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2013 DIGILAW 1260 (PAT)

Manvendra Mohan v. Union of India

2013-10-28

BIRENDRA PRASAD VERMA

body2013
ORDER The petitioner has approached this Court under Article 226 of the Constitution of India, originally assailing the validity and correctness of order dated 20.1.2011 (impugned order not marked as Annexure) passed by the respondent Joint Chief Executive Officer of the Khadi and Village Industries Commission (hereinafter referred to as ‘Commission’), by which the petitioner has been put under suspension with effect from 4.1.2011 in exercise of his powers under Regulation No.8 of the Khadi and Village Industries Commission Employees (Classification, Control and Appeal) Regulations, 2003 ( in short ‘Regulations, 2003’), and further for seeking a direction to the respondents for making payment of full salary and other admissible allowances with effect from 20.1.2011. However, during the pendency of the writ petition, the petitioner filed Interlocutory Application No. 2970 of 2013 seeking amendment in the writ petition, which was allowed by this Court vide order dated 26.4.2013 and thereby the petitioner has been permitted to assail the validity and correctness of order dated 11.8.2011, communicated through Memo dated 24.8.2011 (Annexure-5) issued under the signature of the respondent State Director of the Commission, whereby the period of suspension of the petitioner, besides others, has been extended. 2. The factual matrix involved in the present case can be put in a narrow compass. Admittedly, the petitioner is an employee of the respondent Commission and at the relevant time he was posted as Assistant Development Officer under the Directorate of Agro-based Food Processing Industry of the respondent Commission and was working in the State office, Patna of the respondent Commission. On 29.12.2010, one Nawal Kishore Paswan filed a complaint before the Superintendent of Police of C.B.I. alleging therein that the petitioner has demanded a bribe of Rs. 1,000/- for discharging his official duty for the purpose of grant of loan to him. The genuineness of the allegation contained in the aforesaid complaint is said to have been discreetly verified by one of the Officers of the C.B.I., ACB, Patna whereafter RC No.1 of 2011 dated 3.1.2011 was registered for offence under section 7 of the Prevention of Corruption Act, 1988. A copy of the F.I.R. lodged by the C.B.I. has been brought on the record at Annexute-1 to the writ petition, wherein the petitioner, besides others, has been arrayed as an accused. A copy of the F.I.R. lodged by the C.B.I. has been brought on the record at Annexute-1 to the writ petition, wherein the petitioner, besides others, has been arrayed as an accused. On 4.1.2011 a trap was allegedly laid by the C.B.I. and the petitioner was apprehended by the C.B.I. while allegedly accepting bribe, wherefter the petitioner was remanded to judicial custody on 4.1.2011 itself. The Superintendent of Adarsh Central Jail, Beur, Patna by his letter dated 11.1.2011 informed the respondent commission that the petitioner is in judicial custody since 4.1.2011 whereafter, as stated above, by the impugned order dated 20.1.2011 passed by the respondent Joint Chief Executive Officer of the respondent Commission, the petitioner was put under suspension retrospectively with effect from 4.1.2011 i.e. since the date of his detention in terms of Regulation 8 of the Regulations, 2003 and his Headquarters has been fixed at State Office, Patna of the respondent Commission. 3. It is also not in dispute that the petitioner as also co-accused Ram Bhajan Pawan were granted bail by a Bench of this Court vide order dated 17.3.2011 passed in Cr. Misc. No. 5496 of 2011 and Cr. Misc. No. 7914 of 2011 with certain conditions indicated in that order including a condition that they shall be released on bail pursuant to the aforesaid order only after framing of charges against them. Admittedly, charges were framed against the petitioner by the learned Special Judge, C.B.I., Patna in Special Case No. 1 of 2011 corresponding to R.C. 1/A/2011 on 28.3.2011 for offence under Section 120B of the Indian Penal Code as also under Sections 7 and 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The petitioner denied the charges and claimed to be tried. Unfortunately, despite passage of more than two and half years since the date of framing of charges, the trial of the petitioner has not concluded as yet and is still pending. However, on furnishing bail bonds as per direction of this Court, the petitioner was released on bail on 28.3.2011 itself. 