Sandeep Jot Singh vs Sanjay Malhotra, Revenue Secretary, ...
2024 Latest Caselaw 515 Guj

Gujarat High Court

Sandeep Jot Singh vs Sanjay Malhotra, Revenue Secretary, ... on 19 January, 2024

Author: Biren Vaishnav

Bench: Biren Vaishnav

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       C/MCA/10/2023                         ORDER DATED: 19/01/2024

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         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
     R/MISC. CIVIL APPLICATION (FOR CONTEMPT) NO. 10 of 2023
         In R/SPECIAL CIVIL APPLICATION NO. 6087 of 2022
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                     SANDEEP JOT SINGH
                           Versus
     SANJAY MALHOTRA, REVENUE SECRETARY, DEPARTMENT OF
                REVENUE MINISTRY OF FINANCE
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Appearance:
Mr. Tushar Ranjan Mohanty, Advocate with MR RUTURAJ
NANAVATI(5624) for the Applicant(s) No. 1
Mr. Devang Vyas, Additional Solicitor General of India with MR
HARSHEEL D SHUKLA(6158) for the Opponent(s) No. 1,4
MR NIKUNT K RAVAL(5558) for the Opponent(s) No. 2,3
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 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
       and
       HONOURABLE MS. JUSTICE NISHA M. THAKORE
                   Date : 19/01/2024
                     ORAL ORDER

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1. Heard Mr. Tushar Ranjan Mohanty, learned advocate with Mr. Ruturaj Nanavati, learned advocate for the applicant and Mr. Devang Vyas, learned Additional Solicitor General of India with Mr.Harsheel Shukla, learned advocate and Mr. Nikunt Raval, learned advocate for the respondent nos. 1 to 4.

2. This is an application filed by the applicant contending that the respondents be held guilty of having committed civil contempt of the order dated 26.08.2022 passed by this Court in Special Civil Application No.6087 of 2022.

3. Facts in brief would indicate that it is the case of the applicant that he was working as Deputy Commissioner of Customs at Mundra. Pending investigation and departmental

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proceedings, he was suspended by an order dated 29.09.2017. Being aggrieved by the continuance of suspension beyond the period of 90 days, the applicant approached the Central Administrative Tribunal, Ahmedabad Bench by filing Original Application No.503 of 2020. The Tribunal by an order of 21.01.2022 allowed the application and quashed the order of suspension beyond a period of 90 days. The Tribunal observed in its operative part of the order that as a consequence of quashing of the suspension, the applicant shall be reinstated within one month from the date of receipt of the copy of the order.

3.1. Aggrieved by the order of the Tribunal, the Chief Commissioner of Central Goods and Services Tax, Ahmedabad Zoe assailed the order of the Tribunal by filing Special Civil Application No.6087 of 2022. By an oral judgment dated 26.08.2022 the petition was disposed of with certain directions. Aggrieved by the order of the Division Bench of this Court, the Chief Commissioner of Central Goods and Services Tax, Ahmedabad approached the Hon'ble Supreme Court and by an order of 27.01.2023 the SLP was disposed of with liberty as prayed, as observed in the order.

4. Mr. Mohanty, learned counsel appearing for the applicant reading the order of the Tribunal would submit that there was an unequivocal, unqualified direction of the Tribunal, whereby, the suspension of the applicant beyond the period of 90 days was quashed and therefore, it was incumbent for the respondent authorities to reinstate the applicant forthwith.

4.1. He would submit that even if the directions of the Division

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Bench in the order of 26.08.2022 are read, a time frame of three months was granted to the respondents to conclude the departmental proceedings else reinstate the applicant on Non- Sensitive Post. He would invite the attention of the Court to the subsequent order of extension passed by this Court at the request made by the respondents, which extended the period to complete the inquiry by a period of four weeks. He would therefore, submit that having not adhered to the time frame of completing the departmental proceedings as stipulated in the order of the Division Bench which was subsequently extended, the natural consequences that should follow would be the reinstatement of the applicant as directed by the Division Bench of this Court, which has not been done and therefore, the respondents should be held guilty of having committed civil contempt.

4.2. Even if the order of further extension is read i.e. dated 21.04.2023, admittedly even if the inquiry was completed on 7.5.2023 in his submission the departmental proceedings would also bring within its umbrella conclusion inasmuch as penalty order, if any, should have been passed within the time frame and admittedly this having not been done, respondents are guilty of such contempt and consequential reinstatement should follow as a natural corollary.

5. Mr. Devang Vyas, learned Additional Solicitor General of India appearing for the respondents would submit that if the directions of the Division Bench in the order of 26.08.2022 are read in light of the extension orders passed by this Court on 24.02.2023 and 21.4.2023 the outer time limit stipulated by this

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Court when these orders are read inclusively, the time limit has been complied inasmuch as the Inquiry Officer has submitted his report on 07.05.2023.

5.1. The contention of the learned counsel Mr. Mohanty that in the modification application filed by the Union of India, the time table indicated in the application would also include passing of the penalty order is disputed by learned Additional Solicitor General of India on the ground that post departmental proceeding of 7.5.2023, it was not within the domain of the Chief Commissioner of Customs as the appointing authority and the disciplinary authority of the applicant being President of India consequential action had to be undertaken such as taking UPSC advisory etc. and it was the applicant who sought time for responding to the show cause dated 21.06.2023, pursuant to the copy of the Inquiry Officer report being submitted.

