- (1.) THE respondent -applicant, before the Central Administrative Tribunal, Patna Bench, Patna, at relevant time was holding the post of Additional Director General of Police and was in the rank of Inspector General of Police in the year 1975. On 31.07.2005, a T.V. Chanel shown sting operation pictures in which the applicant -respondent was shown in compromising position with a woman. Finding this situation, on the same day, on 31.07.2005, the applicant -respondent was suspended vide order of the same date i.e., 31.07.2005, and a F.I.R was lodged on 02.08.2005 against the respondent -applicant. Then on 28.12.2005 a show cause notice under Act 311(2)(b) was issued to the applicant -respondent to show cause as to why he may not be dismissed from service by invoking the provision of Article 311(2)(b) of the Constitution of India by dispensing with the departmental enquiry.
(2.) THE petitioner gave a detail reply to show cause notice on 26.7.2007. The applicant -respondent, who was holding the post of Additional Director General of Police from 31.7.2005 and even after lodging of the F.I.R. on 2.8.2005, could not be arrested because he was absconding and after about more than a year, the applicant -respondent surrendered on 6.11.2006 and was bailed out on 19.12.2006. On 19.7.2007, in the criminal case against the petitioner charge sheet was submitted. The applicant -respondent then after five years, in the year 2010 submitted an O.A. No.164 of 2010 before the Central Administrative Tribunal, Patna Bench, Patna, where in the impugned order dated 9.2.2011 has been passed, whereby the applicant -respondent's suspension order dated 31.7.2005 has been set aside. However, his prayer for quashing of the show cause notice for proposed action of his removal from service dated 28.12.2005 invoking powers under Article 312 (2)(b) of the Constitution of India for his immoral conduct and for quashing the Memo dated 19.7.2007 communicating the charges framed against the applicant -respondent have been rejected by the C.A.T. Being aggrieved against the order quashing of the suspension order dated 31.7.2005, the State has preferred this writ petition. Learned counsel for the State has vehemently submitted that in a grave case of serious misconduct of moral turpitude of the non -applicant, immediate action was required to be taken in view of the telecast of the pictures and video of the applicant -respondent on a television telecast through out the nation showing him in compromising position with a woman, suspension order was passed forthwith and it could not have been delayed. For lodging the F.I.R., some formality was completed and on 2.8.2007 the F.I.R. was lodged. The applicant -respondent, who was in the rank of Inspector General of Police was holding the post of Additional Director General of Police did not cooperate and immediately absconded. During the absconding period, according to the applicant himself, he received show cause notice dated 28.12.2005 which he himself replied, but he did not choose to challenge the suspension order dated 31.7.2005, which he could have challenged within a period of one year. Be that as it may, admittedly the applicant was not behind the bars from 31.7.2005 to 6.11.2006 till the day he surrendered. Not only this, but on 19.12.2006, the applicant was released on bail, and therefore, after 19.12.2006 he was free to challenge the order dated 31.7.2005, but he did not challenge. After his release, the applicant was served with the charge sheet vide Memo dated 19.7.2007. The applicant did not challenge either the order of suspension dated 31.7.2005 or the show cause notice dated 28.12.2005 nor the Memo dated 19.7.2007 till 2010. The applicant also did not comply with the statutory requirement of Section 20 of the Administrative Tribunal Act, 1985 which requires that the applicant is required to satisfy the Tribunal, that he had availed the remedy available to him under the Service Rules for redressal of his grievance before approaching Tribunal. The applicant -respondent did not challenge the order of suspension by preferring an appeal is also an admitted fact. Therefore, in this case, the applicant -respondent whose O.A. was not maintainable in view of Section 21, providing for limitation of one year, the tribunal could not have admitted the applicant's application, but ignoring Section 21 and without there being any application for condonation of delay the tribunal not only entertained the O.A. but allowed in violation to Section 20 of the Act of 1985.
(3.) LEARNED counsel for the State vehemently submitted that the Tribunal further committed grave error of law in setting aside the order of suspension in such case where the action was required to be taken forthwith and without any delay. The Tribunal should not have entertained such technicality of law of counting of days of the date of filing of the F.I.R. instead of looking to the contemplation of the proceeding against the applicant -respondent of lodging the criminal case and should not have set aside the order of suspension. Counsel for the State vehemently submitted that even if, in any case, liberal view is taken, then also the suspension cannot be held to be bad which is only from 31.7.2005 to 1.8.2005 i.e. for two days which was only period before lodging the F.I.R. as the F.I.R. was lodged on 2.8.2005.;