1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:28.06.2011 CORAM: THE HONOURABLE MR.JUSTICE K.VENKATARAMAN W.P.(MD).No.5975 of 2011 and M.P.(MD)No.1 of 2011 Dr.B.Karanchandra Mohan Prasath, Professor & Head of the Department of Surgical Oncology, Madurai Medical College & Government Rajaji Hospital, Madurai. : Petitioner Vs. 1.The State of Tamil Nadu, Rep. by its Principal Secretary to Government, Health & Family Welfare Department, Fort St. George, Chennai-600 009. 2.The Director of Medical Education, Kilpauk, Chennai-600 010. 3.The Dean, Madurai Medical College, Madurai-625 020. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order issued by the first respondent placing the petitioner under suspension in G.O.(D)No.522, Health & Family Welfare (I-II) Department, dated 25.05.2011 and consequential order issued by the first respondent in not allowing the petitioner to retire from service on petitioner is superannuation, in G.O.(D)No.538, Health & Family Welfare (I-II) Department, dated 31.05.2011 and quash the same and consequently, to direct the respondents to permit the petitioner to retire from service on superannuation on 31.05.2011 and pay retirement benefits thereon. For Petitioner : Mr.M.Ajmal Khan For Respondents : Mr.T.S.Mohammed Mohideen Additional Government Pleader O R D E R ****** Challenging the impugned order of the first respondent dated 25.05.2011, an order of suspension and the further order dated 31.05.2011, retaining the petitioner in service, the present Writ Petition has been filed. https://hcservices.ecourts.gov.in/hcservices/ 2 2. The short matrix of the matter is set out hereunder: The petitioner originally was recruited as Assistant Surgeon through the Tamil Nadu Public Service Commission and was appointed as such on 11.04.1979. He was promoted as Senior Civil Surgeon on 09.01.1998. He has worked as Professor and Head of the Department of Surgical Oncology, Madurai Medical College and Government Rajaji Hospital, Madurai, without any adverse remarks. He has to retire on 31.05.2011 on attaining the age of superannuation. At that point of time, the impugned order of suspension as well as the order retaining him in service were passed. Challenging those orders, the present Writ petition has been filed. 3. The learned counsel appearing for the petitioner contended that the impugned order of suspension as well as the other order retaining the petitioner in service are liable to be set aside on the following grounds: (i) that the order of suspension reveals that the petitioner has been placed under suspension on an enquiry on grave allegations against him under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules [hereinafter referred to as "the Rules"] are pending. On pendency of grave allegations, according to the learned counsel appearing for the petitioner, the petitioner cannot be placed under suspension. Rule 17(b) do not contemplate such reason for placing the petitioner under suspension, is the contention of the learned counsel appearing for the petitioner. (ii) that the petitioner was not issued with any charge memo, except a letter dated 30.04.2010 addressed by the Inspector of Police, Vigilance and Anti-Corruption, for which, explanation was submitted by the petitioner on 06.05.2010 itself. Thereafter, no criminal proceedings were initiated against the petitioner till date. (iii) that the petitioner was not issued with any charge memo as on date. (iv) that the order of suspension was passed on the ground, which does not exist on the date of the order; and (v) that when a statutory authority makes an order based on certain grounds, its validity must be judged by the reasons so mentioned in the shape of the affidavits or otherwise, but, however, the same cannot be imputed at a later stage. 4. The learned counsel also relied on some decisions to support his case. The decisions are, (i) Deenadayalan v. Dy. Inspector General of Police reported in 1988 (1) MLJ 25; (ii) Union of India v. K.v.Jankiraman reported in AIR 1991 SC 2010; (iii) Mohinder Singh v. Chief Election Commr. reported in AIR 1978 SC 851; (iv) D.R.P.Sundharam v. Canara Bank, rep. by its Executive Director reported in CDJ 2008 MHC 113; and (v) Somesh Tiwari v. U.O.I. reported in 2009(3) MLJ 727(SC). 5. However, the learned Additional Government Pleader appearing for the respondents strenuously contended that the order of suspension came to be passed against the petitioner, in view of certain allegations made against the petitioner. Hence, according to the learned Additional Government Pleader, on such ground, the petitioner could be placed under suspension. He also contended that under Rule 17(b), the petitioner could https://hcservices.ecourts.gov.in/hcservices/ 3 be placed under suspension on the ground that certain allegations, which are grave in nature, against the petitioner, are pending against him. 6. On the basis of the above pleadings, I have heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents. 7. Before adverting to the rival contentions made by the learned counsel appearing for the petitioner as well as the learned Additional Government Pleader appearing for the respondents, it would be useful to extract the relevant portion of the order of suspension passed by the first respondent, which is extracted hereunder: "WHEREAS, an inquiry on grave allegations against Dr.B.Karam Chandra Mohan Prasad, Professor and Head of the Department of Surgical Oncology, Madurai Medical College and Government Rajaji Hospital, Madurai, under rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules are pending." 