Central Administrative Tribunal - Ernakulam
Gugulloth Lakshman Ips vs Chief Secretary State Of Kerala on 8 January, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH,
ERNAKULAM
Original Application No. 180/00437/2023
Monday, this the 8th day of January, 2024
CORAM:
Hon'ble Mr. Justice Sunil Thomas, Member (J)
Hon'ble Mr. K.V. Eapen, Member (A)
Gugulloth Lakshman IPS (KL 1997),
Inspector General of Police (Training),
(under suspension), aged 50 years,
S/o. Sri G. Goliya,
Residing at quarters No. 3,
Edamala, Dilkush Compound,
Udhara Shiromany Road,
Behind Police Headquarters (PHQ),
Vazhuthacaud, Sasthamangalam (Post),
Thiruvananthapuram - 695 010.,
Mobile No.- 8129899589. ..... Applicant
(By Advocates: Mr. O.V. Radhakrishnan, Sr. along with
Mr. Praveen K. Joy, Mr. Vishnudas H. and
Mr. George Varghese)
Versus
1. State of Kerala,
represented by its Chief Secretary,
Secretariat,
Thiruvananthapuram - 695 001.
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2. Chief Secretary,
Government of Kerala,
Government Secretariat,
Thiruvananthapuram-695 001. ..... Respondents
(By Advocates: Mr. Asok M. Cherian, Additional Advocate General
and Mr. T.S. Shyam Prasanth, Government
Pleader)
This Original Application having been heard on 29.11.2023, the
Tribunal on 08.01.2024 delivered the following:
ORDER
Per: Justice Sunil Thomas, Judicial Member -
The applicant is an Inspector General of Police in Kerala cadre of the Indian Police Service (IPS). He was placed under suspension by Annexure A1 order of the Chief Secretary dated 10.11.2021, invoking Rule 3(1) of the All India Service (Discipline &Appeal) Rules, 1969 (hereinafter referred to as the Discipline & Appeal Rules), in contemplation of disciplinary proceedings. It was alleged in the communication that he had maintained an unholy relationship with an alleged fraudster involved in a criminal case. An inquiry was conducted by an Additional Director General of Police and report was submitted. By Annexure A7 communication dated 8.3.2023, the applicant was directed to submit his representation against the inquiry report. The inquiry report 3 was also enclosed along with that communication. Annexure A9 written representation dated 12.3.2023 was submitted alleging, inter alia, that the allegation against him was not established. However, no action was taken thereon.
2. By Annexure A10 communication dated 10.2.2023, his suspension was revoked and by Annexure A11 communication dated 22.3.2023, he was posted as Inspector General of Police, Training. In the meanwhile, the applicant was arrayed as an accused along with the alleged fraudster in crime No. 260/CB/CU-II/EKM/D/2021, for offences punishable under Section 468, 420, 120(B) and 34 IPC by report of the police dated 12.6.2023. The applicant filed an Anticipatory Bail Application No. 4965 of 2023 before the Kerala High Court, which was allowed directing release of the applicant, in the event of his arrest, after questioning. The applicant appeared before the investigation officer thereupon on 23.8.2023 and his formal arrest was recorded. He was released on bail. While so, he was served with Annexure A17 GO dated 8.9.2023 invoking Rule 3(1) of the Discipline & Appeal Rules, and placed under suspension against a contemplated disciplinary action. It was alleged that the applicant was involved in the said crime and was arrayed as the 4th 4 accused in the crime. Challenging Annexure A17, the Original Application has been filed
3. Pending the Original Application, by Annexure A18 GO dated 7.10.2023, Rule 3(1) referred in paragraph 3 of Annexure A17 was substituted by Rule 3(3), of the Discipline & Appeal Rules. Thereupon, OA was amended by the applicant extending the challenge to Annexure A18 on various grounds mentioned therein. The reliefs sought in the amended OA are as under:
"i. to call for the records relating to Annexure A17 GO(Rt) No. 4107/2023/GAD dated 8.9.2023 and Annexure A18 GO (Rt) No. 4537/2023/GAD dated 7.10.2023 and to set aside the same;
ii. to issue appropriate direction or order, directing the respondents 1 and 2 to reinstate the applicant into service forthwith and to treat the period during which the applicant is kept under suspension as per A-1 GO (Rt). No. 4324/2021/GAD dated 10.11.2021 and A-17 GO (Rt) No. 4107/2023/GAD dated 8.9.2023 as duty for all purposes and to disburse arrears of full pay and allowances admissible to him at the earliest and at any rate, within a period that may be fixed by this Hon'ble Tribunal."
