Central Administrative Tribunal - Allahabad
Dr Shashank Yadav vs Central Board Of Indirect Taxes A& ... on 21 March, 2024
OA No. 330/0434 of 2023
(Reserved on 11.03.2024)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Allahabad this, the 21th day of March, 2024
Original Application No. 330/0434 of 2023
Hon'ble Mr. Justice Rajiv Joshi, Member (Judicial)
Hon'ble Mr. Mohan Pyare, Member (Administrative)
Dr. Shashank Yadav, S/o Sri Mahaveer Yadav, R/o 11/1 Muir Road,
Prayagraj, at present posted as Joint Commissioner, Central Board of
Indirect Taxes and Customs, (Customs & Indirect Taxes), presently
attached in the office of Chief Controller of Factories, Government
Opium and Alkaloid Factory, New Delhi
....Applicant
By Advocate: Shri Anoop Trivedi and Shri Vibhu Rai
VERSUS
1. Union of India through Secretary, Department of Revenue,
Ministry of Finance, New Delhi
2. Central Board of Indirect Taxes and Customs, Ministry of
Finance, New Delhi through its Chairman
......Respondents
By Advocate: Shri Manoj Kumar Sharma
ORDER
By Hon'ble Mr. Justice Rajiv Joshi, Member (Judicial):
Since the pleadings between the parties have already been exchanged and with the consent of learned counsel for both the parties, the matter is being decided finally at the Admission stage.
2. The instant Original Application under Section 19 of the Central Administrative Tribunal Act, 1985 has been filed for the following reliefs:
I. "To allow this applicant and set aside the Suspension Order dated 09.08.2021 passed by Deputy Secretary, Government of India, Ministry of Finance, Department of Revenue, (CBIT and Customs).Page 1 of 14
OA No. 330/0434 of 2023 II. To allow this applicant and set aside the extension of suspension order dated 28.03.2023 passed by Deputy Secretary, Government of India, Ministry of Finance, Department of Revenue, (CBIT and Customs).
III. To issue any other order or direction in favour of the applicant which this Hon'ble Tribunal deems fit and proper in the present facts and circumstances of the case, so as to secure the ends of justice.
IV. Award cost of the instant application to the applicant."
3. The brief facts as apparent from the record is that the applicant is an Indian Revenue Service (Customs and Indirect Taxes), Officer of 2010 Batch. The applicant was posted as General Manager, Government Opium and Alkaloid Works (hereinafter referred as GOAW), Ghazipur, U.P. and he was handed over the additional charge of GOAW, Neemuch, Madhya Pradesh with effect from 19.01.2021. After being handed over the charge of General Manager of the factory at Neemuch, Madhya Pradesh on 19.01.2021, the applicant has also continued its strict vigilance in the said factory premise as prior to the posting of applicant, the produce of the factories premises were being mishandled at the behest of certain persons involved in illegal uses of Opium and Alkaloids produced in the factory and also by drug mafia involved in illegal sale of narcotics. Thereafter, the Officer of Anti Corruption Bureau, Jaipur lodged a First Information Report on 17.07.2021, registered as FIR NO.264/2021 on the allegation that on the said date when the applicant was returning from the visit of the said factory premise of Neemuch, Madhya Pradesh in a duly permitted official vehicle with an official driver, they intercepted him and in the alleged interception after going through the car, they allegedly found a sum of Rs.16,32,401/- which according to them was an illegal money taken by the applicant from certain persons to illegally benefit them Page 2 of 14 OA No. 330/0434 of 2023 with respect to allotting them land as well as getting their produce at higher rates than their actual quality rate.
4. It is further apparent from the record that at the time of said interception, he was arrested and sent to jail without sanction or approval of the Competent Authority and accordingly, he was deemed to be suspended w.e.f. 17.07.2021 vide an order dated 09.08.2021, passed by the Deputy Secretary, Government of India, Ministry of Finance, Department of Revenue, (CBIT and Customs).
5. It is further apparent from the record that the charge-sheet in the criminal case against the applicant was also submitted on 13.09.2021. Thereafter, the applicant applied for bail and the bail was granted by the Rajasthan High Court vide order dated 15.09.2021 passed in S.B. Criminal Misc. Bail Application No.12676/2021 and he was released on 17.09.2021 itself. However, the said suspension order of the applicant was extended for another period of 180 days i.e., till 12.04.2022 vide order dated 12.10.2021 passed by the Suspension Review Committee. Thereafter, on 25.03.2022, the prosecution sanction was obtained from the Government. Aggrieved by the filing of charge-sheet as well as prosecution sanction, the applicant has already filed a case before the Rajasthan High Court, which is still pending.
