IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23-12-2010 CORAM : THE HONOURABLE MR. JUSTICE B. RAJENDRAN W.P. No. 26652 of 2009 and M.P. No. 3 of 2009 R. Kumar .. Petitioner Versus The Secretary Tamil Nadu Public Service Commission Government Estate Chennai – 600 002 .. Respondent Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records of the respondent in connection with the impugned order passed by him in 6952/PD/D3/07 dated 20.12.2007 and Memorandum No. 6952/PD dated 11.12.2009 and quash the same and further direct the respondent to For Petitioner : Mr. K. Venkataramani, Sr. Counsel for Mr. M.Muthappan For Respondents : Mr. V.T. Gopalan, Senior Counsel for Ms. C.N.G. Ezhilarasi ORDER The petitioner, who worked as Under Secretary, was placed under suspension by the order dated 20.12.2007 of the respondent on the ground that he had unauthorisedly attended the examination work at Ooty centre at the time when the combined subordinate service commission examination No.I was held on 17.11.2007. According to the petitioner, he had visited Ooty/Gudalur after informing his superior officers orally. He visited Ooty on the invitation of Mr. Jayaraman, Assistant Section Officer, who was to be superannuated from service in December 2007. According to the petitioner, he never attended the examination work at Ooty on 17.11.2007, as alleged nor he had tampered with any record in the examination centre. According to the petitioner, though he was placed under suspension on 20.12.2007, no disciplinary proceedings were initiated against him or the impugned order of suspension was reviewed by the respondent. The petitioner would further contend that even after a period of one year and 8 months, there was no progress or his suspension was reviewed by the respondent, therefore, he filed a writ petition before this Court in WP No. 13240 of 2009 challenging the order of suspension and for reinstatement. After taking notice in the said writ petition only, the respondent preferred a complaint to the CB CID, Chennai on https://hcservices.ecourts.gov.in/hcservices/ 16.07.2009 requesting to register a case and to submit a report thereon. Accordingly, a case in Crime No. 3 of 2009 was registered on 01.08.2009 on the file of CB CID, Coimbatore for various offences and on registration of case, the petitioner had obtained an anticipatory bail before this Court in Crl.OP No. 17964 of 2009 dated 27.08.2009. Subsequently, the writ petition was disposed of on 13.10.2009 directing the petitioner to file an application for reviewing the order of suspension and consequently directed the respondent to pass orders within four weeks. Pursuant to the same, the petitioner sent a detailed representation dated 05.11.2009 to the respondent mentioning the circumstances which led to the implication of his name in the criminal case and also to review the order of suspension. In the meantime, the petitioner was directed to appear before CB CID, Coimbatore on one occasion and he was also interrogated by the agency. Thereafter, as per the direction issued by this Court, the respondent has passed the impugned order dated 11.12.2009 rejecting the claim of the petitioner to review the order of suspension. Challenging the same, the present writ petition is filed. 2. The learned senior counsel for the petitioner mainly contended that the impugned order was passed by the Chairman of Tamil Nadu Public Service Commission unilaterally and not by the Tamil Nadu Public Service Commission and therefore, the impugned order is invalid. Merely because the criminal case is pending, that too when it was registered after the earlier writ petition filed by the petitioner, it cannot be aground to reject the claim for reinstatement of the petitioner. 3. The learned senior counsel appearing for the respondent, relying on the counter affidavit of the respondent contended that the petitioner, in violation of all norms had attended the examination center at Gudalur/Ooty without informing the department on his own. In fact, the petitioner went to Ooty, met the Personal Assistant (General) to the Collector along with Mr. Jayaraman, Assistant Section Officer (Under suspension), sought the Government Jeep to go over to the examination center. Accordingly, a Jeep was allotted to the petitioner and he accompanied the said Jayaraman in the Jeep to go over to Gudalur on 16.11.2007. Further, on the day of examination i.e., on 17.11.2007, at Gudalur Centre, after completion of examination, the OMR sheets bundle was collected from the Chief invigilator at 2.45 pm by the Tahsildar, Gudalur and deposited it in the Sub-Treasury. The Tahsildar took back the deposited OMR answer sheets from the Sub-treasury, Gudalur at 3.45 