TaxTMI 
TaxTMI 
2018 (10) TMI 2008
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....itioner, requesting for revocation of his 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: ....
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.... In these representations, the petitioner contended, inter alia, that (i) during the course of investigation by the CBI, 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 th....
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....edly in compliance with the above directions issued by this Court, order dated 18th May, 2018 (which constitutes one of the orders impugned in these 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....
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.... "3. Shri Biswal has been placed under suspension w.e.f. 14.12.2017, subsequent to registering of a case of illegal gratification and criminal offences 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. ....
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...., Discipline and Appeal Rules framed by NTPC in respect of their non-workmen category of staff would also mutatis mutandis apply to him with the modification that the Disciplinary Authority, in his case, would 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 Ind....
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....C Online Del 10506 , which considered the judgment of the Supreme Court in Ajay Kumar Choudhary (supra) and rejected the submission of the officer, in the said case, founded on the said judgment, that non-issuance of the charge-sheet, within 90 days, resulted 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....
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.... following thereupon, Mr. Venugopal would point out, para 17 of the judgment records that this Court opined that the judgment in Ajay Kumar Choudhary (supra) could not be treated as denuding the government of its power to review an order of suspension at six monthly intervals. It held that '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 ....
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....he petitioner, was made out, on the submissions advanced by Mr. Venugopal. 19. Mr. Venugopal reiterates, in rejoinder, the legal position that the appointing authority, as well as the Disciplinary Authority, of his client, was the Hon'ble President of India. He points out that the order of suspension, 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. gu....
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.... or any authority to which it is subordinate or the disciplinary authority or any authority empowered in that behalf by the management by general or special order may place an employee under suspension: (a) Where a disciplinary proceeding against him is contemplated or is pending; or (b) Where, in the opinion of the Authority aforesaid, 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 r....
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....r authority. (4) Where a penalty of dismissal or removal from service imposed upon an employee under suspension is set aside on an appeal or on a review under these rules and the case is remitted for further enquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal or removal and shall remain in force until further 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 autho....
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....ing and significant. The said sub-rule ordains that: (i) the suspension, of employees suspended under sub-rules (1) or (2) of Rule 20 would be reviewed by the competent authority every six months, (ii) such review would be 'as per the extant Govt. guidelines', (iii) the 'reasons for revoking or continuing with the suspension shall be recorded in writing', and (iv) 'however, issuance of separate orders would not be necessary after such 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, ....
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....ead of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Which of them can be regarded as the "order" of the State Government? Therefore, to make the opinion amount to a decision of the Government it must be communicated to the person concerned. In this connection we may quote the following from the judgment of 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 Rajpram....
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....ome of the review and that it is only when the employee petitions a court, against continuation of his suspension, that the respondent would be gracious enough to reveal, to the employee, the decision to continue with his suspension; that too by a file noting. I am unable to countenance an argument that the entire exercise of review of suspension of the employee can take place on the file, keeping the employee completely unconscious and unaware thereof. 25.15 For all these reasons, I do not subscribe to the submission, of Mr. 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. ....
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....f two weeks. 26.5 Choudhary petitioned the Supreme Court there against. 26.6 The Supreme Court noted that, vide letter dated 13th June, 2014, the suspension of Choudhary had been continued for 90 days with effect from 15th June, 2014, and that this constituted the fourth extension of Choudhary's suspension. Arguments in the appeal before the Supreme Court were heard on 9th September, 2014, by which date neither a charge-sheet nor a memorandum of charges had been served on Choudhary. 26.7 The Supreme Court, even while noting that each 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. ....
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.... observations contained of the Division Bench in Raghubir Singh v. State of Bihar (1986) 4 SCC 481: 1986 SCC (Cri.) 511] and more so of the Constitution Bench in Antulay (1992) 1 SCC 225: 1992 SCC (Cri.) 93], we are spurred to extrapolate the quintessence of the proviso to Section 167(2) CrPC, 1973 to moderate suspension orders in cases of departmental/disciplinary enquiries 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/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 ....
