N. Mathi v. Revenue Divisional Officer, Tiruvallur
2012-11-09
K.CHANDRU
body2012
DigiLaw.ai
Judgment :- This writ petition is filed by the petitioner, who was working as a Village Administrative Officer at Edamichi Village, Uthiramerur Taluk. In this writ petition, he had challenged an order of suspension dated 11.2.2009. The suspension order was made by the Revenue Divisional Officer, Tiruvallur, the first respondent herein. In the suspension order, it was stated that the petitioner had demanded and accepted a bribe of Rs.500/-. He was caught in a trap case laid by the Vigilance and Anti-Corruption police and he was also arrested. Hence he was placed under suspension with effect from 6.2.2009. 2. The petitioner immediately filed a writ petition in W.P.No.26303 of 2009 seeking to challenge the order of suspension. However, when the matter came up on 17.03.2011, the said writ petition was withdrawn with liberty to file a review application before the respondents for reconsidering the suspension. Even as per the admission of the petitioner, he did not send any review application. On the other hand, he sent a representation only on 6.8.2012 after making a reference to the common order passed in a batch of writ petitions relating to the corrupt Government servants facing criminal cases. The batch of writ petitions in W.P.No.29195 of 2010 and batch cases in G.Mathivannan Vs. The Director of Municipal Administration, Chepauk, Chennai and another was disposed of by a common order dated 02.07.2012. In that case, the suspension orders were quashed on several grounds and heavy reliance was placed upon a judgment of a division bench of this court in P.S.Ambigapathy Vs. The Director of Public Health & Preventive Medicine reported in 1991 WLR 273. In that case, it was held that 3 years being under suspension would amount to prolonged suspension and that will also apply to a criminal case pending. Therefore, the learned Judged had quashed the order of suspension. The petitioner wanted to have the similar relief on the ground that he is also facing suspension for three years. 3. It was brought to the notice of this court that the petitioner was caught under a trap case and a complaint was received from one Thulasiraman. He was caught while accepting the bribe of Rs.500/- for sanctioning the dole amount given under the Tamil Nadu Social Security Scheme to the complainant who claimed the relief on account of the expiry of his father on 13.11.2008.
He was caught while accepting the bribe of Rs.500/- for sanctioning the dole amount given under the Tamil Nadu Social Security Scheme to the complainant who claimed the relief on account of the expiry of his father on 13.11.2008. The case has been taken up by the Chief Judicial Magistrate-cum-Special Judge, Chengalpattu. The sanctioning authority, i.e., the first respondent was examined as P.W.1 on 30.01.2012. Subsequently, the matter was posted on 03.09.2012 for examination of P.W.2, the defacto complainant. Even before the said date of examination, the petitioner filed the present writ petition on 10.8.2012. This court is not inclined to entertain the writ petition as the petitioner is facing a serious criminal charge and that the trial is in progress. He cannot be restored pending the outcome of the criminal trial. 4. Since the petitioner placed heavy reliance upon the order passed by the learned judge of this court, dated 02.07.2012, it is necessary to analyze the ratio of the said judgment. In that case, the learned Judge apart fro the division bench order, also referred to the State Government circular in G.O.(Ms)No.40, P&AR Department, dated 30.01.1996, prescribing certain guidelines for keeping a Government servant under suspension. The learned Judge also referred to the decisions of the two learned Judges of this court including this court in paragraph 3 of its judgment as this court in R.Ravichandran Vs. The Additional Commissioner of Police, Traffic, Chennai and another in W.P.No.12590 of 2009, dated 05.10.2010, S.Manikumar, J., has made an exhaustive reference to all the cases of the Supreme Court and this court and held that such suspension cannot be interfered with only because the trial in the criminal case getting delayed. In paragraph 8 of the order dated 2.7.2012, though it was observed that as the atmosphere prevails today, the corruption charges have to be dealt with severely and strenuous action has to be initiated against the corrupt and there was no doubt regarding the same, but however, after making a reference to the Ambigapathy's case (cited supra), it was stated that if the criminal trial is delayed, then the 3 years can be taken as the prolonged suspension and persons can be restored and posted in far away placed and after extracting work, they can be paid salary instead of paying 75% of subsistence allowance. 5.
5. This view goes totally in opposition to the series of judgments of the Supreme Court. There cannot be any universal rule fixing any particular period by which the criminal case can be finished. The department has no control over the outcome of the criminal case. All that the department can do is to review and consider the progress of the case and enhance the subsistence allowance. Merely because the State is obliged to pay subsistence allowance, it is not a ground to set aside the suspension and ask the corrupt Government servant to be restored to service even before the outcome of the criminal case, especially when the charge is under the Prevention of Corruption Act and the trial is pending before the Special Court. This court is unable to accept any such prescription of time in coming to a conclusion that if a particular time lapsed, it would automatically result in deemed prolonged suspension. Therefore, the court should not set aside the suspension. At the maximum as held by the Supreme Court, they can only give direction to complete the criminal case at an early date and not go beyond that. Even otherwise, in the present case, it is not as if the trial is not commenced. On the other hand, P.W.1 was examined and the matter was posted for examination of P.W.2, the defacto complainant on 3.9.2012. Hence it is not a fit case where the petitioner can get any relief. 6. In this context, it is necessary to refer to certain decisions of the Supreme Court. The Supreme Court in its decision reported in 1990 (3) SCC 60 (Director General and Inspector General of Police, Andhra Pradesh, Hyderabad and others Vs. K.Ratnagiri) has held in paragraph 7 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 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." Further, it was observed in paragraph 3 as follows: "3. ...The government may review the case and make further or other order but the order of suspension will continue to operate till it is rescinded by an appropriate authority." 7. Once again, the Supreme Court vide its decision reported in 1994 (2) SCC 617 (State of Haryana Vs. Hari Ram Yadav and others) held in paragraph 10 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...." Further, in paragraph 11 of the judgment, it was observed as follows: "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...." 8.
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. 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 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.
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.” 9. 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.
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.” 10. 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......” 11.
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......” 11. 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.” 12.
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.” 12. 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.
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.” 13. Further, the Supreme Court in Secretary to Government, Prohibition & Excise Department v. L. Srinivasan reported in (1996) 3 SCC 157 in paragraph No.3 had 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.
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.” 14. In the light of the above, the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petitions stand closed.