4. A reply statement was filed answering the allegations in the Original Application. As agreed by both sides, the OA itself was heard. On behalf of the applicant, learned Senior Advocate Mr. O.V. Radhakrishnan instructed by Mr. Praveen K. Joy was heard. On behalf of the respondents 5 Additional Advocate General Mr. Asok M. Cherian, instructed by Mr. T.S. Shyam Prasanth, Government Pleader was heard. Examined the records.
5. Challenging Annexures A17 and A18, the learned Sr. Advocate advanced seven specific grounds which are as follows:
I. Annexure A18, modifying Annexure A17 substituting Rule 3(3) for Rule 3(1) of the Discipline Appeal Rules is totally illegal and involves wrongful usurpation of authority and is a jurisdictional error. Hence, Annexure A18 is ultra virus, void and inoperative.
II. In Annexure A17 order of suspension it was asserted that the applicant was placed under suspension against 'contemplated disciplinary action' under Rule 3(1) of AIS (D&A) Rules. The above stand taken in Annexure A17 order of suspension cannot be converted to one under Rule 3(3) of the said Rules, by merely substituting Sub-Rule (3) of Rule 3 for Sub-Rule (1) of Rule 3, without there being any foundational facts and root allegation for invoking sub-rule (3) 6 of Rule 3 of the AIS (D&A) Rules, 1969.
III. Issuance of Annexure A18, modifying Annexure A17, pending determination of the legality of Annexure A17 before this Hon'ble Tribunal is sub judice, and the Government ought to have stayed its hands off, once the matter is landed in the Tribunal, on the principles of sub judice.
IV. Crime No. 260/CBCU II/D/EKM/2021 is still under investigation under Section 156 (1) of the Code of Criminal Procedure and the final report/charge sheet under Section 173 of the Code of Criminal Procedure is yet to be filed before the Magistrate. Therefore, in the absence of any criminal charge pending against the applicant, there was no ground for invoking Sub-Rule (3) of Rule 3 of All India Services (D&A) Rules, 1969 against him.
V. Section 19(4) of the Administrative Tribunals Act ordains that where an application has been admitted by a Tribunal, every proceeding under the relevant service Rules as to redressal of grievances in relation to the subject-matter of 7 such applications pending immediately before such admission shall abate. Annexure A18 GO was issued in violation of said Rule and consequently Annexure A18 is legally not sustainable.
VI. No reply statement was filed to the amended Original Application, traversing the averments in the amended application. Hence, the factual averment in the amended OA may be treated as admitted.
VII. The legal effect of modification of Annexure A17 by Annexure A18 is that Annexure A17 as it stood before modification was an improper exercise of power, which cannot withstand the scrutiny of law.
6. Grounds Nos. I, II and VII - The above contentions can be considered together. Assailing Annexures A17 and A18, the learned Senior counsel for the applicant advanced the arguments under the said grounds I, II and VI that both the above Annexures individually and cumulatively are not legally sustainable. Before proceeding with the evaluation of the above contentions, it is essential to refer to the relevant 8 portion of Annexures A17 and A18. Annexure A17 refers to the crime 260/2021 registered against the fake antique dealer and the findings of the preliminary inquiry conducted against that fake antique dealer. After reference to the preliminary inquiry by the concerned Dy.SP of the Crime Branch, Annexure A17 stated:
"............The preliminary enquiry has revealed that Shri Gugulloth Lakshman IPS (KL:1997) is involved in this crime by conspiring with accused Monson Mavunkal in deceiving the complainant. The complainant has produced two video footages to prove the Shri Gugulloth Lakshman's connivance and involvement in the crime and thus it is evident that the officer had sufficient knowledge in the process of cheating the complainant. The accused officer has been arrayed as A4 in the above case. In the letter 4th cited, it has been reported that he was arrested on 23.8.2023 and released on bail. In the enclosed report, it is stated that the involvement of the officer in the crime has been revealed during the course of interrogation. ......."
