Tushar Ranjan Mohanty vs Union Of India

Dinesh Gupta, J

Through this OA the applicant has challenged the order dated 19.12.2012 (Annexure A-1) whereby in exercise of the powers conferred by sub-rule (1) of rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, he has been placed under suspension with effect from 26.12.2017 for a period of 90 days in contemplation of disciplinary proceedings against him.

The applicant had earlier filed OA No.4603/2017 before this Tribunal challenging the suspension order dated 19.12.2017. The aforesaid OA was dismissed by the Tribunal vide order dated 22.03.2018 inter alia on the ground that the applicant had approached the Tribunal even before expiry of 90 days of initial suspension. The applicant has challenged his suspension mainly on the ground that no charge-sheet has been issued to him within 90 days from the order of suspension as mandated by the Hon'ble Supreme Court in Ajay Kumar Choudhary v Union of India [(2015) 7 SCC 291], wherein the Hon'ble Supreme Court held that the currency of a suspension order should not be extended beyond three months if within this period the memorandum of charges/charge-sheet is not served upon the delinquent employee. It is also alleged that vide another order dated 19.12.2017 the applicant has been placed under the administrative control of his junior. It is submitted that even though the applicant was placed under suspension with effect from 26.12.2017, but the suspension order was dated 19.12.2017, and, therefore, the currency of the suspension order cannot be extended beyond 18.03.2018, as within this period of three months no memorandum of charges has been served upon the applicant, hence the applicant has to be treated as on duty with effect from 19.03.2018. It is further submitted that assuming that the crucial date was 26.12.2017, i.e., the date on which the suspension became effective, the charge memorandum should have been issued to the applicant within three months of the said date, which has not been done by the respondent, and accordingly this OA has been filed on 23.03.2018. The applicant has accordingly sought the following relief:

"8.1. to allow the present Application;

8.2. to quash and set aside the impugned Suspension Order dated 19.12.2017 (Annexure : A-1) and extensions, if any;

8.3. to consequently direct that the entire period of suspension of the Applicant should be treated as duty for all purposes;

8.4. to declare that the entire period of suspension of the Applicant is to be treated "Compulsory Wait" in the Department of Empowerment of Persons with Disabilities;

8.5. to direct the Respondent to post the Applicant in an appropriate place in terms of the Judgment/order dated 09.10.2015 of the Hon'ble Tribunal in OA No.4721 of 2014 (Tushar Ranjan Mohanty v. Union of India and others) and the order/judgment dated 25.07.2016 of the Hon'ble High Court of Delhi in W.P. (C) No.5859 of 2016 (Tushar Ranjan Mohanty v. Union of India and others);

8.6. to allow exemplary costs of the application; and

8.7. to issue any such and further order/directions this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case."

Referring to earlier litigation between the applicant and the respondent-department, it is submitted that in OA No.4721/2014 filed by the applicant the Tribunal vide order dated 09.10.2015 observed that because of the strained relationship between the parties, the posting of the applicant back to the same office, i.e., respondent-department, would be against the administrative propriety, and directed the respondents to consider giving the applicant some other posting preferably in another office located at Delhi. The respondent-department challenged this order of the Tribunal before the High Court of Delhi in WP(C) No.11628/2015. The said writ petition appears to be pending adjudication before the High Court. The applicant has also referred to another writ petition WP(C) No.5859/2016 filed by him before the High Court of Delhi against the respondent-department. The aforesaid writ petition was dismissed as not pressed vide order dated 25.07.2016, in view of the statement made on behalf of the respondent-department that they were willing to post the petitioner as DDG in the Department of Disability Affairs, New Delhi, but without prejudice to the prayer and stand taken by the Government in WP (C) No.11628/2015, and the acceptance of the applicant thereto. Consequently the applicant was posted to the Department of Empowerment of Persons with Disabilities in terms of the order dated 25.07.2016 passed by the High Court of Delhi. It is submitted that the posting of the applicant in the respondent Ministry at this stage would be against the judgments of the Tribunal and the High Court referred to above, and, therefore, the period of suspension should be treated as compulsory wait in the Department of Empowerment of Persons with Disabilities.