6. It is further apparent from the record that the suspension of the applicant was further extended vide orders dated 12.10.2021, 11.04.2022, 09.10.2022, 28.03.2023 and lastly vide order dated 25.09.2023, his suspension was further extended for 180 days w.e.f. 05.10.2023 till 01.04.2024.
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OA No. 330/0434 of 2023
7. It is also averred in the original application that the applicant preferred a representation on 05.04.2022 and 21.09.2022 before the Competent Authority for revoking/recalling the suspension order, but the suspension of the applicant has not been revoked and his suspension was extended, which is operative till 01.04.2024. Hence, the present original application has been filed.
8. On the other hand, counter affidavit has already been filed from the side of the respondents on 06.03.2024, wherein it is stated that vide Letter dated 22.07.2021, the Chief Controller, GOAF, New Delhi forwarded a letter dated 20.07.2021 to the Department and a copy of FIR No.264/2021 dated 17.07.2021 forwarded by ACB Rajasthan, whereby it was informed that the applicant was arrested on 17.07.2021 and he was in police custody till 22.07.2021 and as such, the respondents by invoking power under Rule 10(2)(a) of Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred as 'Rules, 1965') issued an order dated 09.08.2021, by which the applicant was placed under deemed suspension w.e.f. date of his arrest i.e., 17.07.2021. Thereafter, the applicant was granted bail by Rajasthan High Court vide order dated 15.09.2021. However, his suspension was extended vide orders dated 12.10.2021, 11.04.2022, 09.10.2022, 28.03.2023 and during the pendency of instant O.A. vide order dated 25.09.2023, his suspension was further extended for 180 days w.e.f. 05.10.2023 till 01.04.2024.
9. It is further stated in the counter affidavit that in the criminal proceeding, charge-sheet has already been filed on 10.09.2021 and also prosecution sanction has already been produced on 25.03.2022. The case is under trial and as such, if Page 4 of 14 OA No. 330/0434 of 2023 applicant is reinstated in service, there is possibility of influencing the witnesses by the applicant. The DGoV(Hqrs.) vide letter dated 06.09.2023 intimated that draft UO Note for First Stage Advice of CVC recommending Major Penalty Proceedings against the applicant is under submission for approval of the competent Authority. The DGoV is of the view that suspension of the applicant may be continued. The suspension of the applicant was reviewed by the Suspension Review Committee and the said Committee after considering the all the facts, extended the suspension order from time to time with reasoned order.
10. In reply, rejoinder affidavit has already been filed from the side of the applicant, wherein it has been stated that the applicant is facing vagaries of suspension since July, 2021 and without there being any reason or justification to continue with the said suspension as departmental proceedings are not initiated due to non-issuance of charge-sheet. The impugned extension of suspension orders are in the teeth of the provisions of Central Civil Services (Classification, Control and Appeal) Amendment Rules, 2022.
11. Learned Sr. Counsel for the applicant assailed the impugned order of suspension as well as extension of suspension order on the ground that no departmental witness was produced or given any statement against the applicant to the Anti Corruption Bureau, Kota, Rajasthan and also there was no oral or documentary evidence to substantiate the allegation regarding the demand of illegal money and neither it has been mentioned and thus the extension of suspension order was uncalled for. There is no ground or justification for extending the suspension of the applicant by the Suspension Page 5 of 14 OA No. 330/0434 of 2023 Review Committee. The Departmental proceedings has not been initiated as yet due to non-issuance of charge-sheet.
12. Learned Sr. counsel for the applicant further submitted that there cannot be any chance of the applicant influencing any departmental witness or tampering any evidence. A considerable period of almost more than two years have been passed without there being any departmental charge sheet issued against the applicant and merely on the hypothetical grounds the extension of suspension is being made, which has seriously prejudiced the applicant itself.
13. Learned Sr. counsel further submitted that in the criminal case, charge sheet has been filed, but the cognizance has not been taken and further the pendency of the criminal case would take a long time and till then the applicant could not be kept under suspension on the ground of pendency of the criminal case.
14. Learned Sr. counsel draws the attention of the Court towards Rule 10 (7) of Rules, 1965, wherein it is clarified that an order of suspension made or deemed to have been made under sub-rule (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days. He further submits that the said Rules, 1965 was amended vide amendment dated 19.10.2022, by which it is specifically provided that in case where no charge sheet issued then the extension of suspension or deemed suspension shall not exceed two years from the date of order of suspension, if the Government servant is placed under suspension in terms of Clause 'aa' or Clause 'bb' of Sub Rule 1 as the case may be. He further submitted that suspension period Page 6 of 14 OA No. 330/0434 of 2023 beyond two years cannot be extended from the date of intimation to the appointing Authority by the applicant regarding his release on bail as per Rule 10 (7) of Rules, 1965 as amended on 19.10.2022.