It was stated in Annexure A17 that the DGP and the State Police Chief, by his communication dated 5.7.2023, had found that the applicant herein had committed grave misconduct and recommended for taking stringent disciplinary action against him. Considering the serious nature of the allegations which prima facie amounted to official misconduct, abuse of official powers and violation of All India Services (Conduct) Rules, 1968, the applicant was placed under suspension under Rule 3(1) of the Discipline & Appeal Rules with immediate effect.
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7. This was followed by Annexure A18. In Annexure A18 it was stated that the last sentence in paragraph 3 of Annexure A17 will be read as follows:
"Therefore, Shri Gugulloth Lakshman IPS (KL-1997), Inspector General of Police, Training is placed under suspension under Rule 3(3) of All India Services (Discipline & Appeal) Rules, 1969 with immediate effect."
8. A perusal of Annexure A17, in conjunction with Annexure A18 discloses that the limited purport of Annexure A18 was only to substitute Rule 3(1) of the Discipline & Appeal Rules referred in the last sentence in paragraph 3 of Annexure A17, as Rule 3(3). Assailing Annexure A18 and Annexure A17, it was vehemently contended by the learned Senior Counsel that such an act was illegal, usurpation of authority and amounted to a jurisdictional error. Consequently, Annexure A18 was ultra vires, void and inoperative. It was further contended that by Annexure A18, Annexure A17 was re-written or modified. The source of power of placing the applicant under suspension as per the original Annexure A17 was changed or altered and brought under Rule 3(3) of the Discipline & Appeal Rules. The legal effect of it was that Annexure A17 was no longer operative as it stood before its modification. It was further contended that 10 the legality or otherwise of the order of suspension of the applicant was to be determined on the basis of the modified order and was to be adjudicated on a legislative grant of power on the Government under Rule 3(3) of the Discipline & Appeal Rules.
9. It was further contended that, prima facie, to place the applicant under suspension by Annexure A17, the Government relied on the recommendation of the DGP and State Police Chief and the prima facie finding of the Government that acts of the applicant amounted to official misconduct and abuse of official powers and violation of the Conduct Rules. The above foundational facts and root basis for suspension, indubitably stated in Annexure A17 have not been altered or modified in Annexure A18, except substituting Rule 3(1) by Rule 3(3). It was contended that the foundational facts and the root basis for placing the applicant under suspension under Rule 3 (1) have not been invoked, for invoking sub-Rule (3) of Rule 3 of the concerned Rules which was in exercise of a provision regarding a member of the service, in respect of or against whom an investigation, inquiry or trial relating to criminal charge was pending. No ground for invoking Rule 3(3) was alleged or shown to exist, it was contended.
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10. A co-joint reading of Annexures A17 and A18 clearly shows that the only purport of Annexure A18 was to alter "Rule 3(1)" referred in Annexure A17 as "Rule 3(3)". Though the learned Senior counsel contented that no factual materials were placed to invoke Rule 3(3), and that the foundational basis for invoking provision under Rule 3(3) remained unaltered, and hence the exercise of jurisdiction was wrong and ultra vires, that precisely was the argument of learned Additional Advocate General in favour of Annexure A18. The specific contention of the learned Additional Advocate General was that the purport of Annexure A18 was only to correct the mistake that occurred due to the wrong quoting of the relevant Rule.
11. In the background of above contentions the attempt of the Tribunal should be to ascertain whether a co-joint reading of Annexure A17 as modified by Annexure A18 brings out or spells out grounds for invoking the provision under Rule 3(3). Before proceeding further, the various decisions relied on by the learned Senior counsel has to be appreciated. To contend that once an order is issued that could not be allowed, the learned Senior counsel relied on the decisions in State of Punjab v. Khemi Ram (AIR 1970 SC 214) at paragraph 16, B.J. Shelat v. State of 12 Gujarat (AIR 1978 SC 1109) at paragraph 8 and Municipal Corporation of Delhi v. Qimat Rai & Ors. [(2007) 7 SCC 309], at paragraph 27. In Khemi Ram's case (supra), it was held that once an order is sent out it goes out of the control of such an authority and therefore, there would be no chance whatsoever of changing mind or modifying it. This decision was followed by another Bench of the Supreme Court in B.J. Shelat's case (supra). In Qimat Rai's case (supra), it was held that ordinarily an order would be presumed to have been made, when it is signed, and once an entry in that regard is made in the requisite register, and it cannot be changed or altered later.
