1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16.11.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)Nos.4270, 4271 and 4429 of 2011 and M.P.(MD)Nos.1,1 and 1 of 2011 S.Jahitha .. Petitioner in W.P.(MD).4270 of 2011 A.K.Meenakshi .. Petitioner in W.P.(MD).4271 of 2011 A.Annadurai .. Petitioner in W.P.(MD).4429 of 2011 Vs. 1.The Government of Tamil Nadu, rep by the Principal Secretary, Health and Family Welfare Department, Secretariat, Chennai-600 009. 2.The Director of Family Welfare, DMS Complex, 359,Annasalai, Teynampet, Chennai-600 006. 3.The Deputy Director of Medical and Rural Health Services & Family Welfare, District Family Welfare Bureau, Trichy District, Trichy. 4.P.M.Mahesh, The Chief Accounts Officer, Office of the Director of Family Welfare, DMS Complex, 359,Annasalai, Teynampet, Chennai-600 006. 5.Mrs.Thilagavathi Office Superintendent, Office of the Deputy Director of Medical & Rural Health Services & Family Welfare, District Family Welfare Bureau, Trichy District, Trichy. 6.Vijayaragavan, Assistant, Regional Audit Wing, Office of the Deputy Director of Medical & Rural Health Services & Family Welfare, District Family Welfare Bureau, Trichy District, Trichy. .. Respondents in all writ petitions https://hcservices.ecourts.gov.in/hcservices/ 2 W.P.(MD)Nos.4270, 4271 and 4429 of 2011 have been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the order passed by the second respondent in the order Nos.0002654/FW/OP3/2011-1, 0002654/FW/OP3/2011-2 and 002654/FW/OP3/2011-4 dated 28.03.2011 and quash the same and consequently to direct the second respondent to reinstate the petitioner in service with all service and monetary benefits. For Petitioner : Mr.A.Thirumurthy (in all three writ petitions) For Respondents : Mr.M.Govindan, Spl.G.P. For R1 to 3 Mr.K.Bhaskaran for R4 to 6 (in all 3 W.Ps.) COMMON ORDER In the first writ petition (W.P.(MD)No.4270 of 2011), the petitioner who was a Lecturer in Nursing, under suspension, sought to challenge an order of suspension, dated 28.3.2011. In the second writ petition, the petitioner was who working as an Assistant in the office of the Deputy Director of Medical and Rural Health Services and Family Welfare, Pudukkottai challenged the very same suspension order. In the third writ petition, the petitioner who was the Block Health Statistician challenged the very same order issued by the Director of Family Welfare, Chennai. 2.By the impugned orders, they were accused of misappropriating National Rural Health Mission (NRHM) funds with five other officials. It was found out by the special audit conducted by the Internal Audit Party of the Directorate. The audit was done during the period from 24.01.2011 to 28.01.2011 for the period from 1.4.2007 to 31.12.2010. Since an enquiry has to be conducted against the petitioners, they were placed under suspension, pending enquiry. 3.In the first two writ petitions, notice regarding admission was granted. Subsequently, it was adjourned for filing counter. When the third writ petition came up on 18.4.2011, it was directed to be posted along with the earlier writ petitions and it was yet to be admitted. 4.On notice from this court, the second respondent has filed a counter affidavit, dated Nil (June, 2011). In paragraphs 3 and 4 of the counter affidavit, it was averred as follows: "3.It is most respectfully that on receipt of specific complaints of misappropriation and mismanagement of Government money in the Tiruchy District Family Welfare Bureau, this respondent constituted a special internal audit party under the Chief Accounts Officer to take up cent percent audit of the functioning of the Tiruchy District Family Welfare Bureau during the period from 01.04.2007 to 31.12.2010 and the audit was conducted by the special audit party from 01.04.2007 to 31.12.2010. After extensive audit into all spheres of functioning, the special audit party submitted a detailed report of commission and omission with specific recommendation for the further course of action and in as much as the internal audit revealed that there were large scale misappropriation of funds earmarked for National Rural Health Mission (NHRM) which is intended for the implementation of the National Rural Health Programme for the well being of the BPL https://hcservices.ecourts.gov.in/hcservices/ 3 families in the rural areas, this respondent was constrained to take further action on the said report by placing the officials involved in such an heinous delinquency involving Government money under ad-interim suspension pending disciplinary action under the appropriate rules. 