TaxTMI 
TaxTMI 
2018 (10) TMI 2008
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.... suspension. 2. A brief recapitulation of the facts would be apposite at the outset. 3. On 5th December, 2013, the petitioner was appointed as Director (Finance) in the National Thermal Power Corporation (NTPC), which has been impleaded as Respondent No. 2 in these proceedings. 4. On 7th December, 2017, a First Information Report (FIR) was filed, against the petitioner, by the Central Bureau of Investigation (CBI) under Sections 11 and 12 of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the PC Act"), read with Section 120-B of the Indian Penal Code, 1860 ("the IPC"). The complaint alleged, receipt by the petitioner, of illegal gratification of Rs. 5 lakhs from Mr. Rohit Reddy Bathina, financing a foreign trip of the petitioner. Mr. Bathina was one of the directors in M/s. BGR Mining and Infra Pvt. Limited, and the FIR also alleged that the petitioner had attempted to procure items of value from the said company, without any consideration. 5. Pursuant to, and provoked by the above investigations, Respondent No. 1 suspended the petitioner from service vide order dated 14th December, 2017, which read thus: "CONFIDENTIAL NO-13011/106/2017-V&S Government of ....
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....BI, search was conducted at his house, and his mobile phone was also seized, and the seizure reports dated 7th and 8th December, 2017, prepared by the CBI, clearly indicated that nothing incriminating was found, during search of the residence of the petitioner, (ii) neither had any charge-sheet been filed against him in the criminal court, by the CBI, nor had any warrants of arrest been issued against him by the said court, and (iii) no disciplinary inquiry or proceedings had been initiated against him. The petitioner also sought to draw sustenance from Rule 10(6) and (7) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as the "CCS (CCA) Rules"), which read thus: "(6) An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority competent to modify or revoke the suspension, before expiry of ninety days from the effective date of suspension, on the recommendation of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension. Subsequent reviews shall be made before expiry of the extended period of suspension. Extension of suspension s....
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....hese proceedings) was passed by the Ministry of Power, conveying the decision of the competent authority to reject the petitioner's representations dated 8th March, 2018, 28th March, 2018 and 17th April, 2018 (supra). The said order noted the fact that the petitioner's suspension was effected under Rule 20(1)(c) of the CDA Rules of the NTPC, which provided that an employee could be placed under suspension where a case against him, in respect of any criminal offence, was under investigation or trial. The reliance, by the petitioner, on the judgment of the Supreme Court in Ajay Kumar Choudhary (supra) was sought to be rebutted on the ground that the said case dealt with the CCS (CCA) Rules, whereas para 1.15.1 of the terms and conditions of appointment of the petitioner, as issued by the Ministry of Power on 31st October, 2016, clearly stated that the petitioner would be governed by the CDA Rules of the NTPC, in respect of non-workmen category of staff, mutatis mutandis. As such, the order sought to opine that the CCS (CCA) Rules were not applicable to the petitioner. The order also noted the fact that the post of Director (Finance) in the NTPC, which was held by the petition....
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....nces against him by CBI, as per CDA Rule 20 (1) (C) of the NTPC. The said Rule provides that, an employee can be placed under suspension where a case against him in respect of any criminal offence is under investigation or trial. Since, Shri Biswal was placed under suspension for the reasons that a case against him in respect of criminal offence was under investigation by the CBI. The status of the case was ascertained from CBI. CBI has intimated on 05.06.18 that the case is still under investigation. As such there is no change in the circumstances under which Shri Biswal was placed under suspension. Further, the petitioner was occupying a post of Director (Finance), which carries high responsibilities and crucial decisions are required to be taken on a day to day basis by the person occupying this post. If the petitioner is reinstated he will be in a position to influence witnesses or tamper with the evidence." 13. It is in these circumstances, that the petitioner has moved this Court by means of the present writ petition. 14. Be it noted, here, that though the petitioner had, in his representations, also sought to contest the allegations, against him, on merits, Mr. Krishnan Ve....
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....be the President of India." As such, the authority competent to place the petitioner under suspension would be the Hon'ble President of India. In view thereof, Rule 20(1) of the CDA Rules, which empowered the appointing authority, any authority to which it was subordinate, the disciplinary authority, or any authority empowered in that behalf by the management of general or special order, to place an employee under suspension, necessarily implied that the order of suspension, of the petitioner, could not have been issued by an authority lower than the Hon'ble President of India. (vi) Even if the order dated 15th June, 2018, were to be regarded as an order of review of the petitioner's suspension, it would still be barred by time, as six months, from the date of issuance of the suspension order of the petitioner, expired on 13th June, 2018. (vii) In this context, Mr. Venugopal has relied on the judgment of the Supreme Court in Union of India v. Dipak Mali, (2010) 2 SCC 222 to support his submission that, on 13th June, 2018, the order of suspension of his client automatically ceased to exist. He submits that, though Rule 20(6) of the CDA Rules does not, in terms, sta....