12. In Khemi Ram's case (supra), the question that came up before the Supreme Court was the stage at which an order of suspension can be presumed to be communicated to the delinquent. It was contended that the word "communicate" has to be interpreted to mean that it becomes effective only on its receipt by the concerned servant, unless the provision in question expressly provides. Explaining it, it was held that it was the communication of the order which was crucial and not its actual receipt by the officer concerned. The reasoning was that such communication was necessary because till the order was issued and actually sent out of 13 the person concerned, the authority making such an order would be in a position to change its mind and modify it, if it thought fit. But once such an order is sent out, it goes out of the control of such authority and therefore there would be no chance whatsoever of changing its mind or modifying it. This proposition was followed in B.J. Shelat's case (supra) by the Supreme Court. In Qimat Rai's case (supra) also, the same principle was followed and it was held that an order ordinarily is presumed to have been made when it is signed. However, when it is required to be communicated, where the communication thereof is a necessary ingredient for bringing an end result to the status or to provide a person an opportunity to take recourse to law, if he is aggrieved.
13. A perusal of all the three decisions show that they do not lay down any principle that once an order is issued it cannot be changed or altered under any circumstances. The comments made by the Supreme Court as relied by the applicant were in a totally different context. Such comments have been culled out and sought to be applied in a different context. None of these decisions lay any principle that once an order is communicated it cannot be revoked, changed or modified. On the other hand, it only lays down the principle that an order becomes operative once it is 14 communicated, since, once order is communicated, it cannot be altered or changed thereafter and the order remains intact. Evidently, the reliance placed on the above decisions by the learned Senior counsel is absolutely not applicable to the facts of the case.
14. For a clear evaluation of the further arguments advanced by the learned Senior counsel it is essential to refer to Rule 3(1) and Rule 3(3) of All India Services (Discipline & Appeal) Rules, 1969, which is extracted as follows:
"3(1) If, having regard to the circumstances in any case and, where articles of charge have been drawn up, the nature of the charges, the Government of a State or the Central Government, as the case may be, is satisfied that it is necessary or desirable to place under suspension a member of the Service, against whom disciplinary proceedings are contemplated or are pending, that Government may-.
...........
3(3) A member of the Service in respect of, or against, whom an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Government be placed under suspension until the termination of all proceedings relating to that charge, if the charge is connected with his position as a [member of the Service] or is likely to embarrass him in the discharge of his duties or involves moral turpitude."
15. Annexure A18 clearly shows that the only change made by Annexure A18 was that Rule 3(1) quoted in Annexure A17 stood modified to Rule 3(3). The factual details remained the same. There was 15 no new allegation and the entire factual basis on which Annexure A17 was issued remained the same, but for the change in the relevant Rule provision. The specific argument of the learned Senior counsel for the applicant was that Annexure A18 was bad in law and Annexure A18 purportedly eclipsed Annexure A17, consequently, both Annexures A17 and A18 have become redundant.
16. There cannot be any dispute that the Government has the power to place an officer under suspension invoking Rule 3(1) or under Rule 3(3). Supporting Annexures A17 and A18, the learned Additional Advocate General contended that Annexure A18 was only intended to correct the wrong quoting of the relevant Rule in Annexure A17, which stood substituted by Annexure A18. The entire basis of invocation of Rule 3(3) remained the same, notwithstanding the change of Rule position. It was contended that there was no allegation of malafides. It was further contended that in the absence of any specific challenge to the authority of the Government, once the power is exercised, it was immaterial whether the Rule, quoted was appropriate or not, it was contended. The learned Additional Advocate General contended that wrong quoting of a Rule will not vitiate the original order, if the authority who has issued it, was 16 competent to issue such an order. To substantiate this contention, the learned Additional Advocate General placed reliance on the decision of the Supreme Court in Hukumchand Mills Ltd. v. State of Madhya Pradesh & Anr. (AIR 1964 SC 1329), Rabindra Singh v. Financial Commissioner, Cooperation, Punjab & Ors. [(2008) 7 SCC 663] and Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal [(1983) 2 SCC 422] at paragraph 5. In Hukumchand Mills's case (supra), regarding the non-quoting of the relevant Rule, the Supreme Court held that it was true that in the opening part of the notification under challenge, it was said that the amendments were made under Rule 17 of the Tax Rules; but that in the opinion of the Court would not conclude the matter, for if the Government had the power to make amendments under the concerned Act, the amendments in the Rules would be justified under the power, in spite of wrong words used in the opening part of the notification. It was