UNION OF INDIA vs ASHISH ANAN

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Reserved on: 21st November, 2024
Pronounced on: 11th December, 2024

+ W.P.(C) 8567/2020 & CM APPL. 27640/2020
UNION OF INDIA …..Petitioner

Through: Mr. Ruchir Mishra, Mr. Sanjay Kumar Saxena, Mr. Mukesh Kumar Tiwari, Ms. Poonam Shukla and Ms. Reba Jena Mishra, Advocates.

Versus

ASHISH ANAN …..Respondent

Through: Mr. Suresh Chandra, Ms. Stuti Karwal and Mr. Rachael Tuli, Advocates.

CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR
HON’BLE MR. JUSTICE AMIT SHARMA

JUDGMENT
AMIT SHARMA, J.

1. The present petition under Articles 226 and 227 of the Constitution of India, 1950 has been filed seeking the following prayers: –

“In view of the above, it is submitted that this Hon’ble Court may graciously be pleased
a) pass appropriate Writ, directions or order in the nature of certiorari or any other writ, direction and/or order to quash and set aside the Order dated 26.11.2019, passed by Central Administrative Tribunal, New Delhi in OA No. 2863/2017;
b) pass such other further direction which this Hon’ble Court may deem fit and proper in the facts of the case.”

FACTUAL BACKGROUND

2. Facts necessary for the disposal of the present petition are as follows: –
i. The Respondent is an Entry Grade Officer of Delhi, Andaman and Nicobar Islands Police Service (DANIPS) who was serving as Deputy Superintendent of Police (Crime)/Sub-Divisional Police Officer (SDPO), through Administrator, UT Administration of Daman & Diu, Daman, in 2016. He was placed under suspension until further orders in terms of Rule 10(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, (for short, ‘CCS(CCA)’) on account of being detained in police custody on 19.10.2016 for a period exceeding 48 hours in respect of FIR No. 169/2016 dated 16.10.2016, under Sections 384, 120B, 506 of the Indian Penal Code, 1860 (for short, ‘IPC’), registered at PS Nani Daman, vide order dated 02.11.2016 issued by Director (Services), Ministry of Home Affairs, UTS-II Section.

ii. Thereafter, his suspension was reviewed and extended on the basis of the recommendations given by Suspension Review Committee (for short, ‘SRC’) from time to time as per the provisions of Rule 10(6) and Rule 10(7) of the CSS(CCA) and till date he remains under suspension.

iii. The aforesaid FIR was registered on the basis of a complaint filed by a police constable Pragnesh Ishwar Patel against the Respondent, HC Jatin Dhankhar and Naina Gupta @ Kirti Sharma. As per the allegations in the FIR, on 26.09.2016, the Respondent while acting in collusion and connivance with the said persons laid a honey trap and extorted a sum of Rs. 6 Lakhs by threatening one Mahipal Singh.

iv. Initially, the FIR was registered under Sections 384, 120B, 506 of the IPC and, subsequently Section 201 of the IPC and Sections 7, 12, 13(1)(d) of the Prevention of Corruption Act, 1988, (for short, ‘PC Act’) were added on the basis of the evidences which emerged against the accused persons therein including the present Respondent.

v. Thereafter, when the concerned Investigating Officer served a notice under Section 160 of the CrPC to the victim in the aforesaid FIR, Mahipal Singh, to join investigation and for recording his statement, the latter filed a writ petition being Criminal Writ Petition No. 3739 of 2016 seeking quashing of the notice issued to him before the Hon’ble Bombay High Court. However, the Hon’ble High Court there, instead of quashing the notice directed that, “If the Petitioner volunteers to give statement, no coercive action will be taken” and dismissed the said Petition vide order dated 29.11.2017. It is pertinent to note here that the said Mahipal Singh had so as to get his statement recorded had filed an application under Section 164(5) of the CrPC before the concerned Judicial Magistrate First Class (for short, ‘JMFC’), Vadgaon which was also dismissed by the concerned JMFC.

vi. As per the case of the prosecution in the said FIR, one girl namely, Naina Gupta @ Kirti Sharma is a friend of the Respondent and the latter had conspired with her and other co-accused persons in order to extort money from the said Mahipal Singh. After the analysis of the Call Detail Records (CDRs) and messages exchanged among the said accused persons and other documentary evidences, it was revealed, during the investigation, that the Respondent was in constant communication with the said Naina Gupta and other accused persons. After completion of investigation, Chargesheet No. 56/2017 dated 27.05.2017 was filed before the Court of competent jurisdiction on 29.05.2017 against 6 accused persons, however, the present Respondent was not named as accused in the said chargesheet. Chargesheet qua him was awaited.

