# UNION OF INDIA & ANR v. ASHOK KUMAR AGGARWAL

- **Citation:** [2013] 12 S.C.R. 629
- **Court:** Supreme Court of India
- **Decided:** 2013-11-22
- **Case number:** Civil Appeal No. 9454 of 2013
- **Bench:** Dr. B.S. Chauhan, S.A. Bobde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-anr-v-ashok-kumar-aggarwal-28638
- **Pages:** 45

## Headnote

SERVICE LAW:
A
B
Suspension -
Renewal of, after suspension order c
quashed by Tribunal - Legality of- Criminal cases pending
against delinquent officer -
Officer placed under suspension
- Departmental proceedings also initiated - Suspension
reviewed from time to time - Tribunal quashing suspension
orders with certain directions -
Order not challenged -
0
Further suspension orders passed irrespective the order of
Tribunal -
Quashed by Tribunal -
Held: It was not
permissible for appellants to pass any fresh order of
suspension till the commencement of trial before criminal
court- Tribunal and High Court were right that appellants had
E
not followed the directions of Tribunal and the mandate of
Department's O.M. dated 7.1.2004 -
The terms of the said
0. M. were required to be observed -
Subsequent order of
suspension was a nullity - More so, the issue could not have
been re-agitated by virtue of the application of doctrine of res
judicata - It is a clear case of legal malice - Constitution of
F
India, 1950 - Arts. 14 and 16 - Administrative law - Legal
malice -
0. M. dated 7.1.2004-Res judicata.
Suspension order - Held: Should be pa$sed only where
there is a strong prima facie case against the delinquent, and
G
if the charges stand proved, would ordinarily warrant
imposition of major punishment i.e. removal or dismissal from
service, or reduction in rank etc.- CCS (CCA) Rules, 1965
are a self contained code and the order of suspension can
629
H
630
SUPREME COURT REPORTS
(2013] 12 S.C.R.
A be examined in the light of the statutory provisions to
determine as to whether the suspension order was justified -
Central Civil Services (Classification, Control and Appeal)
Rules, 1965 - r. 10(6).
8
Suspension order - Judicial review of - Held: Long
period of suspension does not make the order of suspension
invalid -
Whether the employee should or should not
continue in his office during the period of enquiry is a matter
to be assessed by disciplinary authority concerned and
C ordinarily court should not interfere with orders of suspension
unless they are passed in ma/a fide and without there being
even a prima facie evidence on record connecting the
employee with the misconduct in question.
D
Suspension - Connotation and effect of - Explained.
Representation - Held: May be considered by competent
authority if it is so provided under the statutory provisions and
the court should not pass an order directing any authority to
decide the representation for the reasons that many a times,
E unwarranted or time-barred claims are sought to be
entertained before the authority.
CONSTITUTION OF IND/A, 1950:
Art. 136 - Exercise of jurisdiction under - Explained -
F Held: Jn the instant case, appellants having acted
unreasonably and illegally, are not entitled to relief before the
Court.
The respondent, an Officer belonging to the Indian
Revenue Service and during the relevant time on
G deputation to Enforcement Directorate as Deputy Director
(Enforcement), was put under suspension since
28.12.1999 in view of the pendency of two criminal cases
against him duly investigated by the Central Bureau of
Investigation. The suspension order was reviewed from
H
UNION OF IND!A v. ASHOK KU:v1AR AGGARWAL
53•
time to time. The respondent filed an OA before the A
Tribunal seeking to quash the suspension order. The
Tribunal, by order dated 16.12.2011, directed the
appellants to convene a meeting of the Special Review
Committee (SRC) to consider revocation or continuation
of suspension of the respondent after taking into B
consideration various factors mentioned in its order.
Thereafter, as recommended by the SRC, the competent
authority, by orders dated 12.1.2102 and 3.2.2012,
decided to continue the suspension of the respondent.
The respondent challenged the said orders by filing c
another OA before the Tribunal, which, by order dated
1.6.2012, quashed the orders impugned holding that the
earlier directions given by the Tribunal on 16.12.2011 had
not been complied wi

## Text

_Characters 0–39,641 of 81,664. This is a partial read: ask again with offset=39641 for what follows._

[2013] 12 S.C.R. 629
UNION OF INDIA & ANR.
v.
ASHOK KUMAR AGGARWAL
(Civil Appeal No. 9454 of 2013)
NOVEMBER 22, 2013
[DR. B.S. CHAUHAN AND S.A. BOBDE, JJ.]
SERVICE LAW:
A
B
Suspension -
Renewal of, after suspension order c
quashed by Tribunal - Legality of- Criminal cases pending
against delinquent officer -
Officer placed under suspension
- Departmental proceedings also initiated - Suspension
reviewed from time to time - Tribunal quashing suspension
orders with certain directions -
Order not challenged -
0
Further suspension orders passed irrespective the order of
Tribunal -
Quashed by Tribunal -
Held: It was not
permissible for appellants to pass any fresh order of
suspension till the commencement of trial before criminal
court- Tribunal and High Court were right that appellants had
E
not followed the directions of Tribunal and the mandate of
Department's O.M. dated 7.1.2004 -
The terms of the said
0. M. were required to be observed -
Subsequent order of
suspension was a nullity - More so, the issue could not have
been re-agitated by virtue of the application of doctrine of res
judicata - It is a clear case of legal malice - Constitution of
F
India, 1950 - Arts. 14 and 16 - Administrative law - Legal
malice -
0. M. dated 7.1.2004-Res judicata.
Suspension order - Held: Should be pa$sed only where
there is a strong prima facie case against the delinquent, and
G
if the charges stand proved, would ordinarily warrant
imposition of major punishment i.e. removal or dismissal from
service, or reduction in rank etc.- CCS (CCA) Rules, 1965
are a self contained code and the order of suspension can
629
H
630
SUPREME COURT REPORTS
(2013] 12 S.C.R.