well settled that mere wrong reference to the power under which certain actions were taken by the Government would not per se vitiate the actions done, if they can be justified under some other power under which the Government could lawfully do those acts. In Rabindra Singh's case (supra), though on a 17 totally different context, the impact of wrong quoting of the Section was reiterated by the Supreme Court. It was held that what matters for exercise of jurisdiction was the source of power and not the failure to mention the correct provisions of Law. It was held that even in the absence of any express provision, having regard to the principles of natural justice in such a proceeding, the courts will have ample jurisdiction to set aside an ex parte decree, subject of course to the statutory interdict. Answering the contention of the learned Senior counsel that Annexure A18 amounted to usurpation of powers by the Government and the wrong usage of such power, the learned Additional Advocate General referred to paragraph 5 of Ben Hiraben Manilal's case (supra). Supreme Court held that it was well settled that if there was indeed a power, will be referable to a jurisdiction, when the validity of the exercise of that power was in issue, which confers validity upon it and not to a jurisdiction under which it would be nugatory, though the section was not referred, and a different or a wrong section of different provisions was mentioned. It was further held that it was well settled that a wrong reference to the power under which the action was taken by the Government would not per se vitiate that action, if it could be justified 18 under some other power under which the Government could lawfully do that act.
17. Annexure A17 clearly shows that there was wrong quoting of the relevant Rule. Rule 3(3), can be invoked in situations wherein a member of the service in respect of whom or against whom an investigation inquiry or trial relating to a criminal charge was pending, if the charge was connected with his position as a member of the Service or was likely to embarrass him in the discharge of his duties. Annexure A17 discloses that the applicant was arrayed as an accused. The respondents has prima facie alleged that the applicant has misused his power and to that extent the charge was connected with his position as a member of the Service. It also discloses that the applicant was arrayed as an accused and was arrested in connection with the crime. Materials prima facie substantiating the conclusion of the Government to invoke Rule 3(3) are seen disclosed in Annexure A17. Having considered this, we find considerable force in the submissions made by the learned Additional Advocate General and consequently the contentions advanced by the learned Senior counsel for the applicant are liable to be rejected. 19
18. Ground No. IV - The learned Senior counsel contended that crime No. 260/2021 was still under investigation under Section 156(1) of the Code of Criminal Procedure and the final report/charge sheet under Section 173 of the Code of Criminal Procedure was yet to be filed before the Magistrate. In the absence of any criminal charge pending against the applicant, there was no warrant for invoking Rule 3(3) of the Discipline & Appeal Rules, it was contended. Police have not charge sheeted the applicant by filing final report under Section 173 of the Code of Criminal Procedure before the competent court and the Government was not competent to invoke Rule 3(3). Referring to Rule 3(3) it was contended that it applies only when an investigation or inquiry relating to criminal charge was pending. It was contended that criminal charge was pending in respect of a member of service only when the final report/charge sheet was filed before the Court under Section 173 of the Code of Criminal Procedure and not earlier. Hence, Annexure A18 has no legal sanction of law or legal backing and hence ultra vires.
19. The expression "relating to criminal charge is pending" occurring in Rule 3(3) imposes cumulative conditions. Firstly, the member of service must be charged for criminal offence and the charge was formulated after 20 inquiry, as distinguished in the popular meaning of the word as implying inculpation of a person for alleged offence. Secondly, the charge must be connected with the position as a member of the service or was likely to embarrass him in the discharge of his duties or involves moral turpitude. These cumulative conditions were conspicuously absent in the case of the applicant, it was contended.
20. To substantiate the above contention, the learned Senior counsel placed reliance on the decisions reported in Abhinandan Jha v. Dinesh Mishra (AIR 1968 SC 117) and Esher Singh v. State of Andhra Pradesh [(2004) 11 SCC 585]. Referring to paragraph 13 of Abhinandan Jha's case (supra) the learned Senior counsel contended that the Supreme Court was of the view that the Criminal Procedure Code as such does not use the expression charge sheet or final report, but it was understood in the Police Manual containing Rules and Regulations that a report by the police filed under Section 170 of the Criminal Procedure Code was referred to as the charge sheet. In Esher Singh's case (supra), referring to paragraphs 20 and 21, the learned Senior counsel pointed out that the Code does not define what charge was. It was a precise formulation of a specific accusation made against a person, who was entitled to know its 21 nature at the earliest stage. A charge was not an accusation made or information given in the abstract, but an accusation made against a person in respect of an act committed or omitted in violation of penal law forbidding or commanding it.
