1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Ms. Chhaya Gupta, learned counsel for the petitioner and learned Standing Counsel for respondent nos.1 & 2.
2. The petitioner by means of the present writ petition has assailed the suspension order dated 24.12.2020 passed by respondent no.1.
3. The petitioner was appointed as District Social Welfare Officer. He was promoted to the post of Additional District Development Officer on 07.01.2010. Thereafter, the petitioner was transferred to District Mathura on the post of District Social Welfare Officer/Additional District Development Officer on 27.06.2017.
4. It appears that a report was published in the newspaper Times of India, Lucknow on 11.08.2018 regarding defalcation of funds allocated for students fee reimbursement as well as scholarship by the Directors/Managers and principals of I.T.I. institutions in Mathura. Acting on the said report, the state government constituted a committee to enquire into the allegations of misappropriation of fund of fee reimbursement and scholarship of the students.
5. The committee enquired into the matter and submitted the report on 27.11.2020. The committee found that the allegation of misappropriation of fund prima facie is correct. Based on the aforesaid report, an F.I.R. was also lodged against the erring officers including petitioner under Sections 409, 420 & 468 of I.P.C. Thereafter, petitioner was suspended by order dated 24.12.2020 on the ground that in the inquiry conducted by three members committee in respect of allegations of misappropriation of fund of fee reimbursement and scholarship, it was prima facie found that the petitioner was involved in collusion with private ITI institutions in misappropriation of about 23 crores of public money allotted for scholarship and reimbursement of the fee to students.
6. Challenging the suspension order, learned Senior Counsel for the petitioner has urged that more than seven months have passed from the date of the suspension order, neither charge sheet has been issued nor the inquiry has commenced, therefore, the petitioner cannot remain in suspension for an indefinite period, hence, the suspension order deserves to be quashed. In support of his contention, he has placed reliance upon the judgment of Apex Court in the case of Ajay Kumar Choudhary Vs. Union of India through its Secretary 2015 7 SCC 291.
7. He further contends that the inquiry report reveals that it does not indict the petitioner, therefore, the suspension order has been passed mechanically and without application of mind. He submits that petitioner has issued recovery orders for recovery of the embezzled amount, therefore, the charge against the petitioner of defalcation of huge public money in the suspension order on the face of the record is incorrect. He further submits that the affiliation of private ITI institutions was canceled which has been stayed by this Court in several writ petitions and order of one of such petitions passed in Writ-C No.928 of 2021 is Annexure 7 to the writ petition. He also contends that several officers have been named in the inquiry report, but only the petitioner has been suspended, therefore, the action of the respondent is arbitrary and discriminatory. Thus, he contends that the suspension order is not sustainable in law.
8. Per contra, learned Standing Counsel would contend that the charge against the petitioner is serious inasmuch as the petitioner is said to be involved in embezzlement of Rs. 23 crores which is huge public money allotted for fee reimbursement and scholarship to students, and therefore, considering the nature of the charge leveled against the petitioner, the petitioner has rightly been suspended. He submits that considering the gravity of the charge, the petitioner must be kept out of duty so that he may not manipulate or tamper with the evidence. He further submits that to substantiate the charge against the petitioner that he is involved in the defalcation of Rs. 23 crores of public money; link of the trail of money to various accounts have to be traced out by the authority and investigating agencies which obviously would take time, therefore, considering the nature of the charge, the delay in submitting the charge sheet cannot be ground in the instant case to interfere with the order of suspension.
9. He further submits that the argument of learned counsel for the petitioner that the petitioner has not been indicted in the inquiry is incorrect. He contends that the issuance of the recovery order by the petitioner does not imply that he is not involved in the defalcation of public money.
10. Learned Standing Counsel further contends that so far as the contention of counsel for the petitioner that no other officer except the petitioner has been suspended, the said contention is not borne out from the record since there is no pleading to this effect in the writ petition. He submits that the petitioner cannot take shelter of the interim order passed by this Court in Writ-C No.928 of 2021 filed by the private ITI institutions as stay order in the said writ petitions does not mean that the court has given the clean chit to the institutions.
11. I have considered the rival submissions of the parties and perused the record.
12. Three members committee was constituted pursuant to a report published in the daily newspaper in Times of India, Lucknow on 11.08.2018 unearthing a big scam where 2700 private I.T.I. institutions have been found involved in the misuse of affiliation to these I.T.I. Institutions, and misappropriation of funds allocated for fee reimbursement and scholarship to the students.
