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2014 DIGILAW 865 (MAD)

K. Selvamani v. State of Tamil Nadu

2014-04-08

R.SUBBIAH

body2014
Judgment : 1. This writ petition has been filed by the petitioner for a writ of Certiorari to call for records relating to G.O. (2D).No.208 [Home (Pol.2) Department], dated 27.07.2012, on the file of the first respondent and quash the same. 2. It is averred in the affidavit filed in support of the writ petition as follows; (a) The petitioner herein has joined the Tamil Nadu Police force in the year 1987 as Sub Inspector of Police (Category I) and thereafter, he was promoted to the post of Inspector in the year 1998 and served in various police stations in Chennai till 2011. On 07.02.2010, he was further promoted as Deputy Superintendent of Police. On 29.02.2012 he was posted as DSP at Lalkudi Sub Division. While so, the petitioner found that the investigation in respect of two murder cases were not properly conducted in the manner known to law by the Inspector of Police and Sub Inspector of Police at Lalkudi Station and there were several latches. Hence, the petitioner was, after reporting the same to the Superintendent of Police, asked for explanation from the concerned Inspector and Sub Inspector of Police at Lalgudi Police Station. This annoyed the Inspector and Sub Inspector of Police and created hatred feeling about the petitioner in their minds. (b) In the first week of July, 2012, the petitioner has received a current paper from the Special Branch Office, Tiruchirapalli, in Na.Ka.No.336/SB/TRI/2012 in the first week of July, directing the petitioner to verify certain particulars about one Alpha Educational Charitable Trust which is run by one Rajamanickam, who had submitted a paper for registering the trust under the Foreign Contribution (Regulation) Act. The petitioner, thereafter, sent the current paper to the Inspector of Police, Lalkudi, for conducting personal enquiry, but the Inspector of Police, Lalgudi, in turn, deputed Sub Inspector of Police – Chandramohan to verify the details. The Inspector and Sub Inspector of Police, Lalgudi, had sent a report stating favourably about Alpha Educational Charitable Trust. But, the petitioner, dissatisfying with the same, returned the same with certain queries in the 2nd Week of July, 2012. On 18.07.2012, at 6.00 p.m. when the petitioner was at Samayapuram Police Station, the said Rajamanickam came and met the petitioner stating that the Inspector of Police and Sub Inspector of Police, Lalgudi Station directed him to meet the petitioner to clarify the queries made by him. On 18.07.2012, at 6.00 p.m. when the petitioner was at Samayapuram Police Station, the said Rajamanickam came and met the petitioner stating that the Inspector of Police and Sub Inspector of Police, Lalgudi Station directed him to meet the petitioner to clarify the queries made by him. At that time, the petitioner directed the said Rajamanickam to meet the Sub Inspector of Police, as he has returned the papers to the Sub Inspector of Police Chandramohan with certain queries. However, the said Rajamanickam wanted the petitioner to submit a favourable report without those documents, because it will take time for him to submit those documents. But, the petitioner refused the same. (c) On 19.07.2012 when the petitioner went to District Police Office, Tiruchirapalli, at about 2.30 p.m. the said Rajamanickam on seeing the petitioner stood up and told him that he has come to see him regarding his application. The petitioner asked him to wait and went to change his dress. At this juncture, two persons introducing themselves as Vigilance and Anti-corruption Deputy Superintendent of Police, Silambarasan and Inspector of Police, Ramachandran, informed the petitioner as if the petitioner has received bribe amount of Rs.25,000/- from the said Rajamanickam to submit a favourable report. This allegation was vehemently denied by the petitioner, but they refused to listen the petitioner. Then, the said Rajamanickam, pointing out to some files on the petitioner's table, told them that he had kept money in between those files. They forced the petitioner to touch the money, but the petitioner refused to do so. No one other than the Vigilance Police personnel and the said Rajamanickam were present in the Office room. After some time, they brought the Sub Inspector Chandramohan at Lalgudi in his uniform. The vigilance police refused to record the statement of the petitioner. The petitioner was arrayed as Accused No.1 and the Sub Inspector of Police - Chandramohan was arrayed as accused No.2. The petitioner came to know that the Sub Inspector Chandramohan has misused the petitioner's name and gave false information to the said Rajamanickam as if the petitioner is excepting the bribe amount. Though the case was registered as against the Sub Inspector Chandramohan and he was present in the station, the petitioner alone was taken for judicial remand. 