ORDER Shanker Raju, Member (J)
1. An order passed by the respondents on 26.7.2006 is being assailed by the applicant whereby his suspension has been continued on account of a pending prosecution for a period of 180 days effective from 19.8.2006. Applicant in person seeks quashing of the order with reinstatement, with all consequential benefits.
2. Before we advert to the legal pleas taken, a brief matrix is relevant to be highlighted.
3. The applicant on account of registration of a case by CBI vide RC 15(A)/96-DLI dated 29.2,1996 on the alleged ground of his catch hold with illegal gratification of Rs. 4000, was arrested but on account of slack investigation, he was released on bail on 2.3.1996 whereby strictures have been passed by the Special Judge. Applicant immediately was not suspended but was transferred to the past of Joint Director (Training), Directorate of Union Civil Services without any dealing with the public or holding any sensitive post. The CBI filed a charge where a recommendation has been made to suspend the applicant. Accordingly, the applicant was placed under suspension on account of pending trial for a criminal offence on 18.8.1998. A representation to revoke the suspension was turned down from time to time right from 8.1.1999 to 19.1.2006.
4. When the applicant assailed an order of continued suspension passed by the respondents on 25.2.2005 in O.A. 536/2005, an order passed by the Division Bench of the Tribunal on 21.7.2005 rejected the claim by dismissing the O.A.
5. Again O.A. 1903/2005 was disposed of by the Tribunal on 11.11.2005 with a direction to the respondents to dispose of the claim of the applicant in the light of alleged discrimination meted out in the matter of reinstatement to the applicant, which stood concluded by an order passed by the respondents on 19.1.2006.
6. Another O.A. filed by the applicant, i.e. O.A. 44/2006 seeking setting aside of order dated 25.8.2005 was disposed of by the Tribunal with direction to Disciplinary Authority to consider whether continuance during the pendency of the case would be in public interest or not. R.A. 37/2006 filed by the applicant was dismissed on 21.3.2006.
7. O.A. 187/2006 filed by the applicant for setting aside the order dated 19.1.2006 is sub judice and also an order passed on 17.3.2006 is the subject matter of O.A. 476/2006 filed by the applicant where after hearing the parties, orders are reserved.
8. Applicant in person vociferously espoused his case.
9.By filing written submissions, describing the definition of suspension, it is highlighted that suspension is not a punishment and while invoking power of judicial review by the Tribunal, it is stated that the Review Committee constituted is not as per the form prescribed by the respondents in the O.M. issued by DOPT dated 19.3.2004. Accordingly, the continued suspension in pursuance of the Review Committee, which is without jurisdiction, has an effect of invalidating the order of suspension.
10. Applicant in person has also stated that right to be reinstated and right to livelihood is a fundamental right, which has to be protected under Article 21 of the Constitution of India.
11. Applicant in person has also stated that on conclusion drawn by the Review Committee, which is not as per the coram, arrest of the applicant red handed accepting money is misconceived. It is also stated that only two police witnesses are to be examined and there is no prospect of the applicant being influencing any witnesses. As such, it is stated that applicant, who had been unnecessarily placed under suspension, on revocation, be reinstated at a non-sensitive place.
12. Applicant in person relied upon the following decisions to substantiate his plea:
(i) Bani Singh v. Union of India O.A. 833/2000, decided on 6.2.2001.
(ii) C.S. Khairwal v. Union of India O.A. 1437/57, decided on 24.10.1997.
(iii) Madhukar v. Union of India O.A. 2278/94, decided on 27.7.1999.
(iv) Amitabh Mukerjee v. State of Rajasthan 1995(1) SLR 575.
(v) K.J. Gaidane v. State of Maharasthra 1986(1) SLR 763.
(vi) Braj Kishore Singh v. Govt. of Bihar 1989(6) SLR 615 (CAT Patna).
(vii) K.S. Kotahandaraman v. Regional Director 1990(1) SLJ 224 (CAT- Madras) (SN) : 1989(6) SLR 416.
(viii) J.K. Varshneya and Ors. v. Union of India and Ors. 1989(1) SLJ 641 (CAT-PB-ND) : 1989(1) ATR 215.
(ix) S. Venkdta Ramaiah v. Govt. of Andhra Pradesh 1988(2) SLJ 651 (CAT- Hyderabad) : 1988(5) SLR 294.
