Page 1

1

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

Page 2

2

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

Page 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

Page 4

4

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

Page 5

5

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 9 th  

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.

Page 6

6

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

Page 7

7

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.

Page 8

8

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

Page 9

9

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,

Page 10

10

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.”

Page 11

11

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 and

Page 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 the

Page 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 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

Page 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 in

Page 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 in

Page 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 advised

Page 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.