vii. Respondent was arrayed as accused in the said FIR vide supplementary chargesheet No. 56-S1/2017, dated 13.07.2017. In total 8 persons were named as accused in the said FIR and out of said 8 accused persons, 7 are police officials including the Respondent. Sanction for prosecution of the Respondent was obtained from the competent authority, i.e., Joint Secretary to the Govt. of India, Ministry of Home Affairs, New Delhi, vide No. 14033/14/2016-UTS-II, dated 10.07.2017, and was annexed with this supplementary chargesheet.

viii. Correspondingly, the Respondent was chargesheeted in the departmental proceedings vide Ministry’s Memorandum dated 11.01.2017. As the suspension of the Respondent was extended from time to time, one of the extension order passed against him was on 14.07.2017 whereby on the basis of the recommendations of SRC and factum of issuance of memorandum of charge against the Respondent his suspension was extended for a period of 90 days and subsequently, for 180 days on 13.10.2017. The said memorandum of charge was assailed by the Respondent in Original Application No. 1675/2017.

ix. The Respondent filed Original Application No. 2863/2017 before Central Administrative Tribunal, Principal Bench, New Delhi challenging his suspension order dated 14.07.2017. However, it was not disclosed by the Respondent in this OA that he had already filed an OA challenging the aforesaid memorandum of charge issued to him initiating departmental proceedings.

x. During the pendency of OA No. 2863/2017, the learned Tribunal decided the OA No. 1675/2017 vide order dated 07.08.2018 whereby the departmental proceedings instituted via the said memorandum of charge dated 11.01.2017 were directed to be kept pending till the criminal case in FIR No. 169/2016 is decided in view of the fact that an employee is required to submit explanation in the departmental proceedings which may lead to disclosure of his defence which otherwise might be available to him during the course of trial in a criminal case.

xi. Subsequently, OA No. 2863/2017 was also decided by the learned Tribunal vide order dated 26.11.2019 whereby the Petitioner was directed to reinstate the Respondent in service forthwith. Hence, the present petition has been filed by the Petitioner challenging the said order of reinstatement of the Respondent in service.

xii. The Predecessor Bench of this Court vide order dated 02.11.2020 had directed the stay of the impugned order.

SUBMISSIONS ON BEHALF OF THE PETITIONER/UNION OF INDIA

3. Learned counsel for the Petitioner has made the following submissions in support of the present petition: –

i. The allegations made in the aforesaid FIR against the Respondent are grave in nature as he has been arrayed as accused for extorting money while acting in conspiracy with his fellow police officers and one female, with whom his prior affiliation has emerged during the investigation of the said case.

ii. The Respondent has been suspended on account of the fact that he remained in police custody for more than 48 hours thereby attracting the operation of provisions of Rule 10(2) of the CCS (CCA). It is further submitted that the initial order of suspension vide which the Respondent was suspended was reviewed in accordance with the provisions of Rules 10(6) and 10(7) of the CCS (CCA) and was extended from time to time on the basis of the recommendations given by SRC after proper application of mind and taking into account relevant considerations.

iii. It was not the case of the Respondent before the learned Tribunal that either the impugned order of suspension or further extension orders were passed without due application of mind or arbitrarily or not in accordance with the provisions envisaged under Rule 10 of the CCS (CCA).

iv. The learned Tribunal vide the impugned order by passing the directions for reinstatement of the Respondent has usurped and exercised the powers of criminal court, and has thereby, prejudiced the charges levelled against the Respondent in the trial pending before the Court of competent jurisdiction. It is also the case of the Petitioner that the learned Tribunal has not taken into consideration the nature and gravity of the charges levelled against the Respondent.

v. Attention of this Court was drawn to an updated compilation dated 04.11.2022 issued by Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training (Establishment Division) with regard to the Rules/executive instructions in respect of suspension and more particular to item (D) which reads as under: –

“(D) CIRCUMSTANCES UNDER WHICH THE COMPETENT AUTHORITY MAY CONSIDER TO PLACE A GOVERNMENT SERVANT UNDER SUSPENSION (FOR GUIDANCE AND SHOULD NOT BE TAKEN AS MANDATORY)

