TMI Blog2013 (11) TMI 1658X X X X Extracts X X X X X X X X Extracts X X X X ..... ze the order of the court. It is a settled legal proposition that jurisdiction under Article 136 of the Constitution is basically one of conscience. The jurisdiction is plenary and residuary. Therefore, even if the matter has been admitted, there is no requirement of law that court must decide it on each and every issue. The court can revoke the leave as such jurisdiction is required to be exercised only in suitable cases and very sparingly. The law is to be tempered with equity and the court can pass any equitable order considering the facts of a case. In such a situation, conduct of a party is the most relevant factor and in a given case, the court may even refuse to exercise its discretion under Article 136 of the Constitution for the reason that it is not necessary to exercise such jurisdiction just because it is lawful to do so. The appellants have acted in contravention of the final order passed by the Tribunal dated 1.6.2012 and therefore, there was no occasion for the appellants for passing the order dated 31.7.2012 or any subsequent order. The orders passed by the appellants had been in contravention of not only of the order of the court but also to the office memora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndra Bharjatya in a case under Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA) by fabricating false evidence to implicate Subhash Bharjatya. C. Subsequently, CBI registered another case No. RC S19/E0006/99 dated 7.12.1999 in respect of disproportionate assets possessed by the respondent amounting to more than 12 crores to his known sources of income during his service period of 14 years. As the respondent was arrested on 23.12.1999, he was under deemed suspension. The suspension order was reviewed subsequently. In view of the provisions of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, (hereinafter referred to as `Rules 1965 ), the suspension order was passed by the disciplinary authority to be effective till further order. D. Sanction to prosecute the respondent had been obtained from the competent authority under the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act 1988 ). E. The respondent challenged the order of his suspension before the Tribunal by filing OA No.783 of 2000 which was allowed by the Tribunal vide order dated 17.1.2003 giving the opportunity to the appellants he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the recommendations of the SRC in this regard and passed an order dated 12.1.2012 to the effect that the suspension of the respondent would continue. The views of the CBI were made available subsequent to order dated 12.1.2012 and thus, the SRC again met and recommended the continuance of suspension of the respondent and on the basis of which the Competent Authority, vide order dated 3.2.2012, decided to continue the suspension of the respondent. K. The respondent challenged the said orders dated 12.1.2012 and 3.2.2012 by filing OA No.495 of 2012 before the Tribunal and the Tribunal allowed the said OA vide order dated 1.6.2012 holding that the earlier directions given by the Tribunal on 16.12.2011 had not been complied with while passing the impugned orders dated 12.1.2012 and 3.2.2012 and thus, the continuation of suspension was not tenable. The said orders were accordingly quashed by the Tribunal. L. Aggrieved by the order dated 1.6.2012 passed by the Tribunal, the appellants preferred Writ Petition No.5247 of 2012 before the High Court of Delhi which was dismissed vide judgment and order impugned dated 17.9.2012. Hence, this appeal. 3. Ms. Indira Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re matters to be examined by the trial court where the case is pending. The proceedings had been stayed by the court taking a prima facie view that the courts below had not passed the order in correct perspective and in that view of the matter, the appellants could not be blamed. Thus, the impugned judgment and order is liable to be set aside. 4. Shri Dhruv Mehta, learned senior counsel appearing for the respondent has opposed the appeal contending that the respondent had served the department for a period of 14 years and has faced the suspension for the same duration i.e. 14 years, and after nine year, the respondent would attain the age of superannuation. The appellants have obtained the interim order from this court restraining the trial court to proceed in a criminal case though it is not permissible in law to stay the trial as provided in Section 19(3) of the Act 1988. The said interim order had been obtained by the appellants by suppressing the material facts. The Tribunal vide order dated 16.12.2011 had issued certain directions and in spite of the fact that the said order had attained finality as the appellants had chosen not to challenge the same before a higher foru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harat Gold Mines Ltd. Anr., AIR 1999 SC 1416). 8. In State of Orissa v. Bimal Kumar Mohanty, AIR 1994 SC 2296, this Court observed as under: ...... the order of suspension would be passed taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of evidence placed before the appointing authority and on application of the mind by the disciplinary authority. Appointing authority or disciplinary authority should consider .. and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or 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 must consider each case on its own facts and no general law should be laid down in that behalf......In other words, it is to refrain him to avail further opportunity to perpetuate the alleged misconduct or to remove the impression among the members of service that dereliction of duty will pay fruits and the offending employee may get away even pendin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition of major punishment i.e. removal or dismissal from service, or reduction in rank etc. 11. In Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel Ors., (2006) 8 SCC 200, this Court explained: 18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied that the criminal case pending would be concluded after an unusual delay for no fault of the employee concerned. Where the charges are baseless, mala fide or vindictive and are framed only to keep the delinquent employee out of job, a case for judicial review is made out. But in a case where no conclusion can be arrived at without examining the entire record in question and in order that the disciplinary proceedings may continue unhindered the court may not interfere. In case the court comes to the conclusion that the authority is not proceeding expeditiously as it ought to have been and it results in prolongation of sufferings for the delinquent employee, the court may issue directions. The court may, in case the authority fails to furnish proper explanation for delay in conclusion of the enquiry, direct to complete the enquiry within a stipulated period. However, mere delay in conclusion of enquiry or trial can not be a ground for quashing the suspension order, if the charges are grave in nature. But, whether the employee should or should not continue in his office during the period of enquiry is a matter to be assessed by the disciplinary authority concerned and ordinari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s transferred from his post. Clauses 17.42 to 17.44 of the CBI (Crime) Manual 2005 also deal with suspension. The said clauses provide that the government servant may be put under suspension if his continuance in office would prejudice the investigation, trial or enquiry e.g. apprehension of interfering with witnesses or tampering of documents or his continuation would subvert discipline in the office where the delinquent is working or his continuation would be against the wider public interest. The Department of Personnel and Training, Government of India also issued Circular dated 4.1.2004 regarding the suspension and review of the suspension order. 