IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.10.2010 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.No.12590 of 2009 M.P.No.2 of 2009 R.Ravichandran ... Petitioner Versus 1. The Additional Commissioner of Police, Traffic, Chennai. 2. The Commissioner of Police, Chennai Sub Urban, St. Thomas Mount, Chennai-16. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writs of Certiorari, to call for the records of the respondents in connection with the impugned order, passed by the respondents 1 and 2 in C.No.3932/Tr.PR(S)/08, T.Z.O.27/08, dated 05.02.2008 and C.No.H3/PR/CSUP/3861/2008, dated 24.02.2009 respectively and quash the same. For Petitioner : Mr.K.Venkataramani, SC for Mr.M.Muthappan For Respondents : Mr.R.Murali, GA O R D E R It is the case of the petitioner that he entered the Police Department, as a Police Constable in City Armed Reserve Unit and gradually, promoted to the post of Head Constable. While he was serving as Head Constable, attached to the Traffic Investigation Team, GST Tambaram, he has been falsely implicated in a criminal case registered in Crime No.2/AC/2008/CC (V), dated 4.2.2008, on the complaint preferred by one Mr.Janakiraman, S/o of Nithayanandam, Chennai-86, alleging that he had demanded illegal gratification of Rs.3000/- for the release of an Ambassador Car bearing Registration No.TN 07 AP 8358, involved in an accident case, registered in Crime No.39/08, under Sections 279 and 338 of the Indian Penal Code. According to him, he had not met the complainant, Mr.Janakiraman nor he has powers to release the vehicle involved in any criminal case. It is only the Sub Inspector of Police of Traffic Investigation Wing, who https://hcservices.ecourts.gov.in/hcservices/ is competent to release the vehicle involved in the accident. He has denied the allegation of demand of illegal gratification. 2. It is the further contention of the petitioner that even as per the First Information Report, there is a specific averment that it is only the Sub Inspector of Police, Mr.Goguldass, who had demanded illegal gratification from the complainant. He further submitted that on 4.2.08, he was on station duty from 1 P.M., to 8 P.M., and around 5.30 P.M., the complainant approached him, stating that the Sub Inspector of Police, Mr.Goguldass asked him to meet. But the petitioner told him that the Sub Inspector of Police, Traffic Investigation, was available in the adjacent room. Thereafter, the complainant left the place and after 5 minutes, returned to the Station, stating that the Sub Inspector of Police requested him to handover a sum of Rs.3000/- to be paid to him. He refused to receive the amount stating that he did not demand any illegal gratification either for releasing the accused or releasing the vehicle, involved in the criminal case. 3. It is the further case of the petitioner that though the complainant forced him to receive the amount, but he refused. Thereafter, he thrusted the amount into his right side pant pocket. He took out the money from his pant pocket and handed over to him. But the complainant refused to receive the same and left the place abruptly. As he had not demanded any amount, he had thrown the money through the window. After 10 minutes, the Vigilance officials arrived there along with the complainant and asked the petitioner, whether he had received the illegal gratification. The petitioner replied that he did not demand and accept any illegal gratification, but told them that the complainant, Thiru.Janakiraman forcibly thrusted the same into his pant pocket, which was thrown away. 4. The petitioner has further submitted that his explanation was not accepted. He was subjected to phenolphthalein test. The Sub Inspector of Police seemed to have told the vigilance officials that he did not ask the petitioner to receive the bribe amount. That is how, the petitioner was made a scapegoat by the Sub Inspector of Police. The petitioner and the Sub-Inspector of Police were arrested by the vigilance officials and on the same date, they were released on bail. Following the arrest, on 5.2.2008, the first respondent has passed the impugned order of suspension, stating that a criminal case has been registered against him under the provisions of Prevention of Corruption Act and that the same was under investigation. Subsequently, a charge sheet was filed on the file of the learned Chief Judicial Magistrate/Sub Judge, Chengalpet, in CC No.10/08. 5. The petitioner has further submitted that the respondent has not reviewed the order of suspension, after the filing of the charge sheet before the Court of competent jurisdiction, as provided under G.O.Ms.No.40, P & AR Department, dated 30.1.1996. Since, he is https://hcservices.ecourts.gov.in/hcservices/ under prolonged suspension without any review, he made representations, dated 24.8.2008 and 23.01.2009, to revoke the order of suspension. Without considering the representations in proper perspective, the first respondent has rejected the same on the ground that the petitioner has been charge sheeted in the criminal case and it is pending trial. Being aggrieved by the same, the petitioner has filed the present writ petition to quash the suspension order, dated 05.02.2008 and the order, dated 24.02.2009, rejecting his request for revocation. 