IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.11.2011 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.14683 OF 2011 AND M.P.NO.1 OF 2011 G.Ganesan ... Petitioner VS. The Superintendent of Police Thiruvarur, Thiruvarur District. ... Respondent PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari, to call for the records of the respondent made in his proceedings in D.O.No.456/2010 C.No.C1/1120/2010 dated 21.05.2010 and quash the same. For Petitioner : Mr.C.P.Palanichamy For Respondent : Mr.V.Subbiah Special Government Pleader O R D E R The petitioner was working as a Head Constable at Thanjavur Medical College Police Station during 2007. A case was registered against him on 20.11.2007, in Crime No.495/2007 under Section 174 Cr.P.C., at Thanjavur South Police Station, in connection with the death of one Akilandeswari, in a room at Hotel Temple Tower, Thanjavur, on the night of 19.11.2007. An enquiry under PSO 151 was ordered on the suspicious death of Akilandeswari. The petitioner was placed under suspension by an order dated 21.11.2007 and the suspension order was issued under Rule 3(e)(1)(i) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 (shortly "the Rules"), wherein it is stated that a grave charge is contemplated against the petitioner in connection with an enquiry under PSO 151 on the incident of suicide committed by Akilandeswari. 2.It seems that at the time of issuance of the aforesaid https://hcservices.ecourts.gov.in/hcservices/ suspension order, the respondent thought of proceeding departmentally, that is why, it is stated that "a grave charge is contemplated" as the reason for placing him under suspension. 3.Rule 3(e)(1)(i) of the Rules provides for placing a person in Police subordinate service under suspension pending an enquiry into grave charges. Rule 3(e)(1)(ii) provides for placing the employee under suspension during the investigation or trial of a criminal offence, in the public interest. As stated above, the suspension order was contemplating departmental action. 4.While so, the suspension was revoked by the respondent by an order dated 18.07.2008 stating that the revocation was made without prejudice to the departmental action to be initiated based on the outcome of enquiry under PSO 151. Hence, it is clear that the earlier suspension was made under Rule 3(e)(1)(i) of the Rules, if the same is read along with the order revoking suspension. 5.The case pending on the file of the Thanjavur South Police Station in Crime No.495/2007 was transferred to the Crime Branch CID. The CBCID investigated the matter and filed charge sheet on 28.10.2009 against the petitioner and another police official under Sections 343, 306, 354, 409 read with 120(B) IPC and Section 4(B) of Tamil Nadu Prohibition of Harassment of Women Act 1998, before the Judicial Magistrate No.I, Thanjavur. 6.In the said circumstances, when the charge sheet was filed and the criminal case was proceeding further, the impugned suspension order dated 21.05.2010 was issued under Rule 3(e)(1)(ii) of the Rules. It is stated that the suspension was made as charge sheet was filed by the CBCID and the same is pending trial and the public interest warrants placing the petitioner under suspension. The petitioner has filed the present writ petition seeking to quash the suspension order dated 21.05.2010. 7.The respondent filed counter affidavit refuting the allegations made by the petitioner and has sought for dismissal of the writ petition. 8.Heard both sides. 9.The sole contention raised by the learned counsel for the petitioner is that since the suspension of the petitioner was revoked by the order dated 18.07.2008 without prejudice to the departmental action, the respondent has no power to place the petitioner under suspension again, before the conclusion of the departmental action or criminal proceedings. In this regard, the learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ petitioner relies on FR 54 (B)(6). In support of his contention, the learned counsel for the petitioner also relies on a decision of a learned single Judge of this Court in S.SETHUMANI MADHAVAN VS. THE INSPECTOR GENERAL OF POLICE in W.P.(MD) No.7178 of 2010 (decided on 30.06.2010). 10.On the other hand, the learned Special Government Pleader submits that there is no prohibition in Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 for placing the petitioner under suspension again, on the ground that charge sheet was filed in the criminal case and the trial was pending. It is stated that public interest requires to place the petitioner under suspension. According to him, FR 54(B)(6) has nothing to do with the power of the disciplinary authority to place an employee under suspension. According to him, FR 54(B) provides for as to how the period of suspension has to be ultimately treated after the disciplinary proceedings came to end one way or other. 11.The learned Special Government Pleader further submits that the Honourable Supreme Court has held that there is no prohibition for placing an employee under suspension again, either during departmental action or during the pendency of the criminal case, if at an earlier occasion the suspension was revoked. In support of his submission, he relies on the judgments of the Honourable Supreme Court in GOVERNMENT OF A.P. VS. V.SIVARAMAN [1990 (3) SCC 57] and STATE BANK OF INDIA AND ANOTHER VS. RATTAN SINGH [2000 (10) SCC 396]. 12.I have considered the submissions made on either side and perused the materials available on record. 