IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.09.2010 CORAM THE HONOURABLE THIRU JUSTICE S. MANIKUMAR W.P.No.24064 of 2009 M.P.No.1 of 2009 Tmt.T.Chandrakala ... Petitioner Vs. 1. The Block Development Officer/ Commissioner, Mugaiyur Panchayat Union, Villupuram District. 2. The District Collector, Villupuram District. ... Respondents Writ Petition is filed under Article 226 of the Constitution of India, praying for a Writ of Certiorari, to call for the records in proceedings Na.Ka.No.A6/5279/09, dated 27.10.2009, on the file of the 1st respondent and quash the same, as illegal, incompetent and without jurisdiction. For Petitioner : Mr.V.Raghavachari For Respondents : Mr.R.Murali, GA O R D E R Noon-meal organiser of Mugaiyur Panchayat Union, Villupuram District, has challenged the order of suspension, dated 27.10.2009, passed by the Block Development Officer/Commissioner, Mugaiyur Panchayat Union, Villupuram District, the first respondent herein. 2. It is the case of the petitioner that the abovesaid order has been passed on the ground that when the P.A., to the District Collector visited the Noon-Meal Centre on 27.10.2009, he found out certain deficiencies and instructed the first respondent to suspend the petitioner from service. Lateron, she was served with a Charge memo, dated 09.11.2009 to submit her explanations for certain irregularities. Challenging the above proceedings, the petitioner has preferred the present Writ Petition. 3. Assailing the correctness of the impugned order, Mr.V.Raghavachari, learned counsel for the petitioner submitted that the first respondent has merely acted on the directions of the P.A., to the District Collector and that he has not made any independent assessment on the fact situation, as to whether suspension of the petitioner is required or not. 4. Placing reliance on a decision of this Court in N.Sivakumar v. K.Vembu reported in 2008 (3) MLJ 852 and referring to G.O.Ms.No.176, Rural Development and Local Administration Department, dated 01.12.2006, learned counsel for the petitioner submitted that the petitioner is entitled for a personal hearing, before she was placed under temporary suspension and therefore, there is a clear violation of principles of natural justice. 5. He further submitted that as per the above said Government Order, the President of the respective Panchayat alone has got the jurisdiction to place the petitioner under suspension and the Block Development Officer, who is an appellate authority, is not competent to pass such an order. In the case on hand, as the first respondent has issued the order of suspension on the directions of the P.A., to the District Collector, the petitioner has lost an opportunity of filing an appeal and therefore, the said order requires intervention. As regards the irregularities noticed, learned counsel for the petitioner submitted that the same do not warrant suspension, which has to be very sparingly used. 6. Though no counter affidavit has been filed, taking this Court through the impugned order, Mr.R.Murali, learned Government Advocate appearing for the respondents submitted that when the noon-meal centre was inspected by the P.A., to the Collector, (Nutritious Meal) on 27.10.2009, certain deficiencies were noticed and therefore, instructions were issued to the first respondent to place the petitioner under suspension. 7. In response to the contention that the petitioner has lost an opportunity of making an appeal to the first respondent and the ground of lack of jurisdiction, learned Government Advocate submitted that an order of interim suspension, pending enquiry, is not a penalty and therefore, the President of the Panchayat or any other Superior authority can place the petitioner under suspension. He further submitted that the judgment relied on by the learned counsel for the petitioner is not applicable to the facts of this case, as G.O.Ms.No.176, speaks only about imposition of punishment by the competent authority and the remedy available to the Panchayat employees, is only to challenge the penalty, if any, imposed, by the President of the Panchayat Union. Heard the learned counsel for the parties and perused the materials available on record. 8. Reading of the judgment relied on by the learned counsel for the petitioner shows that the Government have issued G.O.Ms.No.176, Rural Development and Local Administration Department, dated 01.12.2006, empowering the President of Panchayat to pass orders of Censure, fine, stoppage of increment, stoppage of promotion, reduction of seniority, reduction in time scale, temporary suspension and suspension for removal from service and before imposing penalty, in addition to giving opportunity for submission of explanation, he should be heard. What is impugned in this present writ petition, is an order of temporary suspension and it is not a measure of penalty, as stated in the abovesaid Government Order. The contention that the petitioner ought to have been given an opportunity of hearing, even before resorting to temporary suspension, pending enquiry, cannot be countenanced in law. Useful reference can be made to few judgments, 9. The issue as to whether any show cause notice has to be given before suspending a Government servant, has been considered by this Court, as early as on 1954 in Y.Venkateswarlu v. State of Madras reported in AIR 1954 Mad. 587, where this Court, dissenting with the views expressed by the Nagpur Bench in Provincial Government, C.P., and Berar v. Syed Shamshul Hussain reported in AIR 1949 Nag. 118 (C), at Paragraph 5, held that, "Therefore under Art. 311, Cl.