1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.8429 of 2011 R.Sundaram ... Petitioner -Vs- Revenue Divisional Officer Thanjavur Thanjavur District ... Respondent PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Mandamus directing the respondent to consider the representation given by the petitioner dated 11.07.2011. For Petitioner : Mr.K.Samidurai For Respondent : Mr.B.Pugalenthi Special Government Pleader O R D E R The impugned order of suspension, dated 17.03.2011 reads as follows:- "Whereas Thiru. R.Sundaram, Village Administrative Officer, Nallichery Village holding additional charge Village for Puliyanthoppu Village, Thanjavur Taluk and District was trapped and arrested on 16.03.2011 by the Deputy Superintendent of Police Vigilance and Anti-Corruption Thanjavur for alleged demand and acceptance of bribe amount of Rs.4,500/- from the complainant Thiru. Tr.G.Karthikeyan, S/o.Govindaraj, No.49, Rajarajan Nagar, Mariyammankoil Post, Thanjavur, for recommending three Joint Patta transfer orders for his purchased house site 2400 sq.ft in Gnanam Rajarajan Nagar Plot No. 49, his sister M.Indiragandhi's plot in Gnanam Rajarajan Nagar Plot No. 64 and his friend G.Ravichandran's plot in Gnanam Rajarajan Nagar Plot No.143 Pulianthoppu Village, Thanjavur. 2) And, whereas a case in Thanjavur Vigilance and Anti Corruption Cr.No.2/2011 U/s. 7, 13(2) r/w 13(1)(d) of PC Act 1988 dated 16.03.2011 of prevention at Corruption Act 1988, has been registered against the said Thiru.Sundaram. 3) And, the Complaint against Thiru. R.Sundaram, Village Administrative Officer, Nallichery Village holding additional charge for Puliyanthoppu Village Thanjavur Taluk of a criminal offence is under investigation. https://hcservices.ecourts.gov.in/hcservices/ 2 4) And, whereas in the circumstances of the case, it is necessary in the public interest to place the said Thiru.R.Sundaram, Village Administrative Officer, Nallichery Village holding additional charge for Puliyanthoppu Village, Thanjavur Taluk is under suspension from service. 5) Now, therefore under sub rule (e) of Rule 17 of the Tamil Nadu Civil Service (Discipline and Appeal) Rules the said Thiru R.Sundaram, village Administrative Officer, Nallichery Village holding additional charge for Puliyanthoppu Village Thanjavur Taluk is placed under suspension from service from the afternoon of 16.03.2011 until further orders. 6) During the period of suspension, the said Thiru R.Sundaram, Village Administrative Officer, Nallichery Village holding additional charge for Puliyanthoppu Village, Thanjavur Taluk will be paid subsistence allowance and Dearness allowance admissible under F.R.53(i) 7) The Head Quarters of the said Thiru R.Sundaram, Village Aministrative Officer, Nallichery Village holding additional charge for Puliyanthoppu Village Thanjavur Taluk during the period of suspension shall be the No.62, Abiramapuram, Municipal Colony, Thanajvur and the said Thiru.R.Sundaram shall not leave the Headquarters without obtaining the prior permission of the authority concerned." 2. Claiming that the petitioner has got a right to seek for review of the suspension order, he has made a representation, dated 11.07.2011, to the Revenue Divisional Officer, Thanjavur, Thanjavur District. 3. In R.Ravichandran v. Addl. Commr. Of Police, Chennai reported in 2010 CIJ 553 IPJ, while testing the correctness of an order of suspension invoked for the involvement of the petitioner therein for offences under the Prevention of Corruption Act, this Court framed the following issues for consideration: (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 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 case? (iii) What is the right of a government servant during the period of suspension pending enquiry into the charges, under contemplation / pending investigation / trial? https://hcservices.ecourts.gov.in/hcservices/ 3 (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? 4. While answering the above issues, at Paragraphs 78 to 91, this Court has held as follows: "78. .................................. When the misconduct of the government servant attracts criminal liability, for which, penal laws provide for severe punishments, like sentencing to rigorous imprisonment, the period depending upon the gravity of the offence, like in the instant case, imprisonment for a maximum period of 7 years, besides fine or both, it should be left to the absolute discretion of the appointing/disciplinary authority/government to place a government servant under suspension, pending investigation/trial. Persons involved in serious charges of corruption, embezzlement, misappropriation of government funds or crimes attracting severe punishments cannot be equated with others, discharging their duties honestly. Courts should not obstruct the powers of the appointing/disciplinary, authority/government, from forbidding such persons from discharging their duties, atleast till the trial is over. In M.K.Dange v. Chairman-cum-Managing Director, Oil and Natural Gaz Corporation reported in 2006 (2) MLJ 34, has held that even after acquittal, suspension does not automatically come to an end, until the order is revoked by the authorities. 79. ----------. It should be noted that persons with criminal antecedents are not even inducted in service. They are prevented entry into government servant and police verification of antecedents helps the employer for this purpose. While that be the settled position, a government servant, after entering into service, faces trial for grave offences, should be kept out of the sphere of activities, with reference to discharge of duties and privileges attached to the post, pending trial. The provisions of Prevention of Corruption Act and the powers conferred on the authorities to place him under suspension are intended to maintain clear administration and in public interest and in such https://hcservices.ecourts.gov.in/hcservices/ 4 circumstances, there is no question of considering the private interest, of the government servant, which is temporarily deprived of his duties. 80. No Government servant, particularly a person charged with a misconduct of corruption, has right to insist that he should be retained in service and allowed to discharge his duties and enjoy the privileges of the post held by him, during the pendency of the enquiry into grave charges or trial, involving moral turpitude and it is the absolute discretion of the appointing/disciplinary authority or the Government to suspend such government servant from discharging the duties attached to the post and to forbid him from exercising the privileges, except to the extent of payment of salary, regulated in the Statute or rules, applicable to the case of such Government servant. 