2023 (9) TMI 467 - HC - Customs

Disciplinary proceedings against the Revenue office (Deputy Commissioner) - Case of involvement in fraudulent duty drawback case - Charge sheet is yet to be filed - Continued and prolonged suspension of petitioner for more than five and a half years is arbitrary - violative of Articles 14 and 21 of the Constitution of India - HELD THAT - It is well settled that even though 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. Reverting back to the facts of the present case, it may be noticed that petitioner faces serious and grave charge for aiding in smuggling 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 petitioner - Petition dismissed.

Summary

Issues Involved:
1. Legality of the continued suspension of the petitioner.
2. Compliance with procedural requirements for extending suspension.
3. Impact of prolonged suspension on the petitioner's rights under Articles 14 and 21 of the Constitution of India.

Summary:

Issue 1: Legality of the continued suspension of the petitioner

The petitioner, an Indian Revenue Service officer, was placed under suspension in 2017 due to major penalty proceedings. The petitioner challenged the continued suspension in O.A. No. 1543/2021, seeking various reliefs including the declaration of the suspension as illegal and reinstatement in service. The Tribunal dismissed the O.A. on May 20, 2022, noting that the investigations were complete and major penalty action was recommended. The Tribunal directed the respondents to take necessary action for issuing the charge sheet and consider these aspects in the next Suspension Review Committee meeting.

Issue 2: Compliance with procedural requirements for extending suspension

The petitioner argued that the suspension violated rules and judgments on the issue, particularly since the charge memo had not been issued despite the Tribunal's directions and relevant DoPT OMs. The petitioner cited various judgments to support the contention that prolonged suspension without disciplinary proceedings is arbitrary. The respondents countered that the suspension was justified due to the petitioner's involvement in serious allegations of smuggling and fraud, and that the Suspension Review Committee had duly considered the reasons for extending the suspension.

Issue 3: Impact of prolonged suspension on the petitioner's rights under Articles 14 and 21

The Court acknowledged that while suspension is not a punishment per se, it can become punitive if the departmental inquiry is not concluded within a reasonable time. However, the Court also noted that suspension is necessary to prevent the employee from perpetrating alleged misconduct or interfering with the investigation. The Court referred to the Supreme Court's observations in State of Orissa v. Bimal Kumar Mohanty and Ajay Kumar Choudhary v. Union of India & Anr., emphasizing that suspension must be justified on a case-by-case basis, considering the gravity of the allegations and public interest.

Conclusion:

The Court found that the petitioner faced serious charges and that the continuation of the investigation justified the delay in issuing the charge sheet. The Court concluded that no grounds were made out for interference with the Tribunal's order and dismissed the writ petition, stating that the revocation of suspension and reinstatement could not be directed merely because the charge sheet was delayed. The writ petition was dismissed with no orders as to costs.