21. In Abhinandan Jha's case (supra), the question that came up before the Supreme Court was whether a Magistrate can direct the Police to submit charge sheet, when the police after investigation into a cognizable offence had laid a final report under Section 173 of Cr.PC. It was in this context the significance of the term "charge sheeted" was discussed by the Supreme Court. On the other hand, in Esher Singh's case (supra), the relevant provision of the TADA Act permitted use of confession statement of an accused against a co-accused, provided the co-accused was charged and tried in the same case together with such accused. In that context, the question came up before the Supreme Court as to the correct meaning of "charged and tried". Supreme Court held that the Code does not define what a charge was, but it was the precise formulation of the specific accusation made against a person.
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22. Answering this, the learned Additional Advocate General invited our attention to Black's Law Dictionary, Revised 4th edition, 1968 wherein the meaning of the term 'pending' was provided. As per the dictionary meaning, 'pending' means "Begun, but not yet completed; during; before the conclusion of; prior to the completion of.....". It was contended that in that context "charge pending" can take into its ambit, pending investigation also. The learned Additional Advocate General further referred to the decision in Shailesh Dhairyawan v. Mohan Balkrishna Lulla [(2016) 3 SCC 619] at paragraph 31, wherein the relevance of purposive interpretation was discussed. Supreme Court held that the principle of purposive interpretation or purposive construction was based on the understanding that the court was supposed to attach that meaning to the provisions which serve the purpose behind such a provision. Relying on it, it was contended that the court shall interpret the term "pending charge" in the context of its purpose and not by giving a limited pedantic approach.
23. Evidently, the learned Senior counsel was contending that the term "criminal charge is pending" as found in Rule 3(3) indicates a situation after laying a final report, as contemplated under Section 173 of the Code 23 of Criminal Procedure. The crux of the contention was that Rule 3(3) can be invoked only after final report is laid by the Police, after investigation.
24. At the outset, this argument is liable to be rejected in the context of the clear meaning of the term and from a plain reading of Rule 3(3), in its entirety. The term used is "criminal charge is pending" and it does not employ the words "charge sheeted" as in the case of a person after the filing of the final report. The interpretation as advanced by the learned Senior counsel does not get its support from the Rule, nor does it stand for reason for obvious reasons. Rule 3(3) specifically states that it can be invoked when a member of service in respect of whom or against whom an "investigation, inquiry or trial relating to criminal charge is pending". Clearly the usage of the term investigation indicates that it can be invoked even when the investigation is pending and evidently, much prior to laying of the final report and even before the inquiry, as contemplated under the Code of Criminal Procedure has commenced. If the argument of the learned Senior counsel that Rule 3(3) can be invoked only when charge sheet is filed is accepted, the term "investigation" as found in Rule 3(3) becomes redundant. It is also seen that both the decisions relied on by the learned Senior counsel were rendered in totally different context 24 and has no relevance to the facts of this case. Hence, the contention of the learned Senior counsel is liable to be rejected.
