TMI Blog2018 (10) TMI 2008X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 makes this expressly clear by stating, specifically, that 'the Competent Authority would be the authority which places the employee under suspension/under deemed suspension or any other higher authority'. The suspension of the petitioner Kulamani Biswal cannot be allowed to continue any further. It is a matter of record that, till date, no charge-sheet has been filed, against the petitioner in the criminal court, and no disciplinary proceedings have been initiated, against him, either - no review of the suspension of the petitioner, has taken place, on six monthly basis, as mandated by Rule 20(3) of the CDA Rules of the NTPC. No order, communicating the decision of any such review, passed by Hon'ble President of India or by order and in the name of the Hon'ble President of India, stands communicated to the petitioner till date. The suspension of the petitioner from service, as effected by the order dated 14th December, 2017, cannot be allowed to continue any further - Petition allowed. - C. Hari Shankar, J. For the Appellant : Krishnan Venugopal, Sr. Adv., Anish Gupta and Gaurav Wadhwa, Advs. For the Respondent : Arun Bhardwaj, Adv. JUDGM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal offence is under Investigation by CBI. Now, therefore, the undersigned, in exercise of the powers conferred by Sub-Rule (1) (c) of Rule 20 NTPC (Conduct, Discipline and Appeal) Rule, 1977 hereby places the said Shri Kulamani Biswal, Director (Finance) NTPC Limited under suspension with immediate effect. It is further ordered that during the period that this order shall remain in force, the headquarters of Shri Kulamani Biswal should be New Delhi and the said Shri Kulamani Biswal shall not leave the headquarters without obtaining the previous permission of the competent authority. (By order and in the name of the President) (Dilip Kumar) Under Secretary to the Government of India 6. Rule 20(1) of the CDA Rules is reproduced as under: Rule 20 Suspension (1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the management by general or special order may place an employee under suspension: (a) Where a disciplinary proceeding against him is contemplated or is pending; or (b) Where, in the opinion of the Authority aforesaid, he has engaged himself in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expiry of ninety 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. The CCS (CCA) Rules, it was submitted, were applicable mutatis mutandis to the NTPC, as the CDA Rules had expressly been framed on the basis of the extant government guidelines. The petitioner also relied on the judgment of the Supreme Court in Ajay Kumar Choudhary v. UOI, (2015) 7 SCC 291 , which held that suspension could not continue for a period of more than three months, if, within that period, no charge-sheet was served on the officer or employee concerned. It was also pointed out that, on the basis of the judgment of the Supreme Court in Ajay Kumar Choudhary (supra) , Office Memorandum (OM) dated 23rd August, 2016 had been issued by the Department of Personnel an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her noted that sub-rules (3) and (6) of the CDA Rules, read in conjunction, empowered the competent authority to review suspension of employees every six months, as per extant guidelines of the Government and also ordained that the reasons for revoking or continuing with the suspension were required to be recorded in writing. The said period of six months, it was noted, had yet to elapse. For these reasons, as already noted hereinabove, the representations of the petitioner were rejected. 11. The petitioner addressed another representation, to the Secretary, Ministry of Power, on 28th May, 2018, again seeking revocation of the order suspending him from service. The said representation highlighted the fact that nothing incriminating had been found, against the petitioner, by the CBI. It was pointed out that the CDA Rules of the NTPC, themselves provided that the suspension of an employee of the NTPC would be reviewed by the competent authority, 'as per the extant government guidelines' and that reasons for revoking or continuing with suspension would be recorded in writing. The petitioner also expressed his discomfiture at the fact that though, following on the judgment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord any observation with respect to, the merits of the said allegations. 