8. The above extracted portion of the impugned order of suspension reveals that the petitioner has been placed under suspension on the ground that an enquiry on grave allegations against him are pending and hence, the petitioner has been placed under suspension invoking Rule 17(b) of the Rules. 9. The question that has arisen for consideration is whether a Government employee could be placed under suspension on an enquiry on grave allegations are pending against him, invoking Rule 17(b) of the Rules. In order to appreciate the said contention, it would be useful to extract rule 17(e) of the Rules, which is extracted hereunder: "17(e)(1) A member of a service may be placed under suspension from service, where- (i) an enquiry into grave charges against him is contemplated, or is pending; or (ii) a complaint against him of any criminal offence is under investigation or trial and if such suspension is necessary in the public interest." 10. The said rule contemplates that a member of service may be placed under suspension from service, if an enquiry into grave charges against him is contemplated or is pending. It does not envisage keeping a member of service under suspension, where an enquiry into grave allegations against him are pending. The impugned order of suspension has been passed on the ground that an enquiry into grave allegations are pending against him. The same is not contemplated under Rule 17(e) of the Rules. 11. That apart, whether initiation of disciplinary proceedings means that charge memo should be pending against the particular officer was a question came up for consideration before this Court. In the judgment in D.R.P.Sundharam's case cited supra, I have considered the said point and I have held that the initiation of disciplinary proceedings means that the charge memo should be pending, before the petitioner attains the age of superannuation. In the case on hand, it is https://hcservices.ecourts.gov.in/hcservices/ 4 not the case of the respondents that the charge memo has been issued to the petitioner and the petitioner has been called upon to answer to the charges. It is not even stated in the impugned order of suspension that the charge memo has been issued to the petitioner and the same is pending against the petitioner. In Union of India v. K.V.Jankiraman reported in AIR 1991 SC 2010, the Hon'ble Apex Court has taken the view that the pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. Paragraph No.6 of the order made thereunder is usefully extracted hereunder: "6. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned Counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows:. (1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official; (2) ... (3) ... (4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before;" https://hcservices.ecourts.gov.in/hcservices/ 5 There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions. We, therefore, repel the challenge of the appellant- authorities to the said finding of the Full Bench of the Tribunal." 12. In the given case on hand, the petitioner was served with a letter dated 30.04.2010 of the Inspector of Police, Vigilance and Anti- Corruption alleging possession of properties/pecuniary resources disproportionate to his known sources of income. The petitioner has offered his explanation as early as on 06.05.2010. So far, no criminal proceedings have been initiated against the petitioner, even though more than one year has lapsed. 13. One more aspect that has to be seen is that the Dean of Madurai Medical College, Madurai, addressed a letter to the Director of Medical Education, Kilpauk, Chennai, stating that the petitioner is due to retire on 31.05.2011 on attaining the age of superannuation and that he is furnishing No Due Certificate from various departments. He has also certified that no disciplinary case is pending against him and no Government money is to be recovered from him. Further, he has stated that no audit objection is pending against the petitioner at the said institution. That apart, he has requested the Director of Medical Education to obtain necessary Government order for permission to retire the petitioner from service and relieve him from duties on and afternoon of 31.05.2011. This will go a long way to show that the petitioner has not been issued with any charge memo and that no disciplinary proceedings are pending against him. If really the Vigilance and Anti Corruption was intending to take action against the petitioner, on the basis of the discreet enquiry said to have been made against the petitioner, criminal proceedings ought to have taken against the petitioner at the earliest and cannot wait till the petitioner attains the age of superannuation. 