13.Rule 3(e) of the Rules deals with the power of suspension during the pendency of the disciplinary action or criminal investigation or trial. Rule 3(e)(1)(i) and (ii) that is relevant for the purpose of this case, is extracted hereunder: "Rule 3(e)(1) – A member of 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 he is under trial and if such suspension is necessary in the public interest." Rule 3(e)(1)(i) of the Rules provides for placing an employee under suspension contemplating an enquiry into grave charges or pending an https://hcservices.ecourts.gov.in/hcservices/ enquiry into grave charges i.e., the suspension is relating to the departmental action. 14.In the present case on hand, the petitioner was earlier placed under suspension by an order dated 21.11.2007 invoking Rule 3(e) (1)(i) of the Rules. The relevant portion of the said order dated 21.11.2007 that gives the reason for suspension, is extracted hereunder: "Whereas a grave charge is contemplated against Thiru G.Ganesan, HC 946 of TMCH PS Thanjavur District, in connection with an enquiry under PSO 151 on the incident of suicide committed by one Tmt. Akilandeswari D/o.Veerai and W/o.Srinivasan, residing at New Ananda Nagar, Coimbatore – 41 in a room at Hotel Temple Tower Thanjavur on the night of 19.11.2007." Hence the order dated 21.11.2007 was issued under Rule 3(e)(1)(i) of the Rules. It is made clear that the same was for contemplating departmental action into grave charges. However, no charge memo was issued. Hence the respondent thought to revoke the suspension by an order dated 18.07.2008. While revoking the suspension, it is stated that the revocation was made without prejudice to the departmental action to be initiated against the petitioner. 15.The petitioner was placed under suspension by the order dated 21.11.2007 contemplating departmental action into grave charges in connection with the suicide committed by Ms.Akilandeswari at Hotel Temple Tower, Thanjavur, on the night of 19.11.2007. A case was registered on the file of Thanjavur South Police Station, in Crime No.495/2007, on 20.11.2007, under Section 174 Cr.P.C. Later, the investigation was transferred from Thanjavur South Police Station to Crime Branch CID. The CBCID, after investigation, filed charge sheet on 28.10.2009 against the petitioner and another police official under Sections 343, 306, 354, 409 read with 120(B) IPC and Section 4(B) of Tamil Nadu Prohibition of Harassment of Women Act 1998, before the Judicial Magistrate No.I, Thanjavur. The Director General of Police directed the respondent to initiate departmental action relating to the incident of death of Ms.Akilandeswari on the night of 19.11.2007, of which a criminal action was also pending. Pursuant to the same, the respondent issued a charge memo dated 15.11.2011 under Rule 3(b) of the Rules. 16.In the meantime, as stated above, a charge sheet was filed by the CBCID against the petitioner and another police official before the Judicial Magistrate No.I, Thanjavur making serious allegations. The criminal case is pending trial. In these circumstances, the impugned https://hcservices.ecourts.gov.in/hcservices/ suspension order dated 21.05.2010 was issued under Rule 3(e)(1)(ii) of the Rules. While the earlier suspension order was issued under Rule 3 (e)(1)(i) of the Rules, the subsequent suspension order was issued under Rule 3(e)(1)(ii) of the Rules. In my view, Rule 3(e) of the Rules nowhere places any fetter on the department to place the petitioner under suspension again, particularly when he is facing a serious criminal charge and the trial is pending before the Criminal Court. In fact, there is much delay on the part of the department in issuing the impugned order. That is, while the charge sheet was filed in the Criminal Court on 28.10.2009, the respondent thought of placing him under suspension after seven months, by the impugned order, stating that the criminal trial is pending pursuant to the filing of the charge sheet by the CBCID. 17.The contention of the learned counsel for the petitioner that there is a fetter on the power of the respondent to place the petitioner under suspension before the conclusion of the departmental or criminal proceedings, if once the suspension was revoked, has no basis. The reliance placed under FR 54(B)(6) has no substance. FR 54(B) is extracted hereunder: "54-B-1 (1)When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement on superannuation or compulsory retirement while under suspension, the authority competent to order reinstatement shall consider and make a specific order - (a)regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement on superannuation or compulsory retirement, as the case may be; and (b)whether or not the said period shall be treated as a period spent on duty. (2)Notwithstanding anything contained in rule 53, where a Government servant under suspension dies before the disciplinary or the court proceedings instituted against him are concluded, the period between the date of suspension and the date of death, shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid. https://hcservices.ecourts.gov.in/hcservices/ (3)Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of sub-rule (8), be paid the full pay and allowances to which he would have been entitled, had he not been suspended: Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation (within sixty days from the date on which the communication in this regard is served on him) and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine. (4)In a case failing under sub-rule (3), the period of suspension shall be treated as a period spent on duty for all purposes. (5)In cases other than those falling under sub- rules (2) and (3), the Government servant shall, subject to the provisions of sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection, within such period which, in no case shall exceed sixty days from the date on which the notice has been served, as may be specified in the notice. (6)Where suspension is revoked pending finalisation of the disciplinary or the court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (1), who shall make an order according to the provisions of sub-rule (5), as the case may be. https://hcservices.ecourts.gov.in/hcservices/ (7)In a case falling under sub-rule (5), the period of suspension shall not be treated as a period spent on duty unless the competent authority specifically directs that it shall be so treated for any specified purpose: Provided that if the Government servant so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant. Explanation.