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....esulted in automatic lapsing of his suspension. Mr. Venugopal would seek to draw attention to several observations, of the Division Bench of this Court in the said judgment, which would underscore the fact that this Court had not departed from Ajay Kumar Choudhary (supra)-which, needless to say, was not a course of action which was open to it, in law but held that, in view of the peculiar circumstances obtaining, which were different from those obtaining in Ajay Kumar Choudhary (supra), the law in Ajay Kumar Choudhary (supra) would not apply. My attention has been invited, in this context, to the fact that this Court, in para 14 of its judgment, opined that the reason, for the Supreme Court setting aside the suspension of Ajay Kumar Choudhary (supra), was that he had, in fact, been served with the charge-sheet albeit nearly three years after his suspension. Mr. Venugopal would submit that his client has not been served with any charge-sheet till date. Mr. Venugopal further relied on para 16 of the judgment which, in his submission, highlights the requirement of six monthly review of every order of suspension, and reads thus: "16. In Kartar Singh v. State of Punjab (1994) 3 SCC 56....
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....hat 'the power of the competent authority to pass orders under Rule 10(6) of the CCS (CCA) Rules extending to suspension has not been extinguished by the Supreme Court'. Mr. Venugopal would submit that this singular fact made all the difference between the case of Dr. Rishi Anand and the case of the present petitioner, inasmuch as, in the case of the former, the power to extend suspension beyond the period of six months had been exercised under Rule 10(6) of the CCS (CCA) Rules, whereas no such power has been exercised, in the case of his client. Mr. Venugopal further highlights that, far from being against his client, the judgment of this Court in Ajay Kumar Choudhary (supra) specifically highlights, in paras 22 and 23, the necessity of reviewing every order of suspension within the period of 90 days. (xi) Mr. Venugopal also relies on a judgment of a Division Bench of this Court in GNCTD v. Vijay Kumar Jha, 2016 SCC Online Del 4167and of the High Court of Kerala in K. Padmakumar v. State of Kerala, 2017 SCC Online Ker 39978. 16. Rebutting the above submissions of Mr. Venugopal, Mr. Arun Bhardwaj, learned Standing Counsel appearing on behalf of the respondent, predictabl....
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.... dated 18th May, 2018, was issued by the Hon'ble President of India, and the fact that the Hon'ble President of India was the Disciplinary Authority of the petitioner also stands recognised and acknowledged, by Respondent No. 1 itself, in para 4 of the impugned order dated 18th May, 2018. The file noting, relied upon by Mr. Bhardwaj, as extending the petitioner's suspension beyond the period of six months, was, on the other hand, not issued by the Hon'ble President of India and could not therefore, in Mr. Venugopal's submission, be treated as a valid order of extension of his client's suspension. He draws attention to Rule 20(3) of the CDA Rules of the NTPC, which reads as under: " The suspension of employees placed under suspension in terms of sub-Rule 1 & 2 shall be reviewed by the Competent Authority every six months as per the extant Govt. guidelines and the reasons for revoking or continuing with the suspension shall be recorded in writing. However, issuance of separate orders will not be necessary after such reviews if the Competent Authority decides to continue further with the suspension. The Competent Authority shall be the authority which placed ....
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....id, he has engaged himself in activities 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 or trial. (2) (a) An employee who is detained in custody, whether on criminal charge or otherwise, for a period exceeding 48 hours shall be deemed to have been suspended with effect from the date of detention by an order of the appointing authority or by the authority to whom the powers are delegated and shall remain under suspension until further orders. (b) An employee shall also be deemed to have been placed under suspension from the date of his conviction if in the event of a conviction for an offence; he is sentenced to a term of imprisonment exceeding 48 hrs. and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction. Note: The period of 48 hours referred to in Clause 2(b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent period of imprisonment, if any, shall be taken into account. (c) Where an Employee is suspended or is deemed to have been suspended (whether in....
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....rther orders. (5) Where a penalty or dismissal or removal from service imposed upon an employee is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority, on consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, the employee shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal or removal and shall continue to remain under suspension until further orders. (6) An order of suspension made or deemed to have been made under this Rule may at any time be revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate. " 25.3 In the context of the present controversy, it is relevant to note that Rule 20 of the CDA Rules postulates that placing, of an employee, under suspension, may be effected either by the "appointing authority", or any authority to which it is subordinate, or the Disciplinary Authority, or an authority empowered in that behalf by th....
