Central Administrative Tribunal - Ernakulam
Saju M. Joseph S/O The Later M.K.Joseph vs Hindustan Organic Chemicals Limited on 3 December, 2015
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO. 180/00814/2015
Thursday this the 3rd day of December, 2015
CORAM
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
Saju M. Joseph S/o the later M.K.Joseph,
aged 57 years, Deputy General Manager (Materials)
(under orders of suspension)
Hindustan Organic Chemicals Limited
Kochi Unit, Ambalamugal,
residing at Mattamana, Thottungal Lane,
Petta, Poonithura PO, Kochi.38.
. . . . Applicant
[By Advocate Mr. OV Radhakrishnan (Senior Counsel) with Advocate Mr.
Antony Mukkath)
Versus
1. Hindustan Organic Chemicals Limited, represented by its Chairman and
Managing Director, 2nd floor, NECO Chambers, Plot No.48, Sector 11,
CBD Balapur, Navi Mumbai-400614.
2. Executive Director, Hindustan Organic Chemicals Limited, Kochi Unit,
Ambalamugal, Ernakulam District -682302.
3. Chief General Manager (Personnel and Administration)
Hindustan Organic Chemicals Limited, Kochi Unit, Ambalamugal,
Ernakulam District -682302.
. . . . Respondents
(By Advocate Mr. V. Krishna Menon)
This application having been finally heard on 01.12.2015, the
Tribunal on 03.12.2015 delivered the following:
ORDER
Per: Justice N.K.Balakrishnan, Judicial Member The applicant was placed under suspension w.e.f. 1.3.2005. in view of pending investigation of criminal trial alleged against the applicant which was pending on the files of CBI Court, Ernakulam. During the period of suspension the applicant was paid subsistence allowance as per rules. The plea that the subsistence allowance has an undeniable penal significance and that it would amount to imposition of penalty is denied by the respondents. The provisions of CCS (CCA) Rules are not applicable to officers under the first respondent since the first respondent has framed its own rules called Hindustan Organic Chemicals Limited(Conduct, Discipline and Appeal) Rules.
2. The applicant was placed under suspension in terms of provisions of Rule 22(1)(b) of the HOCL (CDA) Rules pending investigation/trial of criminal offence alleged against the applicant. The eligibility for promotion claimed by the applicant is also denied. The promotion is effected only against vacancy as per rules. There is no automatic promotion on completion of the stipulated period of service. Annexure A20 inquiry report submitted by the inquiry officer was not accepted by the disciplinary authority. Further course of action in this regard is under process, the respondents contended.
3. The points for consideration are (i) whether Annexure A2 suspension order is to be set aside? (ii) whether the respondents are to be directed to order reinstatement of the applicant into service? and (iii) whether the applicant is entitled to get any other consequential order?
4. We have heard the learned Senior Counsel Shri O.V Radhakrishnan appearing for the applicant and also learned counsel Shri V. Krishna Menon, appearing for the respondents and have gone through the documents/annexures placed before us.
5. It is vehemently argued by the learned Senior Counsel for the applicant that Annexure A1 order of suspension was issued on the ground that a criminal investigation or criminal case was pending as on the date of Annexure A1 namely 1.3.2005. It is not disputed that criminal charge sheet was laid against the applicant and other accused persons therein alleging commission of offences punishable under Section 120 B read with 420 IPC and 13(2) read with 13(`1)(d) of Prevention of Corruption Act. It was pending before the Special Judge -II CBI, Ernakulam . The relevant portion of Annexure A1 reads thus:
'In the above circumstances, you are placed under suspension from the service of HOCL forthwith, as provided under Rule 22(1)(b) of the HOCL (Conduct, Discipline and Appeal) Rules, pending investigation of criminal offence alleged against you/trial of RC 05/A/2005/CBI/KER on the file of the Hon'ble Special Judge II, CBI, Ernakulam'.
6. Though representations were submitted by the applicant to revoke the order of suspension, all those representations were rejected by the respondents since at the relevant time the criminal case was pending before the Special Judge CBI.II Ernakulam.
7. The applicant now relies upon Annexure.A13 order passed by the learned Special Judge CBI II Ernakulam on 5.8.2015. Applications were filed by applicant herein and other accused persons in that case - CC 10/2006 under Section 239 Cr.PC for an order of discharge. The applicant herein was the third accused in that case. Holding that the charges levelled against the applicant and other accused are groundless the Special Judge discharged the applicant and other accused persons under Section 239 Cr.PC. It appears the matter was not taken up before the High Court challenging the order of discharge passed by the learned Special Judge.
