9911796707
TMI Blog2020 (8) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... e no such indications that even in their present place of posting, the working atmosphere in case of their joining the work in the office is likely to be polluted when the fact remains that the petitioners are at liberty to post them in any such non-sensitive post as deemed proper. After that incident, no further allegation of their misconduct in any way has also been reported - other group B officers, who have also been arraigned in the criminal case arising out of the same incident wherein the opposite party as at (B) is an accused, are all on bail. The CBI has moved for cancellation of bail granted all accused persons. The investigation by CBI is complete in respect of both the set of accused. In case of those officers also, the Review Committee had submitted the recommendation. The case of the opposite party at B rather stands on a better footing than those two protection officers implicated in the case. In that view of the matter, the continuation of suspension of this opposite party as at (B) is apparently discriminatory and violative of Articles 14 and 16 of the Constitution because thereby equals have been treated unequally - there are no infirmity in the ultimate conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... els Private Limited at Bharat Diamond Bourse (BDB), Mumbai declaring to be of the value of ₹ 156.00 crores and that has been accepted by the panel of experts valuers. A team of officers from DRI thus intercepted those fourteen (14) consignments. Revaluation of the imported diamonds was made and accordingly, assessed to be of the value of ₹ 1.2 crores. It was thus found that rough diamonds of cheap quality; being procured at lesser price being grossly overvalued were being imported from Hong Kong in connivance with exporters in these countries. On arrival in BDB, Mumbai, the opposite party with the assistance of some members of the panel of valuers of diamond, had got the consignment verified and expressed their satisfaction as to the value of the same a just and proper. It was thus detected that the over-valuation in that case was to the tune of ₹ 150.00 crore. Basing upon the post consignment of some IEC holders, it was further ascertained that a sum of ₹ 2000.00 crores have been illegally laundered/transferred to overseas destination. Four persons were arrested in the case so far. Recovery of some of demand drafts and the cash have been made during subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988. In the said case, the opposite party and six others were arrested by the CBI on 30.04.2018. The petitioner was released on bail by the order passed by the learned CBI, Special Judge, GR Mumbai and remained in custody till 14.05.2018. In view of the above by order dated 11.05.2018, the opposite party was placed under suspension with effect from 30.04.2018, the date of his arrest and thereafter by order dated 21.08.2018, the opposite party as was transferred from Mumbai to Bhubaneswar in the State of Odisha. Said order of suspension dated 11.05.2018 has been extended from time to time on the recommendation of the Suspension Review Committee vide orders dated 23.07.2018 and 22.01.2019; each time for a period of 180 days. Again, on 22.07.2019, basing upon the recommendation of said Committee, the period of suspension was extended for further 180 days with effect from 24.07.2019. The opposite party had submitted two representations dated 22.07.2019 and 18.10.2019 to the Chief Vigilance Officer, Central Board of Indirect Taxes Customs, Department of Revenue, Ministry of Finance, Government of India with a prayer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuing charge-sheets to both the applicants. Besides the above, the recommendations made by the Review Committee for extension of the duration of suspension of the applicants appear to be based on no good and sufficient reasoning. As a matter of course, in the absence of any memorandum of charge being issued to the applicants, although these facts ought to have been considered by the Competent Authority while extending the period of suspension, the same have not been considered at all. Therefore, we are to conclude that even if Rule-10(6) of CCS (CCA) Rules, 1965 authorizes the Competent Authority to extend the duration of suspension beyond a period of 90 days, that extension by no stretch of imagination could be bereft of good and sufficient reasons. With the conclusion, as afore-stated, the following orders have been passed:- In view of this, following the ratio decided by the CAT, Principal Bench, cited supra, we make the following orders: (i) Orders of suspension in respect of the applicants in both the OAs beyond the initial period of 90 days are quashed and set aside; (ii) As a consequence of quashment of the orders of suspension, the applicants shall be rei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contemplation as also the enquiry to collect all the relevant materials is still in progress; the order of extension of the period of suspension of said opposite party is free from any legal infirmity; Charge-sheet in the meantime has already been filed in the criminal case after grant of