(i) Cases where continuance in office of the Government Servant will prejudice the investigation, trial or any inquiry (e.g. apprehended tampering with witnesses or documents);

(ii) Where the continuance in office of the Government servant is likely to seriously subvert discipline in the office of which the public servant is working;

(iii) Where the continuance in office of the Government servant will be against the wider public interest (other than those covered by (i) and (ii) such as there is public scandal and it is necessary to place the Government servant under suspension to demonstrate the policy of the Government to deal strictly with officers involved in such scandals, particularly corruption;

(iv) where allegations have been made against the Government servant and preliminary inquiry has revealed that a prima facie case is made out which would justice his prosecution or is being proceeded against in departmental proceedings, and where the proceedings are likely to end in his conviction and/or dismissal, removal or compulsory retirement from service.

NOTE: In the first three circumstances the disciplinary authority may exercise his discretion to place a Government servant under suspension even when the case is under investigation and before a prima facie case has been established.
(v) Suspension may be desirable in the circumstances indicated below:-

a) any offence or conduct involving moral turpitude;
b) corruption, embezzlement or misappropriation of Government money, possession of disproportionate assets, misuse of official powers for personal gain;
c) serious negligence and dereliction of duty resulting in considerable loss to Government;
d) desertion of duty;
e) refusal or deliberate failure to carry out written orders of superior officers.

Note: In respect of the types of misdemeanor specified in sub clauses (c) and (e) discretion has to be exercised with care.

[Para 4 of the OM No. 11012/17/2013-Estt. (A) dated 02.01.2014]”

vi. It was submitted that 8 persons have been chargesheeted vide the police report filed in the aforesaid FIR. Out of them including the present Respondent, 7 are public servants (police personnels to be precise) and 4 of them have already been dismissed from service in accordance with the provisions of Article 311(2) of the Constitution of India. Moreover, the present Respondent in the present OA had concealed the fact that an OA No. 1675/2017 was already pending vide which he had challenged the memorandum of charges levelled against him in the departmental proceedings. It is further the case of the Petitioners that since the initial order of suspension was passed on 02.11.2016 and thereafter extended from time to time, the same has been belatedly challenged and the OA filed by the Respondent suffered from laches and this has not been taken into consideration by the learned Tribunal.

vii. In view of the aforesaid submissions, it was submitted that the impugned order passed by the learned Tribunal is to be set aside.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

4. Refuting the submissions made on behalf of the Petitioner, learned counsel for the Respondent has made the following submissions: –

i. The learned Tribunal has passed the impugned order after due consideration of material on record and taking into account the relevant considerations in the present case. The Respondent is a victim of animosity of his fellow colleagues. He has falsely been implicated in the said FIR on the basis of a false and concocted story plotted by the complainant, Pragnesh Patel, with whom he was not on good terms.

ii. The complaint on the basis of which FIR in the present case was registered was filed after a lapse of 20 days from the date of alleged incident. It is pointed out that the alleged victim in the said FIR namely, Mahipal Singh, when called by the Investigating Officer to join investigation, had instead sought the quashing of the said notice before the Hon’ble Bombay High Court.

iii. The benefit of the aforesaid amendment, brought by the aforesaid notification dated 19.10.2022, in the provisions of Rule 10 of the CCS (CCA) be extended to the present Respondent. It has been pointed out that by virtue of the said notification the total period of suspension or deemed suspension shall, in any case, cannot exceed 2 years from the date of order of suspension. Therefore, it is contended that the suspension of the Respondent beyond 18.10.2018 was invalid and not sustainable in law. Reliance has been placed on A.R. Antulay v. R.S. Nayak1, to contend that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all.

iv. Reliance has also been placed on Ajay Kumar Choudhary v. Union of India2, to contend that, in case, after the service of memorandum of charges to the delinquent employee/officer, the order of suspension is required to be extended then, the same is to be done after passing a proper reasoned order. It has also been submitted that no purpose will be served in keeping the Respondent under continued suspension as the matter is now seizin of the competent Court of jurisdiction and the learned Tribunal have rightly passed the directions vide the impugned order which are in consonance with para 21 of the Ajay Kumar Choudhary (supra).

v. It is also the case of the Respondent that he was arrested in negation of the guidelines laid down by the Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar And Another3, as that relevant point in time when his made was made the provisions of PC Act were not added by the IO in the said case FIR and as such it was incumbent on the IO to serve a notice under Section 41A of the CrPC as the offences alleged in the FIR were punishable for imprisonment upto 7 years.

vi. The charges levelled against the Respondent will be adjudicated upon by the Court of competent jurisdiction at the stage of trial and as the chargesheet stands filed no prejudice would be caused to the Petitioners in reinstating the Respondent as such a prolonged suspension for more than 7 years in a row tantamount to being punitive in nature.

vii. No prejudice has been caused to the criminal court by the impugned order as both the Court and the Tribunal are acting under different jurisdictions and therefore findings of one will not have any impact on the other.

viii. In view thereof, the impugned order whereby the suspension of the Respondent was set aside and he was directed to be reinstated is to be upheld.

