IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.4200 of 2010 and M.P.NO.1 OF 2010 K.Manokaran .. Petitioner Vs. The Principal Secretary/ Transport Commissioner, Transport Department, Chepauk, Chennai-600 005. .. Respondent This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the respondent in connection with the impugned letter No.53502/VB2/2008, dated 23.11.2009 and 21.12.2009 and to quash the same and to further direct the respondent to reinstate the petitioner into service and to regulate the period of employment as duty for all purposes as per ruling 6(ii) under Fundamental Rule 54 and grant him all consequential service and monetary benefits. For Petitioner : Mr.K.Venkatramani, Senior Counsel for Mr.M.Muthappan ORDER Heard Mr.K.Venkatramani, learned Senior Counsel appearing for Mr.M.Muthappan. The petitioner has come forward to challenge an order, dated 23.11.2009, wherein and by which the respondent had placed the petitioner under suspension under Rule 17(e)(4) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules. 2.The petitioner was working as a Motor Vehicle Inspector, Harur, Dharmapuri District. He was given a charge memo on 09.04.2008. The charge against the petitioner was that while there was a surprise check conducted on 31.3.2005 in the unit office at Harur by the Investigating authority, he was found in possession of unaccounted money of Rs.1150/-. Since he did not give any valid https://hcservices.ecourts.gov.in/hcservices/ explanation, he was placed under suspension and was proceeded departmentally. Thereafter, the petitioner was imposed with a penalty of compulsory retirement by the order of the Transport Commissioner, dated 17.7.2008. 3.The petitioner preferred a statutory appeal to the State Government. The State Government, after consulting with TNPSC, by G.O.(D)No.933, Home Department, dated 16.9.2009 held that even without an explanation to the charge memo, compulsory retirement order was passed. Since the procedure for imposing the penalty under Rule 17(b) was not followed, the TNPSC opined that the final order passed against him can be cancelled and de nova proceedings may be initiated from the place where the defect had crept in. Accepting the said opinion, the Government cancelled the final order passed by the Transport Commissioner and gave direction to initiate de nova proceedings. 4.It is pursuant to the same, the petitioner sought for a posting order in the post of Junior Assistant. However, the respondent by a communication, dated 23.11.2009 informed him that since de nova proceedings have to be initiated, his request for posting order cannot be granted. The petitioner's attention was drawn to Rule 17(e)(4) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Rule 17(e)(4) reads as follows: "Where a penalty of dismissal, removal or compulsory retirement from service imposed upon Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders." 5.The petitioner once again sent a representation, stating that since before the order of penalty was imposed on him, he was not kept under suspension, the said Rule cannot be invoked in his case. The petitioner was informed by letter, dated 21.12.2009 that since charge against the petitioner was not cancelled, he shall be deemed to be under suspension. Therefore, the suspension will continue. 6.Mr.K.Venkatramani, learned Senior Counsel contended that the question of invoking Rule 17(e)(4) is inappropriate and the said rule will come into force only when the following two https://hcservices.ecourts.gov.in/hcservices/ contingencies. One was that the order must have been set aside by the Court of Law. In the present case, the order was set aside by the statutory appellate authority, which is not a Court. The second submission was that the pre-requisite for keeping a person under suspension after ordering a de nova enquiry was that there must have been a suspension before imposition of penalty. However, Rule 17(e)(3) reads as follows: "Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or an review under these rules and the case is remitted for further inquiry of action or with any other directions the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders." 7.Alternatively the learned Senior Counsel submitted that it is a mechanical application of mind on the part of the respondent and they did not refer to correct rule, i.e. Rule 17(e)(3). For invoking the said rule 17(e)(3), he should have been kept under suspension before the order of penalty. But, the argument addressed by the learned Senior Counsel cannot be countenanced by this court. After the penalty order was set aside by the statutory appellate authority, a de nova enquiry was ordered. It is not as if the petitioner's conduct has been found to be unblemished. 8.In the present case, the State Government had ordered for de nova enquiry only on account of a technical fault for not following the procedure under Rule 17(b). Otherwise, the charge against the petitioner was serious, for which he can always be placed under suspension. In the present case, when the petitioner sent a representation, dated 2.11.2009 to the respondent, his doubt was clarified by the competent authority on 23.11.2009. The petitioner's further representation, dated 7.12.2009 was once again clarified by the respondent on 21.12.2009. Therefore, the intention of the competent authority is to keep the petitioner under suspension and not allowing him to restore to service only on account of his earlier penalty of compulsory retirement being set aside on technical ground. 