Kulamani Biswal v. Union of India and Anr.

14. Be it noted, here, that though the petitioner had, in his representations, also sought to contest the allegations, against him, on merits, Mr. Krishnan Venugopal, learned Senior Counsel appearing for the petitioner, expressly submitted, at the very outset, that he would not be addressing the merits of the allegations against the petitioner. As such, this judgment, too does not make any allusion to, or record any observation with respect to, the merits of the said allegations.

15. The contentions of Mr. Venugopal, learned Senior Counsel appearing for the petitioner, are the following:

(i) Para 6 of the order dated 18th May, 2018 (supra), passed by Respondent No.1, read thus: ―6. As per NTPC CDA Rules 20(6) "An order of suspension made or deemed to have been made under this Rule, may at any time be revoked by the authority, which made or is deemed to have made the order or by any authority to which that authority is subordinate. As per NTPC CDA Rules 20(3) "The suspension of employees placed under suspension in terms of sub- Rule l & 2 shall be reviewed by the Competent Authority every six months as per the extant Govt. guidelines and the reasons for revoking or continuing with the suspensions shall be recorded in writing. In the instant case six months time has not yet been completed from the date when the petitioner has been placed under suspension. Further, CBl has also informed that the case is under investigation.‖

(ii) A reading of this para makes it apparent that Respondent

No.1 was not treating the said order, dated 18th May, 2018 as a review of the order of suspension of the petitioner, within the meaning of Rule 20(3) and 20(6) of the CDA Rules.

(iii) Similarly, the order dated 15th June, 2018 (supra) too, was merely by way of a dismissal of the representation of the petitioner, and not by way of a review of the order dated 14th December, 2017, suspending the petitioner from service.

(iv) The resultant position was that, despite the expiry of much more than six months since the date of his being suspended from service, there has been no review, as contemplated by the CDA Rules, of the said order of suspension.

(v) Clause 1.15.[1] of the terms and conditions of appointment of the petitioner, as set out in his appointment order dated 31st October, 2016, read thus: “1.15.[1] The conduct, Discipline and Appeal Rules framed by NTPC in respect of their non-workmen category of staff would also mutatis mutandis apply to him with the modification that the Disciplinary Authority, in his case, would be the President of India.‖ As such, the authority competent to place the petitioner under suspension would be the Hon‘ble President of India. In view thereof, Rule 20(1) of the CDA Rules, which empowered the appointing authority, any authority to which it was subordinate, the disciplinary authority, or any authority empowered in that behalf by the management of general or special order, to place an employee under suspension, necessarily implied that the order of suspension, of the petitioner, could not have been issued by an authority lower than the Hon‘ble President of India.

(vi) Even if the order dated 15th June, 2018, were to be regarded as an order of review of the petitioner‘s suspension, it would still be barred by time, as six months, from the date of issuance of the suspension order of the petitioner, expired on 13th June, 2018.

(vii) In this context, Mr. Venugopal has relied on the judgment of the Supreme Court in Union of India v. Dipak Mali, (2010) 2 SCC 222 to support his submission that, on 13th June, 2018, the order of suspension of his client automatically ceased to exist. He submits that, though Rule 20(6) of the CDA Rules does not, in terms, state that, on the expiry of six months from the issuance of an order of suspension, the order would become invalid in the absence of any review thereof, the provisions of sub-rules (1) and (3) of Rule 20 of the CDA Rules being mandatory, non-review, of the order of suspension, would necessarily result, on the expiry of six months from the passing of the said order, in extinguishing of the said order in its entirety.

(viii) Mr. Venugopal next relied on the judgment of the

Supreme Court in Ajay Kumar Choudhary (supra), specifically drawing attention to para 11 thereof. Drawing sustenance therefrom, Mr. Venugopal submits, that by now, nine months have elapsed since the issuance of the order of suspension of the petitioner on 14th December, 2017, without any charge-sheet being issued to him departmentally and without any chargesheet being filed by the CBI in the criminal court. Applying Ajay Kumar Choudhary (supra), Mr. Venugopal would submit that the suspension order of the petitioner, consequently, deserved to be brought to an end. He points out the irony of the situation in which his client is placed, by submitting that, had criminal investigations been ongoing, his client would have got bail in 90 days as no charge-sheet had been filed therein. On the other hand, with nothing having been found against his client, he submits that his client is required to continue to languish under suspension. Mr. Venugopal submits that his client is willing to give an undertaking that if he is found tampering with the evidence, he would be liable to be suspended yet again.

