A.K. Sikri, J.
1. The question of law which arises in these two petitions is common. Dispute is not about the validity of the suspension order when passed. However, in both these petitions, petitioners state that suspension is unduly prolonged and thereforee continuation of such a suspension order is challenged as unjustified and illegal. Before delving into this aspect it would be necessary to know the facts of each case.
2. Civil Writ Petition No.3598 of 1998
Petitioner in this case was appointed as Security Officer with the MCD on 18th August, 1983. He was confirmed as Security Officer on 1st January, 1987. However, petitioner was arrested on 24th November, 1993 in a corruption case. F.I.R. 53/93 was registered with Anti Corruption Department u/S. 7/13 of Prevention of Corruption Act. As per the FIR, petitioner had demanded, accepted and obtained Rs. 5000/- as part payment of illegal gratification of Rs.10,000/- from Shri Jeet Lal Sharma, Security Supervisor, MCD, I. S. Hospital, Kingsway Camp, New Delhi in consideration of his adjustment of D.A. and pension at the time of his retirement and forwarding pension file to Additional Commissioner (Health, MCD) for sanction. Petitioner remained under judicial custody exceeding 48 hours and thereforee as per provisions of Regulation 5 (3) of the Delhi Municipal Corporation Services (Control and Appeal) Regulation, 1959, he was deemed to have been placed under suspension w.e.f. date of his arrest i.e. 24th November, 1983. Order to this effect was issued by the respondents on 2nd December, 1993 placing him under deemed suspension w.e.f. 24th November, 1983. Petitioner was initially paid 50% subsistence allowance. The case of the petitioner's suspension was renewed in accordance with F.R. 53 and the subsistence allowance was enhanced from 50% to 75% vide order dated 7th April, 1994. After the investigation conducted by the Anti Corruption Department, challan was filed in the Court of Shri Dinesh Dayal, Additional Sessions Judge and charges framed against the petitioner. The trial in the said criminal case is still pending in the Court of Additional Sessions Judge. Petitioner made requests and representations to the respondents for revocation of his suspension including representation 12th May, 1997. However, since the request of the petitioner was not acceded to, he has filed the present writ petition challenging the continuation of the suspension order.
3. Primarily it is submitted by the petitioner that the criminal trial is taking unduly long time and in the last five years (i.e. till the date of filing of the writ petition) only two witness were examined. It is the submission of the petitioner that criminal trial may not conclude in the near future and may take unduly long period and petitioner cannot be made to languish under suspension. It is further stated that in various cases of similar nature MCD has revoked the suspension and reinstated employees after receiving no objection certificate from the investigating authority. Similarly, 'no objection certificate' in the case of petitioner Along with three other similarly placed employees, which is a list of 31 such suspended person, is obtained but notwithstanding such 'no objection certificiate' issued by Anti Corruption Branch on 7th September, 1995 petitioner has not been reinstated after revoking his suspension. One Shri Devender Singh, Jr. Engineer, who was also suspended w.e..f. 1st November, 1993 having been involved in criminal case by Anti Corruption Department but was allowed to be reinstated vide order dated 9.5.1994. It is submitted that no purpose is served in keeping the petitioner under suspension and respondents are adopting discriminatory attitude towards the petitioner who is suffering from acute financial hardship on account of impugned order of suspension. It is also submitted that such order of suspension has the effect of causing social stigma on the petitioner. In support of his submission that the criminal trial is taking so much time, petitioner's continuous suspension is not justified reliance was placed upon the following judgments:-
i. K. Sukhinder Reddy v. State of A.P. and another reported in (1996) 6 SCC 257.
ii. K.K. Bhardwaj and another Vs . Delhi Vidyut Board : (1999)ILLJ1149Del .