9.Even in case where a final order of punishment was set aside on technical ground, a person can be placed under deemed suspension to facilitate further enquiry. Therefore, the concept of deemed suspension or automatic suspension on account of certain contingencies is not new to service rules. 10.In construing Rule 12(4) of Central Civil Services (Classification, Control & Appeal) Rules, 1957, the Supreme Court in Khem Chand v. Union of India reported in 1963 Supp (1) SCR 229 = AIR 1963 SC 687 held in paragraphs 16,18 and 19 as follows: https://hcservices.ecourts.gov.in/hcservices/ "16. Equally untenable is the appellant’s next contention that the impugned Rule contravenes the provisions of Article 19(l)(f) of the Constitution. The argument is that as a result of this Court’s decree the appellant had a right to his arrears of pay and allowances. This right constituted his property; and as the effect of the impugned Rule is that he would not, for some time at least, get those arrears it restricts his right. It may be conceded that the right to arrears of pay and allowances constituted property within the meaning of Article 19(l)(f) of the Constitution and further, that the effect of Rule 12(4) is a substantial restriction of his right in respect of that property under Art 19(l)(f). The question remains whether this restriction is a reasonable restriction in the interests of the general public. No body can seriously doubt the importance and necessity of proper disciplinary action being taken against government servants for inefficiency, dishonesty or other suitable reasons. Such action is certainly against the immediate interests of the government servant concerned; but is absolutely necessary in the interests of the general public for serving whose interests the government machinery exists and functions. Suspension of a government servant pending an enquiry is a necessary part of the procedure for taking disciplinary action against him. It follows, therefore, that when the penalty of dismissal has been set aside but the disciplinary authority decides to hold a further enquiry on the same facts against him a fresh order of suspension till the enquiry can be completed, in accordance with law, is a reasonable step of the procedure. We have no hesitation in holding, therefore, that insofar as Rule 12(4) restricts the appellant’s right under Article 19(1)(f) of the Constitution, it is a reasonable restriction in the interests of the general public. Rule 12(4) is therefore within the saving provisions of Article 19(6), so that there is no contravention of the constitutional provisions. ....... 18. This brings us to the attack on the Rule on the basis of Article 14. According to Mr Sharma the result of the impugnet Rule is that where a penalty of dismissal, removal or compulsory retirement from service imposed on a government servant is set aside or declared or https://hcservices.ecourts.gov.in/hcservices/ rendered void in consequence of or by a decision of a court of law and the disciplinary authority decides to hold a further enquiry against him on the allegations on which the penalty was originally imposed, the consequence will follow that the government servant shall be deemed to have been placed under suspension from the date of the original imposition of penalty, whereas no such consequence will follow where a similar penalty is set aside not by a court of law but by, the departmental disciplinary authority. According to Mr Sharma, therefore, there is a discrimination between a government servant the penalty of dismissal, removal or compulsory retirement on whom is set aside by a decision of a court of law and another government servant a similar penalty on whom is set aside on appeal by the departmental disciplinary authority. The argument however ignores the result of Rule 30(2) and Rule 12(3) of these Rules. Rule 30(2) provides inter alia that in the case of an appeal against an order imposing any of the penalties specified in Rule 13 i.e. the penalty of dismissal, removal or compulsory retirement and certain other penalties, the Appellate Authority shall pass orders: “(i) setting aside, reducing, confirming or enhancing the penalty; or (ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case.” Rule 12(3) provides that “where a penalty of dismissal, removal or compulsory retirement from service imposed upon a government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further enquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders”. Where a penalty of dismissal, removal or compulsory retirement imposed upon a government servant is set aside by the departmental authority on appeal, it may or may not order further enquiry; just as where a similar penalty is set aside by a decision of a court of law the disciplinary authority may or may not direct a further enquiry. Where the Appellate Authority after setting aside a penalty of dismissal, removal or compulsory retirement makes an order under Rule 