1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.08.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.9861 of 2011 N.Chitrasenan : Petitioner Vs. 1.The District Collector, Dindigul District, Dindigul. 2.The Block Development Officer, Kodaikkanal Panchayat Union, Kodaikkanal, Dindigul District. 3.The President, Vellakavi Panchayat, Vellakavi, Kodaikkanal Taluk, Dindigul District. 4.P.Ganapathy, President, Vellakavi Panchayat, Vellakavi, Kodaikkanal Taluk, Dindigul District. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned memorandum of the first respondent in Na.Ka.No.173/2011/C.t.4, dated 14.07.2011 and quash the same and consequently, direct the respondents 1 to 3 to reinstate the petitioner with continuity of service with all consequential benefits. For Petitioner : Mr.G.R.Swaminathan For Respondents 1&2 : Mr.S.Chandrasekar Government Advocate ORDER Seeking to quash the order dated 14.07.2011, of the District Collector, Dindigul District, Dindigul, the first respondent herein, rejecting the request of the petitioner to reinstate him in service, the Writ Petition has been filed. https://hcservices.ecourts.gov.in/hcservices/ 2 2. Assailing the correctness of the order, Mr.G.R.Swaminathan, learned counsel for the petitioner submitted that the petitioner was appointed as a Part Time Clerk in the third respondent Panchayat. As there were certain malpractices committed in respect of Panchayat funds, the petitioner made a specific complaint against the President of the third respondent Panchayat on 10.09.2007, before the first respondent. An enquiry was conducted. It is the grievance of the petitioner that instead of taking action against the President, disciplinary proceedings were initiated against him by issuance of a charge memo, which contained eleven charges. The Panchayat President passed an order on 15.10.2007, suspending the petitioner from service. Being aggrieved by the same, the petitioner has filed W.P.(MD)No.2359 of 2008. This Court has disposed of the said Writ Petition, by directing the petitioner to submit a representation to the second respondent, seeking for revocation of order of suspension. Pursuant to the above, a representation was submitted to the Block Development Officer, Kodaikkanal Panchayat Union, Kodaikkanal, Dindigul District, the second respondent herein. However,the second respondent herein, instead of considering the representation in proper perspective, rejected the same, mechanically holding that the order of suspension would be revoked, on establishing the petitioner's innocence in the criminal proceedings. The said order has necessitated the petitioner to approach this Court once again by way of filing another Writ Petition in W.P.(MD)No.866 of 2009. The said Writ Petition was dismissed. An appeal in W.A.(MD)No.507 of 2011 was filed. When the Writ Appeal was taken up for hearing on 06.06.2011, the learned counsel for the second respondent therein submitted that the enquiry held against the petitioner was already over and that the papers were pending before the District Collector, Dindigul District. In view of the submission made by the learned counsel for the second respondent therein, the said Writ Appeal was disposed of with a direction to the District Collector, Dindigul District, the first respondent herein to pass final orders, within three months. Pursuant to the said direction made in the Writ Appeal on 06.06.2011, the District Collector, Dindigul District has passed the impugned order dated 14.07.2011, wherein, he had once again reiterated the same stand set out in the earlier communication dated 15.07.2008, stating that on proving the petitioner's innocence in the criminal proceedings, the question of reinstatement would be considered. 3. In addition to the above facts, the learned counsel for the petitioner submitted that though in Crl.O.P.(MD)No.11189 of 2008, this Court, by order dated 27.01.2009, has directed the Inspector of Police, Kodaikkanal Police Station, Dindigul District, to file a final report, within three months from the date of receipt of a copy of the said order, he has not filed the final report, even though two years and five months have lapsed. According to the learned counsel, when the petitioner has not delayed the process of investigation or the departmental proceedings, keeping the petitioner under suspension continuously affects his right. It is his further contention that https://hcservices.ecourts.gov.in/hcservices/ 3 even though a Division Bench of this Court has directed the District Collector, Dindigul District to pass final orders on the disciplinary proceedings, said to have been initiated against the petitioner, in pursuance of the charge memo dated 07.07.2008, he has not passed orders, but, mechanically, reiterated the earlier stand. For the above said reasons, he prayed for interference. 4. Mr.S.Chandrasekar, learned Government Advocate was put on notice and heard. He submitted that since the allegations pertained to misappropriation, the question of revocation of suspension does not arise, at this juncture. He further submitted that there is no manifest illegality in the impugned order. For the reasons stated supra, he prayed for dismissal of the Writ Petition. 5. Heard the learned counsel for the parties and perused the materials available on record. 6. Pleadings and material on record disclose that the petitioner was placed under suspension on 15.10.2007 by the President, Vellakavi Panchayat, Vellakavi, Kodaikkanal Taluk, Dindigul District, the third respondent herein, for not discharging his duties, as per the provisions of the Tamil Nadu Panchayats Act, 1994 and for other lapses. Disciplinary proceedings have been initiated as per proceedings in Na.Ka.No.2033/07/B1, dated 07.07.2008, by the Block Development Officer, Kodaikkanal Panchayat Union, Kodaikkanal, Dindigul District. The petitioner has submitted his explanation. The Enquiry Officer has also drawn up his report. On the complaint of the Block Development Officer, Kodaikkanal Panchayat Union, Kodaikkanal, Dindigul District, a criminal case has been registered against the petitioner in Crime No.30 of 2008 under Sections 406, 409, 463 and 420 of the Indian Penal Code alleging misappropriation of a sum of Rs.4,48,640/- and certain other financial irregularities have also been levelled. Materials on record further disclose that when the petitioner filed W.P.