Vijay Risbud vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 939 Del

JUDGMENT

S. Ravindra Bhat, J.

1. By these writ proceedings under Articles 226 of the Constitution of India the petitioner is seeking directions for quashing of orders dated 7.4.2003, 25.6.2004, 10.11.2004 and 31.12.2005, by which he was initially suspended from the services of the Delhi Development Authority (hereafter referred to as 'DDA') and subsequently the period of suspension was extended.

2. The petitioner was appointed by the DDA as Commissioner (Planning) on 21.1.1997. Some time in the year 1999 the DDA, Conduct Disciplinary and Appeal Regulations, 1999 (hereafter called the 'Regulations') were brought into force. The Regulations spelt out various conditions of service including who are Appointing and Disciplinary authorities in respect of different classes of posts.

3. By an order dated 7.4.2003, in exercise of powers under Regulation 20(2) the DDA placed the petitioner under suspension with immediate effect. It is averred that the Vice-Chairman of the DDA Shri Subhash Sharma was also placed under suspension contemporaneously along with the petitioner. On 9.9.2003 the suspension of Shri Subhash Sharma was, however, invoked.

4. On 23.12.2003 the Central government amended the Central Civil Services (Classification, Control and Appeal) Rules (hereafter referred to as 'CCS (CCA) Rules') by inserting Rules 10(6) and (7). These contained restrictive conditions with regard to continued operation of suspension orders and also the mechanism for review of such orders. On 7.4.2004 the Central Government issues instructions in terms of the amended CCS (CCA) Rules and constituted Review Committees to deal with suspension cases. The relevant portions of these instructions read as follows:

2. It is, therefore, necessary to constitute Review Committee(s) to review the suspension cases. The composition of Review Committee(s) may be as follows:

(i) The disciplinary authority, the appellate authority and another officer of the level of disciplinary/appellate authority from the same office or from another Central Government office (in case another officer of same level is not available in the same office), in case where the President is not the disciplinary authority or the appellate authority.

(ii) The disciplinary authority and two officers of the level of Secretary/Addl. Secretary/Joint Secretary who are equivalent or higher in rank than the disciplinary authority from the same office or from another Central Government office (in case another officer of same level is not available in the same office), in a case where the appellate authority is the President.

(iii) Three officers of the level of Secretary/ Additional Secretary/Joint Secretary who are higher in rank than the suspended Government Department/Office )in case another officer of same level is not available in the same office), in a case where the disciplinary authority is the President.

The administrative ministry/department/office concerned may constitute the review committees as indicated above on a permanent basis or ad- hoc basis.

3. The Review Committee(s) may take a view regarding revocation/continuation of the suspension keeping in view the facts and circumstances of the case and also taking into account that unduly long suspension, while putting the employee concerned to undue hardship, involve payment of subsistence allowance without the employee performing any useful service to the Government. Without prejudice to the foregoing, if the officer has been under suspension for one year without any charges being filed in a court of law or no charge-memo has been issued in a departmental enquiry, he shall ordinarily be reinstated in service without prejudice to the case against him. However, in case the officer is in police/judicial custody or is accused of a serious crime or a matter involving national security, the Review Committee may recommend the continuation of the suspension of the official concerned.

5. The impugned orders dated 25.6.2004, 10.11.2004 and 31.12.2004 the DDA communicated extension of period of suspension for differing periods of three months and 180 days respectively. The petitioner had preferred an appeal in respect of the initial order of suspension dated 7.4.2004. This appeal was, however, rejected by an order dated 19.1.2005. The said order reads as follows:

Nirman Bhawan, New Delhi,

Dated: January 19, 2005.

ORDER

Shri Vijay Risbud, former Commissioner (Planning), Delhi Development Authority was placed under suspension vide DDA's Order No. 95/Vig./AVO/ACB/2220, (issued from file No. 27(4)2003/Vig./AVO/ACB) dated 07.04.2003 consequent to filing of a case RC.AC.3/2003A 0002 by the Anti-Corruption Branch of the CBI in which Shri Risbud was one of the co-accused for criminal conspiracy, by abusing his official position and agreeing to show undue favor, in granting DLF Universal Ltd., New Delhi, FAR of 300, in one of their projects, by charging them the rates much below the prevailing market rates, in exchange of illegal gratification from DLF Universal Ltd., New Delhi.