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 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 https://hcservices.ecourts.gov.in/hcservices/ 5 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." 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 https://hcservices.ecourts.gov.in/hcservices/ 6 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. 89. Cases involving serious charges of corruption and misappropriation of money, certainly involve moral turpitude, where there is implied depravity and villiness of character. As rightly observed by the Supreme Court, by allowing a government servant, facing serious charges of corruption or misappropriation or embezzlement, etc., to be retained in service, public interest would be affected. Allowing such persons to be retained in service, in my view, would give a signal to the erring government servants that if the trial is not taken up, for sometime, then the order of suspension would be revoked automatically. A person charged with a serious offence of corruption, for which, punishment may even extend to 10 years, cannot at any stretch of imagination, be inducted or retained in the department, pending disposal of the trial, as the very conduct, reputation of the person is questionable. 90. In the case on hand, powers exercised in good faith and for legitimate reasons in public interest and social interest and to effectuate the purpose for which it is conferred on the authorities, cannot be said to have been exercised arbitrarily. Courts being the custodian of law should not interfere with the orders of suspension, in the case of corruption, embezzlement or misappropriation of government money and retention of such persons would pollute and contaminate the department. The effect of retention of such persons in service, pending trial would demoralise the other government servants, frustrate the object of Prevention of Corruption Act. Therefore, the action of the respondent, in keeping such government servant away from the sphere of his activities, no matter whether the trial is prolonged for a considerable time, cannot clothe any right to seek for retention in service. Though Courts are designated exclusively for the purpose of dealing with corruption cases, for so many reasons, sometimes not bona https://hcservices.ecourts.gov.in/hcservices/ 7 fide, they are delayed. No doubt, pendency of the trial for an offence under the Prevention of Corruption Act, causes agony and humiliation, but it is always open to the government servant to approach the Court, seeking for early disposal of the trial. 91. It is the responsibility of the appointing/disciplinary, authority/government to take into consideration that other employees/servants of the 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." 5. The above decision has been further elaborated by Brother Hon'ble Mr.Justice K.Chandru, by an order, dated 01.11.2010, wherein the learned Judge has dismissed a batch of Writ Petitions in W.P.(MD)Nos.10882 of 2009, etc., and the relevant portions of the above order 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 of misconduct, that the matter should be investigated https://hcservices.ecourts.gov.in/hcservices/ 8 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." 6. The above referred judgment has been taken on appeal and that the same was confirmed in W.A.(MD)No.84 of 2011, dated 21.01.2011. 7. In C.Balasubramanian v. The Commissioner, Tiruchirappalli Corporation reported in 2011 (1) CWC 319, wherein a Division Bench of this Court declined to interfere with the order of suspension, passed against the appellant therein, who indulged in corrupt practices and facing criminal trial, under the Prevention of Corruption Act. 8. In a recent decision of Hon'ble Mr.Justice N. Paul Vasanthakumar, in E.S.Mathiyan v. The Joint Director of Medical and Rural Health Services and Family Welfare reported in 2011 (2) LLN 782 (Mad), has considered the correctness of an order of suspension, passed under Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, pending investigation into a criminal case, registered under Section 392 IPC. After considering a catena of decisions and the Division Bench judgment made in W.A.(MD)No.84 of 2011, dated 21.01.2011, stated supra the learned Judge has held that https://hcservices.ecourts.gov.in/hcservices/ 9 the impugned order of suspension cannot be quashed. It is worthwhile to extract the decisions, referred to by the learned Judge. "(i) A Division Bench of this Court considered Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules in W.A.No.1114 of 2007 (the Secretary to Government of Tamil Nadu and others v. N.Shanmugasundaram) and by Judgment dated 5.11.2007 upheld the order of suspension pending investigation/trial of criminal offence. (ii) A Division Bench of this Court in the case of M.Rajammal v. Principal District Judge reported in 2009 (4) MLJ 212 held that Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, contemplates that a member of a service may be placed under suspension from service, where an enquiry into grave charges against him is contemplated, or is pending or a complaint against him or any criminal offence is under investigation or trial and if such suspension is necessary in the public interest. In the said Judgment, the decisions of the Supreme Court in Hotel Imperial v. Hotel Workers' Union reported in AIR 1959 SC 1342 : 1959 II LLJ 544 and in R.P.Kapur v. Union of India reported in AIR 1964 SC 787 : 1966 II LLJ 164 were followed and upheld the similar order of suspension. (iii) In W.A.No.1818 of 2009, dated 15.12.2009, a Division Bench of this Court in the case of S.Jeevanantham vs. the Government of Tamil Nadu and others considered an identical issue and confirmed the order of a learned Single Judge dismissing the Writ Petition, which was filed challenging the order of suspension. (iv) Suspension orders were also upheld in the case of D.Gnanasekaran v. Chief Educational Officer reported in 2007 (1) MLJ 457 and in the case of S.Jeyasingh Rajan v. President, Kalloorani Panchayat reported in 2006 (4) MLJ 59. (v) The Supreme Court in the case of Allahabad Bank and another vs. Deepak Kumar Bhola reported in 1997 (4) SCC 1, upheld the order of suspension of a bank employee, who was facing a criminal offence involving in moral turpitude. In the said Judgment, the order of the Allahabad High Court, quashing the order of suspension was set aside and the appeal filed by the bank was allowed. (vi) The Supreme Court in the decisions in R.P.Kapoor v. Union of India reported in AIR 1964 SC 787l; Balwantray Ratilal Patel v. State of Maharastra reported in AIR 1968 SC 800; A.K.K.Nambiar