1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.7634 of 2011 And M.P.(MD).No.1 of 2011 N.Mahendran ... Petitioner -Vs- 1. The District Collector Virudhunagar, Virudhunagar District 2. The Assistant Director of Town Panchayat Sivagangai Zone, Sivagangai 3. The Executive Officer Watrap Town Panchayat, Virudhunagar District ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorari calling for the records pertaining to the impugned order of suspension in Roc.No.23/2011 (A1) dated 07.02.2011 on the file of the respondent No.3 and quash the same as illegal. For Petitioner : Mr.T.Lajapathi Roy For Respondents : Mr.B.Pugalenthi, Special Government Pleader O R D E R The impugned order of suspension reads as follows:- "Whereas Thiru.N.Mahendran, Filtter, Watrap Town Panchayat, Arrested by the Inspector of Police Watrap vide F.I.R. No. 18/2011 Sec. 307, 506(ii) has committed Criminal Offence. Whereas an enquiry into grave charges is pending enquiry, Thiru.N.Mahendran, Fitter, Watrap Town Panchayat Criminal offence is under investigation. Whereas in the circumstances of the case it is necessary in the public interest to place the said Thiru.N.Mahendran, fitter, Watrap Town Panchayat, under suspension from service. Now, therefore under Sub Rule 1(a) of 5 of Tamilnadu Panchayat Establishment (Punishment & Appeal) Rules, 1988 the said Thiru.N.Mahendran, fitter, Watrap Town Panchayat, is placed under suspension from service with immediate effect 31.01.2011 until further orders. https://hcservices.ecourts.gov.in/hcservices/ 2 During the period of suspension, the said Thiru.N.Mahendran, fitter, Watrap Town Panchayat, will be paid subsistence allowance under F.R.53(1). The Head Quarters of the said Thiru.N.Mahendran, fitter, Watrap Town Panchayat, during the period of Suspension shall be watrap and the said Thiru.N.Mahendran, fitter, Watrap Town Panchayat, shall not leave the Head Quarters without obtaining the previous permission of the authority concerned." 2. Assailing the correctness of the impugned order, Mr.T.Lajapathi Roy, learned counsel for the petitioner submitted that the impugned order of suspension is wholly unwarranted, for the reason that a false case has been registered against the petitioner at the instance of a Councillor, who has misbehaved with the petitioner. It is the contention of the learned counsel that when the said person tried to attack the petitioner, he had only pushed him to avoid the blow and not committed any offences as alleged in Crime No. 18 of 2011 under Sections 307 and 506(ii) of IPC. It is his further submission that on investigation, an offence under Section 506(ii) of IPC alone has been made out and therefore, the Executive Officer of Watrap Town Panchayat, ought to have exercised its discretion to ascertain as to whether there is any need to place the petitioner under suspension. The issue as to whether the Government Servant has to a right to seek for retention in service, pending disposal of trial/investigation or contemplation of charges/pending enquiry into charges, and the power of authority to place the petitioner under suspension for any one of the grounds stated supra, in public interest has been extensively considered by this Court in R.Ravichandran v. Addl. Commr. Of Police, Chennai reported in 2010 CIJ 553 IPJ, wherein, paragraphs 81 to 88 & 91 reads as follows: 81. For the purpose of suspension, it is sufficient that the competent authority has arrived at a prima facie conclusion that the Government servant has committed a serious misconduct, which entails major penalties, like dismissal, removal or compulsory retirement, etc., from service. Illustrative cases, where action has to be taken immediately, are persons, involving in serious acts of misdemeanor, such as, (a) offence or conduct involving moral turpitude, (b) corruption, embezzlement or misappropriation of Government money, (c) possession of disproportionate assets, (d) misuse of official powers for personal gain, (e) serious negligence or dereliction of duty, (f) desertion of duty and (g) refusal or deliberate failure to carry out written orders of superior officers; (h) apprehension of tampering with witnesses or documents or likelihood of causing prejudice to an inquiry, investigation or trial; (j) likelihood of subversion of discipline in office; (k) involvement of scandals, and (l) likelihood of ultimate conviction out of departmental proceedings, and in all these illustrative cases, it is the matter of necessity and public interest, involved and therefore, it which must be left to the absolute discretion of the competent authority, with whom, the power is vested to suspend and that such discretion exercised in public interest https://hcservices.ecourts.gov.in/hcservices/ 3 should not be interfered with lightly. 82. When the criminality of the government servant is adjudicated before the Court of competent jurisdiction and when the Police, Vigilance and Anti-Corruption Department has launched prosecution or proposed to launch for imposing appropriate punishment under the penal laws, the appointing/disciplinary authority/government, should be allowed to exercise their discretion to place the government servant under suspension, which is a step in aid, to complete the investigation/trial. Courts have consistently held that even if the materials are not adequate for prosecution or even after acquittal, when the appointing/disciplinary authority/government is empowered to place the government servant under suspension, the power can be exercised on proper consideration of relevant materials, in public interest. 