15. The contentions of Mr. Venugopal, learned Senior Counsel appearing for the petitioner, are the following: (i) Para 6 of the order dated 18th May, 2018 (supra), passed by Respondent No. 1, read thus: 6. As per NTPC CDA Rules 20(6) An order of suspension made or deemed to have been made under this Rule, may at any time be revoked by the authority, which made or is deemed to have made the order or by any authority to which that authority is subordinate. As per NTPC CDA Rules 20(3) The suspension of employees placed under suspension in terms of sub-Rule 1 2 shall be reviewed by the Competent Authority every six months as per the extant Govt. guidelines and the reasons for revoking or continuing with the suspensions shall be recorded in writing. In the instant case six months time has not yet been completed from the date when the petitioner has been placed under suspension. Further, CBI has also informed that the case is under investigation. (ii) A reading of this para makes it apparent that Respondent No. 1 was not treating the said order, dated 18th May, 2018 as a review of the order of sus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-review, of the order of suspension, would necessarily result, on the expiry of six months from the passing of the said order, in extinguishing of the said order in its entirety. (viii) Mr. Venugopal next relied on the judgment of the Supreme Court in Ajay Kumar Choudhary (supra) , specifically drawing attention to para 11 thereof. Drawing sustenance therefrom, Mr. Venugopal submits, that by now, nine months have elapsed since the issuance of the order of suspension of the petitioner on 14th December, 2017, without any charge-sheet being issued to him departmentally and without any charge-sheet being filed by the CBI in the criminal court. Applying Ajay Kumar Choudhary (supra) , Mr. Venugopal would submit that the suspension order of the petitioner, consequently, deserved to be brought to an end. He points out the irony of the situation in which his client is placed, by submitting that, had criminal investigations been ongoing, his client would have got bail in 90 days as no charge-sheet had been filed therein. On the other hand, with nothing having been found against his client, he submits that his client is required to continue to languish under suspension. Mr. Venug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from that celebrated decision: (SCC pp. 638-39, paras 86-87) 86. The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can be averted. In this context, it may be noted that the constitutional guarantee of speedy trial is properly reflected in Section 309 of the Code of Criminal Procedure. 87. This Court in Hussainara Khatoon (I) v. State of Bihar [ (1980) 1 SCC 81: 1980 SCC (Cri.) 23 ] while dealing with Article 21 of the Constitution of India has observed thus: (SCC p. 89, para 5) '5. ... No procedure which does not ensure a reasonably quick trial can be regarded as reasonable, fair or just and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, under the CDA Rules of the NTPC, the period of suspension prescribed was not three months, but six months. He seeks to distinguish the judgment of the Supreme Court in Ajay Kumar Choudhary (supra) , by pointing out that the said decision was rendered in the context of the CCS (CCA) Rules, whereunder the initial maximum permissible period of suspension was stipulated as three months, followed by periodical six monthly reviews. As against this, he would point out that the initial non-reviewable period of suspension, under the CDA Rules of the NTPC was six months, followed by periodical six monthly reviews. This distinction between the initial non-reviewable suspension period, as prescribed under the CCS (CCA) Rules, vis-a-vis the CDA Rules of the NTPC, in the submission of Mr. Bhardwaj, makes all the difference. Mr. Bhardwaj submits that the suspension of the petitioner was, in fact, extended vide noting dated 7th June, 2018. 17. Mr. Bhardwaj places reliance on Rule 20(3) of the CDA Rules of the NTPC. He reiterates the observations and reasoning contained in para 6 of the impugned order dated 18th May, 2018, which already stands reproduced hereinabove. Reverting again t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 'competent authority', to decide on whether to review the suspension of the petitioner, or not, was only Hon'ble President of India and no one else. 21. Mr. Venugopal, therefore reiterates his submission that there has, in fact, been no renewal of the suspension of his client, till date, and that, therefore, there could be no question of continuing the said suspension any further. 22. Without prejudice to the above, Mr. Venugopal draws my attention to the well known decision of the Constitution Bench of the Supreme Court in Bachhittar Singh v. State of Punjab, AIR 1963 SC 395 , which clearly held that an order which is not communicated to the person concerned, cannot be treated as valid or enforceable in law. Paras 9 and 10 of the said decision are pressed into service by Mr. Venugopal, in this regard. 