Central Administrative Tribunal - Delhi
S K Srivastava vs Union Of India on 31 May, 2010
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.3661/2009 This the 31st day of May 2010 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) S K Srivastava, aged about 45 years s/o late B S Bhaskar r/o CRD C-II/9, Pandara Park New Delhi-3 ..Applicant (By Advocate: Shri S K Gupta) Versus 1. Union of India through Secretary (Revenue) North Block, New Delhi-1 2. Central Board of Direct Taxes North Block, New Delhi-1 3. Central Vigilance Commission Satarkata Bhawan GPO Complex, INA New Delhi-23 4. DGIT (Vig) 1st Floor, Dayal Singh Public Library Building 1 Deen Dayal Upadhayay Marg New Delhi-2 5. Sri P K Mishra c/o Dr. P R Panda Bungalow No.23, Mini Campus IIT Delhi, Hauz Khas, Delhi-15 6. Sri R Prasad c/o Chairman Competition Commission of India B Wing, HUDCO Vishala 14, Bhikaji Cama Place, New Delhi-66 7. Sri R R Singh c/o Secretary, Deptt. of Revenue North Block, New Delhi-1 8. Ms. Sunita Kalia c/o Secretary, Deptt. of Revenue North Block, New Delhi-1 9. Sri A K Handa c/o Secretary, Deptt. of Revenue North Block, New Delhi-1 10. Sri N C Joshi c/o DGIT (Vig) 1st Floor, Dayal Singh Public Library Building 1 Deen Dayal Upadhayay Marg New Delhi-2 11. Ms. Sumana Sen c/o Chairman, CBDT North Block, New Delhi-1 12. Ms. Ashima Neb c/o Chairman, CBDT North Block, New Delhi-1 ..Respondents (By Advocates: Shri VSR Krishna and Shri R N Singh) O R D E R
Shri Shanker Raju:
Applicant, an IRS Officer of 1987 batch presently under suspension as Additional Commissioner of Income Tax, has impugned respondents order dated 8.11.2007 whereby pursuant upon the directions of the Tribunal in OA-718/2007 dated 27.9.2007, it was decided that applicant shall continue under suspension for a further period of 180 days w.e.f. 27.9.2007 on the ground that as the disciplinary proceedings are at the initial stage and that revocation of suspension of the officer at this stage may adversely affect the finalization of the disciplinary proceedings. Also assailed is an order passed by the respondents on 22.10.2009 pursuant upon the directions of the High Court dated 26.3.2009 in WP (Civil) No.482/2008 whereby the order passed on 8.11.2007 ibid has been treated to be a recommencement of an order of suspension of the applicant with entitlement of pay and allowances for the period from 27.6.2007 to 7.11.2007 to the applicant and extension of suspension till 8.9.2009.
2. Applicant, in this OA, has leveled personal malafides by impleading private respondents 5 to 12 by name. Notices were issued to the private respondents and they have been duly served but they have not filed any specific reply rebutting the allegations of malafides against them by the applicant. Hence the burden to prove the allegations vested upon the applicant, yet in the light of the fact that the same having not been countered are deemed to have been admitted, in view of the decision of the Apex Court in B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees Assn. & others, 2007 (1) SCC (L&S) 548.
3. Applicant has also leveled legal malafides, i.e., malice in law in exercise of jurisdiction and power by the respondents in placing him under suspension for an unauthorized purpose, which are permissible to be raised and established on proof as per the decision of the Apex Court in P. Mohanan Pillai v. State of Kerala & others, 2007 (2) SCC (L&S) 542.
4. With the above backdrop, the suspension of the applicant is not a punishment rather it is a device cum methodology that the Government in a case where disciplinary proceedings are instituted or contemplated against a government servant places the official under suspension to prevent misuse of position and various other factors enumerated by the guidelines, which are though in nomenclature directory but are the sole basis of exercise of jurisdiction of the Government for placing a government servant under suspension or reviewing the suspension for continuation. Though Rule 10 of CCS (CCA) Rules, 1965 (for short Rules 1965) provides for methodology of suspension, yet these guidelines, which are supplementary to the rules without any conflict, are binding.
