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K.Arokia Nathan-vs-The Senior Regional Manager on 25 July, 2011

Madras High Court K.Arokia Nathan-vs-The Senior Regional Manager on 25 July, 2011

DATED : 25.07.2011

CORAM

THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.Nos.8451, 9230, 9765, 10187, 10246, 11093, 11984, 12001, 13725,13774,

14913, 14914, 14917, 14918, 15093, 15185, 15289, 15331, 15421, 15487, 15488,

15641, 15671, 16643, 19707, 21734, 22117, 22604, 22927, 23603,

24944 and 25161 of 2009

AND

M.P.Nos.1,2,2,1,2,1,1,2,1,2,1,1,1,2,2, 1,2,2,2,2,3,2,2,3,2,1,1,1,1,2,1 and 2 of 2009,

1,1,1,1, of 2010 and 1 of 2011

K.Arokia Nathan .. Petitioner in

W.P.No.8451 of 2009

Vs.

1.The Senior Regional Manager (North),

Tamil Nadu Civil Supplies Corporation Limited,

Chennai-600 086.

2.The Enquiry Officer,

C.M.Balakrishnan,

Office Superintendent,

P.R. Section,

The Senior Regional Manager (North),

Tamil Nadu Civil Supplies Corporation Limited,

Chennai-600 086. .. Respondents in

W.P.No.8451 of 2009

W.P.No.8451 of 2009 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records in connection with suspension order No.M.A.Conf.No.1/8 dated 15.9.2008 and letter No.Rc.No.A21/8296/2008, dated 6.4.2009 issued by the first respondent and quash the same and consequently to direct the second respondent to conduct the enquiry in accordance with law by giving fair opportunity.

For Petitioners : Dr.R.Sampathkumar

Mr.C.Prakasam

Mr.R.Singaravelan

Mr.S.Sivakumar

Mr.V.Suthakar

Mr.Ravishanmugam

Mr.V.Raghavachari

M/s.Bala & Daisy

Mr.A.K.Kumarasamy

M/s.Alaimagal Cauvery

Mr.R.Chandrasekaran

Mr.K.Sanjay

Mr.M.Hidayathulla Khan

Mr.D.Rajagopal

Mr.S.Kamadevan

Mr.S.Mani

Mr.C.Prabhakaran

Mr.M.V.Muralidharan

Ms.AL.Gandhimathi

Mr.Ashokpathy for M/s.Pass Associates

Mr.K.Sivakumar

Mr.N.S.Sivakumar

Mr.R.Sreedharan

Mr.S.Vijayakumar

Mr.K.Shamugakani

Mr.R.N.Amarnath

Change of vakalath and

reported no instructions from party

in W.P.No.15289 of 2009

For Respondents : Mr.V.Subbiah, Spl.G.P.

Mr.RM.Muthukumar, GA

Mr.G.Vasudevan for TNEB

Ms.Mala, Spl.G.P. (Puducherry)

Mr.P.Subramanian for R-1 in W.P.13774 of 2009

MR.V.Arun for R-3 in W.P.No.16643 of 2009

Mr.R.Sivakumar for RR1 and 2

in W.P.No.19707 of 2009

No appearance for R-1 in W.P.8451 of 2009

for RR2 and 3 in W.P.No.10246 of 2009

for R-3 in W.P.No.19707 of 2009

– – – –

COMMON ORDER

I.PROLOGUE :

In majority of these writ petitions, the petitioners who are public servants were accused of taking bribes, caught red-handed in traps and are facing charges before the Special Judge constituted under the Prevention of Corruption Act, 1988. When they were placed under suspension by the competent authority, they have come to this court challenging the orders of suspension. In most of cases, interim stay of suspension have been granted giving some reasons for the orders. Before proceeding to deal with the merits of their contentions, it is necessary to set the tone for dealing with the cases of public servants involved in corruption.

2.The Supreme Court in K.C. Sareen v. CBI reported in (2001) 6 SCC 584 in paragraph 12 had observed as follows: 12.Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. …

3.The Supreme Court also in State of M.P. v. Ram Singh reported in (2000) 5 SCC 88 in paragraphs 8,9 and 11 had observed as follows: 8.Corruption in a civilised society is a disease like cancer, which if not detected in time, is sure to maliganise (sic) the polity of the country leading to disastrous consequences. It is termed as a plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti-people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrating society.

9.The menace of corruption was found to have enormously increased by the First and Second World War conditions. Corruption, at the initial stages, was considered confined to the bureaucracy which had the opportunities to deal with a variety of State largesse in the form of contracts, licences and grants. Even after the war the opportunities for corruption continued as large amounts of government surplus stores were required to be disposed of by the public servants. As a consequence of the wars the shortage of various goods necessitated the imposition of controls and extensive schemes of post-war reconstruction involving the disbursement of huge sums of money which lay in the control of the public servants giving them a wide discretion with the result of luring them to the glittering shine of wealth and property. In order to consolidate and amend the laws relating to prevention of corruption and matters connected thereto, the Prevention of Corruption Act, 1947 was enacted which was amended from time to time. In the year 1988 a new Act on the subject being Act 49 of 1988 was enacted with the object of dealing with the circumstances, contingencies and shortcomings which were noticed in the working and implementation of the 1947 Act. The law relating to prevention of corruption was essentially made to deal with the public servants, not as understood in common parlance but specifically defined in the Act.