15. Learned Sr. counsel draws the attention of the Tribunal towards the judgment of Apex Court in the case of Ajay Kumar Chaudhary Vs. Union of India, reported in 2015 Volume 7 SCC Page
291.
16. On the other hand, Learned counsel for the respondents vehemently opposes the contention of the learned Sr. counsel for the applicant and submitted that the applicant was arrested on 17.07.2021 and was in police custody till 22.07.2021 and as such, the respondents issued impugned order dated 09.08.2021, by which the applicant was deemed suspension w.e.f. date of his arrest i.e., 17.07.2021. The suspension of the applicant was reviewed by the Suspension Review Committee and the said Committee after considering the all the facts, extended the suspension order from time to time with reasoned order and there is no illegality or infirmity in the extension of suspension order.
17. Learned counsel for the respondents further submitted that in the criminal proceeding, charge-sheet has already been filed on 10.09.2021 and also prosecution sanction has already been produced on 25.03.2022. The case is under trial and as such, if applicant is reinstated in service, there is possibility of influencing the witnesses by the applicant as the applicant is Higher Officer. Major Penalty Proceedings against the applicant is under submission for approval of the competent Authority. The Officers facing Page 7 of 14 OA No. 330/0434 of 2023 criminal/departmental proceedings on serious charges of corruption should be placed under suspension and their suspension should not be revoked in a routine manner.
18. Learned counsel for the respondents further submitted that the suspension Review Committee after considering the amendment dated 19.10.2022 to Rule 10 (7) of Rules, 1965 held that there are serious allegations of collection of bribe from farmers by showing the fear of not issuing pattas to them and showing less percentage of morphine in their opium and abuse of official powers against the Officer. The Committee also noted that with respect to criminal aspect of the case, charge sheet has been filed in the Court and prosecution sanction under relevant Act has been issued by the Disciplinary Authority. Therefore, the Suspension Review Committee extended the suspension order of the applicant from time to time.
19. We have heard Shri Anoop Trivedi, learned Sr. counsel assisted by Shri Vibhu Rai, learned counsel for the applicant and Shri M.K. Sharma, learned counsel for the respondents and gone through the submissions, so raised by them and perused the record.
20. From perusal of the records, it appears that a FIR being FIR No.264/2021 was instituted against the applicant on 17.07.2021 and the applicant was on police custody from 17.07.2021 to 22.07.2021. The sole issue involved in this Original application is that whether the deemed suspension of the applicant is continued for indefinite period without issuance of any memorandum of charge- sheet.
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21. The applicant was placed under deemed suspension for being in custody for a period of more than 48 hours. Periodic reviews were conducted for his continuance under suspension. The recommendations of the Suspension Review Committees did not favour his reinstatement due to which he is still under suspension.. There cannot be any dispute regarding the power or jurisdiction of the Government for continuing the applicant under suspension pending criminal trial. There is no doubt that the allegations made against the applicant are serious in nature. However, the point is whether the continued suspension of the applicant for a prolonged period is justified, contrary to the provisions of Rule 10 (7) of Rules, 1965 as amended on 19.10.2022.
22. It is well settled that even though suspension is not specified under Rule 11 of Central Civil Services (Classification, Control & Appeal) Rules, 1965 as a punishment, an order of suspension affects a government servant injuriously in case departmental inquiry is not concluded within a reasonable time. In that sense, the continued suspension in a pending departmental inquiry becomes punitive in nature and as such if any employee is kept under suspension for unreasonably long period, the same may be unjustified.
23. The applicant has been under suspension for more than two years now. Admittedly, the applicant is on bail and there is no complaint that he indulged in tampering with the evidence in criminal trial. Even now the respondents have no case that there is any specific instance of any attempt by the applicant to tamper with evidence.