(ix) Mr. Venugopal also draws my attention to the fact that, in a recent decision of the Supreme Court, delivered on 21st W.P.(C). 6859/2018 August, 2018 in State of Tamil Nadu v. Pramod Kumar, C.A. 8427-8428/2018, Ajay Kumar Choudhary (supra) has been relied upon and reiterated. Reliance is also placed, in this context, by Mr. Venugopal, on a judgment of the High Court of Calcutta in Sandipta Gangopadhyay v. Allahabad Bank,

(x) Mr. Venugopal has also referred to the judgment of a

Division Bench of this Court in GNCTD v. Dr. Rishi Anand, 2017 SCC Online Del 10506, which considered the judgment of the Supreme Court in Ajay Kumar Choudhary (supra) and rejected the submission of the officer, in the said case, founded on the said judgment, that non-issuance of the charge-sheet, within 90 days, resulted in automatic lapsing of his suspension. Mr. Venugopal would seek to draw attention to several observations, of the Division Bench of this Court in the said judgment, which would underscore the fact that this Court had not departed from Ajay Kumar Choudhary (supra)–which, needless to say, was not a course of action which was open to it, in law but held that, in view of the peculiar circumstances obtaining, which were different from those obtaining in Ajay Kumar Choudhary (supra), the law in Ajay Kumar Choudhary (supra) would not apply. My attention has been invited, in this context, to the fact that this Court, in para 14 of its judgment, opined that the reason, for the Supreme Court setting aside the suspension of Ajay Kumar Choudhary (supra), was that he had, in fact, been served with the charge-sheet albeit nearly three years after his suspension. Mr. Venugopal would submit that his client has not been served with any charge-sheet till date. Mr. Venugopal further relied on para 16 of the judgment which, in his submission, highlights the requirement of six monthly review of every order of suspension, and reads thus:

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 authority to pass orders under Rule 10(6) of the CCS (CCA) Rules extending the suspension has not been extinguished by the Supreme Court. The said power can be exercised if good reasons therefor are forthcoming.

22. The decision of the Supreme Court in Ajay Kumar Choudhary (supra) itself shows that there cannot be a hard and fast rule in this regard. If that were so, the Supreme Court would have quashed the suspension of Ajay Kumar Choudhary. However, in view of the fact that the charge memo had been issued to Ajay Kumar Choudhary - though after nearly three years of his initial suspension, the Supreme Court held that the directions issued by it would not be relevant to his case.

23. From a reading of the decision in Ajay Kumar Choudhary (supra) and Rule 10 of the CCS (CCA) Rules, it emerges that the government is obliged to record its reasons for extension of the suspension which, if assailed, would be open to judicial scrutiny - not as in an appeal, but on grounds available in law for judicial review of administrative action.‖ 27.[5] In para 16 of its judgment, this Court clearly endorsed the fundamental principle that a government servant, who was suspended in contemplation of disciplinary proceedings, or criminal proceedings, could not be kept under suspension indefinitely or unnecessarily. It was for this reason, it was noted, ―that review of the ongoing suspension is required to be undertaken by the government at regular intervals under Rule 10(6) of the CCS (CCA) Rules.....”. Clearly, therefore, this Court has recognised, even in Dr. Rishi Anand (supra), the necessity of timely review of the suspension of the government servant concerned, as ordained by Rule 10(6) of the CCS (CCA) Rules. Thereafter, in para 20 of its judgment – on which Mr. Bhardwaj seeks to capitalise – this Court, while recognising the possibility of cases where the conduct of the government servant would be such as rendered it undesirable to recall the suspension and put him in position once again, ―even after sanitising the environment‖, so that he may not interfere in the proposed inquiry, only recognised the preservation, even by Ajay Kumar Choudhary (supra), of the right of the Government to continue/extend the suspension of the government servant concerned, before or after service of the charge-sheet, provided sufficient justification extended for such suspension. The Supreme Court, thereafter, holds that the judgment in Ajay Kumar Choudhary (supra) could not be read as an authority for the proposition that non-issuance of charge memo/charge-sheet, within three months of suspension, would result in automatic lapsing of the suspension order. Thereafter, in para 18, this Court again observes that ―the power of the competent authority to pass orders under Rule 10(6) of the CCS (CCA) Rules, continuing or extending the suspension has not been extinguished by the Supreme Court.‖ This observation, too, cannot come to the aid of the respondent, inasmuch as, while, in Dr. Rishi Anand (supra), appropriate orders extending the suspension had been passed within the stipulated period of six months, no such orders have been passed in the present case, as already noted hereinabove. This fact, stands expressly underscored and categorised as ―pertinent‖ by this Court itself, in para 23 of its judgment, which notes that ―pertinently, the respondent’s suspension was reviewed and extended by the government within the initial period of 90 days on 27.09.2016‖. Nothing of the sort has happened, however, in the present case.