11.Procedural delays and technicalities of law should not be permitted to defeat the object sought to be achieved by the Act. The overall public interest and the social object is required to be kept in mind while interpreting various provisions of the Act and deciding cases under it. It is in this context, the cases filed by the petitioners will have to be looked into.

II.Facts in brief :

4.In all these writ petitions, the petitioners are employees of different departments of Government and public sector units. They are faced with actions taken by the Directorate of Vigilance and Anti Corruption. The cases registered against them relate to corruption charges and are pending trial before the Special Courts. In view of those cases, they were placed under suspension in terms of the Tamil Nadu Civil Services (Discipline and Appeal) Rules or Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules or under the Certified Standing Order of the Tamil Nadu Electricity Board or under the Tamil Nadu Panchayat Act or under the Tamil Nadu Water Supply and Drainage Board service regulations. The petitioners have approached this court challenging the suspension orders on untenable grounds.

5.In view of the common issues involved in these writ petitions, they were dealt together and a common order is passed.

6.The following table will show the name of the petitioners, the post held by them, details of criminal cases, the earlier writ petitions if any filed by them and the interim relief if any passed in their favour, which is as follows:

Sl.

No.

W.P.Nos.

And Petitioner name

Dept. and post

Details of criminal case, if any

Earlier WP for directions to review if any

Interim relief, if any

1

8451 of 2009

TNCSC Ltd.

Packer

Criminal offence under investigation

Nil

Stay from 29.4.2009

2

9230 of 2009

CSR (Housing) Cooperation

Misappropriation of societies funds

Nil

Stay from 14.5.2009

3

9765 of 2009

Manager, Animal Husbandry

Criminal case

FIR 25/07 u/s.420 r/w 120-B IPC

W.P.22237/08 review rejected

Direction to pay 75% wages

4

10187 of 2009

Sub Registrar, Registration Dept.

Crl. Case (PC Act)

Cr.No.5/09

Stay 6.7.2009 until further orders

5

10246 of 2009

Panchayat Asst., Achipatti Panchayat

Mis conduct, insubordination

Stay 11.6.2009

6

11093 of 2009

Jr.Asst., RTO Office, Transport Dept

Bribe taking

Crl. Case pending

Stay 26.6.2009, vacate stay pending, extended until further orders

7

11984 of 2009

Sanitary Maistry-Gr.II Villianur Commune.

D.P. Pending

8

12001 of 2009

Jr. Assistant Health service

Corruption case before Special Judge

W.P.11806/06

Review declined

9

13725 of 2009

Village Asst.

Bigamous marriage and cheating of Rs.46,600/-

Stay w.e.f 21.7.2009

10

13774 of 2009

Jr. Asst. Rasipuram Mun icipality

Criminal case

arrested

Stay w.e.f.

21.7.2009

11

14913 of 2009

V.A.O., B.S.Agraharam village, Erode

Detained in custody

Stay w.e.f.

30.07.2009

12

14914 of 2009

EO, Thanthoni Municipality

Taking bribe of Rs.1500/-, crl. Case pending

W.P.6473/08

Stay 30.7.2009

13

14917 of 2009

VAO, Fort- Tondiarpet

Allowed encroachment of Govt land. 17(b) charges framed

W.P.10655/08

Stay 30.7.2009 v/s petition pending

14

14918 of 2009

Village Health Nurse, PHC

Corruption, vigilance case

Stay w.e.f. 30.7.09

15

15093 of 2009

Rural Welfare Officer, Panchayat Dept

Produced bogus SSLC mark certificate and charges framed

Stay w.e.f. 31.7.09

16

15185 of 2009

Divisional Officer, Fire Service

Bribery case, criminal case 19/05 pending

Stay w.e.f. 3.8.09/ review rejected

17

15289 of 2009

Record Clerk

Pay & Accounts Office

Crl. Case u/s.341, 397, 336, 427 r/w 506(2) IPC

W.P.13201/05-I

W.P.23301/07-II

Stay dismissed.

Review rejected

18

15331 of 2009

S.I. Of police

Criminal case u/s 498A r/w 504(ii) IPC

Stay 4.8.2009

19

15421 of 2009

Sub Inspector of Police

Crl case under PC Act, 1988, taking bribe of Rs.50000/-

W.P.2919/09

Stay 5.8.2009 review rejected

20

15487 of 2009

Sr. Drug Inspector, Health Dept.