ANALYSIS AND FINDINGS

5. Learned Tribunal while revoking the suspension of sentence of respondent has observed and held as under: –
“7. The basic purpose of suspending of an employee is to ensure that he does not meddle with the investigation of the criminal case or the inquiry in the departmental proceedings. When the employee is arrested by the Police and his detention is for a period exceeding 48 hours, the AA has no alternative, except to place him under suspension. However, the suspension is required to be reviewed from time to time. In case, the criminal trial takes a long time or if the allegation is not so grave, the AA has to strike a balance between the need to extract work from the employee, on the one hand, and paying him huge subsistence allowance, without extracting work, on the other hand. 

8. There are circulars issued in the Administration to the effect that in case the suspension is on the basis of arrest of an employee, normally it shall not be extended beyond two years. The objective is to ensure that the Administration does not suffer. It is particularly so, when the employee concerned is occupying a fairly higher position in the administration.

9. In the instant case, the plea of the applicant that the letter dated 16.10.2016 submitted by the Constable, which in turn constituted the basis for an FIR and initiation of proceedings against him; was obtained under duress, cannot be brushed aside. The reason is that, the Constable was placed under suspension on 10.10.2016 and the complaint came into existence on 16.10.2016. Added to that, it was filed 15 days after the so called incident. There again, the allegation is not that he has seen anyone receiving the bribe; nor he claimed any direct information about that. The nature of allegation made by him is evident from the last two paragraphs of the complaint. They read as under:

“Thereafter, as I was having court date I attended Hon’ble CJM Court at 10 o’clock and thereafter from staff I learnt that by threatening Mahepal Singh and by making him to make phone call from his mobile to someone and through Angadia F Vapi HC Jatin Dhankar went and collected Rs.6,00,000/-.

I am subordinate to Dy. Sp. (Crime) and hence due to fear I could not inform said incident to anyone. As per my belief Dy. Sp. (Crime) Ashish Anan, IIC Jatin Dhankar and Nena Gupta alias Kirti Sharma jointly conspired by hand in glove and threaten Mahepal Singh Rawat and extract Rs.6,00,000/- from him. Therefore, it is my complain against aforesaid person as per law.”

10. The question as to whether the allegation made in those two paragraphs can be proved by the prosecution is a different matter, and it is for the concerned Court to decide. However, a prima facie reading of the same discloses that there was no direct imputation of any illegality against the applicant and it is purely on the guess work. We have made these observations only in the context of examining the decision for extending the suspension for the past four years. An Officer in the cadre of SDPO cannot be continued under suspension for such a long time, on the basis of allegations which are reproduced above.

11. We are of the view that it would be in the interest of the Administration also to reinstate the applicant, so that the public money is not wasted by paying subsistence allowance, without extracting any work. The absence of an Officer of that rank from duty, that too, in a Department like Police, would not be in public interest.

12. We, therefore, allow the O.A. and direct the respondents lo reinstate the applicant in service forthwith. This, however, shall be without prejudice to the departmental and criminal proceedings, that are pending against him. If the Administration is of the view that the continuance of the applicant at the present place is objectionable, it would be open to them to transfer him to any appropriate place. The manner in which the period of suspension shall be treated, would depend upon the outcome of the departmental proceedings. There shall be no order as to costs.”

6. The main grievance on behalf of the Petitioner is that the learned Tribunal has gone into the merits of the case against the Respondent and has returned a finding on facts in the latter’s favour. It was strenuously argued that the learned Tribunal did not appreciate the fact that the case of the Respondent was well within the guidelines laid down for the extension of suspension. It was argued that the continuation of the Respondent in the office would prejudice the trial as well as the enquiry and will also likely to subvert discipline in the office in which he is posted, in case, the suspension is revoked. It was further submitted that the learned Tribunal ought to have appreciated the fact that the extension of suspension qua the Respondent was authorised by the Review Committee after due application of mind and after taking into consideration the relevant guidelines in this regard.