5. A brief factual matrix, which is relevant for adjudication, is highlighted. It transpires that the applicant while posted as Additional Commissioner of Income Tax, Delhi on 5.9.2003, Shri V.K. Bhatia, the then Commissioner of Income Tax raised illegal demands and on not meeting the aforesaid demands being inimical towards applicant, filed baseless allegations and sought transfer of the applicant, which ultimately has been set aside by the Tribunal on 13.10.2006. Thereafter, CIT Delhi III on submission of report to CBDT on an inquiry recommended closure of the inquiry. However, a disciplinary proceeding was instituted by Shri V.K. Bhatia but from vigilance angle, it was closed on 24.12.2003. It is alleged that DGIT (Vigilance) on the report of CBDT commenced an inquiry against the applicant and a memorandum of charges was served upon the applicant on 4.4.2006. A DPC was held on 30.3.2007 but applicant was placed under suspension on 30.3.2007. The charge sheet was challenged in OA-527/2008, which was segregated led to challenge of suspension in OA-718/2007. Vide An order passed on 27.9.2007 while meticulously referring to the guidelines issued for placing a government servant under suspension, the OA was disposed of with a direction to the respondents to communicate the reasons for suspension and also an order passed in review of suspension on 26.7.2007 was set aside with liberty to the respondents to hold a review committee meeting to review the suspension of the applicant and the same was to be passed with a speaking order.
6. Being aggrieved by non-grant of full relief sought for by the applicant led to filing of WP (C) 482/2008. An order passed on 26.3.2009 recorded the following observations:-
6. It would be necessary to point out calling the aforesaid direction of the Tribunal the Review Committee Meeting was held which decided, after taking into consideration certain facts, to continue the petitioner to remain under suspension and accordingly orders dated 7-8.11.2007 were issued which are annexed along with the writ petition. If this decision is taken in the meeting of Review Committee that is purely because of the reason that Tribunal had directed the holding of Review Committee Meeting for such a purpose. In any case, this order can be treated as order of fresh suspension to be given effect to with effect from the date of passing of the order. Effect of this would be that the petitioner would be entitled to the salary with effect from 27.6.2007 till 8.11.2007 when the fresh order is passed. However, if the petitioner would be at liberty to challenge that order on all grounds available to him.
7. In so far as other reliefs claimed by the petitioner are concerned learned counsel for the petitioner does not press those reliefs at this stage with liberty to raise those issues at appropriate stage.
8. The writ petition is disposed of in the aforesaid terms.
7. Accordingly, the order passed on 24.3.2008 reviewed the suspension on 8.11.2007 and being treated as a fresh order, a review has been done by the respondents. From time to time, the suspension of the applicant has been continued. Applicant filed CP 416/2009 and CP 421/2009 in OA 718/2007 questioning the order passed by the respondents on 8.9.2009 contending that an order passed on 8.11.2007 could not be treated as a fresh order, as the same lacks approval of the Minister concerned and a coram non judice order is liable to be set aside. Giving liberty to the applicant to assail the grievance in an original proceeding, CPs were disposed of on 25.11.2009.
8. Moreover, complying with the orders of High Court (supra), an order passed on 22.10.2009 allows the applicant full benefits of back-wages. Apart from the illegality of the orders in violation of Rule 10 (6) & 10 (7) of the Rules 1965, learned counsel relying upon the decision of the Apex Court in Union of India & others v. Dipak Mali, (2010) 2 SCC 222 basically based his claim on the ground that while resorting to suspension and continuing it from time to time, the disciplinary proceedings have been initiated against him for using abusive language and aspersions as also sexual harassment at the working place. An implication of Tribunals order dated 18.12.2008 in MA 1051/2008 in OA 968/2008 and on the basis of information obtained under RTI, as there has been no complaint against the applicant filed by any women employee or officer and being investigated into the complaint committee, the inquiry by a conscious decision, as transpired from the records, complying with the directions of the Tribunal has since been kept in abeyance. The very basis of placing the applicant under suspension and continuing it on the ground that the inquiry being at an initial stage, revocation of suspension of the applicant may adversely affect the finalization of the disciplinary proceedings, no more exists and as such suspension being almost three years old without any substantial progress in the inquiry, of which delay is attributable to the respondents, the suspension has to be recalled on revocation and a great stress has been made on the instructions issued by Ministry of Home Affairs on 22.10.1964 as well as by the DOPT on 7.1.2004 and 19.3.2004.