4. The facts stated by the petitioner in the petition and recorded above are undisputed. However, in the counter affidavit filed by the respondents, it is stressed that the charge of illegal gratification for which petitioner was apprehended and put on trial is a serious charge. Since the petitioner was suspended and he remained in custody for more than 48 hours, in terms of relevant rules he was rightly suspended. It is further stated that case of the petitioner was reviewed from time to time but the disciplinary authority decided to continue the suspension order in view of the seriousness of the charges against the petitioner. Even when the Anti Corruption Bureau has given no objection certificate for considering the case of municipal employees pending with them for their reinstatement by the disciplinary authority, it was for the disciplinary authority to arrive at a decision with regard to reinstatement of the employees after considering the merit of each case independently. The case of the petitioner was also reviewed but disciplinary authority did not find it fit to revoke the suspension and reinstate him as he was holding a senior post in Municipal Corporation of Delhi and it was his primary duty to eradicate and eliminate corruption from the department but acting contrary to the said norms petitioner himself indulged in the act of corruption by not maintaining the standard of integrity and betraying the faith of officers reposed in him. His act of demanding and accepting illegal gratification from his junior staff while holding a senior post was nothing short of treachery and was most reprehensible and totally unexpected from an officer of his rank. All these factors were considered by the disciplinary authority while reviewing his suspension and it was decided that in such a case where petitioner was facing serious charge of corruption and consequently criminal trial, the disciplinary authority decided not to revoke the suspension. Respondents have produced their records also for perusal of the Court showing the decision of the disciplinary authority was made with proper application of mind.
Civil Writ Petition No. 5551 of 1997
5. Petitioner in this case was recruited as Stenographer on 11th December, 1976 in Bharat Heavy Electricals Limited (hereinafter referred to as BHEL, for short)-respondent no.1. He was promoted as Senior Steno in 1984 and then as Private Secretary. C.B.I. registered the case on 25th August, 1993. He was arrested by C.B.I. on 11th January, 1994 in a criminal case and was kept in police custody for more than 48 hours. Accordingly, as per Rule 20(2) of the Conduct, Discipline and Appeal Rules of BHEL he was treated as deemed to have been suspended i.e. from the date of detention - 11th January, 1994. C.B.I. investigated the matter and ultimately retention u/S. 120-B r/w. Ss. 420, 409, 467-8 and 471 of the Indian Penal Code was filed in the court on 2nd March, 1995 against five persons which included two other officials of the BHEL Along with the petitioner. The allegations, as per F.I.R., are that these three employees of BHEL entered into criminal conspiracy with other unknown persons and floated a society by the name of Mittergan Sahakari Awas Samiti for the purpose of purchasing land in or around Noida. The society was proposed to be registered with U.P. government under U.P. Cooperative Societies Act, 1965. After floating the society the accused collected a sum of Rs.47 lakhs from the members and deposited in Canara Bank, extension counter, Lodhi Road, New Delhi. They withdrew Rs.16 lakhs each on 25th January, 1989 and 24th May, 1989 through self cheques and later on merged this society with another society by name 'Pushp Enclave Sahakari Griha Nirman Samity Ltd'. According to Deputy Registrar, Cooperative Societies, Meerut, no such merger has taken place and permission of Deputy Registrar is necessary for any such merger of one society into another society. No land was purchased in the name of Mittergan Sahakari Awas Samiti and the amount collected from the members has been swindled.
6. For period of six months after his suspension petitioner was paid subsistence allowances 50% of his salary and allowances which was revised to 75% w.e.f. 12th July, 1984. Infact after the arrest of petitioner on 13th January, 1994 he was released on bail on 25th January, 1994 and thereafter he made representation dated 23rd February, 1994 for revocation of suspension which was turned down vide communication dated 2nd March, 1995. Charges were framed by the Court and criminal trial is in progress. On 13th May, 1996 petitioner again made representation for revocation of suspension which was followed by another representation dated 26th August, 1997 and 8th October, 1997. However as these representations did not evoke any response petitioner sent a legal notice dated 17th November, 1997. Still when the suspension was not revoked petitioner filed this petition in December 1997.
7. The line of argument on the basis of which suspension is challenged in this petition, is same as in the aforesaid writ petition No. 3598 of 1998. It is additionally stated that in the FIR lodged by C.B.I. nothing has been attributed directly to the petitioner. Although the said case does not relate to BHEL and thereforee there is no reason why the petitioner should continue to be kept under suspension. The main purpose of keeping a person under suspension, it is contended is that he should be kept away so that he is not able to tamper with evidence or witnesses. Such a reason does not exist in his case where suspension is not related to the performance of his duties. The petitioner has also alleged discrimination on the ground that other similarly situated persons have been reinstated and incidence of one Shri Jagdish Bahl who was arrested u/S. 306 of the Indian Penal Code and was reinstated once he was given bail by the Court. It is also mentioned that in case of Shri S.K. Bhatia again liniment view was taken although C.B.I.'s case was pending against him. In another incident, one Shri Deepak Sharan was found involved in the case of fraud and in his case also suspension was revoked. Petitioner has also relied upon the decision of Central Administrative Tribunal in the case of Abullais Khan v. The State of West Bengal and others reported in 1986 (3) SLR 16.
