Sailendra Mamidi vs Union Of India & Ors

Sunil Thomas, Member J

The applicant was appointed as the Principal Commissioner of Income Tax. He was posted at Trivandrum by order dated 15.6.2015. While so, he was arrested on 14.10.2015 on an allegation that he had received a bribe of Rs. 10,00,000/- from a businessman. Accordingly, a crime was registered by the CBI as RC No. 17A of 2015 dated 14.10.2015, for offences punishable under Section 120B of IPC and Sections 7 and 12 of the Prevention of Corruption Act, 1988. It was alleged by the prosecution that after bribe was received by the applicant from the businessman he was intercepted with cash. By Annexure A1 dated 16.11.2015, he was suspended with effect from 15.10.2015, invoking Rule 10(2)(a) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965. Thereafter, by Annexure A2 order of the Department of Revenue, Ministry of Finance, dated 11.1.2016, on the recommendation of the review committee, the competent authority reviewed the suspension of the applicant and considering the facts of the case and the serious nature of allegation, the competent authority decided to continue the suspension of the applicant for 180 days or until further orders, whichever was earlier. Subsequently, by Annexure A3 order dated 6.7.2016 of the Department of Revenue, his suspension was again extended for a further period of 180 days or until further orders, whichever was earlier, on the recommendation of the review committee and the review conducted by the competent authority.

According to the applicant he was allowed subsistence allowance by Annexure A5 order dated 16.11.2015 under FR 53(2). The grievance of the applicant is that Annexures A1, A2 and A3 are bad and illegal on the premise that it was in violation of the decision of the Supreme Court in Ajay Kumar Choudhary v. Union of India [(2015) 7 SCC 291]. It was claimed by the applicant that Annexure A2 order was passed without considering the fact that no charge sheet/charge memorandum was issued in the meanwhile. Thereafter, by Annexure A3, suspension was again extended without following the principle laid down in Ajay Kumar Choudhary’s case (supra). Hence the OA is filed seeking the following reliefs:

“i. to call for the records leading to Annexure A1, A2 and A3 and quash the same;

ii. to declare that the suspension of the applicant has lapsed with effect from 14.12.2015, and to direct the respondents to treat the applicant to be on duty from that date with all consequential benefits including arrears of salary with interest @ 12% per annum.”

Assailing Annexures A1, A2 and A3, Ms. Megna Mariyam M., the learned counsel representing the applicant contended that Annexures A2 and A3 orders were passed directly in contravention of the decision laid down by the Supreme Court in Ajay Kumar Choudhary’s case (supra). It was contended that, even when Annexure A2 was passed, the authority did not take into consideration the fact that memorandum of charges/charge sheet was not issued. By Annexure A6 circular of the Director General of Income Tax, Vigilance, dated 5.6.2015, all the officers of the Income Tax Department were reminded of the principles laid down by the Supreme court in Ajay Kumar Choudhary’s case (supra) and the relevant portion of the judgment was extracted therein. It was pointed out by the learned counsel that it was laid down by the Supreme Court that the period of the suspension shall not extend beyond three months, if within this period the memorandum of charges/charge sheet was not served on the delinquent employee. If the memorandum of charges/charge sheet was served, a reasoned order must be passed for the extension of suspension. It was pointed out that though Annexures A2 and A3 disclosed that the case of extension of suspension was considered by a review committee and the competent authority on the basis of the recommendations had extended it beyond the first three months, it was without noticing the fact that memorandum of charges/charge sheet was not served on the employee. This was specifically brought to the notice of the respondents by Annexure A7 representation dated 18.1.2016. However, neither the proceeding was brought to an end, nor his representation replied. Hence, he was constrained to move this Tribunal with the present application.

Opposing the application, the learned Senior Panel Counsel Shri N. Anilkumar vehemently contended that the applicant was involved in a very serious case and having due regard to the grave nature of allegation raised against the applicant, the authorities considered it fit and proper to extend the period of suspension. It was pointed out that the accused was caught red handed with Rs. 10,00,000/- received by him as bribe and he was detained in prison pursuant to his arrest. It was also pointed out that on receipt of Annexure A7 representation, it was duly put up before the review committee which considered it. However, having regard to the nature of allegation and that he had entered into a criminal conspiracy to cheat the Government by extending undue benefits to a firm and receiving illegal gratification to finalize the income tax assessment in its favour and that the CBI had registered a case levelling serious charges, his suspension was not extended. It was also contended that thereafter, by another speaking order, on the basis of the recommendation of the review committee the competent authority decided to extend the period of suspension by Annexure A3. Hence, it cannot be contended that the extension of suspension was without due application of mind and that the suspension was liable to be revoked. It was also pointed out that during the period of suspension the applicant was paid the subsistence allowance due to him as per the relevant rules.

In the course of hearing it was pointed out that the suspension of the applicant was revoked on 26.10.2016 and he was reinstated in service pursuant to an interim order passed by this Tribunal on 30.8.2016 taking note of the decision in Ajay Kumar Choudhary’s case (supra).

Though the learned Senior Panel Counsel for the Central Government vehemently contended that on merits the respondents were justified in extending the period of suspension beyond initial period of three months by Annexure A2 and thereafter by Annexure A3, it remains a fact that during the relevant period memorandum of charges/charge sheet was not served on the delinquent officer/employee. Having regard to this fact, by the interim order mentioned above, this Tribunal had directed the respondents to revoke the suspension order. Accordingly, the suspension was also revoked. It is clear that the extension by virtue of Annexures A2 and A3 were without noticing the decision laid down in Ajay Kumar Choudhary’s case (supra) which was reiterated in Annexure A6 order. Hence, it is only to be held that the extension of suspension period beyond the initial three months’ period evidenced by Annexures A2 and A3 is bad and hence, liable to be set aside. Since the suspension was ultimately revoked by order dated 26.10.2016, the resultant consequence will be that the applicant will be deemed to be in service till revocation of his suspension on 26.10.2016. By Annexure A1 order the applicant was placed under suspension w.e.f. 15.10.2015. Evidently, the first three months’ period expiring on 14.12.2015 appears to be justified and does not fall within the vice as laid down in Ajay Kumar Choudhary’s case (supra) as well as by Annexure A6. However, the suspension thereafter, from 14.12.2015, till revocation of suspension on 26.10.2016 is liable to be set aside and it should be deemed that he was in service during that period. He will also be entitled for all benefits payable to him as if he was in service during the above period and the amount due, less the subsistence allowance legally paid/payable to him by virtue of FR 53(1) read with FR 53(2), shall be paid to him.

In the result the OA is allowed holding that the suspension of the applicant has elapsed with effect from 14.12.2015 and it shall be deemed that he was on duty from 14.12.2015 till 26.10.2016. He shall be paid all consequential benefits including arrears of salary, after deducting the subsistence allowance actually paid/payable by virtue of the Rules. The claim for interest stands declined in the peculiar facts and circumstances of the case.

OA is allowed to the above extent. No costs.