13. On the basis of the said report, F.I.R. has been registered against the erring officers including the petitioner under Sections 409, 420, and 468 of IPC. Based on the said inquiry report, the petitioner is charged with involvement in misappropriation of Rs. 23 crores of public money allotted for reimbursement of fees and scholarship to the marginal section of the students. The charge on the face of it is very serious, and if found proved, would entail major punishment.
14. Now coming to the argument of learned counsel for the petitioner that petitioner has issued recovery certificate against the institutions and as per the inquiry report he is not indicted.
15. The inquiry report, page 48 of the paper book, only suggest that District Social Welfare Officer, Mathura on 01.09.2020 issued notices to several I.T.I. institutions for returning excessive fund which has been wrongly paid to them towards fee reimbursement and scholarship to the students.
16. So far as the submission of learned counsel for the petitioner that inquiry report does not indict the petitioner, it is worth mentioning that report is bulky and runs into several pages. At this stage, it would be apt to refer to paragraph 11 of the conclusion of the inquiry report which shows that the petitioner is also indicted. Paragraph 11 of the conclusion of the inquiry report is being reproduced herein below:-
"11. नियमावली के नियम-12 (vii) के अन्तर्गत दशमोत्तर छात्रवृत्ति एवं शुल्क प्रतिपूर्ति की स्वीकृति हेतु गठीत जनपदीय छात्रवृत्ति स्वीकृति समिति व वर्ष 2015-16 से 2019-20 तक जनपद मथुरा मे तैनात रहे जिला समाज कल्याण अधिकारी, जिला विद्यालय निरीक्षक, संयुक्त निदेशक प्रशिक्षण, आगरा मण्डल आदि एवं दशमोत्तर छात्रवृत्ति का कार्य देख रहे सम्बन्धित पटल सहायक अनियमितता के लिए उत्तरदायी हैं। उक्त वर्षों मे कार्यरत रहे जिला समाज कल्याण अधिकारियों व कर्मचारियों का विवरण संलग्न हैं। "
17. Thus, the submission of counsel for the petitioner that the inquiry report does not indict the petitioner is not sustainable.
18. So far as the argument of counsel for the petitioner that more than seven months have elapsed and no charge sheet has yet been issued against the petitioner and he cannot remain in suspension for an indefinite period; in the opinion of the Court, the said submission of the counsel for the petitioner is misconceived in the fact of the present case since considering the gravity of the charge against the petitioner, and the fact that amount of Rs. 23 crores have been defalcated by the petitioner and other persons in connivance with private I.T.I. institutions, it is obvious that the investigation will take time as the investigating agency is to find out the trail of money into various hands to establish the charge. Hence, there would naturally be delay in issuing charge sheet due to the tedious process of finding out the trail of money into various hands.
19. In this respect, it would be apt to refer to the judgment of the Apex Court in the case of U.P. Rajya Krishi Utpadan Mandi Parishad and Others Vs. Sanjiv Rajan 1993 Supp. (3) SCC 483 where on the issue of delay in submitting the charge sheet, Apex Court held as under in paragraph 5 of the aforesaid judgment:-
"5. The ground given by the High Court to stay the operation of the suspension order, is patently wrong. There is no restriction on the authority to pass a suspension order second time. The first order might be withdrawn by the authority on the ground that at that stage, the evidence appearing against the delinquent employee is not sufficient or for some reason, which is not connected with the merits of the case. As happened in the present case, the earlier order of suspension dated March 22, 1991 was quashed by the High Court on the ground that some other suspended officer had been allowed to join duties. That order had nothing to do with the merits of the case. 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 cases, 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 explanation 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 or 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. It is not disputed that at present all officers concerned are served with the charge-sheets and have been suspended. There is no discrimination between the officers on that account. The charges are also grave and the authorities have come to the conclusion that during the disciplinary proceedings, the officers should not continue in employment to enable them to conduct the proceedings unhindered. Hence, we are satisfied that the order in appeal was not justified."
20. In another case of Allahabad Bank and Another Vs. Deepak Kumar Bhola (1997) 4 SCC 1 the Apex Court allowed the appeal of the bank against the order of the High Court setting aside the suspension order of the respondent who was charged with the offence of criminal misconduct and cheating by adopting corrupt and illegal means or otherwise abusing his position to obtain undue pecuniary gain for himself which amounted to an offence involving moral turpitude.