8. In the counter affidavit filed on behalf of the respondents BHEL it is stated that the suspension order was rightly passed in terms of Rule 20(2) of the C.D.A. Rules as the petitioner was arrested and remained in custody exceeding 48 hours and thereforee he was deemed to have been suspended w.e.f. the date of his detention. After six months subsistence allowance was increased to 75% of basic pay and allowances. It is also stated that case of the petitioner was considered from time to time and it was decided not to revoke suspension of the petitioner in view of the seriousness of the charges and even C.B.I. had suggested vide letter dated 15th March, 1995 to continue the petitioner under suspension till the completion of trial as chargesheet had been filed against him and four others on 2nd March 1995 under various sections of Indian Penal Code as mentioned above. Allegation of discrimination of taking sympathetic view in few cases are denied and it is stated that these are misquoted by the petitioner as each case is an independent case having its own facts and circumstances and has to be considered on its own merits. The position in respect of the cases cited by the petitioner is explained in the following terms:-
'It is not denied that Shri Jagdish Behl was also arrested by Police and suspended by BHEL. But suspension was revoked by the Disciplinary Authority after he was bailed out. There was no specific recommendations from CBI or Police not to revoke his suspension, and his attending office had no likelihood of intimidating the witnesses or tempering with the evidence. This case pertained to him and family members and totally un-related to BHEL or its employees.
The other two cases quoted by the Petitioner have also got no similarity to his case. The facts of the case are as under:
Smt. Usha Subramaniam, w/o. Shri D. Subramaniam, employee of the respondent Company and Sr. Programmer of Delhi University, Computer Centre was suspended for her alleged involvement in tampering with the marks and merit list of medical entrance examination in respect of one Shri Arvind Bhatia, son of Shri S.K. Bhatia, another employee of the respondent Company. On the above subject CBI filed a case against Smt. Usha Subramaniam (non BHEL employee) as well as Shri D. Subramaniam and Shri S.K. Bhatia. Since the criminal case was not relating to the respondent Company and since Shri S.K. Bhatia and Shri D. Subramaniam were not arrested by CBI or Police, they were not placed under suspension by the respondent Company. Hence their case is not comparable to that of the petitioner. It is submitted that Shri S.K. Bhatia and Shri D. Subramaniam have since retired from the services of the respondent Company.
However in the case of the petitioner, since CBI continued to hold their views and since chargesheet was already filed by CBI, a decision was taken by the respondent Company not to revoke his suspension in the interest of the trial.
The petitioner's statement regarding the case of Shri Deepak Dhawan is also totally misleading and invented for the purpose of this writ. Shri Deepak Dhawan was in fact punished for his alleged involvement of a case of fraud in the Company, by lowering him to next below scale for a specific period, after a departmental enquiry and no a CBI case. In addition, a sum of Rs. 2,74,793/-, being his portion of loss caused to the Company, was to be refunded by him to the Company, which is being recovered in Installment basis of Rs. 1500/- p.m. since 22.4.97'
The respondents have submitted that in view of the seriousness of the charges against the petitioner, his continued suspension pending trial is justified even if the trial is taking time and in support of their submission respondents have relied upon the following judgment:-
i. Allahabad Bank and another Vs . Deepak Kumar D : (1997)ILLJ854SC .
ii. U.P. Rajya Krishi Utpadan Mandi Parishad and others v. Sanjiv Rajan reported in 1993 (3) SCC 483
iii. State of Kerala v. W.I. Services & Estates Limited reported in 1998 (5) SCC 585.
9. Suspension is defined as a State of being debarred. The employee when he is suspended is thus debarred from any privilege, particularly from the execution of an office. It is temporary deprivation of office. However the suspended employee does not lose his office nor does he suffer any degradiation. He only ceases to exercise powers and discharge duties for the time being. Order of suspension does not pertain to his service under his employer he continues to be an employee/member of service inspire of order of suspension. In Khemchand Vs . Union of India : (1959)ILLJ167SC , Supreme Court explained the real effect of order of suspension and clarified that government servant when suspended continues to be a government employee but he is not permitted to work and further during the period of suspension he is paid only some allowances - generally called subsistence allowance - which is normally less than salary instead of pay and allowances he would have been entitled to if he had not been suspended. What subsistence allowance is to be paid depends on the service rules on the subject. Further in the case of P.L. Shah Vs . Union of India : 1967CriLJ1390 , Supreme Court observed that the order of suspension is not an order imposing punishment on a person. It is an order made against him before he is found guilty to ensure smooth disposal of proceedings initiated against him. Such proceedings should be completed expeditiously in public interest and also in the interest of government service concerned. There is no doubt that order of suspension, unless the departmental enquiry is concluded within a reasonable time affects a government servant injuriously (refer O.P. Gupta Vs . Union of India : (1988)ILLJ453SC ).
