Judgment:
1. Applicant was Commissioner of Income-Tax, Ranchi from 1994 to 1997.
On 11.6.97 he was arrested in a criminal case and was bailed out by the Hon'ble Patna High Court vide order dt. 3.9.97. Because of his arrest in the criminal case, he was placed under suspension vide order dt.
2.9.97 w.e.f. 11.6.97, the date on which he was arrested by the police.
Charge-sheet has been filed against the applicant along with many others in the infamous case known as "Fodder Scam Case." 2. The case for the applicant in this O.A. is that he has been falsely roped in the criminal case and that more than two years have passed, but no departmental proceedings have been initiated against him. It has been stated that the right of the applicant to earn livelihood is a fundamental right and it cannot be taken away or whittled down without any authority of law. It has further been averred that the act of the respondents in placing the applicant under suspension is mala fide and is unjust enrichment to the respondents. It has been prayed that the suspension order be quashed.
3. In the reply, the respondents have seriously opposed the prayer of the applicant. It has been averred that the charges against the applicant include, inter alia, obtaining hospitality and pay offs from Dr. S.B. Sinha, Shri A.K. Verma and Dr. D. Chandak, who are co-accused in the Animal Husbandary Scam case. It has also been averred that the Court has already taken cognizance of the charge-sheet filed against the applicant. It has been denied that the act of the respondents in placing the applicant under suspension is mala fide or it is violative of fundamental right of the applicant.
4. We have heard the learned Counsel for the parties and perused the documents placed on record.
5. Mr. Ghosh, Ld. Counsel for the applicant contended that there is no direct involvement of the applicant in the Fodder Scam case. He pointed out that the applicant is under suspension for more than four years, and he is going to retire in the year 2004 on attaining the age of superannuation. He further pointed out that the trial in the criminal case will take long time as about 460 prosecution witnesses are to be examined in the case and there are 56 persons who have been challaned along with the applicant.
6. As against this, the Ld. Counsel for the respondents contended that there are serious charges against the applicant and this Tribunal should not show any sympathy towards him. She pointed out that the applicant tried to help the doctor of the Animal Husbandary Deptt. by making a recommendation in his favour for the transfer of his Income-tax matter from Patna to Calcutta. She also pointed out that the applicant used to enjoy hospitality of doctors who arc involved in the Animal Husbandary Scam case. Her contention was that this Court should not sit as an appellate authority over the decision of the respondents while dealing with the order of suspension. According to her, the applicant is not likely to suffer financially if he is acquitted in the criminal case.
8. The suspension order dt. 2.9.97 indicates that the applicant was placed under suspension because of the pendency of the criminal case against him. It is now admitted position that charge-sheets have been filed in the case and the Court has taken cognizance of the offences.
The applicant has been charged with the offences under various Sections of Indian Penal Code with the aid of Section 120 IPC and Section 13 of the Prevention of Corruption Act. It was observed by the Hon'ble Patna High Court in the order dt. 3.9.1997 at para No. 7 that there was enough material to indicate prima facie case against the petitioner (applicant) that in his official capacity he had been obtaining pecuniary benefits from some of the accused involved in fraudulent withdrawals of Govt. money from the treasury and he might have also tried to help them in the matters pertaining to his Department.
Thereafter, observing that it was an arguable matter as to whether the materials available on record would carry the offence against the petitioner further to the higher plane of criminal conspiracy, the applicant was granted bail.
On the observations made by the Hon'ble Judge of the High Court, it cannot be accepted that the applicant has been found not guilty. As already stated, the Hon'ble High Court has observed that there was enough material on record to establish prima facie case against the applicant. Therefore, it cannot be said that the applicant has been falsely implicated in the Fodder Scam case without any material whatsoever.
9. Now the question that arises for consideration is whether this Tribunal can quash the order of suspension and the speaking order dt.