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.... judgment in Ajay Kumar Choudhary (supra) has enunciated a clear proposition of law, to the effect that no suspension order could extend beyond three months, if within the said period, no memorandum of charges or charge-sheet is served on the delinquent officer/employee. 26.11 In fact, a bare glance at para 20 of the judgment in Ajay Kumar Choudhary (supra) would make it clear that the period of three months, prescribed in para 21 of the judgment, has been borrowed from Section 167(2) of the Code of Criminal Procedure, 1973. If that be so, it cannot apply, any differently to an employee 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 ....
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.... before the Supreme Court that the charge sheet was expected to be served on the appellant before 12.09.2014. The Supreme Court considered several decisions and, eventually, concluded in para 21 as follows: "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 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....
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....case and the eventual directions issued in para 22 of the said decision, appear to have escaped attention. 19. There can be no quarrel with the proposition that a government servant who is suspended in contemplation of a disciplinary proceedings or criminal proceedings under Rule 10 of the CCS (CCA) Rules, should not be kept under suspension indefinitely or unnecessarily. It is for this reason that a review of the on-going suspension is required to be undertaken by the government at regular intervals under Rule 10(6) of the CCS (CCA) Rules, which reads as under: "10(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 shall not be for a period exceeding one hundred and eighty days at a time." (emphasis supplied) 20. It may not always be possible....
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....tory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form." (emphasis supplied) 21. The direction issued by the Supreme Court is that the currency of the suspension should not be extended beyond three months, if the charge memorandum/charge-sheet is not issued within the period of 3 months of suspension. But it does not say that if, as a matter of fact, it is so extended it would be null and void and of no effect. The power of the competent authority to pass orders 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 ....
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....tion, too, cannot come to the aid of the respondent, inasmuch as, while, in Dr. Rishi Anand (supra), appropriate orders extending the suspension had been passed within the stipulated period of six months, no such orders have been passed in the present case, as already noted hereinabove. This fact, stands expressly underscored and categorised as "pertinent" by this Court itself, in para 23 of its judgment, which notes that "pertinently, the respondent's suspension was reviewed and extended by the government within the initial period of 90 days on 27.09.2016". Nothing of the sort has happened, however, in the present case. 28. Though, therefore, sitting singly, it is not open to me to question 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 Kuma....
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.... of not less than 10 years, and beyond a period of 60 days where the investigation relates to any other offence. Drawing support from the observations contained of the Division Bench in Raghubir Singh v. 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/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 Me....
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....ide its judgment dated 12th January, 2017, the High Court upheld the judgment of the Tribunal, quashing the suspension Pramod Kumar and went a step further, by quashing the disciplinary proceedings initiated against him vide a charge memo dated 29th October, 2013, thereby allowing the writ petition of Pramod Kumar and dismissing the writ petition of the State of Tamil Nadu. 30.4 Aggrieved thereby, the State of Tamil Nadu approached the Supreme Court. 30.5 Before the Supreme Court, it was contended, on behalf of the State of Tamil Nadu, that the suspension of Pramod Kumar was periodically reviewed and orders were passed, pursuant thereto, extending his suspension. Given the seriousness of the charges against him, the State of Tamil Nadu argued 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 allusi....
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....cessarily be for a short duration. On the basis of the material on record, we are convinced that no useful purpose would be served by continuing the first Respondent under suspension any longer and that his reinstatement would not be a threat to a fair trial. We reiterate the observation of the High Court that the Appellant State has the liberty to appoint the first Respondent in a non sensitive post." 30.8 The law laid down in the above extracted paragraphs from the judgment of the Supreme Court is seminal and significant. It is noted, by the Supreme Court, that periodic reviews for continuing the suspension of Pramod Kumar, had been conducted, and the suspension continued as a consequence thereof. It was also noted that the recommendations, for his reinstatement, did not find 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 C....