10. In both these cases, the service rules make provision regarding suspension and the suspension was resorted to as per the said rules. Passing of the suspension order initially, thereforee, cannot be faulted with nor it is challenged by the petitioners in the instant cases on the ground that the suspension order was wrongly passed. However, the dispute which is raised is as to whether in the circumstances of this case, such a suspension could continue indefinitely or, to put it differently, whether continuation of suspension has become illegal?
11. The suspension can be resorted to, under the relevant rules in these cases, in contemplation and/or during the pendency of disciplinary proceedings as well as during the pendency of criminal trial against the employees. In these cases where the employee is suspended in contemplation and/or pending disciplinary proceedings and such a suspension is prolonged, it may not cause much of a problem. If the enquiry is unduly prolonged due to the reasons attributable to the employer e.g. delay in serving charge-sheet or delay in conducting enquiry, the suspension order can be interfered with and the department can be directed to revoke the suspension and take back the suspended employee on duties. Reasons are obvious. Since the suspension causes hardship and affects the government servant injuriously, after suspending him it is expected that departmental proceedings are concluded expeditiously which is in public interest as well as in interest of government servant concerned. In public interest because the concerned suspended employee is being paid the subsistence allowance without taking work from him and in the interest of government servant concerned because the continued suspension is causing hardship to him. For these reasons, it is necessary to know the outcome of the charges leveled against such an employee which compelled the employer to put him under suspension in view of the pendency of departmental proceedings. Since the departmental enquiry is initiated by the department, and it is within the control of the department and when delay takes place in concluding the enquiry the blame can be put on the department for such delay and thereforee it can be inferred that the continuation of suspension is not justified. There are many instances where suspension order/continuation of suspension order are quashed when the departmental enquiry is unnecessarily prolonged (refer T.S. Guru Siddiah v. State reported in AIR 1963 Mysore 109).
12. However, when the concerned employee is suspended pending criminal proceedings and the criminal proceedings are delayed for one reason or the other, whether continuation of suspension can be interfered with? In such cases, the conduct of the proceedings is not within the powers of the employer/department. In such cases, investigation is conducted by police/CBI/vigilance department of government, etc. which are outside agencies. They may take their own time in completing the investigation. After the investigation if the report of such an agency is that the offence is made out and charge-sheet is filed in the competent court of law, than further conduct of proceedings is under the charge of such criminal court which may take its own time in concluding the trial. It is often seen that these proceedings do take longer time to conclude. The departmental authorities have generally no role to play in the conduct of these proceedings and they cannot be faulted with if the proceedings are delayed. In such a situation if the continuation of suspension is challenged as illegal on the ground that criminal proceedings are taking unduly long period, what is the course of action to be adopted by the Court in dealing with the jusitification and or otherwise of such a suspension. It is this situation with which we are concerned in the present cases. The petitioners have raised grievances that proceedings are taking unduly long time on the other hand, respondents submission is that the charges for which the petitioners are suspended are very serious in nature and they have no control over the proceedings pending in the criminal court and thereforee they cannot be faulted with because of the delay taking place in criminal proceedings before the Courts.
13. Let us scan through whatever case law is available on the subject.
14. In the case of K. SukhinderReddy Vs . State of A.P. and another : (2000)ILLJ474SC appellant and IAS officers were placed under suspension under relevant rules prima facie, in view of the criminal case registered against them in the police station concerned. Supreme Court found that the case showed likelihood of many more IAS officers some of whom were even senior to the appellants being involved. Investigation was not completed till two and a half years and there was no information as to how long it was to continue and in such circumstances an officer of the rank of the appellant against whom, it was detected belatedly that no departmental enquiry was contemplated, the Court held that he could not be kept under suspension indefinitely. More so, when despite likelihood of involvement of many more senior officers only appellant was placed under suspension.