4.With reference to the averment of the petitioner herein in paragraphs 2 to 5 of the affidavit, it is most respectfully submitted that on the basis of the audit report as a prima facie case was established for proceeding against the petitioner herein along with 5 others, in the view of the gravity of the delinquency, this respondent was constrained to place the petitioner herein as well as 5 others who were working in the Family Welfare Bureau, Tiruchy during the period covered in the Special Audit under ad-interim suspension under Sub Rule (e) of Rule 17 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, herein after referred to as 'the said rules', pending initiation of disciplinary action under section 17 (b) of the said Rules. Family Welfare Bureau at that point in time was placed under ad-interim suspension in the impugned orders of the second respondent." 5.The fourth respondent Chief Accounts Officer has also filed a counter affidavit, dated Nil (June, 2011). In paragraph 3 of that counter affidavit, it was averred as follows: "3....I hail from the Department of Treasuries and Accounts and I am liable to be posted in any Department where public money is involved and my duties and responsibilities confine only to take up audit of accounts, records to find out whether there is any misuse, misappropriation of money, tampering of records etc. and having found such misappropriation of money without proper authority, I have to submit my report with recommendations for appropriate action. Hence it is most respectfully submitted that there were no malafides nor any misleads in my audit report. it s most respectfully submitted that the petitioner herein have ample opportunity to put forth her case before the authorities and inasmuch resorting to suspension pending framing of charges for apparent delinquency is not punitive in character. It means that the relationship of master and servant remains in abeyance for a temporary phase. It is an action to maintain purity of service. Besides in view of unearthing of such massive misappropriation of public money, continuing the petitioner herein and five other alleged to have been involved would have demoralizing effect on other staff in the bureau will act as a catalyst in encouraging such acts against public. Hence in all fairness of things, as a senior officer involved in auditing in the Bureau, I submit that continuing her under suspension is necessary at this point of time in the interest of public." 6.The fifth respondent who is the Office Superintendent, has also filed a counter affidavit, dated Nil (June, 2011) denying her https://hcservices.ecourts.gov.in/hcservices/ 4 involvement in the siphoning off the funds. Likewise, the sixth respondent, who is an Assistant, has also filed a counter affidavit, dated Nil (June,2011) to the same effect. 7.Though the petitioners have filed a rejoinder together with additional typed set of papers, it is not a fit case where any interference is called for at the stage of suspension. The power of this court to interfere with the order of suspension is very limited. In this case, the counter affidavits have justified the suspension of the petitioners. 8.In this context, it is necessary to refer to a judgment of the Supreme Court in A.K.K. Nambiar v. Union of India reported in (1969) 3 SCC 864, wherein the Supreme Court had held that unless malafides are attributed to the Government and established, the Court cannot interdict an order of suspension. 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.....” 9.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 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. .....” https://hcservices.ecourts.gov.in/hcservices/ 5 10.In the light of the above, all the three writ petitions will stand dismissed. However, it is open to the petitioners to make a representation to the authority seeking for modification of the suspension order in case of any change in circumstance. No costs. Consequently, connected miscellaneous petitions stand closed. Sd/- Assistant Registrar (Crl.side) /True copy/ Sub Assistant Registrar(C.S) To 1.The Principal Secretary, The Government of Tamil Nadu, Health and Family Welfare Department, Secretariat, Chennai-600 009. 2.The Director of Family Welfare, DMS Complex, 359,Annasalai, Teynampet, Chennai-600 006. 3.The Deputy Director of Medical and Rural Health Services & Family Welfare, District Family Welfare Bureau, Trichy District, Trichy. 4.P.M.Mahesh, The Chief Accounts Officer, Office of the Director of Family Welfare, DMS Complex, 359,Annasalai, Teynampet, Chennai-600 006. 5.Mrs.Thilagavathi, Office Superintendent, Office of the Deputy Director of Medical & Rural Health Services & Family Welfare, District Family Welfare Bureau, Trichy District, Trichy. 6.Vijayaragavan, Assistant, Regional Audit Wing, Office of the Deputy Director of Medical & Rural Health Services & Family Welfare, District Family Welfare Bureau, Trichy District, Trichy. +3. CCs to Mr.A.Thirumurthy, Advocate, SR.No. 40170 +2. CCs to Mr.K.Bhaskaran, Advocate, SR.No. 40084 & 40085 +1. CC to the Special Government Pleader, SR.No. 40127 vvk W.P.(MD)Nos.4270, 4271 and 4429 of 2011 16.11.2011 TR : 24.01.2012: 5p/13c https://hcservices.ecourts.gov.in/hcservices/