(2), the penalties contemplated there, for which a statutory safeguard of a reasonable opportunity of showing cause against the action proposed to be taken in regard to him is provided, are dismissal, removal or reduction in rank. On a reading of the decision of the Supreme Court, it seems to me that in that judgement their Lordships did not intend to equate 'suspension' with 'reduction in rank'. The two ideas are distinct and are intended to apply to different sets of circumstances. I am therefore of opinion that the contention of the learned counsel that suspension is tantamount to reduction in rank is unacceptable. If that is so, there was no necessity for any opportunity being given to the petitioner, before he was suspended, to show cause why he should not be suspended." 10. Explaining the nature of the order of suspension, as to whether it is administrative or quasi- judicial and whether the government servant should be given an opportunity before suspending him from service, the Supreme Court in Pratap Singh v. State of Punjab reported in AIR 1964 SC 72, the Supreme Court held that it cannot be said suspension of a Government servant without calling him to explain the charges first, was bad as the proceedings to suspend him were not of a quasi-judicial character and, therefore, necessitated the Governments obtaining his explanation to the charges of misconduct before passing the order of suspension. The order suspending the Government servant pending enquiry is partly an administrative order. What has been held to be quasi-judicial is the enquiry instituted against the Government servant on the charges of misconduct, an enquiry during which under the rules it is necessary to have an explanation of the Government servant to the charges and to have oral evidence, if any, recorded in his presence and then to come to a finding. None of these steps is necessary before suspending a Government servant pending enquiry. Such orders of suspension can be passed if the authority concerned, on getting a complaint of misconduct, considers that the alleged charge does not appear to be groundless, that it requires enquiry and that it is necessary to suspend the Government servant pending enqiry. 11. In State of Orissa v. Shiva Parashad Das reported in 1985 (2) SCC 65, the Supreme Court tested the correctness of the order of suspension on the ground that as to whether, it was made in contravention of Article 311 of the Constitution of India as well as Rule 12 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962. The High Court allowed the Writ Petition and quashed the order of suspension, holding that same is in contravention of Article 311(1) of the Constitution. On appeal, the Supreme Court, at Paragraph 3, held that, "3. An order of suspension passed against a Government servant pending disciplinary enquiry is neither one of dismissal nor of removal from service within Article 311 of the Constitution. This position was clearly laid down by a Constitution Bench of this Court in Mohammad Ghouse v. State of Andra [1957 SCR 414]. It is unfortunate that this decision was not brought to the notice of the learned Judges of the High Court. Clause (1) of Article 311 will get attracted only when a person who is a member of Civil Service of the Union or an All India Service or a Civil Service of a State is 'dismissed' or 'removed' from service. The provisions of the said clause have no application whatever to a situation where a Government servant has been merely placed under suspension where a Government servant has been merely placed under suspension pending departmental enquiry since such action does not constitute either dismissal or removal from service. The High Court was, therefore, manifestly in error in quashing the order of suspension passed against the respondent on the ground that it was violative of clause (1) of Article 311 of the Constitution." 12. The Division of Gujarat High Court in Vagadia Parambhai Bhurabhai v. T.J.Trivedi reported in 1987 (1) SLR 648, while dealing with the similar question, at Paragraph 6, held as follows: "The above observation makes it abundantly clear that the application of the rule of natural justice of being heard before any administrative order having civil consquences of is passed, cannot be insisted upon if the same is liakely to defeat the very object or purpose of interim suspension. While it cannot be disputed on the principle that the principle of natural justice must be extended to administrative actions involving civil consequences, it must be conceded that insistence on the application of the rule of natural justice, namely, affording a hearing before an order is passed, cannot be permitted if it is likely to result in defeating the administrative action required to be taken with promptitude, having regard to the circumstances of the case on