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2022 DIGILAW 174 (MEG)

Union of India v. M. Balakrishna Reddy

2022-07-05

SANJIB BANERJEE, W.DIENGDOH

body2022
JUDGMENT Sanjib Banerjee, CJ. - This is a case where an officer of the State appears to have toyed with the legal system to remain in service and thwart attempts at suspending him or initiating disciplinary action against him after obtaining an unreasoned order of suspension of a sentence of imprisonment that was endorsed in appeal. 2. The present writ petition is directed against an order of the Central Administrative Tribunal, Guwahati Bench by which the respondent's petition challenging a show-cause notice dated May 3, 2017 by the Central Government has been allowed on the ground that in terms of the All India Services (Discipline and Appeal) Rules, 1969, the Central Government had no authority to issue the notice. 3. Notwithstanding the limited challenge by the Union in the present proceedings, the larger picture cannot be lost sight of. 4. According to a list of dates furnished by the respondent employee, such respondent joined the Indian Forest Service in May, 1994 and was taken into the Assam and Meghalaya joint cadre in 1995. In respect of the Civil Services Examination of 1996, the respondent herein was found guilty of having committed offences, inter alia, under Sections 468 and 471 of the Indian Penal Code, 1860 by the court of Special Judicial Magistrate, CBI and Economic Offences, Indore. In short, he was found guilty of having adopted unfair means in course of the relevant Civil Services Examination. An appeal preferred by the respondent against the judgment of conviction and consequent order was dismissed by the Special Judge, CBI, Indore on July 8, 2013. The respondent preferred a criminal revision petition before the Madhya Pradesh High Court and, by an order of October 8, 2013 that does not go into the grounds of conviction or the fallibility thereof, the sentence was suspended. The respondent had suffered some detention during the interregnum. 5. It is of significance that the respondent may not have taken appropriate steps to prosecute Criminal Revision No.966 of 2013 pending for nearly nine years in the Madhya Pradesh High Court. The respondent has taken advantage of the pendency of such proceedings, not only to play the State Government in Meghalaya against the Central Government, but also to override orders of suspension and attempts at initiating disciplinary proceedings against him for his proven criminal conduct. 6. The respondent has taken advantage of the pendency of such proceedings, not only to play the State Government in Meghalaya against the Central Government, but also to override orders of suspension and attempts at initiating disciplinary proceedings against him for his proven criminal conduct. 6. An order of suspension was issued against the respondent in 2013 which was challenged before the Guwahati Bench of CAT. The petition resulted in the impugned order of suspension imposed on December 9, 2013 to be found to be legally unsustainable. At the same time, the Tribunal issued certain directions under paragraph 39 of its judgment of November 18, 2014. 7. The State of Meghalaya challenged the order of November 18, 2014 before this Court. In course of the judgment of this Court rendered on the matter on November 5, 2015, this Court noticed the legal issues that arose at paragraph 6 of the judgment: '6. After hearing the submissions advanced by the learned counsel for the petitioners Mr. S. Sen Gupta, as well as senior counsel for the respondent Mr. HS Thangkhiew, we find that three issues are involved to be answered in this writ petition. Firstly, whether suspension order dated 9.12.2013 at Annexure 6 of the Counter Affidavit is in accordance with law? Secondly, whether suspension is an alteration of service? And thirdly, whether Government can pass a selective suspension order against its employees?' 8. Upon referring to the relevant notice, the said Rules of 1969 and the general law pertaining to the suspension of a government employee, this Court read Rule 3(8)(a) of the said Rules of 1969 to imply that the maximum period of suspension may only be of 180 days. It may be noticed in this context that Rule 3(8)(a) of the said Rules stipulates that an order of suspension made under such rule which has not been extended shall be valid for a period not exceeding 90 days and an order of suspension which has been extended shall remain valid for a further period not exceeding 180 days, at a time, unless revoked earlier. Thus, it is evident that an order of suspension may be continued even after the expiry of 180 days upon it being expressly extended. Thus, it is evident that an order of suspension may be continued even after the expiry of 180 days upon it being expressly extended. Even though there are high authorities that instruct that an order of suspension should not continue for an indefinite period because the suspended employee gets a substantial part of his salary while the employer gets no work done in return, when it comes to serious cases of graft or criminal conduct pertaining to moral turpitude, for reasons which are to be indicated in the extension of the order of suspension, the period of suspension may be continued further. 