Central Administrative Tribunal
Principal Bench, New Delhi.
Reserved on : 09.04.2013.
Pronounced on :17.04.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Dr. Arun Kumar,
R/o P-25/5, DRDO Residential
Complex, Lucknow Road,
Timar Pur, Delhi-54. . Applicant
(through Sh. M.K. Bhardwaj, Advocate)
1. Union of India through
Secretary, Deptt. Of Defence
R&D and DG, DRDO, DRDO Bhawan,
Rajaji Bhawan, New Delhi.
2. Sh. Sameer Kumar Khare,
Chief Vigilance Officer,
Ministry of Defence,
New Delhi. . Respondents
(through Sh. Rajesh Katyal, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A)
This is a second round of litigation. Earlier this applicant had filed OA-3293/2012, which was disposed of by this Tribunals order dated 24.11.2012. Operative part of the order reads as follows:-
24. Considering the aforesaid two sets of infirmities in the decision making process in the matter, we are of the considered views that the impugned communications dated 23.08.2012 and 05.09.2012 cannot be sustained and, therefore, those needs to be quashed. We accordingly set aside the same. We further provide that it would be open for the RM to consider the report of the Expert Committee first on the allegations against the applicant in a dispassionate manner, without getting influenced by the advice of the CVC or prejudiced by the views already expressed in the notes/files when the matter was subjudice before this Tribunal and take a considered view to accept or reject the recommendations of the Expert Committee. Obviously, if he does not accept the recommendations of the Expert Committee, appropriate decision should be taken at his level as per law, without being influenced by our observations in the order.
25. In view of the above, the Original Application stands disposed of in terms of our orders and observations leaving the parties to bear their own costs.
Now the applicant has sought the following relief:-
(i) To Quash and set aside the impugned suspension order dated 30.11.2012 being illegal and arbitrary and direct the respondents to release all retirement dues of the applicant without any delay.
To direct the respondents to issue relevant order for joining of applicant as Chairman CEPTAM as approved by ACC.
To allow the OA with costs.
Any other order or further order as the Honble Tribunal thinks fit in the facts and circumstances of this case.
2. Facts of this case have been gone into in great detail in OA-3293/2012 filed earlier by the applicant. We propose to only briefly mention them and then concentrate on the developments in the case subsequent to this Tribunals order dated 24.11.2012. We also do not propose to adjudicate again on the issues which have been covered in the earlier judgment of this Tribunal.
3. Briefly the facts of the case are that the applicant was working at the level of Outstanding Scientist in DRDO in the pay scale of Rs. 67000-79000. According to him, the Appointments Committee of the Cabinet had also approved his appointment as Chairman, CEPTAM in DRDO for a period of three years from the date of joining. On the complaint of one Dr. Neelam Bhalla, Scientist-F of DRDO, submitted to various authorities, such as, CVC, Honble Raksha Mantri (RM), Cabinet Secretary, Womens Commission in Delhi, Secretary, DRDO and Vigilance Department of MOD, it was decided by RM to constitute an Expert Committee to enquire into the issue and ascertain whether there is any truth in the allegations made by Dr. Neelam Bhalla. The main allegation was that the applicant had committed irregularities and maneuvered the recruitment of Group-D Scientist in DRDO in such a way that he was able to secure appointment for his daughter Swati Srivastava. In the earlier OA, it was brought to the notice of the Tribunal that the Chief Vigilance Officer of MOD had sought CVC advice on the action to be taken on the complaint without taking orders of RM. CVC had advised initiation of major penalty against the applicant. In that OA, the applicant had pleaded before the Tribunal that CVCs advice is bound to influence the decision of the DA i.e. Honble RM, who was supposed to first take a decision on whether to proceed against the applicant or not and thereafter seek CVC advice. It was also pleaded before the Tribunal that the Expert Committee constituted by RM had exonerated the applicant and the recommendations of the Expert Committee had been accepted by the RM. Thus, the matter should be treated as closed. The Tribunal after hearing the pleadings of both sides had given the above mentioned judgment in the said case by which it was directed that it would be open for Honble RM to consider the report of the Expert Committee first on the allegations against the applicant in a dispassionate manner without getting influenced by the advice of CVC or prejudiced by the views already expressed in the notings in the file and take a considered view whether to accept or reject the recommendations of Expert Committee. On 30.11.2012, the respondents have passed the impugned order by which the applicant has been placed under suspension with immediate effect. Now, the applicant has assailed the suspension order before us through this O.A.