8. Since that order was passed on 5.8.2015, there is no justification for continuing the order of suspension of the applicant, the learned senior counsel submits. It is also pointed out that a separate disciplinary proceedings was initiated against the applicant and after culmination of inquiry the Inquiry Officer submitted a report (Annexure A22) which also according to the applicant would support his case that the charge levelled against him in the disciplinary inquiry was also groundless. Annexure.A22 the inquiry report was furnished to the applicant as per letter dated 19.10.2015 pursuant to an application submitted under the RTI Act. Shri Kishna Menon, the learned counsel for the respondents would submit that the charge referred to in Annexure A22, in respect of which inquiry was conducted, was not pertaining to the matter which was pending before the Special Judge which is covered by Annexure A13 order. In other words, the charge levelled against the applicant in Annexure A13 criminal charge is not the charge framed against the applicant in respect of which Annexure A22 inquiry report was submitted. Both are different, the learned counsel submits. It appears to be so. But the learned senior counsel for the applicant would submit that since in Annexure A22 also it was stated that the allegations against the applicant could not be proved and that the applicant is to be acquitted of those charges, the respondents cannot contend that there are materials to proceed further against the applicant. The learned counsel for the respondents would submit that the inquiry report has not been accepted by the disciplinary authority. It is well within the power of the disciplinary authority to differ from the view taken by the inquiry officer and if he dissents, the dissenting report has to be furnished to the applicant for his comments/inviting representations and thereafter the disciplinary authority will proceed in accordance with the rules. No doubt the disciplinary authority can disagree with the report of the inquiry officer, in which case the disciplinary authority has to furnish the dissenting report and the inquiry report to the applicant to call for his representation/explanation, if any in the matter. The inquiry report Annexure A22 appears to have been submitted.
towards the end of 2007 but so far the disciplinary authority has not taken any action in the matter and so it can only be held that the inquiry report was accepted. Since it is submitted by the learned counsel for the respondents that the inquiry report has not been accepted, such an inference cannot be drawn. At the same time it is seen that the report was prepared and shown to have been submitted towards the end of 2007. The exact month or date is not mentioned. (The proceedings of inquiry was closed on 22.9.2007). m More than 7 years have elapsed even after the report was submitted, learned senior counsel for applicant submits. Anyway since the disciplinary authority has not passed a final order based on the inquiry report it is not necessary to delve deep into those aspects now.
9. With regard to the order of suspension, the respondents cannot contend that it cannot be revoked or set aside. The learned senior counsel has relied upon the decision of the Hon'ble Supreme Court in Ajaykumar Choudhary Vs. Union of India - (2015) 7 SCC 291 where it was held:
'It seem to us if Parliament considered necessary that person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a Memorandum of Charges/Charge sheet has not been served on the suspended person'.
It was held by the Supreme Court that the currency of a suspension order should not extend three months if within this period the Memorandum of Charges/Charge sheet is not served on the delinquent officer/employee; if a memorandum of charges/charge sheet is served, a reasoned order must be passed for the extension of the suspension.
10. The learned counsel for the respondents would submit that what has been dealt with by the Supreme Court in Ajaykumar (supra) is the charge sheet served on the delinquent officer in the departmental inquiry and not the charge sheet laid before the competent criminal court. Be that as it may since the order of suspension was passed on the ground of pendency of criminal case before the Special Judge, CBI, Ernakulam and since the applicant was discharged under Section 239 Cr.PC by that Court, as of now no criminal investigation or trial is pending against the applicant, so as to justify extension of suspension. As such the order of suspension has to be set aside. Though the applicant contends that he is entitled to be promoted and is also entitled to get other consequential benefits those questions are left open to be decided later, in view of the fact that the disciplinary inquiry has not reached its logical conclusion.
11. It is pointed out that the applicant is to retire on superannuation on 31.1.2016. Therefore, the disciplinary authority has to pass an order within the shortest possible period, as otherwise it would cause unnecessary hardship to the applicant.
12. In the light of what is stated above, we dispose of this OA as stated below:
The respondents (the competent authority) will revoke the order of suspension passed against the applicant and the applicant shall be reinstated in service within two weeks from the date of receipt of a copy of this order. The disciplinary authority will complete the disciplinary inquiry and will pass a final order in the disciplinary inquiry, initiated against the applicant, on or before 11.01.2016 and a copy of that report shall be furnished to the applicant without delay.
13. No order as to costs.
(P.Gopinath) (N.K. Balakrishnan) Administrative Member Judicial Member kspps