6. Assailing the correctness of the order of suspension and rejection for revocation, Mr.K.Venkataramani, Learned Senior Counsel for the petitioner submitted that the impugned order of suspension was passed on 05.02.2008 and even after a lapse of one year, it was not reviewed by the Department, though sanction for prosecution has already been granted and consequently, on completion of the investigation, a charge sheet has been filed in C.C.No.10 of 2008 on the file of the Learned Chief Judicial Magistrate. It is the further contention of the learned Senior Counsel that when G.O.Ms.No.40, dated 30.01.1996, contemplates review of suspension, the appointing authority has failed to consider the same in proper perspective. 7. Learned Senior Counsel for the petitioner further submitted that when the charge sheet has already been filed, the question of tampering with the witnesses will not arise and therefore, the respondents ought to have restored the petitioner in service and if necessary, place him in an insignificant post. He further submitted that pursuant to the filing of the charge sheet before the Learned Chief Judicial Magistrate, examination of witnesses has already commenced and therefore, there is no need to continue the petitioner under suspension. 8. Referring to the interim order granted by this Court on 24.07.2009, on the ground that there was no progress in the trial and also of the fact of its compliance in reinstating the petitioner, without prejudice to the trial and in the absence of any allegation of tampering of witnesses, for nearly one year, since the date of reinstatement, Learned Senior Counsel for the petitioner submitted that the petitioner may be permitted to continue discharge his duties, till the disposal of the trial. He therefore submitted that if the petitioner had to undergo suspension again, pending trial, which is likely to take more time, then irreparable hardship would be caused. For the above said reasons, he prayed that the petitioner be allowed to discharge his duties as police constable, till the completion of the trial and no serious prejudice would be caused to the Department. 9. On the basis of the counter affidavit filed by the Commissioner of Police, Sub-Urban Police, St.Thomas Mount, Chennai, the second respondent herein, Mr.R.Murali, learned Government Advocate submitted that when the petitioner was working as Head Constable in https://hcservices.ecourts.gov.in/hcservices/ Traffic Wing on GST Road, Tambaram from 18.03.2006 to 05.02.2006, on a written complaint from Thiru.Janakiraman, Chennai-56, with the Director of Vigilance and Anti-Corruption, to the effect that the Head Constable 9949, Mr.Ravichandran ( the writ petitioner herein) and the Sub Inspector of Police, Mr.Gokuldoss, demanded Rs.3,000/- as bribe, for releasing a Tourist Ambassdor Car, bearing Registration No.TN 07 AB 8358, involved in a road accident, caused on 31.01.2008, the Vigilance and Anti-Corruption Police, laid a successful trap on 04.02.2008 and caught the petitioner and the above said Sub-Inspector of Police, red-handed at 17.00 Hours in DVAC Cr.No.02/AC/2008/CC-VI, under Section 7 of the Prevention of Corruption Act, 1988. As the petitioner was involved in a criminal case and arrested by the Vigilance and Anti-Corruption police, he was placed under suspension on 05.02.2008. Subsequently, he made a representation to the second respondent to reinstate him in service. But his case was not considered, as per the instructions of the Director of Vigilance and Anti-Corruption, Chennai and Government Order in G.O.Ms.No.40, P & AR Department, dated 30.01.1996. 10. On the merits of the case, Mr.R.Murali, learned Government Advocate further submitted that a Complaint was given by the said Mr.Janakiraman to the Director of Vigilance and Anti-Corruption Department, alleging that the petitioner and the abovesaid Sub Inspector of Police demanded a sum of Rs.3,000/- for releasing a Tourist Ambassdor Car, involved in a road accident, in Cr.No.39 of 2008, under Sections 279 and 338 IPC. As per the version of the Commissioner of Police, Chennai Sub Urban Police, Chennai, second respondent, the petitioner had asked the complainant to bring money on 01.02.2008 between 1 P.M. and 2 P.M. On 01.02.2008 at about 8.00 P.M., when Mr.Janakiraman, owner of the car and Mr.Sathish, driver of the said car, went to the Police Station, the petitioner introduced them to the Sub-Inspector of Police, Mr.Gokuldass. 11. It is the further contention of the learned Government Advocate that when the complainant handedover a sum of Rs.3,000/-, the petitioner received it, by his right hand, counted the bribe amount with both hands and thereafter, placed it in his right side pant pocket. In the above said circumstances, learned Government Advocate submitted that the averments in the supporting affidavit do not reflect the correct factual position. 