2. Shri Vijay Risbud, former Commissioner (Planning) DDA submitted an appeal dated 21.09.2004 for revocation of his suspension and his reinstatement in service on the following grounds:

i) The matter of granting FAI to individual plots in District Centre was within the jurisdiction of Chief Architect, who worked independent of Commissioner (Planning). The file for the increased FAR in Jhandewalan District Centre to DLF was referred by the then Vice-Chairman, directly, to Chief Architect on 02.07.2002. Chief Architect reiterated the same recommendation, in his note on 13.02.2003.

ii) The specific recommendation for granting higher FAR was made by the Chief Architect, who had neither been made accountable nor had faced any action, but Shri Risbud has been under suspension for the last 17 months, as he was victimized and made to suffer mental agony and humiliation for recommendations made by the Chief Architect.

3. The appeal for revocation of suspension of Shri Vijay Risbud, former Commissioner (Planning) DDA has been considered by the Appellate Authority, in consultation with the DDA and the Anti-corruption Branch of the Central Bureau of Investigation.

4. The Appellate Authority finds that, revocation of the suspension of Shri Vijay Risbud, former Commissioner (Planning), Delhi Development Authority, is not conducive, in the interest of justice, at this stage, considering the seriousness of the charges, against him and his former official position in the DDA. The appeal dated 21.09.2004 of Shri Vijay Risbud, former Commissioner (Planning), DDA for revocation of his suspension and reinstatement in service, has been rejected by the President. The President orders accordingly.

By order and in the name of the President.

Sd/-

(B. Bandyopadhyay)

Assistant Vigilance Officer

6. It was contended on behalf of the petitioner that the impugned order placing the petitioner under suspension on 7.4.2003 was itself illegal and void, since the DDA invoked a wrong provision namely, Regulation 20(2). It was submitted that no reason was given for issuing the suspension order and, therefore; the initial suspension order itself being unlawful, it could not be subsequently rectified by recourse to the proper provisions even assuming that such subsequent orders had referred to the correct provision.

7. Mr. A.K. Singla, learned senior counsel appearing for the petitioner submitted that the orders extending the suspension, impugned in these proceedings were illegal and liable to be set aside for the reason that firstly the Review Committees which had recommended their issuance, were not properly constituted. It was submitted that as per the Office Memorandum/ Instruction dated 7.1.2004, the officials required to be Members of the Committee had to be of a particular rank and status. The petitioner holds a rank of Commissioner. It was submitted that the Review Committee ought to have comprised of officials as per Para 2(2) of the Office Memorandum whereas officials with lower ranks considered the case, which prejudiced him. The second ground urged was that the order was discriminatory because in the case of other officials, particularly Shri Subhash Sharma, the respondents had recommended the withdrawal of suspension. However, the petitioner's suspension was continued arbitrarily and unjustifiable.

8. It was lastly contended that all the orders suspending the petitioner and continuing the period of suspension non-speaking orders. Placing the petitioner, who had an otherwise brilliant record, on prolonged suspension without disclosing any reasons, was punitive and violated Article 14 of the Constitution of India.

9. The DDA in its counter affidavit resisted the charge of illegality of the suspension order. It is stated that petitioner was placed under suspension as the Central Bureau of Investigation (CBI) registered a First Information Report on 26.3.2003 and proceeded to investigate the offence. Pursuant to the FIR, a search was conducted at the residence of the petitioner; keeping all these circumstances in mind, the Chairman of DDA namely, Lt. Governor felt it appropriate to place him under suspension with effect from 7.4.2003. It is claimed that the pendency of investigation was itself a ground for suspension and it was indeed recorded in the order of suspension. It is also alleged that on 8.4.2003 the petitioner was arrested and taken in custody; he was remanded by the Special Judge, New Delhi. The DDA has also taken refuge in the stipulation in its Regulations, which mandated automatic suspension by a deeming provision in cases where employees are arrested and placed in judicial custody.

10. The DDA has averred that the amendment to the CCS (CCA) Rules was notified on 23.5.2003 and became operative 90 days after its publication in the official Gazette. The proposed Review Committee in respect of Government servants was notified on 7.1.2004 and the date of enforcement of the amended Rules was changed to 2.6.2004. It was submitted before that date Review Committees for various categories of employees of DDA was notified and on 15.4.2004 the Central Government was requested to nominate its official in the Committee. The petitioner's order of suspension was reviewed on 26.5.2004 i.e. even before the amendment became operative.

11. The charge of arbitrariness and discrimination has been denied by the DDA; it is alleged that the cases pertaining to the other employees of DDA where suspension orders were revoked, depended on different fact situations and that the petitioner could not claim parity.

12. Mr. Arun Birbal, learned Counsel for the DDA submitted that the power of an employer to suspend its official from the services on charges of misconduct or as per terms and conditions of his service can never be disputed. He relied upon the order dated 7.4.2003 to submit that the reason for suspension itself had been disclosed namely, pendency of a criminal case. He submitted that in any event on the next date itself viz. 8.4.2003 the petitioner was arrested and he remained in custody for 50 days. In such circumstances, the deeming provision under the Regulations, became effective and mandated that the employee would continue under suspension.