A be examined in the light of the statutory provisions to
determine as to whether the suspension order was justified -
Central Civil Services (Classification, Control and Appeal)
Rules, 1965 - r. 10(6).
8
Suspension order - Judicial review of - Held: Long
period of suspension does not make the order of suspension
invalid -
Whether the employee should or should not
continue in his office during the period of enquiry is a matter
to be assessed by disciplinary authority concerned and
C ordinarily court should not interfere with orders of suspension
unless they are passed in ma/a fide and without there being
even a prima facie evidence on record connecting the
employee with the misconduct in question.
D
Suspension - Connotation and effect of - Explained.
Representation - Held: May be considered by competent
authority if it is so provided under the statutory provisions and
the court should not pass an order directing any authority to
decide the representation for the reasons that many a times,
E unwarranted or time-barred claims are sought to be
entertained before the authority.
CONSTITUTION OF IND/A, 1950:
Art. 136 - Exercise of jurisdiction under - Explained -
F Held: Jn the instant case, appellants having acted
unreasonably and illegally, are not entitled to relief before the
Court.
The respondent, an Officer belonging to the Indian
Revenue Service and during the relevant time on
G deputation to Enforcement Directorate as Deputy Director
(Enforcement), was put under suspension since
28.12.1999 in view of the pendency of two criminal cases
against him duly investigated by the Central Bureau of
Investigation. The suspension order was reviewed from
H
UNION OF IND!A v. ASHOK KU:v1AR AGGARWAL
53•
time to time. The respondent filed an OA before the A
Tribunal seeking to quash the suspension order. The
Tribunal, by order dated 16.12.2011, directed the
appellants to convene a meeting of the Special Review
Committee (SRC) to consider revocation or continuation
of suspension of the respondent after taking into B
consideration various factors mentioned in its order.
Thereafter, as recommended by the SRC, the competent
authority, by orders dated 12.1.2102 and 3.2.2012,
decided to continue the suspension of the respondent.
The respondent challenged the said orders by filing c
another OA before the Tribunal, which, by order dated
1.6.2012, quashed the orders impugned holding that the
earlier directions given by the Tribunal on 16.12.2011 had
not been complied with. The writ petition filed by the
appellants was dismissed the High Court.
It was contended for the appellants that though the
respondent had been under suspension for 14 years, but
in view of the gravity of the charges against him in the
disciplinary proceedings as well as in the criminal cases,
D
no interference was warranted by the Tribunal or the E
High Court. It was submitted that the respondent had
himself filed 27 cases in court and made 62
representations. It was further submitted that the
domestic enquiry stood completed and charges stood
proved against the respondent, but no punishment order F
could be passed by the disciplinary authority in view of
the fact that the charge sheet itself had been quashed by
the Tribunal.
Dismissing the appeal, the Court
HELD: 1.1 Representation may be considered by the
competent authority if it is so provided under the
statutory provisions and the court should not pass an
order directing any authority to decide th~ representation.
G
H
632
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A
for the reasons that many a times, unwarranted or timebarred claims are sought to be entertained before the
authority. More so, once a representation has been
decided, the question of making second representation
on a similar issue is not allowed as it may also involve
B the issue of limitation etc. [para 6] [648-D-F]
Rabindra Nath Bose & Ors. v. Union of India & Ors., 1970
(2) SCR 697 =AIR 1970 SC 470; Employees' State Insurance
Corpn. v. All India Employees' Union & Ors., 2006 (3)
c SCR 361 = (2006) 4 sec 257; AP.S.R. T.C. & Ors. v. G.
Srinivas Reddy & Ors., 2006 (2) SCR 494 =AIR 2006 SC
1465; Karnataka Power Corporation Ltd. & Anr. v. K.
Thangappan & Anr., 2006 (3) SCR 783 =AIR 2006 SC 1581;
Eastern Coalfields Ltd. v. Dugal Kumar, 2008 (11) SCR 369
= AIR 2008 SC 3000; and Uma Shankar Awasthi v. State of
D U.P. & Anr:, 2013 (3) SCR 935 = (2013) 2 sec 435 - relied
on.
2.1 Suspension is a device to keep the delinquent out
of the mischief range. The purpose is to complete the
E proceedings unhindered. Suspension is an interim
measure in aid of disciplinary proceedings so that the
delinquent may not gain custody or control of papers or
take any advantage of his position. During suspension,
relationship of master and servant continues between
F the employer and the employee. Suspension means the
action of debarring for the time being from a function or
privilege or temporary deprivation of working in the
office. In certain cases, suspension may cause stigma
even after exoneration in the departmental proceedings
G or acquittal by the criminal court, but it cannot be treated
as a punishment in strict legal sense. [para 7 and 14] [648H; 649-A-C; 653-E-F]
H
O.P. Gupta v. Union of India & Ors., 1988 (1) SCR
27 =AIR 1987 SC 2257; and Capt. M. Paul Anthony v. Bharat
UNION OF INDIA v. ASHOK KUMAR AGGARWAL
633
Gold Mines Ltd. & Anr., 1999 (2) SCR 257 =AIR 1999 SC A
1416; State of Orissa v. Bimal Kumar Mohanty 1994 (2) SCR
51 =AIR 1994 SC 2296; R.P. Kapur v. Union of India & Anr.