9. Before adverting to other contentions raised, it is relevant to note that since the applicant was transferred and this being stayed, applicant is under suspension at Headquarters. Apart from the legal submission, applicant has imputed personal malafides against private respondents whom he impleaded by name from Sl. Nos. 5 to 12 of the memo of parties. Applicant states that due to tension simmered between the officers of vigilance wing of CBDT and on exposure of corruption and moral depravity of officials of vigilance wing of CBDT, which is reflected by giving instances, complaints have been filed and probes have been made. Being a whistleblower, applicant has been a victim of concert and conspiracy between these private respondents. It is stated that as the applicant has detected and reported about the theft of public money worth crores of money with evidence on cheating, forgery and fraud, an inquiry has been initiated in this regard, which has since been set aside by the Tribunal. It is also stated that the stand of the applicant was vindicated before the Apex Court in M/s Green World Corporation wherein vide order dated 6.5.2009 under Article 142 of the Constitution of India, it was directed that the Commissioner of Income Tax has to re-open the assessment and in one of the cases of, like, NDTV Ltd. etc. on an inspection, no theft of public revenue by private respondents since being accepted by the Government, the assessment erroneously done has been set aside.
10. Learned counsel further contends that one Shri P K Mishra on the allegations made by the applicant regarding sexual abuse, exploitation as also for large scale tax evasion and laundering of black money, an inquiry has been instituted against him.
11. Learned counsel also contended that information given under RTI has vindicated the stand of the applicant of cheating, forgery and fraud in official documents prepared by the private respondents. In this regard, learned counsel has referred to the advice tendered by learned ASG, according to which, the suspension since being quashed w.e.f. 27.6.2007 no further extension would be logical.
12. Learned counsel further contended that on the question of vigilance wing, it is the administrative wing of the CBDT, which is the appropriate authority to deal with the matters and as vigilance has gone to the extremities of seeking dismissal of the applicant under Rule 19 (ii) of the Rules 1965 without having any vigilance angle, it clearly shows bias and malafides of the private respondents towards the applicant.
13. Learned counsel has also reflected that the records sought for in the MA regarding suspension of the applicant whereby the file No. DGIT-V/NZ/COM/113/06 pages 1-12 have been borrowed on record from file DGIT-V/NZ/COM/36/06 where no such order has been passed to merge the files, which had existed independently. It is stated that the said procedure for merger of files under CS Officer Procedure Manual not being involved, learned counsel states that the records have been manipulated, tempered and removed from the file showing personal and legal malafides of official respondents to protect the private respondents.
14. According to learned counsel, in 2003 applicant happened to be in confronting position with Shri P K Mishra, IRS allegedly involving in illegal gratification and sexual harassment, etc. with instances given and when the allegations after being probed into led to its proof and implication of other officers just to incapacitate the applicant and to remove him from the place where he was instrumental in bringing the public interest, the illegality and corrupt practice prevalent in the department. He has been shunted out under the guise of suspension, which, in fact, in the nomenclature of its being innocuous, is by way of penalty, cannot be countenanced in law.
15. It is contended that allegations leveled against Ms. Sumana Sen, CCIT, Delhi V have been proved on inspection. It is stated that on the allegations made by the applicant regarding sexual abuse and exploitation of the junior female officers, a complaint committee on sexual harassment started inquiry against Shri P K Mishra.
16. Learned counsel for applicant states that the order placing him under suspension and reviewing it is malicious and malafide at the behest of persons, who have been implicated on evidence by the applicant in different allegations, which have been substantiated. Prima facie, as a retaliating move to shut the voice of the applicant, records have been manipulated. Learned counsel stated that as per instructions of 1964, which are binding, when the inquiry was not initiated, which has been stopped at the stage of Rule 14 (v) of the Rules 1965, continuance of the applicant has neither prejudiced nor subverted the discipline in office. In this view of the matter, learned counsel states that refusal of the applicant to act against public interest policy and revenue, resulted in the suspension, which is to be adopted minimum barest and with an excellent service record, applicant is being unnecessarily put-off duty, which is not in the public interest.
17. At the outset, official respondents appearing through Shri Parag P Tripathi, learned ASG assisted by Shri VSR Krishna and Shri R N Singh, Advocates, took preliminary objection of abuse of process by the applicant by leveling scurrilous, insinuating, derogatory and intemperate remarks against the officers. The aforesaid objection was overruled by an order passed by the Tribunal on 9.4.2010. Thereafter the records have been produced by the respondents, which are objected to by learned counsel for applicant being tempered, removed and interpolated.
