1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.08.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.8981 of 2011 and M.P.(MD).No.1 of 2011 R.Sudalaimani ... Petitioner Vs. 1.The District Collector, Tuticorin District. 2.The Commissioner, Ottapidaram Union, Tuticorin District. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, to call for the records relating to the impugned order of suspension in No.Va.9/55268/10, dated 25.08.2010 on the file of the respondent No.1 and quash the same as illegal. For petitioner : Mr.T.Lajapathi Roy For respondents : Mr.B.Pugalenthi, Special Government Pleader ORDER Challenge in this writ petition is to an order, dated 25.08.2010, suspending the petitioner from service on the ground that she was arrested in Crime No.272 of 2010, under Sections 6(4) of TNSC (RDCS) Order, 1982 r/w 7(1) a (ii) of EC Act, 1955 and she was under confinement. 2.It is the case of the petitioner that she is working as a Noon Meal Organizer, in Akkanayakkanpatti Panchayat Union Middle School and in addition to the above, she is also working as initiator for the local Women Self Help Group. The Fair Price Shop, functioning at Akkanayakkanpatti, is being managed on rotation basis by a Women Self Help Group. Prior to the petitioner, one Smt.Parvathi was running the shop. During her time, 56 bags of rice, containing 20 Kg each, was invoiced on 11.08.2010 and the same was received and entered in the register. The Inspector of Police, Civil Supplies CID Police, Tuticorin, intercepted the lorry with 100 bags of rice near Sterlite Factory, Tuticorin Town. When the matter was enquired, information was given to the effect that 56 bags of rice were meant for Kodiankulam Women's Fair Price Shop. Subsequently, on 02.08.2010 an Inspection was conducted by the Civil Supply Officers in the Fair Price Shop, where the petitioner was working as an initiator and it was also found that 56 bags of rice received were not properly used for. Nevertheless, the petitioner and her predecessor viz., Smt.Parvathi, were enquired by the Inspector of Police, Civil Supplies CID Police, Tuticorin and they were arrested on 12.08.2010. It is the further case of the petitioner that https://hcservices.ecourts.gov.in/hcservices/ 2 though no specific charges were framed, she was kept under custody and subsequently, the impugned order of suspension came to be passed on 25.08.2010, with effect from 12.08.2010. 3.Assailing the correctness of the order, Mr.T.Lajapathi Roy, learned counsel for the petitioner submitted that even the name of the petitioner has not been included in the First Information Report filed by the Inspector of Police, Civil Supplies CID Police, Tuticorin, in Crime No.272 of 2010. Referring to a letter, dated 10.06.2011, of the Inspector of Police, Civil Supplies CID Police, Tuticorin, addressed to the Block Development Officer, Ottapidaram Panchayat Union and a letter, dated 17.06.2011, of the Commissioner, Ottapidaram Panchayat Union, addressed to the District Collector, Tuticorin District, learned counsel for the petitioner submitted that after the registration of the crime and investigation, the petitioner has been exonerated and therefore, the impugned order of suspension made on 25.08.2010 has no legs to stand. He, therefore, submitted that the prolonged suspension of the petitioner from 25.08.2010 requires interference. 4.Per contra, Mr.B.Pugalenthi, learned Special Government Pleader submitted that since the petitioner is involved in Crime No.272 of 2010 registered under Sections 6(4) of TNSC (RDCS) Order, 1982 r/w 7 (1) a (ii) of EC Act, 1955, the impugned order of suspension cannot be said to be manifestly illegal, warranting interference. It is his further contention that the letter of the Inspector of Police, Civil Supplies CID Police, Tuticorin, does not indicate that the petitioner has been absolved of the crime. For the reasons stated supra, he prayed for dismissal of the writ petition. 5.Heard the learned counsel for the parties and perused the materials available on record. 6.The facts and materials on record show that for the act of connivance in smuggling rice meant for public distribution, the Inspector of Police, Civil Supplies CID Police, Tuticorin, has registered a case in Crime No.272 of 2010, under Sections 6(4) of TNSC (RDCS) Order, 1982 r/w 7(1) a (ii) of EC Act, 1955 and that the petitioner was in judicial custody on 12.08.2010 and subsequently, the impugned order of suspension, dated 25.08.2010, came to be passed. It is well settled that an order of suspension can be interfered with, only if it is passed without any jurisdiction and the Court is not required to delve into the factual aspects. In the case on hand, as the petitioner is involved in the crime alleging connivance in smuggling rice meant for public distribution, there is no manifest illegality in suspending the petitioner from service with effect from 12.08.2010, the date on which she