1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.10489 of 2011 and M.P.(MD).No.1 of 2011 R.Surulimuthu : Petitioner Vs. 1.The District Collector, (Inspector of Panchayat) Madurai District. 2.The Block Development Officer, Village Panchayat, Sedapatti Panchayat Union, Madurai District. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, calling for the entire records with regard to Na.Ka.No.48024/2011/RD 6 dated 02.09.2011 on the file of the 1st respondent and quash the same and directing the respondents to restore me to the same post within a time frame fixed by this Court. For Petitioner : Mr.E.R.Gurubalachandran For Respondent : Mr.S.Chandra Sekar Government Advocate O R D E R Challenge in this writ petition, is to a charge memorandum dated 02.09.2011 issued by the District Collector, Madurai, for the current charges. 2.The petitioner, has been placed under suspension. Charges framed, by the District Collector, Madurai on the same day are as follows: “Charge No.1:In the Perugamanallur Panchayat during the year 2006-2007 and 2007-2008 under the Indira Awas Yojana (IAY) scheme, 12 houses had been built to the welfare of the persons, whom are not original beneficiaries. Charge No.II:From the fund of the abovesaid scheme, I have distributed a sum of Rs.37,000/- each to 12 non- beneficiaries/per house, and thereby caused a loss of Rs.4,44,000/-, to the Government exchequer. Charge III:Sending of a false report to the higher officials by misusing the Indira Awas Yojana Scheme. Charge IV:When the implementation of the the abovesaid scheme, I acted arbitrarily, without following the planning guidelines framed by the Government.” 3.Assailing the correctness of the order of suspension, though the learned counsel for the petitioner made submissions, on merits of the https://hcservices.ecourts.gov.in/hcservices/ 2 case, the same cannot be adverted to by this Court and that the enquiry officer is competent to adjudicate, as to the adequacy of materials or, its correctness. 4.The next ground contended by the learned counsel for the petitioner is that the District Collector, Madurai District has no jurisdiction to suspend the petitioner and the Panchayat Union President alone can suspend an employee and if such employee is aggrieved, he can prefer a first appeal to the Block Development Officer and a second appeal to the District Collector and that it is further contention that the petitioner has not been provided with any opportunity of hearing before invoking suspension. All the contentions are held as untenable, in view of the judgment of this court in (T.Chandrakala vs. Block Development Officer/Commissioner-Mugaiyur Panchayat Union, Villupuram District and Another), reported in [2011] 3 MLJ 540, distinguishing a judgment in N.Sivakumar vs. V.K.Vembu reported in (2008) 3 MLJ 852. The relevant portion is extracted hereunder: 9.The issue as to whether any show cause notice has to be given before suspending a Government servant, has been considered by this Court, as early as on 1954 in Y. Venkateswarlu v. State of MadrasAIR 1954 Mad. 587 : (1954) 1 MLJ 244, where this Court, dissenting with the views expressed by the Nagpur Bench in Provincial Government, C.P., and Berar v. Syed Shamshul HussainAIR 1949 Nag. 118 (C), at paragraph 5, held that, at p. 249 of MLJ: “ Therefore under Article 311 , Clause (2), the penalties contemplated mere, for which a statutory safeguard of a reasonable opportunity of showing cause against the action proposed to be taken in regard to him is provided, are dismissal, removal or reduction in rank. On a reading of the decision of the Supreme Court, it seems to me that in that judgement their Lordships did not intend to equate ‘ suspension ‘ with ‘ reduction in tank ‘ . The two ideas are distinct and are intended to apply to different sets of circumstances. I am therefore of opinion that the contention of the learned counsel that suspension is tantamount to reduction in rank is unacceptable. If that is so, there was no necessity for any opportunity being given to the petitioner, before he was suspended, to show cause why he should not be suspended. ” 10.Explaining the nature of the order of suspension, as to whether it is administrative or quasi-judicial and whether the government servant should be given an opportunity before suspending him from service, the Supreme Court in Pratap Singh v. State of PunjabAIR 1964 SC 72, the Supreme Court held that it cannot be said suspension of a Government servant without calling him to explain the charges first, was bad as the proceedings to suspend him were not of a quasi-judicial character and, therefore, necessitated the Government ‘ s obtaining his explanation to the charges of misconduct before passing the order of suspension. The order suspending the Government servant pending enquiry is partly an administrative order. What has been held to be quasi-judicial is the enquiry instituted against the Government servant on the charges of https://hcservices.ecourts.gov.in/hcservices/ 3 misconduct, an enquiry during which under the rules it is necessary to have an explanation of the Government servant to the charges and to have oral evidence, if any, recorded in his presence and then to come to a finding. None of these steps is necessary before suspending a Government servant pending enquiry. Such orders of suspension can be passed if the authority concerned, on getting a complaint of misconduct, considers that the alleged charge does not appear to be groundless, that it requires enquiry and that it is necessary to suspend the Government servant pending enquiry. 