Crl case under investigation- corruption charges

Stay 5.8.2009

21

15488 of 2009

Secondary Grade Teacher

Responsible for the death of Rajeshkumar, crl case pending

W.P.22664/07

Review rejected stay 5.8.09

22

15641 of 2009

Sub Inspector of Police

DV&AC case pending

W.P.23546/07

Stay 6.8.2009

23

15671 of 2009

Head Constable, Police Dept

Taking bribe Rs.4000/-, criminal case under PC Act

W.P.1535 of 2005

Stay 5.8.2009, review rejected

24

16643 of 2009

Sanitary Worker, Panchayat

Crl case under section 302 IPC

W.P.21695/05 dismissed as withdrawn

Stay dismissed

25

19707 of 2009

Headmaster, Corpn. H.S.School

Brought pressure on teacher in a pending enquiry charges u/s 17(b)

Stay 24.9.2009

26

21734 of 2009

Village Asst.

Criminal case u/s.147, 148, 294B, 323 and 324 IPC

Stay 28.1.2010

27

22117 of 2009

Hospital worker

Misbehaving with the women patient, criminal case pending

No stay

28

22604 of 2009

Record clerk, PW Dept.

Crl case u/s.409 and 424 IPC pending

Stay 5.11.2009, MP dismissed – 26.10.2010

29

22927 of 2009

Accountant, Treasury Dept.

Taking bribe, crl. Case pending

W.P.26638/08

Review rejected, No stay

30

23603 of 2009

Revenue Inspector, Revenue Dept.

Taking bribe

DV&AC case pending

W.P.6041/2007

Stay 30.11.09, review rejected

31

24944 of 2009

Foreman, TNEB

Arrested by Vigilance police

Stay 4.12.2009

32

25161 of 2009

Headmaster, AD Welfare Dept.

Crl case u/s.384, 420 r/w 506(ii) IPC

Stay 7.12.2009

III.Reasons for grant of interim orders :

7.After admission of writ petitions and in some cases ordering notice of motion, this court had granted invariably an interim stay, most of the times before notice and some times after notice. The reasons which prompted this court to grant stay as reflected in the various interim orders are as follows: (a)Though fictional clause relating to deemed suspension were invoked, the petitioners were not actually in custody for more than 48 hours and the basis for suspension was factually wrong. (b)The allegations made for passing suspension orders are vague.

(c)The order is contrary to the reasoning laid down by this court in R.Maheswari Vs. District Elementary Educational Officer, Theni and another reported in (2008) 5 MLJ 635, wherein this court held that a mere involvement in criminal case by a public servant cannot be a ground at all for placing him under suspension. (d)In the recital to the suspension order, there was no recital regarding contemplation of charges.

(e)No progress has been made in the criminal cases before the Special Court, wherein corruption charges against Government servants are pending. (f)A prolonged suspension is unwarranted and it is contrary to the division bench judgment of this court in The State of Madras Vs. K.A.Joseph reported in AIR 1970 Madras 155. (g)The Government instructions were not followed before the suspension.

(h)A suspension made in case not by the appointing authority then no authorization by the competent authority was obtained. (i)After revocation of the earlier suspension order, once again a second suspension order was passed.

In the light of these findings, it has to be seen whether the orders of suspension passed against petitioners are liable to be interdicted by this court.

IV.Law relating to suspension :

8.The Supreme Court vide its judgment in Govt. of India, Ministry of Home Affairs v. Tarak Nath Ghosh reported in (1971) 1 SCC 734 held that there is no difference between definite charges being framed and when the competent authority was in receipt of allegations against the Government servant. In both cases the suspension order made will have to be treated as same. In this context, it is necessary to refer to the following passages found in paragraphs 9 and 13 of the said judgment which reads as follows:

9.There would be nothing improper per se if the rules were to provide for suspension even before definite charges of misconduct had been communicated to the officer concerned. The question is whether the language of Rule 7 is so correlated to that of Rule 5 as to lead us to hold that the word charges in sub-clause (1) of Rule 7 must mean a definite charge as mentioned in sub-clause (2) of Rule 5. It may be that even in a case where definite charges have been raised against an officer he may satisfactorily explain the circumstances and the grounds alleged against him in his written statement. It is also possible that after the enquiry is conducted it is found that the charges are all baseless. In principle we can see no difference between the position of an officer against whom definite charges have been framed to which he is required to put in his written statement and a situation where on receipt of allegations of grave misconduct against him the Government is of opinion that it would not be proper to allow the officer concerned to function in the ordinary way.

