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2013 DIGILAW 2988 (MAD)

Selvam v. District Collector Kancheepuram

2013-08-20

D.HARIPARANTHAMAN

body2013
JUDGMENT 1. With the consent of both parties, the Writ Petition itself is taken up for final disposal, as the matter lies in narrow compass. 2. Heard both sides. 3. The petitioner was serving as a Deputy Tahsildar in Uthiramerur Taluk in Kancheepuram District. A criminal case was registered against him by the Vigilance and Anti Corruption Department. He was arrested on 10.1.2013. While so, the impugned order dated 11.1.2013 was passed under Rule 17 (e)(2) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules placing the petitioner under suspension on the ground that the petitioner was under custody for a period exceeding 48 hours. 4. The petitioner has questioned the same in the Writ Petition on the sole ground that the order was passed without application of mind and the petitioner was arrested on 10.1.2013 and the impugned order was passed on 11.1.2013. Therefore, at the time when the impugned order was passed, the petitioner was not in custody beyond 48 hours. 5. He has relied on the judgment in W.P.No.24063 of 2009 and more particularly paragraphs 5 to 7 and the same is extracted hereunder: "5. The fact remains that the impugned order of suspension dated 9.7.2009 was passed against the petitioner on the ground of implication of the petitioner in a criminal case for the offences under Sections 7 & 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. However, it is seen that it is clearly stated in the impugned order that the petitioner has been suspended that with effect from 8.7.2009 and the impugned order was passed on 9.7.2009 and as such it is crystal clear that it is not an order of deemed suspension. In order to pass an order of deemed suspension, the delinquent officer should have undergone custody for a period exceeding 48 hours as per the provisions of Rule 17(e)(2) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules which reads hereunder: "17(e)(2). A Government servant who is detained in custody whether on a criminal charge or otherwise for a period of longer than forty eight hours shall be deemed to have been suspended under this Rule." A reading of the above said provision makes it crystal clear that in order to pass an order of deemed suspension, the delinquent officer should have undergone custody for a period exceeding 48 hours. 6. 6. At this juncture, it is relevant to refer to a Division Bench of this court dated 28.11.2006 in W.A.(MD) No.416 of 2006 (P.Karuppasamy v. The Revenue Divisional Officer, Kovilpatti), wherein it has been held as follows: "4. Admittedly, the suspension is made invoking clause (2) of sub-rule (e) of Rule 17, which contemplates a deemed suspension in the event of a Government servant is detained in custody for more than 48 hours. In the event the custody does not exceed 48 hours, invocation of the said clause is bad. The fact that the appellant was taken into custody on 22.8.2006 and was released by the Vigilance and Anti Corruption Department on the same day at 17.30 hours is not in dispute. If that is accepted, the appellant was in custody for only a period of 2-1/2 hours. For the said purpose, he cannot be considered to be under deemed suspension. In that event, the order of suspension is unsustainable." As per the principle laid down by the Division Bench of this Court in the decision cited supra as well as the provision under Rule 17(e)(2) of Tamil Nadu Civil Services (Discipline and Appeal) Rules, the delinquent officer should have undergone custody for a period exceeding 48 hours in order to pass an order of deemed suspension. But as far as the instant case is concerned, admittedly the petitioner was arrested on 8.7.2009 at 14.50 hours for the offences under Prevention of Corruption Act and the impugned order was passed on 9.7.2009 and as such it is crystal clear that the petitioner had not undergone custody for a period exceeding 48 hours. 7. In view of the above said reasons, this Court is constrained to set aside the impugned order passed by the respondent in his proceedings No.Rc.A2/21243/2009 dated 9.7.2009 and consequently the respondent is directed to reinstate the petitioner into service. It is made clear that, it is open to the respondent to initiate fresh action in the manner known to law." 6. As rightly contended by the learned counsel for the petitioner, the impugned order is passed without application of mind. Hence, the impugned order of suspension is quashed. However, liberty is given to the respondent to pass fresh order on the ground of pendency of investigation or pendency of criminal case. The Writ Petition is disposed of accordingly. No costs. The connected Miscellaneous Petitions are closed.