Case: Union Of India  Vs. Ashok Kumar Aggarwal

A. That the respondent who belongs to the Indian Revenue Service (Income Tax-1985 batch) has been 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 (for short CBI) and in which he was also 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. 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 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 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 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 co-accused Abhishek Verma to frame Subhash Chandra 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 assets possessed by the respondent amounting to more than 12 crores to his known sources of income during his service period of 14 years. As the respondent was arrested on 23.12.1999, he was under deemed suspension. The suspension order was reviewed subsequently. In view of the 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 till further orderD. 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 allowed by the Tribunal vide order dated 17.1.2003 giving the opportunity to the appellants herein to pass a fresh order as appropriate based on facts of the caseF. The appellants re-considered the case of the 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 suspensionG. Aggrieved, the respondent challenged the said order 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 by the respondent vide order dated 11.8.2010H. 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 in vainThe departmental proceedings were also initiated against the respondent based on the CBIs investigation reports and the charge memorandum was issued which was quashed by the Tribunal vide judgment and order dated 24.2.2010. Aggrieved, appellants filed special leave petition before this Court with a delay of more than two years, without approaching 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 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 pendingI. The appellants had been reviewing the suspension order 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 stipulated period to consider revocation or continuation of suspension of the respondent after taking into consideration various factors mentioned in the said orderJ. Pursuant to the said order of the Tribunal dated 16.12.2011, the SRC was constituted. The competent authority 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 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 respondentK. The respondent challenged the said orders dated 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 and thus, the continuation of suspension was not tenableThe said orders were accordingly quashed by the TribunalL. Aggrieved by the order dated 1.6.2012 passed by the Tribunal, the appellants preferred Writ Petition No.5247 of 2012 before the High Court of Delhi which was dismissed vide judgment and order impugned dated 17.9.2012

Reasoning: Subsequent thereto, the SRC considered the case and the competent authority passed the order of continuation of suspension order on 12.1.2012. The said order made it clear that it would not be feasible for the competent authority to pass a reasoned and speaking order as required in terms of the Office Memorandum dated 7.1.2004 for the reason that CBI reports had not been receivedwe are of the considered opinion that 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 tantamounts to contempt of court and arbitrariness as it is not permissible for the executive to scrutinize the order of the courtwe are of the view that the appellants have acted in contravention of the final order passed by the Tribunal dated 1.6.2012 and therefore, there was no occasion for the appellants for passing the order dated 31.7.2012 or any subsequent order. The orders passed by the appellants had been in contravention of not only of the order of the court but also to the office memorandum and statutory rules.