(MD)No.2359 of 2008, seeking to quash the order of suspension dated 15.10.2007, this Court, by order dated 28.04.2008, has disposed of the said Writ Petition, directing the petitioner to submit a representation to the Block Development Officer, Kodaikkanal Panchayat Union, Kodaikkanal, Dindigul District, the second respondent herein. The said representation had been rejected citing the pendency of criminal case. Subsequently, once again, the petitioner has challenged the order of suspension dated 15.07.2008, in W.P.(MD)No.866 of 2009. While addressing the question as to whether the action of the respondents in refusing to revoke the suspension can be said to be legally valid, a learned Judge of this Court, while dismissing the said Writ Petition, as per order dated 18.11.2010, at paragraph Nos.8 to 10, has passed the following orders: "8.In the present case, the respondents have given sufficient reasons for not revoking the suspension. Once suspension has been made by a competent authority and sufficient reasons are given for placing an employee under https://hcservices.ecourts.gov.in/hcservices/ 4 suspension, this Court cannot interfere with the said order of suspension. But at the same time, it must be noted that an order of suspension cannot be an end by itself. It must necessarily follow an appropriate enquiry in accordance with the principles of natural justice and the standing instruction of the Government and therefore, the petitioner having been kept under suspension for the last two years, the respondents must conduct an enquiry in respect of the charges levelled against him and after observing a minimum principles of natural justice. 9. With reference to the subsistence allowance, though the stand taken by the respondents that a part time Government servant cannot get subsistence allowance. The said stand may not be legally valid. Further, the Tamil Nadu Payment of Subsistence Act, 1981, provides for mandatory subsistence allowance during the period of suspension, pending enquiry into grave charges. Therefore, it is not as if the petitioner is without any remedy in claiming subsistence allowance. 10. In the light of the above, there is no case made out to interfere in the impugned order. It is suffice to state that with reference to the subsistence allowance, the petitioner can invoke the provisions of the Tamil Nadu Payment of Subsistence Act, 1981 because, under the Act, the payment of subsistence allowance depends upon several other factors and those facts shall not be proved by using appropriate evidence before the competent authority. But at the same time, the respondents cannot be allowed to remain as a new spectator having suspended the petitioner from service. Hence the respondents are directed to conduct an enquiry against the petitioner as expeditiously as possible and come to a conclusion one way or the other in order to decide the status of the petitioner." 7. Not being satisfied with the said order, the petitioner has preferred a Writ Appeal in W.A.(MD)No.507 of 2011. Perusal of the order made in the Writ Appeal shows that during the course of arguments, the learned counsel for the second respondent therein, had brought to the notice of this Court that enquiry proceedings had already been over and that the papers were pending before the first respondent to pass final orders in the disciplinary proceedings. In view of the above said statement, the Division Bench has disposed of the Writ Appeal, on 06.06.2011, giving directions to the District Collector, Dindigul District, the first respondent herein, to pass final orders, within a period of three months from the date of receipt of a copy of the order made in the Writ Appeal. Admittedly, three months period has not expired. When this Court has granted three months time from the date of receipt of a copy of the order made in the Writ Appeal in W.A.(MD)No.507 of 2011, to pass orders on the disciplinary proceedings, it is not open to the petitioner to approach this Court once again challenging the order refusing to https://hcservices.ecourts.gov.in/hcservices/ 5 revoke the order of suspension. 8. The contention as to whether a Government servant or an employee, who is involved in serious acts of misconduct, such as, misappropriation, corruption, embezzlement and financial irregularities, has a right to seek for retention in service, pending disposal of enquiry into serious charges /investigation / trial, has been elaborately considered in the case of R.Ravichandran v. Addl. Commr. Of Police, Chennai reported in 2010 CIJ 553 IPJ, wherein this Court has also formulated certain issues for consideration, which are as follows: (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? (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 https://hcservices.ecourts.gov.in/hcservices/ 6 that the suspension is prolonged pending investigation / trial? At paras 81 to 88 and 91, this Court further held 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 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. https://hcservices.ecourts.gov.in/hcservices/ 7 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." 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, https://hcservices.ecourts.gov.in/hcservices/ 8 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 https://hcservices.ecourts.gov.in/hcservices/ 9 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." 9. 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 https://hcservices.ecourts.gov.in/hcservices/ 10 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 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." https://hcservices.ecourts.gov.in/hcservices/ 11 10. 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. 11. 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. 12. In a recent decision of Brother 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), the learned Judge 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 trial, registered under Section 392