IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.09.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.21533 of 2011 and M.P.Nos.1 and 2 of 2011 T.Thamilmaran .. Petitioner Vs. 1.The Tamil Nadu Civil Supplies Corporation, rep by its Managing Director, No.12,Thambusamy Road, Kilpauk, Chennai-10. 2.The Managing Director, The Tamil Nadu Civil Supplies Corporation, No.12, Thambusamy Road, Kilpauk, Chennai-10. 3.The Senior Regional Manager, The Tamil Nadu Civil Supplies Corporation, Coimbatore Region, Goundampalayam, Coimbatore-30. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records in connection with the impugned order of suspension bearing Ref.No.Pro.No.D2/4462/11, dated 09.09.2011 on the file of the third respondent and quash the same. For Petitioner : Mr.V.Prakash, SC for Mr.K.Sudalaikannu ORDER The writ petition is filed by the petitioner seeking to challenge an order of suspension dated 9.9.2011. By the impugned order of suspension, the petitioner who was working as an Assistant Quality Inspector, was placed under suspension in public interest. The order also stated that the petitioner was responsible for making double payment to the Mettupalayam Agricultural Cooperative Society in the purchase of empty gunny sacks . The petitioner was also stated that he will be paid subsistence allowance as per the rules. The suspension was made in terms of Rule 6(a) of the Tamil Nadu Civil Supplies Corporation Employees Service Regulations, 1989. The order was signed by the Senior Regional Manger, Tamil Nadu Civil Supplies Corporation (TNCSC), Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 2.It must be noted that suspension was preceded by a charge memo given by the same authority, dated 24.8.2011. The charge memo clearly sets out the number of empty gunny sacks purchased and the amount paid for sacks and also as to how already payments have been made for1,32,750 gunny sacks and once again further amounts have been paid. The petitioner was charged that the petitioner was responsible for preparing approval note with the help of one Junior Assistant S.Venkatasamy, who got retired from service on 28.2.2011 and without verifying the indent received from the society as a true copy and without verifying whether any amounts have been paid, he had recommended payment. Thus, he had disregarded his duty and allowed irregularities to take place. 3.Challenging the said suspension order, the petitioner contended that the procedure for such payment involves records should dealt with at several levels which included Junior Assistant, Superintendent, Assistant Manager, Deputy Manager (Accounts) and Deputy Senior Regional manager. The administrative proceedings will have to be issued by the very same Senior Regional manager for making payments. Therefore, the petitioner being the Assistant Quality Inspector at Mettupalayam godown was no way responsible. He had also stated as to how the said payments could have happened. It was claimed by him that he was Regional Treasurer of the TNCSC Employees Union which is affiliated to the Labour Progressive Federation which is the labour wing floated by the Dravida Munnetra Kazhagam, the previous ruling party. It is stated that there was an inter-union rivalry between the LPF and the Indian National Trade Union Congress (INTUC). They gave pressure to the second respondent Managing Director and that the Managing Director had ordered placing the petitioner under suspension, besides initiating disciplinary action. But no suspensions were made against the other officers of the administration. It was claimed that those three officers, i.e. Assistant Manager K.Gowrimanavalam, Deputy Manager R.Chandran and Manager (Administration) K.Venugopal belonged to ATP labour wing of AIADMK. The suspension has been made only against the petitioner and two others on 9.9.2011, who were incidentally belonged to same LPF union. Therefore, it was contended that the power of the Managing Director relating to suspension is only confined to the power of review on the need to continue a suspension. But the service regulations do not visualize the Managing Director to decide the issue of suspension. By the communication, dated 8.9.2011, the second respondent Managing Director had directed the third respondent Senior Regional Manager to place the petitioner under suspension. Hence it is ultravires. When once the statute prescribed a particular procedure, it has to be followed only by way of procedure and not in any other manner. Using the suspension selectively and not passing the similar order against the other officers will clearly show there was discrimination. 4.The petitioner also filed an additional typed set containing the communication sent by the District Revenue Officer- cum-General Manager (Administration), dated 08.09.2011 and noticed https://hcservices.ecourts.gov.in/hcservices/ several lapses as per the inspection report. The Managing Director had ordered that suspension should be made with a view to impose major penalty on six persons including the petitioner and others including Junior Assistant, Superintendent, Assistant Manager, Tiruppur Region, Deputy Manager (Accounts) and the Manager (Administration). Therefore, the General Manager (Administration) had requested to take action as ordered by the Managing Director and sent the copy of suspension memo to the individuals. This communication produced by the petitioner clearly shows that suspension was not without any basis. It was based upon vigilance enquiry conducted by the Head Office and a direction was given not only against the petitioner, but also against the other officers whom the petitioner claimed were not suspended. 5.Further, suspension was not imposed by the Managing Director and it was the appropriate authority who was directed to take action against the petitioner and others. This makes it clear that the ground of bias and discrimination falls to ground. The other question is that whether there was any violation much more statutory violation in the order of suspension. It must be noted that the TNCSC Employees Service Regulations, 1989 is not made pursuant to any statutory power. On the contrary, it was made by the Board of Directors of Company for governing the service conditions of employees. Therefore, it was wrong to call it as a statutory requirement. 