1964 SCR 431 = AIR 1964 SC 787; and Balvantrai Ratilal
Patel v. State of Maharashtra, 1968 SCR 577 = AIR 1968
SC 800.
B
2.2 Suspension order should be passed only where
there is a strong prima facie case against the delinquent,
and if the charges stand proved, would ordinarily warrant
imposition of major punishment i.e. removal or dismissal C
from service, or reduction in rank etc. [para 1 O] [651-A-B]
2.3 Long period of suspension does not make the
order of suspension invalid. Whether the employee
should or should not continue in his office during the
period of enquiry is a matter to be assessed by the D
disciplinary authority concerned and ordinarily the court
should not interfere with the orders of suspension unless
they are passed in mala fide and without there being even
a prima facie evidence on record connecting the
employee with the misconduct in question. [para 12 and E
14] [651-H; 653-D-E]
State of H.P. v. B.C. Thakur, (1994) SCC-{L&;S) 83~nd
Jayrajbhai Jayantibhai Patel v. Ani/bhai Nathubhai Patel &
Ors. 2006 (5) Suppl. SCR 884 = (2006) 8 SCC 200; State
of M.P. v. Sardul Singh, (1970) 1 SCC 108; P. V. Srinivasa
F
Sastry v. Comptroller & Auditor General of India, 1992 (3)
Suppl. SCR 503 = (1993) 1 SCC 419; Director General, ES/
& Anr. v. T. Abdul Razak, 1996 (3) Suppl. SCR 80 =AIR 1996
SC 2292; Kusheshwar Dubey v. Mis Bharat Cooking Coal Ltd.
& Ors., 1988 (2) Suppl. SCR 821 =AIR 1988 SC 2118; Delhi G
Cloth General Mills vs. Kushan Bhan, 1960 SCR 227 =AIR
1960 SC 806; U.P. Rajya Krishi Utpadan Mandi Parishad &
Ors. v. Sanjeev Rajan, (1993) Supp. (3) SCC 483; State of
Rajasthan v. B.K. Meena & Ors., 1996 (7) Suppl. SCR 68 =
H
634
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A (1996) 6 SCC 417; Secretary to Govt., Prohibition and Excise
Department v. L. Srinivasan 1996 (2) SCR 737 = (1996) 3
SCC 157; and Allahabad Bank & Anr. v. Deepak Kumar
Bhola, 1997 (2) SCR 1055 = (1997) 4 SCC 1 -
referred to.
B
2.4 Central Civil Services (Classification, Control and
Appeal) Rules, 1965 are a self contained code and the
order of suspension can be examined in the light of the
statutOry provisions to determine as to whether the
suspension order was justified. Rule 10 of the Rules 1965
C provides for suspension and clause (6) thereof provides
for review thereof by the competent authority before
expiry of 90 days from the effective date of suspension.
However, the extension of suspension shall not be for a
period exceeding 180 days at a time. The eve can also
review the progress of investigation conducted by the
D CBI in a case under the Act 1988. The Vigilance Manual
issued by eve on 12-1-2005 specifically deals with
suspension of a public servant. Clause 6.1 read with
Clau~e 6.3.2 thereof provide that suspension is an
executive order only to prevent the delinquent employee
E to perform his duties during the period of suspension.
However, as the suspension order constitutes a great
hardship to the person concerned as it leads to reduction in
emoluments, adversely affects his prospects of promotion and
also carried a stigma, an order of suspension should not
F be made in a perfunctory or in a routine and casual
manner but with due care and caution after taking all factors
into account. Clause 6.3.3 further provides that before
passing the order of suspension the competent authority
may consider whether the purpose may be served if the
G officer is transferred from his post. The Department of
Personnel and Training, Government of India also issued
Circular dated 4.1.2004 regarding the suspension and
review of the suspension order. [para 13 and 15] [652-B;
653-G-H; 654-A-F, H; 655-A]
H
UNION OF INDIA v. ASHOK KUMAR AGGARWAL
635
Union of India & Ors. v. Udai Narain, (1998) 5 SCC 535 A
- referred to.
'
2.5 In Dipak Mali*, this Court held that if the initial or
subsequent period of extension has expired, the
suspension order comes to an end because of the expiry 8
· of the period provided under rule 10(6) of the Rules 1965.
Subsequent review or extension thereof is not
permissible for the reason that earlier order had become
invalid after expiry of the original period of 90 days or
extended period of 180 days. [para 26] [659-E-F]
*Union of India & Ors. v. Dipak Mali, 2009 (16) SCR 564
=AIR 2010 SC 336 - relied on.
c
2.6 The Tribunal inter alia had placed reliance on
notings of the file. Notings in the files could not be relied 0
upon by the Tribunal and Court. [para 16 and 18] [655-B;
656-F]
Shanti Sports Club v. Union of India 2009 (13) SCR 710
= (2009) 15 SCC 705; Sethi Auto Service Station v. ODA,
2008 (14) SCR 598 = AIR 2009 SC 904; Jasbir Singh E
Chhabra v. State of Punjab (2010) 4 SCC 192 - relied on.
3.1 By order dated 16.12.2011 the Tribunal had
directed the appellants to reconsider the whole case
taking into account various issues enumerated in the F
order. The Tribunal neither directed the competent
authority not to renew the order of suspension nor to
decide the case in a particular way. Rather simple
directions were issued to take into consideration the
factors enumerated in its order before any order is G
passed. Though the Tribunal took note of the fact that the
charges against the respondent were grave, it held that
continuance of his suspension was not tenable and, as
such, the said orders were quashed and set aside with
the direction to the appellants to revoke the respondent's H
636
SUPREJ\/IE COURT REPORTS
[2013] 12 S.C.R.