9. In the present case, it must be observed that only by the thin thread of the order of the Madhya Pradesh High Court that suspends the sentence that the respondent suffered in the criminal proceedings and which was upheld in the appeal by the Special Court, the respondent clings on to his position. In the meantime, as the correspondence appended to the petition reveals, the State and the Union have been bickering over who has the authority to initiate disciplinary proceedings against the respondent herein. It may also be observed in this context that the State took a conscious decision not to challenge this Court's order of November 5, 2015 on its appreciation that there was no apparent ground to question the propriety thereof. The State also took no further steps to suspend the respondent prospectively. 10. As a consequence, here is a civil servant who was convicted by an appropriate criminal court in the year 2011 for commission of offences under the Penal Code in the year 1996 - offences as grave as indulging in corrupt practice in course of a Civil Services Examination - and yet he continues to hold a position of authority as an Additional Principal Chief Conservator of Forests in the State. 11. It is possible that upon the criminal revision petition pending before the Madhya Pradesh High Court being heard on merits, the respondent may be successful in the appellate order impugned therein and, as a consequence, his order of conviction being annulled. It is equally possible that in course of the criminal revision being allowed in favour of the respondent, he may be found not to have been involved in the commission of the offence. It is equally possible that in course of the criminal revision being allowed in favour of the respondent, he may be found not to have been involved in the commission of the offence. But till such time that the respondent is honourably acquitted by an appropriate forum in accordance with law, the order of conviction and the appellate order upholding the same cannot be wished away. 12. There is no doubt that the order of suspension issued in December, 2013 was improper inasmuch as it was made with retrospective effect. Orders of suspension and dismissal or removal from service cannot, ordinarily, be made with retrospective effect. However, merely because the order of suspension had been made with retrospective effect and, as a consequence, it was quashed, it did not imply that a further order of suspension could not be issued or that disciplinary proceedings against the respondent could not have been initiated. Several years have passed in the interregnum with a few letters exchanged between the State Government and the Central Government as to which authority would be appropriate under Rule 7 of the said Rules of 1969. In one of the letters issued by the State Government, it required the Union to take up the role as the disciplinary authority. However, in a later letter the State Government called upon the Union to revoke its notice dated May 3, 2017. 13. It is such letter of May 3, 2017 that was carried by the respondent to the Tribunal. The principal ground for assailing the notice was that the Union or the Central Government did not have the authority under the said Rules of 1969 to issue the same. Quite appropriately, the Tribunal found that the Union did not have the authority to institute proceedings or impose any penalty under Rule 7 of the said Rules of 1969. 14. It may be noticed in this context that Rule 7(1)(b) of the said Rules of 1969 provides as follows: 7. Authority to institute proceedings and to impost penalty. - (1) Where a member of the Service has committed any act or omission which renders him liable to any penalty specified in Rule 6, - (a) ... 14. It may be noticed in this context that Rule 7(1)(b) of the said Rules of 1969 provides as follows: 7. Authority to institute proceedings and to impost penalty. - (1) Where a member of the Service has committed any act or omission which renders him liable to any penalty specified in Rule 6, - (a) ... (b) If such act or omission was committed after his appointment to the Service, - (i) while he was serving in connection with the affairs of a State, or is deputed for service under any company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Government of a State, or in a local authority set up by an Act of the Legislature of that State, the Government of that State; ....' 15. It is an undeniable position in the present case that the respondent was serving in the Assam and Meghalaya joint cadre in the year 1996 since he was allocated to such joint cadre on or about August 31, 1995 as per the respondent's admission. In such a scenario, since the respondent is now posted in Meghalaya, it is the State of Meghalaya which can exercise authority under Rule 7 of the said Rules of 1969 and initiate disciplinary proceedings against the respondent and even impose an appropriate penalty, subject to the concurrence of the Union in accordance with Rule 7(2) of the said Rules. 16. Accordingly, the judgment and order impugned dated January 2, 2020 passed by the Tribunal in this case calls for no interference and the same is upheld. However, since the larger picture cannot be missed out by a High Court, it is necessary that the State of Meghalaya be directed to take appropriate steps to initiate disciplinary proceedings against the respondent under Rule 7 of the said Rules of 1969 within a month from date. 17. It is made clear that nothing in this judgment will prejudice the respondent herein in any proposed disciplinary proceedings or in the adjudication thereof in accordance with law. 18. WP (C) No.70 of 2022 and MC (WPC) No.32 of 2022 are disposed of. 19. There will be no order as to costs. 20. Let a copy of this judgment and order be forwarded to learned Advocate-General for the State of Meghalaya in course of this week.