1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:29.04.2011 CORAM: THE HONOURABLE MR.JUSTICE K.VENKATARAMAN WP(MD)No.4624 of 2011 and MP(MD)No.1 of 2011 R.Kuppusamy :Petitioner -Vs- 1.The District Collector, Sivagangai, Sivagangai District. 2.The Assistant Director of Town Panchayats, Sivagangai Post, Sivagangai District. 3.The Executive Officer, Selection Grade Town Panchayat, Thirupathur Post, Sivagangai District. :Respondents PRAYER:Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari calling for the records relating to the impugned order passed by the third respondent in his proceedings in Roc.No.272/2011 dated 07.03.2011 and quash the same as illegal and pass such further or other orders. For Petitioner : Mr.M.Ajmalkhan For Respondents 1 and 2 : Mr.V.Rajasekaran,Special Govt. Pleader For Respondent No.3 : Mr.B.K.Rajendran,Addl. Govt. Pleader ORDER The petitioner has come up with the present petition challenging the order of suspension of the third respondent dated 07.03.2011, an order of suspension passed against the petitioner. 2.The short facts of the matter as set out in the affidavit is stated here under: The petitioner is working as an Office Night-Watchman in the third respondent Town Panchayat Office and he was appointed on 21.11.2007 in the third respondent office. Considering his performance, he was temporarily promoted as Office Assistant by the third respondent in his proceedings dated 04.08.2010 with instruction to attend Office Night-Watchman duties also. However, the third respondent, by proceedings dated 28.02.2011 reverted him back to the post of Office Night-Watchman. He made a representation dated 04.03.2011 to the third respondent with a request to cancel the order of reversion. 3.While so, since he was not feeling well, he has applied for two days casual leave from 28.02.2011 to 01.03.2011. Thereafter he has sought for extension of the leave. While so, the impugned order of suspension was passed by the third respondent on 07.03.2011. https://hcservices.ecourts.gov.in/hcservices/ 2 4.The said order of suspension is challenged on several grounds including the following grounds: (i)The impugned order of suspension has been passed by way of punishment and not on the ground of contemplation of any enquiry or framing of charges. (ii)The impugned order came to be passed under Rule 5(1)(b) of the Tamil Nadu Town Panchayat Establishment (Punishment and Appeal) Rules, 1988. The said rule contemplates that an employee can be placed under suspension on an enquiry into grave charges against him is contemplated or is pending. In the case on hand, no enquiry into grave charges is pending against the petitioner or is contemplated. (iii)Though the impugned order states that the petitioner has been placed under suspension on public interest, there is no public interest to place the petitioner under suspension, since it is alleged that in view of unauthorised absence of the petitioner and disobedience to the office order, such order came to be passed. 5.A counter affidavit has been filed on behalf of the third respondent, wherein it is stated that the petitioner absented himself and did not report for duty on various dates without submitting leave application and also he was disobedient to the higher officer and hence the order of suspension came to be passed. 6.On the basis of the above pleadings, I heard the learned counsel appearing for the petitioner and the learned Special Government Pleader appearing for the respondents 1 and 2 and the learned Additional Government Pleader appearing for the third respondent. 7.The order of suspension has been passed stating that the petitioner has committed absence on duty and disobedient to the office order and it is necessary, in the public interest, to place him under suspension. However in paragraph No.3 of the order of suspension, it is stated that the petitioner has been placed under suspension under Rule 5(1)(b) of Tamil Nadu Town Panchayat Establishment (Punishment and Appeal) Rules, 1988. Before adverting to the rival contentions, it would be useful to extract Rule 5(1) (b) here under: "Suspension:-(i)The competent authority may suspend a member of the establishment for the following reasons: (a)an enquiry into grave charges against him is contemplated or is pending; or (b)a complaint against him of any criminal offence is under investigation or trial and if such suspension is necessary in the public interest". 8.Rule 5(1)(b) envisages that an employee could be suspended on a complaint against him of any criminal offence is under investigation or trial and if such a suspension is necessary in the public interest. In the case on hand, it is an admitted fact that no complaint of any criminal offence is under investigation against the petitioner or the petitioner is facing any trial. In such circumstances, it is not known how the said provision has been invoked to place the petitioner under suspension. The https://hcservices.ecourts.gov.in/hcservices/ 3 said ground was taken in the writ petition, however it is not even stated in the counter affidavit that wrong provision has been quoted, while passing an order of suspension. The counter affidavit is silent on the same. In view of the above stated position, I am of the considered view that invoking the said provision to place the petitioner under suspension is untenable and not valid. 9.That apart in the impugned order of suspension, it is stated that the petitioner absented himself and also disobeyed the orders of the higher authority. In such circumstances, placing the petitioner under suspension could only be by way of a punishment. That apart, no public interest is involved in such cases. 10.Looking at any angle, the impugned order of suspension passed against the petitioner is liable to be set aside and accordingly is set aside. 11.The Writ Petition stands allowed accordingly. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (Crl.side) / TRUE COPY / Sub Assistant Registrar To: 1.The District Collector, Sivagangai, Sivagangai District. 2.The Assistant Director of Town Panchayats, Sivagangai Post, Sivagangai District. 3.The Executive Officer, Selection Grade Town Panchayat, Thirupathur Post, Sivagangai District. +1CC to Mr.M.Ajmalkhan, Advocate. SR.No.16111. Smn RP/23.05.2011/3P/5C. ORDER MADE IN W.P(MD)No.4624 of 2011 and M.P(MD)No.1 of 2011 29.04.2011 https://hcservices.ecourts.gov.in/hcservices/