(xi) Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors. 1981 SCC (Cri) 212; and
13. On the other hand, respondents' learned Counsel Mr. Duli Chand relied upon the finding recorded by the Division Bench in O.A. 536/2005 decided on 21.7.2005 to substantiate his plea.
14. It is stated that the applicant, who is being involved in a criminal case relating to corruption being grave charge is rightly placed under suspension and his suspension has been continued rightly because the applicant would influence the witnesses where the trial is yet to be concluded.
15. It is also stated in the reply that a Review Committee was constituted of Joint Secretary (Union Territories), MHA and Secretary (Services-cum-GAD), Govt. of NCT of Delhi on 20.7.2006 and on considering the circumstances, recommendation has been made for continued suspension of the applicant for a further period of 180 days from 19.8.2006.
16. In rejoinder, applicant has reiterated his plea taken in the O.A.
17. I have carefully considered the rival contentions of the parties and perused the material placed on record.
18. The Constitution Bench of the Apex Court in Delhi Transport Corporation's case (supra) acknowledged the right to life as to right to livelihood with the following observations:
223. In the year 1990, it is not necessary forme to discuss in detail the authorities which have widened the horizons of Article 14 of the Constitution. Some of these precedents are directly on the point is as much as the validity of similar service rules Was considered there. It is enough if I summarise the position of law as it obtains to-day.
There is need to minimise the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however high-placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however high they may be. There is only a complaisant presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law.
The employment under the public undertakings is a public employment and a public property. It is not only the undertakings but also the society which has a stake in their proper and efficient working. Both discipline and devotion are necessary for efficiency. To ensure both, the service conditions to those who work for them must be encouraging, certain and secured, and not vague and whimsical. With capricious service conditions, both discipline and devotion are endangered, and efficiency is impaired.
The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.
Both the society and the individual employees, therefore, have an anxious interest in service conditions being well-defined and explicit to the extent possible. The arbitrary rules, such as the one under discussion, which are also sometimes described as Henry VIII Rules, can have no place in any service conditions. These are the conclusions which flow from Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr. ; Maneka Gandhi v. Union of India ; The Manager, Government Branch Press and Anr. v. D.B. Felliappa ; Managing Director, Uttar Pradesh Warehousing Corporation and Anr. v. Vinay Narayan Vajpayee ; A.L Kalra v. The Project & Equipment Corporation of India Limited ; Workmen of Hindustan Steel Ltd. and Anr. v. Hindustan Steel Ltd. and Ors. ; West Bengal State Electricity Board and Ors. v. Desh Bandhu Ghosh and Ors. ; Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors. etc. (1985) Supp. 2 SCR 51; Union of India and Anr. v. Tulsiram Patel and Ors. 1985(2) SLJ 145(SC) : (1985)Supp. 2 SCR 13 ;Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr. etc. 1986(2) SLJ 320 (SC) : (1986) 3 SCR 156; O.P. Bhandari v. Indian Tourism Development Corporation Ltd. and Ors. ; N.C. Dalwadi v. State of Gujarat ; M.K. Agarwal v. Gurgaon Gramin Bank and Ors. 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643 and Daily Rated Casual Labour Employed under P & T Department through Bhartiya Dak Tar Maidoor Manch etc. v. Union of India and Ors. .
19. Another Constitution Bench decision of Apex Court in Olga Tellis's case (supra) defined the right to life with the following observations:
32. As we have stated while summing up the petitioners' case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to 80 be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which people their desertion of their hearths and homes in the villages that struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas J. in Baksey that the right to work is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Mum v. Illinois (1877) 94 U.S. 113, means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and facilities of which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. The State of U.P. .
33. Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards . securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another Directive Principle, provides, inter alia, that the State shall, within the limits of its . economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though not enforceable by any Court, are nevertheless fundamental in the governance of the country. The Principles contained in Articles 39 (a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood 81 except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21.
20. The cumulative reading of the above ratio decidendi would discern that the Government servant before hand is a citizen of India and his right to livelihood has to be respected and protected as a fundamental right with an intention that this deprivation of right to livelihood would be just and in accordance with fair procedure established by law.
