TMI Blog2012 (6) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... nd suspension order was issued almost back to back in the sense that the revocation of suspension was passed on 25.04.2003 and on the same day a fresh suspension order was issued. Since then the applicant has been continuing under suspension. It is the applicants case that against the said order he filed OA No. 1105/2003 which was dismissed. Against the Tribunals order he moved the Honble High Court of Delhi and was allowed to withdraw the same on 11.08.2010 with liberty to approach the Tribunal to challenge the continuing suspension on the basis of subsequent events. He, therefore, filed OA No. 2842/2010 which was decided on 16.12.2011. As such, as on date the applicant is under suspension for about 12 years i.e. from December, 1999. He has approached in different OAs and MAs in the past challenging the continuance of his suspension. The continuance of the suspension was lastly agitated by the applicant in OA No. 2842/2010 which was decided on 16.12.2011 in an exhaustive order. In the said order there was a direction to the respondents to convene a Special Review Committee to consider the revocation of suspension of the applicant. As the respondent did not pass any speaking and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continuance of his suspension and also to and also to direct the respondents to reinstate the applicant forthwith with all consequential benefits. 3. Shri Vikas Singh, Learned Senior Advocate along with Shri S.K. Gupta, learned advocate for the applicant highlighted the long history of the applicants suspension including the status of the two criminal cases pending against him. Shri Singh anchored his contentions on three major grounds to submit that both the impugned orders dated 12.01.2012 and 03.02.2012 do not comply with the directions issued by this Tribunal in its order dated 16.12.2011 in OA No.2842/2010 so much so that the grounds taken by the applicant and the factors stated by the Tribunal have not been addressed in the impugned orders. Firstly, he submits that there is a clear non-application of mind by the Competent Authority and also the SRC in as much as there has been no analysis of the factors indicated by the Tribunal in its order. Secondly, the lack of independent view writs large on the face of the impugned orders as the Competent Authority has narrated the facts of the case in its order dated 12.01.2012 and decided to continue the suspension of the applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings of Hon ble Supreme Court to state that the applicant has been cooperating whereas for one reason or the other the respondents have been seeking adjournments. It is, therefore, contended that to say that the applicant would interfere in the proceedings of the trial court is far from truth. 5. Shri Singh submits that the impugned order clearly discloses that the CBI did not offer its comments to six paragraphs of the Tribunal s order. The Competent Authority which is directly concerned with those six paragraphs did not offer its reasons less to speak of even analyze the same. Both the impugned orders have been passed in a routine manner without applying its mind. 6. Shri Vikas Singh further submits that continuance of the suspension of the applicant is based on two criminal cases pending in the trial court but both the criminal cases having been stayed by the Hon ble Supreme Court, he wonders as to how the applicant would influence the witnesses or tamper with the evidence. His contention is that over so many years of the applicant s suspension, the CBI has already completed its investigation and has filed the challans before the trial court in both the criminal cases. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vations of the Tribunal in its order dated 16.12.2011. Shri Singh placed his reliance on the judgments of the Hon ble Supreme Court in the matter of Satyendra Chandra Jain versus Punjab National Bank and Others [(1997) 11 SCC 444] and Nagaraj Shivarao Karjagi versus Syndicate Bank, Head Office [(1991) 3 SCC 219] to say that dependence of the Competent Authority on the views of CVC would reflect non-application of mind. His contention is that in the present case dependence on the views of CBI would be like that of the dependence on the views of CVC as has been observed by the Hon ble Supreme Court in the above referred cases. 7. Learned senior counsel of the applicant would also refer to the DOP T OM dated 07.01.2004 to submit that after the completion of one year of suspension, the Competent Authority should take careful decision by properly analyzing the case as to whether there should be a review of the suspension periodically and to take into account all such developments taken place between the previous review and the current review which may be relevant for consideration of revocation or continuation of suspension of an employee. Otherwise the very purpose of laying down th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made by Sh. P. Chidambaram, the then Honble Finance Minister on 27.12.2005 that the applicant was having access to various files and had annexed photocopies of a number of documents which normally should not be in his possession. He has further observed that there is no reason why the applicant, who is a suspended officer, should frequently visit North Block and has directed the competent respondent to enquire into the matter and ensure that stringent action is taken against those in-charge of the files and to ensure that the applicant has no access to those documents. In view of the said specific remarks of the then Honble Finance Minister, Shri Singh contends that if the applicant is reinstated, he would be having access to the documents and would also influence the witnesses against the trial of two criminal cases. Further, Shri Singh drew our attention to the allegations made by the respondents indicating therein that the applicant was a resourceful accused who had been consistently trying to use his clout for his undue benefits and by filing several petitions against the CBI and its officers in Honble High Court and Honble Supreme Court of India numbering about 