23. Insofar as the judgment in Dr. Rishi Anand (supra) is concerned, Mr. Venugopal would reiterate that the said judgment would need to be read in juxtaposition with, and in terms of, para 22 of the decision in Ajay Kumar Choudhary (supra) . Inasmuch as detailed reference to these decisions would be made hereinafter, the said paragraphs are not being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inary proceeding is commenced against him during the continuance of that suspension, the Authority competent to place him under suspension may, for reasons to be recorded by it in writing, direct that the Employees shall continue to be under suspension until the termination of all or any of such proceedings. (d) Headquarter of the suspended employee shall be the station of posting immediately before the order of suspension if issued. (e) The Competent Authority may change the headquarters of any employee during suspension, if it is in public/administrative interest. f) When an employee under suspension requests for a change of headquarters, the Competent Authority may consider the request and upon being satisfied that such a course will not put the Company to any extra expenditure like grant of travelling allowances etc. or other complications like creating difficulty in investigation or departmental proceedings etc. may take appropriate decision. (g) Leave shall not be granted to any employee under suspension. (h) If an employee is arrested by the police on a criminal charge and bail is not granted, no subsistence allowance is payable. On grant of bail if the Compet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the above extracted Clause 1.15.1 of the terms and conditions of appointment of the petitioner makes it clear that the appointing authority of the petitioner would be the Hon'ble President of India. 25.5 Mr. Venugopal correctly points out that the impugned order, dated 18th May, 2018, also acknowledges, in para 4 thereof (which has already been reproduced hereinabove) that the Disciplinary Authority of the petitioner was the Hon'ble President of India. 25.6 Needless to say, there is no authority to whom the Hon'ble President of India is subordinate. 25.7 The inevitable sequitur of this factual position, read in conjunction with Rule 20(1) of the CDA Rules of the NTPC, is, therefore, that the only authority, competent to place the petitioner under suspension would be the Hon'ble President of India. In other words, the 'competent authority', for the purposes of Rule 20 of the CDA Rules of the NTPC would necessarily be the Hon'ble President of India and none other. Sub-rule (3) of Rule 20 makes this expressly clear by stating, specifically, that 'the Competent Authority would be the authority which places the employee under suspension/under d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court in Bachhittar Singh (supra) : 9. The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones. 10. The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. The Constitution, therefore, requires and so did the Rules of Business framed by the Rajpramukh of PEPSU provide, that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25.14 The response of Mr. Bhardwaj, to this submission, is that Rule 20(3) of the CDA Rules of the NTPC expressly states that, if the competent authority decided to continue further with the suspension, separate orders were not required to be issued. That, however, appears, to me, to be a somewhat inaccurate reading of Rule 20(3). What the said sub-rule says, in my view, is that, if after reviewing the suspension of the concerned employee, the competent authority decided to continue further with the suspension, separate orders were not required to be issued . The sub-rule clearly states that separate orders would not be required to be issued after such reviews . To me, it appears that this stipulation exempts the competent authority from issuing a separate order continuing the suspension, once the decision to continue the suspension is taken. That, in my opinion, cannot imply that the employee concerned would be kept in the dark as to the decision of the concerned authority. Such an interpretation would also lead to manifestly absurd results, as, if it were to be accepted, an employee would remain continuously unaware of the decision of the reviewing authority, on whether his s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 28th December, 2011, for a period of 180 days, which prompted Choudhary to approach the Central Administrative Tribunal (hereinafter referred to as 'the Tribunal'). During pendency of the proceedings before the Tribunal, the suspension of Choudhary was extended a second, a third and a fourth time, on each occasion for 180 days, with effect from 26th June, 2012, 2nd December, 2012 and 22nd March, 2013. 26.2 By its judgment dated 22nd May, 2013, the Tribunal opined that no employee could be indefinitely suspended, and therefore, directed, that, if no charge memo was issued to Choudhary on or before 21st June, 2013, he would be entitled to reinstatement in service. 