15. A Division Bench of this Court in the case entitled K.K. Bhardwaj & another Vs . Delhi Vidyut Board and others : (1999)ILLJ1149Del set aside the suspension order on grounds of delay. That was a case where against the appellants (in two separate LPAs) there were allegations of defalcation by them worth huge amount in respect of incident alleged to have taken place in the year 1982. Appellant no.2 was placed under suspension by order dated 10th February, 1983 and appellant no.1 was suspended by order dated 8th January, 1987. After investigation by CBI challan in the Special Court was filed on 29th May, 1986. In the year 1987 charges were framed by Special Court in the case against appellant no. 1 and on 5th January, 1998 against appellant no.2. Since appellants continued to remain under suspension they challenged suspension orders by filing separate petitions seeking quashing of the suspension orders. Learned Single Judge did not accept the prayer, interalia, observing that for quashing of suspension orders the appellants could move for appropriate relief for diposal of criminal case. In these circumstances, both the appellants filed LPAs before the Division Bench which were decided by aforesaid judgment. In para 4 of the said judgment the division bench formulated the point in the following words :-
'The short point involved in the present appeals is whether on the facts and circumstances of the case the appellants should be asked to wait till disposal of criminal cases and should they remain under suspension after lapse of more than fifteen years in one case and about twelve years in the other.'
16. After dealing with the submissions of both the parties the Court set aside the orders of suspension against both the appellants in the two LPAs and made the following observations in the process:-
'Considering the fact that the appellants have been put under suspension for so many years and no progress has been made in the criminal cases, we are of the view that the appellants' prayer does not deserve to be rejected and they cannot be asked to await till the disposal of the criminal case. The continuance of their suspension, to our mind, is clearly arbitrary and unjustified. It is nobody's case that the appellants were responsible for delay in disposal of the criminal cases.'
17. In the case of U.P. Rajya Krishi Utpadan Samiti v. Sanjeev Rajan (supra) wherein concerned employee was suspended w.e.f. 22nd March, 1991 on the charges of defalcation of moneys or embezzlement of funds. He challenged the suspension by filing writ petition in the High Court on the ground that some other suspended officers had been allowed join services. High Court quashed the suspension order on the said ground. However, investigation into defalcation was in progress for which purpose special auditors were appointed who submitted their report in May 1991 in which it was stated that several lakhs of rupees have been embezzled from the funds of the Market Committee. On 4th May, 1991 an order was passed appointing Enquiry Officer to enquire into the conduct of various officers of the Market Committee. On preliminary enquiry it was found that the defalcation was done either with the active involvement of the employee or with his connivance. In any case he was guilty of dereliction of duty for not scrutinising the amounts of Market Committee properly. With this, prima facie case against the respondent-employee fresh order of suspension Along with chargesheet was served upon him on March 26, 1992. The respondent again approached the High Court and filed the writ petition. Interim order was passed setting aside the order of suspension on the ground that it was not competent on the part of the employer to pass the order of suspension second time in the same manner. Against this Interim Order Special Leave Petition was filed in the Supreme Court and the apex Court while setting aside the order of the High Court held that the ground given by the High Court to stay the operation of the suspension order was wrong and there was no restriction on authority to pass the suspension order second time. The question of delay also came up for discussion and the Supreme Court dealt with this aspect in the following manner:-
'Ordinarily, when there is an accusation of defalcation of the monies, the delinquent employees have to be kept away from the establishment till the charges are finally disposed of. Whether the charges are baseless, malicious or vindictive and are framed only to keep the individual concerned out of the employment is a different matter. But even in such a case, no conclusion can be arrived at without examining the entire record in question and hence it is always advisable to allow disciplinary proceedings to continue unhindered. It is possible that in some case, the authorities do not proceed with the matter as expeditiously as they ought to, which results in prolongation of the sufferings of the delinquent employee. But the remedy in such cases is either to call for an Explanationn from the authorities in the matter, and if it is found unsatisfactory, to direct them to complete the inquiry within a stipulated period and to increase the suspension allowance adequately. It is true that in the present case, the charge-sheet was filed after almost a year of the order of suspension. However, the facts pleaded by the appellants show that the defalcations were over a long period from 1986 to 1991 and they involved some lakhs of rupees. It also appears that the authorities have approached the police and in the police investigation, the amount of defalcation is found to be still more. Since the matter is of taking accounts which are spread over from 1986 to 1991 and of correlating the entries with the relevant documents, and several individuals are involved, the framing of charges was bound to take some time. The Court has to examine each case on its own facts and decide whether the delay in serving the charge-sheet and completing the inquiry is justified or not. However, in the present case, the High Court has not quashed the order of suspension on the ground of delay in framing the charges. As stated earlier, it has set aside the order of suspension on the ground that the authority had no power to pass the second order of suspension in the same case. We are afraid that the High Court has misconstrued the nature and purpose of the power of suspension vested in the management.' .