27. He ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h indicates that the mere fact that a long time have elapsed since the applicant has been placed under suspension would not itself be enough reason to revoke the suspension of the applicant. He also placed reliance on the judgment of Honble Supreme Court in the matter of Allahabad Bank and Another versus Deepak Kumar Bhola, 1997 (4) SCC 1, to indicate that the suspension pending criminal trial within the long period of continuance of suspension was held as legally tenable by the Hon ble Supreme Court. In the said judgment mere expiry of a long period of ten yeas since the filing of the chargesheet in the Court was held not appropriate ground for his reinstatement. He also referred to the judgment of Hon ble High Court of Delhi in LPA No. 1599/2005 decided on 26.05.2006 in the case of Medical Council of India versus K.K. Arora and Another, 2006 (VI) AD (Delhi) 749. In this regard, his reliance was to highlight that the employee may be continued under suspension even when there is a remote or even no possibility of his repeating the very same misconduct. 14. For the above contentions advanced by Mr. Singh, learned counsel for the respondents, he urges that the OA is devoid of mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, we would be confining ourselves to some of the judgments only which would be relevant in the facts and circumstances of the present case. 18. Before us are two sets of issues for consideration and determination. The first set of issues relates to the question whether the impugned orders dated 12.01.2012 and 03.02.2012 are in compliance with the directions issued by this Tribunal and are tenable or not. The second set of issues concern the issue of continuance or revocation of suspension of the applicant. 19. We now examine the first set of issues. In the order of the Tribunal in OA No. 2842/2010 decided on 16.12.2011, facts of the case and background of the controversies have been narrated at greater length. It may not be necessary for us to repeat the same except the relevant matter which would be necessary. In the said order, a direction was issued to the respondents to convene a meeting of the Suspension Review Committee (SRC) within a period of two weeks from the date of issue of the order to reconsider revocation or continuance of suspension of the applicant after taking into consideration the factors as fully detailed above. In the body of the said order, variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004. 20. In view of the above order it would be appropriate for us to refer to the Minutes of the meeting of the SRC held on 10.01.2012. In the said Minutes, the facts of the case including the criminal and departmental proceedings have been recorded. With regard to the Tribunal s direction in the order dated 16.12.2011, the respondents have called for the views of the CBI and in the absence of the CBI report on the same, they have referred to the CBI letter dated 17.06.2011 wherein the applicants suspension was requested to be continued. Subsequently, another communication dated 25.08.2011 was also received from the CBI giving details of the manipulative tactics of the applicant who, with the help of his connections and influence at high places, was trying to cripple the trial in the criminal cases filed against him under the Prevention of Corruption Act. The acts of bringing political and other outside influence to further one s interest on the part of the applicant are in the nature of administrative misconduct. Action in this regard is pending in the department. It is also noted that the SRC has taken into account four Original Applications and one Writ Petition filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een made to the report of CBI dated 27.01.2012. The CBI has given its advice in respect of the issues mentioned in paragraphs 5, 6, 7, 8, 9, 11, 12, 14, 15, 16, 17 and 18 of the Tribunal s order dated 16.12.2011. Though the Competent Authority has taken into account the views of the CBI but there are some paragraphs on which the Competent Authority and more so the SRC should have considered the directions and observations of the Tribunal but the same have not been noticed in the body of the impugned order dated 03.02.2012. 22. In this regard, the learned counsel for the applicant has furnished a Chart in the rejoinder in which specific analysis has been made by him to indicate whether the SRC and the Competent Authority have considered the directions of the Tribunal or not and if so in what manner. For brevity of reasons, we may briefly refer to the same but it is not necessary to narrate the long comparative statements given in the said Chart. 23. The impugned order is based on the recommendation of the SRC, which met on 31.01.2012, which considered the continuance or otherwise of the applicant keeping in view the report of the CBI received by it. A careful perusal of the Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comments on order dated 16.12.2011 in OA No.2842/2010, marked C. In view of the said observation available from the original file of the respondents, the learned senior counsel for the applicant would submit that the Competent Authority has not approved the continuance of suspension of the applicant as recommended by the SRC but has sought clarification and consideration. On the other hand, Shri R.N. Singh, learned Senior Government Counsel, opposes to say that only after the approval of continuance of suspension that observation has been made. It would be appropriate for us at this juncture to note that by implication and inference, the order of the Competent Authority can be construed to have been accorded the sanction for continuance of suspension of the application but has also simultaneously made the observation which gives an impression that observations and directions of the Tribunal issued in its order dated 16.12.2011 have not been adequately addressed. Despite the availability of the CBI report dated 27.01.2012 in the file when the Competent Authority perused for passing the orders, the observation extracted above manifests inadequate consideration of the case on