28. Though, therefore, sitting singly, it is not open to me to question the correctness of the judgment of the Division Bench in Dr. Rishi Anand (supra), I am of the view that the said decision cannot come to any substantial aid of the respondent.

29. Government of NCT of Delhi v. Vijay Kumar Jha 29.[1] As against Dr. Rishi Anand (supra), Mr. Venugopal has drawn my attention to the fact that Ajay Kumar Choudhary (supra) has expressly been followed, by another Division Bench of this Court in Vijay Kumar Jha (supra). In that case, the respondent Vijay Kumar Jha (hereinafter referred to as ―Jha‖) was arrested on 20th September, 2013 and was, vide order dated 20th November, 2013, placed under deemed suspension with effect from the date of the said arrest. His suspension was extended, from time to time, in accordance with Rule 10(6) of the CCS (CCA) Rules. Jha approached the Tribunal, which, vide its judgment dated 25th May, 2016, allowed the Original Application (OA) filed by Jha and quashed the order suspending him from service. Aggrieved thereby, the GNCTD approached this Court. 29.[2] The judgment of this Court records at the very outset, that two basic questions were posed, to the counsel appearing for the GNCTD, the first being as to whether any departmental inquiry had been initiated against Jha, and the second as to whether any charge-sheet had been filed against Jha in the criminal court, both of which were answered in the negative. Significantly, both these questions, in the present case, too, are liable to be answered in the negative. 29.[3] Thereafter, the Division Bench of this Court extracted the paragraphs, from Ajay Kumar Choudhary (supra) which already stand extracted hereinabove, and observed, in the concluding two paragraphs of its judgment thus: ―8. While, there can be no quarrel to the proposition that merely because a period of suspension is long, that by itself cannot be a ground to withdraw the order of suspension. We are of the view that the decisions of the Supreme Court in Allahabad Bank (supra) and in Rajiv Kumar (supra) sought to be relied upon by the learned counsel for the petitioner are not applicable to the facts of the present case.

9. In our view, the Tribunal has correctly relied on a decision of the Supreme Court in Civil Appeal No. 1912/2015 (arising out of SLP (C) No. 31761/2013 in Ajay Kumar Choudhary v. Union of India Through its Secretary, wherein, it has been held as under:

13. 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 Cr.P.C. of 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond 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, and more so of the Constitution Bench in Antulay, we are spurred to extrapolate the quintessence of the proviso of Section 167(2) of the Cr.P.C. 1973 to moderate Suspension Orders in cases of departmental/disciplinary inquiries 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) Cr.P.C. 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.

4. 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 concerned person 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 recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize 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 limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us.‖ 29.[4] There can be no gainsaying the fact that, this Court, in Vijay Kumar Jha completely relied on Ajay Kumar Choudhary (supra).

30. State of Tamil Nadu v. Pramod Kumar 30.[1] The necessity of negotiating Dr. Rishi Anand (supra) and Vijay Kumar Jha (supra) would, fortunately, stand obviated by this decision, rendered on 21st August, 2018, which followed the law laid down in Ajay Kumar Choudhary (supra). 30.[2] The respondent Pramod Kumar, in this case, was placed under suspension and issued a charge memo, both of which he impugned before the Tribunal. The Tribunal quashed the order suspending Pramod Kumar from service, but refused to interfere with the charge memo issued to him. Pramod Kumar, thereupon, moved the High Court of Madras, challenging the decision of the Tribunal, to the extent it refused to interfere with the charge memo issued to him. Per contra, the State of Tamil Nadu petitioned the High Court challenging the judgment of the Tribunal to the extent it quashed the suspension of Pramod Kumar. 30.[3] Vide its judgment dated 12th January, 2017, the High Court upheld the judgment of the Tribunal, quashing the suspension Pramod Kumar and went a step further, by quashing the disciplinary proceedings initiated against him vide a charge memo dated 29th October, 2013, thereby allowing the writ petition of Pramod Kumar and dismissing the writ petition of the State of Tamil Nadu. 30.[4] Aggrieved thereby, the State of Tamil Nadu approached the Supreme Court. 30.[5] Before the Supreme Court, it was contended, on behalf of the State of Tamil Nadu, that the suspension of Pramod Kumar was periodically reviewed and orders were passed, pursuant thereto, extending his suspension. Given the seriousness of the charges against him, the State of Tamil Nadu argued that reinstatement of Pramod Kumar would be contrary to public interest. The Supreme Court delineated the two issues, arising before it for consideration, as relating to the validity of the charged memo, and to the continuance of Pramod Kumar under suspension, respectively. It was also noted that these two issues were distinct and not connected with each other. 30.[6] This judgment is not required to be burdened with any detailed allusion with the decision of the Supreme Court, insofar as it related to the validity of the charge memo issued to Pramod Kumar, as no such controversy arises in the present case. 30.[7] On the issue of legality of continuation of the suspension of Pramod Kumar, however, in paras 20 to 23 of the judgment of the Supreme Court ruled thus: ―20. The first Respondent was placed under deemed suspension under Rule 3(2) of the All India Services Rules for being in custody for a period of more than 48 hours. Periodic reviews were conducted for his continuance under suspension. The recommendations of the Review Committees did not favour his reinstatement due to which he is still under suspension. Mr. P. Chidambaram, learned Senior Counsel appearing for the first Respondent fairly submitted that we can proceed on the basis that the criminal trial is pending. There cannot be any dispute regarding the power or jurisdiction of the State Government for continuing the first Respondent under suspension pending criminal trial. There is no doubt that the allegations made against the first Respondent are serious in nature. However, the point is whether the continued suspension of the first Respondent for a prolonged period is justified.