pm for depositing the same at Huzur Treasury, Udhagamandalam. At that time, Mr. Jayaraman, Assistant Section Officer, collected the OMR sheets under the pretext of handing it over to the Section Officer of TNPSC along with the petitioner, who was at camp at Udhagamandalam. In this connection, an enquiry was conducted and it was found that the OMR answer sheets, OMR applications, seals and other documents were tampered and the investigation into the same is in the final stage awaiting expert opinion as per the directions of the CB CID. Further, as per the report of the Additional Director General of Police, certain candidates, who have taken the examination in the Gudalur Center, even though they are residence of other Districts, and they have indulged https://hcservices.ecourts.gov.in/hcservices/ in committing malpractice in connivance of the staff of the commission. Therefore, it was decided by the Commission to place the petitioner under suspension and accordingly he was placed under suspension on 20.12.2007. The order of suspension, for the first time, was challenged by the petitioner in WP No. 13240 of 2009 in which this Court directed the petitioner to submit a representation and on receipt of the same the respondent was directed to consider it and pass orders within four weeks. In compliance of the order passed by this Honourable Court, a detailed order was passed rejecting the claim of the petitioner. In the meanwhile, after obtaining report from the Government, the respondent lodged a complaint and based on the same, the case in Crime No. 3 of 2009 came to be registered. Consequently, it was felt by the Commission that the continuance of suspension of the petitioner is warranted in public interest. The learned Senior Counsel further submitted that the Chairman, as Head of Department, had reviewed the order of suspension periodically once in six months and in compliance with the order passed by this Court on 13.10.2009, the Chairman had once again decided the question of continuation of suspension. Accordingly, a detailed order was passed rejecting the claim of the petitioner for reinstatement in service. Therefore, the contention of the petitioner that the suspension order was not reviewed is denied. In fact, the learned Senior Counsel for the respondent produced the files relating to the orders of review passed by the respondent and the learned senior counsel for the petitioner was also permitted to peruse the files. Relying on the orders passed by the respondent pointing out various misconduct committed by the petitioner, the learned Senior counsel for the respondent contended that the Chairman of the Tamil Nadu Public Service Commission is the competent authority to review the order of suspension. It was specifically contended that the Chairman is the person competent to review of the order of suspension passed against the petitioner, who was holding the post of Under Secretary. Therefore, the Chairman is competent to review the order of suspension and he had decided to keep the petitioner under suspension for a further period considering the facts and circumstance of the case. The learned senior counsel for the respondent further contend that in so far as the petitioner's suspension is concerned, by virtue of G.O. Ms. No.40, Personnel and Administrative Reforms Department dated 30.04.1996, the petitioner's suspension was reviewed by the Chairman of the Commission earlier on 01.02.2010, 25.07.2010 and the next review is due on 01.01.2011. 4. The petitioner filed a reply affidavit contending that the review of suspension cannot be made by the Chairman and it has to be done by the Commission. The Counter filed by the Deputy Secretary is not sustainable and there is no departmental enquiry commenced till date. 5. I have heard the counsel for both sides. As per the status report filed by the investigating agency in to this Court namely the Inspector of Police, Organized Crime Unit, CB CID, Coimbatore, in Crime No. 3 of 2009, so far 130 witnesses have been examined and the investigation is in the final stage. It was also stated that the case is pending for the expert opinion from the Tamil Nadu Forensic Science https://hcservices.ecourts.gov.in/hcservices/ Labouratory, Chennai regarding the tampering of the OMR Answer Sheets, OMR applications and the seals. According to the report, the investigation will be completed upon the receipt of the expert opinion which is vital in this case and thereafter the report will be submitted before the learned Judicial magistrate, Gudalur. 