- The order of the competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of- (a) extraordinary leave in excess of six months in the case of a non-permanent Government servant; and (b) leave of any kind in excess of five years in the case of a permanent Government servant or an approved probationer. (8)The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible. (9)The amount determined under the proviso to sub- rule (3) or under sub-rule (5) shall not be less than the subsistence allowance and other allowances admissible under rule 53. 2.The grant of pay and allowances or a proportion of them under rule 54 or 54-A or 54-B does not cancel any officiating arrangements that may have been in force while the Government servant was under suspension or dismissal or removal or compulsory retirement. 3.In deciding whether any pay and allowances should be granted under rule 54 or 54-A or 54-B to a Government servant in temporary employ, the period for which the temporary has been sanctioned should be taken into consideration. (1)The cases of suspension during pendency of criminal proceedings or proceeding for arrest for debt or during detention under a law providing for https://hcservices.ecourts.gov.in/hcservices/ preventive detention, shall be dealt with in the following manner hereafter:- (a)A Government servant who is detained in custody under any law providing for preventive detention or as a result of a proceeding either on a criminal charge or for his arrest for debt shall, if the period of detention exceeds 48 hours and unless he is already under suspension, be deemed to be under suspension, from the date of detention until further orders as contemplated in the Tamil Nadu Civil Services (Discipline and Appeal) Rules. A Government servant who is undergoing a sentence of imprisonment shall also be dealt with in the same manner pending a decision on the disciplinary action to be taken against him; (b)A Government servant against whom a proceeding has been taken on a criminal charge but who is not actually detained in custody (e.g. a person released on bail) may be placed under suspension by an order of the competent authority under the Tamil Nadu Civil Services (Discipline and Appeal) Rules. If the charge is connected with the official position of the Government servant or involving any moral turpitude on his part, suspension shall be ordered under this rule unless there are exceptional reasons for not adopting this course; (c)A Government servant against whom a proceeding has been taken for his arrest for debt but who is not actually detained in custody may be placed under suspension by an order under the Tamil Nadu Civil Services (Discipline and Appeal) Rules, i.e., only if a disciplinary proceeding against him is contemplated; (d) When a Government servant who is deemed to be under suspension in the circumstances mentioned in clause (a) or who is suspended in the circumstances mentioned in clause (b) is reinstated without taking disciplinary proceedings against him, his pay and allowance for the period of suspension will be regulated under rule 54/54-B, i.e., in the event of his being acquitted of blame or if the proceeding taken against him was for his arrest for debt or its being proved that his liability arose from circumstance beyond his control or the detention being held by any competent authority to be wholly unjustified, the case https://hcservices.ecourts.gov.in/hcservices/ may be dealt with under rule 54(2)/54-B(3); otherwise it may be dealt with under rule 54(4)/54-B(5). 4.The headquarters of a Government servant under suspension is his last place or duty. A Government servant under suspension may change his headquarters provided the competent authority who has placed him under suspension is satisfied that such a course will not put Government to any extra expenditure like grant of travelling allowance. 5.A permanent post vacated by the dismissal, removal or compulsory retirement of a Government servant should not be filled substantively until the expiry of the period of one year from the date of such dismissal, removal or compulsory retirement as the case may be. Where, on the expiry of the period of one year, the permanent post is filled and the original incumbent of the post is reinstated thereafter, he should be accommodated against any post which may be substantively vacant in the grade to which his previous substantive post belonged. If there is no such vacant post he should be accommodated against a supernumerary post which should be created in this grade with proper sanction and with the stipulation that it would be terminated on the occurrence of the first substantive vacancy in that grade." 