21. In the light of above, the word "suspension", in its literal sense as per the Oxford Dictionary, has been defined as a "temporary deprivation of one's office or position". The concept of suspension was introduced with the promulgation of CCS (CCA) Rules, 1965 (hereinafter referred to "Rules"), wherein Rule 10 for Government servants working with the Union as well as the State where these rules are adopted, envisaged that on the discretion of the Appointing Authority or by the President through delegated authority place a Government servant under suspension where a case against him in respect of a criminal offence is under investigation or trial. Rule 10(l)(b) of the Rules provides the aforesaid.
21A. Rule 10(5)(a) of the Rules provides that an order of suspension made under Rule 10(l)(b) shall continue to remain in force until it is modified or revoked by the authority competent to do so. There is nothing, which precludes under Rule 10(5)(b) & (c) to the Competent Authority to state that the suspension would hold good till termination of the proceedings and the suspension can be modified or revoked at any time by the Appointing Authority.
22. Rule 10(6) & (7) of the Rules have been brought into picture by on amendment carried out in 2004, which has a background object, necessitated review of the suspension where the suspension has been continued indefinitely or for a longer time. The interpretation accorded in law to these provisions would discern that any suspension resorted on account of either disciplinary proceedings or a criminal proceeding has to be reviewed by 2.9.2004, failing which it would be rendered invalid. However, at a time suspension is to be reviewed for a period not exceeding 180 days.
23. As suspension has an object to temporarily keep-off a Government servant from duty where there is every likelihood of his being tempering or influencing the procurement of the material either for the purposes of the disciplinary proceedings or criminal proceedings and to ensure that the witnesses are not threatened to let the smooth move of the proceedings take shape into finality of trial or disciplinary proceedings. Time to time, instructions have been issued with regard to the suspension and guiding principles have been laid down by GI, MHA letter No. 43/56/64-AVD dated 22.10.1964 where, in public interest, guiding principle to place the Government servant under suspension, which would find appropriate by the concerned Disciplinary Authority where continuance in office of a Government servant will prejudice the investigation or trial, e.g., apprehended tempering with witnesses or documents. The second object is that serious subversion of discipline in the office would be likely on continuance of such an officer. The suspension would be continued if the continuance of the officer is against the wider public interest, i.e., either a public scandal or demonstrate as a policy to others as to strict dealing with the officers involved in corruption charges.
24. As per CVC circular letter No. 000/VGL/70 dated 25.9.2000 where cases registered by CBI particularly on corruption and CBI proposes recommendation in case of Disciplinary Authority by taking a contrary view, the matter would be referred to Commission for advice.
25. GI, DOPT O.M. No. 11012/8/2003-Estt.(A) dated 23.10.2003 with regard to deemed suspension in the light of the decision of the Apex Court in Union of India v. Rajiv Kumar held that once the person is on deemed suspension on account of a detention in criminal charge, it would be operative unless under the rules/However, GI, MHA O.M. No. 39/33/72-Ests (A) dated 16.12.1972 held that speedy follow-up action in suspension cases is to be adhered to and a charge-sheet in the Court of law is to be filed within six months. If the presence of the officer is considered detrimental to the collection of evidence, he may be transferred on revocation of the suspension order.
26. Lastly, in case of continuance of suspension, DOPT O.M. dated 19.3.2004 constituting the composition of Review Committee is reproduced hereinbelow:
(29) Suspension of Government servants-Constitution of Review Committees. - Rule 10 (Suspension) of the CCS (CCA) Rules, 1965 is being amended to provide that an order of suspension made or deemed to have been made under this Rule shall be reviewed by the Competent Authority on recommendation of the Review Committee constitution for the purpose. It is also being provided in the Rules that an order of suspension made or deemed to have been under Sub-rules (1) or (2) of Rule 10 shall not be valid after 90 days unless it is extended after review for a further period before the expiry of 90 days. It is further being provided that extension of suspension shall not be for a period exceeding 180 days at a time.
2. It is, therefore, necessary to constitute Review Committee(s) to review the suspension cases. The composition of Review Committee(s) may be as follows:
(i) The Disciplinary Authority, the Appellate Authority and another officer of the level of Disciplinary/Appellate Authority from the same office or from another Central Government office (in case another officer of same level is not available in the same office), in a case where the President is not the Disciplinary Authority or the Appellate Authority.
