Central Administrative Tribunal - Kolkata
Jugal Kishore vs I T A T on 15 June, 2018
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CENTRLADMINISTPATIVETRIBUNI --
CALCUTT'A BENCH
0'
No. 0A350/92/2017 Dateoforder:
Present: Hon'ble Ms. Manjula Das, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member
JiJGAL KISHORE
S/o Late Ram Swaroop Agarwal,
By occupation service as
Accountant Member,
Income Tax Appellate Tribunal
Calcutta under the
Ministry of Law & Justice,
Government of India having
Rio Nizam Palace, Type VI quarters,
Flat No. 9 .(3rd Floor),
234/4 AJC Bose Road,
Kolkata - .700020.
.:.APPUcANT
VERSUS
Union of India, through
The Secretary, -
MinistryofLaw& Justice,
Govt. of India,
ShastriBhawan,
CWing,.4thFloor,
New Delhi':- 110001.
The President,
Income Tax Appellate Tribunal,
Central Goerflment Office Buildings,
4th Floor,
101 Maharshi Karve Marg,
Mumbai - 400020.
The Vice President,
Income Tax Appellate Tribunal
Calcutta, Allepy Court,
6th & 7th Floor,
225/C AJC Bose Road,
Calcutta - 700020.
4. The Dy. Inspector General &
Head of Branch,
Central Bureau of Investigation,
Anti Corruption Branch,
14th Floor, 2nd MSO Building,
Nizam Palace,
234/4 AJC Bose Road,
Kolkata - 700020.
RESPONDENTS.
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For the applicant Mr.S.Samanta, counsel
Mr.S.K.Dutta, counsel
Mr.P.K.Mondal, counsel
For the respondents: Mr.P.Mukherjee, counsel
ORDER
Per Ms. Manjula Das, Judicial Member Being aggrieved with the suspension of service of the applicant, he approached before this Tribunal seeking the following reliefs:
Direction do issue quashing and setting aside the order of suspension dated. .15.5.2008 being Annexure A/8 hereto as extended by the subsequent orders. first of which is dated 12.8.2008 and the last of which is: dated 28.12.20 16 being Annexure A! 19 hereto and thereupon to allow the applicant to resume duties with- all consequential benefits and a further direction do issue directing them to make payment of full salaries to the applicant: as'if there had been no such order of suspension after grant of bail-including arrears along with inteFest @ 18% per annum;
Injunction do issue restraining the respondent authorities from acting in any manner or any further mariner on the- basis of the order of suspensiondaed 155.2008 being Annexure .A/8 hereto as extended by . the -subsequent orders first on which is: dated 42.8.2008 and the last of which is dated 28.12.2016 - being Annexure A/ -ig hereto; . -. • . Direction do - i ssue upon the respondent authorities directing them
- to produce and/or cause to be produced the entire records of the case andupon suàh production being made to render conscionable justice by passing neceasaiy orders thereon;
Costs and costs incidental hereto; -
And / or•- to pàss•-such other or further . order'or. orders :as to your Lordshipsmay seem fit and proper.
Mr. S.Samanta, id. Counsel appeared on behalf -of the applicant and Mr.P.Mukherjee, id. Counsel-appeared on behalf of the respondents.
It is submitted by the ld. counsel that although the applicant was arrested on 14.5.2008 by the CBI, however, he was released on bail vide order dated 11.7.08 and the said bail was continued from the said date i.e. 11.7.2008. Immediately after granting the bail dated 11.7.2008 the applicant preferred representations before the authorities on 8.8.2008. however, his order of suspension dated 15.8.2008 has been subsequently extended for a further period of 180 days by an order dated 12.8.2008 and thereafter extended from time to time on several dates. Thereafter the applicant has made several representations on several dates.
