Madras High Court
A.Viruthagriswaran vs The Principal Secretary And Director on 4 July, 2013
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04/07/2013
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
W.P(MD)No.10671 of 2013
and
M.P.(MD).No.1 of 2013
A.Viruthagriswaran .. Petitioner
Vs
1.The Principal Secretary and Director
of Indian Medicine and Homeopathy,
Arumpakkam, Chennai - 600 106.
2.The Principal - In-charge,
Government Homeopathy,
Medical College and Hospital,
Thirumangalam, Madurai District.
3.The Director,
Directorate of Medical and Rural
Health Services, Chennai - 600 006. .. Respondents
PRAYER
Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Mandamus, directing the 3rd respondent to include the
name of the petitioner's name in the approved promotion list for the post of
Office Superintendent for the year 2011-2012 within stipulated time limit on the
basis of the petitioner's representation dated 01.02.2012, 23.11.2012 and
27.12.2012.
!For petitioner ... Mr.S.Muthalraj
^For respondents ... Mr.M.Murugan,
Government Advocate
:ORDER
The petitioner, now working as Assistant in the Office of the Deputy Director of Medical Services (Leprosy), Nagapattinam, has filed the present Writ Petition for a Mandamus, directing the Director of Medical and Rural Health Services, Chennai / the third respondent herein, to include his name in the approved promotion list for the post of Office Superintendent for the year 2011- 2012. According to him, a panel for the post of Office Superintendent for the year 2011-2012 was published on 30.12.2011. The crucial date for drawal of the approved list of the Office Superintendent is 15.03.2011. It is his further contention that as on 15.03.2011, no charge memo was served or pending against him, however, on 19.01.2012, a charge memorandum, dated 10.01.2012, issued under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1904, was served on him. He has filed W.P.(MD).No.1460 of 2012, challenging the charge memorandum and that it is pending.
2. Mr.S.Muthalraj, learned counsel for the petitioner contended that when the Director of Medical and Rural Health Services, Chennai / the third respondent herein, published the panel, dated 30.12.2011, for the post of Office Superintendent for the year 2011-2012, no charge memorandum was pending or served against the petitioner and hence, the case of the petitioner ought to have been considered for inclusion in the abovesaid panel. Reliance has also been placed on the orders of this Court in W.P.(MD)No.3411 of 2006, dated 06.02.2009 and a common order passed in Contempt Petition (MD).No.464 of 2010, and Review Application (MD) No.63 of 2010, dated 15.02.2013, arising out of the order made in W.P.(MD)No.3411 of 2006.
3. Heard the learned counsel for the petitioner and perused the materials available on record.
4.Reading of the proceedings in Reference No.15000/E2/3/2011, dated 30.12.2011, of the Director of Medical and Rural Health Services, Chennai, shows that the crucial date for preparation of the panel for the post of Office Superintendent in the Directorate is 15.03.2011. While approving the temporary panel of Assistants annexed, along with the proceedings, dated 30.12.2011, to the post of Office Superintendents for the year 2011-2012, the Director of Medical and Rural Health Services, Chennai, has directed all the Heads of the Institutions to exhibit the said proceedings in the Notice Board of their offices and communicate the same to their subordinate offices with specific instructions to submit the appeals, if any, to the undersigned, within two months from the date of issue of the order.
5. Perusal of the Annexure No.II viz., the list of Assistants, whose names were not included in the panel for promotion as Office Superintendents for the year 2010-2011, due to pendency of disciplinary action, relinquishment, etc. shows that as on date of issuance of the temporary panel, dated 30.12.2011, the petitioner was under suspension. Hence, the name of the petitioner has not been included in the temporary panel. A person, who has been placed under suspension, has no legal or statutory right for inclusion of his name in the panel. More so, while publishing the temporary panel on 30.12.2011, the Director of Medical and Rural Health Services, Chennai, has requested all the Heads of Medical Institutions to exhibit the abovesaid temporary panel in their Notice Boards and communicate the same with specific instructions to submit appeals, if any, to the undersigned, within two weeks from the date of the issue of the temporary panel, dated 30.12.2011, for the post of Office Superintendents for the year 2011-2012.
6. Though the learned counsel for the petitioner has submitted that the petitioner has got a right to be included in the temporary panel, dated 30.12.2011, on the grounds that the charge memorandum, dated 10.01.2012, was served on the petitioner only on 19.01.2012, and also placed reliance on the orders of this Court, vide in W.P.(MD).No.3411 of 2006, dated 06.02.2009 and in Contempt Petition (MD).No.464 of 2010, and Review Application (MD) No.63 of 2010, dated 15.02.2013, arising out of the order made in W.P.(MD)No.3411 of 2006, this Court is not inclined to accept the said contention, when, admittedly, the petitioner was under suspension on the date of publication of the temporary panel.