4. We propose to deal with each of the grounds on which the applicant has challenged the suspension order:-
(i) The first ground taken by him is that the impugned suspension order has been issued in defiance of the orders of this Tribunal dated 24.11.2012. According to the applicant, the Tribunal had specifically directed that Honble RM would take decision without being influenced by the advice of CVC or the notings made during the pendency of O.A. However, the respondent No.2 i.e. Chief Vigilance Officer, Ministry of Defence has himself taken the file to Honble RM for passing the suspension order on the basis of same complaint and already quashed communications dated 23.08.2012 and 05.09.2012. Further, the applicant has alleged that the suspension order is biased because the respondents were determined to humiliate the applicant by all means. They have done so to satisfy false ego of respondent No.2 and complainant Dr. Neelam Bhalla.
4.1 In this connection, we have perused the original record of the department. In File No. 13011/6/D(Vig.II)/10 (Part File) on page-32/N, Honble RM has passed the following order:-
As advised by the Honble CAT P.B. New Delhi, I have gone through the report of DRDO expert committee and I am of the view that the report of the expert committee is full of contradictions as they have not considered the issues before them with proper application of mind. The issues are as under:-
(i) Ms. Swati Srivastava, daughter of Dr. Arun Kumar, the then Additional Director, RAC, DRDO, had applied for the post of Scientist B in DRDO in 2004. Although dealing with the instant recruitment process of Scientist B in his official capacity, Dr. Arun Kumar did not inform the office in writing and did not recluse himself from the recruitment process.
Dr. Arun Kumar, manipulated the selection process to include the subject Environmental Biology under the advertised subject Biotechnology, without issuing corrigendum or public notification. This was done solely in spite of the fact that there were 300 odd candidates with the requisite qualification in Biotechnology and was done solely to make Ms Swati Srivastava eligible for the post since she was having qualification Environmental Biotechnology.
Dr. Arun Kumar unjustifiably changed the criteria for shortlisting of applicants for the interview, such as introducing preference for NET qualified/ cut off marks for university toppers etc. with the sole objective of extending undue benefit to his daughter, who would not have qualified for the interview if the existing criteria were followed and not manipulated in her favour.
2. From the above, I am of the view that the report of the expert committee could not give satisfactory and convincing reasons on the above mentioned issues, and therefore, the report is not accepted.
3. Hence, I find that it is a fit case where a departmental inquiry should be instituted as per applicable rules and guidelines. I hereby order that Dr. Arun Kumar may be placed under suspension with immediate effect before the action on disciplinary proceeding is processed. Since the first stage advice is required to be taken, let the matter be referred to CVC in accordance with the applicable rules.
We find from the aforesaid order that there is no reference to the advice of CVC or the communications dated 23.08.2012 and 05.09.2012. The order passed by Honble RM is well reasoned. He has ruled that the report of the Expert Committee was full of contradictions as they had not considered the issues before them with proper application of mind. Ms. Swati Srivastava D/o Dr. Arun Kumar (applicant and the then Additional Director, RAC, DRDO) had applied for the post of Scientist-B in DRDO in 2004. The applicant although dealing with this recruitment did not inform the office that his daughter was a candidate in the said selection process and did not recluse himself from the recruitment process. Honble RMs order further says that the applicant had manipulated the selection process to include the subject Environmental Biology with the advertised subject Biotechnology. This was done without issuing a corrigendum or public notification with the sole purpose of making Ms. Swati Srivastava eligible for the post since she was having qualification of Environmental Biotechnology. Further, the order says that the applicant unjustifiably changed the criteria for short listing the candidates for interview and introduced preference for NET qualified/cut off marks for university toppers etc. with the sole objective of extending undue benefit to his daughter, who would not have qualified for the interview if the unchanged criteria had been followed. Rejecting the report of the Expert Committee, Honble RM has directed that this was a fit case where a departmental inquiry should be instituted as per applicable rules. He has also directed that Dr. Arun Kumar be placed under suspension with immediate effect. Further, he has ordered that CVCs first stage advice may be taken in accordance with applicable rules.