18.A close reading of FR 54(B) makes it very clear that the rule provides for regularisation of the period of suspension after the disciplinary action came to an end. The period of suspension was to be regulated as contemplated under FR 54(B)(6) after the departmental action or criminal action came to an end. In this case, neither the departmental action nor the criminal action came to an end. Therefore, the invocation of FR 54(B)(6) could not arise at this stage. Furthermore, as rightly contended by the learned Special Government Pleader, while revoking the earlier suspension, it was done without prejudice to the departmental action. Since a charge memo was issued during November 2011, the department could very well even place under suspension again, invoking Rule 3(e)(1)(i) of the Rules and there is no prohibition for placing the petitioner under suspension again after the issuance of the charge sheet in the departmental enquiry. However, in this case, the suspension is pending criminal action under Rule 3(e)(1) (ii) of the Rules. 19.The judgment of the Honourable Supreme Court in STATE BANK OF INDIA AND ANOTHER VS. RATTAN SINGH [2000 (10) SCC 396] relied on by https://hcservices.ecourts.gov.in/hcservices/ the learned Special Government Pleader supports the submissions made by the learned Special Government Pleader. Para 6 of the said judgment is extracted hereunder: "6.Therefore, the suspension of the respondent by the order of 23-7-1993 can be considered as both under para 521(10)(b) as also under para 521(2)(a), since at the relevant time, both a departmental enquiry as well as a criminal prosecution were under contemplation. Thereafter in view of the pendency of the criminal prosecution, the appellant did not initiate a departmental enquiry. The order of suspension, therefore cannot be faulted looking to the provisions set out above. When a criminal prosecution on serious charges is pending against the respondent, the Bank is entitled to suspend him. In this connection, our attention has been drawn to a decision of this Court in the case of Allahabad Bank v. Deepak Kumar Bhola where this Court said that where CBI had conducted an investigation resulting in the filing of a charge- sheet, this was sufficient for the appellant to conclude that recourse had to be taken to clause 19.3 to suspend the respondent. The mere fact of 10 years having elapsed was no ground to allow him to come back to a sensitive post unless he was exonerated. In the case of Punjab National Bank v. Jagdish Singh (a decision to which one of us was a party), it was held that when a bank employee is being prosecuted, the bank has the power to suspend the employee under the Bipartite Settlement clauses 19.3(a) and 19.12(b). Clause 19.3(a) is similar to para 521(2)(a). The Division Bench of the High Court, therefore, was not right in setting aside the order of suspension." 20.The other judgment of the Honourable Supreme Court in GOVERNMENT OF A.P. VS. V.SIVARAMAN [1990 (3) SCC 57] could also be applied to the case on hand. Para 4 of the said judgment is relevant and the same is extracted hereunder: "4.The case of the respondent before the Tribunal was that the suspension order dated March 21, 1988 was served on him on April 6, 1988 and it could be operative only for 6 months i.e. up to October 6, 1988. The government has not reviewed his suspension nor continued by a fresh order and as such he should be deemed to be in service from October 6, 1988. The Tribunal has accepted that case with an observation: https://hcservices.ecourts.gov.in/hcservices/ “Failure on the part of the government to review the order within six months period as required under Instruction 18 in Appendix VI to the APCS (CCA) Rules rendered the suspension order non est after six months. The government has limited powers to extend the suspension period but that has to be done during the period of suspension being in force and any order issued subsequent to the expiry of six months cannot have retrospective effect since the rule does not permit for extending suspension with retrospective effect.” Before us, counsel for the State contended and in our opinion very rightly that the view taken by the Tribunal is plainly erroneous and unsustainable. First, the government instructions on which the Tribunal rested its conclusion, do not seem to have any statutory force; second the order of suspension after a period of six months would not become non est giving an automatic right to reinstatement in service. Our attention has not been invited to any provision of law conferring such right on a government servant who has been placed under suspension pending enquiry of a case against him. Where the rules provide for suspending a civil servant and require thereof to report the matter to the government giving out reasons for not completing the investigation or enquiry within six months, it would be for the government to review the case but it does not mean that the suspension beyond six months becomes automatically invalid or non est. The only duty enjoined by such a rule is that the officer who made the order of suspension must make a report to the government and it would be for the government to review the facts and circumstances of the case to make a proper order. It is open to the government to make an order revoking the order of suspension or further continuing the suspension. The order of suspension however, continues until it is revoked in accordance with the law. In the present case, on December 6, 1988, the government has made the order as follows: “Government have examined the case of Sri V. Sivaraman, Assistant Labour Officer, https://hcservices.ecourts.gov.in/hcservices/ Nellore, who is under suspension pending finalisation of the ACB case against him and have decided that he shall continue to be under suspension in public interest. The next review will be taken up at the end of six months from the date of issue of this memo or until the finalisation of the ACB case against him, whichever is earlier.” 21.The judgment relied on by the learned counsel for the