24. In the minutes of the Suspension Review Committee meeting held on 28.03.2023, it was noted that the amendment dated Page 9 of 14 OA No. 330/0434 of 2023 19.10.2022 to Rule 10(7) of CCS (CCA) Rules, 1965 that in a case where no charge-sheet is issued under these rule, the total period under suspension or deemed suspension, as the case may be including any extended period in terms of sub-rule (6) shall not exceed two years from the date the government servant detained in custody is released or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later, in the case of deemed suspension under sub-Rule (2), ordered extension of the period of suspension for a further period of 180 days i.e. till 04.10.2023. Thereafter, again the Suspension Review Committee has extended the deemed suspension of the applicant vide order dated 25.09.2023 till 01.04.2024 on the ground that revocation of suspension of the applicant at this stage will be against the wider public interest and also gravity of the case against the applicant, but the said view of Suspension Review Committee is contrary to Rule 10 (7) of Rules, 1965 as amended on 19.10.2022 as no memorandum of charge-sheet has been issued to the applicant till date and the period of suspension of the applicant exceeded more than two years from the date of his release on bail. For better appreciation of the matter, Rule 10(7) of Rules 1965 as amended on 19.10.2022 is quoted as under:-
In the Central Civil Services (Classification, Control and Appeal) Rules, 1965, in rule 10, in sub-rule (7), for the proviso, the following provisos shall be substituted, namely: --
"Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub- rule (2), if the Government servant continues to be under detention and in such case the ninety days' period shall be computed from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later:Page 10 of 14
OA No. 330/0434 of 2023 Provided further that in a case where no charge sheet is issued under these rules, the total period under suspension or deemed suspension, as the case may be, including any extended period in terms of sub-rule (6) shall not exceed,--
(a) two hundred seventy days from the date of order of suspension, if the Government servant is placed under suspension in terms of clause (a) of sub-rule (1); or
(b) two years from the date of order of suspension, if the Government servant is placed under suspension in terms of clause (aa) or clause
(b) of sub-rule (1) as the case may be; or
(c) two years from the date the Government servant detained in custody is released or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later, in the case of deemed suspension under sub-
rule (2).".
25. In view of the above Rule, it is apparent that the deemed suspension of an employee cannot exceed two years from the date the Government Servant detained in custody is released or the date on which the fact of his release from detention is intimated to his appointing Authority, whichever is later, in case where no charge-sheet is issued.
26. In the present case, the applicant was granted bail on 15.09.2021 by Rajasthan High Court and released on bail on 17.09.2021 and the same release was communicated by the applicant to respondents immediately after release of the applicant, which is apparent from Clause-3(ii) to the first extension of suspension order dated 12.10.2021 issued by Under Secretary to the Government of India.
27. Further, similar issue fell for consideration regarding extension of suspension order prior to amendment dated 19.10.2022 in Page 11 of 14 OA No. 330/0434 of 2023 Rules, 1965 before the Apex Court in case of Ajay Kumar Choudhary v. Union of India [supra] and it has been held as under :-
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/charge-sheet is not served on the delinquent officer/employee; if the memorandum of charges/charge-sheet 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 person concerned 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 recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the 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.
28. Further, so far as the submissions of the learned counsel for the respondents that if the applicant is reinstated in services, there is possibility of influencing the witnesses related to the case/inquiry by the applicant is concerned, the aforesaid quoted para of judgment of Apex Court in case of Ajay Kumar Chadhary (supra) is clear that in such cases, the Government is free to transfer the person concerned 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.
29. The prolonged suspension even in matters of corruption like the present one, by itself, constitute a grave prejudice to the right of the citizens to have speedy trial and justice. Such prolonged Page 12 of 14 OA No. 330/0434 of 2023 suspension would by itself casts stigma on the delinquent concerned and the stigma would prolong as long as the suspension order operates without any finality to the allegation being enquired into against the delinquent concerned. Such delay in judicial proceedings casts a shadow on the Government servants' character and integrity on one hand and on the other, the subsistence allowance which is required under law to be paid to the suspended employee would be a loss to the public exchequer, as the suspended Government servants draw their subsistence allowance without any corresponding duty to work and earn their livelihood.
30. In the case on hand, it is not in dispute that the criminal case is registered against the applicant, but no departmental proceedings has been initiated against the applicant and even no charge-sheet has been issued. Therefore, it is a fit case that calls for interference.
31. In the factual and legal matrix emerging from above position, particularly, since no charge memorandum has been issued, we hold the continuation of suspension beyond two years from the date of release of the applicant on bail i.e., 17.09.2021 is legally and procedurally infirm and invalid and bad in law. Hence, the impugned order of suspension dated 09.08.2021 including the orders extending the suspension of the applicant are liable to be quashed and accordingly, same are hereby quashed.
32. As a quashment of the impugned orders, the respondents are directed to reinstate the applicant in services, within a period of four weeks' from the date of receipt of a certified copy of this order. The period beyond two years after release of the applicant shall have Page 13 of 14 OA No. 330/0434 of 2023 to be treated as duty for all purposes, as per extant rules in this regard. Consequential entitlements will accrue as per rules minus the payments by way of subsistence allowance already received by the applicant.
33. The respondents are, however free to institute and conduct the inquiry proceedings as per rules.
34. Resultantly, instant O.A. stands allowed.
35. All MAs pending in this O.A. also stand disposed off.
36. No order as to costs.
(Mohan Pyare) (Justice Rajiv Joshi)
Member(Administrative) Member (Judicial)
PM/
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