4.2 In our considered opinion, the order passed by Honble RM is well reasoned and logical based on the material pertaining to the case. He has not been influenced by the advice of CVC as alleged by the applicant nor it appears that it has been done to satisfy false ego of respondent No.2 and complainant Dr. Neelam Bhalla. There is also nothing on record to show that Respondent No.2 has taken the file to Honble RM himself. Honble RMs order is of a date subsequent to the date on which Respondent No.2 saw the file. Thereafter, the file has been seen by Additional Secretary and Defence Secretary before being put upto Honble RM.
4.3 The second ground taken by the applicant is that respondent No.2 had no legal right to keep all the files containing the details of decision of Honble RM after receipt of High Power Committee report with him and after disposal of the OA by this Tribunal. As per rules and terms of this Tribunal, the decision on the Expert Committee report was required to be taken only by Honble RM on the filed to be submitted by Secretary, DRDO and not by MOD (Vigilance).
From the records produced by the department, we notice that the decision by Honble RM has been taken in the file of MOD(Vigilance). Respondent No.2, the Chief Vigilance Officer has made the following noting while submitting the case to Honble RM Honble RM may like to decide future course of action as mentioned in Para(4) of Note 28 above. The relevant Para-4 of the Note at page 28 is as follows:-
In view of the position explained above, the file is re-submitted to Honble R.M. for taking a decision on the findings of the DRDO committee in the matter as under:-
(a) To accept the recommendations of the Expert Committee/DRDO and close the case, in which case no action is required to be taken against Dr. Arun Kumar/shri A.K. Bansal.
(b) To reject the report on the ground that the report was contradictory and has not covered major allegations as mentioned in the Table A (placed opposite) and to proceed ahead with the departmental enquiry based on the examination of the case by D (Vigilance). However, in this case Shri Arun Kumar will have to be placed under suspension [Under Rule 10(1)(a) of the CCS (CCA) Rules, 1965-F/Y] with immediate effect as he is retiring on 30.11.2012 to avoid the case being time barred as per Rule 9(2)(b)(iii) of the CCS (Pension) Rules, 1972 (F/X). It may be stated that as per Rule No.9(6)(a) of the CCS Pension Rules, 1972(F/Z), the departmental proceedings shall be deemed to be instituted from the date the Government Servant is placed under suspension.
We have also seen the order of this Tribunal dated 24.11.2012 and we find that there is no mention in that order that Respondent No.2 was not required to keep the file with him or that Honble RM has to take decision on the report of the Expert Committee in the DRDO file and not on the file of MOD (Vigilance). Thus, the contention of the applicant in this regard is without merit.
4.4 The next issue raised by the applicant is that even the relevant rules and instructions have been violated while passing the impugned order. According to CCS(CCA) Rules, suspension should not be made in a routine and casual manner. It can be issued only where continuation of an officer in service is either likely to prejudice investigation or subvert discipline or after holding preliminary inquiry a prima facie case is made out, which is likely to lead to major penalty. According to the applicant, none o these conditions are applicable and the applicant himself was to leave the office on account of attaining the age of superannuation.
The respondents in their reply have stated that the DA has taken the decision after careful perusal of the judgment of the Tribunal as well as the material on record. The charges against the applicant were grave and he had failed to maintain absolute integrity while discharging his duty. The respondents have also denied the allegation of mala fide and have prayed for these to be ignored by the Tribunal.
