulged himself in further acts of moral turpitude by spending nights in hotels with a number of call girls/prostitutes/models and that he is debauched and of corrupt character. The preliminary inquiry which followed has led to a report dated 2nd March 2022 that there is sufficient material to proceed against the respondent departmentally on the basis of the allegations levelled in such anonymous complaint. However, it is not disputed by the petitioners that despite the preliminary inquiry report being 9 (nine) months' old, as of date, no charge-sheet has been drawn up against the respondent.
Page 8 of 14J.V.Salunke,PS Oral Judgment-WPL.33749.2022 (1)
19. While the Suspension Review Committee was considering whether the period of suspension of the respondent should be continued further, a learned advocate acting on his behalf had sent a legal notice dated 31st January 2022, calling upon the petitioners not to take any further action against the respondent on the basis of the anonymous complaint dated nil and in pursuance of the preliminary inquiry that was conducted. In support of such contention, the learned advocate for the respondent had referred to instructions of the Department of Personnel and Training (hereafter "DoPT") dated 18th October 2013 and 18th June 2014 as well as circulars of the Central Vigilance Commission (hereafter "CVC") dated 12th September 2020 and 24th September 2020, advising against taking of action on the basis of anonymous/pseudonymous complaints. It had also been urged on behalf of the respondent that since he had been acquitted by the Special Judge of the POCSO Court, continuing him under suspension would amount to deprivation of his rights guaranteed by Articles 14, 16 and 21 of the Constitution of India.
20. The Suspension Review Committee, after taking note of the contents of the legal notice dated 31st January 2022 served by the respondent's learned advocate, the preliminary inquiry report dated 2nd March 2022, the judgment dated 17th March 2021 of the Special Judge of the POCSO Court and representations of the respondent seeking revocation of suspension, concluded as follows: -
"Conclusion & Recommendation of the Review Committee In accordance with Rule 10(6) & (7) of CCS(CCA) Page 9 of 14 J.V.Salunke,PS Oral Judgment-WPL.33749.2022 (1) Rules, 1965 and DOP&T's O.M. dated 07.01.2004, the Review Committee has reviewed suspension of Shri Veerbhadram Vislavath, (Civil Code : 11131), DCIT after taking into account all the facts, inter alia including 'acquittal order' dated 17.03.2021 of Hon'ble Court of Spl. Judge under POSCO Act, 2012, Representations dated 22.03.2022 & 26.04.2022 of Shri Veerbhadram Vislavath and Legal Notice dated 31.01.2022 served by Advocate Asmita C. Pendhakar and P.E. Report on the complaint regarding alleged debauch character and spending night in Hotel with a number of call girls. The Review Committee found that since Charge Sheet issued against the officer are grave in nature and the P.E. Report on complaint is primarily indicating his alleged involvement in moral turpitude as also information about status of filing of an appeal against the acquittal order by the State of Maharashtra or aggrieved party is not available in definite term and the same is awaited, the Committee recommends to continue suspension of Shri Veerbhadram Vislavath (11131), DCIT for a further period of 180 days beyond 13.05.2022. The case however, may be reviewed further in case new facts emerge."
21. The sequitur of the above decision was the order dated 13th May 2022 continuing the suspension of the respondent, which was challenged by amending the original application.
22. The undisputed facts emerging from the above narration of facts are these: -
(i) The trial under the POCSO Act against the respondent has resulted in his acquittal;
(ii) No provision of the CCS (CCA) Rules has been shown which could result in a punishment owing to establishment of a charge of the nature the original applicant was charged with vide charge-sheet dated 4th January 2019, particularly so when we are informed that no appeal has been carried from the judgment and order dated 17th March 2021;Page 10 of 14
J.V.Salunke,PS Oral Judgment-WPL.33749.2022 (1)
(iii) The instructions issued by the DoPT and the circulars of the CVC are clear in terms that no action on anonymous/pseudonymous complaints needs to be taken and also that any violation of such instructions/circulars would be viewed seriously.
(iv) Even then, a preliminary inquiry was conducted culminating in the report dated 2nd March 2022, based whereon the Suspension Review Committee was of the view that the suspension of the respondent should be continued for a period of 180 days beyond 13th May 2022. Conveniently, the Suspension Review Committee ignored the contentions raised on behalf of the respondent by his learned advocate by simply recording that the legal notice had been duly considered; and
(v) Despite receipt of the preliminary inquiry report dated 2nd March 2022, which has been generated in violation of the instructions of the DoPT and the circulars of the CBC, no disciplinary proceedings have been initiated against the respondent despite lapse of more than 9 (nine) months.
