IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :29.04.2011 CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P. No.11606 of 2011 and M.P.Nos.1 and 2 of 2011 E.S.Mathiyan .. Petitioner Vs The Joint Director of Medical and Rural Health Services and Family Welfare (I/C), Dharmapuri. .. Respondent PRAYER: Writ petition under Article 226 of Constitution of India, for issuance of a writ of Certiorarified mandamus to call for the records relating to the order of the respondent in Pro.Ref.No.5227/SC/2010 dated 08.12.2010 to quash the same and consequently direct the respondent herein to reinstate the petitioner in service with consequential benefits. For Petitioner : Mr.D.Baskar For Respondents : Mr.K.H.Ravikumar Government Advocate ORDER The prayer in the writ petition is to quash the order of suspension dated 08.12.2010 and direct the respondent to reinstate the petitioner in service with consequential benefits. Mr.K.H.Ravikumar, learned Government Advocate takes notice for respondent. 2. The said suspension order dated 08.12.2010 was passed by the respondent on the ground that a criminal offence is under investigation against the petitioner and others. The allegation was that illegal police practice and robbery case under Prevention of Corruption Act for obtaining illegal gratification is pending. The said suspension order is passed under Rule 17(e)(2) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules. The petitioner who is a Sanitary Worker in the Government Hospital in Palacode was therefore kept under suspension from 08.12.2010. The F.I.R. Registered against the petitioner and others are also filed in the typed set of papers. https://hcservices.ecourts.gov.in/hcservices/ 3. From the perusal of the F.I.R., it is seen that on 09.10.2010 at 02.15 a.m., one Police Head Constable bearing No.1463 viz., C.Napolean who was in charge of police station received a complaint from one John Jeramious, Son of Benjamin belonging to Thenkanikottai Taluk, Krishnagiri. In the complaint, it was stated that he is having a Mini Truck bearing Registration No.TN 24 X 5167. On 08.10.2010, he took the vehicle for repair to Pennagaram and while he was carrying with some goods at 05.30 p.m. and going towards Anjetti Road, Maruthanipallam from Hognekkal, some persons were standing near a Indica Car bearing Registration No. TN 23 E 4858 and one person directed the vehicle to be stopped stating that he is a police person and the said person asked him to show the license. The petitioner and other three persons have snatched a watch worth Rs.300/- from the complainant and again, stopped another TVS 50 and attempted robbery from the said person who was riding the TVS 50 vehicle and finding that he had no money, he was beaten by the police. A complaint was given for the said attempted robbery made by the four persons, including the police Head Constable named Devaraj, who was serving in Palacode Police Station, Dharmapuri District. The said police person and the petitioner, who is working as Sanitary Worker in the Government Hospital were placed under suspension. 4. The learned counsel for the petitioner submitted that charge sheet was filed in the criminal case and the said police Head Constable bearing P.C. No.666 viz., Devaraj was restored to service by the Superintendent of Police, Dharmapuri District by order dated 21.03.2011 by revoking the order of suspension without initiating disciplinary proceedings against the said police person under Rule 3 (b) of the Tamil Nadu Police Subordinate Services (Disciplinary and Appeal) Rules. Nothing is stated about the pendency of the criminal case in Crime No.194/10 for the offence under Section 392 I.P.C. in the said order revoking the suspension order. Consequently the petitioner submitted a representation before the respondent on 11.04.2011 and prayed for revocation of suspension and no order having been passed in the said representation, this writ petition is filed challenging the order of suspension. 5. The further contention of the learned counsel for the petitioner is that the police person viz., Head Constable Devaraj having been restored in service by revoking the order of suspension by the Superintendent of Police, Dharmapuri, the petitioner should be restored to service by the respondent. 6. I am not inclined to agree with the said submission made by the learned counsel for the petitioner. The fact that the petitioner is involved in a criminal case in Crime No.194/2010 on the file of Hognekkal Police Station, which was registered under section 392 I.P.C. in connection with robbery in the Highways, is not in dispute. Now charge sheet is also filed before the competent Criminal Court. Though the Head Constable is also an accused, the Superintendent of Police, Dharmapuri has chosen to https://hcservices.ecourts.gov.in/hcservices/ revoke the order of suspension. Whether the revocation of suspension order against the said police person is justified, who is an accused in a robbery case, can be considered by the Director General of Police as well as the Home Secretary, Government of Tamil Nadu. Merely because the order of suspension against a co- accused is revoked, the petitioner cannot challenge the order of suspension on the ground of discrimination.