5. We have perused the order of Honble RM by which the suspension has been ordered. It clearly brings out the grave charge of nepotism against the applicant, namely, that he had manipulated the recruitment process of Scientist-B of DRDO to favour his daughter. We do not feel that this has been done in a routine and casual manner. Since it is a grave charge which could lead to a major penalty, the respondents were justified in placing the applicant under suspension.
6. However, we do find that there is some merit in the contention of the applicant that since he was already retiring on 30.11.2012, the date on which Honble RM ordered his suspension, the suspension was not warranted inasmuch as the applicant would have otherwise left the office on account of attaining the age of superannuation. It is settled legal position that suspension is not a punishment and it is resorted to keep the delinquent officer away from office so that he does not get chance to tamper with the evidence so that the inquiry against him could proceed unhindered. In the instant case, the suspension order was issued on the last day of the service of the applicant on which day he would have, in any case, left the office and would not have been able to either tamper with the evidence or interfere with the inquiry. In our opinion, this appears to have been done in haste to meet the requirement of Rule-9(2)(d)(ii) of CCS (Pension) Rules, which prescribe that no proceedings shall be instituted in respect of any event which took place more than 4 years before such institution. The charge against the applicant pertains to recruitment that had taken place in the year 2004. The inquiry under CCS(Pension) Rules could not have been instituted against the applicant after 30.11.2012 since it pertained to an event which took place more than 4 years before his date of retirement. The respondents were, therefore, keen to institute the proceedings during the service time of the applicant. For doing so, either a charge sheet was to be served or the employee had to be placed under suspension. Only then the proceedings can be deemed to have been instituted. On 30.11.2012, when the suspension was order by Honble RM, the issue of charge sheet was not possible since before doing so CVCs first stage advice was to be taken. Therefore, the respondents resorted to issuing the suspension order.
7. While this may be so, we have to examine whether the suspension order gets vitiated for this reason and whether suspension order issued on the last date of retirement is unsustainable in law. It is an admitted fact that the order of suspension was served on the applicant at 2.30 P.M. on the date of his retirement. The applicant has contended that the relationship of the employer and employee had come to an end on that day and as such the suspension order was not valid. In this regard, the applicant has placed reliance on the judgment of Honble High court of Tamil Nadu in the case of G. Subramanian Vs. Government of Tamil Nadu, 1988(2) MLJ 418 in which the Writ Petition was allowed and the order of dismissal passed against the applicant was quashed. In that case the applicant was due to retire on afternoon of 30.06.1977 on attaining the age of superannuation. That afternoon, he was informed by a telephonic message that Government of Tamil Nadu was placing him under suspension and not permitting him to retire. Thereafter, Government of Tamil Nadu issued an order on that very date stating that criminal offence was under investigation against the petitioner and, therefore, in public interest he was placed under suspension with immediate effect. He was also not permitted to retire. Subsequently, an inquiry was conducted in which two charges against the petitioner were proved. He was issued a notice to show cause why he should not be removed from service. At that stage, the petitioner had approached the Honble High Court of Tamil Nadu.
8. While going through the facts of the case, we find that it is not applicable in the instant case. The reason is that in the case quoted above, the petitioner was not allowed to retire and was subsequently given notice for removal from service. The Honble High Court of Tamil Nadu had ruled that after the date of retirement of the petitioner, proceedings against him could have continued only for determining whether pension or a part thereof could be withdrawn from the petitioner. They, therefore, found that the show cause notice issued to the petitioner for removal from service was unsustainable in law. However, in the instant case, while the suspension order has been issued under CCS(CCA) Rules, the petitioner has been allowed to retire and now the proceedings are continuing under the CCS(Pension) Rules. This is obvious from the Annexure A-1 of the rejoinder, which is an order from the applicants Ministry transferring him to Pension Establishment w.e.f. 01.12.2012 (F/N).