merit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The CBI has not given any comment on the above as it pertains to the respondents. The SRC and the Competent Authority are silent on the issue. For last some reviews, it is noted that there are no specific developments to allow the applicants continuance under suspension. We have no information from the file to know whether any developments have taken place which may have warranted the continuance of applicants suspension. As the same are not considered the order of review of suspension passed is considered mechanical and non-application of mind. 29. Further the Tribunal in the said order dated 16.12.2011 at paragraph 14 has observed that some of the orders extending suspension of the applicant record departmental proceedings as also one of the grounds for his continued suspension and the respondents were to look into this factor while deciding the review of suspension. Relevant portion is extracted below:- Despite that, in the review carried out by the respondents vide order dated 15.07.2010, suspension of the applicant has been extended on the ground that the allegations made against him are grave in nature, as also that he had not filed written statement of defence ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant submits that the CBI has not dealt with the self contained note recorded by the officers of Department of Revenue including Additional Secretary cum CVO containing the facts that the reply to LR had not been sent by the CBI to the sanctioning authority. It was stated that CBI had sent only a SPs report to the sanctioning authority and did not send any relied upon materials including the statements of all the witnesses and other documents including reply to LR which fact could be verified from the files of the Department. His contention is that no document including reply to LR was ever sent by the CBI to the sanctioning authority. He alleges that CBI has once again suppressed crucial findings made by the then Honble Finance Minister in his note dated 15.01.2007 made subsequent to his earlier findings on 18.06.2005 as that did not support the case of CBI. He referred to the relevant extracts of the said noting of Honble Finance Minister which we reproduce below:- 11. The self contained note is a document prepared by the Department on the basis of facts available before the Department and containing inferences or conclusions drawn by the Department from such facts. Whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been misinterpreted by the applicant. We note from the minutes of SRC, analysis done by the Department and the order of the Competent Authority no specific stand has been taken. 32. In Paragraph 16, the observation of the Tribunal in the order dated 16.12.2011 has taken note of the applicants ground on the issue of sanction of prosecution against the applicant and during the hearing in the instant OA the same issue was raised by the senior counsel of the applicant to say that CBI has misled the Tribunal. He submits that the relied upon material were not sent to the sanctioning authority for granting prosecution sanction in one case in which Shri Jaswant Singh, the then Honble Finance Minister had approved the sanction for prosecution and has filed the said affidavit but the CBI was confusing with the other criminal case. The pertinent observation of the Tribunal reds thus: Shri Jaswant Singh, the then Finance Minister, had submitted an affidavit in the court of Special Judge, CBI on 03.11.2007, wherein it is mentioned that he was the Finance Minister during the period and was the sanctioning authority. He, while confirming the statement of facts in paragraph 8 and so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h this aspect of the case, we may mention that even if the opinion of CBI may be available with the review committee at the time of extension of suspension of the applicant, there is no mention in the reply that the opinion of CBI to continue the suspension was based upon certain facts. Normally, be it CBI or any investigating agency, it may opine continuation of suspension on seriousness of the offence and the likelihood of an accused tampering with evidence. The two criminal cases registered against the applicant, it would appear to us, would be based upon documentary evidence. The investigation in both cases is complete and the final report or challan under section 173 Cr.PC has already been submitted in the court. There is no doubt that an influential person involved in a crime may be able to suborn the witnesses or tamper with evidence even after challan may have been put up in the court, but surely and admittedly, the intensity of the plea as regards tampering with evidence, after the challan is put up in the court diminishes manifolds. On the above observation the CBI has taken the stand that there are chances of tampering with evidence by the applicant and have mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der accordingly. 36. The second set of issues coming up for our consideration relate to the continuance of the applicants suspension. Having considered the first issue that both the impugned orders passed by the Competent Authority in continuing the suspension of the applicant has not adequately addressed the directions and observations of the Tribunal contained in order dated 16.12.2011 passed in OA No. 2842/2010 and having set aside the same, the resultant corollary would be that the continuance of applicants suspension is not legally tenable. However, we would carefully examine this issue further. 