A suspension and to reinstate him in service with all
consequential benefits. However, liberty was given to the
appellants that if at any point of time the criminal trial
commenced, the appellants could consider the possibility
of keeping the officer under suspension at that point of
B time, if the facts and circumstances so warranted. [para
18 and 21] [656-G; 657-C-D, G-H; 658-A-B]
3.2 The order dated 16.12.2011 was not challenged
by the appellants and, thus, it attained fil)ality. Therefore,
it was not permissible for the appellants to pass any fresh
C order of suspension till the commencement of the trial
before the criminal court. [Para 22] [658-C]
3.3 This Court in Manohar Lat•• has held that any
order passed by any authority in spite of the knowledge
D of order of the court, is of no consequence as it remains
a nullity and any subsequent action thereof would also
be a nullity. [para 25] [659-C-D]
**Manohar Lal (D) by LRs. v. Ugrasen (D) by LRs. & Ors.,
2010 (7) SCR 346 =AIR 2010 -SC 221 O; Mu/raj v. Murti
E Raghunathji Mahaaraj 1967 SCR 84 =AIR 1967 SC 1386,
Surjit Singh & Ors. etc. etc. v. Harbans Singh & Ors. etc. etc.,
1995 (3) Suppl. SCR 354 =AIR 1996 SC 135; Delhi
Development Authority v. Skipper Construction Company (P)
Ltd. & Anr., 1996 (2) Suppl. SCR 295 =AIR 1996 SC 2005;
F and Gurunath Manohar Pavaskar & Ors. v. Nagesh Siddappa
Navalgund & Ors., 2007 (13) SCR 77 =AIR 2008 SC 901 -
relied on
3.4 The order dated 31.7.2012 is a nullity being in
G contravention of the final order of the Tribunal which had
attained finality. More so, the issue could not have been
re-agitated by virtue of the application of the doctrine of
res judicata. [para 28] [660-D-E]
H
State of U.P. v. Neeraj Chaubey, 201 O (11) SCR 542 =
UNION OF INDIA v. ASHOK KUMAR AGGARWAL
637
(2010) 10 SCC 320 and State of Orissa & Anr. v. Mamata
A
Mohanty 2011 (2) SCR 704 = (2011) 3 sec 436 - relied
on.
Satyadhyan Ghosa/ & Ors. v. Smt. Deorajin Debi & Anr.,
1960 SCR 590 =AIR 1960 SC 941; Oaryao & Ors. v. State
B
of U.P. & Ors., 1962 SCR 574 =AIR 1961 SC 1457; Greater
Cochin Development Authority v. Leelamma Va/son & Ors.,
AIR 2002 SC 952; 2004 (6) Suppl. SCR 1104 =AIR 2005
SC 626 Hope Plantations Ltd. v. Ta/uk Land Board,
Peermade & Anr. 1998 (2) Suppl. SCR 514 = (1999) 5 SCC
C
590 - referred to
3~5 Therefore, it was not permissible for the
appellants to consider the renewal of the suspension
order or to pass a fresh order without challenging the
order of the Tribunal dated 1.6.2012 and such an attitude
D
tantamounts to contempt of court and arbitrariness as it
is not permissible for the executive to scrutinize the order
of the court. [para 31] [661-H; 662-A]
4.1 The scope of Arts. 14 and 16 of the Constitution
E
of India is wide and pervasive as those Articles embodied
the principle of rationality and they are intended to strike
against arbitrary and discriminatory action taken by the
State. The facts of the instant case make it crystal clear
that it is a case of legal malice. [para 32 and 34] [662-BF
C, H]
Kalabharati Advertising v. Hemant Vimalnath Narichania
& Ors., 2010 (10) SCR 971 =AIR 2010 SC 3745;. Dr. Amarjit
Singh Ahluwalia v. State of Punjab & Ors. 1975 (3) SCR 82 =
AIR 1975 SC 984; Union of India v. K.M. Shankarappa, 2000
G
(5) Suppl. SCR 117 = (2001) 1SCC582; Vitara/li v. Seaton,
359 US 536 - relied on
4.2 The record of the case reveals that this Court has
granted interim order dated 8.10.2012 staying the
H
638
SUPREME COURT REPORTS
[2013] 12 s.c.q.
A operation of the judgment and order dated 1.6.:.!012 but
that would not absolve the appellants of passing an
illegal, unwarranted and uncalled for order of renewal of
suspension on 31.7.2012 and that order being void, the
sanctity/validity of the orders passed on 21.1.2013 and
B 17.7.2013 becomes doubtful. It further creates doubt
whether the appellants, who had acted such
unreasonably or illegally, are entitled to any relief before
this Court. The Tribunal and the High Court were right that
the appellants had not followed the directions of the
c Tribunal issued on 16.12.2011 and the mandate of
Department's O.M. dated 7.1.2004. The terms of the said
O.M. were required to be observed. [para 35] [663-E-G]
4.3 Jurisdiction under Art.136 of the Constitution is
0 basically one of conscience. The jurisdiction is plenary
and residuary. Therefore, even if the matter has been
admitted, there is no requirement of law that Court must
decide it on each and every issue. The Court can revoke
the leave as such jurisdiction is required to be exercised
only in suitable cases and very sparingly. The law is to
E be tempered with equity and the Court can pass any
equitable order considering the facts of a case. In such
a situation, conduct of a party is the most relevant factor
and in a given case, the Court may even refuse to
exercise its discretion under Art. 136 for the reason that
F it is not necessary to exercise such jurisdiction just
because it is lawful to do so. para 36] [663-H; 664-A-C]
Pritam Singh v. The State, 1950 SCR 453 =AIR 1950
SC 169; Taherakhatoon (D) by Lrs. v. Salambin
G Mohammad 1999 (1) SCR 901 = AIR 1999 SC 1104; and
Karam Kapahi & Ors. v. Mis. Lal Chand Public Charitable
Trust & Anr., 2010 (4 ) SCR 422 = AIR 2010 SC 2077 -
relied on.