13….Merely because the order mentioned that disciplinary proceedings were contemplated against the respondent, as compared to Rule 7 which contains phrases like the initiation of disciplinary proceedings and the starting of such proceedings we cannot hold that the situation in the present case had not reached a stage which called for an order of suspension. In substance disciplinary proceedings can be said to be started against an officer when complaints about his integrity or honesty are entertained and followed by a preliminary enquiry into them culminating in the satisfaction of the Government that a prima facie case has been made out against him, for the framing of charges. When the order of suspension itself shows that Government was of the view that such a prima facie case for departmental proceedings had been made out the fact that the order also mentions that such proceedings were contemplated makes no difference. Again the fact that in other rules of service an order of suspension may be made when disciplinary proceedings were contemplated should not lead us to take the view that a member of an All India Service should be dealt with differently. The reputation of an officer is equally valuable no matter whether he belongs to the All India Service or to one of a humbler cadre. It is the exigency of the conditions of service which requires or calls for an order of suspension and there can be no difference in regard to this matter as between a member of an All India Service and a member of a State Service or a Railway Service. (Emphasis added)

9.The Supreme Court had held that unless malafides are attributed to the Government and established, the Court cannot interdict an order of suspension, vide its judgment in A.K.K. Nambiar v. Union of India reported in (1969) 3 SCC 864. The following passages found in paragraphs 7 and 10 may be usefully reproduced below: 7….. The appellant contended that the appellant was not suspended under sub-rule (3) of Rule 7. That is a contention. The facts are that there was an investigation and the trial is awaiting relating to a criminal charge against the appellant. The order of suspension has to be read in the context of the entire case and combination or circumstances. This order indicates that the Government applied its mind to the allegations, the enquiries and the circumstances of the case. The appellant has failed to establish that the Government acted mala fide. There is no allegation against any particular officer of the Government of India about acting mala fide…..

10….. We are not concerned with the correctness and the propriety of the report. We have only to examine whether the order of suspension was warranted by the rule and also whether it was in honest exercise of powers…..

10.The Supreme Court had also held that once there was prima facie case to hold the suspension order legal, then merely because the charge sheeted Government servant will sustain some disadvantage cannot be a reason to stall the suspension and that the court cannot intervene and undo the acts of internal management, vide its judgment in Shyam Lal Yadav v. Kusum Dhawan reported in (1979) 4 SCC 143. In paragraph 3, the Supreme Court had observed as follows: 3. ……The only question before us is as to whether there is a prima facie case in favour of the appellant as the competent management and further whether there is prima facie ground to hold that order of suspension imposed upon the Principal is legal. For by every suspension the alleged delinquent will sustain some disadvantage…….It will be strange jurisprudence which will paralyse autonomous bodies if courts can intervene on some ipse dixit to undo acts of internal management against employees especially when the power of the employer is made out. …..

11.The Supreme Court had held that when the suspension order is passed, it is for the Government to review the said order and it continues to operate until it is revoked by the competent authority vide its judgment in Govt. of A.P. v. V. Sivaraman reported in (1990) 3 SCC 57. The following passages found in paragraph 4 of the said judgment may be usefully extracted below: 4…..Where the rules provide for suspending a civil servant and require thereof to report the matter to the government giving out reasons for not completing the investigation or enquiry within six months, it would be for the government to review the case but it does not mean that the suspension beyond six months becomes automatically invalid or non est. The only duty enjoined by such a rule is that the officer who made the order of suspension must make a report to the government and it would be for the government to review the facts and circumstances of the case to make a proper order. It is open to the government to make an order revoking the order of suspension or further continuing the suspension. The order of suspension however, continues until it is revoked in accordance with the law…. (Emphasis added)

12.The Supreme Court also while construing a similar rule operating in this State in relation to a Government Servant of Andhra Pradesh had held that a wrong terminology in the order did not take away the power if it is available otherwise, vide its judgment in D.G. and I.G. of Police v. K. Ratnagiri reported in (1990) 3 SCC 60. In paragraph 7, the Supreme Court held as follows: 7…..The Rule 13(1) empowers the authority to keep the respondent under suspension pending investigation or enquiry into the criminal charges where such suspension is necessary in the public interest. When the first information report is issued, the investigation commences and indeed it has commenced when the respondent was kept under suspension. The order of suspension cannot, therefore, be said to be beyond the scope of Rule 13(1) merely because it has used the word prosecution instead of investigation into the charges against the respondent. A wrong wording in the order does not take away the power if it is otherwise available. The Tribunal seems to have ignored this well accepted principle. (Emphasis added)