18. The other case which may have direct bearing for our purpose is again another judgment of the apex Court in the case of Allahabad Bank and another Vs . Deepak Kumar Bhola : (1997)ILLJ854SC . In this case also respondent-employee was suspended pending criminal trial for offences involving moral terpitude. Allegations against him were that of committing forgery and wrongfully withdrawing of money from the bank which he was not entitled to do. The suspension was challenged by the employee which was upheld by the High Court concluding that the mere fact that a person had entered into criminal conspiracy, it could not be recorded that a 'offence involving moral turpitude' have been committed and thereforee bank had no jurisdiction to suspend the employee in terms of clause 19.3(a) of the first partite settlement, 1966 as per which suspension could be resorted to only if the charge related to an offence involving moral terpitude. In appeal filed by the bank, Supreme Court reversed the Judgment of High Court holding that the allegation against the employee amounted to moral terpitude. It would be apt to quote para 11 of the judgment which would show that the Supreme Court was not persuaded by the fact that criminal case was pending for ten years. Para 11 reads as under:-
'We are unable to agree with the contention of the learned counsel for the respondent that there has been no application of mind or the objective consideration of the facts by the appellant before it passed the orders of suspension. As already observed, the very fact that the investigation was conducted by the CBI which resulted in the filing of a charge-sheet, alleging various offences having been committed by the respondent was sufficient for the appellant to conclude that pending prosecution the respsondent should be suspended. It would be indeed inconceivable that a bank should allow an employee to continue to remain on duty when he is facing serious charges of corruption and misappropriation of money. Allowing such an employee to remain in the seat would result in giving him further opportunity to indulge in the acts for which he was being prosecuted. Under the circumstances, it was the bounden duty of the appellant to have taken recourse to the provisions of clause 19.3 of the First Bipartite Settlement, 1966. The mere fact that nearly 10 years have elapsed since the charge-sheet was filed, can also be no ground for allowing the respondent tos come back to duty on a sensitive post in the Bank, unless he is exonerated of the charge.
19. In M. Chengaiah v. State of Tamil Nadu represented by Secretary to Government, Revenue Department, Madras and another reported in 1983(2) SLR 436, Madras High Court held that if the continued suspension pending investigation and registration of criminal case is made out to be the outcome of indifference or inaction, it would result in the order of being vitiated by failure to exercise power justly and equitably. That case was decided in the light of GOMs No. 211 issued by Government of Madras wherein government had impressed upon the concerned authorities to reduce the period of suspension to the barest minimum. However, time limit in the executive instructions were not applicable to cases in which criminal proceedings had been initiated. The relevant portion of the judgment, for our purpose, being para 10 and 11, the same are quoted hereunder:-
'It is pertinent at this juncture to take note of the various circulars issued by the Central Government relating to suspension of its employees. Evidently, adopting what has been done by it, G.O. No. 211, had come to be passed by State Government. The concerned circulars found in the book 'Suspension and Reinstatement', V Edn. by Muthuswami, disclose that the entire emphasis is laid on speedy follow up action in suspension cases, and that every endeavor should be made to reduce the period of suspension to the barest minimum. Neither what the Central Government nor the State Government thinks of its employee, the police officials in charge of this case consider, as enabling characteristics to safeguard them. If the Government servants are guilty they should be punished at the earliest point of time. If not, they should be restored to duty, awaiting filing of chargesheet, or on the trial being taken up, at which point of time they must certainly be placed under suspension till the case is over.
20. In another case entitled D. Sathya Murthy v. Union of India reported (1991) 17 ATC 769, the initial investigation into criminal charges against the employee was made by Chief Vigilance Officer which took a year and a half to conclude the same. It took three more years to register the crime. After further investigation the employee was arrested and put under suspension. However, investigations were conducted for well over 18 months. The long time taken in completion of the criminal investigation coupled with unlikelihood of evidence being tampered with rendered the suspension unjustified and Central Administrative Tribunal quashed the same.