5.1 An authority cannot issue orders/office
H memorandum/ executive instructions in contravention of
UNION OF INDIA v. ASHOK KUMAR AGGARWAL
639
the statutory Rules. However, instructions can be issued A
only to supplement the statutory rules but not to supplant
it. Such instructions should be subservient to the
statutory provisions. [para 38) [664-G-H]
Sant Ram Sharma v. State of Rajasthan & Ors., AIR 1967
SC 1910; Union of India & Ors. v. Majji Jangammayya & Ors.,
8
1977 (2) SCR 28 =AIR 1977 SC 757; P.O. Aggarwal & Ors.
v. State of U.P. & Ors., 1987 (3) SCR 427 =AIR 1987 SC
1676; Paluru Ramkrishnaiah & Ors. v. Union of India & Anr.,
1989 (2) SCR 92 =AIR 1990 SC 166; C. Rangaswamaiah &
Ors. v. Kamataka Lokayukta & Ors.1998 (3) SCR 837 = AIR C
1998 SC 2496; and JAC of Airlines Pilots Association of India
& Ors. v. rhe Director General of Civil Aviation & Ors., 2011
(5) SCR 1019 =AIR 2011 SC 2220; Naga People's
Movement of Human Rights v. Union of India 1997 (5) Suppl.
SCR 469 =AIR 1998 SC 431- relied on.
D
Nagaraj Shivarao Karjagi v. Syndicate Bank, Head
Office, Manipal & Anr. 1991 (2) SCR 576 =AIR 1991 SC
1507; State of U.P. & Ors. v. Maharaja Dharmander Prasad
Singh & Ors., 1989 (1) SCR 176 =AIR 1989 SC 997 -
E
referred to.
5.2 Considering the case in totality, this Court is of
the view that the appellants have acted in contravention
of the final order dated 1.6.2012 passed by the Tribunal
and therefore, there was no occasion for the appellants F
for passing the order dated 31.7.2012 or any subsequent
order. The orders passed by the appellants are in
contravention of not only of the order of the court but also
to the office memorandum and statutory rules. [para 42]
~~~
G
Case Law Reference:
1970 (2) SCR 697
2006 (3) SCR 361
2006 (2) SCR 494
relied on
relied on
relied on
para 6
para 6
para 6
H
A
B
c
D
E
F
G
H
640
SUPREME COURT REPORTS
[2013] 12 S.C.R.
2006 (3) SCR 783
2008 (11) SCR 369
2013 (3) SCR 935
1988 (1) SCR 27
1999 (2) SCR 257
1994 (2) SCR 51
1964 SCR 431
1968 SCR 577
relied on
relied on
relied on
relied on
relied on
relied on
relied on
relied on
2006 (5) Suppl. SCR 884 referred to
(1994) SCC (L&S) 835
referred to
(1998) 5 sec 535
(1998) 5 sec 535
referred to
referred to
(1970) 1 sec 108
referred to
1992 (3) Suppl. SCR 503 referred to
1996 (3) Suppl. SCR 80 referred to
1988 (2) Suppl. SCR 821 referred to
1960 SCR 227
referred to
(1993) Supp. (3) SCC 483 referred to
1996 (7) Suppl. SCR 68 referred to
1996 (2) SCR 737
referred to
1997 (2) SCR 1055
2009 (13) SCR 710
2008 (14) SCR 598
(2010) 4 sec 192
referred to
relied on
relied on
relied on
para 6
para 6
para 6
para 7
para 7
para 8
para 8
para 8
para 11
para 12
para 13
para 14
para 14
para 14
para 14
para 14
para 14
para 14
para 14
para 14
para 14
para 16
para 16
Para 17
BHARAT PETROLEUM CORP. LTD. v. CHEMBUR
641
SERVICE STATION
1967 SCR 84
relied on
1995 (3) Suppl. SCR 354 relied on
1996 (2) Suppl. SCR 295 relied on
2007 (13) SCR 77
relied on
2010 (7) SCR 346
relied on
2009 (16) SCR 564
2010 (11) SCR 542
2011 (2) SCR 704
1960 SCR 590
1962 SCR 574
AIR 2002 SC 952
relied on
referred to
referred to
referred to
referred to
referred to
2004 (6) Suppl. SCR 1104 referred to
1998 (2) Suppl. SCR 514 referred to
1975 (3) SCR 82
referred to
359 US 536
referred to
2000 (5) Suppl. SCR 117 referred to
2010 (10) SCR 971
relied on
1950 SCR 453
1999 (1) SCR 901
2010 (4) SCR 422
1977 (2) SCR 28
1987 (3) SCR 427
1989 (2) SCR 92
1998 (3) SCR 837
relied on
relied on
relied on
relied on
relied on
relied on
relied on
para 25
A
para 25
para 25
para 25
8
para 25
para 26
para 27
para 27
para 29
para 29
para 29
para 29
para 30
para 32
para·32
para 33
para 34
para 36
para 36
para 36
para 38
para 38
para 38
c
D
E
F
G
para 38
H
A
B
642
SUPREME COURT REPORTS
[2013] 12 S.C.R
2011 (5) SCR 1019
relied on
para 38
1997 (5) Suppl. SCR 469 relied on
para 39
1991 (2) SCR 576
referred to
para 40
1989 (1) SCR 176
referred to
para 41
CIVIL APPELLATE JURISDICTION : Civil Appeal No
9454 of 2013.