4. Unfortunately, despite passage of more than two and half years since the date of framing of charges, the trial of the petitioner has not concluded as yet and is still pending. However, on furnishing bail bonds as per direction of this Court, the petitioner was released on bail on 28.3.2011 itself. 4. Before adverting to the points raised on behalf of the parties, it would be relevant to mention here that the petitioner, being aggrieved by the impugned order dated 20.1.2011, preferred O.A. No. 244 of 2012 before the Central Administrative Tribunal, Patna Bench, Patna, which was dismissed by an order dated 3.7.2012 on the ground of lack of jurisdiction. It was held by the learned Central Administrative Tribunal that the petitioner is an employee of the respondent Commission, which is an Autonomous Body and the employees of the Commission do not enjoy the status of the employees of the Govt. of India and further the jurisdiction of the tribunal has not been extended with respect to the employees of the respondent Commission by issuing any notification under Section 14(2) of the Administrative Tribunal Act. The aforesaid order of the learned Central Administrative Tribunal has been brought on record at Annexure-6 to the writ petition. 5. Learned counsel appearing on behalf of the petitioner has submitted that though the petitioner was put under suspension by the impugned order dated 20.1.2011, but till date no departmental proceeding has been initiated against him by the respondent Commission. It is contended that the suspension of the petitioner has been passed in terms of Regulation 8(1)( C) and deemed suspension of the petitioner commenced with effect from 4.1.2011 under Regulation 8(2)(a) of Regulations, 2003. According to the learned counsel, the provisions contained in Regulation 8 of Regulations, 2003 are pari materia to the provisions of rule 10 of Central Civil Services (Classification, Control and Appeal) Rules 1965 (in short ‘ CCA Rules, 1965’), and, therefore, the order of suspension made or deemed to have been made under the provisions of Regulations, 2003 was/is also required to be reviewed by the competent authority, as is provided under CCA Rules, 1965. 6. 6. It was highlighted that since the impugned order of suspension passed on 20.1.2011 was not reviewed within a period of 90 days and order of suspension was not extended for further period, thus the impugned order of suspension has died its natural death after 4.4.2011 i.e. on completion of a period of 90 days. It was further pointed out that so far the present case is concerned, the order of suspension was extended for the first time on 11.8.2011 (Annexure-5). It was also pointed out that Regulations, 2003 does not lay down the procedure for constitution of Review Committee or the procedure as to the manner and time within which the order of suspension passed by the competent authority under Regulation 8 has to be reviewed. However, Regulation 30 of Regulations, 2003 provides that if any question arises relating to interpretation of these regulations, then it shall be interpreted in accordance with the provisions of CCA Rules, 1965 and related orders and decisions of the Govt. of India. By placing heavy reliance on the provisions of rule 10 of CCA Rules, 1965, it is submitted that the impugned order of suspension dated 20.1.2011 as also the impugned order communicated through Memo dated 24.8.2011 (Annexure-5) extending the period of suspension of the petitioner besides others are fit to be set aside by this Court and the petitioner is entitled to be reinstated in service with full salary with effect from 20.1.2011 itself. 7. In support of his above contention, learned counsel appearing on behalf of the petitioner has placed reliance on the judgment of a Division Bench of this Court in the case of Md. Badrud Doja Vs. Heavy Engineering Corporation [ 1991 (2) PLJR 330 , particularly paragraph 30] as also a judgment of the Hon’ble Apex Court in the case of Union of India Vs. Dipak Mali [ (2010) 2 SCC 222 . 8. Learned Central Government counsel appearing on behalf of the respondent No.1 and learned counsel appearing on behalf of the respondent Nos. 2 to 7 both have opposed the prayer made on behalf of the petitioner in the present writ petition. According to them, the impugned order of suspension is fully in accordance with the provisions of Regulations, 2003 and, therefore, the writ petitioner is not entitled to get any relief from this Court. 9. Learned counsel appearing on behalf of the respondent Nos. According to them, the impugned order of suspension is fully in accordance with the provisions of Regulations, 2003 and, therefore, the writ petitioner is not entitled to get any relief from this Court. 