9. The applicant has also relied upon the ruling of Honble Madras High Court in the case of P. Pandaram Pillai Vs. State of Tamil Nadu & Ors., (WP(MD) No. 10032/2009) dated 27.06.2011 in which it was observed as follows:-
7.."5.(i) the Disciplinary authority should not resort to last minute suspension of the Government servants (i.e) on the date of their retirement. A decision either to allow Government servant to retire from service or suspend him from service should be taken well in advance (i.e.) three months prior to the date of retirement on superannuation and orders issued in the matter and such a decision should not be taken on the date of retirement, if final orders could not be issued in a pending disciplinary case against a Government servant retiring from service due to administrative grounds
"13.Time and again, the Supreme Court and this Court has deprecated the initiation of Disciplinary Proceedings against an employee of the fag end of his retirement and keeping the matter pending for a long time by keeping the matter pending for a long time by keeping the employee under suspension. Further when the petitioner had pleaded that there was official prejudice and enmity between him and the third respondent in the matter of use and maintenance of the official vehicle, the Tribunal has failed to consider this aspect of the case in proper perspective while dismissing the Original Applications. The Disciplinary Proceedings were initiated against the petitioner when there was hardly fifteen days left for his retirement. More over, when his date of retirement is on 11.3.1987 and the order of suspension was passed on 25.3.1987 by invoking G.O.No.173. Therefore, when once the petitioner has reached the age of superannuation on 11.3.1987, the placing the petitioner under suspension after his date of superannuation is without authority and that when the relationship of master-servant ceased to exist, no Disciplinary Proceedings could be initiated against the petitioner. On this ground also, the impugned order of the Tribunal is liable to be set aside.
10. Honble High Court has observed that last minute suspension of a Government servant should not be resorted and a decision either to allow the Government servant to retire or suspend him from service should be taken well in advance. The Honble High Court has also quoted the observations of Honble Supreme Court deprecating the initiation of disciplinary proceedings of an employee at the fag end of his retirement and keeping the matter pending for a long time.
11. Further, the applicant has relied on the Honble Madras High Court judgment in Writ Petition No. 14786/2011 in the case of V. Meenakshi Vs. The Director of Social Welfare dated 17.11.2011 in which the suspension order was issued on the last date of retirement of the petitioner. The Honble High Court observed as follows:-
11. Normally, this Court would not interfere with the disciplinary action initiated by the department. But in an extraordinary case, like the case on hand, where the petitioner was proceeded with an action on the last day of her service, based on the report in letter No. 031783/V2/1999, dated 9.5.1999, which was issued twelve years back, this Court has no option, but to interfere. The reason given by the respondent for taking such action on the last day that the report dated 9.5.1999 was received by the office of the respondent only on 31.5.2011 is not acceptable. As stated above, the respondent ought to have pursued with the Director of Government Examinations on his request made in 1998 to verify the genuineness of the certificate. For the above said reasons, the impugned orders are liable to be quashed and accordingly those orders are quashed.
12. The respondents have, on the other hand, stated that in the instant case the applicant himself filed OA before the Tribunal in which stay order had been granted putting the proceedings on hold. The OA was disposed of on 24.11.2012 i.e. just a week before the retirement of the applicant. Thus, the time available was very short and, therefore, the suspension order could be served only on the last day of the service of the applicant. However, according to the respondents, this does not vitiate the suspension order or the proceedings against the applicant in any manner. They have placed reliance on the judgment of Honble Supreme Court in the case of U.P. State Sugar Corpn. Ltd. & Ors. Vs. Kamal Swaroop Tondon, AIR 2008 SC 1235 in which it was held as follows:-
In the instant case the show cause notice was issued to the respondent employee on January 13,2000 when he was very much in service. The respondent submitted his explanation on January 15,2000 which was not found to be satisfactory. A regular show cause notice was, therefore, issued by the Corporation on January 31,2000 and was served upon the respondent employee on the same day. The notice was also sent by registered post which was received by the employee on February 11,2000. But it is clear from the documents that show cause notice was issued and replied. A regular show cause as to departmental inquiry was also served upon the respondent employee on the last day of his service which was January 31,2000. Therefore, it could not be said that the proceedings had been initiated against the respondent employee after he retired from service.
