TaxTMI 
TaxTMI 
2023 (9) TMI 467
X X X X Extracts X X X X
X X X X Extracts X X X X
....re contemplated. 3. In the first round of litigation, the continued suspension orders were challenged by the petitioner by preferring O.A. No. 3505/2018, which was dismissed by the Tribunal vide order dated December 14, 2018 in following terms: "27. We, therefore, dismiss the O.A. However, we direct that the respondents shall make endeavor to file the charge memo within a period of three months from the date of receipt of copy of this order and when the Suspension Review Committee meets next, it shall specifically address the question as to whether it is desirable at all to continue the suspension, and whether the interests of the State and of the applicant would be served in case he is transferred to any other place by reinstating him. There shall be no order as to costs." 4. In the second round of litigation, O.A. No. 1543/2021 was preferred by the petitioner seeking following reliefs: "(a) call for the relevant file(s)/record(s) of the Respondents and peruse the same; (b) hold and declare the extension of suspension vide letter dated 31.01.2019, 29.07.2019, 30.01.2020, 24.07.2020,19.01.2021 & 15.07.2021 [Annexure A-1 Impugned Colly)] and any subs....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion by the Investigating Agencies and same is solely attributable to the respondents. The delay in issuance of charge memo is further contended to be contrary to the directions of the Tribunal as well as DoPT OM No. 11012/4/2003Estt.(A) dated 07 January, 2004 and OM F. No. 11012/04/2016-Estt.(A) dated August 23, 2016. As such, it is urged that continued and prolonged suspension of petitioner for more than five and a half years is arbitrary and violative of Articles 14 and 21 of the Constitution of India. It is also urged that the judgments on issue reflect that wherever the disciplinary proceedings have been unduly prolonged along with suspension, the same have been set aside. In support of the contentions, reliance is further placed upon State of H.P. v. B.C. Thakur, 1994 SCC (L&S) 835, Union of India & Ors. v. Raj Kishore Parija, 1995 Supp (4) SCC 235, O.P. Gupta v. Union of lndia & Ors.,1987 (4) SCC 328, Samiran Chakrabarty v. Union of India & Ors., 1992 SCC OnLine Cal 52, Allahabad Bank v. Sandipta Gangopadhyay, 2019 SCC OnLine Cal 2717, Samir Kumar Roy Chowdhury v. Indian Drugs Pharmaceuticals Ltd, 1997 SCC OnLine Cal 20, Mohinder Singh Gill & Anr. v. The Chief Election....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is alleged to have been delivered in cash to the petitioner by the exporters. It is contended that keeping in view, the role of the petitioner, he was placed under suspension under Rule 10(1)(a) of the CCS (CCA) Rules, 1965, pending departmental proceedings vide order dated November 10, 2017. Further, the suspension was extended by the Disciplinary Authority on the recommendations of the Suspension Review Committee from time to time. Petitioner is also stated to have been arrested by CBI on November 02, 2020 and on completion of investigation, vide report dated March 31, 2021, CBI proposed RDA Major only against the petitioner. Also, penalties of Rs. 10,00,000/- under Sections 112(a) & 112(b) and Rs. 10,00,000/- under Section 114AA of Customs Act, 1962 were imposed on the petitioner. It is also pointed out that out of the five proposals for launching prosecution under Customs Act, 1962, the prosecution sanction in four cases has been given. Learned counsel for the respondents further submits that the Suspension Review Committee duly considered the reasons for extending the suspension beyond 90 days and the gravity of the irregularities weigh heavily against the petitioner. As....
X X X X Extracts X X X X
X X X X Extracts X X X X
....an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal thus consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharging the duties of office or post held by him. In other words, it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruit and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent haying had the opportunity in office to impede the progress of the investigation or inquiry, etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in serv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....within three months of suspension but the said power can be exercised if good reasons are forthcoming: "17. It may not always be possible for the government to serve the charge sheet on the officer concerned within a period of 90 days, or even the extended period, for myriad justifiable reasons. At the same time, there may be cases where the conduct of the government servant may be such, that it may be undesirable to recall the suspension and put him in position once again, even after sanitising the environment so that he may not interfere in the proposed inquiry. On a reading of Ajay Kumar Choudhary (supra), we are of the view that the Supreme Court has not denuded the Government of its authority to continue/ extend the suspension of the government servant - before, or after the service of the charge sheet - if there is sufficient justification for it. The Supreme Court has, while observing that the suspension should not be extended beyond three months - if within this period the memorandum of charges/ charge-sheet is not served on the delinquent officer, has stopped short of observing that if the charge memo/ charge-sheet is not issued within three months of suspension, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the previous, judgments relied upon by the applicant, including Ajay Kumar Choudhary (supra), and held as under: "33. Referring to the aforesaid judgment of the Apex Court, a Division Bench of this court in The Superintending Engineer, TANGEDCO and another v. Mohan Kumar, [Judgment dated 20.1.2022 passed in W.A. (MD) N0.1827 of 2021] held as under: "20. In the case of Bimal Kumar Mohanty (supra), the Apex Court held that suspension is not a punishment, but only one for forbidding or disabling an employee to discharge the duties of office or post held by him. It is with the direction that each case may be considered on its facts and talcing into account the gravity of the offence or the misconduct. The interference with the order of suspension should not be driven in reference to a judgment, but needs to be determined on facts and after considering the rules governing the delinquent. Judicial review in such matters should be minimal. In the instant case, the allegation against the delinquent is quite serious, as he not only demanded but accepted bribe and was caught red-handed by the Anti-Corruption Department. The aforesaid were the relevant facts, but were not ....