The applicant has placed on record a letter dated 23.03.2018 (Annexure A-3) addressed to him by one R. P. S. Rathore, Deputy Director/HO, Ministry of Statistics & Programme Implementation, National Sample Survey Office (Field Operations Division), New Delhi, whereby a copy of the order dated 22.03.2018 issued by the Ministry extending his suspension has been forwarded to him. Vide the order dated 22.03.2018 enclosed with the aforesaid letter, the suspension of the applicant has been extended for a further period of 45 days beyond 25.03.2018, i.e., up to 09.05.2018, with the stipulation that during the extended period of suspension, the subsistence allowance already sanctioned by the Ministry vide its order dated 19.12.2017 would continue at the same rate. The applicant has also brought on record a memorandum dated 13.04.2018 by way of additional documents, enclosing therewith the statement of articles of charge framed against him, along with the statement of imputation of misconduct or misbehaviour in support of the articles of charge framed, the list of documents, and the list of witnesses, directing him to submit within ten days of receipt of the memorandum a written statement of his defence and also to state as to whether he desires to be heard in person.

The respondent has filed its counter-affidavit contesting the claim of the applicant. It is stated that the OA is without any cause of action inasmuch as the impugned order has been issued after the approval of the competent authority in accordance with the relevant rules and instructions. It is further stated that the respondent-Ministry has issued the charge memorandum dated 13.04.2018 to the applicant. It is then stated that the applicant was transferred and posted as DDG, Department of Empowerment of persons with Disabilities (Divyangjan) (DEPwD), Ministry of Social Justice & Empowerment (SJ&E), vide order dated 03.08.2010. The Ministry of Social Justice vide letter dated 13.12.2017 informed the respondent-Ministry that the Hon'ble Minister, SJ&E had expressed his strong displeasure over the fact that the applicant had been giving directions and making correspondences going beyond his jurisdiction. It is stated that the applicant as DDG, DEPwD had been looking after the affairs of Rehabilitation Council of India (RCI), amongst various subjects allocated to him. The applicant had put up a proposal to the then Secretary (DEPwD) for going ahead with the selection process of the post of Chairperson, RCI through search-cum-selection committee. However, the nodal department, i.e., DOP&T issued an office memorandum dated 04.08.2017 whereby it was required that the post of Chairperson, RCI should be filled under Central Staffing Scheme (CSS). The Hon'ble Minister directed to first seek clarification from the DOP&T, and the Secretary of the Department accordingly indicated not to go ahead with the selection process. It is alleged that in spite of above mentioned observations of the Hon'ble Minister, SJ&E and Secretary (DEPwD), the applicant went ahead with the selection process through the search-cum-selection committee by fixing the date, time etc. for selection of the Chairperson, RCI, without waiting for the clarification from DOP&T and in violation of the directions of the Secretary and the Hon'ble Minister. It is further stated that the Hon'ble Minister, SJ&E while expressing his displeasure over the action of the applicant observed that his conduct was not befitting the stature of his post and is clearly in violation of directions given by the Minister as well as the Secretary of the Department. The Hon'ble Minister further recorded that keeping in view the gravity of the misconduct committed by the applicant he may be bereft of all the charges that he was holding in the Department and further necessary action for his suspension as well as disciplinary action may be initiated. The Hon'ble Minister desired that the applicant may be repatriated to his parent cadre with immediate effect and appropriate action be taken against him. It is stated that the answering respondent being the cadre controlling authority of the applicant, had been requested to take necessary action in the matter. The applicant was repatriated to his parent cadre vide order dated 14.12.2017 of the Ministry of SJ&E with immediate effect, with a direction to join his parent cadre after availing the sanctioned leave till 22.12.2017.

It is further stated that the recommendation of the Ministry of SJ&E was considered by the respondent-Ministry (cadre controlling authority) and with the approval of the Minister (S&PI) the applicant was placed under suspension vide order dated 19.12.2017 with effect from 26.12.2017 for a period of 90 days, duly keeping in view the fact that the applicant was on sanctioned leave up to 22.12.2017 and was likely to resume his duties on 26.12.2017. Reference is also made to the order dated 22.3.2018 passed by the Tribunal dismissing OA No.4603/2017 filed by the applicant challenging the order of suspension, and the litigation before the High Court of Delhi.

It is submitted that the suspension of the applicant has been reviewed by the competent authority and as per the prescribed procedure, his suspension has been extended for a further period of 45 days beyond 25.03.2018, i.e., up to 09.05.2018, vide order dated 22.03.2018. It is also stated that a charge-sheet has been issued to the applicant on 13.04.2018 for submitting his representation.