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4. It is submitted by the Id. Counsel that CBI has filed charge sheet before the Ld. CBI Court for accepting Rs.30 lakh as illegal gratification. Ld. Counsel further submitted that he approached this Tribunal in OA 1225/2009 vide order dated 22.10.2009 against the suspension where this Tribunal dismissed his case. He approached again in RA 29/09 which was dismissed in circulation. Being aggrieved by the inaction of the respondents the applicant filed OA 146/2011 before this Tribunal which was also dismissed. Having no other alternative the applicant approached Hon'ble High Court in COOT 7/13 where the Hon'ble High Court inter alia directed the respondent authorities to strictly adhere to the rules and office memorandum issued by the competent authority while grating extension of the suspension period of the petition in future. After passing of the6i1e High Court's order date&4.2.2015, the applicant made fresh repres~bntation on 1.6.2015 for considerig. hs case in
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view of DOPT dated 18 11 2014 in regard to the issue df prolonged suspension and the order dated 16:2.20:15 passed by the Hon'ble Apex Court in Ajay Kumar Choudhary -vs- Union of Ihdia where it is held that prolonged suspension is not justified. According to the'ld. Couff.el instead Of considering the representation dated 1.6.2015 the respondetit authorities again issued an order of extension of the order of suspension on. 1.7.2015 extending-Ithe order of suspension for a further .period of 180 days beyond 7.7.2015. It was submitted by Mr.Sarnanta that the applicant thereaftermade representation dated 23.5.20 16 for revocation of the order of suspensionbut the respondents issued the order of further extension of suspension on 27.6.20 16 for a period of 180 days and finally the latest order issued on 28.12.2016. It was further submitted that the impugned orders of extension of suspension speaks of the reason for such extension.
5. Mr.Samanta further relied upon DOPT OM dated 18.11.2014 which provides that a Government servant may be placed under suspension where a disciplinary proceeding against him is contemplated or is pending or (a) where a disciplinary proceeding against him is contemplated or is pending, (b) where in the opinion of the authority aforesaid, he has engaged himself in activities 4 prejudicial to the interest of the security of the State or (c) where a case against him in respect of any criminal offence is under investigation, enquiry or trial.
6. It was further submitted by the Id. Counsel that prolonged suspension is illegal, arbitrary, whimsical, erroneous, malafide, opposed to all norms of justice and in colourable exercise of power and/or without jurisdiction. As per provisions of Rule 10(1)(5) of CCS (CCA) Rules, 1965 keeping the applicant under prolonged suspension is in violation of the Government of India orders on the subject. It is further submitted that review committee extending the orders of suspension has failed to consider the law laid down by the Hon'ble Apex Court and the service lriAel in this regard with a predetermined notion that as if continuance of the order of suspension is the rule and withdrawal the exception whereas it is exactly the other way round. Further the review committee has failed to consider the continuance of the suspension order was unwarranted. According to the Id. Coinsél teview committee would go to show that the said authority hasfailedtô discharge duty as a quasi judkial authority but ratherhas acted akin to at eecutive authority. It was further. submitted that the orders of review cornnitfee siffers from the vice of maliêë in law and malice in lact and would.not iiany way prejudice the said case.
7. Mr.Samanta further submits that an order of suspension is in aid of a specific purpose namely investigation, but in the case of the applicant it is a LA CBI investigation and to obviate tampering of records but } .the instant case there is no formation of opinion that there could be tampering of records/ evidence/ interference in the CBI investigation, CBI having already filed charge sheet but charges have not been framed till date and hence there ought to have been an order of revocation of the order of suspension instead of continuing the same upon review.
8. According to the Id. Counsel the continuance of the order of suspension for long 8 years without framing of charges of CBI Court and discharge of the alleged bribe givers goes to show that the review committee has failed to apply their mind to the materials on records. It was further submitted by the Id. Counsel that suspension and thereafter extension of suspension from time to 5 time is not at all sustainable under the law and the instant OA deserves to be allowed by setting aside the suspension order.
9. To substantiate his case ld.counsel for the applicant relief upon the decision of Hon'ble Apex Court in Civil No. 1912/2015 (Ajay Kumar Choudhary).
