TaxTMI 
TaxTMI 
2015 (6) TMI 592
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....ly issued by the Appellant. Thereafter, on 3.4.2010, the Appellant was transferred to Ambala Cantt. However, vide letter dated 25.1.2011 the Appellant was asked to give his explanation for issuing the factually incorrect NOCs. In his reply the Appellant admitted his mistake, denied any mala fides in issuing the NOCs, and attributed the issuance of the NOCs to the notes prepared by the subordinate staff of SDOs/Technical Officer. It was in this background that he received the Suspension Order dated 30.9.2011. Various litigation was fruitlessly initiated by the Appellant in the Central Administrative Tribunal, Chandigarh Bench, as well as in the Punjab & Haryana High Court, with which we are not concerned. The Appellant asserts that since the subject land was within the parameter wall of the Air Force Station, no physical transfer thereof has occurred. On 28.12.2011 the Appellant's suspension was extended for the first time for a further period of 180 days. This prompted the Appellant to approach the Central Administrative Tribunal, Chandigarh Bench (CAT), and during the pendency of the proceedings the second extension was ordered with effect from 26.6.2012 for another period of ....
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....t by letter dated 13.6.2014 the suspension of the Appellant had been continued for a period of 90 days with effect from 15.6.2014 (i.e. the fourth extension), and that investigation having been completed, sanction for prosecution was to be granted within a period of two weeks. When the arguments were heard in great detail on 9th September, 2014 by which date neither a Chargesheet nor a Memorandum of Charges had been served on the Appellant. It had been contended by learned counsel for the Appellant that this letter, as well as the preceding one dated 8.10.2013, had been back-dated. We had called for the original records and on perusal this contention was found by us to be without substance. 5. The learned Additional Solicitor General has submitted that the original suspension was in contemplation of a departmental inquiry which could not be commenced because of a directive of the Central Vigilance Commission prohibiting its commencement if the matter was under the investigation of the CBI. The sanction for prosecution was granted on 1.8.2014. It was also submitted that the Chargesheet was expected to be served on the Appellant before 12.9.2014, (viz., before the expiry of th....
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....l is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the Memorandum of Charges, and eventually culminate after even longer delay. 9. Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his Department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is to determine his innocence or iniquity. Much too often this has now become an accompaniment to retirement. Indubitably the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the accused. But....
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....This Court in Hussainara Khatoon (I) v. Home Secretary, State of Bihar while dealing with Article 21 of the Constitution of India has observed thus: "No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21. Would he be entitled to be released unconditionally freed from the charge levelled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21." 11. The legal expectation of expedition and diligence being present at every stage of a criminal trial and a fortiori....
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.... his conviction; (b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and (c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of [pic]death, disappearance or non- availability of witnesses or otherwise. (4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is - who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by the....
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....me demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker 33 L Ed 2d 101and other succeeding cases. (8) Ultimately, the court has to balance and weigh the several relevant factors - 'balancing test' or 'balancing process' - and determine in each case whether the right to speedy trial has been denied in a given case. (9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order - including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded - a....
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....r Singh vs. State of Bihar, 1986 (4) SCC 481, and more so of the Constitution Bench in Antulay, we are spurred to extrapolate the quintessence of the proviso of Section 167(2) of the Cr.P.C. 1973 to moderate Suspension Orders in cases of departmental/disciplinary inquiries also. It seems to us that if Parliament considered it necessary that a 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/Chargesheet has not been served on the suspended person. It is true that the proviso to Section 167(2) Cr.P.C. postulates personal freedom, but respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same pedestal. 14. We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet is served a reasoned order must be passed for the extension of the susp....