caselaws
Supreme Court of India
Ajay Kumar Choudhary vs Union Of India Thr Its Secretary & … on 16 February, 2015Bench: Vikramajit Sen, C. Nagappan
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 1912 OF 2015
(Arising out of SLP No. 31761 of 2013
AJAY KUMAR CHOUDHARY …… APPELLANT
Vs.
UNION OF INDIA THROUGH ITS. ……RESPONDENTS
SECRETARY & ANR.
J U D G M E N T
VIKRAMAJIT SEN,J.
1 Leave granted.
2 The Appellant assails his suspension which was effected on 30.9.2011
and has been extended and continued ever since. In November, 2006, he was
posted as the Defence Estate Officer (DEO) Kashmir Circle, Jammu & Kashmir.
During this tenure it was discovered that a large portion of the land
owned by the Union of India and held by the Director General Defence
Estates had not been mutated/noted in the Revenue records as Defence Lands.
The Appellant alleges that between 2008 and 2009, Office-notes were
prepared by his staff, namely, Shri Vijay Kumar, SDO-II, Smt. Amarjit Kaur,
SDO-III, Shri Abdul Sayoom Technical Assistant, and Shri Noor Mohd., LDC,
that approximately four acres of land were not Defence Lands, but were
private lands in respect of which NOCs could be issued. These NOCs were
accordingly issued by the Appellant. Thereafter, on 3.4.2010, the
Appellant was transferred to Ambala Cantt. However, vide letter dated
25.1.2011 the Appellant was asked to give his explanation for issuing the
factually incorrect NOCs. In his reply the Appellant admitted his
mistake, denied any mala fides in issuing the NOCs, and attributed the
issuance of the NOCs to the notes prepared by the subordinate staff of
SDOs/Technical Officer. It was in this background that he received the
Suspension Order dated 30.9.2011. Various litigation was fruitlessly
initiated by the Appellant in the Central Administrative Tribunal,
Chandigarh Bench, as well as in the Punjab & Haryana High Court, with which
we are not concerned. The Appellant asserts that since the subject land
was within the parameter wall of the Air Force Station, no physical
transfer thereof has occurred. On 28.12.2011 the Appellant’s suspension
was extended for the first time for a further period of 180 days. This
prompted the Appellant to approach the Central Administrative Tribunal,
Chandigarh Bench (CAT), and during the pendency of the proceedings the
second extension was ordered with effect from 26.6.2012 for another period
of 180 days. The challenge to these extensions did not meet with success
before the CAT. Thereafter, the third extension of the Appellant’s
suspension was ordered on 21.12.2012, but for a period of 90 days. It
came to be followed by the fourth suspension for yet another period of 90
days with effect from 22.3.2013.
3 It appears that the Tribunal gave partial relief to the Appellant in
terms of its Order dated 22.5.2013 opining that no employee can be
indefinitely suspended; that disciplinary proceedings have to be concluded
within a reasonable period. The CAT directed that if no charge memo was
issued to the Appellant before the expiry on 21.6.2013 of the then
prevailing period the Appellant would be reinstated in service. The CAT
further ordered that if it was decided to conduct an Inquiry it had to be
concluded “in a time bound manner”. The Appellant alleges that the
suspension was not extended beyond 19.6.2013 but this is not correct. The
Respondent, Union of India filed a Writ Petition before the Delhi High
Court contending that the Tribunal had exercised power not possessed by it
inasmuch as it directed that the suspension would not be extended if the
charge memo was served on the Appellant after the expiry of 90 days from
19.3.2013 (i.e. the currency of the then extant Suspension Order). This
challenge has found favour with the Court in terms of the impugned Judgment
dated September 04, 2013. The Writ Court formulated the question before
it to be “whether the impugned directions circumscribing the Government’s
power to continue the suspension and also to issue a chargesheet within a
time bound manner can be sustained”. It opined that the Tribunal’s view
was “nothing but a substitution of a judicial determination to that of the
authority possessing the power, i.e., the Executive Government as to the
justification or rationale to continue with the suspension”. The Writ
Petition was allowed and the Central Government was directed to pass
appropriate orders “as to whether it wishes to continue with the suspension
or not having regard to all the relevant factors, including the report of
the CBI, if any, it might have received by now. This exercise should be
completed as early as possible and within two weeks from today.”
