TaxTMI 
TaxTMI 
2022 (5) TMI 1581
X X X X Extracts X X X X
X X X X Extracts X X X X
....me. Vide order dated 13.08.2020, he was also transferred under CGST Commissionerate, Bhubaneshwar from Kolkata Zone, with direction that he be posted in a non-sensitive post. The applicant feeling aggrieved by the continued suspension, has filed the present O.A. seeking the following relief(s):- "(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 subsequent order based on such impugned orders continuing the suspension of the applicant as illegal, arbitrary and discriminatory and consequently quash/revoke/set aside the same; (c) hold and declare that the continued and prolonged suspension of the applicant is arbitrary, illegal and void ab-initio; (d) in consequence of the prayer above in para (b to c) above, hold and declare that the applicant is entitled for reinstatement in service with immediate effect and further that he is deemed to have been reinstated in service w.e.f. 31.01.2019 which was passed by the Respondents after the judgment....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o) Gulshan Choudhary Vs. Punjab & Sind Bank. (p) Govt. of NCT of Delhi Vs. Vijay Kumar Jha. 3. Respondents have filed the counter affidavit opposing the O.A. It is submitted that arising out of a DRI investigation in 2016, various cases of smuggling, fraud and anti-departmental activities were observed and certain departmental officers, including the applicant, were issued show cause notices. It is submitted that the investigation conducted by the CBI revealed the involvements of the applicant in smuggling activities and activities against the departmental interest. He was made co-noticee in the supplementary Show Cause Notice dated 18.05.2017. Various other allegations including those under PC Act etc. were also highlighted showing involvement of the applicant. Keeping in view these serious charges against the applicant, he was placed under suspension vide order dated 10.11.2017 pending major penalty departmental proceedings contemplated against him. The suspension was further extended from time to time by the Suspension Review Committee in view of the ongoing investigations by the CBI. Subsequently, a proposal for launching prosecution against the applicant was also f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g been issued a Show Cause Notice vide order dated 10.11.2017. The applicant's suspension has been extended from time to time by the Suspension Review Committee. 9. This is the 2nd round of litigation. The applicant aggrieved by the extension of suspension orders, had filed O.A. No. 3505/2018. This Tribunal dismissed the O.A. vide order dated 14.12.2018, which reads as under: "26. The endeavor of Hon'ble Supreme Court, for decades together was to ensure transparency in Government services and public life, and even new statutory agencies, like CVC, have been brought into existence in compliance of the directions of the Supreme Court. Radical changes were brought as regards the functioning of CBI is to ensure that no laxity is exhibited in the context of dealing with the cases where allegations of corruption or misconduct of serious nature exist. The applicant is facing serious allegations. Whatever be the reasons for default in issuing charge sheet, that should not become an advantage for the applicant to get reinstated into service. 27. We, therefore, dismiss the OA. However, we direct that the respondents shall make endeavour to file the charge memo wi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... dated 07.01.2021. Apart from above, as per records available with the Department, out of five proposals for launching prosecution under Customs Act, 1962, against the applicant, prosecution sanction in four cases have already been given by the Competent Authority. 11. From the above, it is evident that the applicant is involved in various cases, including CBI and Vigilance. On completion of investigations, major penalty charge sheets are contemplated, not in one but in many cases. It brings us to the moot point that has been raised in this O.A., which is non-issuance of a charge sheet and continued suspension. Basically whether suspension of the applicant can be continued beyond 90 days, if no charge sheet has been issued. 12. The applicant has relied upon many judgments in support of his arguments. This subject matter has been dealt with by the Hon'ble Apex Court and also by the Hon'ble High Court in different cases. The Hon'ble Apex Court in Ajay Kumar Choudhary vs. Union of India through its Secretary & Anr. (supra) has been primarily relied upon. The Hon'ble High Court of Delhi in WPC No. 8134/2017 and CM No. 33423/2017 has considered the same. It is held....
X X X X Extracts X X X X
X X X X Extracts X X X X
....days. Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2), if the Government servant continues to be under suspension at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later." (Emphasis supplied) 22. Thus, it is only if the suspension is not extended after review within the initial period of 90 days (in a case to which sub-rule (2) does not apply), that the suspension of the government servant would lapse automatically. In all other cases, the suspension would continue unless and until it is modified or revoked by the competent authority though it would not imply that there is no requirement to conduct periodic renewal of the suspension. This is so provided in sub-rule (5)(a) of Rule 10, which reads as follows: "10 (5)(a) Subject to the provisions contained in sub-rule (7), an order of suspension made or deemed to have been made under ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t case; would lead to the conclusion that the said principle cannot be ascribed the status of ratio decidendi. 22. Further, there would not have been any necessity for us to undertake any discussion on this aspect had Rule 10 (7) of the CCS (CCA) Rules, 1965 was interpreted or any portion of it was struck down, denuding the Government of the power to continue the suspension beyond 90 days if no charge sheet is filed. 23. The authority of a precedent and its binding nature is certainly high, when the issue decided therein is not covered by any provision of law or by an earlier precedent. The Courts subordinate to the one which authored the precedent, have to religiously follow it, till any legislation is made to the contrary, in accordance with law. If the issue is covered by a provision of law, the precedent would retain its strength, if the provision is taken into account and is interpreted. The judgment then becomes a guiding tool for the interpretation or understanding the provision of law. 24. It is not uncommon, though rare that, the attention of a Court is not drawn to the provision of law, and observations are made which do not accord with such pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....39; case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavement or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions." 26. The endeavor of Hon'ble Supreme Court, for decades together was to ensure transparency in Government services and public life, and even new statutory agencies, like CVC, have been brought into existence in compliance of the directions of the Supreme Court. Radical changes were brought as regards the functioning of CBI is to ensure that no laxity is exhibited in the context of dealing with the cases where allegations of corruption or misconduct of serious nature exist. The applicant is facing serious allegations. Whatever be the reasons for default in issuing charge sheet, that should not become an ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....zing the fact that even in the case of Ajay Kumar Choudhary (supra), the order of suspension was not interfered with by the Apex Court, though the charge-sheet in the said case was filed after three months since the date of initial suspension of the delinquent employee." [emphasis supplied] 34. For the foregoing reasons, the reference is answered by holding that: (i) The judgment of the Apex Court in the case of Ajay Kumar Choudhary, supra, does not lay down absolute proposition of law that an order of suspension cannot be continued beyond the period of three months if the memorandum of charges/chargesheet has not been served within three months, or if memorandum of charges/charge-sheet is served without reasoned order of extension. (ii) The judgment in R. Balaji, supra, has no reference to the earlier judgments of co-equal strength and is thereby rendered per incuriam. (iii) The issue of challenge to the order of suspension should be analyzed on the facts of each case, considering the gravity of the charges and the rules applicable. (iv) Revocation of suspension with a direction to the employer to post the delinquent in a non-s....