37. Generally, in the matters of suspension and continuance thereof of the delinquent officer, the Tribunal would remand the case to be considered by the SRC and the Competent Authority but this is not a case of general nature. This is an exceptional case of typical nature where the long period of suspension coupled with stay of the criminal cases have to be taken into account by the Tribunal to decide the issue. In the order passed by the Tribunal in OA No. 2842/2010 decided on 16.12.2011, the Tribunal remanded the matter to the respondents to re-consider the same, but in our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.01.1998 at the office and residential premises of one Sh. Subhash Chandra Barjatya. During the searches, the officers of the Enforcement Directorate seized a FAX message (debit advice) from one of the shops of Shri Barjatya purposely from Swiss Bank Corporation, Zurich, Switzerland which reflected a debit of US $ 150,000/- from the account of Royalle Foundation, Zurich, Switzerland in favour of one Shri S.K.Kapoor, holder of account in Hong Kong Shanghai Banking Corporation, Head Office of Hong Kong. Shri Barjatya alleged that the FAX message from the said Swiss Bank Corporation was a forged one and was planted in his premises during the course of search conducted on 01.01.1998 in order to frame him. It is appropriate to mention that the learned Special Judge allowed the Petition dated 18.07.2010 filed by one Sh. Abhishek Verma and by a separate order granted pardon to him. The Court, while passing the order, perused the case diaries which included the reply to the letter rogatory. Being aggrieved by the said order of the Special Judge, the CBI filed a Writ Petition before the Honble High Court seeking a writ of certiorari to quash the above mentioned impugned orders of the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts but the respondents have moved to the Honble Supreme Court in two SLPs where vide order dated 10.12.2007 the Honble Supreme Court has stayed the proceedings in both the criminal cases pending in the trial court. Keeping in view the above developments and present status in position, we do not find that too many litigations can be the ground to keep the applicant in continuous suspension. 40. At this stage, it is appropriate to note that two criminal cases are the basis for the applicants suspension and continuance. Those two criminal cases have been stayed by the Honble Supreme Court vide its order dated 12.10.2007. As on date the stay of the Honle Supreme Court is operating. In view of the stay granted by the Honble Supreme court, the charges (challans) already filed by the CBI before the trial court in both cases and the same having been taken cognizance of, formal charges have not yet been framed by the trial court. Even if the SLPs are decided expeditiously , it will take considerable time for the trial court to frame the charges, examine the witnesses and come to the final decision whether the applicant deserves to be convicted or acquitted. In case of two departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sconduct. The suspension is also meant to prevent an opportunity to the delinquent officer to scuttle the enquiry/investigation or to win over the witnesses or to tamper with the documents and evidences. The suspension is, therefore, a tool in the hands of the Administration to complete the enquiry/investigation smoothly. In this backdrop of admitted legal position on the question of why an employee should be placed under suspension, if we examine the facts of the case, we notice that in two criminal cases investigation by the CBI Apex Investigating Agency, has been completed and challans/charges have been filed before the trial court in both the criminal cases. In departmental enquiry, enquiry report is available. The criminal proceedings have been stayed by the Honble Supreme Court and the departmental charge framed against the applicant have been quashed and set aside by the Tribunal. Therefore, the possibility of the applicant manipulating the evidence, influencing the witnesses and tampering with the documents in departmental proceedings may not be there as the enquiry has been completed and the enquiry officers report is available. But there may be some possibility of infl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... psed. Even after the stay was granted by the Honble Supreme Court on 12.10.2007 in both the criminal cases, more than 4= years have passed. Looking into the continuance of suspension of the applicant from all these angles, we get the impression that such a long period of suspension in case of the applicant is not currently justified. 44. In various instructions of the Government, it has been spelt out that the competent authority should take all possible steps to keep the period of suspension to the barest minimum. It would be appropriate for us to reproduce below the relevant instructions of the Government in DOP T OM dated 07.01.2004 in which the Governments intention has been specified that after one year of continuous suspension, review should be done carefully to see whether further continuance of suspension would be necessary. Para 3 of the said OM reads thus:- 3. The Review Committee(s) may take a view regarding revocation/continuation of the suspension keeping in view the facts and circumstances of the case and also taking into account that unduly long suspension, while putting the employee concerned to undue hardship, involve payment of subsistence allowance witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sly as possible and the periodical review for continuance or revocation of suspension should not be in a routine manner but should clearly understand the relevance or otherwise of the continuance of suspension. On perusal of the original files placed before us, we are of the considered opinion that except the reason of pendency of criminal and disciplinary cases no other reason has been forthcoming for allowing the applicant to remain under suspension. On a conspectus of the facts, we are of the considered opinion that the order of suspension of the applicant should not continue endlessly. 46. During the hearing, both the sides have referred to various correspondence of the CBI to buttress their arguments. The applicant has been alleging that the CBI has been adopting delaying tactics and assisting the respondent-department to harass him. On the other hand, the respondents have taken the plea that it is on the basis of the recommendation of the CBI that the applicant might interfere in two criminal proceedings pending against him, the Competent Authority has been continuing applicants suspension. After hearing both the sides, we thought it proper that we must give our observati ..... 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