6. The petitioner, working as an under Secretary in the Commission, was suspended from service for his alleged involvement in the conduct of Public Service Examination No.I held on 17.11.2007 at Gudalur/Ooty. The Commission conducted examination comprising of a single paper objective type examination on 17.11.2007 in 104 centres through out the State. Subsequently, a news item was published in some of the newspapers stating that certain malpractice had taken place at Gudalur Center which was one among the 104 centers. Several representations were also received from individuals and also associations stating that there was a delay in handing over the used OMR answer sheet bundle in the Huzur Treasury and that certain officials of the Commission, who were not entrusted with the examination duty, were involved in the exercise. Based on the newspaper report as well as the representations received, the District Revenue Officer, Udagamandalam conducted a preliminary enquiry and gave his report about the factum of late receipt of OMR answer sheet bundles from Gudalur Centre to Udagamandalam on the date of exam. In his report, among other things, the District Revenue Officer had specifically stated that on 16.11.2007, the petitioner falsely represented that he was entrusted with the over all inspection duty at the examination Centre at Gudalur. It was also found that the petitioner left the Headquarters without obtaining permission from the higher officials on 16.11.2007 and he was present at the examination centre along with one Jayaraman on 17.11.2007. It was further pointed out that the petitioner met the Personal Assistant (General) to the Collector, utilised the Government Jeep to reach the examination Centre and committed certain malpractice. Therefore, on 20.12.2007, the petitioner, for his alleged involvement in the malpractice, was placed under suspension, by the respondent. 7. The petitioner never challenged the order of suspension immediately and it was only challenged for the first time by filing WP No. 13240 of 2009 and this Court directed the petitioner to submit a representation for consideration of the respondent and the respondent was directed to pass order within four weeks. Pursuant to such a direction issued by this Court, the petitioner submitted a detailed representation to the respondent and it was rejected by the impugned order. In the meantime, after obtaining report from the Government, the respondent lodged a complaint and based on the same, the case in Crime No. 3 of 2009 came to be registered. In view of the pendency of the criminal case and also taking into consideration the serious nature of the offence said to have been committed by the petitioner, the claim of the petitioner to review the order of suspension was rejected by the impugned order. In fact, after registration of the criminal case, the petitioner obtained anticipatory bail from this Court in Criminal O.P. No. 17164 of 2009 and the same was granted on 27.08.2009. It now transpires that subsequently, on 18.10.2010, charge sheet was also filed before the Judicial Magistrate, https://hcservices.ecourts.gov.in/hcservices/ Udhagamandalam. 8. The only contention raised by the learned senior counsel was that the order of suspension was passed in the course of disciplinary action contemplated for conducting an enquiry into alleged charges and such order of suspension cannot be permitted to continue. The learned senior counsel for the petitioner further contended that no disciplinary proceedings has been initiated so far and therefore, the impugned order is vitiated. The Commission, being a constitutional body had not taken a decision for reviewing the order of suspension and that the order of suspension was reviewed only by the Chairman. Therefore also, the impugned order is liable to be set aside. 9. The contention of the learned senior counsel for the petitioner cannot be accepted since, from the files produced before this Court, it is clear that the petitioner's suspension order was periodically reviewed by the Chairman namely on 01.02.2010, thereafter on 23.07.2010 and the next review is due only on 01.01.2011. Moreover the impugned order was passed taking into consideration the pendency of the criminal case in Crime No. 3 of 2009 and the subsequent charge sheet filed before the competent Criminal Court. Moreover, the charges levelled against the petitioner are serious in nature and therefore, the Chairman, who is the competent authority had passed the impugned order for continuance of the order of suspension of the petitioner, who was working as an Under Secretary. The petitioner is unable to point out any specific Rule or violation of any norms but merely contend that the Chairman is not the competent authority to pass the order impugned in this writ petition. Moreover, the competent authority namely the Chairman had periodically