9911796707
Advanced Search 
TMI Blog2020 (8) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... isposal. 2. The facts leading to the present proceedings under (A) and (B) as culled out from the pleadings as well as the documents annexed thereto are as follows:- (I) The opposite party as at (A) is presently posted as Deputy Commissioner, CGST in the Office of the Chief Commissioner, Central Goods and Services Tax, Rourkela, Odisha and under suspension. Prior to that, he was working as Deputy Commissioner, Special Intelligence Bureau (in short, 'SIIB') at Air Port Special Cargo (ASPC) Commissionerate, Mumbai Customs Zone-III, Mumbai. During then, special intelligence developed by DRI, MZU indicated that fourteen (14) consignments of 'Rough Diamonds' of very low quality, were being imported by two IEC holders, i.e., namely M/s.Antique Exim Private Limited and M/s.Tanman Jewels Private Limited at Bharat Diamond Bourse (BDB), Mumbai declaring to be of the value of Rs. 156.00 crores and that has been accepted by the panel of experts valuers. A team of officers from DRI thus intercepted those fourteen (14) consignments. Revaluation of the imported diamonds was made and accordingly, assessed to be of the value of Rs. 1.2 crores. It was thus found that rough diamonds of cheap qualit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Chief Commissioner, Central Goods and Services Tax, C.R. Building, Rajaswa Vihar, Bhubaneswar and under suspension. Prior to that, he was working as Deputy Commissioner CGST in the Office of the Chief Commissioner of CGST, Mumbai Zone, Mumbai and before that was posted as Deputy Commissioner of Customs, Commissionrate, NS-III, Customs, Mumbai Zone-II. During his incumbency as Deputy Commissioner of Customs at Mumbai, on the basis of the written complaint dated 25.04.2018, the Central Bureau of Investigation (CBI) has registered a criminal case against him, i.e., RC/BA1/2018/A0012 dated 29.04.2018 for commission of offence of criminal conspiracy and receipt of illegal gratification as also criminal misconduct under section 120-B of the IPC and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988. In the said case, the opposite party and six others were arrested by the CBI on 30.04.2018. The petitioner was released on bail by the order passed by the learned CBI, Special Judge, GR Mumbai and remained in custody till 14.05.2018. In view of the above by order dated 11.05.2018, the opposite party was placed under suspension with effect from 30.04.2018, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant nor in the counter-replies filed in both the OAs, there has been any whisper made by the Respondents that in case the orders of suspension are revoked there is every possibility of the applicants to tamper the evidence and influence the witnesses in order to put a spanner in the process of inquiry. The object of placing a Government employee under suspension is with a view to keeping him/her away from the duties so that he/she cannot not be able to tamper the evidence or influence the witness based on which charges are sought to be established. By shifting of headquarters of both the applicants, such an apprehension appears to be out of place. Respondents have also not adduced any justifiable reason as to why there has been delay in issuing charge-sheets to both the applicants. Besides the above, the recommendations made by the Review Committee for extension of the duration of suspension of the applicants appear to be based on no good and sufficient reasoning. As a matter of course, in the absence of any memorandum of charge being issued to the applicants, although these facts ought to have been considered by the Competent Authority while extending the period of suspension ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances of the cases, more importantly that of the Ajay Kumar Choudhury Vrs. Union of India; through its Secretary and another (supra) relied upon by the Tribunal being completely distinguishable from the cases in hand; the principle settled therein having no universal applicability are not attracted for the purpose in these cases. Reliance has been placed on the decision of Delhi High Court in case of Government of NCT of Delhi Vrs. Dr. Rishi Anand; 2017 SCC Online Del 10506 and that of this Court in case of Bishnu Prasad Sahoo Vrs. State of Odisha & Others; 2017 SCC Online Ori 416. (iv) the disciplinary proceeding against the opposite party of the writ application as at (A) when is still under contemplation as also the enquiry to collect all the relevant materials is still in progress; the order of extension of the period of suspension of said opposite party is free from any legal infirmity; Charge-sheet in the meantime has already been filed in the criminal case after grant of sanction although no charge memo has been placed in initiating the departmental proceeding against the opposite party in the writ application as at (B). Keeping in view the serious nature of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld show that the Suspension Review Committee has made the recommendation for such extension without application of mind and taking cognizance of some facts, which are wholly irrelevant for the purpose. When admittedly by now the opposite party had remained under suspension for a period of about two years and two months; (ii) that principles of laws relating to the continuance of period of suspension of a Government employee have been well settled in catena of decisions of the Apex Court. In case of Ajay Kumar Choudhury (supra) and State of Tamil Nadu v. Pramod Kumar; Civil Appeal No.8427-8428 of 2018 arising out of SLP (C) No.12112- 12113 of 2017 decided on 21.08.2018; while frowning upon the practice of a protracted suspension of a Government employee, it has been said that suspension must necessarily be for a short duration. Even where allegations are serious in nature, always it must not be the need of continuance of the suspension till end of the criminal trial; (iii) that in both the cases, the reasons assigned for the purpose of continuance of period of suspension of the opposite parties are wholly unacceptable as would be evident from all those orders which find mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. On the above arrival submissions; the issues arises for consideration relates to the continuance of opposite parties under suspension. The opposite party at (A) was placed under suspension with effect from 25.10.2018 under Rule 10(1)(a) of the Central Civil Services (Classification Control and Appeal) Rules, 1965 (for short; CCS (CCA) Rules) which is still continuing whereas the opposite party at (B) was placed under deemed suspension with effect from 30.04.2018 under Rule 10(2)(a) of the CCS (CCA) Rules for being in custody for more than 48 hours. Periodic reviews were conducted for their continuance under suspension. On the recommendation of the Review Committee, the suspension of the opposite party at (A) has been extended for three times and that of the opposite party at (B) for four times which include the last order dated 15.01.2020 that has been made during pendency of the Original Applications before the Tribunal. Every time the recommendations of the Committee have not