10. By countering the arguments advanced by Mr.S.Samaflta, Id. Counsel for the applicant, Mr.P.Mukherjee, Id. Counsel for the respondents submitted that a case was registered on receipt of a reliable source information to the effect that M/S S.K.Tulsiyan & Co., Kolkata used to appear in Income Tax matters for their clients before the .various Income Ta, authOrities including Income Tax Appellate Tribunal, Kolkata where Shri Jugal Kishoe; was working as an Accountant Member. The infOrmation further revealed that the applicant had demanded an illegal gratification of Rs.30lakh from M/s S.K.TuIsiyan& Co. for the undue favours being shown toti4ern by'im in the Income Tax matters of vrious parties repreentedbythe aidM/s S.K.Thliyan & Co....befáre the Income Tax Appellate Thbuna1, Kolkata: The said amount of Rs.30 lakh was to be paid to the applicant t hiiresidence located at Flkat No.1, Type- VI, Nizam palace, Kolkata by one Shri Nishant Jam, after collecting the same from one a Shri Subhash of M/s Mayankh Security Pvt. Ltd. Kolkata on the instruction, of Ravi Tulsiyan of M/s S.K.TuIsiyan & Co. on 13.5.2008 atabout 8.30 PM. Since the said facts disclosed commission of cognizable offence u/s 120B IPC nw Section 7 & 12 of P.C.Act 1988, RC 21(A)/2008KOl was registered by CBI, ACB, Kolkata against the FIR named accused persons of the said case.
11. It is stated that in order to prove the allegations levelled in the FIR of the above referred case, it was decided to apprehend the accused persons, after keeping a constant and careful watch under suitable cover on the residential premises of the applicant. The said watch was undertaken by the team of officers of CBI, ACB, Kolkata along with the independent witnesses on 13.5.2008. During the course of investigation, it was found that on 13.5.08 at around 20.15 hours two persons alighted from the royal blue coloured Hyundai Verna car being registration No. W-02X 7774 and entered inside the residence of the applicant. After a few minutes both of them came out and took a black coloured briefcase from the rear seat of the said car, and then again went inside the residence of the applicant. When both the persons finally came out of the said residence and were heading towards the aforesaid car, they were intercepted. They disclosed their identity as one Shri Subhash Chand Barjatya and one Shi Nishant Jam, the aforesaid FIR named accused persons. On being challenged, they disclosed that they had come out of the residence of the applicant after handing over the bribe amount of Rs.28 lakh in cash out of the total bribe of Rs.30 lakh to the applicant as per the instructions of Ravi Tulsiyan. They further disclosed that since the rest bribe amount of Rs.2 lakh were in the denomination of Rs.100/- and Rs.50/- eaáh and the applicant had refused to take the said brib6 being G.C.Notes of such smalle denomination, and had directed them to., replace the said with G.C.NOtes of higher 4 • . -
denomination and handover1àte. -•
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12. It is also subrriitted- thatthe said accused carrying his black coloured
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briefcase, along with his accomplice nd co accused, were asked to proceed to the aforesaid official residence of the applicant along with the, team. Consequent upon disclosing idntity ahd 5urpose of visit to the applicant, the above mentioned bribe ambunt of Rs.2 lakh was-recoveredfrom the briefcase of the accused. Immediately search was also conducted in the' residence of the applicant. The bribe amount of Rs.28 lakh was recovered, from the green coloured soft bag kept beside,the bed inside the bedroom 6f the appflcant. The said proceedings were conducted in the immediate presence of the independent witnesses. The entire facts and circumstances have been detailed out in the memorandum and the recovery memorandum, submitted before the Ld. court.
13. It is further stated that the investigation revealed that the bribe amount of Rs.30 lakh was brought by Subhash Chand Barjatiya from the house of S.K.Tulsiyan as per the instructions of Ravi Tulsiyan and was handed over to the applicant for favour obtained and favours to be obtained. President, ITAT had confirmed that the applicant has been arrested by CBI in Kolkata on 7 14,5.2008 at 4.01 hours and had requested that action as may be deemed appropriate in the circumstances of the case, be taken.
14. Thereafter Mr.Mukherjee id. Counsel submitted that the guiding principles given in Chapter 2 of the CCS (CCA) Rules, provide that the Government servant may be placed under suspension if the offence includes corruption, embezzlement or misappropriation of government money, possession of disproportionate. assets, misuse of official powers for personal gain. It is also submitted that it was informed by CBI that a case under Section 120B IPC read with Sections 7 & 12 of the Prevention of Corruption Act was registered and the investigation is continuihg. The above matter is a criminal offence and as provided under Rule 10 of CCS (CCA),Rules where a case against a government servant in respect to any criminal offence is under investigation, inquiry of trial' he can be placed under, suspension Further the guiding principles regarding sspensionalsosugest that in caséof corruption matters the Disciplinary/Appointfrient Authority 'can place the. government servant under suspension.