3. The petitioner came to know that the Sub Inspector Chandramohan has misused the petitioner's name and gave false information to the said Rajamanickam as if the petitioner is excepting the bribe amount. Though the case was registered as against the Sub Inspector Chandramohan and he was present in the station, the petitioner alone was taken for judicial remand. 3. It is the case of the petitioner that the Inspector of Police, Elanchelian and the Sub Inspector of Police Chandramohan had designed the evil plan and they used Rajamanickam as a weapon. While so, on 27.07.2012, the petitioner was suspended from service through G.O.(2D).No.208 under Sub Rule(e) of Rule 17 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 and till date the Sub Inspector of Police who has been arrayed as accused No.2 has not been arrested and suspended. The order of suspension has been issued in direct contravention of the judgment of the Hon’ble Supreme Court in Prakash Singh and others Vs. Union of India (2006) 8 SCC 1. Therefore, the petitioner has come forward with the present writ petition for the relief stated supra. 4. The respondents have filed a detailed counter stating that the suspension of the petitioner was issued since he was caught red handed and arrested in the act of demand and acceptance of bribe. Considering the involvement of the Sub Inspector of Police - Chandramohan, he was also placed under suspension on 31.07.2013. According to the respondents, the investigation has already been completed and the final report has been sent to the Directorate of Vigilance and Anti-corruption Head Quarters for approval. On receiving the approval, the charge sheet will be laid in the near future. Thus, they sought for dismissal of the writ petition. 5. The learned senior counsel appearing for the petitioner submitted that the petitioner herein has been suspended only by virtue of the deeming provision contained in Rule 17(e)(ii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955. After having issued the suspension order under Rule 17(e)(ii) of the Rules, since the petitioner was arrested and detained for a period longer than 48 hours under the Judicial custody, now in the counter the respondents have taken a stand that the petitioner has been suspended based on the provision contained in Rule 17(e) (i) & (ii), as if the petitioner was suspended in the public interest also. The different stand taken by the respondents would clearly show the mala fide intention of the respondents. The learned senior counsel for the petitioner further submitted that though there is an allegation that the petitioner demanded money through Chandramohan, no amount was recovered from the petitioner. The learned counsel for the petitioner has also submitted that though in the criminal case registered by the DVAC, the said Chandramohan -Sub Inspector of Police was arrayed as A2, he was not arrested and suspended immediately and only after filing the present writ petition, the said Chandramohan was suspended on 31.07.2013. Further when the said Chandramohan moved anticipatory bail before the Madurai Bench of this Court, in Crl.O.P.(MD).No.16380 of 2013, it is reported by the Inspector of Police, Vigilance and Anticorruption, Trichy, as if the charge sheet has already been filed and based on his representation, the Court has granted anticipatory bail to A2, whereas the fact remains that till date the charge sheet has not been filed in the criminal case. The cumulative effect of these factors would show that the respondents are acting with mala fide intention only against the petitioner and therefore, the impugned order is liable to be revoked. 6. The learned senior counsel appearing for the petitioner has, by relying upon the judgment reported in 1995 Supplementary (2) SCC 145, (State of U.P. Vs Viswanath Prasad) submitted that if the Court is satisfied about the prima facie case as to the mala fide of the order of suspension, the Court can interfere with the suspension order. For the same legal position, he has also relied upon the judgment reported in 2013 (1) SCC 524 (Ratnagiri Gas and Power Private Limited Vs. RDS Projects Limited and others). 7. The learned Additional Advocate General appearing for the respondents would submit that absolutely there is no mala fide intention on the part of the respondents and as on date the investigation has been completed and charge sheet is yet to be filed. He further submitted that considering the gravity of the misconduct and heinous nature of offence committed by the petitioner, he was placed under suspension as per Rule 17(e)(i) of the Rules. Though Rule 17(e)(i) of the Rules does not mandate the suspension of member of service, against whom the complaint of criminal offence is under investigation or trial, it is totally a discretionary power conferred on the prescribed authority. Though Rule 17(e)(i) of the Rules does not mandate the suspension of member of service, against whom the complaint of criminal offence is under investigation or trial, it is totally a discretionary power conferred on the prescribed authority. Therefore, he prays for dismissal of the writ petition. In support of the above submission, the learned Additional Advocate General relied upon the following judgments: (a) (2003) 6 SCC 516 (Union of India Vs. Rajiv Kumar) (b)Unreported judgment in W.A.