The respondents argued that the Apex Court had clearly ruled that when an employee is served with the suspension order on the last day of his retirement, it cannot be said that the proceedings against him have initiated after the employee had retired from service. In view of this, the argument of the applicant that the employer-employee relationship had already ended is not sustainable.
13. We have considered the arguments of both sides and find that in the cases cited by the applicant there was unexplained delay in initiating action against the petitioners which were kept pending till the fag end of his retirement. In one case, the petitioner was not even allowed to retire and was given show cause notice for removal from service. However, in the instant case, the facts are different as the preliminary inquiry had been instituted against the applicant quite some time back through an Expert Committee. The findings of the Expert Committee were under examination. In between the applicant approached the Tribunal and obtained the stay order, which was vacated a week before his retirement. Thus, the respondents were left with very little time to initiate action against the applicant. Moreover, the charge memorandum clearly mentions the rules, namely, rule-9(2)(b)(ii) of CCS(Pension) Rules and Rule-14 of CCS (CCA) Rules, 1965. Thus, after retirement of the applicant and his passing on to the Pension Establishment w.e.f. 01.11.2012(F/N), the proceedings against the applicant can only be continued under the Pension Rules for deciding whether full or any part of his pension may be withheld. We do not find any infirmity in this order.
14. The applicant has also pleaded for quashing of the proceedings on account of delay. His contention is that the first complaint was made by Dr. Neelam Bhalla in the year 2009 i.e. 5 years after the recruitment had taken place. The disciplinary action against him had been started 8 years after that recruitment. In this regard, he has placed reliance on the judgment of Honble Supreme Court in the case of P.V. Mahadevan Vs. M.D. Tamil Nadu Housing Board, (Appeal (civil) 4901/2005 dated 08.08.2005 in which it was ruled as follows:-
Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account o the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to protracted disciplinary proceedings would be much more than the punishment. For the mistake committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.
The same judgment was relied upon by Honble Madras High Court in Writ Petition Nos. 10694/2005 and connected cases.
15. However, we find that in the same judgment in Para-19, the Honble Supreme Court has also observed as follows:-
It is not possible to lay down any predetermined principles to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay.
16. Moreover, in the case of Government of Andhra Pradesh and Others Vs. V. Appala Swamy, (2007) 14, SCC 49 the same observation was made by the Apex Court. They further have gone on to say that if there has been delay then the delinquent officer should take that plea before the Inquiry Officer and also explain how delay has caused prejudice to his defence. Thus, the position that emerges is that facts and circumstances of each case have to be gone into and proceedings cannot be quashed merely on account of delay. In the instant case, the inquiry has just begun. The applicant can take the plea of delay before the IO and also explain if delay has caused any prejudice to his defence. We are not inclined to quash the proceedings on this ground alone.
17. In their arguments, the respondents counsel has emphasized on the fact that disciplinary proceedings in the instant case are at the interlocutory stage and judicial interference at this stage is not warranted. He has relied on the judgment of the Honble Supreme Court in the case of UOI & Ors. Vs. A.N. Saxena, 1992 SCC(L&S) 861 in which the Honble Supreme Court had quashed the order of this Tribunal staying the disciplinary proceedings against the applicant holding that the charges against the applicant were serious and Tribunal had erred in granting injunction in restraining the UOI from taking disciplinary action against the officer. He has also retied on the judgment of Honble High Court of Delhi in the case of Govind Prajapati Vs. UOI & Ors., 150(2008)DLT 435 in which the Honble High Court quoted the Honble Supreme Court guidelines that interference by the Court at the stage of issuance of chargesheet would amount to pre-judging the issue as the correctness of the charges are yet to be looked into by the DA.
18. From the above analysis, we come to the conclusion that none of the grounds taken by the applicant for challenging the suspension order have any merit. Moreover, as laid down by Honble Supreme Court and Honble High Court of Delhi interference in disciplinary proceedings should not be ordinarily resorted to at interlocutory stage. We, therefore, dismiss the O.A. There shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)