(ii) The Disciplinary Authority and two officers of the level of Secretary/ Additional Secretary/Joint Secretary who are equivalent or higher in rank than the Disciplinary Authority from the same office or from another Central Government office (in case another officer of same level is not available in the same office), in a case where the Appellate Authority is the President.
(iii) Three officers, of the, level of Secretary/Additional Secretary/Joint Secretary who are higher in rank than the suspended official from the same Department/Office or from another Central Government Department/Office (in case another officer of same level is not available in the same office), in a case where the Disciplinary Authority is the President. The Administrative Ministry/Department/ Office concerned may constitute the Review Committees as indicated above on a permanent basis or ad hoc basis.
3. The Review Committee(s) may take a view regarding revocation/continuation of the suspension keeping in view the facts and circumstances of the case and also taking into account that unduly long suspension, while putting the employee concerned to undue hardship, involve payment of subsistence allowance without the employee performing any useful service to the Government. Without prejudice to the foregoing, if the officer has been under suspension for one year without any charges being filed in a Court of law or no charge-memo has been issued in a departmental enquiry, he shall ordinarily be reinstated in service without prejudice to the case against him. However, in case the officer is in Police/Judicial custody or is accused of a serious crime or a matter involving national security, the Review Committee may recommended the continuation of the suspension of the official concerned.
4. In so far as persons serving in the Indian Audit and Accounts Department are concerned, these instructions are issued in consultation with the Comptroller and Auditor-General of India.
5. All Ministries/Departments are requested to bring the above instructions to the notice of all Disciplinary Authorities under their control and ensure that necessary Review Committees are constituted accordingly. It may also be impressed upon all concerned that lapsing of any suspension order on account of failure to review the same will be viewed seriously.
The Notification of even number, dated 23.12.2003 inserting Sub-rules (6) and (7) in Rule 10 of the CCS (CCA) Rules, 1965 has been published as GSR No. 2 in the Gazette, dated 3.1.2004. It would, therefore, be necessary to review pending cases in which suspension has exceeded 90 days, by 2.4.2004. Other suspension cases will also have to be reviewed before expiry of 90 days from the date of order of suspension.
6. Ministries/Departments are requested to ensure that necessary Review Committees are constituted as per the guidelines laid down in the O.M., dated 7.1.2004 and suspension cases are reviewed accordingly.
27. Having reproduced the instructions on suspension and also on continued suspension, now it is the turn of case laws to be referred to.
28. The Apex Court in State of Orissa through its Principal Secretary, Home Deptt. v. Bimal Kumar Mahanty, 1994(2) SLJ 72 (SC) : 1994 SCC (L&S) 875 in a Division Bench, as regards suspension pending an investigation into acts of omission and commission having corruption angle involved, held as:
13. It is thus settled law that normally when an Appointing Authority or the Disciplinary Authority seeks to suspend on employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the Appointing Authority and on application of the mind by Disciplinary Authority, Appointing Authority or Disciplinary Authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge.
29. If one has regard to the above, though the discretion to place of employee under suspension is the prerogative of the authorities but no hard and fast rule has been laid down in this regard. However, as a general principle, what has been stressed that there should not be haste by the Tribunal to interfere in the suspension unless the action is actuated with mala fide, arbitrary or ulterior motives.
30. In Allahabad Bank and Anr. v. Deepak Kumar Bhola , a case relating to suspension of the employee of the Bank, the Apex Court held as follows:
13. We are unable to agree with the contention of learned Counsel for the respondent that there has been no application of mind or the objective consideration of the facts by the appellant before it passed the orders of suspension. As already observed, the very fact that the investigation was conducted by the C.B.I. which resulted in the filing of a charge-sheet, alleging various offences having been committed by the respondent, was sufficient for the appellant to conclude that pending prosecution the respondent should be suspended. It would be indeed inconceivable that a bank should allow an employee to continue to remain on duty when he is facing serious charges of corruption and mis-appropriation of money. Allowing such an employee to remain n the seat would result in giving him further opportunity to indulge in the acts for which he was being prosecuted. Under the circumstances, it was the bounden duty of the appellant to have taken recourse to the provisions of Clause 19.3 of the First Bipartite Settlement, 1966. The mere fact that nearly 10 years have elapsed since the charge-sheet was filed. Can also be no ground for allowing the respondent to come back to duty on a sensitive post in the bank, unless he is exonerated of the charge.