7. During the course of hearing, attention of learned counsel for the Petitioner was drawn towards the impugned orders before the learned Tribunal dated 14.07.2017 and further order of extension dated 13.10.2017. The same are reproduced as under: –

Order dated 14.07.2017

“WHEREAS Shri Ashish Anan, Entry Grade Officer of DANIPS was placed under suspension sub-rule (2) of Rule 10 of the CCS (CCA) Rules, 1965; w.e.f. 19/10/2016 vide this Minsitry’s order dated 02/11/2016 on the ground that he was detained in police custody for a period exceeding forty-eight hours.

AND WHEREAS, Shri Ashish Anan has been charge sheeted vide this Ministry’s Memorandum dated 11/01/2017. Further, vide order dated 10/07/2017, Sanction for Prosecution in respect of Shri Ashish Anan has also been issued by the Ministry of Home Affairs for initiating criminal proceedings against the said officer.

AND WHEREAS, as per provisions of Rule 10 (6) and (7) of CCS (CCA) Rules, 1965, the case of the said officer Shri Ashish Anan, Entry Grade Officer of DANIPS was placed before the Suspension Review Committee (SRC) on 11.07.2017. Taking into consideration the facts and circumstances under which Shri Ashish Anan was placed under suspension. Charges framed against him and all other aspects in their totality, the SRC has recommended that the suspension of Shri Ashish Anan, Entry Grade Officer of DANIPS may be continued for a further period of 90 days w.e.f. 16/07/2017.

NOW THEREFORE, the undersigned, after carefully considering the recommendations of SRC and all other material relevant to the case, orders that the said Shri Ashish Anan, Entry Grade Officer of DANIPS shall continue to be placed under suspension for a further period of 90 days with effect from 16/07/2017, and that his case should be reviewed again within the said period in terms of sub-rules (6) & 7 of Rule 10 of the CCS (CCA) Rules, 1965.”

Order dated 13.10.2017

“WHEREAS Shri Ashish Anan, Entry Grade Officer of DANIPS was placed under suspension sub-rule (2) of Rule 10 of the CCS (CCA) Rules, 1965; w.e.f. 19/10/2016 vide this Minsitry’s order dated 02/11/2016 on the ground that he was detained in police custody for a period exceeding forty-eight hours.

AND WHEREAS Shri Ashish Anan has been charge sheeted vide this Ministry’s Memorandum dated 11/01/2017. Further, the Ministry vide order dated 10/07/2017 has issued sanction of prosecution in respect of Shri Ashish Anan to initiate criminal proceedings against the said officer. Thereafter, vide order dated 27/09/2017, Inquiry Officer and Presenting Officer in the aforesaid matter have been appointed.

AND WHEREAS, as per provisions of Rule 10(6) and (7) of CCS (CCA) Rules, 1965, the case of the said officer Shri Ashish Anan, Entry Grade Officer of DANIPS, was placed before the Suspension Review Committee (SRC). Taking into consideration the facts and circumstances under which Shri Ashish Anan was placed under suspension, charges framed against him and all aspects in their totality, the SRC has recommended that the suspension of Shri Ashish Anan, Entry Grade Officer of DANIPS may be continued for a further period of 180 days w.e.f. 14/10/2017.

NOW, THEREFORE, the undersigned, after carefully considering the recommendations of SRC and all other material relevant to the case, orders that the said Shri Ashish Anan, Entry Grade Officer of DANIPS shall continue to be placed under suspension for a further period of 180 days with effect from 14/10/2017 and that his case should be reviewd again within the said period in terms of sub-rules (6) & (7) of Rule 10 of the CCS (CCA) Rules, 1965.”

8. A perusal of the aforesaid orders would reflect that no specific reasons have been given with regard to extension of suspension order except for the fact that the SRC has recommended the suspension to be continued for further period. When this fact was pointed by this Court to learned counsel for the Petitioner it was submitted that the recommendations of SRC, which was placed before the competent authority, would show the reasons justifying the extension of suspension. It was, however, candidly admitted by learned counsel for the Petitioner that the said record was not placed before the learned Tribunal. It was then, pointed out that the same was being carried by the concerned Officer from the Department to the Court and it was insisted that the Court should examine the same. In these circumstances, this Court deemed it fit to retain the relevant record as marked by learned counsel for the Petitioner for its perusal.

