IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.07.2011 CORAM: THE HON’BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.14636 of 2011 and M.P.Nos.1, 3 and 4 of 2011 R.Kandhan ... Petitioner Vs The Joint Registrar, Cooperative Societies, Sathuvachari Vellore Collectorate, Vellore-632 009. ... Respondent Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus, calling for the records pertaining tot he issue of the impugned proceedings in Rc.No.4584/2011A1 dated 6.6.2011 and the errata issued therefor in proceedings Rc.No.4584/2011A1 dated 17.6.2011 both issued by the respondent and quash the same and consequently, direct the respondent to reinstate the petitioner in service with all service and attendant benefits. (Prayer amended as per order dt.22.7.2011 in MP 2/2011) For Petitioner : Mr.N.Subramanian for Mr.G.Mutharasu For Respondent : Mr.L.P.Shanmugasundaram O R D E R The petitioner was initially appointed as a Junior Inspector in the Co-operative Societies in Tamil Nadu Subordinate Service. He was promoted as a Senior Inspector. After promotion as Senior Inspector, he was working as a Senior Inspector of Cooperative Societies, Thova Section in the office of the Deputy Registrar, Cooperative Societies, Vellore Circle. While so, he was directed to take additional charge as administrator of Vellore District Nutrition Employees Child Welfare Organiser and Helper Cooperative Thrift and Credit Society. He worked in the said post in additional charge from 23.03.2005 to 29.06.2005. Thereafter, he was transferred to the office of the Deputy Registrar, Dairy, Vellore. After that, he was transferred to K.V.Kuppam as Field Officer with effect from 1.1.2010. On 4.6.2011, he was transferred to Cooperative Sub-Registrar Office, Alangayam. While he was working as Cooperative Sub-Registrar, Alangayam, the respondent passed an order dated 6.6.2011 under Section 17(e)(2) of https://hcservices.ecourts.gov.in/hcservices/ the Tamil Nadu Civil Services (Discipline and Appeal) Rules placing the petitioner under suspension. It is stated that there is a criminal case registered against the petitioner in F.I.R. No.1/2011, dated 3.6.2011 and the same is under investigation by CCIW, Vellore. The criminal case relates to the issuance of bogus loans and binamy loans and causing a financial loss to the society to the tune of Rs.16 Lakhs. It is further stated that the petitioner is deemed to have been suspended from service with effect from 4.6.2011 until further orders. The petitioner filed the present writ petition seeking to quash the aforesaid order. 2. When the matter came up for admission on 24.6.2011, it is stated that while the petitioner was never arrested and he was granted anticipatory bail, invoking of Rule 17(e)(2) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules would not have arisen and therefore, the order was passed without jurisdiction. The matter was adjourned. In the meantime, the respondent issued an Errata dated 17.6.2011. In the errata order, it is stated that there was a mistake in quoting the provision of law and it should be read as 17(e) instead of 17(e)(2). It is stated that the petitioner is placed under suspension since a criminal case is pending investigation. The petitioner has filed M.P.No.2/2011 to amend the prayer so as to quash the errata order dated 17.6.2011 and the same was allowed. 3. Heard both sides. 4. The learned Counsel for the petitioner vehemently contended that rule 17 (e) nowhere contemplates placing the petitioner under retrospective suspension with effect from 4.6.2011. According to him, 17 (e)(2) alone vests power with the authority to place the delinquent employee under suspension from the date on which the delinquent was arrested and detained in custody. Since 17(e)(2) was deleted by the errata order, the order should be treated as passed under 17(e) (1). Under Rule 17(e)(1), the respondent has no power to place the petitioner under suspension retrospectively from 4.6.2011. The learned Counsel for the petitioner has relied on a decision of the Apex Court in Mahender Singh vs. Union of India and another reported in 1991 Supp (2) Supreme Court Cases 127 in this regard. 5. On the other hand, the learned Counsel for the petitioner has strenuously contended that there is no infirmity in the impugned order and in any event, he submitted that the order need not be quashed for placing him under suspension from 4.6.2011 and the order could be treated as placing the petitioner under suspension from 17.6.2011. 