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:
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.
Citation;(2015)7 SCC291
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 toPage 3
3
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:Page 12
12
(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
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 andPage 13
13
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 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 thePage 14
14
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 timelimit
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 andPage 15
15
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 inPage 16
16
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 inPage 17
17
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 advisedPage 18
18
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.
Print Page
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:
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.
Citation;(2015)7 SCC291
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 toPage 3
3
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:Page 12
12
(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
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 andPage 13
13
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 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 thePage 14
14
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 timelimit
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 andPage 15
15
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 inPage 16
16
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 inPage 17
17
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 advisedPage 18
18
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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