9. Learned counsel appearing on behalf of the respondent Nos. 2 to 7 by referring to the averments made in the counter affidavit filed on their behalf has submitted that it is true that the respondent Commission has been constituted under Section 4 of the Khadi and Village Industries Commission Act, 1956 (in short ‘Act’) and in terms of Section 27 of the Act the respondent Commission has framed Regulations, 2003, but the provisions of CCA Rules 1965 shall not be applicable with respect to any employee of the respondent Commission including the petitioner. It is pointed out that by virtue of Regulation 3, the provisions of Regulations, 2003 shall govern the case of the petitioner and the impugned order of suspension passed against the petitioner is strictly in accordance with the provisions of Regulation 8(1)(C) read with Regulations 8(2)(a) and 5(a) of the Regulations, 2003. Since there is no ambiguity in the provisions of Regulation 8, therefore, the petitioner cannot take advantage of the provisions of rule 10 of CCA Rules 1965. 10. It was next contended that the petitioner was arrested by the C.B.I. on 4.1.2011 for having accepted a bribe of Rs. 1,000/- from one Nawal Kishore Paswan and charges against him are very serious in nature involving moral turpitude, therefore, the order of suspension was lastly reviewed on 30.11.2011 and it was extended till further order with the same terms and conditions, which are mentioned in the impugned order of suspension dated 20.1.2011. It is reiterated by learned counsel that the order of suspension of the petitioner will be governed by Regulation 8(5)(a) of Regulations, 2003 and not by the provisions of CCA Rules, 1965. In support of his above contention, the learned counsel has placed reliance on the judgments of the Hon’ble Apex Court in the cases of Government of A.P. Vs. V. Sivaraman [ AIR 1990 SC 1157 ], and Allahabad Bank Vs. Deepak Kumar Bhola [ (1997) 4 SCC 1 ]. 11. Learned Central Government counsel appearing on behalf of the respondent No.1, while supporting and adopting the contentions raised on behalf of the respondent Nos. V. Sivaraman [ AIR 1990 SC 1157 ], and Allahabad Bank Vs. Deepak Kumar Bhola [ (1997) 4 SCC 1 ]. 11. Learned Central Government counsel appearing on behalf of the respondent No.1, while supporting and adopting the contentions raised on behalf of the respondent Nos. 2 to 7 has also placed reliance on the judgments of this Court in the cases of Suraj Dayal Sahu Vs. The State of Bihar [ 2003 (1) PLJR 703 ] (DB), Kamta Prasad Pandey Vs. The State of Bihar [ 2005 (3) PLJR 146 ] (DB) and Babulal Mishra Vs. The United Commercial Bank [ 2007 (1) PLJR 72 ] (DB)]. He has further placed reliance on a Judgment of the Hon’ble Apex Court in the case of State of Rajasthan Vs. B.K.Meena [ AIR 1997 SC 13 ]. 12. After having heard the parties and on consideration of the materials available on the record, this Court finds that the petitioner, an employee of the respondent Commission, was put under suspension by the impugned order dated 20.1.2011 with retrospective effect from 4.1.2011 i.e. since the date of his arrest by the C.B.I. in connection with pending criminal case vide R.C. Case No.1 of 2011 under Prevention of Corruption Act, 1988. The aforesaid order of suspension was reviewed and was extended by an order dated 11.8.2011, communicated through Memo dated 24.8.2011 (Annexure-5) and it was lastly reviewed and was extended by order dated 30.11.2011 till further order. This Court also finds that the petitioner was apprehended by the C.B.I. in a trap case with the serious allegation of having accepted a bribe of Rs. 1,000/- for discharging his official duty for grant of loan to one Nawal Kishore Paswan. The allegation either of demand or acceptance of bribe is serious in nature, which certainly involves moral turpitude. The provisions of Regulations, 2003 are applicable to the petitioner, being an employee of the respondent Commission. Therefore, the impugned order of suspension dated 20.1.2011 was passed against him in terms of Regulation 8(1) (C ) and he was deemed to be under suspension with effect from 4.1.2011 in terms of Regulation 8(2)(a) of Regulations, 2003, as he was taken into custody by the C.B.I. on 4.1.2011. The order of suspension was reviewed and was extended till further order by an order dated 30.11.2011 in terms of Regulation 8(5)(a) of Regulations, 2003. The order of suspension was reviewed and was extended till further order by an order dated 30.11.2011 in terms of Regulation 8(5)(a) of Regulations, 2003. Since Regulations, 2003 having been framed by the respondent Commission with the previous sanction of the Central Government in exercise of its powers under Section 27 of the Act and there is no ambiguity in the provisions of Regulations, 2003, therefore, the petitioner cannot be permitted to take benefit of the provisions of CCA Rules, 1965 in terms of regulation 30 of Regulations, 2003. The ratio laid down by the Hon’ble Apex Court in the case of Union of India Vs. Dipak Mali (supra) shall not salvage the case of the petitioner, as it is based on the provisions of CCA Rules, 1965 and does not deal with the provisions of Regulations, 2003. 