12. Placing reliance on a decision of the Division Bench of this Court in D.Uthirakumaran v. The Government of Tami Nadu reported in 1988 Writ.L.R. 229, Mr.R.Murali, learned Government Advocate further submitted that rule 17(e)(i) of the above said Rules, empowers the appointing/disciplinary authority to suspend a member of a service, pending contemplation of an enquiry into grave charges against him, or pending enquiry or when the investigation or trial is pending. He further submitted that when the power to place the petitioner under suspension has been exercised bona fide on consideration of facts, https://hcservices.ecourts.gov.in/hcservices/ forbidding the petitioner to work and when salary under the rules is paid during the period of suspension, the exercise of power and placing the petitioner in public interest, cannot be questioned, except on the limited ground of lack of jurisdiction. 13. Learned State Counsel further submitted that when the petitioner was caught red handed for demand and acceptance of bribe amount and placed under suspension, in public interest, there is no manifest illegality. According to him, exercise of such power to place the petitioner under suspension in public interest was an immediate necessity. 14. Taking this Court through the facts of the case in A.Abdul Gani v. The Superintending Engineer reported in 1996 (1) MLJ 52, learned Government Advocate further submitted that in the above reported case, there was a trap by the Vigilance and Anti Corruption Department. During which currency of Rs.100/- was seized from the petitioner and another person. The petitioner therein was suspended for acceptance of bribe of Rs.100/- for providing electricity service connection. When the order of suspension was questioned on the ground that it caused hardship, prejudice, humiliation, agony and the subsistence allowance, paid being lesser than salary, this Court rejected the contentions on the ground that suspension resorted to by the Department was not a punitive action, but to keep the officer out of sphere of action, pending trial. He further submitted that as long as there is bona fide exercise of power and in the absence of any vindictiveness or arbitrariness, no interference is called for. 15. Placing reliance on a Division Bench judgment in The Chairman and Managing Director, Tamil Nadu Salt Corporation Limited, v. N.Subramanian reported in 2007 (1) MLJ 550, learned Government Advocate further submitted that in service jurisprudence, the concept of suspension is well recognised and the employer has the absolute right to place its employee under suspension and courts normally do not sit in judgment over the discretion exercised by the employer. 16. Placing reliance on an unreported judgment in W.P.No.14406 of 2009, dated 19.06.2003 [State of Tamil Nadu v. Noor Mohammed], Mr.R.Murali, learned State Counsel further submitted that when the Tamil Nadu Administrative Tribunal, Madras, considered a case of a General Manager, who was allegedly involved in a trap case, caught red handed and lateron, suspended, following his arrest. The Tribunal dismissed his Original Application, taking a view that limitation for review of suspension, as per Clause VI of G.O.Ms.No.40, dated 30.01.1996, is not applicable in such cases. However, subsequently, when the same Tribunal, allowed another Original Application filed by him, on the ground that, the suspension was continued for more than two years and consequently, directed revocation, this Court, while testing the correctness of the order, opined that the Tribunal ought not to have found fancy about the period of two years, as https://hcservices.ecourts.gov.in/hcservices/ unreasonableness and revoked the order of suspension, without bothering to mention any facts in the order. Learned Government Advocate further submitted that the said judgment, though unreported, would clearly apply to the facts of this case. 17. Placing reliance on a decision of the Supreme Court in State of Orissa v. Bimal Kumar Mohanty reported in 1994 (4) SCC 126, learned Government Advocate further submitted that when suspension is made, pending investigation or criminal trial and in particular, when serious misconduct of corruption or grave irregularities are alleged, Courts should exercise a restraint in granting interim orders of stay of suspension and exercise of such discretionary power by the competent authority, after taking into consideration, the pros and cons to maintain purity in administration should not be interfered with. He also submitted that when the authority has exercised his discretion, keeping in mind, the public interest and the impact of such government servant's continuance in office, who is facing a departmental inquiry into grave charges or trial of a criminal charge, involving moral turpitude, no interference is called for. 18. Placing reliance on a decision of the Apex Court in Allahad Bank v. Deepak Kumar Bhola