(MD).No.22 of 2011 dated 11.01.2011 (M.Jeyasri Vs. The Chief Engineer (Distribution), TNEB) (c)1993 Supp. (3) SCC 483 (U.P.Rajya Krishi Utpandan Mandi Vs. Sanjiv Rajan) (d)Unreported judgment in W.P.No.5388 of 2009, dated 06.04.2009 (M.Rajambal Vs. The Principal District Judge) 8. Heard the learned senior counsel for the petitioner and the learned Additional Advocate General appearing for the respondents and perused the materials available on record. 9. Though the learned senior counsel for the petitioner submitted that the order of suspension has been issued against the petitioner immediately and the respondents have not chosen to issue suspension order as against Chandramohan/A2 and the same shows the mala fide intention of the respondents, in my considered opinion, when a discretionary power is conferred upon the disciplinary authority to pass an order of suspension considering the nature of allegation as against each of the delinquent, the delay in passing the order of suspension in respect of Sub-Inspector of Police cannot be taken as a ground for revocation of suspension order. Similarly the other grounds raised by the learned senior counsel for the petitioner that the respondents have taken two different stand i.e., one in impugned order that the petitioner is placed under deemed suspension and another in counter statement that the petitioner was suspended in public interest also, will not be helpful to the petitioner for revocation of suspension order, since the said contradiction cannot be taken as a ground to presume that the impugned order has been passed with the mala fide intention. More over, considering the fact that the petitioner has been suspended from 2012 onwards, in my considered opinion, instead of keeping the petitioner in idle and paying the subsistence allowance without extracting the work, the petitioner can be transferred to some other far away place in any nonsensitive post, that too after filing of the charge sheet. 10. More over, considering the fact that the petitioner has been suspended from 2012 onwards, in my considered opinion, instead of keeping the petitioner in idle and paying the subsistence allowance without extracting the work, the petitioner can be transferred to some other far away place in any nonsensitive post, that too after filing of the charge sheet. 10. In this regard, a reference can be placed to an unreported judgment of this Court in W.P.No.29195 of 2010, etc. batch, dated 02.07.2012 (G.Mathivannan Vs. The Director of Municipal Administration, Chepauk, Chennai), wherein it has been held as follows; "7.Apart from this, in all these cases, after a period of 6 months, the petitioners are entitled to get 75% of emoluments as subsistence allowance. Instead of keeping them idle and paying 75% of salary by way of allowance, by transferring them to a far away place and posting them in a nonsensitive post, after extracting work, they can be paid salary. However, the same can be done without detriment to the action initiated against them. In the criminal case, some of them or a few of them may be exonerated or they may be punished. But, as on date, not only finality has not been reached but there is no progress. Under such circumstances, in the opinion of this Court, continuance of their suspension is unreasonable following the judgment of the Division Bench. 8. In view of this, the suspension orders passed in all these writ petitions are set aside. However, the respondents are at liberty to post these petitioners in a far away place from the station of occurrence and post them in a nonsensitive post and if for any reason, the authorities are of the opinion that their continuance in service is a hindrance for the action initiated against them, they can re-examine the issue and they are at liberty to take appropriate action." 11. Applying the same view, this Court is inclined to issue following directions; The petitioner shall submit a detailed representation to the second respondent for revocation of suspension order and his reinstatement, along with a copy of this order, within a period of four weeks from the date of receipt of a copy of this order and the second respondent shall consider the same and reinstate the petitioner in any non-sensitive post at a far away place, as observed in the judgment in W.P.No.29195 of 2010, etc. batch dated 02.07.2012, after filing of the charge sheet in the criminal case. 12.With the above direction, this writ petition is disposed of. No costs. Consequently, connected miscellaneous petitions are closed.