From the Judgment and Order dated 17.09.2012 of the
c High Courtof Delhi at New Delhi in W.P. (C) No. 5247 of 2012.
Indira Jaising, ASG, R. Balasubramaniam, Anindita Pujari,
Anil Katiyar, Sonakshi Malhan, Rajiv Nanda, Madhurima Tatia,
Sadhana Sandhu for the Appellants.
D
Dhruv Mehta, Aman Vachher, Ashutosh Dubey, Yash,
E
Abhishek Chauhan, Harsh Sharma, Balbir Singh Gupta for the
Respondent.
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. This appeal has been preferred
by the Union of India against the judgment and order dated
17.9.2012, passed by the High Court of Delhi at New Delhi in
Writ Petition (Civil) No.5247 of 2012 affirming the judgment and
F order dated 1.6.2012, passed by the Central Administrative
Tribunal, New Delhi (hereinafter referred to as the 'Tribunal') in
OA No.495 of 2012 filed by the respondent by which and
whereunder the Tribunal has quashed the suspension order
passed by the appellimts.
G
2. Facts and circumstances giving rise to this _appeal are:
A. That the respondent who belongs to the Indian Revenue
Service (lncpme Tax-1985 batch) has been put under
suspension since 28.12.1999 in view of the pendency of two
H criminal cases against him duly investigated by the Central
UNION OF INDIA v. ASHOK KUMAR AGGARWAL
643
[DR. B.S. CHAUHAN, J]
Bureau of Investigation (for short 'CBI') and in which he was also A
arrested on two occasions, namely, 23.12.1999 and
19.10.2000 in relation to the said cases. During the relevant
time, the respondent was on deputation to Enforcement
Directorate and was working as Deputy Director
(Enforcement).
B
B. The CBI registered RC No.S18/E0001/99 dated
29.1.1999 against the respondent in respect of certain illegal
transactions whereby the Directorate had seized a fax
message (debit advice) from the premises of one Subhash c
Chandra Bharjatya purported to have been sent from Swiss
Bank Corporation, Zurich, Switzerland, which reflected a debit
of US$ 1,50,000 from the account of Royalle Foundation,
Zurich, Switzerland in favour of one S.K. Kapoor, holder of
account number 002-9-608080, Hong Kong & Shanghai 0
Banking Corporation (HSBC), Head office at Hong Kong, as
per the advice of the customer, i.e. Royalle Foundation.
Subhash Bharjatya filed a complaint dated 4.1.1998 alleging
the said fax message to be a forgery and had been planted in
his premises during the course of search in order to frame him
E
and further that he and his employee were illegally detained on
the night of 1.1.1998 and were threatened and manhandled. It
was in the investigation of this case that CBI took a prima facie
view that respondent was part of a criminal conspiracy with coaccused Abhishek Verma to frame Subhash Chandra
F
Bharjatya in a case under Foreign Exchange Regulation Act,
1973 (hereinafter referred to as FERA) by fabricating false
evidence to implicate Subhash Bharjatya.
C. Subsequently, CBI registered another case No. RC
S19/E0006/99 dated 7.12.1999 in respect of disproportionate G
assets possessed by the respondent amounting to more than
12 crores to his known sources of income during his service
period of 14 yeqrs. As the respondent was arrested on
23.12.1999, he was under deemed suspension. The
suspension order was reviewed subsequently. In view of the
H
644
SUPREME COURT REPORTS
[2013) 12 SC R
A
provisions of Rule 10 of the Central Civil Services
(Classification, Control and Appeal) Rules. 1965, (hereinafter
referred to as 'Rules 1965'), the suspension order was passed
by the disciplinary authority to be effective ti!I further order.
B
D. Sanction to prosecute the respondent had been
obtained from the competent authority under the Prevention of
Corruption Act, 1988 (hereinafter referred to as the 'Act 1988').
E. The respondent challenged the order of his suspension
before the Tribunal by filing OA No.783 of 2000 which was
C allowed by the Tribunal vide ord~r dated 17 1.2003 giving the
opportunity to the appellants herein to pass a fresh order as
appropriate based on facts of the case.
F. The appellants re-considered the case of the
D suspension in pursuance of the order of the Tribunal dated
17.1.2003. However, vide order dated 25.4.2003 the appellants
decided that the respondent should remain under suspension.
G. Aggrieved, the respondent challenged the said order
E
dated 25.4.2003 before the Tribunal by filing OA No.1105 of
2003, however the same was dismissed vide order dated
9.5.2003. The record reveals that the said order of the Tribunal
was challenged by filing a writ petition before the Delhi High
Court. However, the said petition was subsequently withdrawn
F
by the respondent vide order dated 11.8.2010.
G
H. So far as the criminal cases are concerned, the Special
Judge granted pardon to co-accused Abhishek Verma. The
said order was challenged by the respondent before the High
Court and ultimately before this Court, but 1n vain.
The departmental proceedings were also initiated against
the respondent based on the CBl's investigation reports and
the charge memorandum was issued which was quashed by
the Tribunal vide judgment and order dated 24.2.2010.