23. It is in the light of the aforesaid undisputed facts that we are unhesitatingly of the opinion that the order of the Tribunal, quashing the order of suspension, merits no interdiction.
24. Suspension that the original applicant suffered is in the nature of an interim suspension, which could be continued, at the extreme, till the conclusion of the judicial proceedings. The crime in connection with which the original applicant was arrested has since culminated in the judgment and order of the Special Judge dated 17th March 2021. The respondent, deemed to have been placed under suspension in view of his Page 11 of 14 J.V.Salunke,PS Oral Judgment-WPL.33749.2022 (1) detention in custody in excess of 48 hours, could be continued under suspension for a further period had there been genuine reasons therefor. In an exceptional case, such suspension could have been continued till the period for preferring an appeal against the judgment and order dated 17th March 2021 had expired. Even till this date, no appeal has been preferred, either by the State of Maharashtra or the victim/her family. The judgment has, therefore, attained finality. There could be no earthly reason for the Suspension Review Committee to direct continuation of suspension beyond 13th May 2022. If indeed the preliminary enquiry report dated 2nd March 2022 is the trigger for such continuation, the same has to be regarded as unworthy of being given any credence in view of the instructions/circulars of the DoPT/CVC. We are afraid, the officer who directed preliminary enquiry could also expose himself to be proceeded against in terms of such instructions/circulars for violation of its terms.
25. Since we have found the decision-making process leading to the order dated 13th May 2022 suffer from the vices of illegality and unreasonableness, we are ad idem with the Tribunal that the decision dated 28th April 2022 of the Special Review Committee and the consequent order dated 13th May 2022 are indefensible.
26. Much was argued by Mr. Shetty by referring to the contents of the anonymous complaint. According to him, to maintain discipline, it is the duty of the petitioners to ensure that a high-ranking officer like the respondent, who has prima facie been found to indulge in acts of moral turpitude, should not be reinstated in service. It has also been contended that Page 12 of 14 J.V.Salunke,PS Oral Judgment-WPL.33749.2022 (1) the preliminary inquiry report dated 2nd March 2022 having hinted at prima facie involvement of the respondent in further acts of moral turpitude, the Tribunal was not justified in interfering with the order of suspension.
27. We have considered the contentions of Mr. Shetty with the attention and seriousness the same deserves. However, we find no substance in it. We repeat, the respondent was placed under suspension because he was taken into custody in connection with Crime No. 169 of 2018 registered at Gamdevi Police Station and not because of the petitioners' intent to initiate disciplinary proceedings against him on the basis of the anonymous complaint or the subsequent preliminary enquiry report dated 2nd March 2022. The two incidents, distinct and different, could not have been mixed up for the purpose of ensuring that the respondent is kept away from work.
28. We were initially inclined to grant leave to the petitioners to initiate disciplinary proceedings against the respondent on the basis of the preliminary enquiry report dated 2nd March 2022 and even to grant them liberty to place the respondent under suspension afresh; however, our attention having been drawn to the instructions of the DoPT and the circulars of the CVC, we are left with no other option but to conclude that so long such instructions/circulars hold the field and are not amended, any action taken on the basis of the anonymous complaint received by the petitioners cannot be acted upon to the detriment and prejudice of the respondent. We hope and trust, the UPSC would proceed to make an appropriate recommendation for taking the disciplinary proceedings Page 13 of 14 J.V.Salunke,PS Oral Judgment-WPL.33749.2022 (1) initiated by the charge-sheet dated 4th January 2019 to its logical conclusion in accordance with law and in the process, to put the controversy at rest.
29. For the reasons aforesaid, we hold the writ petition to be devoid of merits and not deserving even an admission. The same stands dismissed, but without any order for costs.
30. The order of the Tribunal impugned before us shall be implemented by the petitioners immediately, but not later than 7 (seven) days from date of uploading of this order by allowing the respondent to resume his duty. Compliance of the other directions of the Tribunal shall be effected within a period of 6 (six) weeks from this date.
SALUNKE
JV
(ABHAY AHUJA, J.) (CHIEF JUSTICE)
Digitally signed
by SALUNKE J V
Date: 2022.12.05
20:13:10 +0530
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