As regards the allegation of the applicant that he has been placed under the administrative control of his junior, it is stated that the contention of the applicant that he is the senior-most officer in the ISS is false and misleading. It is stated that the applicant is holding the post of DDG, which is a level 14 post in the existing hierarchy, and his services have been attached to the office of DG (Survey), NSSO, New Delhi, which is a level 16 post, hence it cannot be said as of now that the present incumbent of the post of DG (Survey) is junior to the applicant. This matter was also considered by the Tribunal in OA No.4603/2017 filed by the applicant, and the Tribunal observed as under:

"13. ...The contention of the applicant that the present incumbent of the post of DG (Survey), Shri Debi Prasad Mondal, is junior to him in final seniority list dated 23.08.2016 of SAG level officers as on 01.04.2015 is specious and deserves to be discarded. The applicant might have been senior to Shri Mondal at that point of time but then with the passage of time Shri Mondal has secured his promotions whereas applicant has got embroiled in disciplinary proceedings which have not allowed him to move upward in the hierarchy."

As regards the challenge of the applicant to the order of suspension on the ground that no charge-sheet has been issued within the mandated three months of the order of suspension, it is submitted that the same is misconceived and misleading on the following grounds:

"(i) Though suspension in itself is not a punishment, as it constitutes a great hardship for a Government servant, relief is available to him by way of appeal. Rule 23(i) of CCS (CCA) Rules, 1965 provides for a Government servant preferring an appeal against an order of suspension made or deemed to have been made under Rule 10 CCS (CCA) Rules, 1965.

(ii) It is implied that a Government servant placed under suspension should generally know the reasons leading to his suspension so that he may be able to appeal against it, if he so desires. Normally, the order placing him under suspension would itself contain a mention about disciplinary proceedings against him pending or a case against him in respect of criminal offence under investigation, inquiry or trial. Where, however, suspension is on the ground of "contemplated" disciplinary proceedings, the reasons for suspension should e communicated to the Government servant immediately on the expiry of the time-limit prescribed for the issue of a charge-sheet, viz., three months from the date of suspension, so that he may be in a position to effectively exercise the right of appeal available to him. The time-limit of forty-five days from submission of appeal in such cases will count from the date on which the reasons for suspension are communicated."

It is stated that based upon the extant rules, it can be inferred that the rules do not provide revoking of suspension on the ground of contemplated disciplinary proceedings, solely on the fact that the charge-sheet could not be issued within three months from the date of suspension.

Insofar as the contention of the applicant that the suspension order being dated 19.12.2017 the same cannot extend beyond 18.03.2018, it is stated that in view of the fact that in the suspension order dated 19.12.2017 it was clearly mentioned that the applicant has been placed under suspension with effect from 26.12.2017 for a period of 90 days, the period of 90 days needs to be counted w.e.f. 26.12.2017 and not from 19.12.2017, as claimed by the applicant. It is reiterated that the rules do not provide revoking suspension on the ground of contemplated disciplinary proceedings, solely on the ground that the charge-sheet could not be issued within three months from the date of suspension. The rules, however, provide that where the suspension is on the ground of contemplated disciplinary proceedings, the reasons for suspension should be communicated to the Government servant immediately on the expiry of the time-limit prescribed for the issue of a charge-sheet, so that he may be in a position to effectively exercise the right of appeal available to him. It is submitted that the facts related to the contemplated disciplinary proceedings and suspension have been conveyed to the applicant vide order dated 22.03.2018 whereby his period of suspension has been extended for a further period of 45 days beyond 25.03.2018.

As regards the contention of the applicant regarding his posting in the respondent-Ministry at this stage being contrary to the directions of the Tribunal and the High Court, the respondents have relied upon the following observations of the Tribunal in its order dated 22.03.2018 passed in OA No.4603/2018:

"13. The Tribunal's order dated 09.10.2015 in OA NO.4721/2014 and Hon'ble High Court's order dated 25.07.2016 in W.P. (C) No.5859/2016 cited by the applicant have not been violated by the respondents. The Tribunal's order dated 09.10.2015 only had given a suggestion to post the applicant preferably in another office. The respondent had posted the applicant in the Ministry of SJ&E in compliance of the ibid order of the Tribunal. However, the Ministry of SJ&E decided to repatriate the applicant vide order dated 14.12.2017 to the respondent for his alleged misdemeanour. Under the circumstances, the respondent-Ministry has no option except to provide him a posting within its setup in case it decides to revoke his order of suspension. During the period of suspension, the applicant has to be attached to some office of the respondent for the official purposes and also for the purpose of paying him the subsistence allowance. In that process, the respondent decided to attach him to the office of DG (Survey)....."