31. 1f one has regard to the above, the ratio decidendi, which is inferred from the above, is that reinstating the person accused of the corruption charges would be premium to him with an opportunity to again be seated in a place where he has committed an act of corruption.
32. The Apex Court in State Bank of India and Anr. v. Rattan Singh again a case of an employee of Bank being suspended, while relying upon the decision in Deepak Kumar Bhola 's case (supra), held that unless a person, who is facing a criminal charge is exonerated, he would not be but back to a sensitive post.
33. In Union of India v. Rajiv Kumar (supra) whereas a legal fiction Rule 10(2) of the Rules, it has been held that on a deemed suspension, the same would be continued unless specifically revoked. As an obiter dicta what has been held is as under:
29. Another plea raised relates to a suspension for a very long period. It is submitted that the same renders the suspension invalid. The plea is clearly untenable. The period of suspension should not be unnecessarily prolonged but if plausible reasons exist and the authorities feel that the suspension needs to be continued, merely because it is for a long period that does not invalidate the suspension.
34. In Prem Narain Gupta v. Union of India and Ors. 2005(3) SLR 448 in a case where the order of suspension on extension due to corruption charges, no interference has been sought relying upon Deepak Kumar Bhola's case (supra).
35. In criminal service jurisprudence, mere lodging of an FIR against a person is not an ample proof of his being guilty of the charges, unless he is convicted by the criminal Court of competent jurisdiction. However, if one is involved in the criminal case where the investigation is on, it has to be ascertained that the officer, who is allegedly involved in corrupt activities, would not in any manner temper or hamper with the materials sought to be collected for holding a trial by filing charge sheet against him. During the trial, when particularly public witnesses are involved, it has to be ascertained and safeguarded that such a person should not be instrumental in misusing his position as an official status to temper with the evidence or in any manner threaten or influence the witnesses to defeat the purpose of trial. To keep-off such a person from usual duties to ensure he has no nexus to the records, files, etc. when the alleged offence has been committed in the office during the course of discharge of duties in relation with the public.
36. Another factor, which justifies placing of a Government servant under suspension is that if on reinstatement or if not placed under suspension the person is again put to sensitive place of duty having a public dealing, in such an event, there would be all probabilities and possibilities to have recurrence such an act by the concerned. To keep-off such a person from sensitive duty, the guidelines also suggest, on revocation of suspension, to transfer the person to a non-sensitive place.
37. The effect of suspension is that the person does not perform the usual duties attached with the post but for attachment to the Headquarters for the purpose of grant of subsistence allowance, one is not allowed to perform any sort of duty as per the guidelines issued by the Government, except in cases where the person is performing the duties in Defence or active Forces, like Police.
38. GI, MHA O.M. No. 142/2/83-ADV. I, dated 6.4.1983 has been issued in light of a decision of Andhra Pradesh High Court in Zonal Manager, Food Corporation of India and Ors. v. Khaled Ahmed Siddiqui 1982(2) SLJ 166 (APHC) : 1982 Lab IC 1140 wherein it has been held that during the period of suspension, a direction to the employee to attend office and mark attendance at the office daily during working hours is illegal. The Government servant on suspension is entitled to 50% of the allowances and in delay it is revised as per FR 53 and as per the pronouncements in several cases, may be the full drawl of salary in case of delay in trial or proceedings not attributed to the Government servant.
39. In the light of above legal position, as per the brief background of the present case, no doubt the applicant has been allegedly involved in a criminal case relating to corruption. What we find from the order passed grating bail to the applicant on 2.3.1996 is that having regard to the fact that indirect transaction of money has taken place and there was no evidence as to any direction given to the complainant to give money to accused Ravi Bhatt, UDC (reader) and the statement of complainant and panch witnesses could not be recorded within 24 hours, the applicant was admitted to bail.
40. Corruption is itself a menace and a termite to our Society. When Government servant turns dishonest, he not only defiles the colleagues but also creates a misbalancing situation in the system by his illegal deeds, which has an effect of loosing faith of a common man in Government and its executives. Any person who is found, on proof, indulging in corruption by due process of law, he should not be spared so that a dirty fish can be out of the water to keep it clean and also to prevent others from getting this infection. Accordingly, the constitutional law, which has developed in the matter of suspension and which is not a punishment, is not to allow a Government servant, who has been facing a criminal trial on corruption charges to be put back in service. However, there may be exceptions to the rule. Accordingly, in Bimal Kumar Mohanty's case (supra) discretion to be exercised by the Competent Authority has to be in the facts and circumstances and as per the prevailing situation.