14. The learned counsel appearing for the petitioner relied on a decision in Deenadayalan v. Dy. Inspector General of Police reported in 1988(1) MLJ 25, for the proposition that at the time of passing the impugned order of suspension, the charge memo should have been issued to the petitioner and an enquiry should be pending, relating to the pendency of the charge memo. It would be useful to extract paragraph Nos.6,7,11 and 12 of the order made thereunder, which are extracted hereunder: 6. Sathiadev, J., in S. Vasudevan v. The Government of Tamil Nadu, Rep., By Its Secretary, Home Department W.P. Nos. 304, 390 of 1982, order dated 7.12.1982, dealt with a case under Rule 17(a)(1)(i) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, hereinafter referred to as Tamil Nadu Civil Services Rules, where a servant was placed under suspension, pending further enquiry https://hcservices.ecourts.gov.in/hcservices/ 6 into grave charges against him. The learned Judge found that at the time of the passing of the impugned order of suspension there only a charge memorandum had been issued and the enquiry was yet to begin and hence no enquiry was pending against the servant relating to grave charges against him, as claimed in the impugned order of suspension. An attempt was made on behalf of the authorities to state that the impugned order of suspension must be read to mean an enquiry into grave charges was contemplated against the petitioner so as to sustain it within the language of Rule 17(a)(1)(i) of the Tamil Nadu Civil Services Rules. The learned Judge repelled the argument put forth on behalf of the authorities in the following terms: "Learned Advocate-General contends that what was intended by the impugned CO., was that, an enquiry into grave charges was 'contemplated' against the petitioner, though in fact it was not pending. Issuing a charge memo would not mean enquiry is pending. if explanation called for and submitted, is found to be satisfactory, then enquiry would not be ordered. Hence, stage of holding an enquiry had not reached. Rule 17(a)(1) and (ii), has not allowed such vagaries to exist, is being specific that there are two different categories viz., (1) where an enquiry into grave charges is contemplated and (2) where an enquiry is pending. Whenever an order of suspension is passed in public interest, without exception, Government had always insisted that those orders are to be strictly construed confining only to the words used in the order. Even otherwise, there cannot be ambiguity when the order is passed by Home Department in disciplinary matters, unlike orders by subordinate disciplinary authorities. The claim of 'public interest' would depend upon the correctness or claims made on these aspects. Without even looking into records, this expression had been mechanically used. It is now shown that due and required care had not been taken, while passing the order. There being considerable difference between an 'enquiry pending' and 'enquiry being contemplated', Government cannot be heard to plead that, even though it may claim that an enquiry is contemplated, to get over the lapse committed by its officers. At least when such G.Os. are passed, what is stated therein will have to be understood in the manner in which it has been expressed particularly, when the rule itself contemplating different situation. Hence, on the date of the order, when 'no enquiry was pending' against the petitioner into grave charges, the first error apparent on the face of the order having occasioned, the impugned order deserves to be set aside." We could see from the above extract, learned Judge held that by the mere issuing of a charge memorandum, enquiry could not be stated to be pending and if explanation called for an submitted is found to be satisfactory, then enquiry would not be ordered. As already noted, framing of grave charges, need not necessarily and always culminate in the holding of an enquiry. Even after framing of grave charges, enquiry into the same can remain in contemplation, to be dropped in appropriate cases. If enquiry is commenced after the grave charges are framed, that https://hcservices.ecourts.gov.in/hcservices/ 7 will be a case of enquiry into grave charges pending so as to enable-the authority to invoke the latter part of Rule 3(a)(1) (i) to suspend the member of the service. When enquiry into grave charges framed is in contemplation, the earlier part of Rule 3(a)(1)(i) can be availed of to suspend the member of the service. In that case, Sathiadev, J., struck down the order of suspension, since it exposed total lack of application of mind when it made the wrong statement that an enquiry was pending. The order of suspension in that case was impugned in W.P. No. 390 of 1982. W.P. No. 304 of 1982 was to quash the charge memorandum and W.P. No. 391 of 1982 was filed for a MANDAMUS to the authority concerned to consider the servant for promotion. The learned Judge allowed all the three writ petitions on 7.12.1982. The common order of the learned Judge was taken on appeals. A Bench of this Court, consisting of Ramanujam and Ratnam, JJ. dealt with the appeals in The Government of Tamil Nadu v. S. Vasudevan 1984 L.I.C. 1875, and the appeal, preferred by the State as against the order in W.P. No. 390 of 1982 quashing the suspension, was dismissed, and on the reasons countenanced by Sathiadev, J., but on a different ground. The Bench had no occasion to touch, differ from or upset the reasonings expressed by Sathiadev, J., in his common order. 