21. In S.R. Arya v. Union of India reported in (1991) 16 ATC 145 even though there was a delay of over two years and yet there was no headway in the trial for no fault of the employee, the suspension was not revoked on the ground that the authority bona fide considered that it was not in the public interest to revoke the suspension. The Central Administrative Tribunal observed:-
'In our opinion, the question whether an order of suspension is legally sustainable or not, would depend on the facts and circumstances of each case. Rule 10(1) of the CCS (CCA) Rules empowers the competent authority to place an officer under suspension when a case against him in respect of a criminal offence is under investigation. Whether the presence of the applicant would hamper the pending proceedings in the criminal court, is a question primarily to be decided by the respondents. There is an element of public interest involved in matters of this kind.'
22. From the various judgments noted above, one can find different approaches adopted by the Courts depending upon the facts of each case. However, after considering all these cases I have tried to deduce principles governing this subject and I formulate following guidelines relating to the cases of prolonged suspension.
i. It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time.
ii. When the delinquent officer is kept under suspension in contemplation or pending departmental enquiry and the enquiry is delayed unduly by the department, the continuation of suspension becomes bad and can be set aside inasmuch as such a delay in enquiry shows that the suspension was not bonafide.
iii. Each case will have to be examined and the legality of the suspension would depend on the facts and circumstances of each case.
iv. The principle mentioned at Seriall no. i above, relating to delay in departmental enquiry cannot be ipso facto made applicable in the cases where suspension is resorted to pending investigation/trial of criminal offence.
v. When an officer is suspended pending investigation of a criminal case against him and the investigation is taking long time or after the completion of investigation no proceedings are initiated either in Court or in department and the suspension continues, continuation of such a suspension would be illegal.
vi. When criminal trial is pending in Court of law and the same is taking time to conclude, in such cases also, it would depend on the facts and circumstances of each case as to whether the continuation of suspension should be treated as unjustified or not. Various factors which should be taken into consideration, while examining this question, would include the seriousness of charges leveled against the delinquent employee and where the charges are such that it would not be in the interest of department/institution to allow such an employee to remain in the seat i.e. where such charges are related to the performance of duties of the concerned official, or where charges are very serious and have direct bearing on the performance of duties by the concerned official, the suspension cannot be revoked only on the ground that the trial is prolonged. What is to be seen is as to whether the authority bonafide considered that it was not in public interest to revoke the suspension. If such a consideration is given by the competent authority and after due application of mind competent authority has held the view that it is not in public interest to revoke the suspension, Court will not interfere with such order of suspension. On the other hand where allegations in the charge-sheet filed in criminal Court are not very serious and the trial is unduly delayed, the continuation of their suspension may not be justified.
23. What can be inferred from the approach of the Courts in such cases is that in those cases where Court found that the charges were very serious like committing forgery or defalcation of money, etc. and it was not in public interest to allow such an employee to join back the duties when he was facing such serious charges particularly keeping in view the nature of duties he was performing having direct bearing on the charges he was facing in criminal Court, even long delay did not convince the Court to quash the suspension and allow the delinquent officer to go back on duty unless he is exonerated of the charge. To put it differently, once the Court found that, keeping in view the nature of charges, it was not in public interest to revoke the suspension, prolongation of the criminal case did not become determinative/influencing factor to set aside the suspension order. Ofcourse, interference with such matters depends on the facts and circumstances of each case and the division bench of this Court set aside the suspension in the case of K.K. Bhardwaj v. Delhi Vidyut Board (supra) even when the allegations of defalcation were leveled against the delinquent officers. However, as against these allegations, the Court was influenced by three factors namely (a) delinquent officials were under suspension for more than 15 years and 12 years respectively; (b) the attitude of CBI had been absolutely callous and it had not assisted the Court inasmuch as no witnesses in the criminal trial has been examined by that time; (c) the allegations were in respect of incident alleged to have taken place in the year 1982 for which charges were framed by the Special Court in one case in the year 1989 and in another case on 5th January, 1998. It was in these circumstances the Court observed that considering the fact that the appellants have been under suspension for so many years and no progress has been made in the criminal cases, the appellants' cannot be asked to await till the disposal of the criminal case.
24. thereforee, no hard and fast rule can be made and even where the suspension is pending criminal trial, the Court can interefere with the order of suspension. But this course would to be resorted to only where the Court is convinced that such continuation of suspension is doing injury to the concerned officer and it is not in public interest either to keep the delinquent official under suspension.
After laying down these broad guidelines let me now examine the validity of the continuation of suspension in these writ petitions.