13. In the aforesaid legal and factual background, the impugned order of suspension dated 20.1.2011 as also the impugned order dated 11.8.2011 communicated through Memo dated 24.8. 2011 (Annexure-5) or the subsequent order dated 30.11.2011 extending the period of suspension of the petitioner till further order cannot be legally faulted in view of pendency of criminal trial against the petitioner in Special Case No.1 of 2011 corresponding to R.C. 1/A/2011 in the court of learned Special Judge, C.B.I., Patna. Therefore, the impugned order of suspension cannot be set aside at this stage. 14. However, this Court finds that charges against the petitioner were framed on 28.3.2011 by the learned Special Judge, C.B.I., Patna. A copy of the aforesaid order dated 28.3.2011 has been brought on record at Annexure-2 to the writ petition. Since the date of framing of charge, more than two and half years have already elapsed. The respondents have not stated anywhere as to why the criminal trial against the petitioner is not being concluded despite framing of charges against him as far back as on 28.3.2011. The respondent Commission has only pleaded that since criminal trial against the petitioner is pending, therefore, the order of suspension passed against the petitioner cannot be revoked. 15. Speedy trial is embodied under Article 21 of the constitution, as has been held by the Hon’ble Apex Court in the case of Kadra Pehadiya Vs. The respondent Commission has only pleaded that since criminal trial against the petitioner is pending, therefore, the order of suspension passed against the petitioner cannot be revoked. 15. Speedy trial is embodied under Article 21 of the constitution, as has been held by the Hon’ble Apex Court in the case of Kadra Pehadiya Vs. State of Bihar [ AIR 1981 SC 939 ], which has been reinforced by a Constitution Bench of the Hon’ble Apex Court in the case of Abdul Rahman Antulay Vs. R.S. Naik [ AIR 1992 SC 1701 = (1992) I SCC 225]. If the petitioner has committed some crime, then he must be brought to justice, but if he has not committed any crime and is innocent, as is being claimed by him, then a sword of pending criminal trial cannot be allowed to remain hanging on his head for an unreasonably long period and he cannot be allowed to remain under suspension for a long period on the ground of pendency of aforesaid criminal case. Certainly, if the petitioner is acquitted from the criminal charges, then he is entitled to be reinstated in service of the respondent Commission. It would be in the interest of both the parties that pending criminal trial is taken to its logical conclusion. A Division Bench of our own High Court in the case of Md. Badrud Doja Vs. Heavy Engineering Corporation (supra) has rightly held that order of suspension should not continue beyond a reasonable period of time, even if such power does exist. Keeping a person under suspension for an un-reasonably long period has been held to be violative of Articles 14 and 16 of the Constitution of India. 16. For the reasons recorded above, this Court is inclined to issue a direction to the learned Special Judge, C.B.I., Patna, to expedite the trial of the petitioner in connection with Special Case No.1 of 2011/R.C. 1/A/2011, as the trial of the petitioner is already pending for more than two and half years since framing of charges on 28.3.2011, and all endeavours should be made to conclude the trial of the petitioner at an earliest but not beyond the period of six months from the date of receipt/production of a copy of this order. 17. 17. However, if the trial of the petitioner is not concluded within a maximum period of six months from the date of receipt/production of a copy of this order, without there being any fault on the part of the petitioner, then respondent Nos. 2 to 7 shall be obliged to revoke the order of suspension passed against the petitioner and the petitioner shall be entitled to be reinstated in service of the respondent Commission with full salary from that date. 18. In the result, the writ petitions stands finally disposed of with the observations and directions made above. However, the parties are left to bear their own costs. ?