83. Once the objective consideration of the allegations, the material on record, warrants suspension, till the completion of enquiry or trial, in public interest, it is not for this Court to examine the nature of the allegations, the evidence and to record any finding thereon, which would hamper the progress of the departmental enquiry or investigation or trial against the government servant. 84. No doubt, the exercise of discretion, should be rational, should not be arbitrary and that there is also a legal duty cast upon the appointing/disciplinary authority/Government to apply its mind before exercising such discretionary power. However, when the government servant against whom, an enquiry into grave charges or an investigation into an offence or trial is pending and such charge/charges, involves moral turpitude, then the competent authority can exercise his discretionary power under Rule 17 of the Tamil Nadu Civil Service (Discipline and Appeal) Rules and place the government servant under suspension, pending enquiry into grave charges under contemplation into charges/enquiry into formulated charges/investigation/trial. 85. In this context, it is pertinent to extract the observations of Lord Denning, as found in Wade on Administrative Law, “The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means atleast this : the statutory body must be guided by relevant consideration and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted is good faith, nevertheless the decision will be set aside." https://hcservices.ecourts.gov.in/hcservices/ 4 86. The duty of the Court is restricted only to the limited extent to see that where the appointing/disciplinary authority has taken into consideration the nature of the charge, its complexity, the public interest involved in retaining the government servant, against whom, serious imputation of corruption, misappropriation, embezzlement, etc., are levelled and whether retention of such person, would be scandalous to the department or sub-serve the discipline in the department or affect the morale of other government servants. 87. The appointing/disciplinary, authority /government is entitled to exercise the control and maintain the master and servant relationship. To suspend an employee, as an interim measure for anyone of the reasons stated supra, which are illustrative, is the absolute right of an employer and no employee can insist that he must be allowed to be retained in service and discharge his duties and enjoy the fruits or privileges attached to the post. While testing the correctness of the order of suspension, all that has to be seen by the Court is whether the power of the appointing/disciplinary authority, in controlling the employees, has been exercised reasonably, without any mala fide and that there should not be any lack of jurisdiction. Any action taken by the appointing/disciplinary authority, in public interest to maintain a clean and honest administration, cannot be interfered with lightly. Even though the government servant is put to mental agony, it is only to the limited extent of restricting him from discharging his duties and enjoy other privileges attached to the post and it is only an interim measure, till he is cleared off of the imputations levelled against him. The suspension cannot be attacked on the ground that the facts stated therein are not correct. It is well settled that the High Court cannot delve into the factual details, while adjudicating the correctness of an administrative order. 88. The order of suspension for a misconduct, involving moral turpitude, in the instant case, alleged act of corruption and the further order, refusing to revoke the order of suspension, both being discretionary and administrative in nature, should not ordinarily be interfered with by the High Court under Article 226 of the Constitution of India. Allowing a person charged with serious acts of corruption or any other misconduct, involving moral turpitude, to discharge his duties and enjoy the fruits of the post, would be against a public policy and it would not be in public interest or to maintain a clean and effective administration. 91. It is the responsibility of the appointing/disciplinary, authority/government to take into consideration that other employees/servants of the https://hcservices.ecourts.gov.in/hcservices/ 5 department are not de-moralised and restoring the services of such person, in service, would be certainly deleterious to the efficiency of others. Powers exercised by the appointing/disciplinary authority in rejecting the request, cannot be said to be arbitrary. The appointing/disciplinary authority/government has to maintain honesty, good conduct, efficiency in administration and to keep away persons, facing serious charges." 3. Following the above decision, this Court, by an order, dated 01.11.2010, has dismissed a batch of Writ Petitions in W.P.