1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.8087 of 2011 And M.P.(MD).Nos. 1 to 3 of 2011 S.Vakkaran ... Petitioner -Vs- The Revenue Divisional officer Sivagangai Division Sivangangai ... Respondent PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorari calling for the records relating to the order of suspension passed by the respondent in Roc.A2/3647/10 dated 11.06.2010 and quash the same as illegal. For Petitioner : Mr.M.Ajmal Khan For Respondent : Mr.B.Pugalendhi Special Government Pleader O R D E R Challenge in this Writ Petition is to an order of suspension made under Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) rules, vide proceedings in Roc.A2/3647/10 dated 11.06.2010, which was necessitated, on the following charge that the petitioner had absented from 27.05.2010 and not submitted the village accounts for Jamabandhi Fasali Year 1419 and therefore, an enquiry into the charges against the petitioner was contemplated. 2. It is the case of the petitioner that he had applied for medical leave from 26.05.2010 to 31.05.2010 and extended leave from 01.06.2010 to 14.06.2010 and thereafter, from 15.06.2010 to 21.06.2010 on medical advise. According to him, leave applications were also sent by registered post along with the medical certificates, issued by a Government Doctor. The petitioner has further submitted that being aggrieved by the suspension and non-payment of subsistence allowance for nearly 9 months, he was constrained to approach this Court by filing a Writ Petition in W.P.(MD).No. 4370 of 2011 seeking for a direction, directing the respondent to consider the representation dated 13.07.2010 in the light of G.O.Ms.No. 40 P & AR Department, dated 30.01.1996 and pay the subsistence allowance from 11.06.2010, the date on which he was placed under suspension. https://hcservices.ecourts.gov.in/hcservices/ 2 3. The petitioner has further contended that this Court by an order, dated 12.04.2011, made in W.P.(MD).No. 4370 of 2011 , directed the respondent therein to consider the representation and pass appropriate orders within a period of 8 weeks from the date of receipt of a copy of this order. Pursuant to the direction, a representation, dated 21.04.2011, was also made through the petitioner's Advocate requesting the respondent to pay subsistence allowance, but so far, no orders have been passed. 4. A charge memorandum has been issued by the respondent, vide proceedings, in Roc.A2/3647/10 dated 11.06.2010 alleging that the petitioner had not produced the village accounts for Jamabandhi Fasali Year 1419 and that he had not joined duty from 25.10.10 without prior permission. An explanation, dated 27.05.2010 refuting the charges was also submitted reiterating that as he was suffering from ill-ness, he could not attend duty, for which leave applications along with medical certificates were already sent. Alleging that the petitioner has not been given subsistence allowance for nearly 9 months i.e from 11.06.2010, contravention to G.O.Ms.No. 43, and to quash the order of suspension, he has approached this Court. 5. On the basis of the above pleadings, Mr.M.Ajmal Khan, learned counsel for the petitioner submitted that after the formulation of specific charges vide proceedings in Roc.A2/3647/10 dated 11.06.2010, under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) rules, there is no need to retain the petitioner under suspension and that the charge alleging non-production of village accounts for Jamabandhi Fasali Year 1419, is not so grave enough, warranting retention of suspension for a long period. Learned counsel for the petitioner further submitted that more than one year, the petitioner has been placed under suspension and it is nothing but a penalty, without determination on the charges. 6. Mr.B.Pugalendhi, learned Special Government Pleader was put on notice and heard. He submitted that failure to produce village accounts for Jamabandhi Fasali Year 1419 and absence from 27.05.2010 amounts to failure the discharge of duties with devotion and therefore, there is no manifest illegality in suspending the petitioner from service. According to the Special Government Pleader, when disciplinary proceedings have already been initiated by way of formulated charges, dated 11.06.2010, appropriate orders would be passed after completion of the enquiry and that there is not need to revoke the suspension. According to him, when the Revenue Divisional Officer, Sivagangai, the respondent herein has exercised his jurisdiction as per Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) rules, there is no manifest illegality, warranting interference. Hence, he prayed for the dismissal of this Writ Petition. 7. Heard the learned counsel for the parties and perused the material available on record. 8. The impugned order of suspension reads as follows:- "Whereas it was reported by the Tahsildar, https://hcservices.ecourts.gov.in/hcservices/ 3 Sivaganga that Thiru.S.Vakkaram Village Administrative Officer, Arasanoor Group, Sivaganga Taluk has absconded from duty from 27.05.2010 and not submitted the Village Accounts for the Jamabandi Fasli 1419. And whereas an enquiry into grave charges against Thiru.S.Vakkaram Village Administrative Officer, Arasanoor Group, Sivaganga Taluk is contemplated. And whereas in the circumstances of case, it is necessary in the public interest to place the said Thiru.S.Vakkaram Village Administrative Officer, Arasanoor Group, Sivaganga Taluk under suspension from service. Now, therefore under sub rule (e) of the Tamilnadu Civil Services (Discipline and Appeal) Rules, the said Thiru.S.Vakkaram is with immediate effect placed under suspension from service until further orders. 