18. On merits, learned counsel for respondents Shri V S R Krishna with Shri R N Singh states that in a PIL filed by the applicant, namely, WP 13606/2009 finding allegations of being reckless, a cost of Rs.20,000/- was imposed while dismissing the writ petition. However, it transpires on information by learned counsel for applicant that in SLP the cost against the applicant has since been waived-off.
19. Learned counsel for respondents would contend that applicant has raised defamatory allegations against the lady officers to tarnish the image of others but at the outset, it is contended that the reply has been filed on behalf of official respondents 1 to 4.
20. Learned counsel relied upon the decision of the Apex Court in Gurpal Singh v. State of Punjab & others, (2005) 5 SCC 136 to contend that in PIL nobody is allowed to raise reckless allegations tarnishing the character of others. It is also stated that applicant was placed under suspension on 30.3.2007 with the approval of the competent authority and was reviewed on 27.6.2007. A charge sheet has been issued to the applicant under Rule 14 of the Rules 1965 on 29.6.2007 where the allegations are indulgence in disorderly conduct, threat, and abuse as also the written communication causing aspersions on the character of the lady officers.
21. Learned counsel states that pursuant upon the decisions of this Tribunal and High Court (supra), an order passed on 8.11.2007 has been treated to be a fresh order of suspension, which was extended on 24.3.2008 to till date.
22. Learned counsel further contended that OA deserves to be dismissed and as a conscious decision by the respondents taken keeping in background the activity of the applicant that he would be subverting discipline, which would affect the finalization of disciplinary proceedings, does not suffer from any legal infirmity.
23. We have carefully considered the rival contentions of the parties and perused the records.
24. In fact, the applicant has earlier challenged non-review of his suspension within 90 days with reliance on catena of decisions, including Rule 10 (6) & (7) of the rules 1965. The aforesaid OA 527/2008 by an order passed in August 2008 has not been found favoured with as the Bench has not agreed with the earlier decision of the Tribunal. As such, a reference has gone to the Full Bench, which basically decided non-applicability of 90 days embargo invalidating suspension to the reviews conducted. As such, the OA when reverted back to the Division Bench was allowed to be withdrawn with liberty to take appropriate proceedings in accordance with law.
25. Rule 10 (6) & (7) of the Rules 1965, which had come into being in June 2004, clearly stipulates that an order of suspension made or deemed to have been made shall be reviewed by the authority before expiry of extended period of suspension, i.e., before a period of 90 days, unless it is extended after review, etc.
26. As before the Tribunal in OA 718/2007, the initial order passed placing the applicant under suspension on a contemplated disciplinary proceeding dated 30.3.2007 was challenged, setting aside of the order dated 27.6.2007 whereby review has been made since being set aside and liberty to pass the order of suspension on review was the subject matter before the High Court in WP (C) No.482/2008, taking cognizance of order dated 10.6.2007, it was found that intent of the Tribunal was to give liberty to the respondents to pass fresh orders as to whether the applicant could be placed under suspension or not. A review committee when held and decided certain facts to continue the applicant under suspension, an order dated 8.11.2007 was issued. However, on legal fiction, this order passed on 8.11.2007 has been ruled by the High Court to be a fresh order of suspension to be given effect to from the date of passing of the order. As such, the earlier period from 27.6.2007 to 8.11.2007 has been treated as different for duty purpose with liberty to the applicant to challenge. As we find that the initial order of suspension was dated 30.3.2007, it could have been reviewed within 90 days and as an implication of the High Courts directions, which were followed on attaining finality by the respondents, the fresh order passed on 8.11.2007 on a legal fiction is to be a fresh order, as such there has been a gap of nearly 8 months, which overshoots as per provision of Rule 10 (6) & (7) of the Rules 1965.
