IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 4-1-2008 CORAM THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.37643 of 2007 & NM.P.No.1 of 2007 S. Kumaresan ... Petitioner Vs The Commissioner of Municipal Administration, Chepauk, Chennai - 5. ... Respondent Prayer: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus calling for the records of the order passed by the respondent in Roc.No.57723/2006/OP3, dated 6.12.2007 and quash the same and consequently reinstate the petitioner into service with all consequential and attendant benefits. For Petitioner : Mr.R.N.Amarnath O R D E R Prayer in this writ petition is to quash the order of suspension passed by the respondent dated 6.12.2007 and direct the respondent to reinstate the petitioner in service with all consequential and attendant benefits. 2. The brief facts necessary for disposal of the writ petition are as follows: (a) Petitioner was initially appointed as Junior Assistant in the year 1987 in Municipal Services in Tiruppur Municipality. Thereafter he was promoted as Revenue Inspector in the year 2001 and now he is working as Assistant in Erode Municipality, Erode. https://hcservices.ecourts.gov.in/hcservices/ (b) The case of the petitioner is that while he was working as Revenue Inspector in Tiruppur Municipality in the year 2006, one R.Kandasamy lodged a complaint to the Vigilance Inspector against one of the Bill Collector by name K.A.Palanisamy, employed in Tiruppur Municipality alleging that he had demanded money for assessment of property tax and the officials of Vigilance and Anti Corruption Department visited the office and enquired the petitioner about the allegation and the petitioner also answered to the querries. (c) Subsequently, though there was no complaint against the petitioner, he was issued with a suspension order dated 10.8.2006 as if the petitioner had demanded money. Petitioner further states that as the order of suspension was passed on mistake of fact, he made a representation to the respondent on 10.11.2006 and on consideration of the representation, the respondent passed the order of revocation dated and restored the petitioner in service and the petitioner joined duty at Coonoor Municipality on 8.2.2007. (d) Petitioner further states that while he was working in the Erode Municipality, the respondent again issued the impugned suspension order dated 6.12.2007 for the same event of the year 2006. According to the petitioner, in the impugned order of suspension, there is no mention about the earlier suspension order dated 10.8.2006 nor the revocation order dated 3.1.2007 and there is no occasion for the respondent to place the petitioner under suspension for the second time. (e) Hence the petitioner has filed the present writ petition on the ground that placing the petitioner under suspension for the second time for the same event is not contemplated under the provisions of the Tamil Nadu Municipal General Services (Discipline and Appeal) Rules, 1970 and the respondent having found that the petitioner was wrongly placed under suspension and having revoked the suspension order, passing the impugned suspension order for the second time is unwarranted. 3. Heard the learned counsel for the petitioner. The learned counsel for the petitioner admitted that now the petitioner is an accused in criminal case. 4. From the perusal of the impugned order it is seen that the petitioner is involved in a case punishable under Section 7 and https://hcservices.ecourts.gov.in/hcservices/ 13(2) read with 13(1)(d) of the Prevention of Corruption Act, and it is necessary in the public interest to place the petitioner under suspension with immediate effect. The said suspension order is passed by the respondent exercising the powers conferred under Rule 8(9)(ii) of the Tamil Nadu Municipal General Services (Discipline and Appeal) Rules, 1970, with effect from 6.12.2007, the date of the order of suspension. 5. It is not in dispute that the petitioner is an employee of the Municipal services, who is involved in a Corruption case, which is under trial before the Criminal Court. Petitioner being an employee of the Municipal Services, he is governed by the Tamil Nadu Municipal General Service (Discipline and Appeal) Rules, 1970. Rule 8(9)(ii) enables the department to place an employee of the Municipal Services under suspension when an enquiry into grave charges against him is contemplated or is pending, or a complaint against him of any criminal offence is under investigation or trial. For proper appreciation, the said rule is extracted hereunder, “Rule 8(9)(ii) A member of a service may be placed under suspension from service by the disciplinary authority or such other authority to whom the power may be delegated or the Commissioner of the Municipality, 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: Provided