2022 (5) TMI 1581 - Tri - Indian Laws

Seeking extension of suspension order - Smuggling - fraudulent export of Duty drawback - export of Red Sanders - HELD THAT - The Department in agreement with CVC advise dated 28.12.2021 is in advance stage for sanction of prosecution under Prevention of Corruption Act and initiation of departmental proceedings against the applicant in fraudulent export of Duty drawback and export of Red Sanders cases. Further, departmental proceedings are contemplated in consultation with the CVC in case of systematic smuggling of restricted/prohibited goods through Cargo Shed of NSCBI, Airport, Kolkata booked by SIIB, Air Cargo Complex, Kolkata, Air Cargo Complex, NSCBI Airport, Kolkata during 2017 in consultation with CVC vide O.M. dated 01/05.10.2020. Considering the involvement of the applicant in smuggling activity, penalty of Rs. 10,00,000 under Section 112 (a) and 112 (b) and also Rs. 10,00,000 under Section 114AA of Customs Act, 1962 was imposed on the applicant. Sanction of Competent Authority for prosecuting the applicant under Customs Act, 1962 has been conveyed by Commissioner (Inv-Cus) to Commissioner of Customs(Prev.), Kolkata vide letter dated 07.01.2021. It is evident that the applicant is involved in various cases, including CBI and Vigilance. On completion of investigations, major penalty charge sheets are contemplated, not in one but in many cases. It brings us to the moot point that has been raised in this O.A., which is non-issuance of a charge sheet and continued suspension. Basically whether suspension of the applicant can be continued beyond 90 days, if no charge sheet has been issued. This subject matter has been dealt with by the Hon'ble Apex Court and also by the Hon'ble High Court in different cases. The Hon'ble Apex Court in Ajay Kumar Choudhary vs. Union of India through its Secretary Anr. 2015 (6) TMI 592 - SUPREME COURT has been primarily relied upon where it was held 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 suspensio n 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Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us. The judgments clearly hold that suspension can be continued depending upon gravity of offences. In the present case, the applicant is under investigation in various cases by the CBI and Vigilance organisation. His prosecution and also major penalty action is contemplated against him. The charges for which he is under investigation are of very serious nature and, therefore, his continued suspension does not call for any interference by this Tribunal. In view of completion of various investigations and recommendations of major penalty action, already available with the respondents, the respondents should endeavour to take further necessary action for issuance of charge sheet, if so decided, and consider all these aspects during the next Suspension Review Committee meeting - Application dismissed.

Summary

Issues Involved:
1. Legality of the continued suspension of the applicant without issuance of a charge sheet.
2. Entitlement of the applicant to reinstatement and full pay and allowances.
3. Judicial precedents and their applicability to the case.

Issue-wise Detailed Analysis:

1. Legality of the continued suspension of the applicant without issuance of a charge sheet:

The applicant, an Indian Revenue Service Officer, was placed under suspension on 10.11.2017 due to contemplated major penalty departmental proceedings. His suspension was extended multiple times, which he challenged as illegal and arbitrary. The applicant argued that his continued suspension without a charge sheet violated Articles 14 and 21 of the Constitution of India. He cited several judgments, including Ajay Kumar Choudhary vs. Union of India and Anr., 2015 (7) SCC 291, which suggested that suspension should not extend beyond three months without issuing a charge sheet.

The respondents countered that the applicant was involved in serious charges, including smuggling and fraud, as revealed by investigations conducted by the CBI. They argued that his suspension was extended in accordance with the guidelines and was necessary due to the gravity of the allegations. The respondents cited judgments, including the Hon'ble High Court's decision in Govt. of NCT of Delhi vs. Dr. Rishi Anand, which held that suspension could be extended beyond three months if justified by the circumstances.

The Tribunal noted that the applicant's suspension was reviewed and extended by the competent authority as per the rules. The Tribunal referenced previous judgments, including the Hon'ble High Court of Judicature at Madras, which held that suspension could continue depending on the gravity of the charges and the rules applicable. The Tribunal concluded that the applicant's continued suspension was justified due to the serious nature of the allegations and ongoing investigations.

2. Entitlement of the applicant to reinstatement and full pay and allowances:

The applicant sought reinstatement and full pay and allowances from 31.01.2019, arguing that his suspension was arbitrary and illegal. He requested the Tribunal to quash the suspension orders and direct the respondents to pay the difference between his salary and subsistence allowance with 12% interest per month.

The respondents maintained that the applicant's suspension was necessary due to his involvement in serious charges. They highlighted that the applicant was arrested and later released on bail, and that the CBI had recommended major penalty action against him. The respondents argued that the applicant's suspension was in the interest of the department and was being reviewed periodically.

The Tribunal, referencing previous judgments, held that the applicant's suspension was justified due to the serious nature of the charges. The Tribunal did not find merit in the applicant's request for reinstatement and full pay and allowances, given the ongoing investigations and recommendations for major penalty action.

3. Judicial precedents and their applicability to the case:

The applicant relied on several judgments to support his case, including Ajay Kumar Choudhary vs. Union of India and Anr., which suggested that suspension should not extend beyond three months without issuing a charge sheet. The respondents cited judgments, including Govt. of NCT of Delhi vs. Dr. Rishi Anand, which held that suspension could be extended beyond three months if justified by the circumstances.

The Tribunal referenced multiple judgments, including the Hon'ble High Court of Judicature at Madras, which held that suspension could continue depending on the gravity of the charges and the rules applicable. The Tribunal noted that the applicant's suspension was reviewed and extended by the competent authority as per the rules, and that the serious nature of the allegations justified the continued suspension.

Conclusion:

The Tribunal dismissed the applicant's O.A., finding no merit in his arguments. The Tribunal held that the applicant's continued suspension was justified due to the serious nature of the charges and ongoing investigations. The Tribunal directed the respondents to take further necessary action for issuing a charge sheet and to consider all aspects during the next Suspension Review Committee meeting. There was no order as to costs.