(MD)Nos.10882 of 2009, etc., and the relevant portions of the above order made by Hon'ble Mr.Justice K.Chandru, are extracted hereunder: "15.Before proceeding to deal with the main case, it is seen from records that in this batch of writ petitions, in most of the writ petitions, interim stay has been granted on identical grounds . In that a reference was made to the judgment of this court in The State of Madras Vs. K.A.Joseph reported in AIR 1970 Madras 155. In that case, the respondent Joseph was placed under suspension pending contemplation of enquiry. Since suspension lasted for more than 10 months, he moved this court. This Court directed that charges should be framed within three months and if that was not done, he can again approach the court for redress. When no charges were framed by the competent authority, he filed another writ petition. This court while entertaining that writ petition, by an interim order revoked the suspension order. 16.An appeal was filed by the State in W.A.No.45 of 1969. The appeal was finally disposed of by a division bench of this court which came to be reported as AIR 1970 Madras 155. The short order contained only three paragraphs. In paragraph 1, the court dealt with the facts of the case, which is as follows: “.... It is sufficient for us to observe that a period of nearly ten months had elapsed since the Officer was first placed under suspension, and that, on an earlier representation, the Court directed that charges should be framed within three months, and that, if that was not done, the petitioner could approach the Court, again for redress, and, the outcome is the order from which the writ appeal is sought to be filed.” 17.Repelling the objections raised by the State regarding the power of judicial review over such order, in paragraph 2, it was observed as follows: “2....On the contrary, in our view there is a very clear and distinct principle of natural justice, that an Officer is entitled to ask, if he is suspended from his office because of grave averments or grave reports https://hcservices.ecourts.gov.in/hcservices/ 6 of misconduct, that the matter should be investigated with reasonable diligence, and that charges should be framed against him within a reasonable period of time.....” 18.When the Government Pleader in that case expressed his difficulty about the embarrassment if the Government servant resumed duty in the same place, the court moulded the relief in the following manner: “3.... The learned Government Pleader submits that there may be great difficulty in permitting the Officer to resume duties in the very post, when the performance of those duties by him in the past, had led to the imputation of grave irregularities, we are unable to see any real difficulty in the matter. We clarify the position by stating that it is open to the Government to permit the Officer to resume duty in that identical post, or, any post of equal grade and emoluments, which may be available for making an order of resumption of duty.” 19.It can be seen from the above case that there was initial disobedience of the order passed by this court in not framing the charges. Thereafter, the suspension was revoked. There was objection for restoration of service on the ground that this court has no jurisdiction to interfere with the suspension which was rejected. Thirdly when the embarrassment of restoration of a Government servant facing serious charges to the very same place was made, the court also directed his being posted to some other post in the very same status and salary. 20. From a reading of the very short judgment, it is clearly seen that the court was only concerned about the delay in framing of charges by the department. It did not deal with any case involving criminal prosecution that too on corruption charges. Secondly, the court gave an opportunity to the respondent to frame charges and not to be merely contended keeping a person under suspension. When that was not forthcoming and the order of the court was violated, the court revoked the suspension order, but also took care in granting liberty to the Government to post that person in some other place." 4. Reading of the impugned order makes it clear that a Crime No. 18 of 2011 under Sections307 and 506(ii) of IPC has been registered against the petitioner and that, he has been in judicial custody for quite some time. The contention that it was only a false case instigated by the Councillor and that he has committed any offence, is matter for evidence, in the trial and no adjudication can be done in writ proceedings under Sub- rule 1(a) of Tamilnadu Panchayat Establishment (Punishment & Appeal) Rules 1988 has been exercised taking into consideration the investigation into the crime alleged to have committed by the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 7 5. There is no infirmity or illegality in the impugned order passed for suspension. Hence, the Writ Petition is dismissed. Consequently, connected Miscellaneous Petition is also dismissed. No costs. SD ASST REGISTRAR ( RTI Act ) /TRUE COPY/ SUB ASST REGISTRAR vsg To 1. The District Collector Virudhunagar, Virudhunagar District 2. The Assistant Director of Town Panchayat Sivagangai Zone, Sivagangai 3. The Executive Officer Watrap Town Panchayat, Virudhunagar District 1CC TO MR. T. LAJAPATHI ROY, ADVOCATE,SR: 22481: DM::2011:JULY::13:: W.P.(MD).No.7634 of 2011 And M.P.(MD).No.1 of 2011 11.07.2011 7P:5C:: https://hcservices.ecourts.gov.in/hcservices/