10.1.2000 passed subsequent to the direction given by this Tribunal on 13.12.99 in O. A. 802 of 99, Adhip Ch. Chaudhuri v. UOI and Ors. In the speaking order, it has been stated that the applicant has not been discharged in the two cases and the Court has taken cognizance of the offences in both the matters and the charges include obtaining hospitality and pay offs from Dr. S.B. Sinha and Others, who are co-accused in the AHD scam cases. It has also been stated that the challans have already been filed against the applicant on the basis of materials collected during investigation hence, the applicant's request for revocation of the suspension order was not acceptable.
10. The Apex Court, time and again, has observed that the Tribunal should not interfere with the orders of suspension pending enquiry or trial. It has been observed that suspension is not a punishment, but it only way of forbidding or disabling an employee to discharge the duties of office or post held by him. In such matters, the Tribunal can be justified in interferring with the orders of suspension only when the action of the authorities is accuated by mala fides or is found to be arbitrary or for ulterior purpose. See State of Orissa v. Bimal Kumar Mohanty,U.P. Rajya Krishi Utpadan Mandi Parishad and Ors v.Sanjiv Rajan, 1993 Supp (3) SCC 483=1994(1) SLJ 28 (SC) also it was observed that the Court should not interfere with the orders of suspension unless they are passed because of mala fides and without there being even a prima facie evidence on record connecting the employees with the misconduct in question. That was a case where suspension order was passed in view of pendency of the disciplinary proceedings. The observations equally apply where the suspension order is passed because of the involvement of the employee in a pending criminal case.
In the case of Rt. Rev. B.P. Sugandhar Bishop in Medak v. D. Dorothy Dayasheela Ebeneser, (1996) 4 SCC 406, the High Court had quashed the order of suspension and directed reinstatement of the petitioner. Their lordships did not approve the order of the High Court and observed that the charges against the employee were serious and it was not just and proper to direct his reinstatement. It is significant to point out that in that case, there was statutory maximum period of suspension in the Rules, yet their lordships did not uphold the order of the High Court directing reinstatement of the employee,Government, Prohibition and Excise Deptt. v. L. Srinivasan, (1996) 3 SCC 157, their lordships of the Supreme Court did not approve the order of the Administrative Tribunal in quashing the suspension order where the chargesheet was laid for prosecution of the employee for the offences of embezzlement and fabrication of false records and the trial of the case was pending. The Administrative Tribunal had set aside the departmental enquiry and quashed the charges on the ground of delay in initiation of the disciplinary proceedings and also quashed the order of suspension.
Their lordships set aside the order of the Administrative Tribunal observing as follows: "The Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum dehors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and the charges even at the threshold. We are coming across such orders frequently putting heavy pressure on this Court to examine each case in detail. It is high time that it is remedied." 11. Keeping in view the observations made in various decisions of the Hon'ble Supreme Court, this Tribunal cannot be justified in directing reinstatement of the applicant.
12. It is relevant to state that though in the O.A. it has been averred that mala fide is the foundation of the purported orders of suspension and non-revocation thereof vide order dt. 10.1,2000, but no facts whatsoever have been stated in the O.A. for which it can be ascertained that there was mala fide on the part of the respondents when the applicant was placed under suspension or when his request for revocation of suspension order was not accepted. It is admitted position that the applicant was arrested by the police in a criminal case and he had to remain in custody for about three months, and he was granted bail by the Hon'ble High Court observing that there was enough material to indicate prima facie that the applicant was involved in the matter. Thus, on the alleged plea of mala fides the order of suspension cannot be quashed.
13. The order also cannot be said to be arbitrary which has been passed on the basis of materials placed before the respondent authorities.
14. It may be that the applicant is not getting full salary because of the suspension order, but the suspension order cannot be said to be without any authority of law, and therefore, it cannot be accepted that the fundamental right of earning livelihood by the applicant has been infringed.
15. It is not understood as to how the respondents are being enriched by the order of suspension. The order has been passed by the competent authority in due discharge of official duty. In the event, the applicant is acquitted in the case, he will get the entire amount of his salary. There is no question of unjust enrichment of the respondents.
16. Having considered the entire facts and circumstances of the case, we do not consider it a fit case in which the order of suspension or the speaking order dt. 10.1.2000 should be quashed.
17. Resultantly, the O.A. being devoid of merit is dismissed without any order as to costs.