hand. Inflexible and rigid application of the rule of audit alteram partem to R.5 of the rules would have the effect of setting at naught the very object or purpose of placing a civil servant under suspension. If a civil servant charged of committing an act involving moral turpitude cannot be placed under suspension unless he is given an opportunity of showing cause against the proposed order, he would continue in service till the hearing is contemplated which would not be in public interest. To continue a civil servant who is alleged to have betrayed a tendency to demand and accept illegal gratification would be against public interest and would defeat the very object of prompt action, ie., suspension in public interest if the procedure of giving a hearing before such an order is passed is required to be undergone. We are, therefore, in agreement with the view taken in Lakshman's case (supra). We, therefore, do not think that R.5 is ultra vires the Constitution on the plea that the procedure prescribed thereunder is in violation of the principles of natural justice." 13. With due respect, the judgment in N.Sivakumar v. K.Vembu reported in 2008 (3) MLJ 852 relied on by the learned counsel for the petitioner can be made applicable only in the case of a penalty imposed on any employee. 14. Yet another contention raised by the learned counsel for the petitioner is that the Block Development Officer, first respondent herein, had acted on the mere directions of the P.A., to the District Collector and therefore, there is no independent application of mind, the said contention also does not merit any consideration for the reason that if the disciplinary authority, viz., the President of the Panchayat, has got powers to place the petitioner under suspension, as a temporary measure, pending contemplation of any enquiry, then the appellate authority, has got plenary powers to suspend the panchayat employee. Further, P.A., to the District Collector is in the rank of a Revenue Divisional Officer and on the facts of this case, when he has inspected the noon-meal centre and found certain irregularities, he has directed the first respondent to place the petitioner under suspension. The argument that the Block Development Officer, first respondent, being the appellate authority under the abovesaid Government Order, has issued an order of suspension and therefore, the petitioner has lost an opportunity of availing the alternative remedy, is not tenable, as the Government Order does not contemplate any appeal, as against temporary suspension. Only in a case, where the suspension is resorted, as a measure of penalty, the appeal remedy is provided. 15. The grounds raised on the question of lack of jurisdiction and violation of principles of natural justice are not tenable. However, perusal of the impugned order shows that the following irregularities have been noticed by the P.A., to the District Collector, at the time of inspection of the Centre on 27.10.2009, (i)50 students were fed after taking food materials for 60 students, (ii)Sambar was not prepared. (iii)There was a shortage of 1 Kg of Rice and 0.5ml of Oil and there was an excess of 0.575 of dhal. (iv)Noon meal Centre was not properly maintained. (v)The egg shells were not removed before distribution. 16. It is well known that suspension from service should be sparingly exercised, when it is prima facie found that retention of an employee is either scandalous or he would tamper with evidence, pending enquiry or if he/she is involved in a grave offence, such as, misappropriation or embazzlement or any grave charge, warranting major penalty. Though this Court is not inclined to accept the contentions of the petitioner, as regards lack of jurisdiction, deprivation of an alternative remedy or for that matter of non-application of mind, on the part of the first respondent, yet the irregularities noticed by the P.A., to the District Collector (Nutritious Meal), in the opinion of this Court, are not so grave, warranting any major penalty of dismissal or removal or compulsory retirement or reduction in rank. The shortage of food materials noticed during inspection and other irregularities, are not so grave to keep the petitioner under suspension, apprehending tampering of evidence or retention of the employee would be scandalous to the department. 17. Though in the normal course, this Court would not go into the merits of the case to find out as to whether there is any necessity to place an employee under suspension for the reason that it is the prerogative of the employer to temporarily suspend the relationship of master and S. MANIKUMAR, J. Skm servant, yet on the facts of this case and having regard to the nature of minor irregularities and considering the plight of the writ petitioner, this Court is of the considered view that there is no need to place the petitioner under suspension. In view of the above, the impugned order of suspension is set aside. 18. In the result, the Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is also closed. 24.09.2010 skm To 1. The Block Development Officer/ Commissioner, Mugaiyur Panchayat Union, Villupuram District. 2. The District Collector, Villupuram District. W.P.No.24064 of 2009