9. This Court has perused the minutes of the meeting of Review Committee which have been marked and placed before us and a perusal of the same would reflect that the same are post the extension order dated 13.10.2017.

(i) The first extension order which has been marked and placed before us is with respect to order dated 24.07.2020 which is supported by Minutes of meeting of Review Committee held on 17.07.2020. A perusal of the Minutes would show that with the approval of the Hon’ble Administrator of DNH & DD vide their letter dated 17.07.2020 had recommended continuation of suspension of Respondent for a further period of 180 days on the following grounds: –

(a) Supplementary chargesheet against him was filed on 13.07.2017 and further investigation is still going on.

(b) Respondent was trying to delay the trial against him and it was also learnt from reliable sources that Respondent alongwith other persons is trying hard to influence the material witnesses, including the complainant of the said case.

(c) Departmental chargesheet under Rule 14 of CCS (CCA) had been issued.

(d) Charges levelled against the Respondent are serious in nature and at this stage revocation of suspension would subvert the process and demoralise the fellow officials.

(e) It may be noted here that the said minutes also records the fact that MHA has filed an appeal (the instant petition) against the order dated 26.11.2019 passed by learned Tribunal before this Court.

(ii) The second minutes of meeting are dated 14.01.2021 which, again, are exactly similar.

(iii) The next minutes of meeting are dated 22.07.2021 which are, again, exactly the same.

(iv) The minutes dated 14.01.2022 are exactly the same, however, apart from the other grounds as mentioned hereinabove, it is recorded that one of the accused, namely, Ms. Kirti Sharma had denied giving her voice sample which is essential piece of evidence to be collected and that this Court, vide its order dated 02.11.2020, had stayed the operation of order dated 26.11.2019 passed by the learned Tribunal.

(v) The next minutes of meeting are dated 15.07.2022 which is also the same except for the fact that the said accused, Ms. Kirti Sharma, has still avoided giving her voice sample.

(vi) The next minutes of meeting are dated 10.01.2023 which has simply stated that the investigation in the case is complete and the FSL report of the voice sample shall be submitted in the Court as and when the same is received from FSL, Chandigarh.

(vii) The next minutes of meeting are dated 10.07.2023 in which it has been simply stated that the comments of DNH & DD Administration were called for whereby they have stated that charges levelled against the Respondent are serious in nature and vacation of suspension at this stage will subvert the process and demoralise the fellow officials.

(viii) The next minutes of meeting are of 03.01.2024 wherein, it has been stated that comments received from the concerned administration stated that the trial is on “Evidence” stage and regular hearing is being done, and again, it has been reiterated that the charges levelled against the Respondent are serious in nature and vacation of suspension at this stage will subvert the process and demoralise the fellow officials.

(ix) Finally, in the minutes dated 02.07.2024 wherein it has been recorded that the UT Administration of DNH & DD vide letter dated 31.05.2024 and reminder dated 14.06.2024 were requested to provide the present status of the criminal proceedings against the Respondent and the recommendations for the continuation of suspension or otherwise. It is recorded in the minutes that no reply has been received from the said Administrator to the Committee. The Committee in absence of such recommendation after considering all the facts relating to the case of the Respondent recommended further extension of suspension with effect from 09.07.2024.

10. In the present case, the following dates are relevant: –
16.10.2016
FIR No. 169/2016 was registered
19.10.2016
Respondent was arrested.
24.10.2016
Respondent was released on bail
02.11.2016
Respondent was put under suspension
11.01.2017
Respondent was chargesheeted on the administrative side
27.05.2017
First chargesheet was filed in the aforesaid FIR wherein the present Respondent was not arrayed as accused as sanction for his prosecution was awaited
10.07.2017
Prosecution sanction granted by the Competent Authority
13.07.2017
Supplementary chargesheet qua the Respondent was filed
14.07.2017
First extension of order of suspension
13.10.2017
Second extension of the suspension order
26.11.2019
Impugned order passed by the learned Tribunal
02.11.2020
Operation of Impugned Order stayed by this Court

From the above, it is pertinent to note that the second order of extension of suspension of Respondent dated 13.10.2017 was passed when the Respondent had already been chargesheeted in the aforesaid FIR and the investigation stood complete. The Respondent had also been chargesheeted in the departmental disciplinary proceedings vide Ministry’s Memorandum dated 11.01.2017. The Hon’ble Supreme Court in Ajay Kumar Choudhary (supra), has observed and held as under: –

“21. 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.”