It is further stated that the treatment of the period of suspension would be decided after finalization of the disciplinary proceedings which have been initiated with the issuance of the memorandum of charges dated 13.04.2018, and that there is no provision in the rules to decide about treatment of the period of suspension before finalization of the disciplinary proceedings.

As noticed above, suspension of the applicant was ordered under sub-rule (1) of rule 10 of the CCS (CCA) Rules, 1965. Rule 10(1) permits the authority to place a government servant under suspension inter alia where the disciplinary proceedings against a government servant are contemplated or are pending. Rule 10 of the aforesaid Rules came to be interpreted by the Apex Court in Ajay Kumar Choudhary v Union of India & others [(2015) 7 SCC 291].

Considering the analogy of Section 167 Cr.PC, the Hon'ble Supreme Court made following observations/directions:

"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 observations contained of the Division Bench in Raghubir Singh v. State of Bihar [(1986) 4 SCC 481 : 1986 SCC (Cri) 511] and more so of the Constitution Bench in Antulay [(1992) 1 SCC 225 : 1992 SCC (Cri) 93] , we are spurred to extrapolate the quintessence of the proviso to Section 167(2) CrPC, 1973 to moderate suspension orders in cases of departmental/disciplinary enquiries also. It seems to us that if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a memorandum of charges/charge-sheet has not been served on the suspended person. It is true that the proviso to Section 167(2) CrPC postulates personal freedom, but respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same pedestal.

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/charge-sheet 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 of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the 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 limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us."

This judgment of the Apex Court has been implemented by the Government of India and an office memorandum F.No.11012/04/2016-Estt.(A) dated 23.08.2016 has been issued by the DOP&T advising all Ministries/Departments/Offices to ensure that the dictum of the judgment is adhered to.

It is argued on behalf of the respondents that the only requirement of continuation of suspension is that a reasoned order must be passed. The argument of the respondents is fallacious in nature. Para 21 of the judgment of the Apex Court contains a clear and unambiguous direction that the currency of the suspension order should not be extended beyond three months, if within this period the memorandum of charge/charge-sheet is not served on the delinquent official/employee. It further says if the memorandum of charge/charge-sheet is served, a reasoned order must be passed for extension of suspension. Learned counsel appearing for the respondent has tried to impress upon the Court that the only requirement is a reasoned order for extension of the suspension. We are unable to accept this argument. The reasoned order for extension would validate the extension of suspension in the event a memorandum of charge/charge-sheet is served within the stipulated time. In absence of issuance of the charge memorandum/charge-sheet the extension of suspension is impermissible in law. It is also not the case of the respondent that the charge-sheet has been issued to the applicant within three months of the initial suspension. The charge-sheet has been issued to him only on 13.04.2018, i.e., well beyond the period of expiry of the initial suspension, which admittedly expired on 25.03.2018.

Learned counsel for the respondents also placed reliance upon a judgment of the High Court of Delhi in WP(C) No.8134/2017- Government of NCT of Delhi v Dr. Rishi Anand, decided on 13.09.2017 [2017 SCC OnLine Del 10506], and tried to convince the Tribunal that even if the respondents have failed to issue charge-sheet within 90 days of the initial suspension, the court will not automatically quash the suspension order in the light of Ajay Kumar Choudhary (supra). The counsel further placed reliance upon some observations of the High Court in this regard. We are unable to accept this contention of the respondents also. We have gone through the judgment passed by the High Court and we find that this judgment is not at all applicable, as it is on different set of facts and circumstances. Even if the High Court has referred to the judgment of Ajay Kumar Choudhary (supra) in their judgment, it will not dilute the findings of the Apex Court in the aforesaid judgment, which clearly stipulates that in case no memorandum of charges/charge-sheet is issued within 90 days, the order of suspension will have to go.

We are, therefore, of the considered opinion that the continued suspension of the applicant in the given circumstances is not sustainable in law. The OA is accordingly allowed with the following directions:

(1) Suspension of the applicant beyond initial 90 days is hereby set aside and quashed.

(2) As a consequence of quashment of the suspension, the applicant shall be reinstated within one month from the date of receipt of this order.

(3) The applicant shall be entitled to salary minus the subsistence allowance already received by him for the interregnum period, i.e., from the date when his initial suspension ended after 90 days and till the date he is reinstated in service.

(4) Initial period of suspension up to 90 days shall be decided in accordance with Fundamental Rule 54-B.

(5) This order will not, however, come in the way of the respondents in proceeding with the memorandum of charges in accordance with law.