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15. Accordingly the applicant was placed 'under suspension w.e:f:15.5.2008 initially for a period of90 dá.and thereafter continuation of the susjension
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was reviewed by the cbneent authority and the suspension was extended. The applicant made representations for revocation of suspension. However, after examination of the isuè. the competent authority tbok a lecision not to agree to the request of the' applicant as the suspension'kias extended up to 7.8.09 on the recommendation of the review committee. It is submitted by the id. Counsel that the applicant submitted another application dated 20.5.09 inviting the attention of the respondents to DOPT's OM dated 7.4.04. The respondents have already taken note of the said instructions while reviewing the suspension of the applicant in February 2009. Thereafter the respondents took up the exercise to review the suspension of the applicant in July 2009 and placed the matter before the said Review Committee and the said Review Committee was still of the view that the complaint against the applicant was of a very serious nature and as such, the revocation of his suspension would not p be in public interest. Therefore the said review committee recommended for continuation of the suspension period of the applicant for a further period of 180 days w.e.f. 8.8.2009.
16. Mr.Mukherjee further submitted that another representation dated 22.11.2010 field by the applicant was placed before the Review Committee which considered the review of suspension period of 2011 and after considering his representation and taking into consideration the views of CBI, recommended continuance of suspension period of the applicant. Accordingly the competent authority extended the period of suspension of the applicant for a further period of 180 days v.e.f. 30.1.2011. Thereafter the applicant filed another representation dated 2.2.2011 for increasing his subsistence allowance which was considered by the competent authority and decided to increase the subsistence allowance by 50% of the subsistence allowance which was admissible to the applicant diringthe firsLthreémonths of his suspension and accordingly the order wasissue&on 21.2.2011.
17. After considering the request of CBI the competent authority took a tentative view to grant sanctidn for prosecution and sought the concurrence of the CVC which agreed-with theMinistry and recommended grant of sanclion for prosecution of th'officr. Sanction order dated 28.12.2011 was issued / permitting the officer to be prosecuted. CBI vide their letter dated 10.4.2012 informed that after receipt of the sanction for prosecution, charge sheet was filed on 9.1.2012 before the Ld. Special Judge CBI, Alipore. CBI also recommended that the officer should not be allowed to take the benefit of delay in conclusion of investigation in the matter of review of suspension as the delay is because of his non-cooperation in further investigation.
The applicant filed OA 146/20 11 before this Tribunal against the order of suspension and extension of period of suspension and the Tribunal dismissed the OA vide order dated 10.1.2013.
The respondents categorically stated in para 6.36 of their reply that CBI in his letter dated 16.6.20 16 informed that seven Criminal Revisions filed by the applicant as well as CRR No. 2042/15 filed by CBI against the discharge of fr co-accused persons, were still pending in Hon'ble High Court, Kolkata. CBI felt that revoking of suspension of the applicant at this stage would be detrimental to the interest of the prosecution case which is being deliberately delayed at the behest of the applicant and other co-conspirators. CBI also ensured that it is taking all possible steps on its part for early conclusion of the trial. It has been informed by the CBI that the applicant has involved himself in adhering to delaying tactics and hampered the procedure of fair trial and thus jeopardized the process of justice. In para 6.38 the respondents have stated that suspension of the applicant was last extended for 180 days beyond 28.12.2016.
20. The respondents in their reply para 20(a) relied upon the following decisions Union of India & Ors. -vs- Rajib Kumar (AIR 2003 SC 29111 Nelson Motis -vs- Union of India [(1992) 4 SOC 7111 Secretary to Govt.-Prohibition & Excise Departrhent -vs L.Sririivasan [(1996)3SCC 1571 ... .
Allahabad Bank & Ani. ;V- Deeak Kumar Bhola [(1997) 4 SCC 1] It was further submitted.by id. Counsel that due to the applicant facts and circumstances anthratio laid doWn. bythe Hon'ble Apex Court th6 case of the applicant deserves tobe; dismissed.