27. Assuming the order is a fresh order passed on 8.11.2007, which considers it in the impugned order dated 22.10.2009, then recommencement of suspension from 8.11.2007 is to be treated as a fresh suspension, then it needs to be reviewed within 90 days from the date of its being passed and as we find that the first review against the order passed on 24.3.2008, a period of more than 90 days since lapsed, Rule 10 (6) & (7) of the Rules 1965 would come into operation, which would validate the order of 8.11.2007. The issue of enforceability of Rule 10 (6) & (7) of the Rules 1965 is no more res integra having been ruled by the Apex Court in Dipak Malis case (supra) where it has been held that after 90 days suspension order would not survive if it is not reviewed. The decision of Full Bench has to be overridden if at all so warrants by the Apex Court, being a binding precedent under Article 141 of the Constitution.
28. If a legal fiction has been created to treat the order of respondents dated 8.11.2007 as order of fresh suspension, then as a legal fiction also, applicant on applicability of Rule 10 (6) & (7) of the Rules 1965 cannot be ruled out, which would invalidate this order, because the review against it has not been undertaken before expiry of 90 days.
29. Suspension is not a punishment. However, it becomes punitive under circumstances, which are enumerated in DOPT and MHA instructions of 1964, which are reproduced as under:-
Circumstances under which a Government servant may be placed under suspension Recommendation No.61, contained in paragraph 8.5 of the report of the Committee on Prevention of Corruption, has been carefully considered in the light of the comments received from the Ministries. It has been decided that public interest should be guiding factor in deciding to place a Government servant under suspension, and the disciplinary authority, should have discretion to decide this taking all factors into account. However, the following circumstances are indicated in which a Disciplinary Authority may consider it appropriate to place a Government servant under suspension. These are only intended for guidance and should not be taken as mandatory:-
Cases where continuance in office of the Government servant will prejudice the investigation, trial or any inquiry (e.g. apprehended tampering with witnesses or documents);
Where the continuance in office of the Government servant likely to seriously subvert discipline in the office in which the public servant is working;
Where the continuance in office of the Government servant will be against the wider public interest [other than those covered by (1) and (2) such as there is public scandal and it is necessary to place the Government servant under suspension to demonstrate the policy of the Government to deal strictly with officers involved in such scandals, particularly corruption;
Where allegations have been made against the Government servant and preliminary inquiry has revealed that a prima facie case is made out which would justify his prosecution or is being proceeded against in departmental proceedings, and where the proceedings are likely to end in his conviction and/or dismissal, removal or compulsory retirement from service.
NOTE:
In the first three circumstances the disciplinary authority may exercise his discretion to place a Government servant under suspension even when the case is under investigation and before a prima facie case has been established.
Certain types of misdemeanor where suspension may be desirable in the four circumstances mentioned are indicated below:-
any offence or conduct involving moral turpitude;
corruption, embezzlement or misappropriation of Government money, possession of disproportionate assets, misuse of official powers for personal gain;
serious negligence and dereliction of duty resulting in considerable loss to Government;
desertion of duty;
refusal or deliberate failure to carry out written orders of superior officers.
In respect of the types of misdemeanor specified in sub clauses (iii) and (v) discretion has to be exercised with care.
30. If one has regard to the above, examining it in the context of the reasoning assigned by the respondents to place the applicant under suspension, we have scanned through the files. Noting the objection of the applicant regarding substitution of pages and no order as to merger of the files has been passed, it appears that note sheet upto page 12 by end have been drifted from another file where a decision has been taken not to de-link the file. However, on its perusal we basically find on the basis of information under RTI and representations made by the applicant, which have mostly substantiated by initiation of probe against the applicant, as records transpire, that no complaint of sexual harassment in office against the applicant has been filed by any women officers. However, it is transpired that the letters written where insinuations and imputing abuse against women employee, have been filed to the effect that the persons concerned has not objected but the Department has taken up this issue. It is also existed on records that no report against the applicant regarding sexual harassment has come to the Police, including from Ms. Kiran, Ms. Sumana Sen and Ms. Ashima since 26.9.2006. With this pre-dominant evidence on record, applicant has also stated that inquiry initiated against the applicant is basically to harass him and with a pre-determined and pre-judged attitude, so that the actions taken by the applicant in public interest and to save public revenue and highlighting as a whistleblower the illegality committed by the officers, should not surface and rather applicant be cowed down. In this regard, it is stated that once, in the above backdrop, the inquiry initiated the basis which is not available with the respondents, then forcing to keep the inquiry in abeyance by a conscious decision taken on