13. Learned Counsel urged that the writ petition is not maintainable for the reason that it is directed against the order of suspension and its continuation, through the various extension orders. He submitted that the petitioner had appealed against the initial suspension order and the Appellate Authority rejected the appeal. The initial suspension order, therefore, merged with the order of the Appellate Authority.

14. Learned Counsel relied upon the official records and submitted that the Memorandum of 7.1.2004, constituted guidelines and the DDA had substantially adhered to it while reviewing the issue of the petitioner's continued suspension. It was submitted that the Review Committees' recommendations were always placed before the highest authority namely, the Union Minister and no infirmity can be found in that regard.

15. Learned Counsel submitted that the cases of Shri Subhash Sharma stands on different footing. It was urged that the former is an independent administrative official; he was repatriated to his parent cadre. However, the petitioner was under the control of the DDA. It was also urged that the concerned authorities directed that Shri Subhash Sharma, a former Vice-Chairman ought to be placed in a non-sensitive post. In the case of the petitioner the respondents as well as the Central Government was of the opinion that larger public interest is served by continued suspension.

16. The above actual matrix shows that two issues arise for consideration:

i) Whether the order of suspension is violative of the DDA Regulations and instructions of the Central Government and;

ii) Whether it is arbitrary and discriminatory.

17. The admitted facts are that the petitioner was working as Commissioner of Land in the DDA, when an FIR was registered against him by the CBI. His house was raided and documents were seized. The DDA placed him and its Vice Chairman under suspension on 7.4.2003. Indeed the gravity of the situation was such that the petitioner was arrested on the next day on 8.4.2003; he remained in judicial custody for quite some time before being admitted to bail.

18. The initial order of suspension dated 7.4.2003 is premised upon the petitioner's involvement in a criminal case.

19. It is settled law that reasons constitute the link between the mind of the decision maker and the issues at hand. When the order effects the rights of a person, fairness requires recording germane and precise reasons. This is even more so in cases where an appeal is provided for. Where an order of suspension is involved, all that the Court has to be satisfied is that the conditions which clothe the employer to issue the order are present and there is disclosure of application of mind. The impugned order dated 7.1.2003 in my opinion confirms to the standards set because it has recorded the existence of criminal investigations to the petitioner's conduct. Such reasons cannot be termed as irrelevant or extraneous.

20. So far as the question of non-compliance with the strict letter of the official Memorandum dated 7.1.2004 is concerned, the records reveal that on six occasions the question of the petitioner's continuation under suspension was placed before the Review Committee. The Review Committee comprised of senior officials from the Central Government nominated for the purpose. This aspect has not been disputed by the petitioner; however, his complaint is that strict terms of the guidelines were not followed.

21. A careful consideration of the Memorandum shows that it is not couched in imperative but discretionary terms which implies that the procedure has to be substantially followed, if not in strict latter and spirit. Seen from this perspective, and the undoubted considerations by the highest Executive Authority in the Central Government including the Union Minister, the infirmity, even if it were assumed to be one in the Constitution of the Review Committee, by itself cannot result in so grave and prejudice as to vitiate the opinion to keep the petitioner under continued suspension.

22. On the issue of arbitrariness and discrimination, what has to be borne in mind that the petitioner held the position of Commissioner (Planning), one of the most senior and responsible position within the DDA. Shri Subhash Sharma, whose instance has been cited, undoubtedly was the Vice Chairman. But he was an IAS cadre official. The Central Government and the concerned authorities, after considering his records and nature of involvement and the allegations, deemed it appropriate to revoke the suspension and repatriate him to the parent department. To the uninitiated this may seem to be differential or unequal treatment. However, what has to be borne in mind is that in matter of suspension (where the orders are not punitive), one pre-dominant consideration which necessarily weighs with the public employer is the likelihood of the suspended official using his powers to subvert an internal investigation or proceeding, in the event of his reinstatement. If this consideration were to be seen, the explanation given by DDA, namely that Shri Subhash Sharma was not brought back to the DDA but placed in a non-sensitive posting in the Central Government, is reasonable.

23. It has been often held that unless the litigant makes out a case of mala fides or illegality, the Court should ordinarily refrain from interfering with orders of suspension. I am satisfied that the facts of this case do not warrant exercise of discretion or compel a conclusion that the impugned orders are illegal or arbitrary. For the foregoing reasons, the writ petition must fail, it is accordingly dismissed with no orders as to costs.