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....h reviews if the competent authority decides to continue further with the suspension'. 25.10 As thus couched, Rule 20(3) (supra) of the CDA Rules of NTPC clearly requires any order, reviewing suspension of an officer, who has been placed under suspension under sub-rule (1) or sub-rule (2) of Rule 20, to be by the competent authority who was competent to place the officer under suspension, i.e. in the case of the petitioner, the Hon'ble President of India, and no authority subordinate to him. 25.11 There is no order, forthcoming, by the Hon'ble President of India, or even by order and under the name of the Hon'ble President of India, reviewing the suspension of the petitioner, till date. 25.12 Mr. Bhardwaj has placed considerable reliance on a noting, dated 7th June, 2018, by Aniruddha Kumar, Joint Secretary (TH) and CVO. This noting, as filed by Mr. Bhardwaj with his written submissions, has been endorsed by the Secretary, (P) MOS, PNNRE (IC). 25.13 Mr. Venugopal has also sought to contend that such a noting was woefully insufficient to constitute a legitimate basis for extending the suspension of the petitioner. He has placed reliance on the following passages,....
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....f this Court in the State of Punjab v. Sodhi Sukhdev Singh [AIR (1961) SC 493, 512]: "Mr. Gopal Singh attempted to argue that before the final order was passed the Council of Ministers had decided to accept the respondent's representation and to reinstate him, and that, according to him, the respondent seeks to prove by calling the two original orders. We are unable to understand this argument. Even if the Council of Ministers had provisionally decided to reinstate the respondent that would not prevent the Council from reconsidering the matter and coming to a contrary conclusion later on, until a final decision is reached by them and is communicated to the Rajpramukh in the form of advice and acted upon by him by issuing an order in that behalf to the respondent." Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more th....
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..... Bhardwaj, that the file noting, dated 7th June, 2018, was sufficient compliance with the mandate of sub-rule (3) of Rule 20 of the CDA Rules of the NTPC. 25.16 Though the continued suspension of the petitioner is liable to be set aside even for the above reason, I deem it appropriate to address, on merits, the main submission advanced, before me, by learned counsel, which was regarding the applicability, or otherwise, of the judgment of the Supreme Court in Ajay Kumar Choudhary (supra). For this, a brief study of the decisions in Ajay Kumar Choudhary (supra), Dr. Rishi Anand (supra), Vijay Kumar Jha (supra) and Pramod Kumar (supra) would be necessary. 25.17 I am not referring to the decisions of the High Court of Kerala and Calcutta, on which reliance was placed, as, in my view, it is not necessary to refer to the said decisions, to decide the controversy in issue. 26. Ajay Kumar Choudhary v. Union of India 26.1 The appellant Ajay Kumar Choudhary (hereinafter referred to as "Choudhary") was suspended on 30th September, 2011. The suspension continued, thereafter, till the Supreme Court intervened. The suspension, it may be noted, was extended, for the first time, on 28th Decem....
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....extension of suspension was supported by elaborate reasons, proceeded to hold, nevertheless thus: "11. Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal 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. 12. 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 ....
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.... 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 is true that the proviso to Section 167(2) CrPC 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. 21. We, therefore, direct that the currency of a 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. As in the case in hand, the Government is free to transfer the person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeg....
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....mployee of the NTPC, than to any Central Government employee. 27. Government of NCT of Delhi v. Dr. Rishi Anand 27.1 The petitioner Rishi Anand was placed under suspension vide order dated 12th July, 2016, under Rule 10(1) of the CCS (CCA) Rules, in contemplation of disciplinary proceedings. His suspension was extended by 180 days, vide order dated 27th September, 2016, for the period 10th October, 2016 to 7th April, 2017. Departmental proceedings were initiated, against him, by issuance of a charge-sheet dated 1st March, 2017. During the currency thereof, his suspension was further extended, vide order dated 7th March, 2017, for a further period of 180 days, with effect from 8th April, 2017. 27.2 At this stage, Rishi Anand approached the Tribunal, contending that, on the basis of Ajay Kumar Choudhary, as no charge-sheet had been issued to him within 90 days of his original suspension, his continued suspension had been rendered illegal. Reliance was placed, by him on the OM dated 23rd August, 2016, issued by the DOPT as a sequel to the judgment in Ajay Kumar Choudhary (supra). 27.3 The Tribunal allowed the OA of Rishi Anand, vide its judgment dated 29th May, 2017, relying, for ....
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....son concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time-limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us". 16. It appears that before the Supreme Court rendered its decision on 16.02.2016, the charge sheet ha....