file, clearly indicates that the inquiry has been initiated without any basis, arbitrarily and actuated with malafide against the applicant to keep him off from discharging his functions in the office. A reference has been made to an order passed by the High Court of Delhi in WP 751/2007 where non-furnishing of the information led to cost of Rs.15000/- on the respondents. Learned counsel for applicant states that in WP (C) No.13609/2009 an order passed on 16.11.2009 where the inquiry against the private respondents is being closed, by an order passed on 22.3.2010 respondents have been burdened with a cost of Rs.5000/-. By enumerating all these material, learned counsel has gone to the extent that on the basis of this, an inquiry has been initiated against the applicant by placing him under suspension where it is admitted by a noting dated 29.11.2006 that the misconduct is of an administrative nature without any vigilance angle. We have scanned through the records and at the outset, prima facie, we are of the considered view that the allegations against the applicant when are in the midst of being probed into, it cannot be ruled pre-maturely against him that the applicant has misused his position by leveling baseless allegations against the private respondents, including the women employees. If there was any truth, the women employees would have certainly filed complaints in their right by invoking jurisdiction in view of Apex Courts decision in Vishaka & others v. State of Rajasthan & others, (1997) 6 SCC 241 regarding sexual harassment. As none of the women employees have filed any complaint against the applicant, the allegations, which are still to be probed into by the respondents and in one of the cases allegations have resulted in an inquiry against one Shri A K Mishra for sexual harassment, the omission on part of the private respondents, who have been validly served with a notice, not to rebut the allegations against the applicant material on record, we can, prima facie, hold a view that the allegations of malafides are established to some extent but not to its hilt. Non-rebuttal of specific instance in the allegations against the private respondents by not filing reply by them is also a clear proof of its admission. As a condition precedent, the applicant has the duty to prove, which he discharges to a great extent, as such, adverse inference in law has to be drawn against the private respondents.
31. The acts of an administrative authority while exercising quasi judicial functions are to be tested for fairness on the touchstone of reasonableness, as held in NOIDA Entrepreneurs Association v. NOIDA & others, (2008) 1 SCC (L&S) 672. A discretion when vested in an administrative authority, it is not unfettered being a creature of the statute and the authorities are to act in all four corners of rules. A discrimination when not exercised judiciously vitiates the decision making process, as held by the Apex Court in Union of India v. Kuldeep Singh, (2004) 2 SCC 590.
32. Statutory Rule 10 (1) (a) gives jurisdiction and authority to the disciplinary authority to place a government servant under suspension where a disciplinary proceeding is contemplated. This discretion is also not unbridled. It is operated by guidelines issued by the MHA and DOPT, which is being supplementary and not overriding the rule, rather it provides follow up action and methodology to be followed as a practice for a long time and has partaken the character of mandatory guidelines. These guidelines issued vide CVC circular dated 25.9.2000 are to be followed strictly in Note B, which prescribe misdemeanor warranting suspension, includes allegations of corruption, embezzlement or misappropriation of government money, moral turpitude as also the serious allegations of dereliction of duty and refusal to carry out written orders of superior officers. Apart from the complaints filed by the applicant, which have been probed into and in most of cases, follow up action being taken, it cannot be observed, though we are not going into the merits of the inquiry but taking a prima facie view as the nature of the allegations, that the applicant has been accused of these allegations. In fact in cases of sexual exploitation in office, a referral to the letters written by the office, which do not precede any complaint from the concerned female employees and on other occasions, the complaints, which have been probed into with the department, finding the contents true and follow up action might be taken, do not fall within the category of Note B where the suspension is to be a rule. However, it is trite law that an order passed by the Government with reasoning assigned therein cannot be supplemented by the counter reply, as ruled by the Apex Court in Hindustan Petroleum Corporation Ltd. v. Dairus Shapur Chenai & others, (2005) 7 SCC 627. The grounds of placing the applicant under suspension and continuing it on review is only one, i.e., adverse affect of finalization of the disciplinary proceedings. We do not find it on record, except a conclusion as to indulging the applicant in allegations, which is the subject matter of the disciplinary proceedings, any noting, reasoning or otherwise that the applicant in what manner would be subverting discipline in the office or in what manner on re-instatement the inquiry would be prejudiced or could not be finalized. We find that right from the suspension of the applicant on 30.3.2007, a charge sheet could have been filed only in 2009, that too, for want of certain formalities as mandated by the Tribunal not being completed. If a conscious decision of the respondents at the highest level to keep the inquiry in abeyance, there is no likelihood that this inquiry would be finalized. As such, consequently on a proportional inference, applicant would not be in any manner in a position or instrumental to adversely affect the disciplinary proceedings.