13.The Supreme Court had also held that in case the court is of the opinion that if there was a prolonged suspension, the remedy was to call for an explanation from the authorities and if their explanation was not satisfactory, they should be directed to complete the enquiry within a stipulated time and can increase the rate of subsistence allowance. The Supreme Court also had observed that in such case, employees should be kept out of mischief’s range. Further if they are exonerated from the criminal charges, they will be entitled to all benefits from the date of suspension order, vide its judgment in U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan reported in 1993 Supp (3) SCC 483. In paragraphs 5 and 10, it was held as follows: 5……. There is no restriction on the authority to pass a suspension order second time. The first order might be withdrawn by the authority on the ground that at that stage, the evidence appearing against the delinquent employee is not sufficient or for some reason, which is not connected with the merits of the case. . Ordinarily, when there is an accusation of defalcation of the monies, the delinquent employees have to be kept away from the establishment till the charges are finally disposed of. Whether the charges are baseless, malicious or vindictive and are framed only to keep the individual concerned out of the employment is a different matter. But even in such a case, no conclusion can be arrived at without examining the entire record in question and hence it is always advisable to allow disciplinary proceedings to continue unhindered. It is possible that in some cases, the authorities do not proceed with the matter as expeditiously as they ought to, which results in prolongation of the sufferings of the delinquent employee. But the remedy in such cases is either to call for an explanation from the authorities in the matter, and if it is found unsatisfactory, to direct them to complete the inquiry within a stipulated period and to increase the suspension allowance adequately. It is true that in the present case, the charge-sheet was filed after almost a year of the order of suspension. However, the facts pleaded by the appellants show that the defalcations were over a long period from 1986 to 1991 and they involved some lakhs of rupees. It also appears that the authorities have approached the police and in the police investigation, the amount of defalcation is found to be still more. Since the matter is of taking accounts which are spread over from 1986 to 1991 and of correlating the entries with the relevant documents, and several individuals are involved, the framing of charges was bound to take some time. …….. in the present case, the High Court has not quashed the order of suspension on the ground of delay in framing the charges. As stated earlier, it has set aside the order of suspension on the ground that the authority had no power to pass the second order of suspension in the same case. We are afraid that the High Court has misconstrued the nature and purpose of the power of suspension vested in the management. . The charges are also grave and the authorities have come to the conclusion that during the disciplinary proceedings, the officers should not continue in employment to enable them to conduct the proceedings unhindered. Hence, we are satisfied that the order in appeal was not justified.

10.We find from the charge-sheet that the allegations against the first respondent are grave inasmuch as they indicate that the amounts mentioned therein are not deposited in the bank and forged entries have been made in the passbook of the relevant accounts and the amounts are shown as having been deposited. In the circumstances, the High Court should not have interfered with the order of suspension passed by the authorities. The Division Bench has given no reason for upholding the learned Single Judge’s order revoking the suspension order. In matters of this kind, it is advisable that the concerned employees are kept out of mischief’s range. If they are exonerated, they would be entitled to all their benefits from the date of the order of suspension. Whether the employees should or should not continue in their office during the period of inquiry is a matter to be assessed by the authority concerned and ordinarily, the Court should not interfere with the orders of suspension unless they are passed mala fide and without there being even a prima facie evidence on record connecting the employees with the misconduct in question. . Since this is the conclusion arrived at by the management on the basis of the material in their possession, no conclusions to the contrary could be drawn by the Court at the interlocutory stage and without going through the entire evidence on record. In the circumstances, there was no justification for the High Court to revoke the order of suspension.

14.Taking the similar view in Union of India v. Rajiv Kumar reported in (2003) 6 SCC 516, the Supreme Court had held that if suspension is for a long period that by itself cannot make the suspension invalid. In paragraphs 15 and 29, it was observed as follows: 15…… it is clear that the order of suspension does not lose its efficacy and is not automatically terminated the moment the detention comes to an end and the person is set at large. It could be modified and revoked by another order as envisaged under Rule 10(5)(c) and until that order is made, the same continues by the operation of Rule 10(5)(a) and the employee has no right to be reinstated in service. This position was also highlighted in Balvantrai Ratilal Patel v. State of Maharashtra2. Indication of the expression pending further order in the order of suspension was the basis for the aforesaid view.

29.Another plea raised relates to a suspension for a very long period. It is submitted that the same renders the suspension invalid. The plea is clearly untenable. The period of suspension should not be unnecessarily prolonged but if plausible reasons exist and the authorities feel that the suspension needs to be continued, merely because it is for a long period that does not invalidate the suspension. (Emphasis added)

15.Once again the Supreme Court in State Bank of India v. Rattan Singh reported in (2000) 10 SCC 396 had held that mere fact that 10 years have elapsed cannot be a ground to set aside the suspension order and make an employee to come back to a sensitive post unless he was exonerated. In paragraph 6, the Supreme Court had observed as follows: 6….. since at the relevant time, both a departmental enquiry as well as a criminal prosecution were under contemplation. Thereafter in view of the pendency of the criminal prosecution, the appellant did not initiate a departmental enquiry. The order of suspension, therefore cannot be faulted looking to the provisions set out above. When a criminal prosecution on serious charges is pending against the respondent, the Bank is entitled to suspend him. In this connection, our attention has been drawn to a decision of this Court in the case of Allahabad Bank v. Deepak Kumar Bhola1 where this Court said that where CBI had conducted an investigation resulting in the filing of a charge-sheet, this was sufficient for the appellant to conclude that recourse had to be taken to clause 19.3 to suspend the respondent. The mere fact of 10 years having elapsed was no ground to allow him to come back to a sensitive post unless he was exonerated. In the case of Punjab National Bank v. Jagdish Singh2 (a decision to which one of us was a party), it was held that when a bank employee is being prosecuted, the bank has the power to suspend the employee under the Bipartite Settlement…… (Emphasis added)