sanction although no charge memo has been placed in initiating the departmental proceeding against the opposite party in the writ application as at (B). Keeping in view the serious nature of the offences said to have committed by the opposite party and its affect in general over the functioning of the administration of the department, the order of extension of the period of suspension of the service of said opposite party is not to be found fault with; and (v) the opposite parties when had only questioned the order of extension of suspension passed on 19.07.2020 and 22.07.2020; the Tribunal has committed grave error in quashing all the previous orders of extension of the period of suspension beyond the initial period of 90 days. 5. Mr. Prateek Tushar Mohanty, learned counsel for the opposite parties in refuting the above submissions of the learned counsel for the petitioners has placed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... practice of a protracted suspension of a Government employee, it has been said that suspension must necessarily be for a short duration. Even where allegations are serious in nature, always it must not be the need of continuance of the suspension till end of the criminal trial; (iii) that in both the cases, the reasons assigned for the purpose of continuance of period of suspension of the opposite parties are wholly unacceptable as would be evident from all those orders which find mention of the view taken by the Suspension Review Committee indicating the facts situation and the circumstances; (iv) that in so far as the opposite party of writ application (B) is concerned, merely for the reason that charge sheet has been filed in the criminal court, the period of extension of suspension ought not to be extended and there the consideration should revolve round the facts and circumstances, in order to arrive at the satisfaction that joining in the work by employee would not only seriously affect the administration but also influence the criminal trial, which are non-existent in the present case of the opposite party of writ application (B). Two other Group-B officers namely, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the opposite party at (A) has been extended for three times and that of the opposite party at (B) for four times which include the last order dated 15.01.2020 that has been made during pendency of the Original Applications before the Tribunal. Every time the recommendations of the Committee have not favoured for their reinstatement. In so far as the case of the opposite party as at (A), the departmental proceeding is still under contemplation and it is said that the matter is still under investigation to ascertain the involvement/role of said opposite party. In respect of the opposite party at (B), departmental proceeding is yet to commence and no charge memo has been placed against him. Its only that the investigation of the criminal case since has been completed, sanction for prosecution having been granted, now the charge-sheet has been filed in the competent court and thus the criminal trial is pending against him and others. The opposite party at (A) has been under suspension for a period of about one and half year and the other opposite party at (B) for a period of more than two years. Both have been transferred from the place of their posting as they were on the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is to determine his innocence or iniquity . xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx 20. It will be useful to recall that prior to 1973, an accused could be detained for continuous and consecutive periods of 15 days, albeit, after judicial scrutiny and supervision. The Code of Criminal Procedure, 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond a period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the investigation relates to any other offence. Drawing support from the ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uspension repelled the contentions to set aside the charge memo. So, the writ application was filed by the Officer; a member of Indian Police Service allotted to the State of Tamil Nadu. At the same time, the State had also questioned the order of revocation of suspension. The High Court upheld the order of the Tribunal revoking the suspension and further quashed the charge memo, declaring it to be nonest in law. In the State s appeal, the Apex Court although confirmed the order as to the quashing of the charge memo for nonobservance of mandatory requirement of All India Services (Disciplinary and Appeal) Rules, 1969, yet gave the liberty to the Disciplinary Authority to issue a charge memo afresh in accordance with the Rule. Next, taking the long period of suspension; the Officer enjoying liberty by virtue of the order of bail without violating the condition with any attempt to tamper with evidence have been taken into account. On the face of all the above factors and further keeping in view that the last order of extension of suspension had been passed on the basis of the minutes of the Review Committee that the Officer was capable of exerting pressure and influencing witnesses a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishes to continue with the suspension or not having regard to all the relevant factors, including the report of CBI, if any, it might have received by now. This exercise should be completed as early as possible and within two weeks from today . 