- (1.) This appeal has been preferred by the Union of India against the judgment and order dated 17.9.2012, passed by the High Court of Delhi at New Delhi in Writ Petition (Civil) No.5247 of 2012 affirming the judgment and order dated 1.6.2012, passed by the Central Administrative Tribunal, New Delhi (hereinafter referred to as the 'Tribunal') in OA No.495 of 2012 filed by the respondent by which and whereunder the Tribunal has quashed the suspension order passed by the appellants.
(2.) Facts and circumstances giving rise to this appeal are: A. That the respondent who belongs to the Indian Revenue Service (Income Tax-1985 batch) has been put under suspension since 28.12.1999 in view of the pendency of two criminal cases against him duly investigated by the Central Bureau of Investigation (for short 'CBI') and in which he was also arrested on two occasions, namely, 23.12.1999 and 19.10.2000 in relation to the said cases. During the relevant time, the respondent was on deputation to Enforcement Directorate and was working as Deputy Director (Enforcement). B. The CBI registered RC No.S18/E0001/99 dated 29.1.1999 against the respondent in respect of certain illegal transactions whereby the Directorate had seized a fax message (debit advice) from the premises of one Subhash Chandra Bharjatya purported to have been sent from Swiss Bank Corporation, Zurich, Switzerland, which reflected a debit of US$ 1,50,000 from the account of Royalle Foundation, Zurich, Switzerland in favour of one S.K. Kapoor, holder of account number 002- 9-608080, Hong Kong & Shanghai Banking Corporation (HSBC), Head office at Hong Kong, as per the advice of the customer, i.e. Royalle Foundation. Subhash Bharjatya filed a complaint dated 4.1.1998 alleging the said fax message to be a forgery and had been planted in his premises during the course of search in order to frame him and further that he and his employee were illegally detained on the night of 1.1.1998 and were threatened and manhandled. It was in the investigation of this case that CBI took a prima facie view that respondent was part of a criminal conspiracy with co-accused Abhishek Verma to frame Subhash Chandra Bharjatya in a case under Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA) by fabricating false evidence to implicate Subhash Bharjatya. C. Subsequently, CBI registered another case No. RC S19/E0006/99 dated 7.12.1999 in respect of disproportionate assets possessed by the respondent amounting to more than 12 crores to his known sources of income during his service period of 14 years. As the respondent was arrested on 23.12.1999, he was under deemed suspension. The suspension order was reviewed subsequently. In view of the provisions of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, (hereinafter referred to as 'Rules 1965'), the suspension order was passed by the disciplinary authority to be effective till further order. D. Sanction to prosecute the respondent had been obtained from the competent authority under the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'Act 1988'). E. The respondent challenged the order of his suspension before the Tribunal by filing OA No.783 of 2000 which was allowed by the Tribunal vide order dated 17.1.2003 giving the opportunity to the appellants herein to pass a fresh order as appropriate based on facts of the case. F. The appellants re-considered the case of the suspension in pursuance of the order of the Tribunal dated 17.1.2003. However, vide order dated 25.4.2003 the appellants decided that the respondent should remain under suspension. G. Aggrieved, the respondent challenged the said order dated 25.4.2003 before the Tribunal by filing OA No.1105 of 2003, however the same was dismissed vide order dated 9.5.2003. The record reveals that the said order of the Tribunal was challenged by filing a writ petition before the Delhi High Court. However, the said petition was subsequently withdrawn by the respondent vide order dated 11.8.2010. H. So far as the criminal cases are concerned, the Special Judge granted pardon to co-accused Abhishek Verma. The said order was challenged by the respondent before the High Court and ultimately before this Court, but in vain. The departmental proceedings were also initiated against the respondent based on the CBI's investigation reports and the charge memorandum was issued which was quashed by the Tribunal vide judgment and order dated 24.2.2010. Aggrieved, appellants filed special leave petition before this Court with a delay of more than two years, without approaching the High Court. The judgment of this Court dated 5.9.2013 passed in C.A.Nos. 7761-7717 of 2013, Union of India & Ors. v. B.V. Gopinath etc. etc., affirmed the view taken by the Tribunal that chargesheet is required to be