arrested and in judicial custody. On the aspect that the Inspector of Police, Civil Supplies CID Police, Tuticorin, has already sent a letter, dated 10.06.2011, stating that he has no objections for restoring the petitioner to her post, it is for the appointing/disciplinary authority to consider whether a person should be retained in service or not. Though the Inspector of Police, Civil Supplies CID Police, Tuticorin in his letter, dated 10.06.2011, addressed to the Block Development Officer, Ottapidaram Panchayat Union, has only conveyed that the investigation is completed, it could be deduced from the letter, dated 17.06.2010, addressed to the District Collector, Tuticorin, the https://hcservices.ecourts.gov.in/hcservices/ 3 Commissioner of Ottapidaram Panchayat Union, Tuticorin District, has stated as if the Inspector of Police has exonerated the petitioner from crime, and prayed for appropriate orders for reinstatement. On the aspect of reinstatement, the competent authority has to take an appropriate decision, depending upon the facts and circumstances of the case. Final report filed in the criminal Court absolving the petitioner from the criminal case has not been placed before this Court. The letter of the Inspector of Police is only his personal opinion. 7. While addressing the issue as to whether the order of suspension could be interfered with by the Courts, after considering a catena of decisions and distinguishing, the judgment in Maheshwari's case, the learned Single Judge of this Court in W.P.Nos.8451 of 2009 batch, dated 25/7/2011, has passed the following order. "IV.Law relating to suspension : 8.The Supreme Court vide its judgment in Govt. of India, Ministry of Home Affairs v. Tarak Nath Ghosh reported in (1971) 1 SCC 734 held that there is no difference between definite charges being framed and when the competent authority was in receipt of allegations against the Government servant. In both cases the suspension order made will have to be treated as same. In this context, it is necessary to refer to the following passages found in paragraphs 9 and 13 of the said judgment which reads as follows: “9.There would be nothing improper per se if the rules were to provide for suspension even before definite charges of misconduct had been communicated to the officer concerned. The question is whether the language of Rule 7 is so correlated to that of Rule 5 as to lead us to hold that the word “charges” in sub-clause (1) of Rule 7 must mean a definite charge as mentioned in sub-clause (2) of Rule 5. It may be that even in a case where definite charges have been raised against an officer he may satisfactorily explain the circumstances and the grounds alleged against him in his written statement. It is also possible that after the enquiry is conducted it is found that the charges are all baseless. In principle we can see no difference between the position of an officer against whom definite charges have been framed to which he is required to put in his written statement and a situation where on receipt of allegations of grave misconduct against him the Government is of opinion that it would not be proper to allow the officer concerned to function in the ordinary way. 13....Merely because the order mentioned that disciplinary proceedings were contemplated against the respondent, as compared to Rule 7 which contains phrases like “the initiation of disciplinary proceedings” and the “starting of such proceedings” we cannot hold that the situation in the present case had not reached a stage which called for an order of suspension. In substance disciplinary proceedings can be said to be started against an officer when complaints about his integrity or honesty are entertained and followed by a preliminary enquiry into them culminating in the satisfaction of the Government that a prima facie case https://hcservices.ecourts.gov.in/hcservices/ 4 has been made out against him, for the framing of charges. When the order of suspension itself shows that Government was of the view that such a prima facie case for departmental proceedings had been made out the fact that the order also mentions that such proceedings were contemplated makes no difference. Again the fact that in other rules of service an order of suspension may be made when “disciplinary proceedings were contemplated” should not lead us to take the view that a member of an All India Service should be dealt with differently. The reputation of an officer is equally valuable no matter whether he belongs to the All India Service or to one of a humbler cadre. It is the exigency of the conditions of service which requires or calls for an order of suspension and there can be no difference in regard to this matter as between a member of an All India Service and a member of a State Service or a Railway Service.” (Emphasis added) 9.The Supreme Court had held that unless malafides are attributed to the Government and established, the