15. The appellant then approached the Supreme Court to assail the said direction of the High Court. The Supreme Court observed in its decision that till arguments were heard on 09.09.2014, neither the charge sheet, nor the memorandum of charge had been served on the appellant. It was represented before the Supreme Court that the charge sheet was expected to be served on the appellant before 12.09.2014. The Supreme Court considered several decisions and, eventually, concluded in para 21 as follows:- 21. We, therefore, direct 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; if the memorandum of charges/chargesheet is served, a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the person concerned to any department in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mained under suspension right from 30.09.2011, the Supreme Court did not set aside the order of suspension since, in the meantime, Ajay Kumar Choudhary had been served with a charge sheet sometime after 09.09.2014, i.e. nearly three years after his suspension. 18. The O.M. dated 23.08.2016 and even the earlier O.M. dated 03.07.2015 issued by the DoPT (a copy whereof has been tendered in court by counsel for the respondent) evidently have misconstrued the said decision of the Supreme Court, since the facts of the said case and the eventual directions issued in para 22 of the said decision, appear to have escaped attention. 19. There can be no quarrel with the proposition that a government servant who is suspended in contemplation of a disciplinary proceedings or criminal proceedings under Rule 10 of the CCS (CCA) Rules, should not be kept under suspension indefinitely or unnecessarily. It is for this reason that a review of the on-going suspension is required to be undertaken by the government at regular intervals under Rule 10(6) of the CCS (CCA) Rules, which reads as under:- 10(6) An order of suspension made or deemed to have been made under this rule shall be revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequence prescribed flowing from non-extension of time. In para 29 of this decision, the Supreme Court observed as follows:- 29. It is also to be noted that though the power of the court under the proviso appended to Rule 1 Order 8 is circumscribed by the words shall not be later than ninety days but the consequences flowing from non-extension of time are not specifically provided for though they may be read in by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form. (emphasis supplied) 21. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry Authority. The facts persuading, the Committee to recommend the extension of suspension which have been accepted by the Disciplinary Authority are:- (a) the investigation of DRI with regard to alleged impart of overvalued diamonds vide 14 bills of entry of M/s. Antique Exim Pvt. Limited and M/s. Tanman Jewells Pvt. Limited is complete and SCN are being issued; and (b) the Competent Authority had given approval under section 17(a) of the Prevention of Corruption Act against the petitioner of (A). That period having been expired in the meantime, the last order of extension has come on 15.01.2020. On that occasion, the Suspension Review Committee had again recommended for continuance of suspension which has been accepted. The facts taken note of are:- i. that investigation by the DRI with regard to import of overvalued rough diamonds through PCCCC Mumbai vide 14 bills of entry of M/s. Antique Exim Private Limited and M/s. Tanman Jewels Private Limited, is complete and SCN date 10.07.2019 has been issued. Shri Ashiqzzaman, Deputy Commissioner, has been made co-noticee in the said SCN; ii. that the case has been referred to CBI after seeking approval from compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and circumstances as discussed. The opposite parties have been shifted from their place of posting, where the allegations were leveled. In the absence of any specific material, the likelihood on their part to influence the investigation and tamper with the evidence in the criminal trial is hardly inferable. There are no such indications that even in their present place of posting, the working atmosphere in case of their joining the work in the office is likely to be polluted when the fact remains that the petitioners are at liberty to post them in any such non-sensitive post as deemed proper. After that incident, no further allegation of their misconduct in any way has also been reported. The other group B officers, who have also been arraigned in the criminal case arising out of the same incident wherein the opposite party as at (B) is an accused, are all on bail. The CBI has moved for cancellation of bail granted all accused persons. The investigation by CBI is complete in respect of both the set of accused. In case of those officers also, the Review Committee had submitted the recommendation. However, in the case of Manish Kumar and Akshat Rathore, both Preventive Of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