approved by the disciplinary authority. The petition filed by the appellants against the respondent has not yet been decided. Review Petition filed by the appellants against the judgment and order dated 5.9.2013 is also reported to be pending. I. The appellants had been reviewing the suspension order from time to time and thus, the respondent filed OA No.2842 of 2010 before the Tribunal for quashing of the suspension order and the same was disposed of by the Tribunal vide order dated 16.12.2011 directing the appellants to convene a meeting of the Special Review Committee (SRC) within a stipulated period to consider revocation or continuation of suspension of the respondent after taking into consideration various factors mentioned in the said order. J. Pursuant to the said order of the Tribunal dated 16.12.2011, the SRC was constituted. The competent authority considered the recommendations of the SRC in this regard and passed an order dated 12.1.2012 to the effect that the suspension of the respondent would continue. The views of the CBI were made available subsequent to order dated 12.1.2012 and thus, the SRC again met and recommended the continuance of suspension of the respondent and on the basis of which the Competent Authority, vide order dated 3.2.2012, decided to continue the suspension of the respondent. K. The respondent challenged the said orders dated 12.1.2012 and 3.2.2012 by filing OA No.495 of 2012 before the Tribunal and the Tribunal allowed the said OA vide order dated 1.6.2012 holding that the earlier directions given by the Tribunal on 16.12.2011 had not been complied with while passing the impugned orders dated 12.1.2012 and 3.2.2012 and thus, the continuation of suspension was not tenable. The said orders were accordingly quashed by the Tribunal. L. Aggrieved by the order dated 1.6.2012 passed by the Tribunal, the appellants preferred Writ Petition No.5247 of 2012 before the High Court of Delhi which was dismissed vide judgment and order impugned dated 17.9.2012. Hence, this appeal.
(3.) Ms. Indira Jaising, learned Additional Solicitor General appearing for the appellants has submitted that though the respondent had been under suspension for 14 years but in view of the gravity of the charges against him in the disciplinary proceedings as well as in the criminal cases, no interference was warranted by the Tribunal or the High Court. In spite of the fact that the charges were framed against the respondent and the domestic enquiry stood completed and very serious charges stood proved against the respondent, no punishment order could be passed by the disciplinary authority in view of the fact that the charge sheet itself has been quashed by the Tribunal on the ground that it had not been approved by the disciplinary authority and in respect of the same, the matter had come to this Court and as explained hereinabove, has impliedly been decided in favour of the respondent vide judgment and order dated 5.9.2013. The respondent has himself filed 27 cases in court and made 62 representations. Almost all his representations had been considered by the competent authority fully applying its mind and passing detailed orders. The Tribunal has placed reliance on the notings in the files while deciding the case, which is not permissible in law as the said notings cannot be termed as decision of the government. The scope of judicial review is limited in case of suspension for the reason that passing of suspension order is of an administrative nature and suspension is not a punishment. Its purpose is to only forbid the delinquent to work in the office and it is in the exclusive domain of the employer to revoke the suspension order. The Tribunal or the court cannot function as an appellate authority over the decision taken by the disciplinary authority in these regards. In view of the provisions contained in CVC Regulations which came into force in 2004, the case of suspension of the respondent has been reviewed from time to time and the disciplinary authority thought it proper to continue the suspension order. The Tribunal and the High Court failed to appreciate that the directions given by the Tribunal in its order dated 16.12.2011, inter-alia, to consider the reply to the letter rogatory received from the competent authority in Switzerland and the report of the Law Department in case of sanction granted by the competent authority i.e. Hon'ble Finance Minister are matters to be examined by the trial court where the case is pending. The proceedings had been stayed by the court taking a prima facie view that the courts below had not passed the order in correct perspective and in that view of the matter, the appellants could not be blamed. Thus, the impugned judgment and order is liable to be set aside. ;