7. In A. Antony v. The Commissioner of Forests, Vellore and Anr. W.P. No. 9733 of 1987, order dated 3.11.1987, I had occasion to deal with an order of suspension passed under Rule 17(a)(1)(i) of the Tamil Nadu Civil Services Rules on the ground that an enquiry into grave charges is contemplated, and on the date of the order of suspension there had been no charge formulated. The order of suspension was held to be not sustainable and it was set aside by Venkataswami, J., in similar contingencies, of course, dealing with petitions for stay in J. Venkataraman and Anr. v. The Government of Tamil Nadu Rep., By Its Commissioner and Secretary, Home (Transport) Department, Madras-9 and Anr., W.M.P. Nos. 18178 and 18179 of 1987 in W.P. Nos. 12349 and 12340 of 1987. Order dated 13.1.1988, followed the view in A. Antony v. The Conservator of Forests, Vellore and Anr. W.P. No. 9733 of 1987, Order dated 3.11.1987. 8................... 9................... 10................. 11. Two aspects mainly weigh with me to frown upon the impugned order of suspension in the present case. One is the plain and unambiguous language of Rule 3(e)(1)(i) of the Rules. The other is the rule of interpretation that should guide the Court with regard to expressions occurring in the very same Rule. Words are generally used in the same sense throughout in a statute unless there is something repugnant in the context. Same word in a particular provision should bear the same meaning in both the places unless there is something in the context to the contrary. The reference to 'charges' in Sub-rule (e)(1)(i) of Rule 3, after Sub -rule (b)(i), which speaks about the reduction of the grounds on which It is proposed to take action to the form of definite charge or charges, is significant. https://hcservices.ecourts.gov.in/hcservices/ 8 Hence, the expression 'charges' occurring in Sub-rule (e)(1)(i) of Rule 3 must be given the same connotation given to 'charges' in Sub-rule (b) (i) of Rule 3. There is nothing repugnant in the context to impel the Court to give a different meaning to the expression 'charges' occurring in Rule 3 in different places. 12. The reasons expressed above oblige me. to interfere in writ powers to quash the impugned order of suspension. The said reasons relate to the first contention advanced by the learned Counsel for the petitioner. I must also place on record the other contentions advanced by the learned Counsel for the petitioner, coveting quashing of the impugned order of suspension........." 15. The said judgment makes it very clear that unless otherwise the petitioner was issued with a charge memo and an enquiry into the same is pending, a Government servant cannot be placed under suspension. In the case on hand, as stated already, it is not even the case of the respondents that the petitioner was issued with a charge memo and the same is pending against the petitioner. 16. Yet another submission that was made by the learned counsel appearing for the petitioner is that the order of transfer would attract the principles of malice in law, since it was passed not based on any factor germane and it was wholly on the basis of irrelevant grounds. In order to support his contention, the learned counsel relied on a decision in Somesh Tiwari v. U.O.I. reported in 2009(3) MLJ 727(SC). Paragraph Nos.19,20 and 25 of the order made thereunder are usefully extracted hereunder: "19. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. 20.The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal. 21.............. 22.............. 23.............. 24.............. 25. No vigilance enquiry was initiated against him. The order of transfer was passed on material which was not existent. The order, therefore, not only suffers from total non application of mind on the part of authorities of respondent No. 1, but also suffers from malice in law." https://hcservices.ecourts.gov.in/hcservices/ 9 17. Though that is a case relating to an order of transfer, the principle that has been evolved by the Hon'ble Apex Court is that any order passed would attract the principles of malice in law, if it was not based on any factor germane for passing the said order and based on irrelevant grounds. Further, it has been held by the Hon'ble Apex Court that in the said decision, no vigilance enquiry was pending against the petitioner thereon and the order of transfer was passed on material which was not in existence at that point of time. Therefore, the Hon'ble Apex Court has held that the said order of transfer suffers from the total non application of mind on the part of the authority, who has passed the order. 18. Yet another decision relied on by the learned counsel appearing for the petitioner is Mohinder Singh v. Chief Election Commr. reported in AIR 1978 SC 851.