reviewed the order of suspension. An employee can be placed under suspension pending contemplation of enquiry or during the pendency of the criminal case. In this case, admittedly, a criminal case in Crime No. 3 of 2009 was registered for the offences punishable under Section 120b, 166, 170, 406 and 420 of IPC. The crux of the charge against the petitioner was that he had unauthorisedly left the headquarters without intimating the higher officials and went to the examination centre at Gudalur by utilising the Government Jeep. The petitioner was also alleged to have involved in the tampering of the OMR sheets, OMR applications and seals. Therefore, the Chairman of Tamil Nadu Public Service Commission felt that continuation of the suspension of the petitioner is desirable in public interest. Under those circumstance, I do not find any infirmity or illegality in the order impugned in this writ petition. 10. In this connection, I am fortified by the decision of this Court made in WP Nos. 15313 and 27484 of 2009 dated 02.02.2010 passed by Justice K. Chandru, following the decision of the Honourable Supreme Court reported in (Director General and Inspector General of Police, Andhra Pradesh, Hyderabad and others vs. K. Ratnagiri) 1990 (3) SCC 60, wherein in Para Nos. 11, 12, 14 and 15, it was held as follows:- 11. It is under these circumstances, a prayer was made to quash the suspension order passed against the petitioners. However, the https://hcservices.ecourts.gov.in/hcservices/ decisions relied on by the petitioners were of no use to them, since in the present case, there was specific criminal case against petitioners and investigation is under progress. The petitioners were also arrested by the police n connection with the criminal case. It is not enough to say that their names were not in the FIR. In fact, FIR is only a starting point for investigation. The further progress in the investigation may reveal several facts, which were not stated in the FIR. In any event, the letter sent by the Inspector of Police, District Crime Branch, Erode shows that the report is awaited from the Forensic Laboratory and that a charge sheet will be filed before the end of February. 12. In any event, there is no automatic restoration to service. If there is valid order of suspensionmade by the authorities and there is no malafide alleged against them and it is passed by the competent authorities, the question of interfering with such suspension may not arise. 13..... 14. The Supreme Court in its decision reported in 1990 (3) SCC 60 (Director General and Inspector General of Police, Andhra Pradesh, Hyderabad and others vs. K. Ratnagiri) has held in para 3 as follows:- ".....The government may review the case and make further or other order but the order of suspension will continue to operate till it is rescinded by an appropriate authority.' 15. The Supreme Court in Union of India vs. Rajiv Kumar reported in 2003 (6) SCC 516 had an occasion to decide the issue of prolonged suspension. The Supreme Court held that in a genuine case, if the authorities feel that suspension has to be continued, the Court cannot interfere with the same. The following passage found in paragraph 29 may be usefully extracted below:- "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." Even O.P. Gupta's case (cited supra) takes the similar view." 11. Similarly, in the decision reported in (M.K. Dange vs. Chairman cum Managing Director, ONGC, New Delhi and others) (2003) 3 https://hcservices.ecourts.gov.in/hcservices/ MLJ 544 a similar view was taken by Justice D. Murugesan by specifically stating that when a suspended employee is facing criminal charges not only under the Penal Code but also under the Prevention of Corruption Act, his suspension cannot be revoked merely on the ground that his suspension had remained for a prolonged period of nearly ten years. 12. In this case also, merely because the petitioner was under suspension for a longer period, that will not be aground for his reinstatement into service or it will not invalidate the impugned order passed by the respondent. In any event, the order of suspension passed against the petitioner was periodically reviewed by the respondent and rejected on valid grounds. Under those circumstance, the relief sought for in this writ petition cannot be granted and the writ petition is liable to be dismissed. 13. Accordingly, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rsh To The Secretary Tamil Nadu Public Service Commission Government Estate Chennai – 600 002 +1cc to Mr.CNG.Niraimathi Advocate Sr 92052 +1cc to Mr.M.Muthappan, Advocate Sr 92207 GV(CO) km/7.1. WP No. 26652 of 2009 https://hcservices.ecourts.gov.in/hcservices/