41. Having regard to the above, when the criminal trial against the applicant has almost concluded, as the investigation whereby the CBI has taken into position all the materials, including evidence in the form of documents, etc., have already put in the form of charge sheet and annexures before the Trial Court and during this interregnum, the applicant had remained under suspension, the possibility of his tempering with witnesses have already been ruled out.
42. In the course of trial, the panch witnesses and other public witnesses have already been examined and what has been left to be examined are the Inquiry Officer of the case and another CBI officials. No material has been brought to record to establish that the applicant even by remotest possibility would be an instrumental in influencing these two witnesses, which are officials or approaching them for such a request to depose in his favour. In the prosecution evidence, the trial would not exhibit any document but the defence of the applicant and his statement, on arguments, would culminate into a final order to be passed by the Special Judge.
43. Earlier in an order passed on 27.7.2004 whereby, on review, the applicant was continued under suspension, the grounds were that the applicant being caught red handed while taking a bribe of Rs. 4000 and a criminal trial is at an admission stage and the applicant would, on reinstatement, influence the prosecution witnesses and that the trial is delayed by applicant in filing a revision petition and also that public life demands that corrupt officers are not to be reinstated back. This has been reiterated verbatim in a subsequent order passed on 25.8.2005.
44. What makes difference after the order of 1999 is an order passed by the Tribunal in O.A. 1903/2005 whereby an order passed on 11.11.2005 on the ground that certain official, including IAS Virender Singh, IAS C.S. Khairwal, IAS Subhash Sharma and IPS J.K. Sharma, who have been similarly facing prosecution in corruption cases, their suspension having been revoked, there is invidious discrimination. Respondents have been directed to pass an order as to the pick and choose policy adopted by them by meting out differential treatment of the applicant, vis-a-vis, similarly circumstanced others, who have been reinstated back in service.
45. The aforesaid order had culminated into an order passed on 19.1.2006, where, after this plea was reproduced in its precise form, has culminated into a vague reply by justifying non-reinstatement on account of the fact that applicant would influence the prosecution witnesses by his official position.
46. Although the aforesaid order is challenged in a separate proceeding, which is the subject matter of application, but for the sake of clarity, the aforesaid has been mentioned.
47. No doubt, as the suspension on review had outlived its effect on 18.8.2006, the impugned order extends the suspension for a further period of 180 days w.e.f. 19.8.2006. The reasoning given to justify the continued suspension is mechanical and reproduction of what has been stated in the earlier orders.
48. It is trite that public functionaries when exercise their discretion, discharge administrative or quasi-judicial functions in the matter of discretion, would have an approach, which is judicious and that would be when there is a discern between the right and wrong and the opinion formed should not be arbitrary or vague but legal. The aforesaid has been laid down by the Apex Court in Union of India v. Kuldeep Singh with the following observations:
In its ordinary meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of other Discretion is the discern between right and wrong; and, therefore, whoever hath power to act at discretion is bound by the rule of reason and law. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rule of reasons and justice, not according to private opinion; according to law and no humor. It is to be not arbitrary, vague and fanciful but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to have confined himself. When a statute gives a judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discrete.
49. In the light of above, as it is established under rule and law that if the suspension is not revoked by the Review Committee, it would loose its sanctity and the person would have legal implication in his favour, in such an event, law shall take its own course.
50. Accordingly, as admitted by the respondents in their reply that the Review Committee, which has met on 20.7.2006 to extend the continued suspension of the applicant from 19.8.2006 for a further period of 180 days, consisting of Joint Secretary (Union Territories), MHA and Secretary (sic) unfortunately not a valid composition as per the guidelines issued by GI, DOPT O.M. No. 11012/4/2003-Estt. (A) dated 7.1.2004. The Review Committee as per this O.M., which is supplementing the rules without any inconsistency with it, being a subordinate legislation, holds the field and is valid in law. As per Clause 2(iii) of Order No. 29, three officers of the level of Secretary/Additional Secretary/Joint Secretary who are higher in rank than the suspended official from the same department/office are to constitute the Review Committee, which would consider amongst others in a continued suspension undue hardship, usual service rendered by the Government servant but other factors, including seriousness of a matter in which the person is involved.