We have heard both the id. Counsels and perused"the pleadings and materials placed before us and the decisions relied upon For coming to a logical conclusion the points to be considered are as to whether the order of suspension dated 15.5.2008 and subsequent extension of suspension dated 12.8.20087 and 28.12.2016 which are all impugned herein are ex facie illegal or legally found to be valid and such suspension is to be sustained.
Primarily we are coming to the circumstances under which the applicant was placed under suspension :
(i) Ministry of Law & Justice, Govt. of India issued the suspension order dated 15.5.2008 by placing the applicant as hereunder:10
"Whereas, a case against Shri Jugal Kishore, Accountant Member, Income Tax Appellate Tribunal, Kolkata Bench, under section 120-B IPC read with sections 7 and 12 of the Prevention of Corruption Act, is under investigation by the Central Bureau of Investigation (CBI).
Now, therefore the President, in exercise of the powers conferred by sub rule (1)(b) of Rule 10 of the CCS (CCA) Rules, 1965, hereby places the said Shri Jugal Kishore, Accountant Member, Income Tax Appellate Tribunal Kolkata Bench, under suspension with immediate effect."
(ii) The said suspension order was extended from time to time by the subsequent orders dated 12.8.2008 and 28.12.20 16 which are all impugned herein.
24. a case was registered on receipt of a reliable source information to the effect that M/S S.K.Tulsiyan & Co., Kolkata used to appear in Income Tax matters for their clientbfoie the various Income Tax authorities including Income Tax Appellate TribunaI,Kolkat& where Shri Jugal Kishore was working as an Accountant Member. The information furthth revealed that the applicant had demanded an illegal gratification of Rs;30 lakh from M/s S.K.Tülsiyan & Co for the undue favoursb in shwn tothenc by him in th Income Tax matters of various parties...reprsénIed by-the said M/s S.K.Tulsiyan .& Co.
r• before th6 Income Tax Appllate'Tiibthial, Kolkatâ: The said amount of Rs.30 lakh was to be paid to the aplidantat hisresidenelocated at Fl1t'No.ri, Type
- VI, Nizam palace, Kolkat.by oiè S1iiNihant Jain aftr'collecting the same from one Shri Subhash of M Is Mayankh Security Pvt. Ltd: Kolkta on the instruction of Ravi Tulsiyan of M/s S.K.Tulsiyan & Co. on 13.5.2008 at about 8.30 PM. Since the said.facts disclosed commission of cogniable offence u/s 120B IPC r/w Section 7 & 12' of P;C.Act 1988, RC 21(A)/2008-Kol was registered by CBI, ACB, Kolkata against the FIR named accused persons of the said case.
The investigation made by CBI revealed that the bribe amount of Rs.30 lakhs was brought by Subhash Chand Barjatiya from the house of S.K.Tuylsiyan as per instruction of Ravi Tulsiyan and within the knowledge of Sajan Kumar Tulsiyan. Barjatiya handed over the same to the applicant along with Nishant Jam. The said Nishant Jain was co-conspirator of the act and on the basis of information phone was tapped with the consent of the competent /11 11 authority i.e. MHA, Govt. of India, it is very much evident that Nishant Jain got clear cut instruction from Ravi .Tulsiyan about the venue and time of handing over the bribe money to Jugal Kishore, Accountant Member, ITAT (the applicant). The said bribe money was handed over to the applicant for favour obtained and the favours to be obtained.
The President ITAT had confirmed that Jugal Kishore, Accountant Member, ITAT (the applicant) has been arrested by CBI I Kolkata on 14.5.2008 at 04.01 hours in the above matter. He had requested the action as may be deemed appropriate in the circumstances of the case may be taken in the matter. Accordingly the applicant was placed under suspension w.e.f. 15.5.2008 initially for a period of 90 days by invoking the power as provided under Rule 10 of CCS (CCA)' Rules where a case against the government servant in respect of criminal offence is under investigation, enquiry or trial, he can be placed under suspension Thereafter on the recommendation of Review Committee constituted for the purpose 'of, extension of suspension, the applicant's period of suspension was extended from time to time.
