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TMI Blog2013 (11) TMI 1767X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the said cases. During the relevant time, the Respondent was on deputation to Enforcement Directorate and was working as Deputy Director (Enforcement). B. The CBI registered RC No. S18/E0001/99 dated 29.1.1999 against the Respondent in respect of certain illegal transactions whereby the Directorate had seized a fax message (debit advice) from the premises of one Subhash Chandra Bharjatya purported to have been sent from Swiss Bank Corporation, Zurich, Switzerland, which reflected a debit of US$ 1,50,000 from the account of Royalle Foundation, Zurich, Switzerland in favour of one S.K. Kapoor, holder of account number 002-9-608080, Hong Kong Shanghai Banking Corporation (HSBC), Head office at Hong Kong, as per the advice of the customer, i.e. Royalle Foundation. Subhash Bharjatya filed a complaint dated 4.1.1998 alleging the said fax message to be a forgery and had been planted in his premises during the course of search in order to frame him and further that he and his employee were illegally detained on the night of 1.1.1998 and were threatened and manhandled. It was in the investigation of this case that CBI took a prima facie view that Respondent was part of a criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal vide judgment and order dated 24.2.2010. Aggrieved, Appellants filed special leave petition before this Court with a delay of more than two years, without approaching the High Court. The judgment of this Court dated 5.9.2013 passed in C.A. Nos. 7761-7717 of 2013, Union of India and Ors. v. B.V. Gopinath etc. etc., affirmed the view taken by the Tribunal that chargesheet is required to be approved by the disciplinary authority. The petition filed by the Appellants against the Respondent has not yet been decided. Review Petition filed by the Appellants against the judgment and order dated 5.9.2013 is also reported to be pending. I. The Appellants had been reviewing the suspension order from time to time and thus, the Respondent filed OA No. 2842 of 2010 before the Tribunal for quashing of the suspension order and the same was disposed of by the Tribunal vide order dated 16.12.2011 directing the Appellants to convene a meeting of the Special Review Committee (SRC) within a stipulated period to consider revocation or continuation of suspension of the Respondent after taking into consideration various factors mentioned in the said order. J. Pursuant to the said order of the &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led orders. The Tribunal has placed reliance on the notings in the files while deciding the case, which is not permissible in law as the said notings cannot be termed as decision of the government. The scope of judicial review is limited in case of suspension for the reason that passing of suspension order is of an administrative nature and suspension is not a punishment. Its purpose is to only forbid the delinquent to work in the office and it is in the exclusive domain of the employer to revoke the suspension order. The Tribunal or the court cannot function as an appellate authority over the decision taken by the disciplinary authority in these regards. In view of the provisions contained in CVC Regulations which came into force in 2004, the case of suspension of the Respondent has been reviewed from time to time and the disciplinary authority thought it proper to continue the suspension order. The Tribunal and the High Court failed to appreciate that the directions given by the Tribunal in its order dated 16.12.2011, inter-alia, to consider the reply to the letter rogatory received from the competent authority in Switzerland and the report of the Law Department in case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of making second representation on a similar issue is not allowed as it may also involve the issue of limitation etc. (Vide: Rabindra Nath Bose and Ors. v. Union of India and Ors. AIR 1970 SC 470; Employees' State Insurance Corpn. v. All India Employees' Union and Ors. (2006) 4 SCC 257; A.P.S.R.T.C. and Ors. v. G. Srinivas Reddy and Ors. AIR 2006 SC 1465; Karnataka Power Corporation Ltd. and Anr. v. K. Thangappan and Anr. AIR 2006 SC 1581; Eastern Coalfields Ltd. v. Dugal Kumar AIR 2008 SC 3000; and Uma Shankar Awasthi v. State of U.P. and Anr. (2013) 2 SCC 435). 7. During suspension, relationship of master and servant continues between the employer and the employee. However, the employee is forbidden to perform his official duties. Thus, suspension order does not put an end to the service. Suspension means the action of debarring for the time being from a function or privilege or temporary' deprivation of working in the office. In certain cases, suspension may cause stigma even after exoneration in the departmental proceedings or acquittal by the Criminal Court, but it cannot be treated as a punishment even by any stretch of imagination in strict legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oral turpitude, grave misconduct or indiscipline or refusal to carry out the orders of superior authority are there, or there is a strong prima facie case against him, if proved, would ordinarily result in reduction in rank, removal or dismissal from service. The authority should also take into account all the available material as to whether in a given case, it is advisable to allow the delinquent to continue to perform his duties in the office or his retention in office is likely to hamper or frustrate the inquiry. 10. In view of the above, the law on the issue can be summarised to the effect that suspension order can be passed by the competent authority considering the gravity of the alleged misconduct i.e. serious act of omission or commission and the nature of evidence available. It cannot be actuated by mala fide, arbitrariness, or for ulterior purpose. Effect on public interest due to the employee's continuation in office is also a relevant and determining factor. The facts of each case have to be taken into consideration as no formula of universal application can be laid down in this regard. However, suspension order should be passed only where there is a strong prim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. The scope of interference by the Court with the order of suspension has been examined by the Court in a large number of cases, particularly in State of M.P. v. Sardul Singh (1970) 1 SCC 108; P.V. Srinivasa Sastry v. Comptroller Auditor General of India (1993) 1 SCC 419; Director General, ESI and Anr. v. T. Abdul Razak AIR 1996 SC 2292; Kusheshwar Dubey v. Bharat Cooking Coal Ltd. and Ors. AIR 1988 SC 2118; Delhi Cloth General Mills v. Kushan