26.3 The Union of India assailed the said judgment, of the Tribunal, before this Court, contending that the Tribunal had no power to direct that the suspension of Choudhary would not be extended if no charge memo was served to him on the expiry of 90 days from 19th March, 2013 (when the then extant suspension order expired). This Court formulated the question arising before it, for its consideration, in the following terms: 'Whether the impugned directions circumscribing the government's power to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that is, to determine his innocence or iniquity. Much too often this has now become an accompaniment to retirement. Indubitably, the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the accused. But we must remember that both these factors are legal ground norms, are inextricable tenets of Common Law Jurisprudence, antedating even the Magna Carta of 1215, which assures that-- We will sell to no man, we will not deny or defer to any man either justice or right. In similar vein the Sixth Amendment to the Constitution of the United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. 26.8 This Court likened continuation of suspension with continuation of incarceration and held that, just as it was not permissible to indefinitely incarcerate a person in custody, it was, equally, not permissible to indefinitely continue an officer under suspension. Paras 20 and 21 of the judgment, which may be said to contend its raison d'etre , or its ratio decidendi , may be reproduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We think this will adequately safeguard the universally 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. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us. 26.9 To my estimation, the law laid down in para 21 of Ajay Kumar Choudhary (supra) cannot be said to be limited by the CCS (CCA) Rules, or the fact that the controversy, in that case, arose within the ambit of the said Rules. While it is true that the ratio of a judgment has to be appreciated in the context of the facts obtaining before the court, and the controversy that arose before it for determination, it is equally true that this Court cannot read down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he OA of Rishi Anand, vide its judgment dated 29th May, 2017, relying, for the purpose, on the judgment in Ajay Kumar Choudhary (supra) . Aggrieved thereby, the Government of NCT of Delhi petitioned this Court. 27.4 The reasoning of this Court, as contained in its judgment, requires to be carefully understood. In para 14 of the judgment, this Court noted that, despite the fact that Choudhary had remained under suspension from 30th September, 2011, the Supreme Court did not set it aside as, in the meantime, he had been served with a charge sheet sometime after 9th September, 2014. The sequitur to this observation, could possibly be that, had no such charge-sheet been served on Choudhary, the Supreme Court may have set aside his suspension . Interestingly, in the present case, no charge-sheet, till date, has been served on the petitioner. Paras 14 to 23 of Rishi Anand (supra) are reproduced thus: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears that before the Supreme Court rendered its decision on 16.02.2016, the charge sheet had been served on the appellant-though from a reading of the decision it is not clear as to on what date the same was so served. This development was taken note of by the Supreme Court in its decision. In para 22 of the decision, the Supreme Court observed: 22. So far as the facts of the present case are concerned, the appellant has now been served with a charge-sheet, and, therefore, these directions may not be relevant to him any longer . However, if the appellant is so advised he may challenge his continued suspension in any manner known to law, and this action of the respondents will be 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s authority to continue/extend the suspension of the government servant-before, or after the service of the charge sheet-if there is sufficient justification for it. The Supreme Court has, while observing that the suspension should not be extended beyond three months-if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer, has stopped short of observing that if the charge memo/charge-sheet is not issued within three months of suspension, the suspension of the government servant shall automatically lapse, without any further order being passed by the Government. No such consequence-of the automatic lapsing of suspension at the expiry of three months 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court clearly endorsed the fundamental principle that a government servant, who was suspended in contemplation of disciplinary proceedings, or criminal proceedings, could not be kept under suspension indefinitely or unnecessarily. It was for this reason, it was noted, that review of the ongoing suspension is required to be undertaken by the government at regular intervals under Rule 10(6) of the CCS (CCA) Rules..... . Clearly, therefore, this Court has recognised, even in Dr. Rishi Anand (supra) , the necessity of timely review of the suspension of the government servant concerned, as ordained by Rule 10(6) of the CCS (CCA) Rules. Thereafter, in para 20 of its judgment-on which Mr. Bhardwaj seeks to capitalise-this Court, while recognising the possibility of cases where the conduct of the government servant would be such as rendered it undesirable to recall the suspension and put him in position once again, even after sanitising the environment , so that he may not interfere in the proposed inquiry, only recognised the preservation, even by Ajay Kumar Choudhary (supra) , of the right of the Government to continue/extend the suspension of the government servant concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. 