25. It is noted from the cake records that as the representations were not disposed 'of by the respori'dént authorities, the applicant approached this Tribunal in OA 1225/2009 with a prayer for quashing 'of the order of suspension dated 15.5.2008 and subsequent extension orders arid to allow him to resume his duties with full back salaries with in'terest. This Tribunal after hearing the parties dismissed the OA vide order dated 22.10.2009 holding that -
"It was also held in that case that 'it is no doubt true that period of suspension should not be unnecessarily prolonged but if plausible reasons exists and the authorities feel that the suspension needs to be continued merely because it is for a long period that does not invalidate the suspension.' In view of the above, I am unable to grant any relief to the applicant and accordingly the OA is dismissed. No costs."
Thereafter the applicant filed RA 29/09 where this Tribunal vide order dated 20.1.20 10 rejected the Review Application on circulation.
26. It is further revealed that the applicant again approached this Tribunal order of suspension dated 15.5.2008 and 12 / subsequent order extending the period of suspension, where this Tribunal vide order dated 10.1.2013 dismissed the'OA. The applicant thereafter approached Hon'ble High Court vide COCT 7/13 challenging the order dated 10.1.2013 passed by this Tribunal in RA 29/09. Hon'ble High Court vide order dated 4.2.2015 dismissed the COCT 7/13 with CAN 134/15 passed an order as hereunder "We are of the opinion ;that suspension of the petitioner cannot be revoked at this stage when the CBI has already filed charge sheet before the concerned CBI court and the trial will commence in near future.
It is, however, not in dispute that the matter is pending before the concerned CBI court for a considerable period and the suspension period of the petitioner has .been extended -from time to time in view of the pendency of the aforesaid: CBI case:
In any event,e are of the opinion that the CBI authorities are in no way responsible for the delay in holding the trial."
27. From the recrd it appers' that CBI in its letter dated 5. r.2015 informed that the case was pendih l3eforè CBI'Cdurt, Alipore and threemore accused persons of the case have filed, discharge petition before the Court to' cause further delay in theroceeding:CBI further in its letter dated 18.6.20 15 informed that the case was -pendiAg before Ld Special Judge, CBI Court, Alipore for hearing on petitibn 'dated 26.2.2015 filed by the 'applicant for dropping the case and .discharging the accused. CBI, also stated that the -
applicant and his co-onpirers were trying every method to stall the trail by tryingto agitate the batter in - the Hon'ble High Court, Cacuttâ in oer to get a stay in the trial and that the applicant and other co-accused have been filing numerous petitions to bring the trial of the case to a halt. CBI also informed that because of these delaying tactics adopted by the applicant and his co- conspirators, the charges have not yet been framed and the applicant should not be released from suspension.
28. It is also revealed from the records that CBI in its l:ter dated 21.12.2015, 16.6.2016 and 20.12.2016 informed that the revoking of suspension of the applicant would be detrimental to the interest of the prosecution case which is being deliberately delayed at the behest of the applicant and other co-conspirators.
13In the case of Allahabad Bank & Anr. -vs- Deepak Kumar Bhola [(1997) 4 SCC 11 Hon'ble Supreme Court has held as under:
"We are unable to agree with the contention of learned counsel for the respondent that there has been no application of mind or the objective consideration of the facts by the appellant before it passed the orders of suspension. As already observed, the very fact that the investigation was conducted by the 031 which resulted in the filing of a charge sheet, alleging various offences having been committed by the respondents, was sufficient for the appellant to conclude that pending prosecution the respondent should be suspended. It would be indeed inconceivable that a ban should allow an employee to continue to remain on duty when he is facing serious charges of corruption and mis- appropriation of money. Allowing such an employee to remain in the seat would result in giving him further opportunity to indulge in the acts for which he was being prosecuted. Under the circumstances, it was the bounden duty of the appellant to have taken recourse to the provisos of clause 19.3 of the First Bipartité Settlement, 1966. The mere fact that nearly 10 years have elapsed since the charge sheet was filed can also be no ground for allowing the respondent to come, back to duty on a sensitive post in the bank,..urIlesiiëis exonerated of the charge."