H Aggrieved, appellants filed special leave petition before this
UNION OF INDIA v. ASHOK KUMAR AGGARWAL
645
[DR. B.S. CHAUHAN, J.]
Court with a delay of more than two years. without approaching
A
the High Court. The judgment of this Court dated 5.9.2013
passed in C.A.Nos. 7761-7717 of 2013, Union of India & Ors.
v. B.V. Gopinath etc. etc., affirmed the view taken by the.
Tribunal that chargesheet is required to be approved by the
disciplinary authority. The petition filed by the appellants against
B
the respondent has not yet been decided. Review Petition filed
by the appellants against the judgment and order dated
5.9.2013 is also reported to be pending.
I. The appellants had been reviewing the suspension order c
from time to time and thus, the respondent filed OA No.2842
of 2010 before the Tribunal for quashing of the suspension
order and the same was disposed of by the Tribunal vide order
dated 16.12.2011 directing the appellants to convene a
meeting of the Special Review Committee (SRC) within a 0
stipulated period to consider revocation or continuation of
suspension of the respondent after taking into consideration
various factors mentioned in the said order.
J. Pursuant to the said order of the Tribunal dated
16.12.2011, the SRC was constituted. The competent authority
E
considered the recommendations of the SRC in this regard and
passed an order dated 12.1.2012 to the effect that the
suspension of the respondent would continue. The views of the
CBI were made available subsequent to order dated 12.1.2012
and thus, the SRC again met and recommended the
F
continuance of suspension of the respondent and on the basis
of which the Competent Authority, vide order dated 3.2.2012,
decided to continue the suspension of the respondent.
K. The respondent challenged the said orders dated G
12.1.2012 and 3.2.2012 by filing OA No.495 of 2012 before
the Tribunal and the Tribunal allowed the said OA vide order
dated 1.6.2012 holding that the earlier directions given by the
Tribunal on 16.12.2011 had not been complied with while
passing the impugned orders dated 12.1.2012 and 3.2.2012
H
646
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A
and thus, the continuation of suspension was not tenable. The
said orders were accordingly quashed by the Tribunal.
L. Aggrieved by the order dated 1.6.2012 passed by the
Tribunal, the appellants preferred Writ Petition No.5247 of 2012
8
before the High Court of Delhi which was dismissed vide
judgment and order impugned dated 17.9.2012.
Hence, this appeal.
3. Ms. Indira Jaising, learned Additional Solicitor General
C
appearing for the appellants has submitted that though the
respondent had been under suspension for 14 years but in view
of the gravity of the charges against him in the disciplinary
proceedings as well as in the criminal cases, no interference
was warranted by the Tribunal or the High Court. In spite of the
D
fact that the charges were framed against the respondent and
the domestic enquiry stood completed and very serious
charges stood proved against the respondent, no punishment
order could be passed by the disciplinary authority in view of
the fact that the charge sheet itself has been quashed by the
E
Tribunal on the ground that it had not been approved by the
disciplinary authority and in respect of the same, the matter had
come to this Court and as explained hereinabove, has impliedly
been decided in favour of the respondent vide judgment and
order dated 5.9.2013.
F
The respondent has himself filed 27 cases in court and
made 62 representations. Almost all his representations had
been considered by the competent authority fully applying its
mind and passing detailed orders. The Tribunal has placed
G
reliance on the notings in the files while deciding the case,
which is not permissible in law as the said notings cannot be
termed as decision of the government.
The scope of judicial review is limited in case of
suspension for the reason that passing of suspension order is
H
UNION OF INDIA v. ASHOK KUMAR AGGARWAL
647
[DR. B.S. CHAUHAN, J ]
of an administrative nature and suspension is not a punishment.
A
Its purpose is to only forbid the delinquent to work in the office
and it is in the exclusive domain of the employer to revoke the
suspension order. The Tribunal or the court cannot function as
an appellate authority over ttie decision taken by the
disciplinary authority in these regards.
B
In view of the provisions contained in CVC Regulations
which came into force in 2004, the case of suspension of the
respondent has been reviewed from time to time and the
disciplinary authority thought it proper to continue the c
suspension order. The Tribunal and the High Court failed to
appreciate that the directions given by the Tribunal in its order
dated 16.12.2011, inter-alia, to consider the reply to the letter
rogatory received from the competent authority in Switzerland
and the report of the Law Department in case of sanction D
granted by the competent authority Le. Hon'ble Finance Minister
are matters to be examined by the trial court where the case is
pending. The proceedings had been stayed by the court taking
a prima facie view that the courts below had not passed the
order in correct perspective and in that view of the matter, the E
appellants could not be blamed. Thus, the impugned judgment
and order is liable to be set aside.
4. Shri Dhruv Mehta, learned senior counsel appearing for
the respondent has opposed the appeal contending that the
respondent had served the department for a period of 14 years
F
and has faced the suspension for the same duration i.e. 14
years, and after nine year, the respondent would attain the age
of superannuation. The appellants have obtained the interim
order from this court restraining the trial court to proceed in a
criminal case though it is not permissible in law to stay the trial G
as provided in Section 19(3) of the Act 1988. The said interim
order had been obtained by the appellants by suppressing the
material facts. The Tribunal vide order dated 16.12.2011 had
issued certain directions and in spite of the fact that the said H
648
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A order had attained finality as the appellants had chosen not to
challenge the same before a higher forum, the appellants were
bound to ensure the compliance of the same and the Tribunal
and the High Court had rightly held that the said order had not
been complied with and the suspension orders dated
B 12.1.2012 and 3.2.2012 suffered from non-application of mind.