Court cannot interdict an order of suspension, vide its judgment in A.K.K. Nambiar v. Union of India reported in (1969) 3 SCC 864. The following passages found in paragraphs 7 and 10 may be usefully reproduced below: “7..... The appellant contended that the appellant was not suspended under sub-rule (3) of Rule 7. That is a contention. The facts are that there was an investigation and the trial is awaiting relating to a criminal charge against the appellant. The order of suspension has to be read in the context of the entire case and combination or circumstances. This order indicates that the Government applied its mind to the allegations, the enquiries and the circumstances of the case. The appellant has failed to establish that the Government acted mala fide. There is no allegation against any particular officer of the Government of India about acting mala fide..... 10..... We are not concerned with the correctness and the propriety of the report. We have only to examine whether the order of suspension was warranted by the rule and also whether it was in honest exercise of powers.....” 10.The Supreme Court had also held that once there was prima facie case to hold the suspension order legal, then merely because the charge sheeted Government servant will sustain some disadvantage cannot be a reason to stall the suspension and that the court cannot intervene and undo the acts of internal management, vide its judgment in Shyam Lal Yadav v. Kusum Dhawan reported in (1979) 4 SCC 143. In paragraph 3, the Supreme Court had observed as follows: “3. ......The only question before us is as to whether there is a prima facie case in favour of the appellant as the competent management and further whether there is prima facie ground to hold that order of suspension imposed upon the Principal is legal......... For by every suspension the alleged delinquent will sustain some disadvantage.......It https://hcservices.ecourts.gov.in/hcservices/ 5 will be strange jurisprudence which will paralyse autonomous bodies if courts can intervene on some ipse dixit to undo acts of internal management against employees especially when the power of the employer is made out. .....” 11.The Supreme Court had held that when the suspension order is passed, it is for the Government to review the said order and it continues to operate until it is revoked by the competent authority vide its judgment in Govt. of A.P. v. V. Sivaraman reported in (1990) 3 SCC 57. The following passages found in paragraph 4 of the said judgment may be usefully extracted below: “4.....Where the rules provide for suspending a civil servant and require thereof to report the matter to the government giving out reasons for not completing the investigation or enquiry within six months, it would be for the government to review the case but it does not mean that the suspension beyond six months becomes automatically invalid or non est. The only duty enjoined by such a rule is that the officer who made the order of suspension must make a report to the government and it would be for the government to review the facts and circumstances of the case to make a proper order. It is open to the government to make an order revoking the order of suspension or further continuing the suspension. The order of suspension however, continues until it is revoked in accordance with the law....” (Emphasis added) 12.The Supreme Court also while construing a similar rule operating in this State in relation to a Government Servant of Andhra Pradesh had held that a wrong terminology in the order did not take away the power if it is available otherwise, vide its judgment in D.G. and I.G. of Police v. K. Ratnagiri reported in (1990) 3 SCC 60. In paragraph 7, the Supreme Court held 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 Tribunal seems to have ignored this well accepted principle.” (Emphasis added) 13.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 and if their explanation was not satisfactory, they should be directed to complete the enquiry https://hcservices.ecourts.gov.in/hcservices/ 6 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 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. https://hcservices.ecourts.gov.in/hcservices/ 7 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. 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.” 14.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. 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.” (Emphasis added) 15.Once again the Supreme Court in State Bank of India v. Rattan Singh reported in (2000) 10 SCC 396 had held that https://hcservices.ecourts.gov.in/hcservices/ 8 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......” (Emphasis added) 16.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 https://hcservices.ecourts.gov.in/hcservices/ 9 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.” (Emphasis added) 17.The Supreme Court had also held that suspension