11.In State of Orissa v. Shiva Parashad DasAIR 1985 SC 701 : (1985) 2 SCC 65 : 1985-II-LLJ-204, the Supreme Court tested the correctness of the order of suspension on the ground that as to whether, it was made in contravention of Article 311 of the Constitution of India as well as Rule 12 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962. The High Court allowed the writ petition and quashed the order of suspension, holding that same is in contravention of Article 311(1) of the Constitution. On appeal, the Supreme Court, at paragraph 3, held that, at p. 205 of LLJ: “ 3. An order of suspension passed against a Government servant pending disciplinary enquiry is neither one of dismissal nor of removal from service within Article 311 of the Constitution. This position was clearly laid down by a Constitution Bench of this Court in Mohammad Ghouse v. State of Andra1957 SCR 414. It is unfortunate that this decision was not brought to the notice of the learned Judges of the High Court Clause (1) of Article 311 will get attracted only when a person who is a member of Civil Service of the Union or an All India Service or a Civil Service of a State is ‘ dismissed ‘ or ‘ removed ‘ from service. The provisions of the said clause have no application whatever to a situation where a Government servant has been merely placed under suspension where a Government servant has been merely placed under suspension pending departmental enquiry since such action does not constitute either dismissal or removal from service. The High Court was, therefore, manifestly in error in quashing the order of suspension passed against the respondent on the ground that it was violative of Clause (1) of Article 311 of the Constitution. ” 12.The Division of Gujarat High Court in Vagadia Farambhai Bhurabhai v. T.J. Trivedi 1987 (1) SLR 648, while dealing with the similar question, at paragraph 6, held as follows: “ The above observation makes it abundantly clear that the application of the rule of natural justice of being heard before any administrative order having civil consquences of is passed, cannot be insisted upon if the same is likely to defeat the very object or purpose of interim suspension. While it cannot be disputed on the principle that the principle of natural justice must be extended to administrative actions involving civil consequences, it must be conceded that insistence on the application of the rule of natural justice, https://hcservices.ecourts.gov.in/hcservices/ 4 namely, affording a hearing before an order is passed, cannot be permitted if it is likely to result in defeating the administrative action required to be taken with promptitude, having regard to the circumstances of the case on hand. Inflexible and rigid application of the rule of audi alteram partem to Rule 5 of the rules would have the effect of setting at naught the very object or purpose of placing a civil servant under suspension. If a civil servant charged of committing an act involving moral turpitude cannot be placed under suspension unless he is given an opportunity of showing cause against the proposed order, he would continue in service till the hearing is contemplated which would not be in public interest. To continue a civil servant who is alleged to have betrayed a tendency to demand and accept illegal gratification would be against public interest and! would defeat the very object of prompt action, i.e., suspension in public interest if the procedure of giving a hearing before such an order is passed is required to be undergone. We are, therefore, in agreement ‘ with the view taken in Lakshman ‘ s case (supra). We, therefore, do not think that Rule 5 is ultra vires theon the plea that the procedure prescribed thereunder is in violation of the principles of natural justice. ” 13.With due respect, the judgment in N. Sivakumar v. K. Vembu (supra) relied on by the learned counsel for the petitioner can be made applicable only in the case of a penalty imposed on any employee.” 5.Perusal of the suspension and the charge memorandum dated 02.09.2011 prima facie shows that there are materials to place the petitioner under suspension. The order of suspension can be challenged only if there is lack of jurisdiction, contravention of statutory rules, or malafide on the part of the respondents to be pleaded and proved. The petitioner has not made out a case on any one of the grounds. 6.Accordingly, this writ petition is misconceived. Hence, it is dismissed. Consequently, connected M.P.No.1 of 2011 is also dismissed. No costs. Sd/- Deputy Registrar (Writs) /True copy/ Assistant Registrar To 1.The District Collector, (Inspector of Panchayat) Madurai District. 2.The Block Development Officer, Village Panchayat, Sedapatti Panchayat Union, Madurai District. +1CC TO THE SPECIAL GOVERNMENT PLEADER, SR.31887 Vs : SR : 28.10.2011 : 4p/4c Writ Petition No.10489 of 2011 15.09.2011 https://hcservices.ecourts.gov.in/hcservices/