More so, the Tribunal having quashed the suspension orders,
renewing the suspension order would tantamount to sitting in
appeal against the order of the Tribunal. The conduct of the
appellants had been contemptuous and the same disentitled
c them for any relief from this Court. In view of the above, no
interference is called for and the appeal is liable to be
dismissed.
5. We have considered the rival submissions made by
0
learned counsel for the parties and perused the record.
6. Representation may be considered by the competent
authority if it is so provided under the statutory provisions and
the court should not pass an order directing any authority to
decide the representation for the reasons that many a times,
E unwarranted or time-barred claims are sought to be entertained
before the authority. More so, once a representation has been
decided, the question of making second representation on a
similar issue is not allowed as it may also involve the issue of
limitation etc.
F
(Vide: Rabindra Nath Bose & Ors. v. Union of India &
Ors., AIR 1970 SC 470; Employees' State Insurance Corpn.
v. All India Employees' Union & Ors., (2006) 4 SCC 257;
A.P.S.R. T.C. & Ors. v. G. Srinivas Reddy & Ors., AIR 2006
G SC 1465; Karnataka Power Corporation Ltd. & Anr. v. K.
H
Thangappan & Anr., Al R 2006 SC 1581 ; Eastern Coalfields
Ltd. v. Dugal Kumar, AIR 2008 SC 3000; and Uma Shankar
Awasthi v. State of U.P. & Anr., (2013) 2 SCC 435).
7. During suspension, relationship of master and servant
UNION OF INDIA v. ASHOK KUMAR AGGARWAL
649
[DR B.S. CHAUHAN, J]
continues between the employer and the employee. However,
A
the employee is forbidden to perform his official duties. Thus,
suspension order does not put an end to the service.
Suspension means the action of debarring for the time being
from a function or privilege or temporary deprivation of working
in the office. In certain cases, suspension may cause stigma
B
even after exoneration in the departmental proceedings or
acquittal by the Criminal Court, but it cannot be treated as a
punishment even by any stretch of imagination in strict legal
sense. (Vide: O.P. Gupta v. Union of India & Ors., AIR 1987
SC 2257; and Capt. M. Paul Anthony v. Bharat Gold Mines c.
Ltd. & Anr., AIR 1999 SC 1416).
8. In State of Orissa v. Bimal Kumar Mohanty, AIR 1994
SC 2296, this Court observed as under:-
" ...... the order of suspension would be passed taking into
D
consideration the gravity of the misconduct sought to be
inquired into or investigated and the nature of evidence
placed before the appointing authority and on
application of the mind by the disciplinary authority.
Appointing authority or disciplinary authority should
E
consider ..... and decide whether it is expedient to keep
an employee under suspension pending aforesaid
action. It would not be as an administrative routine or an
automatic order to suspend an employee. It should be
on consideration of the gravity of the alleged misconduct
F
or the nature of the a/legations imputed to the delinquent
employee. The Court or the Tribunal must consider each
case on its own facts and no general law should be laid
down in that behalf .... .In other words, it is to refrain him
to avail further opportunity to perpetuate the alleged
G
misconduct or to remove the impression among the
members of service that dereliction of duty will pay fruits
and the offending employee may get away even pending
inquiry without any impediment or to provide an
opportunity to the delinquent officer to scuttle the inquiry
H
A
B
c
650
SUPREME COURT REPORTS
[2013] 12 S.C.R.
or investigation to win over the other witnesses or the
delinquent having had an opportunity in office to impede
the progress of the investigation or inquiry etc. It would
be another thing if the action is actuated by ma/a fide,
arbitrarily or for ulterior purpose. The suspension must
be a step in aid to the ultimate result of the investigation
or inquiry. The Authority also should keep in mind public
interest of the impact of the delinquent's continuation
in office while facing departmental inquiry or a trial of a
criminal charge." (Emphasis added)
(See also: R.P. Kapur v. Union of India & Anr., AIR 1964
SC 787 ; and Balvantrai Ratilal Patel v. State of Maharashtra,
AIR 1968 SC 800).
9. The power of suspension should not be exercised in an
D arbitrary manner and without any reasonable ground or as
vindictive misuse of power. Suspension should be made only
in a case where there is a strong prima facie case against the
delinquent employee and the allegations involving moral
turpitude, grave misconduct or indiscipline or refusal to carry
E out the orders of superior authority are there, or there is a strong
prima facie case against him, if proved, would ordinarily result
in reduction in rank, removal or dismissal from service. The
authority should also take into account all the available material
as to whether in a given case, it is advisable to allow the
F delinquent to continue to perform his duties in the office or his
retention in office is likely to hamper or frustrate the inquiry.
10. In view of the above, the law on the issue can be
summarised to the effect that suspension order can be passed
G by the competent authority considering the gravity of the
alleged misconduct i.e. serious act of omission or commission
and the nature of evidence available. It cannot be actuated by
ma/a fide, arbitrariness, or for ulterior purpose. Effect on public
Interest due to the employee's continuation in office is also a
H relevant and determining factor. The facts of each case have
UNION OF INDIA v. ASHOK KUMAR AGGARWAL
651
"'
[DR. B.S. CHAUHAN, J]
to be taken into consideration as no formula of universal
A
application can be laid down in this regard. However,
suspension order should be passed only where there is a strong
prima facie case against the delinquent, and if the charges
stand proved, would ordinarily warrant imposition of major
punishment i.e. removal or dismissal from service, or reduction
B
in rank etc.
11. In Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai
Patel & Ors., (2006) 8 SCC 200, this Court explained:
"18.