16.Taking exception to courts passing orders of revocation of suspension even after a charge sheet was filed in the criminal case on the plea that there will not be any further necessity to keep the Government servant under suspension, it was held that there is distinction between a suspension during criminal investigation and the continued suspension after the charge sheet was filed. This view was expressed by the Supreme Court in Union of India v. Udai Narain reported in (1998) 5 SCC 535. In paragraph 4, the Supreme Court had observed as follows: 4.A bare look at Rule 10 of CCS (Classification, Control and Appeal) Rules, 1965 would show that the interpretation placed by the Tribunal does not appear to be correct. An unduly narrow technical view has been taken by the Tribunal to quash the order of suspension. The view of the Tribunal that the expression investigation, inquiry or trial would not include the stage of filing of the charge-sheet in the Court and since investigation was over and the trial had not yet commenced, the respondent could not be placed under suspension, we are unable to accept. The delinquent cannot be considered to be any better off after the charge-sheet had been filed against him in the Court after completion of the investigation, than his position during the investigation of the case itself. It has been brought to our notice that sanction for prosecution has already been obtained and case has been fixed for framing of charges by the trial court. In this view of the matter we find that the view taken by the Tribunal in the impugned order is not sustainable and the order of suspension was not liable to be quashed on the ground that the case was neither at the stage of investigation or enquiry or trial. (Emphasis added)

17.The Supreme Court had also held that suspension is not a punishment and it is passed only to forbid or to disable an employee to discharge his duty and it is a step in aid to the ultimate result of the investigation or enquiry and that the court should not proceed in haste to pass an order interdicting suspension and normally the appointing authority or the disciplinary authority while passing order takes into consideration the gravity of misconduct, vide its judgment in State of Orissa v. Bimal Kumar Mohanty reported in (1994) 4 SCC 126. The following passages found in paragraphs 5,13 and 14 may be usefully reproduced below: 5.We have given our anxious and serious consideration to the respective contentions. True, normally, this Court would not interdict the exercise of the power to pass interim orders by the courts or tribunals, obviously, with the expectation that they exercise the discretionary power with circumspection after weighing pros and cons to subserve the ultimate result of the pending adjudication. The question is whether this is a fit case where the Tribunal itself should have interdicted the orders of suspension when the appointing authority contemplated disciplinary proceedings or pending investigation into the crime.

13.It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. . The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent’s continuance in office while facing departmental inquiry or trial of a criminal charge.

14…….we are of the considered view that since serious allegations of misconduct have been alleged against the respondent, the Tribunal was quite unjustified in interfering with the orders of suspension of the respondent pending inquiry. The Tribunal appears to have proceeded in haste in passing the impugned orders even before the ink is dried on the orders passed by the appointing authority. The contention of the respondent, therefore, that the discretion exercised by the Tribunal should not be interferred with and this Court would be loath to interfere with the exercise of such discretionary power cannot be given acceptance.

18.The Supreme court had also held that if investigation is conducted by the CBI, which resulted in filing of charge sheet before the Special Court for various offences, that is sufficient for concluding that the Government servant should be suspended and the fact that there was delay of 10 years cannot be a ground for the Government servant to come back to duty unless he was exonerated of charges as held in Allahabad Bank v. Deepak Kumar Bhola reported in (1997) 4 SCC 1. The following passages found in paragraphs 10 and 11 may be usefully reproduced below: 10.In our opinion the aforesaid observations correctly spell out the true meaning of the expression moral turpitude. Applying the aforesaid test, if the allegations made against the respondent are proved, it will clearly show that he had committed an offence involving moral turpitude and, therefore, the appellant had the jurisdiction to suspend him under the aforesaid clause 19.3. The High Court observed that there was nothing on record to suggest that the management had formed an opinion objectively on the consideration of all relevant material available against the petitioner that in the circumstances of the case the criminal acts attributed to the petitioner implied depravity and vileness of character and are such as would involve moral turpitude. It did not regard entering into a criminal conspiracy to commit the aforesaid offences as being an offence involving moral turpitude. We are, to say the least, surprised at the conclusion which has been arrived at by the Allahabad High Court. There was material on record before the appellant, in the form of the report of the CBI/SPE, which clearly indicated the acts of commission and omission, amounting to moral turpitude alleged to have been committed by the respondent. Furthermore the respondent has been charged with various offences allegedly committed while he was working in the Bank and punishment for which could extend up to ten years’ imprisonment (in case the respondent is convicted under Section 467 IPC).