4 This has led to the filing of the Appeal before this Court. In the
hearing held on 11.07.14, it was noted that by letter dated 13.6.2014 the
suspension of the Appellant had been continued for a period of 90 days with
effect from 15.6.2014 (i.e. the fourth extension), and that investigation
having been completed, sanction for prosecution was to be granted within a
period of two weeks. When the arguments were heard in great detail on 9th
September, 2014 by which date neither a Chargesheet nor a Memorandum of
Charges had been served on the Appellant. It had been contended by
learned counsel for the Appellant that this letter, as well as the
preceding one dated 8.10.2013, had been back-dated. We had called for the
original records and on perusal this contention was found by us to be
without substance.
5 The learned Additional Solicitor General has submitted that the
original suspension was in contemplation of a departmental inquiry which
could not be commenced because of a directive of the Central Vigilance
Commission prohibiting its commencement if the matter was under the
investigation of the CBI. The sanction for prosecution was granted on
1.8.2014. It was also submitted that the Chargesheet was expected to be
served on the Appellant before 12.9.2014, (viz., before the expiry of the
fourth extension). However, we need to underscore that the Appellant has
been continuously on suspension from 30.9.2011.
6 It is necessary to record that all the relevant files were shown to
us, on the perusal of which it was evident that reasons were elaborately
recorded for the each extension of suspension and within the currency of
the then prevailing period. Therefore, the reliance of learned Senior
Counsel for the Appellant on Ravi Yashwant Bhoir v. District Collector,
Raigad 2012 (4) SCC 407, is of no avail since the salutary requirement of
natural justice, that is of spelling out the reasons for the passing of an
order, has been complied with.
7 Learned Senior Counsel for the Appellant, however, has rightly relied
on a series of Judgments of this Court, including O.P. Gupta v. Union of
India 1987 (4) SCC 328, where this Court has enunciated that the suspension
of an employee is injurious to his interests and must not be continued for
an unreasonably long period; that, therefore, an order of suspension should
not be lightly passed. Our attention has also been drawn to K. Sukhendar
Reddy v. State of A.P. 1999 (6) SCC 257, which is topical in that it
castigates selective suspension perpetuated indefinitely in circumstances
where other involved persons had not been subjected to any scrutiny.
Reliance on this decision is in the backdrop of the admitted facts that all
the persons who have been privy to the making of the Office-notes have not
been proceeded against departmentally. So far as the question of
prejudicial treatment accorded to an employee is concerned, this Court in
State of A.P. v. N. Radhakishan 1998 (4) SCC 154, has observed that it
would be fair to make this assumption of prejudice if there is an
unexplained delay in the conclusion of proceedings. However, the decision
of this Court in Union of India v. Dipak Mali 2010 (2) SCC 222 does not
come to the succour of the Appellant since our inspection of the records
produced in original have established that firstly, the decision to
continue the suspension was carried out within the then prevailing period
and secondly, that it was duly supported by elaborate reasoning.
8 Suspension, specially preceding the formulation of charges, is
essentially transitory or temporary in nature, and must perforce be of
short duration. If it is for an indeterminate period or if its renewal is
not based on sound reasoning contemporaneously available on the record,
this would render it punitive in nature. Departmental/disciplinary
proceedings invariably commence with delay, are plagued with
procrastination prior and post the drawing up of the Memorandum of Charges,
and eventually culminate after even longer delay.
9 Protracted periods of suspension, repeated renewal thereof, have
regrettably become the norm and not the exception that they ought to be.