6.In this context, it is necessary to refer to a judgment of the Supreme Court in Gopalji Khanna Vs. Allahabad Bank and others reported in (1996) 3 SCC 538, wherein regulations framed by the nationalised bank and the legal status of the same came to be considered by the Supreme Court and in paragraph 7, it was observed as follows: "7....Though the Regulations have been framed in exercise of the powers conferred by Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, by the Board of Directors, they cannot be equated with a statute. What the Board of Directors have done by making those Regulations is to regulate the power of taking disciplinary action against the employees of the Bank....." 7.In any event, Regulation 6(a) under Chapter V merely states that an employee may be placed under suspension from service by the authority competent to dismiss or remove him from service. Initially it was stated so. Subsequently, an amendment was made by the Board meeting held on 28.8.1991, in which it was stated that suspension should be made by the authority specified in the regulations. In respect of the employees below the cadre of the Manager, it is the Senior Regional Manager / Regional Manager alone can suspend. In the present case, it is the Senior Regional Manager who had suspended the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 8.According to the learned Senior Counsel, the suspension has been done through commanding performance by the Managing Director communicated through the Manager (Accounts). Therefore, there is no independent application of mind. Under Chapter-I Regulation 8, it is stated that the Board of Directors may delegate any of its powers under the regulations to the Managing Director or any other officer under it and that no person other than the competent authority prescribed under the regulations shall exercise or delegate powers under the regulations without the general or specific orders of the Board. Therefore, the learned Senior Counsel contended that since the Board has not delegated the powers to the Managing Director, he cannot give any direction to the subordinate to suspend the petitioner. 9.But this court do not think that such a contention is maintainable. In the present case, admittedly the suspension has been made only by the third respondent who is the competent authority. Secondly when the vigilance enquiry was conducted by the Headquarters, a necessary administrative instructions will have to be given to the subordinates with reference to the findings of vigilance. The Managing Director cannot shut his eyes, lest he may be accused of not maintaining the Corporation with good governance. 10.As to whether after delegation of power to the subordinate authorities, whether the original authority or appointing authority can exercise the power of disciplinary action despite such delegation came to be considered in the context of Article 311 of the Constitution by the Supreme Court in Government of Andhra Pradesh and another Vs. N.Ramanaiah reported in (2009) 7 SCC 165 and in paragraphs 23 to 25, it was observed as follows: "23.The Constitution being the transcendental law, the rule-making authority by making Rule 14(2) took care to see that constitutional guarantee enshrined in Article 311(1) of the Constitution which was available to the government servant was protected. That the construction placed by us on the expression “subordinate” is in consonance with the meaning and import of the word “subordinate” occurring in Article 311(1) of the Constitution is apparent from many a decisions of this Court. We shall refer to some of them. In our considered opinion there is nothing in the Constitution which debars the Government from exercising the powers of appointing authority to dismiss a government servant from service. These Rules cannot be read as implying that dismissal must be by the very authority who made the appointment or by his immediate superior. 24.In Sampuran Singh Vs. State of Punjab, this Court observed that: (SCC p.203, para 11) "11. ....In view of Article 311(1) of the Constitution the removing authority cannot be subordinate in rank to the appointing authority. By necessary implication the removing authority may be higher in rank to the https://hcservices.ecourts.gov.in/hcservices/ appointing authority." (emphasis supplied) There is a compliance with clause (1) of Article 311 if the dismissing authority is not lower in rank or grade than the appointing authority. (See State of U.P. V Ram Naresh Lal and Jai Jai Ram Vs. U.P. SRTC.) 25.The decision in K.C.Chandrasekharan V. State of Kerala supports the submission made by the learned Senior Counsel for the appellant that the mere fact that the Rules provided for an appeal to the Government in case the government servant is punished by an authority subordinate to it does not mean that the government cannot itself undertake the disciplinary proceedings against its officers." 11.Hence, the contention raised by the petitioner that it was the command performance cannot be accepted merely because an internal communication was sent to the third respondent. Even before the order of suspension, it was preceded by a charge memo. Therefore, it also cannot be said that there was no material at the hands of the third respondent. 12.Further it must be noted that an ad-interim suspension cannot be challenged unless there was malafide or without authority. But both ingredients are absent in this case. The Supreme Court had held that unless malafides are attributed to the Government and established, the Court cannot interdict an order of suspension, vide its judgment in A.K.K. Nambiar v. Union of India reported in (1969) 3 SCC 864. 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.....” https://hcservices.ecourts.gov.in/hcservices/ 13.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. .....” 14.In the light of the above, the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petitions stand closed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar vvk To 1.The Managing Director, The Tamil Nadu Civil Supplies Corporation, No.12,Thambusamy Road, Kilpauk, Chennai-10. 2.The Managing Director, The Tamil Nadu Civil Supplies Corporation, No.12, Thambusamy Road, Kilpauk, Chennai-10. 3.The Senior Regional Manager, The Tamil Nadu Civil Supplies Corporation, Coimbatore Region, Goundampalayam, Coimbatore-30. W.P.NO.21533 of 2011 SSN(CO) PMK.22.9.2011 https://hcservices.ecourts.gov.in/hcservices/