30(2)(ii) remitting the case to the authority which imposed the penalty, https://hcservices.ecourts.gov.in/hcservices/ for further enquiry, Rule 12(3) will come into operation and so the order of suspension which in almost all cases is likely to be made where a disciplinary proceeding is contemplated or is pending shall be deemed to have continued in force on and from the date of the original order of dismissal and shall remain in force until further orders. There is therefore no difference “worth the name between the effect of Rule 12(4) on a government servant the penalty of dismissal, removal or compulsory retirement on whom is set aside by a decision of a court of law and a further enquiry is decided upon and the effect of Rule l2(4) on another government servant a similar penalty on whom is set aside in appeal or on review by the departmental authority and a further enquiry is decided upon. In both cases the government servant will be deemed to be under suspension from the date of the original order of dismissal, except that where in a departmental enquiry a government servant was not placed under suspension prior to the date when the penalty was imposed, this result will not follow, as Rule l2 (3) would not then have any operation. It is entirely unlikely however, that ordinarily, a government servant will not be placed under suspension prior to the date of his dismissal. Rule 12(1) provides that the appointing authority or any authority to which it is subordinate or any other authority empowered by the President in that behalf may place a government servant under suspension: (a) where a disciplinary proceeding against him is contemplated or is pending, or (b) where a case against him in respect of any criminal offence is under investigation or trial. Mr Sharma does not say that ordinarily any cases occur where a government servant is visited with a penalty of dismissal, removal or compulsory retirement, in a departmental proceeding, without there being a previous order of suspension under the provisions of Rulel 2(l) and we do not think any such case ordinarily occurs. Consequently, the effect of Rule 12(3) will be the same on a government servant a penalty of dismissal, removal or compulsory retirement on whom is set aside in appeal by the departmental authority as the effect of Rule l2(4) on a government servant a similar penalty on whom is set aside by a decision of a court of law. The contention that Rule 12(4) contravenes Article 14 of the Constitution must therefore be rejected. https://hcservices.ecourts.gov.in/hcservices/ 19. As we find that all the above attacks on the validity of Rule l2(4) fail, the further attack on the Rule on the basis of Article 31(1) of the Constitution also necessarily fails. For, whatever deprivation of property may result from Rule l2(4) would be by authority of law-the law being Rule l2(4)." 11.The said Rule 12(4) was subsequently made as Rule 10(4) of CCS(CCA) Rules. When the said rule came to be challenged, the Supreme Court upheld the constitutional validity of the said rule in Mahender Singh v. Union of India, reported in 1991 Supp (2) SCC 127. The following passage found in paragraph 6 may be usefully extracted below: "6. There are three requirements for the application of Rule 10(4); (i) the government servant is dismissed, removed or compulsorily retired as a measure of penalty; (ii) the penalty of dismissal, removal or compulsory retirement is set aside or declared or rendered void by a decision of a court of law; (iii) the disciplinary authority, decides to hold a further inquiry against the government servant on the allegations on which the original order of penalty was imposed. If these three requirements are satisfied then the government servant shall be deemed to have been placed under suspension by the appointing authority from the date of original order of penalty of dismissal, removal or compulsory retirement and he shall continue to remain under suspension until further orders." 12.Thereafter, the very same rule was once again considered by the Supreme Court in Nelson Motis v. Union of India reported in (1992) 4 SCC 711. In paragraph 10, the Supreme Court observed as follows: "10......The cases which attract sub-rule (4), are thus those where the penalty imposed on the government servant is set aside on technical grounds not touching the merits of the case. Since at one stage the disciplinary authority records a finding on the charges against the government servant, which is not upset on merits, the situation is entirely different from that in the cases covered by sub-rule (3). The classification is thus founded on an intelligible differentia, having a rational relation to the object of the rules and Rule 10 (4) has to be held as constitutionally valid." https://hcservices.ecourts.gov.in/hcservices/ 13.In the light of the above, the writ petition will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petition stands closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vvk To The Principal Secretary/ Transport Commissioner, Transport Department, Chepauk,Chennai-600 005. 1 cc to mr.T. Ayngarabuabhu, Advocate. Sr. 14696 1 cc to Government Pleader, SR. 14513 W.P.NO.4200 of 2010 RB (CO) kk 9/3 https://hcservices.ecourts.gov.in/hcservices/