Civil Writ Petition No. 3598 of 1997
25. In this case the charges against the petitioner are nodoubt, very serious. The criminal case registered against the petitioner is u/S. 7 and 13 of Prevention of Corruption Act. As per the FIR, petitioner had demanded, accepted and obtained Rs. 5000/- as part payment of illegal gratification of Rs.10,000/- from Shri J. Dalal Sharma, Security Supervisor, MCD, I.S. Hospital, Kingsway Camp, New Delhi in consideration of his adjustment of D.A. and pension at the time of his retirement and forwarding pension file to Additional Commissioner (Health, MCD) for sanction. In the counter affidavit filed by the respondent it is stated that the case of the petitioner has been reviewed on many occasions but he was not found fit for reinstatement by the disciplinary authority as it was observed that while holding a senior post in Municipal Corporation of Delhi, it was the primary duty of the petitioner to eradicate and eliminate corruption from the department but the petitioner acting contrary to the said norms expected of an official of his rank indulged in the act of corruption himself by not maintaining the standards of integrity and betraying the evidence of his senior officers reposed in him. thereforee, when the petitioner is facing such type of charges in criminal case pending against him it would not be in public interest to allow such an employee to continue to remain in duty as it would result in giving him further opportunity to indulge in such acts for which he is being prosecuted. thereforee, in this case I am inclined to follow the judgments of the Supreme Court in the case of All India Bank and another v. D kumar Bhola (supra) wherein the Court refused to interfere with the order of suspension even when 10 years had elapsed since the charge-sheet was filed. I am quoting the relevant observations from the judgment once again. Speaking for the Court this is what Kirpal, J had to say:-
It would be indeed inconceivable that a bank should allow an employee to continue to remain on duty when he is facing serious charges of corruption and misappropriation of money. Allowing such an employee to remain in the seat would result in giving him further opportunity to indulge in the acts for which he was being prosecuted. Under the circumstances, it was the bounden duty of the appellant to have taken recourse to the provisions of clause 19.3 of the First Bipartite Settlement, 1966. The mere fact that nearly 10 years have elapsed since the charge-sheet was filed, can also be no ground for allowing the respondent tos come back to duty on a sensitive post in the Bank, unless he is exonerated of the charge.
26. This writ petition is accordingly dismissed. However, I may add that the competent authority should make periodical review of the petitioners' suspension. The petitioner was suspended on 2nd December, 1993. As per the records produced by the respondents, which were perused by this Court, petitioner's case was reviewed on long time ago. The disciplinary authority should again review the case after taking into consideration the progress made in criminal case pending before the Additional Sessions Judge. It should also take into consideration the no objection certificate issued by Anti Corruption Branch and if the trial is taking unduly long time and there is no likelihood of the same being completed in near future, disciplinary authority can consider revoking the suspension by posting the petitioner in a non-sensitive post. This observation is made in view of the petitioner's submission/request that he may be posted in a non-sensitive post if the suspension is revoked. However, it is for the disciplinary authority to take appropriate view in the matter.
Civil Writ Petition No. 5551 of 1997
27. In this case as already stated above, the allegations against the petitioner are that he Along with two other officials of BHEL entered into criminal conspiracy with other unknown persons and floated a Society by the name of Mittergan Sahakari Awas Samiti. After floating the Society they collected a sum of Rs.47 lakhs from memebrs and deposited in bank account. From there they withdrew Rs. 16 lakhs each on different dates through self drawn cheques and later on merged the Society with another Society. As it was found later, no such merger had taken place, no land was purchased in the name of the Society and the amount collected from there members had been swindled by these persons. The charges in this case are also serious and relate to embezzlement and defalcation of the funds. No doubt the embezzlement is not of employer's fund in official capacity but by the petitioner Along with others in private capacity. However, three persons including petitioner are employees of BHEL. The persons who were made members of the so called Society from whom funds were collected were also employees of BHEL iteself. thereforee in view of such serious charges against the petitioner in the criminal case pending against him and the fact that petitioner misused his position of being an employee of BHEL, it is also not a fit case where this Court should exercise discretion in its extraordinary jurisdiction under Article 226 of the Constitution of India. The discussion made above in respect of Civil Writ Petition 3598 of 1997 would be applica-ble in this case also. With same directions to the respondent as contained above, namely it should undertake periodical review of petitioner's suspension, this writ petition is also dismissed.
28. There shall be no order as to costs.