Following the aforesaid ratio, the Hon’ble Supreme Court in State of Tamil Nadu Represented By Secretary To Government (Home) v. Pramod Kumar, IPS And Anr.4, has observed and held as under: –

“Suspension

24. 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.

25. 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 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.

26. In the minutes of the Review Committee meeting held on 27-6-2016, 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 9-7-2016 vide order dated 6-7-2016.

27. This Court in Ajay Kumar Choudhary v. Union of India [Ajay Kumar Choudhary v. Union of India5, 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.”

11. As already noted, the minutes of the Review Committee pertaining to the extension order of suspension dated 14.07.2017, which was under challenge before the learned Tribunal has not been placed on record. The said order, which has been reproduced hereinabove, does not spell out the need for continuing of the suspension of the Respondent. Apart from the general observation, nothing substantial was placed on record to show how the Respondent, if not continued under suspension, would either hamper the trial or the inquiry or for that matter his suspension is required to be continued in wider public interest. During the course of hearing, learned counsel for the Petitioner had drawn the attention of this Court to an application dated 24.01.2017 filed by the Investigating Officer seeking cancellation of bail of the Respondent wherein, it has been stated that the Complainant in the said FIR had moved a fictitious complaint on 12.01.2017 saying that FIR in the present case was registered under the pressure of senior officers and it was, accordingly, agitated that, in the said application that Constable Pragnesh Ishwar Patel (complainant in the FIR No. 169/2016) had been threatened and witnesses have been tried to be influenced by the Respondent who was out on bail. Similarly, it was alleged that the alleged victim, Mahipal Singh, is also not coming forward to join the investigation despite several notices being served on him, and therefore, it was prayed that the bail granted to the respondent be cancelled.

12. Be that as it may, it is not the case of the Petitioner that the bail granted to the Respondent was cancelled on the aforesaid ground.

13. The learned Tribunal while passing of the impugned order had examined the nature of allegations made in the complaint only for the purposes of prima facie appreciation of facts with regard to the continuance of suspension of the Respondent. The relevant observation made by the learned Tribunal reads thus: –

“10. ……. We have made these observations only in the context of examining the decision for extending the suspension for the past four years. ……”

It was further observed that: –
“12. ……. This, however, shall be without prejudice to the departmental and criminal proceedings, that are pending against him. ……”

In any event, the learned Tribunal has given the option to the Petitioner to transfer him to any other appropriate place other than where he was earlier posted. This option of being posted elsewhere has not been taken into consideration in any of the impugned orders of extension of the suspension challenged before the learned Tribunal. It is not recorded anywhere that this option is not viable and no reasons have been provided for such conclusion.

14. Another peculiar fact which has come to the notice of this Court, after examining the minutes of the meetings of the various review committees as discussed hereinabove, is that despite the order of the learned Tribunal dated 26.11.2019 whereby the suspension order of the Respondent, dated 02.11.2016, was set aside and the Petitioner was directed to reinstate the Respondent, the suspension of the Respondent was continued. The order passed by this Court staying the learned Tribunal’s order is of 02.11.2020, i.e., nearly one year after the order passed by the learned Tribunal. As recorded in the previous paragraphs, it has come on record that even before this Court had stayed the impugned order, the competent authority passed an order on 24.07.2020 on the basis of recommendations of the review committee continuing the suspension of the Respondent. In fact, the perusal of the record submitted by the Petitioner, shows that immediately after the learned Tribunal has passed the impugned order, the competent authority had, vide order dated 30.01.2020, extended the suspension of the Respondent on the basis of the recommendations given by the Review Committee vide its minutes of meeting held on 27.01.2020 (Although, these minutes were not marked by the Petitioner). From the perusal of the said minutes of meeting of the Review Committee held on 27.01.2020, it is noted that Review Committee was conscious of the impugned order passed by learned Tribunal on 26.11.2019. It has further noted that an appeal may be filed by the Petitioner assailing the said order before this Court. Despite noting the said facts, the Review Committee had recommended the further extension of the suspension of the Respondent for a further period of 180 days w.e.f. 01.02.2020. Thus, instead of, complying with the impugned order passed by the learned Tribunal, the competent authority, in fact, passed further orders extending the suspension of the Respondent. In similar circumstances, the Hon’ble Supreme Court in Union of India & Anr. v. Ashok Kumar Aggarwal6, had observed and held as under: –

“45. It is astonishing that in spite of quashing of the suspension order and direction issued by the Tribunal to reinstate the respondent, his suspension was directed to be continued, though for a period of six months, subject to review and further subject to the outcome of the challenge of the Tribunal’s order before the High Court. The High Court affirmed the judgment and order of the Tribunal dismissing the case of the appellants vide impugned judgment and order dated 17-9-2012 [Union of India v. Ashok Kumar Aggarwal7]. Even then the authorities did not consider it proper to revoke the suspension order.