6. I have heard the submissions made on either side. 7. It is relevant to extract Rule 17(e)(1) and (2) of the https://hcservices.ecourts.gov.in/hcservices/ Tamil Civil Services (Discipline and Appeal) Rules here under: "17(e)(1) A member of a service may be placed under suspension from service, where- (i) an enquiry into grave charges against him is contemplated, or is pending; or (ii) a complaint against him of any criminal offence is under investigation or trial and if such suspension is necessary in the public interest. (2) A Government Servant who is detained in custody whether on a criminal charge or otherwise, for a period longer than forty-eight hours shall be deemed to have been suspended under this rule. The other sub-sections of the rule 17(e) is not relevant for this case. 8. Initially, the impugned order dated 6.6.2011 was passed placing the petitioner under suspension invoking Rule 17(e)(2). Rule 17(e)(2) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules could be invoked only when the delinquent Government Servant is detained in a judicial custody on a criminal charge or otherwise for a period longer than 48 hours. It is not in dispute that in this case, the delinquent employee is not detained in judicial custody. Realising the mistake, the errata order was issued by order dated 17.6.2011. Now the Rule 17(e)(2) is deleted in the order and instead it is read as Rule 17(e). Therefore, Rule 17(e)is relevant for the purpose of this case. Rule 17(e)(1) vests power with the respondent to place the petitioner under suspension during the investigation of a criminal case. Admittedly, a criminal case is under investigation in FIR No.1/2011 pending on the file of the CCIW, Vellore. 9. However, the learned Counsel for the petitioner has serious objection for placing the petitioner under suspension retrospectively. According to him, that would make the order void, ab initio and the order should go in toto. The learned counsel has relied on the judgment of the Apex Court in Mahender Singh vs. Union of India and another reported in 1991 Supp (2) Supreme Court Cases 127 in this regard. That was a case of placing a temporary Government Servant under suspension by order dated 27.3.1976. However, no enquiry was conducted and he was removed from service by an order dated 10.1.1978 invoking the power under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965. The termination was challenged before the Central Administrative Tribunal at New Delhi. The Central Administrative Tribunal set aside the termination order by judgment dated 5.9.1988. Pursuant to the decision of the Tribunal, the delinquent employee therein was placed under suspension by an order dated 10.11.1988 invoking Rule 10(4) of the CCS(CCA) Rules, 1965 with effect from 10.1.1978. After enquiry, the petitioner was again dismissed from service on 1.12.1989. The dismissal order was challenged by the delinquent before the https://hcservices.ecourts.gov.in/hcservices/ Tribunal. The issue that came for consideration before the Apex Court was that whether the delinquent in that case could be placed under suspension retrospectively by an order dated 10.11.1988 with effect from 10.1.1978. The Apex Court held that the petitioner was removed from service invoking Rule 5(1) of Central Civil Services (Temporary Service) Rules and he was not dismissed from service as a measure of punishment and on the other hand, it was a termination simpliciter. Therefore, in those circumstances, it is held that Rule 10(4) of CCS (CCA) Rules, 1965 could not be attracted for placing the delinquent under suspension retrospectively. It is stated that Rule 10(4) could be attracted only where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government Servant was interfered with by the courts and thereafter an enqiry is held, the delinquent Government Servant could be placed under suspension retrospectively invoking Rule 10(4) of the CCA(CCS) Rules. 10. In my considered opinion that judgment would not be applicable to the facts of the case. Here the petitioner is not dismissed from service. He is placed under suspension pending investigation in a criminal case. The learned Counsel for the respondent has fairly submitted that the order could be read as coming into effect from 17.6.2011. No useful purpose could be served in quashing the order and passing another order stating that the suspension would be with effect from 17.6.2011. 11. Taking note of the submission made by the learned Counsel for the respondent, I am of the view that there is no merit in the contentions made by the learned Counsel for the petitioner. Accordingly, the Writ Petition fails and the same is dismissed. Consequently, connected Miscellaneous Petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar tsi To The Joint Registrar, Cooperative Societies, Sathuvachari Vellore Collectorate, Vellore-632 009. +1cc to Govt. Pleader Sr 44714 +1cc to Mr.G.Mutharasu, Advocate SR 44390 UG(CO) km/16.8. W.P.No.14636 of 2011 https://hcservices.ecourts.gov.in/hcservices/