that as and when a member of the service is placed under suspension by the authority other than the disciplinary authority such authority shall at once intimate the fact to the disciplinary authority.” From the perusal of the said rule it is evident that a member of the Municipal Service can be placed under suspension if anyone of the conditions contained in the above rule is attracted. https://hcservices.ecourts.gov.in/hcservices/ 6. The above said Rule the Tamil Nadu Municipal General Service (Discipline and Appeal) Rules, 1970 is similar to Rule 17 (e)(1) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, which reads as follows: “Rule 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 or any criminal offence is under investigation or trial and if such suspension is necessary in the public interest.” 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 and by Judgment dated 5.11.2007 upheld the order of suspension pending investigation/trial of criminal offence. 7. The power of the department to place an officer under suspension, on public interest, pending enquiry into the disciplinary proceeding/criminal investigation/trial, is well settled. (a) The Supreme Court in the decision reported in AIR 1959 Supreme Court 1342 (Hotel Imperial Vs. Hotel Workers' Union) in paragraph 10 held thus, “10. The first question therefore that falls for consideration is the extent of the power of the employer to suspend an employee under the ordinary law of master and servant. It is now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to https://hcservices.ecourts.gov.in/hcservices/ suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the so-called period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. These principles of the ordinary law of master and servant are well settled and have not been disputed before us by either party. Reference in this connection may be made to Hanley v. Pease and Partners Ltd., 1915-1 KB 698, Wallwork v. Fielding, 1922-2 KB 66, Secretary of State v. Surendra Nath, ILR (1939) 1 Cal 46: (AIR 1938 Cal 759) and Rura Ram v. Divisional Superintendent, N.W.Railway, ILR 1954-7 Punj 415: (AIR 1954 Punj 298).” (b) Again in the decision reported in AIR 1964 SC 787 (R.P.Kapur v. Union of India), the Supreme Court held that the authority entitled to appoint a public servant would be entitled to suspend him pending departmental enquiry into his conduct or pending criminal proceeding, which may eventually result in departmental enquiry against him. (c) In AIR 1968 SC 800 (B.R.Patel v. State of Maharashtra) a question arose as to whether a person, who was placed under suspension pending further orders due to pendency of criminal case, gets automatically restored into the service if the criminal case ended in acquittal. The Supreme Court held that even after the acquittal, a fresh order revoking the order of suspension should be passed by the department and there is no automatic revocation of suspension arises. 8. In the case on hand, petitioner, who is an employee of the Municipal Services, was suspended for his involvement in a corruption case and the said case is admittedly under trial. When a serious charge of demand of bribe is pending against the petitioner and the suspension order having been passed in exercise of powers conferred under Rule 8(9)(ii) of the Tamil Nadu Municipal General Service (Discipline and Appeal) Rules, 1970, on public https://hcservices.ecourts.gov.in/hcservices/ interest, no exception could be taken to interfere with the order of suspension passed against the petitioner. 9. The earlier suspension order was revoked on the ground that the petitioner was not made as accused in the criminal case. After investigation, now the petitioner is implicated in the criminal case and trial is also pending against him. Hence the petitioner is not justified in contending that the earlier order of suspension having been revoked, second order of suspension cannot be passed. In the light of the statutory provision referred above and the power having been exercised by the appropriate authority viz., the respondent, the same cannot be held as illegal, particularly when there is no other specific mala fide is alleged against the respondent. 10. There is no merit in the writ petition and the writ petition is dismissed in limine. However, the dismissal of the writ petition will not preclude the respondent from considering the request of the petitioner seeking revocation of the suspension order, on its own merits. There will be no order as to costs. Connected miscellaneous petition is also dismissed. vr Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1.The Commissioner of Municipal Administration, Chepauk, Chennai - 5. • One cc to Govt Pleader SR 839 MDR (co) sg 21/01/08 Order in W.P.No.37643 of 2007 4-1-2008 https://hcservices.ecourts.gov.in/hcservices/