In the matter of Union ofIndia & Ors. -vs- Udai Narayán 1(1998) 5 SCC 535] Hon'ble Apex Court has held as under:
"A bare look at'Rule, 1.0 'bf ..CCS .(Ciassification, Control & Appeal) Rules.. 1965 wouldshowthát. the ihterpretation placed by the Tribunal does not appear to ,be .cortect Ah unduly narrow technical view has been taken by the Tribunal to'quásh the order of suspension. The. view of the Tribunal that the .exessibn 'invetigation, Inquiry over trial', would not include the stage f fii{ng'of the charge sheet in the Court and since investigation was o'r and the trial had not yet comitienced, the respondent could .notbe- placed under'suspension, we are unable to accept. The delinqueht caiThot bcoñsidered to be any better off after the charge sheet hadbenfiled against him in the Court after completion of the investigation, than his position during the investigation of the case itself. It has been broight to our notice that sanction for prosecution has already been obtained and case has been fixed for framing of charges by the trial court. In this view of the matter we find that the view taken by the Tribunal in the impugned order is not sustainable and the orcer of suspension was not liable to be quashed on the ground that the case was neither at the stage of investigation-or enquiry or trial."
In the decision relied upon by Mr.Samanta, Id. Counsel for the applicant in Civil Appeal No. 1912/2015 (Ajay Kumar Choudhary), Hon'ble Apex Court has held that:
The direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance, is now superseded.
The currency of s 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.
A 14 The Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to serve any local or personal contact, that he may have and which he may misuse for obstructing the investigation against him.
32. We have noted that while issuing the suspension order the department followed Rule 10 and Rule 10(7) of CCS (CCA) Rules, 1965 reads as hereunder "10. Suspension (1) The Appointing Authority or any authority to which it is subordinate or the Disciplinary Authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension -
where a disciplinary proceeding against him is contemplated or is pending, or where, im the opinion of the authority aforesaid, he has engaged.hnelf in activities prejudicial to the interest of the securiTy of the State; or where a case against him in respect ofany criminal offence is under investigatiff;iriqUiry or trial.
(7) an order of suspension made -or deed to have15eefl ade under sub rule (1) of (2) of this rule shall ndt be valid after a periodof ninety days unless it is extended after review, for a further petiM. before the expiry of ninety days. .. -. .
33 We want to clarifythe--case ieferred to by the ld Counsel for the applicant in the case ,of AjayKirai Ch6udhary (supra) that some priicipies have been laid down in paras 14 of th judgrhent that the directiondf CC that pending a criminal investighon, departmental proceedings are held to be in abeyance, is now suprseddd amongst others. In the present case we have noted that there is no such criminal or CBI investigation going on ut the CBI, ACB, Kolkata case No. 0102008A0021 against Jugal Kishofe, Accountant Member, ITAT (the applicant) is registered and the applicant was charge sheeted with faming of charges and the case is thus at the stage of evidence. Thus the above principal guideline narrated in the case of Ajay Kumar Choudhary (supra) is not applicable in the instant case. More so, it is evidently. clear that the applicant or his co-accused persons have repeatedly approached before the Tribunal and Hon'ble High Court which delayed the completion of proceedings.
34. We have further viewed that in the present case the investigation was over and the trial is going on by framing of charges by CBI and it is not in the stage of investigation or enquiry trial. Further we are of the view that the 15 allegation is of bribery of Rs.30 lakhs which led to the case of CBI under 4hich the applicant was charge sheet and if at this juncture the employee is al1wed tOo continue to remain on duty after acing such grave charges of corruption, there indeed required to keep him away from duty otherwise that woui1 be 4 lenient view of the department to encourage corruption, may be in some other places until he is exonerated of the charges or acquitted by the criminal coiirt.
After taking into consideration the entire conspectus of the case an the present case being on a serious issue of corruption and by taking the ratic1 laid down by Hon'ble Apex Court mentioned in the foregoing paragraphs we are of the view that continuation, of suspension 'of the 'applicant on being reviewd is valid and accordingly this Original Application does not have any merit.
Accordingly'the OA is dismissed. No orderas to costs. 1
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