11.We are unable to agree with the contention of the learned counsel for the respondent that there has been no application of mind or the objective consideration of the facts by the appellant before it passed the orders of suspension. As already observed, the very fact that the investigation was conducted by the CBI which resulted in the filing of a charge-sheet, alleging various offences having been committed by the respondent, was sufficient for the appellant to conclude that pending prosecution the respondent should be suspended. It would be indeed inconceivable that a bank should allow an employee to continue to remain on duty when he is facing serious charges of corruption and misappropriation of money. Allowing such an employee to remain in the seat would result in giving him further opportunity to indulge in the acts for which he was being prosecuted. Under the circumstances, it was the bounden duty of the appellant to have taken recourse to the provisions of clause 19.3 of the First Bipartite Settlement, 1966. The mere fact that nearly 10 years have elapsed since the charge-sheet was filed, can also be no ground for allowing the respondent to come back to duty on a sensitive post in the Bank, unless he is exonerated of the charge. (Emphasis added)

19.The said judgment came to be followed in a subsequent judgment in the case relating to State Bank of India Vs. Rattan Singh (cited supra).

20.Even if recital in an order of suspension was not satisfactory, that cannot be a ground for interfering with a suspension order on the ground that condition precedent for suspension was not fulfilled as was held by the Supreme Court in State of Haryana Vs. Hari Ram Yadav and others reported in 1994 (2) SCC 617. In paragraphs 10 and 11, the Supreme Court held as follows: "10….The law is well settled that in cases where the exercise of statutory power is subject to the fulfilment of a condition then the recital about the said condition having been fulfilled in the order raises a presumption about the fulfilment of the said condition, and the burden is on the person who challenges the validity of the order to show that the said condition was not fulfilled. In a case, where the order does not contain a recital about the condition being fulfilled, the burden to prove that the condition was fulfilled would be on the authority passing the order if the validity of the order is challenged on the ground that the condition is not fulfilled….

11….There is no averment in the said petition challenging the validity of the impugned order of suspension on the ground that the Governor of Haryana was not satisfied that it was either necessary or desirable to place Respondent 1 under suspension. In the absence of any such averment it must be held that the impugned order was passed after fulfilling the requirement of Rule 3(1) of the Rules in view of the presumption as to the regularity of official acts which would be applicable and the absence of a recital in the order about the Governor being satisfied that it was either necessary or desirable to place respondent 1 under suspension is of no consequence…." V.Why interim orders in matters of suspension ?

21.In the light of the above authoritative pronouncements of the Supreme Court, there was no scope at all for entertaining writ petitions against orders of suspension and that too to grant interim orders of stay even without hearing the other side and without the benefit of any counter affidavit.

22.The judgment in R.Maheswari’s case (2008 (5) MLJ 635) relied on in many of cases for the grant of interim orders cannot be said to be laying down the correct proposition of law. In that case, recital in suspension order was referred to for setting aside a suspension. It must be noted that there is no statutory form prescribed for suspension and the Government follows only proforma forms. When a person is facing criminal case and that too for serious offences that by itself can be a ground for suspension as held by the Supreme Court in A.K.K.Nambiar’s case (cited supra) and in K.Ratnagiris case (cited supra). Further a mere wrong terminology in the order did not take away the power of suspension as held in K.Ratnagiri’s case (cited supra).

23.It will be startling proposition to say that involvement in a criminal case by a public servant cannot be a ground at all for placing him under suspension. The judgment in R.Maheswari’s case did not refer to any legal precedent and cannot be followed in the light of the authoritative pronouncements of the Supreme Court referred to above.

24.Similarly, while granting interim orders in some cases, the court relied upon a judgment of this court in The State of Madras Vs. K.A.Joseph reported in AIR 1970 Madras 155 on the ground that prolonged suspension can be stayed by the court. In that case, the respondent Joseph was placed under suspension pending contemplation of enquiry. Since suspension lasted for more than 10 months, he moved this court. This Court directed that charges should be framed within three months and if that was not done, he can again approach the court for redress. When no charges were framed by the competent authority, he filed another writ petition. This court while entertaining that writ petition, by an interim order revoked the suspension order.

25.An appeal was filed by the State in W.A.No.45 of 1969. The appeal was finally disposed of by a division bench of this court which came to be reported as AIR 1970 Madras 155. The short order contained only three paragraphs. In paragraph 1, the court dealt with the facts of the case, which is as follows: …. It is sufficient for us to observe that a period of nearly ten months had elapsed since the Officer was first placed under suspension, and that, on an earlier representation, the Court directed that charges should be framed within three months, and that, if that was not done, the petitioner could approach the Court, again for redress, and, the outcome is the order from which the writ appeal is sought to be filed.

26.Repelling the objections raised by the State regarding the power of judicial review over such order, in paragraph 2, it was observed as follows: 2….On the contrary, in our view there is a very clear and distinct principle of natural justice, that an Officer is entitled to ask, if he is suspended from his office because of grave averments or grave reports of misconduct, that the matter should be investigated with reasonable diligence, and that charges should be framed against him within a reasonable period of time…..

