OA 178/2014, MA 307 and 745/2014. Case: Ashok Kumar Aggarwal Vs Union of India. Central Administrative Tribunal
| Case Number | OA 178/2014, MA 307 and 745/2014 |
| Counsel | For Appellant: S.K. Gupta, Advocate and For Respondents: R.N. Singh, Advocate |
| Judges | A.K. Bhardwaj, Member (J) |
| Issue | Administrative Tribunals Act, 1985 - Section 19; Constitution of India - Article 136 |
| Judgement Date | July 22, 2014 |
| Court | Central Administrative Tribunal |
Order:
A.K. Bhardwaj, Member (J), (Principal Bench)
1. The applicant a 1985 batch IRS (Income Tax Officer) has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, questioning the order F. No. A-22012/1/2013-Ad. VI dated 10.01.2014 whereby he was transferred from Delhi CCA to West Bengal CCA and order F. No. P-238/Relieving/Jt. CIT/CCIT (CCA)/2013.14/4791 dated 16.01.2014 whereby he was relived with immediate effect to report to the office of the Chief Commissioner of Income Tax (CCA), Kolkata.
2. The facts of the case in brief are that on being selected in IRS, the applicant joined the training at NADT Nagpur on 17.12.1985 and on completion of the training he was posted as ITO (Grade A) in Delhi on 16.05.1987. Subsequently, the post was re-designated as ACIT w.e.f. 01.04.1988. From 24.06.1991 till 16.09.1995, the applicant remained posted as PS to Minister of State for Mines and from 16.05.1995 to 06.05.1996 he remained posted as PS to Minister of State for Planning and Program Implementation.
3. From 06.05.1996 he availed Earned Leave for four months and on expiry of the leave, the applicant was permitted to go on deputation as Deputy Director (Delhi Zone) in Directorate of Enforcement w.e.f. 06.11.1996. The term of appointment of deputation was four years but was curtailed to two years and applicant joined back CBDT w.e.f. 31.12.1998.
4. Thereafter, he was placed under suspension by virtue of an order dated 28.12.1999 on account of his arrest in a CBI case. He challenged the suspension order before this Tribunal by way of OA No. 783/2000 which was disposed in terms of the order dated 17.01.2003 with the following directions:-
14. Resultantly, we quash the impugned order of suspension and direct:-
nothing said herein in any expression regarding the seriousness of the charges; and the quashing of the impugned suspension order will not debar the competent authority from passing a fresh order in accordance with law as may be deemed appropriated in the facts of the case.
5. The view taken by the Tribunal in the said order was that whenever a person is placed under deemed suspension under sub-rule (2) of Rule 10 of the Rules, the appointing authority or the concerned authority necessarily has to pass an order if deemed appropriate suspending him and the deemed suspension would become confined to the period of the detention and not beyond that. Para 8 of the said order reads as under:-
8. From the aforesaid, it is obvious that whenever a person is placed under deemed suspension under sub-rule (2) of Rule 10 of the Rules, the appointing authority or the concerned authority necessarily has to pass an order if deemed appropriate suspending him. The deemed suspension would be confined to the period of detention and not beyond that. The concerned authority has to apply its mind and pass an appropriate order whether in the facts and circumstances of the case having regard to the nature of the offence and the position held by the delinquent employee, the concerned person is to be suspended or not. We reiterate that it is within the domain of the appointing authority to pass an appropriate order in this regard. When the facts of the present matter are examined on the touch-stone of the above said principle, it is obvious that the suspension order indeed cannot be sustained. Reasons can be delineated.
After the said order passed by the Tribunal, the Govt. of India, Ministry of Finance & Company Affairs, Department of Revenue, CBDT issued an order dated 25.04.2003 revoking the suspension of the applicant subject to out come of the writ petition being filed before the Hon'ble High Court of Delhi against the order of the Tribunal. They also issued another order F. No. C-14011/7/2000-V & L dated 25.04.2003 placing the applicant under suspension with immediate effect.