25. Grounds Nos. III and V - The learned Senior counsel contended that issuance of Annexure A18 modifying Annexure A17 GO during the pendency of determination of legality of Annexure A17 before the Tribunal was sub judice and the Government ought to have stayed its hands off, once the matter landed in the Tribunal, on the principles of sub judice. It was contended by the learned Senior counsel that such an attempt amounted to interference in the judicial process subject to administrative discretion. To substantiate it, the learned Senior counsel referred to the decision in Siemens Aktiengeselischaft and Siemens Limited v. Delhi Metro Rail Corporation Limited & Ors. [(2014) 11 SCC 288], at paragraph 27, which held as follows:
"27. That brings us to the question whether the Government of India was justified in appointing a Committee to test the evaluation of bids and, if so, whether this Court ought to look into the Report of the Committee. There is more than one aspect that needs to be kept in view in this regard. The first and foremost is the fact that the Committee was appointed at a stage when the matter was already pending before the High Court. Considerable time was spent by learned counsel for the parties in debating whether the constitution of the Committee by the Government itself tantamounted to interference with the course of justice, hence contempt. We do not, however, consider it necessary to pronounce upon that aspect in these proceedings especially because we have not been called upon to initiate such contempt proceedings. All that 25 we need say is that once the Government had known that the entire issue regarding the validity of the process adopted by DMRC including the transparency and fairness of the process of evaluation of the bids was subjudice before the High Court of Delhi and later before this Court, it ought to have kept its hands off and let the law take its course. It could have doubtless placed all such material as was relevant to that question before the High Court and invited a judicial pronouncement on the subject instead of starting a parallel exercise. The Government could even approach the High Court and seek its permission to review the process of evaluation either by itself or through an expert Committee if it felt that any such process would help the Court in determining the issues falling for consideration before the Court more effectively. Nothing of that sort was, however, done. On the contrary even when the Secretary to the MoUD pointed out that the matter is subjudice and any further action in the matter could await the pronouncement of the Court, the Hon'ble Minister heading MoUD directed the constitution of the Committee with the following terms:
"2(1) To examine if a fair, equitable and transparent tender process was followed by DMRC, as per the prescribed guidelines"."
It was held that the Government should have stayed its hand off, once the matter landed in the court.
26. A reference to the above judgment shows that, that was a case were tenders were floated for the purchase of electrical cars by the DMRC. The manner of acceptance of values for the rating bidders, whether violated the tender norms was the subject matter of the proceeding pending before the Supreme Court. After the orders of the High Court which held that the tender process was just, fair and transparent and even when the matter was pending before the Supreme Court, a committee was constituted by 26 the Government with a specific direction to verify the validity of tender process. Seriously deprecating the above conduct, it was held by the Supreme Court that such a parallel evaluation by a committee appointed by the Government during the pendency of the matter in the High Court and later in the Supreme Court was impermissible and the report of the said committee was inadmissible for arriving at a decision. The above decision was arrived at by the Supreme Court on a precise finding that it amounted to subjecting judicial pronouncement to administrative review. It was further held that the Government should have approached the Court for setting up such a committee and the terms of reference should have sought to find out better policies and procedure, but nothing was done.
27. In the above background the Supreme Court held that the procedure adopted by the Government was unfair. This decision has absolutely no connection with the case at hand. When Annexure A17 was under challenge and consideration before this Tribunal, the clause referred to in Annexure A17 was found to be defective, according to the Government, which was corrected. Substantively, the suspension order covered by Annexure A17 remained intact. Hence, the above decision 27 cannot be held to have any application to the facts involved in the present case. Further, the Government did not tinker with Annexure A17 and only the statutory provision which they relied on for suspending the applicant herein, was modified by Annexure A18. To that extent, we find that the decision has no application to the facts of the case.
28. Advancing the second limb of argument, it was contended by the learned Senior counsel that under Section 19(4) of the Administrative Tribunals Act, where an application has been admitted by the Tribunal, every proceeding under the relevant Statue as to redressal of the grievances remain abated. The precise application of the above is clear from the Statute itself, which provides that what is prevented or prohibited under Section 19(4) is the relevant rules/service rules regarding the redressal of the grievances in relation to subject matter of such application pending before the admission shall abate. It clearly shows that during the pendency of the matter before the Tribunal, the opposite side shall not pass any orders for the redressal of the grievances, which precisely was the subject matter of proceeding before the Tribunal. Otherwise, it may amount to tinkering with the subject matter involved in the original proceeding before the Tribunal and to that extent sub judice. 28
29. As mentioned above, both the above contentions cannot apply in the facts of the case at hand. The suspension order was not interfered with, modified or tinkered with by the Government. Only the provision which they relied on stood corrected since according to the Government there was a wrong quoting of the Rule. To that extent both the arguments advanced by the learned Senior counsel cannot be accepted and we are inclined to reject it.
30. Ground No. VI - It was contended by the learned Senior counsel for the applicant that no reply statement was filed by the respondents to the amended Original Application. Hence, it should be deemed that facts mentioned therein have been admitted. To substantiate it learned Senior counsel relied on the decision reported in Standard Charted Bank v. Andhra Bank Financial Services Ltd. [(2015) 4 KLT SN 25] and C.S. Rowjee v. State of Andhra Pradesh (AIR 1964 SC 962), paragraph 22. In both the decisions it was held that the settled position of law was that if an allegation made in the plaint was not specifically denied in the written statement, it was treated as admitted.
