TMI Blog2023 (9) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and committing drawback frauds and other anti-departmental activities, for which sanction also stands granted for prosecution in respect of four out of five cases. Penalty also stands imposed in the proceedings under Section 112(a) 112(b) and under Section 114AA of the Customs Act, 1962. Further, proceedings also stand initiated against the petitioner under Prevention of Corruption Act, apart from departmental proceedings. The continuation of investigation by various agencies after the earlier round of litigation, appears to be the sole reason for non-issuing of charge-sheet to the petitioner and also resulted in continued suspension. Considering the serious nature of charges, which have remained under investigation by various agencies against the petitioner and public interest, the contention raised by learned counsel for the petitioner cannot be accepted, that since the petitioner has not been responsible for delay in conduct of investigation or other proceedings, he deserves to be reinstated. The revocation of suspension and reinstatement of the petitioner, in the peculiar circumstances cannot be directed merely because the charge-sheet could not be issued to the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 and order dated 14.12.2018, illegally; (e) Hold and declare that the applicant herein is entitled for full pay and allowances at least from 31.01.2019 and accordingly appropriate direction to the respondent to pay the difference between the salary and subsistence allowance paid with interest thereon @ 12% per month till payment; (f) Award cost of this application and proceedings against the Respondents and in favour of the Applicant; (g) May also pass further order(s) as deemed just and proper to meet the ends of justice. 5. The same has been dismissed by the Tribunal vide order dated May 20, 2022 with the following observations: 15. The above mentioned judgments squarely cover the applicant's case of continued suspension. However, in view of completion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UOI v. B. Anil Kumar, 2017 SCC OnLine Ker 31390, State of Tamil Nadu v. Promod Kumar, IPS, AIR 2018 SC 4060, Sandipta Gangopadhyay v. Allahabad Bank, 2015 SCC OnLine CAL 3894, Gulshan Choudhary v. Punjab Sind Bank, 2017 SCC OnLine J K 284, Govt. of NCT of Delhi v. Vijay Kumar Jha, 2016 SCC OnLine Del 4167, Office Liquidator v. Dayanand Ors., 2008 (10) SCC 1, Sampad Narayan Mukharjee v. Union of India Ors., 2019 SCC OnLine Cal 150, C.E. Eranimose v. State, 1970 SLR 520, S. Vijaykumar v. Principal Secretary/Transport Commissioner, Chepauk, W.P. No. 10701/2016, Order/judgment dated March 22, 2016 of Hon'ble High Court of Madras, J. John De Britto v. The District Collector, Dindigul District, WP (MD) Nos. 3997/2016 and 3590/2016, Order/judgment dated November 17, 2016 of Hon'ble High Court of Madras and Union of India v. Ashifuzaman Anr., judgment dated July 30, 2020, W.P.(C) Nos. 12859/2020 12861/2020 of Hon'ble High Court of Orissa, Cuttack. 7. On the other hand, learned counsel for the respondents has reiterated the stand taken before the Tribunal. It is submitted that DRI, Kolkata Zonal Unit was investigating a case of suspected fraudulent exports to Bang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suspension is not specified under Rule 11 of Central Civil Services (Classification, Control Appeal) Rules, 1965, as a punishment, an order of suspension affects a government servant injuriously in case departmental inquiry is not concluded within a reasonable time. In that sense, the continued suspension in a pending departmental inquiry becomes punitive in nature and as such if any employee is kept under suspension for unreasonably long period, the same may be unjustified. However, at the same time, it may be noticed that the suspension is considered imperative in order to refrain an employee to perpetrate the alleged misconduct and to remove the impression that offending employee can get away even pending inquiry, without any impediment, and also in order to prevent the effort by delinquent employee to scuttle the inquiry or investigation or to win the witnesses. The circumstances may vary and have to be assessed on a case to case basis, factoring the nature of misconduct, gravity of allegations and the indelible impact it creates on the service pending inquiry or contemplated inquiry or investigation. The public interest remains one of the prime governing factors in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge. 10. Learned counsel for the petitioner has vehemently placed reliance on the judgment of the Apex Court in Ajay Kumar Choudhary v. Union of India Anr., 2015 (7) SCC 291 which dealt with the issue of prolonged suspension of an employee pending criminal proceedings. It was held therein 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. Further, if the Memorandum of Charges/Charge-sheet has been served, a reasoned order must be passed for extension of suspension. 11. Ajay Kumar Choudhary v. Union of India Anr. (supra) relied upon by learned counsel for the petitioner also came up for consideration in Rakesh Kumar Garg v. Union of India, W.P.(C) 7071/2019, decided on July 05, 2019 by the High Court of Delhi, wherein a challenge was made to continued suspension of the petitioner since July 16, 2018. The petitioner therein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nths if the charge memo/ charge-sheet is not issued during that period, has been prescribed. 18. 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. 19. 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 Kumar Choudhary though after nearly three years of his initial suspension, the Supreme Court held that the directions issued by it would not be relevant to his case. 20. From a reading o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Apex Court in the case of Ajay Kumar Choudhary (supra) does not evolve a general principle for causing interference with the order of suspension if charge-sheet is not served or charge memo is not filed within three months of the order of suspension. The finding of the Division Bench of this Court m the case of A. Srinivasan (supra) has even been ignored, though binding in nature. 21. In view of the above, we find reasons to cause interference with the judgment of the learned Single Judge as none of the judgments cited by learned counsel for the writ petitioner/non-appellant provide assistance on the issue, rather those judgments have been given referring to the judgment in the case of Ajay Kumar Choudhary (supra), without analyzing 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 Choudha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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