The suspended person suffering the ignominy of insinuations, the scorn of
society and the derision of his Department, has to endure this excruciation
even before he is formally charged with some misdemeanour, indiscretion or
offence. His torment is his knowledge that if and when charged, it will
inexorably take an inordinate time for the inquisition or inquiry to come
to its culmination, that is to determine his innocence or iniquity. Much
too often this has now become an accompaniment to retirement. Indubitably
the sophist will nimbly counter that our Constitution does not explicitly
guarantee either the right to a speedy trial even to the incarcerated, or
assume the presumption of innocence to the accused. But we must remember
that both these factors are legal ground norms, are inextricable tenets of
common law jurisprudence, antedating even the Magna Carta of 1215, which
assures that – “We will sell to no man, we will not deny or defer to any
man either justice or right.” In similar vein the Sixth Amendment to the
Constitution of the United States of America guarantees that in all
criminal prosecutions the accused shall enjoy the right to a speedy and
public trial. Article 12 of the Universal Declaration of Human Rights,
1948 assures that – “No one shall be subjected to arbitrary interference
with his privacy, family, home or correspondence, nor to attacks upon his
honour and reputation. Everyone has the right to the protection of the law
against such interference or attacks”. More recently, the European
Convention on Human Rights in Article 6(1) promises that “in the
determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a
reasonable time….” and in its second sub article that “everyone charged
with a criminal offence shall be presumed innocent until proved guilty
according to law”.
10 The Supreme Court of the United States struck down the use of nolle
persequi, an indefinite but ominous and omnipresent postponement of civil
or criminal prosecution in Klapfer vs. State of North Carolina 386 U.S. 213
(1967). In Kartar Singh vs. State of Punjab (1994) 3 SCC 569 the
Constitution Bench of this Court unequivocally construed the right of
speedy trial as a fundamental right, and we can do no better the extract
these paragraphs from that celebrated decision –
” 86 The concept of speedy trial is read into Article 21 as an essential
part of the fundamental right to life and liberty guaranteed and preserved
under our Constitution. The right to speedy trial begins with the actual
restraint imposed by arrest and consequent incarceration and continues at
all stages, namely the stage of investigation, inquiry, trial, appeal and
revision so that any possible prejudice that may result from impermissible
and avoidable delay from the time of the commission of the offence till it
consummates into a finality, can be averted. In this context, it may be
noted that the constitutional guarantee of speedy trial is properly
reflected in Section 309 of the Code of Criminal Procedure.
87. This Court in Hussainara Khatoon (I) v. Home Secretary, State of
Bihar while dealing with Article 21 of the Constitution of India has
observed thus:
“No procedure which does not ensure a reasonably quick trial can be
regarded as ‘reasonable, fair or just’ and it would fall foul of Article
21. There can, therefore, be no doubt that speedy trial, and by speedy
trial we mean reasonably expeditious trial, is an integral and essential
part of the fundamental right to life and liberty enshrined in Article 21.
The question which would, however, arise is as to what would be the
consequence if a person accused of an offence is denied speedy trial and is
sought to be deprived of his liberty by imprisonment as a result of a long
delayed trial in violation of his fundamental right under Article 21.
Would he be entitled to be released unconditionally freed from the charge
levelled against him on the ground that trying him after an unduly long
period of time and convicting him after such trial would constitute
violation of his fundamental right under Article 21.”
11 The legal expectation of expedition and diligence being present at
every stage of a criminal trial and a fortiori in departmental inquiries
has been emphasised by this Court on numerous occasions. The Constitution
Bench in Abdul Rehman Antulay vs. R.S. Nayak, 1992 (1) SCC 225, underscored
that this right to speedy trial is implicit in Article 21 of the
Constitution and is also reflected in Section 309 of the Cr.P.C., 1973;
that it encompasses all stages, viz., investigation, inquiry, trial,
appeal, revision and re-trial; that the burden lies on the prosecution to
justify and explain the delay; that the Court must engage in a balancing
test to determine whether this right had been denied in the particular case
before it. Keeping these factors in mind the CAT had in the case in hand
directed that the Appellant’s suspension would not be extended beyond 90
days from 19.3.2013. The High Court had set aside this direction, viewing
it as a substitution of a judicial determination to the authority
possessing that power, i.e., the Government. This conclusion of the High
Court cannot be sustained in view of the following pronouncement of the
Constitution Bench in Antulay:
86. In view of the above discussion, the following propositions emerge,
meant to serve as guidelines. We must forewarn that these propositions are
not exhaustive. It is difficult to foresee all situations. Nor is it
possible to lay down any hard and fast rules. These propositions are:
(1) Fair, just and reasonable procedure implicit in Article 21 of the
Constitution creates a right in the accused to be tried speedily. Right to
speedy trial is the right of the accused. The fact that a speedy trial is
also in public interest or that it serves the social interest also, does
not make it any the less the right of the accused. It is in the interest of
all concerned that the guilt or innocence of the accused is determined as
quickly as possible in the circumstances.