21. The first Respondent has been under suspension for more than six years. While releasing the first Respondent on bail, liberty was given to the investigating agency to approach the Court in case he indulged in tampering with the evidence. Admittedly, no complaint is made by the CBI in that regard. Even now the Appellant has no case that there is any specific instance of any attempt by the first Respondent to tamper with evidence.

22. In the minutes of the Review Committee meeting held on 27.06.2016, it was mentioned that the first Respondent is capable of exerting pressure and influencing witnesses and there is every likelihood of the first Respondent misusing office if he is reinstated as Inspector General of Police. Only on the basis of the minutes of the Review Committee meeting, the Principal Secretary, Home (SC) Department ordered extension of the period of suspension for a further period of 180 days beyond 09.07.2016 vide order dated 06.07.2016.

23. This Court in Ajay Kumar Choudhary v. Union of India, (2015) 7 SCC 291 has frowned upon the practice of protracted suspension and held that suspension must necessarily be for a short duration. On the basis of the material on record, we are convinced that no useful purpose would be served by continuing the first Respondent under suspension any longer and that his reinstatement would not be a threat to a fair trial. We reiterate the observation of the High Court that the Appellant State has the liberty to appoint the first Respondent in a non sensitive post.‖ 30.[8] The law laid down in the above extracted paragraphs from the judgment of the Supreme Court is seminal and significant. It is noted, by the Supreme Court, that periodic reviews for continuing the suspension of Pramod Kumar, had been conducted, and the suspension continued as a consequence thereof. It was also noted that the recommendations, for his reinstatement, did not find favour with the review committees. The Supreme Court also noted the seriousness of the charges against Pramod Kumar, but held that the point arising before it, was ―whether the continued suspension of the first respondent for a prolonged period is justified‖. 30.[9] The Supreme Court chose, without entering into the controversy in any further detail, to follow its earlier decision in Ajay Kumar Choudhary (supra) in para 23 of its judgment which already stands reproduced hereinabove.

31. A conjoint reading of the authorities examined hereinabove i.e. the judgments of the Supreme Court in Ajay Kumar Choudhary (supra) and Pramod Kumar (supra) and the judgments of this Court in Dr. Rishi Anand (supra) and Vijay Kumar Jha (supra), make it clear, in any event, that suspension cannot continue indefinitely and that periodical review of the order of suspension is essential. Continuous suspension, in the absence of such review, is antithetical both to the mandate of the statute as well as to the general principles relating to suspension themselves.

32. Thus viewed, I am of the opinion that the suspension of the petitioner Kulamani Biswal cannot be allowed to continue any further. It is a matter of record that, till date, no charge-sheet has been filed, against the petitioner in the criminal court, and no disciplinary proceedings have been initiated, against him, either. As already observed by me in detail hereinabove, no review of the suspension of the petitioner, has taken place, on six monthly basis, as mandated by Rule 20(3) of the CDA Rules of the NTPC. No order, communicating the decision of any such review, passed by Hon‘ble President of India or by order and in the name of the Hon‘ble President of India, stands communicated to the petitioner till date.

33. The file noting, dated 7th June, 2018, on which the case propounded by Mr. Bhardwaj rests, is in my view, too weak to function as a crutch, using which the case of the respondent could stand upright.

34. Resultantly, I am of the view that the suspension of the petitioner from service, as effected by the order dated 14th December, 2017 (supra), cannot be allowed to continue any further.

35. The impugned orders dated 14th December, 2017, 18th May, 2018 and 15th June, 2018 are, accordingly quashed and set aside. The petitioner is entitled to be reinstated in service.

36. The respondent is directed to take a decision on how to treat the period of suspension of the petitioner and communicate the decision, to him, within a period of six months.

37. The writ petition stands allowed in the aforementioned terms, with no orders as to costs.

C. HARI SHANKAR, J

OCTOBER 31, 2018