27.When the Government Pleader in that case expressed his difficulty about the embarrassment if the Government servant resumed duty in the same place, the court moulded the relief in the following manner: 3…. The learned Government Pleader submits that there may be great difficulty in permitting the Officer to resume duties in the very post, when the performance of those duties by him in the past, had led to the imputation of grave irregularities, we are unable to see any real difficulty in the matter. We clarify the position by stating that it is open to the Government to permit the Officer to resume duty in that identical post, or, any post of equal grade and emoluments, which may be available for making an order of resumption of duty.

28.It can be seen from the above case that there was initial disobedience of the order passed by this court in not framing the charges. Thereafter, the suspension was revoked. There was objection for restoration of service on the ground that this court has no jurisdiction to interfere with the suspension which was rejected. Further when the embarrassment of restoration of a Government servant facing serious charges to the very same place was made, the court also directed his being posted to some other post in the very same status and salary.

29.From a reading of the judgment in Joseph’s case, it is clearly seen that the court was concerned about the delay in framing of charges by the department. It did not deal with a case involving criminal prosecution that too on corruption charges. The court also gave an opportunity to the respondent to frame charges and not to contend by keeping a person under suspension. When that was not forthcoming and when the order of the court was violated, the court revoked the order of suspension. But it took care in granting liberty to the Government to post that person in some other place.

30.However in the present cases, by staying the suspension orders, the petitioners who were facing serious charges of corruption were directed to be restored in the same post. Further Joseph’s case (cited supra) did not apply to suspension due to the pendency of criminal cases. It depended upon the action to be initiated by the competent authority to frame charges under the relevant service rules. But even the direction given by the division bench to post them in some other places was not made as a condition precedent.

31.Further, the other grounds for granting interim orders on the ground that one was not in custody beyond 48 hours, no proper recital found in the order, no progress in the criminal case was made, the Government instructions were not followed and there cannot be second order of suspension, have all been answered by the Supreme Court in the decisions cited above. Therefore, there is no case made out to entertain the writ petitions and they are deserved to be dismissed. VI.Interim orders cannot become final orders :

32.It was finally submitted that the petitioners having been enjoyed the benefit of interim orders, the court should not vacate the order at this stage. In this context, it is necessary to refer to the following decisions of this Court and the Bombay High Court, which are as follows.

33.A Division bench judgment of this court in C.Kamatchi Ammal Vs. Kattabomman Transport Corporation Ltd. and others reported in AIR 1987 MADRAS 173 has held that interlocutory orders made in the course of proceedings will necessarily lapse with the decision of the suit unless the suit is one for permanent injunction and the interim injunction is made permanent as a part of the decretal order made by the court.

34.The Bombay High Court vide its decision reported in Ramesh Akre and others Vs. Smt.Mangalabai Pralhad Akre and others reported in AIR 2002 Bombay 487 has held as follows: "21.Similarly, it is also not necessary that suit should be disposed of only on merits in order to bring an end to interim order. What is contemplated in law is that such interim order would continue to operate till suit is disposed of one way or the other and would come to an end on the day suit is disposed of. Whether suit is disposed of for want of prosecution or on merits is not the criteria to decide existence of interim orders. These orders by their very nature are temporary and remain in force only during the pendency of the suit and come to an end when the suit is disposed of one way or the other." Therefore, on that ground the petitioners’ grievance cannot be accepted.

35.In the light of the above, there is no case made out to entertain the writ petitions. Hence all the writ petitions will stand dismissed. Consequently, connected miscellaneous petitions stand closed. However there will be no order as to costs.

VII.EPILOGUE :

36.Before parting with the case, it is worthwhile to recall the observations made by the Supreme Court regarding undesirability of entertaining the writ petition on suspension even at the threshold vide its judgment in Secretary to Government, Prohibition & Excise Department v. L. Srinivasan reported in (1996) 3 SCC 157. In paragraph No.3, it was observed as follows: 3……The respondent while working as Assistant Section Officer, Home, Prohibition and Excise Department had been placed under suspension. Departmental inquiry is in process. We are informed that charge-sheet was laid for prosecution for the offences of embezzlement and fabrication of false records etc. and that the offences and the trial of the case is pending. The Tribunal had set aside the departmental enquiry and quashed the charge on the ground of delay in initiation of disciplinary proceedings. In the nature of the charges, it would take a long time to detect embezzlement and fabrication of false records which should be done in secrecy. It is not necessary to go into the merits and record any finding on the charge levelled against the charged officer since any finding recorded by this Court would gravely prejudice the case of the parties at the enquiry and also at the trial. Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum dehors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and charges even at the threshold. We are coming across such orders frequently putting heavy pressure on this Court to examine each case in detail. It is high time that it is remedied.

vvk

To

1.The Senior Regional Manager (North),

Tamil Nadu Civil Supplies Corporation Limited,

Chennai-600 086.

2.The Enquiry Officer,

C.M.Balakrishnan,

Office Superintendent,

P.R. Section,

The Senior Regional Manager (North),

Tamil Nadu Civil Supplies Corporation Limited,

Chennai 600 086

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