2. During the period of suspension, the said Thiru.S.Vakkaram will be paid subsistence allowance and dearness allowance admissible under F.R.53(1). 3. The headquarters of the said Thiru.S.Vakkaram during the period of suspension shall be Arasanoor Village in Sivaganga Taluk and the said Thiru.S.Vakkaram shall not leave the headquarter without obtaining the prior permission of the authority concerned." 9. Perusal of the order, dated 12.04.2011 made in W.P.(MD).No. 4370 of 2011 shows that when the petitioner sought for a direction, to direct the respondent to consider the representation dated 13.07.2010 in the light of G.O.Ms.No. 40 P & AR Department, dated 30.01.1996 and pay subsistence allowance from 11.06.2010, within a time frame, this Court without expressing any opinion on the claim of the petitioner, has directed the respondent therein to consider the representation and pass appropriate orders, within a period of 8 weeks from the date of receipt of a copy of this order. Thus it could be seen that there was no positive direction to pay subsistence allowance. Nevertheless as per the statutory provisions, a person placed under suspension is entitled to subsistence allowance as per the statutory provisions and Fundamental Rules, from the date of suspension, when regular enquiry is contemplated or ordered. 10. Material on record shows that there is an allegation that the respondent had not implemented the directions of this Court made in W.P. (MD).No. 4370 of 2011, dated 12.04.2011 in so far as the disposal of the representation, dated 13.07.2010 within the time frame, if that be the https://hcservices.ecourts.gov.in/hcservices/ 4 case, appropriate remedy is available to the writ petitioner under the Contempt of Courts Act. 11. Nevertheless, this Court is of the considered view that the subsistence allowance should not be denied, unless there is a violation of any statutory provision, governing the grant of such allowance, or the conditions stipulated in the impugned order, dated 11.06.2010. It is to be noted that even in the impugned order, the Revenue Divisional Officer, Sivagangai, has categorically stated that during the period of suspension, the petitioner would be paid subsistence allowance and dearness allowance permissible under Fundamental Rule 53(1). If the subsistence allowance has been unjustly denied to the petitioner, contrary to the statutory provisions then it is arbitrary and unreasonable. In such view of the matter, a direction is issued to the respondent to settle the same, immediately and continue to pay the subsistence allowance, permissible under law, till the disposal of the disciplinary proceedings. However, going through the impugned order, this Court is of the view that absence on duty from 27.05.2010 and not submiting the village accounts, for Jamabandhi Fasali Year 1419 can always been construed as a failure to discharge the duty with devotion, a misconduct, and therefore, it cannot be said that invoking Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) rules, to place the petitioner under suspension, is arbitrary. The jurisdiction of the Revenue Divisional officer, Sivangangai, has not been disputed. Now that, the disciplinary proceedings have been initiated on 11.05.2011 for which the petitioner has also submitted an explanation on 24.05.2011, and considering the prolongation of the suspension for the above said charges, it is well open to the respondent to consider as to whether the retention of the petitioner in suspension is required or not. Certainly in cases relating to misconduct, involving moral turpitude, embezzlement, misappropriation, serious imputation of corruption or such other grave charges, warranting major penalties, this Court would not be grant any direction to the respondents to consider the claim of the charged official, for restoration of service. In the absence of any of the abovementioned serious charges which are only illustrative in nature, this Court is inclined to direct to consider the explanation of suspension is required on or not, and take a decision as to whether construction of having regard to the fact that the petitioner is under suspension from 11.06.2010, for more than one year. 12. While considering the above, the Revenue Divisional Officer, Sivagangai, is also directed to take note of the fact that an order of suspension can be made as an interim measure to put off on the Government Servant from duty. If retention of the Government Servant is scandalous to the Department or there is likelihood of tampering records or in the case of any crime alleged against the Government Servant. 13. Considering the grievance expressed by the writ petitioner, in prolonging the order of suspension and non-payment of subsistence allowance, the above directions are issued. As the explanation has already been submitted, the Revenue Divisional Officer, Sivagangai, is further directed to take a decision on the explanation, as to whether, an enquiry has to be ordered or not, as expeditiously as possible. 14. With the above said directions, this Writ Petition is disposed https://hcservices.ecourts.gov.in/hcservices/ 5 of. Consequently, connected Miscellaneous Petitions are also closed. No costs. Sd/- Assistant Registrar (Crl.Side) /True Copy/ Sub Assistant Registrar(CS) To The Revenue Divisional officer Sivagangai Division Sivangangai +1cc to M/s.M.Ajmal Khan, Advocate, SR.No.24295 +1cc to Special Government Pleader, SR.No.24126 vsg GH : 02.08.2011 : 5p/4c W.P.(MD).No.8087 of 2011 And M.P.(MD).Nos. 1 to 3 of 2011 21.07.2011 https://hcservices.ecourts.gov.in/hcservices/