51. As the Review Committee was not constituted of three members and only two members were there, i.e., one is of a Joint Secretary level and the other of Secretary level, This composition of Review Committee was against the rules and was incompetent without jurisdiction to further review the suspension of the applicant for a further period of 180 days from 19.8.2006.
52. As the review conducted by the respondents in nullity in law, what would be the repercussion and the consequence, Rule 10(5)(a) of the Rules would clearly come in operation whereby an order of suspension made shall continue to remain in force unless modified or revoked,
53. Rule 10(6) of the Rules is one time application, which is satisfied in the present case. However, Rule 10 (7) of the Rules provides that an order of suspension made under Sub-rules (t) & (2) of Rule 10 of the Rule unless extended after review for a further period before the expiry of 90 days, would render the suspension invalid and would have no application in the present case.
54. Another aspect of the matter, which I would like to consider, is that when a discretion is vested in Review Committee deciding the revocation of suspension, they are not to act mechanically. With the passage of each day, the circumstances changed, as also the stage of the prosecution and implications to be involved therein. If all the witnesses are examined and only CBI officials are left, the ground of influencing the prosecution witnesses would be very illogical or irrational. However, the other ground of applicant having caught red handed is belied by the order passed by the Special Judge in granting bail to the applicant where it is demonstrated that the money was recovered elsewhere.
55. No doubt, a person accused of corruption charges, on reinstatement, maybe a wrong example, which would be conveyed to others, but FIR not being the proof of guilt and when the entire trial has almost completed, person can be reinstated and to ensure that others get lesson, may be posted to a non-sensitive place, subject to the final outcome of the proceedings. However, that depends upon the peculiar facts and circumstances of each case but the mandate as an obligation upon the Reviewing Authorities to examine and then pass a reasoned order, which would not appear in judicial review, to be a mechanical exercise by reiterating what has been stated in earlier orders. The changed circumstances would have to be considered and certainly would have entailed a change in the reasoning recorded by subsequent Review Committee.
56. Invidious discrimination is an antithesis to principle of equality enshrined under Article 14 of the Constitution of India. If a person is situated equally, he cannot be meted out an unequal treatment. To justify inequality, intelligible difference having a nexus with the object sought to be achieved is to be shown. To pass the twin test of reasonableness has been laid down by the Constitution Bench of the Apex Court in D.S. Nakara v. Union of India 1983(1) SLJ 131 (SC) : 1983 SCC (L&S) 145.
57. Earlier in the proceedings before us in O.A. 1903/2005, several officers have been named by the applicant, who have been holding the cadre of IAS or IPS and despite their involvement in corruption charges and the trial being proceeded have been reinstated back in service and posted to non-sensitive post. Such a plea of discrimination was to be tested, considered and deliberated by the respondents. We find from the order passed by the respondents dated 19.1.2006, though there has been a passing reference to pick and choose policy adopted, yet no finding has been recorded on it.
58. Negative equality has no place in Article 14 of the Constitution. A wrong order would not entail a similar treatment meted out to identical situation, yet the order passed by the respondents was within the instructions issued and at the vice discretion of the Competent Authority after examining the facts and circumstances of the case. However, when such an exercise has not been undertaken in the present case, I can very well hold a misuse of the discretion by the respondents with an attached non-application of mind. Though the administrative action would be interfered if the decision process is bad but not the reasons, which are relevant. However, to discern the (sic) reasoning is of paramount importance. If the same reasoning is reiterated even after changed circumstances and the plea of discrimination has not been considered at all, non-application of mind deprives the applicant his right to be heard on his grounds and changed circumstances will, in turn, be an infraction to the principles being an embodied part of principles of natural justice. As a sine qua non not only prejudice but also deprivation of reasonable opportunity is to be inferred.
59. With the above reasoning, I cannot uphold the order passed by the respondents impugned in the present O.A.
60. O.A. is accordingly partly allowed. Impugned order is set aside. Legal consequences may follow. It is, however, which the domain of the respondents, if so advised, to reconstitute the proper Review Committee and consider the case of the applicant in the light of observations made above, rules and instructions and law on the 'subject by passing a detailed and speaking order within two months from the date of receipt of a copy of this order. No costs.