favoured for their reinstatement. In so far as the case of the opposite party as at (A), the departmental proceeding is still under contemplation and it is said that the matter is still under investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx 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 innocence or iniquity". xxxx xxxx xxxx xxxx xxxx x ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly 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" 8. In case of Pramod Kumar (supra), the Officer concerned had assailed his suspension before the Tribunal as well as the charge memo received by him. The Tribunal while revoking the suspension repelled the contentions to set aside the charge memo. So, the writ application was filed by the Officer; a member of Indian Police Service allotted to the State of Tamil Nadu. At the same time, the State had also questioned the order of revocation of suspension. The High Court upheld the order of the Tribunal revoking the suspension and further quashed the charge memo, declaring it to be nonest in law. In the State's appeal, the Apex Court although confirmed the order as to the quashing of the charge memo for nonobservance of mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinued suspension in any manner known to law and this action of the Government would be subject to judicial review. It would be proper to place the relevant paras of the said judgment in case of Dr. Rishi Anand (supra) which runs as follows:- "14. In the said case, the tribunal had directed that if no charge memo was issued to the appellant Ajay Kumar Choudhary before the expiry of 21.06.2013, then he would be reinstated in service. The said order was assailed by the Union of India before the High Court. The High Court disposed of the petition by issuing a direction to the Central Government to pass appropriate orders as to whether it wishes to continue with the suspension or not having regard to all the relevant factors, including the report of CBI, if any, it might have received by now. This exercise should be completed as early as possible and within two weeks from today". 15. The appellant then approached the Supreme Court to assail the said direction of the High Court. The Supreme Court observed in its decision that till arguments were heard on 09.09.2014, neither the charge sheet, nor the memorandum of charge had been served on the appellant. It was represented before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subject to judicial review". (emphasis supplied) 17. Thus, even though the charge sheet had not been served on the appellant Ajay Kumar Choudhary when he initially assailed his suspension, or even till the hearing of the appeal took place before the Supreme Court on 09.09.2014 (it was only between 09.09.2014 and the date of decision on 16.02.2015 that the charge sheet appears to have been served), the Supreme Court held that since the charge sheet had been served on the appellant, therefore, the directions issued by it would not be relevant to his case. Despite the fact that the appellant Ajay Kumar Choudhary had remained under suspension right from 30.09.2011, the Supreme Court did not set aside the order of suspension since, in the meantime, Ajay Kumar Choudhary had been served with a charge sheet sometime after 09.09.2014, i.e. nearly three years after his suspension. 18. The O.M. dated 23.08.2016 and even the earlier O.M. dated 03.07.2015 issued by the DoPT (a copy whereof has been tendered in court by counsel for the respondent) evidently have misconstrued the said decision of the Supreme Court, since the facts of the said case and the eventual directions issued in para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the charge memo/charge-sheet is not issued during that period, has been prescribed. In Kailash v. Nanhku, (2005) 4 SCC 480 : AIR 2005 SC 2441, while examining the issue: whether the obligation cast on the defendant to file the written statement to the plaint under Rule (1) of Order 8 CPC within the specified time was directory or mandatory i.e. whether the Court could extend the time for filing of the written statement beyond the period specified in Rule 1 of Order 8, the Supreme Court held that the Court had the power to extend the time for filing of the written statement, since there was no consequence prescribed flowing from non-extension of time. In para 29 of this decision, the Supreme Court observed as follows:- "29. It is also to be noted that though the power of the court under the proviso appended to Rule 1 Order 8 is circumscribed by the words "shall not be later than ninety days" but the consequences flowing from non-extension of time are not specifically provided for though they may be read in by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and he had been served with the charge memo but had not given the reply. In the criminal case, of course final charge-sheet had not been submitted. In such factual settings, the learned Single Judge did not find any manifest illegality in the order of suspension. 11. Coming to the cases before us, the order of extension of suspension of the petitioner as at (A) dated 19.07.2019 which was assailed in the Original Application before the Tribunal reveals that the same has been passed upon acceptance of the recommendation of the Suspension Review Committee by the with the Disciplinary Authority. The facts persuading, the Committee to recommend the extension of suspension which have been accepted by the Disciplinary Authority are:- (a) the investigation of DRI with regard to alleged impart of overvalued diamonds vide 14 bills of entry of M/s. Antique Exim Pvt. Limited and M/s. Tanman Jewells Pvt. Limited is complete and SCN are being issued; and (b) the Competent Authority had given approval under section 17(a) of the Prevention of Corruption Act against the petitioner of (A). That period having been expired in the meantime, the last order of extension has come on 15.01.2020. On t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Tribunal at Cuttack which is pending; iv. that the officer has represented vide letters dated v. that CBI has recommended for continuation of suspension of the officer; and vi. that the investigation has conducted by CBI and it has recommended prosecution & RDA against the Officer and that has been referred to CVC for advice. The above projected reasons / grounds in support of the continued suspension of the opposite parties on a plain reading are not seen to be so relevant or of significance in the totality of the facts and circumstances as discussed. The opposite parties have been shifted from their place of posting, where the allegations were leveled. In the absence of any specific material, the likelihood on their part to influence the investigation and tamper with the evidence in the criminal trial is hardly inferable. There are no such indications that even in their present place of posting, the working atmosphere in case of their joining the work in the office is likely to be polluted when the fact remains that the petitioners are at liberty to post them in any such non-sensitive post as deemed proper. After that incident, no further allegation of their miscon ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