46. Placing reliance upon the earlier judgments in Mulraj v. Murti Raghunathji Maharaj8, Surjit Singh v. Harbans Singh9 , DDA v. Skipper Construction Co. (P) Ltd.10  and Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund11 , this Court in Manohar Lal v. Ugrasen12  held that any order passed by any authority in spite of the knowledge of order of the court, is of no consequence as it remains a nullity and any subsequent action thereof would also be a nullity.

**** **** ****

48. In State of U.P. v. Neeraj Chaubey13  and State of Orissa v. Mamata Mohanty14 , this Court held that in case an order is bad in its inception, it cannot be sanctified at a subsequent stage. In Mamata Mohanty15 , it was held : (SCC pp. 452-53, para 37)

“37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. (Vide Upen Chandra Gogoi v. State of Assam16 , Mangal Prasad Tamoli v. Narvadeshwar Mishra17  and Ritesh Tewari v. State of U.P.18 ”
(emphasis added)

49. In view of the above, the aforesaid order dated 31-7-2012 in our humble opinion is nothing but a nullity being in contravention of the final order of the Tribunal which had attained finality. More so, the issue could not have been reagitated by virtue of the application of the doctrine of res judicata.”

15. Although the order dated 30.01.2020, and subsequent orders thereto, are not under challenge, however, in view of the aforesaid legal position of law, this Court is of the considered view that, after passing of the impugned order, the order dated 30.01.2020 was a nullity and orders of extension of suspension thereto would be non est in the eyes of law, as subsequent review of extension of an order which has already been declared invalid would not be permissible.

16. The aforesaid conduct does, in fact, prima facie, show that the orders extending suspension were being passed mechanically without any due application of mind and the concerned authority was pre-determined to ensure that the Respondent remains under continued suspension without looking at any other alternative or other appropriate option, where he could have been posted.

17. In the light of the aforesaid discussion, this Court is of the considered opinion that no grounds have been made out to interfere with the impugned order dated 26.11.2019 passed by the learned Tribunal and the same is upheld.

18. The present petition is dismissed and disposed of accordingly.

19. The directions given in para 12 of the impugned order dated 26.11.2019 shall be complied with by the Petitioner within a period of two months from today.

20. The official record pertaining to the consideration of the Petitioner’s case for extension of suspension retained with the Court vide order dated 21.11.2024 may be returned to the learned Counsel appearing for the Petitioner, Mr. Ruchir Mishra.

21. Pending applications, if any, also stand disposed of accordingly.

22. Judgment be uploaded on the website of this Court forthwith.

AMIT SHARMA, J.

C. HARI SHANKAR, J.
DECEMBER 11, 2024
sn/nk
1 (1984) 2 SCC 500
2 (2015) 7 SCC 291
3 (2014) 8 SCC 273
4 (2018) 17 SCC 677
5 (2015) 7 SCC 291 : (2015) 2 SCC (L&S) 455
6 (2013) 16 SCC 147
7 WP (C) No. 5247 of 2012, order dated 17-9-2012 (Del)
8 AIR 1967 SC 1386
9 (1995) 6 SCC 50 : AIR 1996 SC 135
10 (1996) 4 SCC 622
11 (2007) 13 SCC 565
12 (2010) 11 SCC 557 : (2010) 4 SCC (Civ) 524
13 (2010) 10 SCC 320 : (2010) 3 SCC (Cri) 1281 : (2010) 2 SCC (L&S) 800
14 (2011) 3 SCC 436 : (2011) 2 SCC (L&S) 83
15 (2011) 3 SCC 436 : (2011) 2 SCC (L&S) 83
16 (1998) 3 SCC 381 : 1998 SCC (L&S) 872
17 (2005) 3 SCC 422 : AIR 2005 SC 1964
18 (2010) 10 SCC 677 : (2010) 4 SCC (Civ) 315
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