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....e shall be reviewed by the authority competent to modify or revoke the suspension [before expiry of ninety days from the effective date of suspension] on the recommendation of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension. Subsequent reviews shall be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time." (emphasis supplied) 20. 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 ....
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....rders under Rule 10(6) of the CCS (CCA) Rules extending the suspension has not been extinguished by the Supreme Court. The said power can be exercised if good reasons therefor are forthcoming. 22. The decision of the Supreme Court in Ajay Kumar Choudhary (supra) itself shows that there cannot be a hard and fast rule in this regard. If that were so, the Supreme Court would have quashed the suspension of Ajay Kumar Choudhary. However, in view of the fact that the charge memo had been issued to Ajay Kumar Choudhary-though after nearly three years of his initial suspension, the Supreme Court held that the directions issued by it would not be relevant to his case. 23. From a reading of the decision in Ajay Kumar Choudhary (supra) and Rule 10 of the CCS (CCA) Rules, it emerges that the government is obliged to record its reasons for extension of the suspension which, if assailed, would be open to judicial scrutiny-not as in an appeal, but on grounds available in law for judicial review of administrative action." 27.5 In para 16 of its judgment, this Court clearly endorsed the fundamental principle that a government servant, who was suspended in contemplation of disciplinary proceedi....
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.... the correctness of the judgment of the Division Bench in Dr. Rishi Anand (supra), I am of the view that the said decision cannot come to any substantial aid of the respondent. 29. Government of NCT of Delhi v. Vijay Kumar Jha 29.1 As against Dr. Rishi Anand (supra), Mr. Venugopal has drawn my attention to the fact that Ajay Kumar Choudhary (supra) has expressly been followed, by another Division Bench of this Court in Vijay Kumar Jha (supra). In that case, the respondent Vijay Kumar Jha (hereinafter referred to as "Jha") was arrested on 20th September, 2013 and was, vide order dated 20th November, 2013, placed under deemed suspension with effect from the date of the said arrest. His suspension was extended, from time to time, in accordance with Rule 10(6) of the CCS (CCA) Rules. Jha approached the Tribunal, which, vide its judgment dated 25th May, 2016, allowed the Original Application (OA) filed by Jha and quashed the order suspending him from service. Aggrieved thereby, the GNCTD approached this Court. 29.2 The judgment of this Court records at the very outset, that two basic questions were posed, to the counsel appearing for the GNCTD, the first being as to whether any depar....
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....imilar period especially when a Memorandum of Charges/Charge-sheet 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. 4. We, therefore, direct that the currency of a 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. As in the case in hand, 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 sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the righ....
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....d that reinstatement of Pramod Kumar would be contrary to public interest. The Supreme Court delineated the two issues, arising before it for consideration, as relating to the validity of the charged memo, and to the continuance of Pramod Kumar under suspension, respectively. It was also noted that these two issues were distinct and not connected with each other. 30.6 This judgment is not required to be burdened with any detailed allusion with the decision of the Supreme Court, insofar as it related to the validity of the charge memo issued to Pramod Kumar, as no such controversy arises in the present case. 30.7 On the issue of legality of continuation of the suspension of Pramod Kumar, however, in paras 20 to 23 of the judgment of the Supreme Court ruled thus: "20. The first Respondent was placed under deemed suspension under Rule 3(2) of the All India Services Rules for being in custody for a period of more than 48 hours. Periodic reviews were conducted for his continuance under suspension. The recommendations of the Review Committees did not favour his reinstatement due to which he is still under suspension. Mr. P. Chidambaram, learned Senior Counsel appearing for the first ....
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.... favour with the review committees. The Supreme Court also noted the seriousness of the charges against Pramod Kumar, but held that the point arising before it, was 'whether the continued suspension of the first respondent for a prolonged period is justified'. 30.9 The Supreme Court chose, without entering into the controversy in any further detail, to follow its earlier decision in Ajay Kumar Choudhary (supra) in para 23 of its judgment which already stands reproduced hereinabove. 31. A conjoint reading of the authorities examined hereinabove i.e. the judgments of the Supreme Court in Ajay Kumar Choudhary (supra) and Pramod Kumar (supra) and the judgments of this Court in Dr. Rishi Anand (supra) and Vijay Kumar Jha (supra), make it clear, in any event, that suspension cannot continue indefinitely and that periodical review of the order of suspension is essential. Continuous suspension, in the absence of such review, is antithetical both to the mandate of the statute as well as to the general principles relating to suspension themselves. 32. Thus viewed, I am of the opinion that the suspension of the petitioner Kulamani Biswal cannot be allowed to continue any further. I....