21. One of the arguments raised by the learned counsel for the respondent, as noted by the Apex Court in paragraph 4 of the judgment, is that since 10 years had elapsed from the date order of suspension was set aside, therefore, the Court should not interfere. The said argument was repelled by the Apex Court and it has noted in paragraph 11 of the judgment that merely because 10 years have elapsed since the charge sheet had been filed cannot be a ground to the respondent to come back to duty on a sensitive post of the bank till he is exonerated of the charges. Paragraph 11 of the aforesaid judgment is being extracted herein below:-
"11. We are unable to agree with the contention of 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 C.B.I 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 respondent 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 mis-appropriation 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 to come back to duty on a sensitive post in the Bank, unless he is exonerated of the charge."
22. Now coming to the judgment of the Apex Court in the case of Ajay Kumar Choudhary (supra) relied upon by the learned counsel for the petitioner; the said judgment has been rendered in different factual circumstances wherein an officer was suspended for the charge that he had granted NOC to certain land treating the same to be private land though, in fact, the land was owned by Union of India and held by Director General of Defence Estates. In the said case, the charged officer was suspended on 30.09.2011 and no charge sheet was issued till 21.06.2013 and thereafter, the suspension order was extended from time to time, and when it was extended four times for 90 days w.e.f. 22.03.2013, the appellant challenged the same before the Central Administrative Tribunal who disposed of the Original Application directing that if no charge memo was issued to the appellant before the expiry of 21.06.2013, the appellant would be reinstated in service. The said order came to be challenged by the respondent in the writ petition before the Delhi High Court who allowed the writ petition with certain directions. Against the order of Delhi High Court, the appellant preferred S.L.P. and Apex Court held that currency of a suspension order should not extend beyond three months if, within this period, the charge sheet is not served on the delinquent employee. Paragraph 21 of the said judgment is being reproduced herein below:-
"21. We, therefore, direct that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employee; if the memorandum of charges/charge-sheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us."
23. The judgment of Apex Court in the case of Ajay Kumar Chaudhary (supra) has not noticed the judgments of Apex Court in the cases of U.P. Rajya Krishi Utpadan Mandi Parishad (supra) and Allahabad Bank and Another (supra). Further, the judgment of Apex Court in the case of Ajay Kumar Chaudhary (supra) was rendered in a factual situation where charge leveled against the appellant was that he has wrongly granted N.O.C. to the land owned by the Union of India which was held by the Director-General of Defence Estates treating it to be private land and there was no charge of defalcation of huge amount of money traveling into the hands of several persons as in the present case.
24. It is worth noticing that where such a huge amount of money has been defalcated by several officers in collusion with Directors/Managers and Principals of several institutions; naturally, the investigation would take time to ascertain the link of the flow of money into hands of several persons, who colluded with each other to misappropriate such a huge amount.
25. In the case in hand, only seven months have elapsed, and considering the gravity of the charge, this Court finds that the judgment of Ajay Kumar Chaudhary (supra) does not come in aid to the petitioner rather, the principles elucidated by the Apex Court in the cases of U.P. Rajya Krishi Utpadan Mandi Parishad (supra) and Allahabad Bank and Another (supra) are applicable, and delay in submitting the charge sheet cannot be ground to interfere in the suspension order.
26. The contention of learned counsel for the petitioner that no other person except petitioner has been suspended is also not substantiated from the record since there is no pleading in the writ petition stating the name of persons who are also charged with the same allegation as that of the petitioner have not been suspended.
27. The submission of learned counsel for the petitioner that several I.T.I. institutions who are also charged with defalcation of money have been granted an interim order by this Court, and therefore, prima facie, the charge leveled against the petitioner is not correct is concerned, the said submission also has no substance inasmuch as the mere grant of interim order in favour of some of the I.T.I. institutions does not establish that charge against the petitioner is incorrect or false. Therefore, the said contention does not stand to merit.
28. This Court before concluding, may note that Apex Court in the case of Ajay Kumar Chaudhary (supra) has expressed its reservation regarding practice of keeping an employee under suspension for an indeterminate period, therefore, keeping in view the fact that suspension order should not be for an indeterminate period as it amounts to harassment of an employee and employee has to endure the scorn of the society and would injure his reputation in the society and his family, this Court believes that considering the nature of charge in the instant case, one and half year would be sufficient time within which the respondents should issue charge sheet. If for any reason, the respondents are not able to submit the charge sheet within the said period, it is open to the petitioner to submit a representation before the competent authority requesting for revocation of the suspension order. In case, petitioner submits any such representation for revocation of the suspension order, and if, the competent authority thinks that the petitioner should continue under suspension, he shall pass reasoned and speaking order on the representation of the petitioner specifying the reasons for continuance of suspension of the petitioner.
29. Thus, for the reasons given above, the writ petition lacks merit and is accordingly, dismissed subject to the observations made above.
Order Date :- 8.10.2021.
Sattyarth