(2) Right to speedy trial flowing from Article 21 encompasses all the
stages, namely the stage of investigation, inquiry, trial, appeal, revision
and re-trial. That is how, this Court has understood this right and there
is no reason to take a restricted view.
(3) The concerns underlying the right to speedy trial from the point of
view of the accused are:
(a) the period of remand and pre-conviction detention should be as short as
possible. In other words, the accused should not be subjected to
unnecessary or unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation and peace,
resulting from an unduly prolonged investigation, inquiry or trial should
be minimal; and
(c) undue delay may well result in impairment of the ability of the accused
to defend himself, whether on account of [pic]death, disappearance or non-
availability of witnesses or otherwise.
(4) At the same time, one cannot ignore the fact that it is usually the
accused who is interested in delaying the proceedings. As is often pointed
out, “delay is a known defence tactic”. Since the burden of proving the
guilt of the accused lies upon the prosecution, delay ordinarily prejudices
the prosecution. Non-availability of witnesses, disappearance of evidence
by lapse of time really work against the interest of the prosecution. Of
course, there may be cases where the prosecution, for whatever reason, also
delays the proceedings. Therefore, in every case, where the right to speedy
trial is alleged to have been infringed, the first question to be put and
answered is – who is responsible for the delay? Proceedings taken by either
party in good faith, to vindicate their rights and interest, as perceived
by them, cannot be treated as delaying tactics nor can the time taken in
pursuing such proceedings be counted towards delay. It goes without saying
that frivolous proceedings or proceedings taken merely for delaying the day
of reckoning cannot be treated as proceedings taken in good faith. The mere
fact that an application/petition is admitted and an order of stay granted
by a superior court is by itself no proof that the proceeding is not
frivolous. Very often these stays are obtained on ex parte representation.
(5) While determining whether undue delay has occurred (resulting in
violation of Right to Speedy Trial) one must have regard to all the
attendant circumstances, including nature of offence, number of accused and
witnesses, the workload of the court concerned, prevailing local conditions
and so on – what is called, the systemic delays. It is true that it is the
obligation of the State to ensure a speedy trial and State includes
judiciary as well, but a realistic and practical approach should be adopted
in such matters instead of a pedantic one.
(6) Each and every delay does not necessarily prejudice the accused. Some
delays may indeed work to his advantage. As has been observed by Powell, J.
in Barke 33 L Ed 2d 101 “it cannot be said how long a delay is too long in
a system where justice is supposed to be swift but deliberate”. The same
idea has been stated by White, J. in U.S. v. Ewell 15 L Ed 2d 627 in the
following words:
‘… the Sixth Amendment right to a speedy trial is necessarily relative,
is consistent with delays, and has orderly expedition, rather than mere
speed, as its essential ingredients; and whether delay in completing a
prosecution amounts to an unconstitutional deprivation of rights depends
upon all the circumstances.’
However, inordinately long delay may be taken as presumptive proof of
prejudice. In this context, the fact of incarceration of [pic]accused will
also be a relevant fact. The prosecution should not be allowed to become a
persecution. But when does the prosecution become persecution, again
depends upon the facts of a given case.
(7) We cannot recognize or give effect to, what is called the ‘demand’
rule. An accused cannot try himself; he is tried by the court at the behest
of the prosecution. Hence, an accused’s plea of denial of speedy trial
cannot be defeated by saying that the accused did at no time demand a
speedy trial. If in a given case, he did make such a demand and yet he was
not tried speedily, it would be a plus point in his favour, but the mere
non-asking for a speedy trial cannot be put against the accused. Even in
USA, the relevance of demand rule has been substantially watered down in
Barker 33 L Ed 2d 101and other succeeding cases.
(8) Ultimately, the court has to balance and weigh the several relevant
factors – ‘balancing test’ or ‘balancing process’ – and determine in each
case whether the right to speedy trial has been denied in a given case.