33. It is not so that mere recitation on one of the conditions for placing the applicant under suspension, i.e., subverting discipline and effect of the inquiry is a sufficient and legal compliance of the duty bestowed upon the concerned by the administrative authority. It requires reasoning. On a reasoning as transpired from the perusal of the concerned file, we do not find any circumstances, evidences, instances whereby the competent authority have, on making up a mind, recorded that in what manner the applicant will affect the final outcome of the disciplinary proceedings. For want of reasons, the discretion exercised by the authorities is not at all judicious. It appears that under the guise of departmental inquiry even without evaluating the guidelines and individual circumstances in the case, an order of suspension by way of malafide and punitiveness since being issued, has been justified by the reviewing committee on further extending the suspension. Even in this order, from perusal of the records, we do not find any reasoning to the effect.
34. Consideration of the guidelines, etc. by the respondents, the word consider would connote to think over on active application of mind on all relevant aspects of the matter, as ruled by the Apex Court in Bhikhubhai Vithlabhai Patel & others v. State of Gujrat & another, 2008 (4) SCALE 278. We do not find any such consideration apt in law, as ruled in State of Uttranchal & another v. Sunil Kumar Negi, (2008) 4 SCALE 22 in the context of an order passed on judicial side that the reasons are heartbeat, which makes order full of life, as the guidelines in true perspective of discretion exercised by the competent authority have been meticulously followed. These reasons as per 3 Judge Bench of the Apex Court in Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity & others, (2010) 3 SCC 732 are must.
35. We also find that once the authorities were confronted against other officers on applicants complaint, which were probed into and on consequent action with a view to cow down the applicant, a haste made in suspending the applicant on a contemplated disciplinary proceeding on 30.3.2007, which was followed by an inquiry ordered only in 2009. This haste is certainly pointing towards the illegality by the respondents action, which have been ruled accordingly by the Apex Court in Jasbir Singh Chhabra & others v. State of Punjab & others, (2010) 4 SCC 192.
36. However, on 30.3.2007 when the applicant was placed under suspension and thereafter when it was reviewed from time to time and the inquiry had not progressed, it was incumbent upon the respondents to have weighed the facts and circumstances as per the guidelines issued by the respondents. Even at the time of review also, when none of the conditions exists in the guidelines, warranting further continuance, discretion exercised was also not judicious and with a bias approach towards the applicant, which resulted in continued suspension of the applicant for nearly three years. It is also pertinent to note that as per respondents themselves while deciding to initiate proceedings against the applicant, the misconduct has been weighed as of administrative nature without any vigilance angle, which also reduced the gravity for the purpose of exercising discretion to place the applicant under suspension, which has not been considered at all.
37. In DOPT OM of 7.1.2004, it is ruled that if the officer has been placed under suspension for one year without charges being filed or no charge memo is being issued, he shall report for duty without prejudicial to the facts. This has also not been considered.
38. Resultantly, we are of the considered view that the suspension resorted and continued for nearly three years without substantial progress in the inquiry, the suspension is liable to be set aside, as ruled by the Apex Court in State of H.P. v. B.C. Thakur, 1994 SCC (L&S) 835. Also held by the Apex Court in Union of India & others v. Raj Kishore Parija, 1996 SCC (L&S) 196 that delay in completion of the inquiry results in revocation of suspension and reinstatement of the employee.
39. In the light of above, we are of the considered view that the suspension of the applicant resorted to in this case was not in accordance with the guidelines and the reasoning assigned by the respondents when weighed in legal perspective is not found apt. The allegations of malafides have almost been, prima facie, established by the applicant. We do not find the power of suspension exercised by the respondents in this case free from bias and unreasonableness. As such, the applicant, who has an excellent service records and is an efficient officer, should have been reinstated back in service, maybe posted to a non-sensitive post.
40. Resultantly, we allow this OA. Impugned orders dated 8.11.2007 and 22.10.2009 are set aside. Respondents are directed to reinstate the applicant in service w.e.f. 8.11.2007 with all consequences, as admissible in law. This shall be done within a period of two months from the date of receipt of a copy of this order. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/