6. Having heard the learned counsel for the respective parties and having perused the papers together with the records filed by the applicant by way of additional documents, true it is that Tribunal in its order passed on 21.1.2022 quashed the order of suspension beyond a period of 90 days and directed reinstatement. The order when challenged, Division Bench of this Court by its order dated 26.08.2022 while disposing of the petition observed as under:

".20. Considering the facts and circumstances of the case and the charge report as well as materials placed on record, we are of the opinion that the departmental proceedings initiated against the respondent is not completed within stipulated period. We conclude that the departmental proceedings initiated against the respondent shall be completed

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within a period of three months from the date of receipt of the copy of this order and if it is not completed within stipulated period, the competent authority shall reinstate the petitioner on Non- Sensitive post within a week from the date of completion of three months. It is also expected that the competent authority shall, either appoint a person for conducting the inquiry separately or allot the work to the said officer or alternatively, they may create supernumerary post of Non-Sensitive in nature, so in future, such kind of litigation can be avoided .

6.1. Reading of the order would indicate that the direction was to conclude departmental proceedings and if they are not so completed within the stipulated period, the applicant would deserve reinstatement on a Non-Sensitive post.

7. An application for extension of time was moved by the respondents, wherein, on 24.02.2023 the Court passed the following order:

"2. Present application is much resisted on the ground that the Apex Court has already decided the Special Leave to Appeal 40935 of 2022. Moreover, without approaching this Court the petitioner has already got an extension of two months.

3. We have heard both the sides.

4. Learned Senior Standing Counsel Mr. Raval, has pleaded before this Court that he would require four weeks, as the inquiry officer has met with an accident. Therefore, he is enable to complete the task. He further submitted, under the instructions that the medical certificate has not come.

5. The said instructions are relied upon. Subject to the medical certificate having come on record within one week, extension is allowed for two weeks. Let the inquiry be completed, otherwise, the order be implemented.

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With aforesaid clarifications, present application stands disposed of accordingly."

7.1. Reading of the order would indicate that time was extended by period of four weeks, otherwise the order be implemented. It is to be noted that, though the learned counsel for the applicant would want us to read in the order the word "departmental proceedings" to include "disciplinary proceedings" culminating into an order of penalty by relying on the time table set out in the application for modification, we cannot lose sight of the fact that subsequent application which was moved by the respondents was an application not for mere extension but for the modification of the earlier order. Para 6 to 8 of the order dated 21.4.2023 passed in said application when read in context so made, observes as under:

"6.We have considered the submissions canvassed by learned advocates for the parties. We have aslo perused the material placed on record and the averments made in the application. It is the case of the applicant that the Enquiry Officer met with an accident and had undergone surgery. It is further stated that the Enquiry Officer has informed that the plaster will be removed only on 14.03.2023 and, therefore, the Enquiry Officer cannot conduct the inquiry till declared fit to resume duty.

7.It is true that while passing an order dated 26.08.2022, this Court has directed the applicant to conclude the inquiry within three months, failing which, further direction was issued to reinstate the respondent on non-sensitive post within a week from the date of completion of three months. Thereafter, this Court has extended the time for further two weeks from 24.02.2023. However looking to overall facts of the present case, we are inclined to consider the request of the applicant.

8.Therefore in the facts of the present case, this application is allowed partly. Time to conclude the department inquiry against the respondent is extended upto 08.05.2023. Let the inquiry be

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completed within aforesaid period, otherwise, the direction issued by this Court while passing an order dated 26.08.2022 in aforesaid writ petition being Special Civil Application No.6087/2022 be implemented. It is clarified that no further extension shall be granted to the applicant in any circumstances."

8. Though learned counsel for the applicant would want us to read the time line of the orders to suggest even passing of the order of penalty and the learned counsel for the respondents pointing us to read it as that it being a time line for departmental proceedings, in the exercise of undertaking this investigation, in a jurisdiction under the Contempt of Courts Act, we would not sit in appeal and / or interpret the order and terms thereunder.

9. Unequivocally, when we read the orders as set out in the language what is indicative of the fact is that what the Court expected the respondents to do was to see that the inquiry be completed within the stipulated time. That is apparent on reading para 5 of the order in the first round of extension which was granted on 24.2.2023. The order of 21.4.2023 was passed in an application for modification wherein, time to conclude the departmental inquiry was extended utpo 08.05.2023. We would therefore, be of the opinion that by concluding the departmental inquiry by 07.05.2023, the time line as stipulated by this Court in the orders referred to herein above has been complied with.

10. There is one more reason for our view that post the conclusion of departmental proceedings as is evident from the additional affidavit filed by the respondent nos. 1 and 4, after the proceedings, the case records have to be submitted before the

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UPSC for its advice and reading paras 3 to 6 of the additional affidavit so filed, the time limit so suggested and which has now been followed by the authority, such authorities were not part of proceedings which were initiated at the hands of the applicant before the Central Administrative Tribunal. In addition thereto, learned Additional Solicitor General of India has placed on record a communication dated 18.01.2024 issued by the Ministry of Finance which indicates that UPSC has tendered this advice on 15.12.2023, which was forwarded to the applicant on 15.12.2023. The applicant was expected to submit his response within a period of 15 days. The applicant sought extension of time upto 19.01.2024, which request appears to have been rejected. The issue of passing an order of penalty therefore, is at large. For the reasons, which we have stated in the earlier part of the judgment, in our opinion, the issuance of order of penalty would not come within the time frame of the departmental proceedings / inquiry proceeding. When the orders are read, for the aforesaid reasons, we see no reason to initiate proceeding against the respondents. Present contempt application is accordingly dismissed.

11. Learned counsel for the applicant at this stage would submit that this order may not come in his way to pursue a remedy seeking reinstatement if the remedy is otherwise available. We express no opinion on this issue.

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(BIREN VAISHNAV, J)

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(NISHA M. THAKORE,J) KAUSHIK J. RATHOD