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31. A perusal of the amended OA clearly shows that it was pursuant to the issuance of Annexure A18 that OA was amended. Virtually the stand of the respondents was that all the factual materials mentioned in Annexure A17 remained the same and only a misquoting of the relevant rule was clarified in Annexure A18. Prima facie this appears to be established in the earlier paragraphs of this order. Further, no new pleading on facts was pleaded. Hence, in the absence of any new facts alleged, in the amended OA, it was incumbent on the respondent, to decide whether additional reply statement was liable to be filed or not. Consequently, it is only to be held that there was no illegality in not filing separate pleadings answering the amended OA. Consequently, the above contention is only to be rejected.
32. An evaluation of the entire facts as discussed above, in the light of the legal provisions clearly show that none of the grounds alleged by the applicant to challenge Annexures A17 and A18 are established. Consequently, the applicant is not entitled for any reliefs. The Original Application fails and is accordingly, dismissed. However, there will be a direction to the respondents to complete the inquiry as expeditiously as possible. No order as to costs.
(K.V. EAPEN) (JUSTICE SUNIL THOMAS)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
"SA"
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Original Application No. 180/00437/2023
APPLICANT'S ANNEXURES
Annexure A1 - True copy of the GO (Rt) No. 4324/2021/GAD dated 10.11.2021 of the 2nd respondent.
Annexure A2 - True copy of the report No. 117/Camp/ADGP/CB/2021 dated 6.11.2021 along with Annexures 1 to 4 of the Addl. Director General of Police, Crime Branch, Thiruvananthapuram.
Annexure A3 - True copy of the articles of charges Nos. AIS-
C3/314/2021-GAD dated 8.12.2021 along with the covering letter dated 8.12.2021 of the 2nd respondent. Annexure A4 - True copy of the representation dated 21.12.2021 of the applicant to the 2nd respondent.
Annexure A5 - True copy of the GO(Rt) No. 1932/2022/GAD dated 10.5.2022 of the 2nd respondent.
Annexure A6 - True copy of the order dated 19.9.2022 in OA No. 278/2022 of this Hon'ble Tribunal.
Annexure A7 - True copy of the letter No. AIS-C3/314/2021-GAD dated 8.3.2023 of the Deputy Secretary for 2nd respondent.
Annexure A8 - True copy of the inquiry report dated 19.1.2023 of the Addl. Director General of Police (Intelligence), Inquiry Authority.
Annexure A9 - True copy of the written objection dated 12.3.2023 of the applicant to the 2nd respondent.
Annexure A10 - True copy of the GO(Rt) No. 699/2023/GAD dated 10.2.2023 of the 2nd respondent.
31Annexure A11 - True copy of the GO(Rt) No. 863/2023/GAD dated 22.2.2023 of the Joint Secretary to Government.
Annexure A12 - True copy of the report dated 12.6.2023 along with the English translation.
Annexure A13 - True copy of the order dated 21.6.2023 in BA No. 4965 of 2023 of the Hon'ble High Court of Kerala.
Annexure A14 - True copy of the notice No. 99/TD/DySP-
II/CB/EKM/2023 dated 14.7.2023 of the Deputy Superintendent of Police-II, Crime Branch, Ernakulam.
Annexure A15 - True copy of the notice No. 110/TD/DySP-
II/CB/EKM/2023 dated 3.8.2023 of the Deputy Superintendent of Police-II, Crime Branch, Ernakulam.
Annexure A16 - True copy of the interim order of bail issued on 25.8.2023 in BA No. 4965 of 2023 of the Hon'ble High Court of Kerala.
Annexure A17 - True copy of the GO(Rt) No. 4107/2023/GAD dated 8.9.2023 of the 2nd respondent.
Annexure A18 - True copy of the GO(Rt) No. 4537/2023/GAD dated 7.10.2023 of the 2nd respondent.
RESPONDENTS' ANNEXURES Annexure R1(a) -True copy of the Special Report dated 19.6.2023. Annexure R1(b)- GO(Rt) No. 4537/2023/GAD dated 7.10.2023.
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