6. The applicant filed yet another OA No. 495/2012 before this Tribunal questioning the suspension order dated 24.05.2003. To keep the facts straight it would be worth to note that prior to said OA the applicant had also filed OA No. 1105/2003 which was dismissed and when he challenged the order of dismissal passed by the Tribunal before the Hon'ble High Court, he was given liberty to approach the Tribunal to challenge his continuous suspension on the basis of subsequent events. The order passed by Hon'ble High Court is dated 11.08.2010. Thus the applicant had filed OA 2842/2010 which was decided on 16.12.2011 with a direction to consider the revocation of his suspension. As the Respondents had not passed the speaking order, the applicant moved MA 59/2012 seeking execution of the order and on coming to know about the said MA, the respondents filed MA No. 61/2012 seeking six months time to implement the order. Para 21 of the order dated 16.12.2011 passed in OA 8422/2010 read as under:-
21. In totality of the facts and circumstances of this case, we dispose of this Original Application by directing the respondents to convene a meeting of the review committee within a period of two weeks from today to reconsider revocation or continuation of suspension of the applicant after taking into consideration the factors as fully detailed above. If the view of the review committee and that of the competent authority may still be to continue the suspension of the applicant, speaking order in that regard shall be passed. Reasons although in brevity may be stated, but the points raised by the applicant, and as mentioned above, shall have to be met. If the grievance of the applicant may still subsist, it shall be open for him to file fresh Application challenging the order to be now passed. In peculiar facts and circumstanced of the case, costs of the litigation are made easy.
In implementation of the aforementioned order of the Tribunal, the competent authority having received the recommendation of the Review Committee passed order dated 12.01.2012 continuing the suspension of the applicant. Since before issuing said order the input from CBI had not been obtained, on receipt of report from CBI dated 27.01.2012, the Review Committee gave fresh recommendation for continuance of suspension of the applicant and competent authority issued a fresh order dated 03.02.2012 extending his suspension. It was after said order that the applicant filed OA 495/2012 (ibid) questioning the order of suspension dated 25.04.2003 and the orders of continuance of the same. The said OA was disposed of by the Tribunal in terms of the order dated 01.06.2012 with a view that the direction issued by the Tribunal OA No. 2842/2010 decided on 16.12.2011 had not been compelled with and the continuance of the suspension of the applicant was not tenable. Para 47 of the judgment read as under:-
47. Considering the totality of the facts and circumstances of the case, we are of the considered opinion that (i) the directions of the Tribunal issued to the respondents in OA No. 2842/2010 decided on 16.12.2011 have not been complied with in both letter and spirit while passing the impugned orders dated 12.01.2012 and 03.02.2012; and (ii) the continuance of the applicants suspension is not tenable. In the result, the orders dated 12.01.2012 and 03.02.2012 are quashed and set aside with direction to the respondents to revoke his suspension and to reinstate him in service. The applicant would be entitled to legally admissible consequential benefits.
7. The order was challenged before Hon'ble High Court in WPC No. 5247/2012 which was disposed of in terms of judgment dated 17.09.2012. Para 16 to 20 of the judgment read as under:-
16 We would highlight that the record of the petitioners containing noting after the Tribunal had passed the impugned order would reveal that the Special Review Committee met on July 24, 2012 and recommended that respondent s suspension be revoked and he be posted to a non-sensitive post. We may also note that a day prior thereto i.e. on July 23, 2012 the Department of Legal Affairs in the Ministry of Law and Justice has rendered a four page opinion taking a view that keeping in view the fact that the order dated February 03, 2012 was in total violation of the Tribunal s order dated December 16, 2011 there is hardly any chance for a Writ Court to interfere, and regretfully we find that a writ petition has been filed.
17. On the subject of a civil servant being accountable for his acts during discharge of official duties, none can deny his being accountable; but it also has to kept in mind that the process of accountability cannot be stretched indefinitely, i.e. it should not become a process where the probity of the civil servants is not being tested but it is his patience which is being tested.
18. No doubt, delay in completing departmental proceedings is by itself is no grounds to quash a suspension order, but at the same time, the issue of delay has to be factored along with such other contentions which the suspended civil servant projects with reference to the facts. It then becomes the duty of the decision making authority to take an informed decision, which would mean to take note of the admittedly relevant facts and circumstances, which in this case are the six facts and circumstances, highlighted by the Tribunal in its order dated December 16, 2011, all of which do not find a mention in the decision which has been quashed by the Tribunal, and for which we would only state even CBI has failed to comment upon; resulting in an uncanny feeling generated in a judicial mind: the neither CBI not the department has an answer to the same.
19. We accordingly dismiss the writ petition in limine and while so doing we allay the fears in the mind of the petitioners to pay back-wages.
20. No costs.
8. Finally, the respondents preferred civil appeal No. 9454/2013 before Hon'ble Supreme Court against the aforementioned judgment of Hon'ble High Court. The appeal was decided in terms of the judgment dated 22.11.2013. As noted in para 4 of the judgment the...
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