reported in 1997 (4) SCC 1, learned Government Advocate submitted that when the appointing/disciplinary authority has considered the gravity of the offence, involving moral turpitude, in the present case, an offence punishable under the Prevention of Corruption Act, and even if, there is any likelihood of delay in concluding the criminal trial before the learned Chief Judicial Magistrate/Sub Judge, Chengalpet, yet, it would be wholly undesirable to allow the petitioner to discharge his duties, when he is facing a serious charge of corruption. According to him, the mere fact that the petitioner was under suspension for more than one year, would not clothe him any right to seek for restoration of his services, even in an insignificant post. He also submitted that when this Court granted an interim order on 24.07.2009, the same was implicitly obeyed by the Department and that does not mean that the writ petitioner can be allowed to continue to discharge his duties, pending trial, as it would affect the morale of other government servants. In this context, learned Government Advocate drew the attention of this Court to Deepak Kumar Bhola's case (cited supra) where the respondent therein was under suspension for a period of more than 10 years, even after filing of the charge sheet before the Criminal Court. 19. Taking this Court through the facts of the case in Balvantray Ratilal Patel v. State of Maharastra reported in AIR 1968 SC 800, learned Government Advocate further submitted that in the above reported case, the appellant therein was a member of the Bombay Medical Service and on a complaint, the Anti-Corruption Branch, laid a trap and recovered marked currency notes from him. Thereafter, when the report of the Police was forwarded to the Surgeon General with a https://hcservices.ecourts.gov.in/hcservices/ request that the appellant therein should be placed under suspension with immediate affect, pending disposal of the case, the appellant made a representation to the Surgeon General, alleging that he was falsely implicated by the Anti-Corruption Branch Police and requested to consider his representation before sanction for prosecution is given and making an order of suspension. The Surgeon General forwarded the report of the Sub-Inspector of Police as well as the representation of the appellant to the Government. After getting approval from the Ministry of Health and the Hon'ble Chief Minister for the State and also from the Deputy Secretary to the Government, the Surgeon General placed the appellant therein under suspension. The learned Government Advocate, drew the attention of this Court to the general principles, adumbrated in the said judgment, governing the rights of the employer to suspend an employee, pending enquiry or trial, vis-a-vis that the employee and further submitted that except payment of salary, during the period of suspension, which depends upon the provisions of the statute or rules, the petitioner is not entitled to seek for retention in service. 20. Though the interim order of stay granted by this Court in M.P.No.1 of 2009, dated 24.07.2009, has been implicitly obeyed, placing reliance on a decision of the Supreme Court in Shyam Lal Yadev v. Kusum Dhawan reported in 1979 (4) SCC 143, learned Government Advocate submitted that the interim order granted in the Miscellaneous Application requires to be vacated. For the above said reasons, he submitted that there is no manifest illegality in suspending the petitioner, pending trial and in the order, rejecting the request for revocation. 21. Referring to Clause VI in G.O.Ms.No.40, dated 30.01.1996, learned Government Advocate further submitted that the time limit provided for review of suspension applicable to ordinary cases, is not applicable to suspension, pending investigation or trial and therefore, the contentions to the contra, has to be rejected. For the above said reasons, he prayed to vacate the interim stay and dismiss the writ petition. Heard the learned counsel appearing for the parties and perused the materials available on record. 22. Some of the issues which arise for consideration in this writ petition are, (i) Whether the authority, who has placed a government servant under suspension is statutorily bound to review the suspension, when he is facing investigation into a criminal case/trial of an offence, involving moral turpitude, like corruption, embezzlement, misappropriation or for such other serious offences before the Criminal Court and if review of suspension is not done by the authority, who has placed the https://hcservices.ecourts.gov.in/hcservices/ government servant under suspension or by the higher authority, whether the said order would become automatically invalid? (ii) Whether the time limit prescribed for review of suspension in G.O.Ms.No.40, dated 30.01.1996 is applicable to criminal cases? (iii) What is the right of a government servant during the period of suspension pending enquiry into the charges, under contemplation/pending investigation/trial? (iv) When the