29.2 The judgment of this Court records at the very outset, that two basic questions were posed, to the counsel appearing for the GNCTD, the first being as to whether any departmental inquiry had been initiated against Jha, and the second as to whether any charge-sheet had been filed against Jha in the criminal court, both of which were answered in the negative. Significantly, both these questions, in the present case, too, are liable to be answered in the negative. 29.3 Thereafter, the Division Bench of this Court extracted the paragraphs, from Ajay Kumar Choudhary (supra) which already stand extracted hereinabove, and observed, in the concluding two paragraphs of its judgment thus: 8. While, there can be no quarrel to the proposition that merely because a period of suspension is long, that by itself cannot be a ground to withdraw the order of suspension. We are of the view that the decisions of the Supreme Court in Allahabad Bank (supra) and in Rajiv Kumar (supra) sought to be relied upon by the learned counsel for the petitioner are not applicable to the facts of the present case. 9. In our view, the Tribunal has correctly relied on a decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that 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. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us. 29.4 There can be no gainsaying the fact that, this Court, in Vijay Kumar Jha completely relied on Ajay Kumar Choudhary (supra) . 30. State of Tamil Nadu v. Pramod Kumar 30.1 The necessity of negotiating Dr. Rishi Anand (supra) and Vijay Kumar Jha (supra) would, fortunately, stand obviated by this decision, rendered on 21st August, 2018, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Periodic reviews were conducted for his continuance under suspension. The recommendations of the Review Committees did not favour his reinstatement due to which he is still under suspension. Mr. P. Chidambaram, learned Senior Counsel appearing for the first Respondent fairly submitted that we can proceed on the basis that the criminal trial is pending. There cannot be any dispute regarding the power or jurisdiction of the State Government for continuing the first Respondent under suspension pending criminal trial. There is no doubt that the allegations made against the first Respondent are serious in nature. However, the point is whether the continued suspension of the first Respondent for a prolonged period is justified. 21. The first Respondent has been under suspension for more than six years. While releasing the first Respondent on bail, liberty was given to the investigating agency to approach the Court in case he indulged in tampering with the evidence. Admittedly, no complaint is made by the CBI in that regard. Even now the Appellant has no case that there is any specific instance of any attempt by the first Respondent to tamper with evidence. 22. In the minutes of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the absence of such review, is antithetical both to the mandate of the statute as well as to the general principles relating to suspension themselves. 32. Thus viewed, I am of the opinion that the suspension of the petitioner Kulamani Biswal cannot be allowed to continue any further. It is a matter of record that, till date, no charge-sheet has been filed, against the petitioner in the criminal court, and no disciplinary proceedings have been initiated, against him, either. As already observed by me in detail hereinabove, no review of the suspension of the petitioner, has taken place, on six monthly basis, as mandated by Rule 20(3) of the CDA Rules of the NTPC. No order, communicating the decision of any such review, passed by Hon'ble President of India or by order and in the name of the Hon'ble President of India, stands communicated to the petitioner till date. 33. The file noting, dated 7th June, 2018, on which the case propounded by Mr. Bhardwaj rests, is in my view, too weak to function as a crutch, using which the case of the respondent could stand upright. 34. Resultantly, I am of the view that the suspension of the petitioner from service, as effected b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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