16. The instant case is required to be considered in light of the aforesaid settled legal propositions, statutory provisions, circulars etc. The Tribunal inter alia had placed reliance on notings of the file. The issue as to whether the notings on the file can be relied upon is no more res integra. In Shanti Sports Club v. Union of India, (2009) 15 SCC 705, this Court considered the provisions of Articles 77(2), 77(3) and 166(2) of the Constitution and held that unless an order is expressed in the name of the Presiden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fides or is influenced by extraneous considerations .. 18. Thus, in view of the above, it is evident that the notings in the files could not be relied upon by the Tribunal and Court. However, the issue of paramount importance remains as what could be the effect of judgment and order of the Tribunal dated 16.12.2011 wherein the Tribunal had directed the appellants to reconsider the whole case taking into account various issues inter-alia as what would be the effect of quashing of the chargesheet by the Tribunal against the respondent; the report/recommendation of the Law Ministry to revoke the sanction; the effect of affidavit filed by the then Finance Minister after remand of the sanction matter by the High Court to the effect that though the competent authority had accorded sanction, the entire relevant matter had not been placed before him; the directions passed by the High Court against the officers of the CBI in the cases of Shri Vijay Aggarwal and Shri S.R. Saini; and the duration of pendency of criminal trial against the respondent and, particularly, taking note of the stage/status of the criminal proceedings, in view of the fact that the respondent is on bail since 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Tribunal dated 16.12.2011, the matter was reconsidered by SRC, which took note of the fact that the orders dated 12.1.2012 and 3.2.2012 had been quashed and set aside, and further that criminal trial had been stayed by this Court, which recommended that suspension of the respondent be revoked and he may be posted to a non-sensitive post. However, this recommendation was subject to the approval of the Hon ble Finance Minister. The record reveals that the said recommendation of the SRC was considered by several higher authorities and ultimately, the competent authority passed an order that the suspension order would continue till further review after six months or the outcome of the appeal to be preferred by the department, whichever was earlier. 24. It is astonishing that in spite of quashing of the suspension order and direction issued by the Tribunal to re-instate the respondent, his suspension was directed to be continued, though for a period of six months, subject to review and further subject to the outcome of the challenge of the Tribunal s order before the High Court. The High Court affirmed the judgment and order of the Tribunal dismissing the case of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1289, Mangal Prasad Tamoli v. Narvadeshwar Mishra, AIR 2005 SC 1964; and Ritesh Tewari v. State of U.P.,AIR 2010 SC 3823) (Emphasis added) 28. In view of the above, the aforesaid order dated 31.7.2012 in our humble opinion is nothing but a nullity being in contravention of the final order of the Tribunal which had attained finality. More so, the issue could not have been re-agitated by virtue of the application of the doctrine of res judicata. 29. This Court in Satyadhyan Ghosal Ors. v. Smt. Deorajin Debi Anr., AIR 1960 SC 941 explained the scope of principle of res-judicata observing as under: 7. The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation, When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Union of India v. K.M. Shankarappa, (2001) 1 SCC 582, this Court deprecated the practice of interfering by the executives without challenging the court order before the superior forum, observed as under: The executive has to obey judicial orders. Thus, Section 6(1) is a travesty of the rule of law which is one of the basic structures of the Constitution. The legislature may, in certain cases, overrule or nullify a judicial or executive decision by enacting an appropriate legislation. However, without enacting an appropriate legislation, the executive or the legislature cannot set at naught a judicial order. The executive cannot sit in an appeal or review or revise a judicial order. The Appellate Tribunal consisting of experts decides matters quasi-judicially. A Secretary and/or Minister cannot sit in appeal or revision over those decisions. At the highest, the Government may apply to the Tribunal itself for a review, if circumstances so warrant. But the Government would be bound by the ultimate decision of the Tribunal. (Emphasis added) 34. The aforesaid facts make it crystal clear that it is a clear cut case of legal malice. The aspect of the legal malice was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt can pass any equitable order considering the facts of a case. In such a situation, conduct of a party is the most relevant factor and in a given case, the court may even refuse to exercise its discretion under Article 136 of the Constitution for the reason that it is not necessary to exercise such jurisdiction just because it is lawful to do so. (Vide: Pritam Singh v. The State, AIR 1950 SC 169; Taherakhatoon (D) by Lrs. v. Salambin Mohammad, AIR 1999 SC 1104; and Karam Kapahi Ors. v. M/s. Lal Chand Public Charitable Trust Anr., AIR 2010 SC 2077). 37. A Constitution Bench of this Court while dealing with a similar issue in respect of executive instructions in Sant Ram Sharma v. State of Rajasthan Ors., AIR 1967 SC 1910, held: It is true that the Government cannot amend or supersede statutory Rules by administrative instruction, but if the Rules are silent on any particular point, the Government can fill-up the gap and supplement the rule and issue instructions not inconsistent with the Rules already framed. 38. The law laid down above has consistently been followed and it is a settled proposition of law that an authority cannot issue orders/office memorandum/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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