(9) Ordinarily speaking, where the court comes to the conclusion that right
to speedy trial of an accused has been infringed the charges or the
conviction, as the case may be, shall be quashed. But this is not the only
course open. The nature of the offence and other circumstances in a given
case may be such that quashing of proceedings may not be in the interest of
justice. In such a case, it is open to the court to make such other
appropriate order – including an order to conclude the trial within a fixed
time where the trial is not concluded or reducing the sentence where the
trial has concluded – as may be deemed just and equitable in the
circumstances of the case.
(10) It is neither advisable nor practicable to fix any time-limit for
trial of offences. Any such rule is bound to be qualified one. Such rule
cannot also be evolved merely to shift the burden of proving justification
on to the shoulders of the prosecution. In every case of complaint of
denial of right to speedy trial, it is primarily for the prosecution to
justify and explain the delay. At the same time, it is the duty of the
court to weigh all the circumstances of a given case before pronouncing
upon the complaint. The Supreme Court of USA too has repeatedly refused to
fix any such outer time-limit in spite of the Sixth Amendment. Nor do we
think that not fixing any such outer limit ineffectuates the guarantee of
right to speedy trial.
(11) An objection based on denial of right to speedy trial and for relief
on that account, should first be addressed to the High Court. Even if the
High Court entertains such a plea, ordinarily it should not stay the
proceedings, except in a case of grave and [pic]exceptional nature. Such
proceedings in High Court must, however, be disposed of on a priority
basis.
12 State of Punjab v. Chaman Lal Goyal (1995) 2 SCC 570 deserves
mention, inter alia, because action was initiated on 25.3.1992 and a
Memorandum of Charges was issued on 9.7.1992 in relation to an incident
which had occurred on 1.1.1987. In the factual matrix obtaining in that
case, this Court reserved and set aside the High Court decision to quash
the Inquiry because of delay, but directed that the concerned officer
should be immediately considered for promotion without taking the pendency
of the Inquiry into perspective.
13 It will be useful to recall that prior to 1973 an accused could be
detained for continuous and consecutive periods of 15 days, albeit, after
judicial scrutiny and supervision. The Cr.P.C. of 1973 contains a new
proviso which has the effect of circumscribing the power of the Magistrate
to authorise detention of an accused person beyond period of 90 days where
the investigation relates to an offence punishable with death, imprisonment
for life or imprisonment for a term of not less than 10 years, and beyond a
period of 60 days where the investigation relates to any other offence.
Drawing support from the observations contained of the Division Bench in
Raghubir Singh vs. State of Bihar, 1986 (4) SCC 481, and more so of the
Constitution Bench in Antulay, we are spurred to extrapolate the
quintessence of the proviso of Section 167(2) of the Cr.P.C. 1973 to
moderate Suspension Orders in cases of departmental/disciplinary inquiries
also. It seems to us that if Parliament considered it necessary that a
person be released from incarceration after the expiry of 90 days even
though accused of commission of the most heinous crimes, a fortiori
suspension should not be continued after the expiry of the similar period
especially when a Memorandum of Charges/Chargesheet has not been served on
the suspended person. It is true that the proviso to Section 167(2)
Cr.P.C. postulates personal freedom, but respect and preservation of human
dignity as well as the right to a speedy trial should also be placed on the
same pedestal.
14 We, therefore, direct that the currency of a Suspension Order should
not extend beyond three months if within this period the Memorandum of
Charges/Chargesheet is not served on the delinquent officer/employee; if
the Memorandum of Charges/Chargesheet 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 recognized principle of human dignity and the
right to a speedy trial and shall also preserve the interest of the
Government in the prosecution. We recognize 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.
15 So far as the facts of the present case are concerned, the Appellant
has now been served with a Chargesheet, and, therefore, these directions
may not be relevant to him any longer. However, if the Appellant is so
advised he may challenge his continued suspension in any manner known to
law, and this action of the Respondents will be subject to judicial review.
16 The Appeal is disposed of in the above terms and we desist from
imposing costs.
………………………J
[VIKRAMAJIT SEN]
………………………J
[C. NAGAPPAN]
New Delhi;
February 16, 2015.
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