appointing/disciplinary, authority/government can exercise his discretion to place a government servant under suspension and what are all the factors to be taken into consideration? (v) Whether the order of suspension is administrative or quasi-judicial nature? (vi) When the power of judicial review exercised by Courts in adjudicating the legality or correctness of an order of suspension passed by the appointing/disciplinary, authority/government, pending contemplation of the charges/enquiry/investigation/trial, what is the extent of discretion to be exercised by Courts? (vii) Whether the Courts can merely strike down orders of suspension issued against the government servant and continued, pending disposal of the investigation/trial of offences involving moral turpitude, particularly, corruption, on the sole ground that there is no progress in the investigation or trial for a considerable period, there is no likelihood of tampering with the witnesses or prolonged suspension, pending investigation or trial, causes agony and humiliation? (viii) Whether a government servant placed under suspension for involvement in serious offences/misconduct, involving moral turpitude can seek for retention in service in any insignificant post or seek for transfer, on the sole ground that the suspension is prolonged pending investigation/trial? 23. Suspension, as per Wharton’s Law Lexicon, 14th Edn., is a temporary stop or hanging up as it were of a right for a time, also a censure on ecclesiastical persons, during which they are forbidden to exercise their office or take the profits of their benefices. https://hcservices.ecourts.gov.in/hcservices/ 24. 'Suspension' means, "action of debarring or state of being debarred, especially, for a time, from a function or privilege; temporary deprivation of one's office or position, or again, state of being temporarily kept from doing or deprived of something. 25. Suspension as per Black's Law Dictionary: 7th Edn. Pg.1460 means, (1) to interrupt; postpone; defer (2) to temporarily keep a person from performing a function, occupying an office, holding a job or exercising a right or privilege. 26. As per Stroud's Judicial Dictionary, “Suspension’ or ‘Suspense’ is a temporal, ie., temporary, “Stop of Mans' Right (Cowel). Suspension, as per Bauvier’s Law Dictionary, Vol.II, means a temporary stop of right, of a law, and the like. As per the Ramanatha Iyer's Dictionary, suspension means temporary intervention or cession of something (as) office, work or labour. 27. “The act of debarring for a time from a function or privilege”. It means a temporary deprivation of once office or position. The suspended officer does not cease to be a public servant, he is only prevented from discharging the duties of his office for the time being. [K.J. Aiyar’s Judicial Dictionary, 14th Edn.] 28. Suspension, according to Oxford Dictionary, means, “The action of suspending or condition of being suspended, the action debarring especially for a time from, a function or privilege, temporary deprivation of one’s office or position or again, state of being temporarily kept from doing or deprived of something. 29. Suspension is, to defer; to debar from any privilege, office employment, et., for a time being. [Ref. Hemanth Kumar v. S.N.Mukherjee reported in AIR 1954 Cal. 340] 30. Suspension cannotes temporary cessation of something as right, work or labour. The basic idea underlying the root word, “suspend” and all its derivatives is that a person while holding an office and performing its functions of holding a position or privilege should be interrupted in doing so and debarred for the time being from further functioning in the office or holding the position and privilege. He is intercepted in the exercise of his functions of his employment of the privilege and put aside, as it were, for a time, excluded during the period from his functions or privileges. Such is the concept of a suspension order. Reference can be made to the decision in Abid Mohd. Khan v. State of M.P. reported in AIR 1958 MP 44. 31. In the case on hand, the petitioner is involved in an act of corruption, for which, a case has been registered and after investigation, charge sheet has been laid in CC No.10/08 on the file https://hcservices.ecourts.gov.in/hcservices/ of the Chief Judicial Magistrate/Special Judge, Chengalpattu. At this juncture, it is worthwhile to extract the views of the Supreme Court in cases relating to corruption, in K.C.Sareen v. CBI, reported in 2001 (6) SCC 584, "Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functions of the public and impeded from gripping the normal and orderly functions of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic policy. Profit ration of corrupt public servants could garner momentums to cripple the social order of such men are allowed to continue to manage and operate public institutions. When a public servant was found guilty of corruption after a judicial when a adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior Court. The mere fact that an