\ 7. Rule 17(e)(1) of Tamil Nadu Civil Service (Discipline and Appeal) Rules empowers placing a Government servant under suspension. A Government servant can be suspended pending investigation or trial in a criminal case. Rule 17(e)(1) of Tamil Nadu Civil Service (Discipline and Appeal) Rules reads as follows: "Rule 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 or any criminal offence is under investigation or trial and if such suspension is necessary in the public interest.” 8. (i) A Division Bench of this Court considered Rule 17 (e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules in W.A.No.1114 of 2007 (the Secretary to Government of Tamil Nadu and others vs. N.Shanmugasundaram) and by Judgment dated 5.11.2007 upheld the order of suspension pending investigation/trial of criminal offence. (ii) A Division Bench of this Court in the case of M.Rajammal v. Principal District Judge reported in 2009 (4) MLJ 212 held that Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, contemplates that a member of a service may be placed under suspension from service, where an enquiry into grave charges against him is contemplated, or is pending or a complaint against him or any criminal offence is under investigation or trial and if such suspension is necessary in the public interest. In the said Judgment, the decisions of the Supreme Court in Hotel Imperial v. Hotel Workers' Union reported in AIR 1959 SC 1342 : 1959 II LLJ 544 and in R.P.Kapur v. Union of India reported in AIR 1964 SC 787 : 1966 II LLJ 164 were followed and upheld the similar order of suspension. (iii) In W.A.No.1818 of 2009, dated 15.12.2009, a Division Bench of this Court in the case of S.Jeevanantham vs. the Government of Tamil Nadu and others considered an identical issue and confirmed the order of a learned Single Judge dismissing the Writ Petition, which was filed challenging the order of suspension. https://hcservices.ecourts.gov.in/hcservices/ (iv) Suspension orders were also upheld in the case of D.Gnanasekaran v. Chief Educational Officer reported in 2007 (1) MLJ 457 and in the case of S.Jeyasingh Rajan v. President, Kalloorani Panchayat reported in 2006 (4) MLJ 59. (v) The Supreme Court in the case of Allahabad Bank and another vs. Deepak Kumar Bhola reported in 1997 (4) SCC 1, upheld the order of suspension of a bank employee, who was facing a criminal offence involving in moral turpitude. In the said Judgment, the order of the Allahabad High Court, quashing the order of suspension was set aside and the appeal filed by the bank was allowed. (vi) The Supreme Court in the decisions in R.P.Kapoor v. Union of India reported in AIR 1964 SC 787l; Balwantray Ratilal Patel v. State of Maharastra reported in AIR 1968 SC 800; A.K.K.Nambiar v. Union of India reported in 1969 (3) SCC 864; V.P.Gidroniya v. State of Madhya Pradesh reported in 1970 (1) SCC 362; Ministry of Home Affairs v. Tarak Nath Ghosh reported in 1971 (1) SCC 734; Government of Andhra Pradesh v V.Sivaraman reported in 1990 (3) SCC 57; Uttar Pradesh Rajya Krishi Utpadan Manti Samiti Parishad v. Sanjiv Rajah reported in 1993 (2) LLN 11; State of Orissa v. Bimal Kumar Mohanty reported in 1994 (1) LLN 889; State of Madhya Pradesh v. Ram Singh reported in 2000 (5) SCC 88; State Bank of India v. Rattan Singh reported in 2000 (10) SCC 396; K.C.Sareen v. CBI reported in 2001 (6) SCC 584; Union of India v Rajiv Kumar reported in 2003 (6) SCC 516, held that a person involved in a criminal case can be placed under suspension till he is exonerated and she can claim only subsistence allowance and he cannot demand revocation of suspension as a matter of right. (vii) A Division Bench of the Madurai Bench of this Court in W.A.(MD)No.84 of 2011 dated 21.1.2011 (R.Sakunthala v. The State of Tamil Nadu) following the above cited decisions, confirmed the order of the learned single Judge dismissing the writ petition, seeking revocation of the suspension order. 9. The order passed in favour of the co-accused, namely Devaraj will not help the petitioner and the said order is justified or not can be looked into by the higher officials of Police Department. 10. Applying the above judgments to the facts of this case, the impugned order of suspension cannot be quashed and the writ petition is dismissed. Since the petitioner is relying upon the order passed in favour of the Police Head Constable bearing No.666, Devaraj revoking the order of suspension by the Superintendent of Police, Dharampuri, the Director General of Police, Chennai as well as the Home Secretary, Government of Tamil nadu, Chennai-9 are directed to consider and take an appropriate decision, i.e, whether the Superintendent of Police is justified in revoking the order of suspension of a Police Head Constable, who is facing the allegation of robbery. Before taking any such https://hcservices.ecourts.gov.in/hcservices/ decision, the person concerned shall be given an opportunity of hearing. 11. The writ petition is dismissed with the above observations. No costs. The connected miscellaneous petitions are closed. The Registry is directed to mark a copy of this Order to the Director General of Police, Chennai-4, and to the Secretary, Home Department, Government of Tamil Nadu, Chennai-9. vri Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Joint Director of Medical and Rural Health Services and Family Welfare (I/C), Dharmapuri. 2. The Secretary, Home Department, Government of Tamil Nadu, Chennai – 9. 3. The Director General of Police, Chennai – 4. + 1 cc to Government Pleader, SR No.30923 RV(CO) SR/6.5.2011 W.P.No.11606 of 2011 https://hcservices.ecourts.gov.in/hcservices/