Bhan AIR 1960 SC 806; U.P. Rajya krishi Utpadan Mandi Parishad and Ors. v. Sanjeev Rajan (1993) Supp. (3) SCC 483; State of Rajasthan v. B.K. Meena and Ors. (1996) 6 SCC 417; Secretary to Govt., Prohibition and Excise Department v. L. Srinivasan (1996) 3 SCC 157; and Allahabad Bank and Anr. v. Deepak Kumar Bhola (1997) 4 SCC 1, wherein it has been observed that even if a criminal trial or enquiry takes a long time, it is ordinarily not open to the court to interfere in case of suspension as it is in the exclusive domain of the competent authority who can always review its order of suspension being an inherent power conferred upon them by the provisions of Article 21 of the General Clauses Act, 1897 and while exercising such a power, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducted by the CBI in a case under the Act 1988. The Vigilance Manual issued by CVC on 12th January, 2005 specifically deals with suspension of a public servant. Clause 5.13 thereof provides that Commission can lay down the guidelines for suspension of a government servant. However, if the CBI has recommended suspension of a public servant and the competent authority does not propose to accept the said recommendation, the matter may be referred to the CVC for its advice. The CBI may be consulted if the administrative authority proposes to revoke the suspension order. Clause 6.1 read with Clause 6.3.2 thereof provide that suspension is an executive order only to prevent the delinquent employee to perform his duties during the period of suspension. However, as the suspension order constitutes a great hardship to the person concerned as it leads to reduction in emoluments, adversely affects his prospects of promotion and also carried a stigma, an order of suspension should not be made in a perfunctory or in a routine and casual manner but with due care and caution after taking all factors into account. Clause 6.3.3 further provides that before passing the order of suspension the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ognizance of the earlier noting or decision for exercise of the power of judicial review. Similarly, while dealing with the issue, this Court in Sethi Auto Service Station v. DDA AIR 2009 SC 904 held: 14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person concerned. 17. In Jasbir Singh Chhabra v. State of Punjab (2010) 4 SCC 192, this Court held: 35...... However, the final decision is required to be taken by the designated authority keeping in view the larger public interest. The notings recorded in the files cannot be made basis for recording a finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were challenged by the Respondent before the Tribunal by filing OA No. 495 of 2012 and in view of the fact that the directions given earlier on 16.12.2011 had not been complied with, in letter and spirit, the Tribunal allowed the OA by a detailed judgment running into 72 pages. Though the Tribunal took note of the fact that the charges against the Respondent were grave, it held that continuance of the Respondent's suspension was not tenable. Hence, the said orders were quashed and set aside with the direction to the Appellants to revoke his suspension and to reinstate him in service with all consequential benefits. However, liberty was given to the Appellants that if at any point of time and in future, the criminal trial proceedings commenced, the Appellants could consider the possibility of keeping the officer under suspension at that point of time if the facts and circumstances so warranted. 22. The order dated 16.12.2011 was not challenged by the Appellants and thus, attained finality. Therefore, the question does arise as to whether it was permissible for the Appellants to pass any fresh order of suspension till the commencement of the trial before the criminal court? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expiry of the period provided under Rule 10(6) of the Rules 1965. Subsequent review or extension thereof is not permissible for the reason that earlier order had become invalid after expiry of the original period of 90 days or extended period of 180 days. 27. In State of U.P. v. Neeraj Chaubey (2010) 10 SCC 320 and State of Orissa and Anr. v. Mamata Mohanty (2011) 3 SCC 436, this Court held that in case an order is bad in its inception, it cannot be sanctified at a subsequent stage. In Mamta Mohanty, it was held: 37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat no one should be made to face the same kind of litigation twice ever because such a procedure should be contrary to consideration of fair play and justice. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. 31. In view of above, we are of the considered opinion that it was not permissible for the Appellants to consider the renewal of the suspension order or to pass a fresh order without challenging the order of the Tribunal dated 1.6.2012 and such an attitude tantamounts to contempt of court and arbitrariness as it is not permissible for the executive to scrutinize the order of the court. 32. In Dr. Amarjit Singh Ahluwalia v. The State of Punjab and Ors. AIR 1975 SC 984, this Court placing reliance upon the judgment in Vitaralli v. Seaton 359 US 536, considered the scope of Articles 14 and 16 observing that the scope of those Articles is wide and pervasive as those Articles embodied the principle of rationality and they are intende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has granted interim order dated 8.10.2012 staying the operation of the judgment and order dated 1.6.2012 but that would not absolve the Appellants from passing an illegal, unwarranted and uncalled for order of renewal of suspension on 31.7.2012 and if that order was void, we are very much doubtful about the sanctity/validity of the orders passed on 21.1.2013 and 17.7.2013. It further creates doubt whether the Appellants, who had acted such unreasonably or illegally, are entitled for any relief before this Court. The Tribunal and the High Court were right that the Appellants had not followed the directions of the Tribunal issued on 16.12.2011 and the mandate of Department's O.M. dated 7.1.2004. There is no gainsaid in saying that the terms of the said O.M. were required to be observed. 36. It is a settled legal proposition that jurisdiction under Article 136 of the Constitution is basically one of conscience. The jurisdiction is plenary and residuary. Therefore, even if the matter has been admitted, there is no requirement of law that court must decide it on each and every issue. The court can revoke the leave as such jurisdiction is required to be exercised only in suitabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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