9911796707
TMI Blog2022 (5) TMI 1581X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondents and peruse the same; (b) hold and declare the extension of suspension vide letter dated 31.01.2019, 29.07.2019, 30.01.2020, 24.07.2020, 19.01.2021 15.07.2021 [Annexure A-1 Impugned Colly)] and any subsequent order based on such impugned orders continuing the suspension of the applicant as illegal, arbitrary and discriminatory and consequently quash/revoke/set aside the same; (c) hold and declare that the continued and prolonged suspension of the applicant is arbitrary, illegal and void ab-initio; (d) in consequence of the prayer above in para (b to c) above, hold and declare that the applicant is entitled for reinstatement in service with immediate effect and further that he is deemed to have been reinstated in service w.e.f. 31.01.2019 which was passed by the Respondents after the judgment and order dated 14.12.2018, illegally; (e) Hold and declare that the applicant herein is entitled for full pay and allowances at least from 31.01.2019 and accordingly appropriate direction to the respondent to pay the difference between the salary and subsistence allowance paid with interest thereon @ 12% per month till payment; (f) Award cost of this application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements of the applicant in smuggling activities and activities against the departmental interest. He was made co-noticee in the supplementary Show Cause Notice dated 18.05.2017. Various other allegations including those under PC Act etc. were also highlighted showing involvement of the applicant. Keeping in view these serious charges against the applicant, he was placed under suspension vide order dated 10.11.2017 pending major penalty departmental proceedings contemplated against him. The suspension was further extended from time to time by the Suspension Review Committee in view of the ongoing investigations by the CBI. Subsequently, a proposal for launching prosecution against the applicant was also forwarded by the Chief Commissioner vide letter dated 06.11.2018 to CBIC, New Delhi, in connection with a case of smuggling of gold through NSCBI Airport, Kolkata. It is submitted that at the time the counter reply has been filed, charge memorandum is under submission to the Disciplinary Authority. Further, the applicant was arrested on 02.11.2020 and was remanded to judicial custody till 18.11.2020. He was released on bail on 29.12.2020. The CBI has completed its investigation in RC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and public life, and even new statutory agencies, like CVC, have been brought into existence in compliance of the directions of the Supreme Court. Radical changes were brought as regards the functioning of CBI is to ensure that no laxity is exhibited in the context of dealing with the cases where allegations of corruption or misconduct of serious nature exist. The applicant is facing serious allegations. Whatever be the reasons for default in issuing charge sheet, that should not become an advantage for the applicant to get reinstated into service. 27. We, therefore, dismiss the OA. However, we direct that the respondents shall make endeavour to file the charge memo within a period of three months from the date of receipt of copy of this order and when the Suspension Review Committee meets next, it shall specifically address the question as to whether it is desirable at all to continue the suspension, and whether the interests of the State and of the applicant would be served in case he is transferred to any other place by reinstating him. There shall be no order as to costs. 10. The applicant was not satisfied with these orders. His suspension was, in the meanwhile, cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int 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. 12. The applicant has relied upon many judgments in support of his arguments. 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. (supra) has been primarily relied upon. The Hon'ble High Court of Delhi in WPC No. 8134/2017 and CM No. 33423/2017 has considered the same. It is held by the Hon'ble High Court of Delhi as under: 18. 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 authority to pass orders under Rule 10(6) of the CCS (CCA) Rules extending the suspension has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he suspension is not extended after review within the initial period of 90 days (in a case to which sub-rule (2) does not apply), that the suspension of the government servant would lapse automatically. In all other cases, the suspension would continue unless and until it is modified or revoked by the competent authority though it would not imply that there is no requirement to conduct periodic renewal of the suspension. This is so provided in sub-rule (5)(a) of Rule 10, which reads as follows: 10 (5)(a) Subject to the provisions contained in sub-rule (7), an order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so. (Emphasis supplied) 23. Thus, there is no force in the submission of the respondent that the suspension of the respondent automatically lapsed since the charge sheet was not issued within the initial period of 90 days. Pertinently, the respondents suspension was reviewed and extended by the government within the initial period of 90 days on 27.09.2016. Thus, the suspension of the respondent did not lapse under sub rule (7) of Rule 10 CCS (CCA) Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Courts subordinate to the one which authored the precedent, have to religiously follow it, till any legislation is made to the contrary, in accordance with law. If the issue is covered by a provision of law, the precedent would retain its strength, if the provision is taken into account and is interpreted. The judgment then becomes a guiding tool for the interpretation or understanding the provision of law. 24. It is not uncommon, though rare that, the attention of a Court is not drawn to the provision of law, and observations are made which do not accord with such provision. Situations of this nature are explained as under:- A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute, i.e., delegated legislation. This rule was laid down for the House of Lords by Lord Halsbury in the leading case (infra, 28), and for the Court of Appeal it was given as the leading example of a decision per incuriam which would not be binding on the court (x). The rule apparently applies even though the court knew of the statute in question, if it did not refer to, and had not present to its mind, the precise terms of the statute (y). Simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensure transparency in Government services and public life, and even new statutory agencies, like CVC, have been brought into existence in compliance of the directions of the Supreme Court. Radical changes were brought as regards the functioning of CBI is to ensure that no laxity is exhibited in the context of dealing with the cases where allegations of corruption or misconduct of serious nature exist. The applicant is facing serious allegations. Whatever be the reasons for default in issuing charge sheet, that should not become an advantage for the applicant to get reinstated into service. 14. Hon'ble High Court of Judicature at Madras in a very recent judgment delivered on 15.03.2022 has also considered most of the previous judgments relied upon by the applicant, including Ajay Kumar Choudhary (supra), and held as under: 33. Referring to the aforesaid judgment of the Apex Court, a Division Bench of this court in The Superintending Engineer, TANGEDCO and another v. Mohan Kumar, [Judgment dated 20.1.2022 passed in W.A. (MD) No. 1827 of 2021] held as under: 20. In the case of Bimal Kumar Mohanty (supra), the Apex Court held that suspension is not a punishment, but o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of charges/charge-sheet is served without reasoned order of extension. (ii) The judgment in R. Balaji, supra, has no reference to the earlier judgments of co-equal strength and is thereby rendered per incuriam. (iii) The issue of challenge to the order of suspension should be analyzed on the facts of each case, considering the gravity of the charges and the rules applicable. (iv) Revocation of suspension with a direction to the employer to post the delinquent in a non-sensitive post cannot be endorsed or directed as a matter of course. It has to be based on the facts of each case and after noticing the reason for the delay in serving the memorandum of charges/charge-sheet . The above mentioned 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. 15. The above mentioned judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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