7. Perusal of the charge memorandum, dated 10.01.2012, shows that the petitioner had been placed under suspension from 07.05.2011 onwards and continued to be under suspension even on the date of publication of the temporary panel, dated 30.12.2011, for the post of Office Superintendent. A crucial date prescribed in the Service Rules is only to consider the inclusion of various persons working in the Department / Institutions, for preparation of a panel for consideration of their names for promotion to higher posts. That does not mean that when a temporary panel is published or when the same is finalized, the conduct of the petitioner has to be ignored, while empaneling suitable candidates for promotion. A Government servant may satisfy the qualification prescribed for a higher post, but at the same time, it is not open to him to contend that even during the period of suspension, he has a statutory or legal right to be considered for inclusion in the temporary or final panel prepared for the promotional post.
8. This Court in R.Ravichandran Vs. Additional Commissioner of Police, Chennai, reported in 2010 CIJ 553 IPJ, had an occasion to consider the nature and scope of an order of suspension. The Court framed several questions. Some of the questions raised and answered in R.Ravichandran's case (stated supra) may be relevant for the purpose of adjudicating the ground of attack in this writ petition. That questions raised are as follows:-
(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 is 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?
9. The meaning of the word "suspension" extracted from various Dictionaries and the legal meaning, are as follows:-
23. Suspension, as per Wharton's Law Lexicon, 14th Edn., is a temporary stop or hanging up as it were of a right for a time, also a censure on ecclesiastical persons, during which they are forbidden to exercise their office or take the profits of their benefices.
24. 'Suspension' means, "action of debarring or state of being debarred, especially, for a time, from a function or privilege; temporary deprivation of one's office or position, or again, state of being temporarily kept from doing or deprived of something.
25. Suspension as per Black's Law Dictionary: 7th Edn. Pg.1460 means, (1) to interrupt; postpone; defer (2) to temporarily keep a person from performing a function, occupying an office, holding a job or exercising a right or privilege.
26. As per Stroud's Judicial Dictionary, "Suspension' or 'Suspense' is a temporal, ie., temporary, "Stop of Mans' Right (Cowel). Suspension, as per Bauvier's Law Dictionary, Vol.II, means a temporary stop of right, of a law, and the like. As per the Ramanatha Iyer's Dictionary, suspension means temporary intervention or cession of something (as) office, work or labour.
27. "The act of debarring for a time from a function or privilege". It means a temporary deprivation of once office or position. The suspended officer does not cease to be a public servant, he is only prevented from discharging the duties of his office for the time being. [K.J. Aiyar's Judicial Dictionary, 14th Edn.]
28. Suspension, according to Oxford Dictionary, means, "The action of suspending or condition of being suspended, the action debarring especially for a time from, a function or privilege, temporary deprivation of one's office or position or again, state of being temporarily kept from doing or deprived of something.
29. Suspension is, to defer; to debar from any privilege, office employment, et., for a time being. [Ref. Hemanth Kumar v. S.N.Mukherjee reported in AIR 1954 Cal. 340]
30. Suspension cannotes temporary cessation of something as right, work or labour. The basic idea underlying the root word, "suspend" and all its derivatives is that a person while holding an office and performing its functions of holding a position or privilege should be interrupted in doing so and debarred for the time being from further functioning in the office or holding the position and privilege. He is intercepted in the exercise of his functions of his employment of the privilege and put aside, as it were, for a time, excluded during the period from his functions or privileges. Such is the concept of a suspension order. Reference can be made to the decision in Abid Mohd. Khan v. State of M.P. reported in AIR 1958 MP 44.
34. On the aspect whether an order of suspension is administrative or quasi judicial in Pratap Singh v. State of Punjab reported in AIR 1964 SC 72, the Supreme Court explained the effect of suspension as follows:
"Suspension of a Government servant, during the course of his service, simply means that no work is to be taken from him during the period of suspension. The Government servant does not work on a post during the period of his suspension. If he is actually discharging the duty of a certain office prior to suspension, the order of suspension would mean that he would cease to work on and discharge the duties of that post. If at that time he is not working on any post but is on leave, no question of his actually ceasing to work or giving up the discharge of duty arises, but that does not mean that the order of suspension would be ineffective."
10. R.Ravichandran's case (cited supra) relates to a Government Servant. Power of the State Government to place a Government servant under suspension is given under Rule 17(e) of the Tamil Nadu Government Servant (Discipline and Appeal) Rules, which reads as follows:
"(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 of any criminal offence is under investigation or trial and if such suspension is necessary in the public interest.
11. The power of the Government/appointing authority/disciplinary authority, to place a Government Servant or an employee under suspension, even before the formulation of charges, has been dealt with, at paragraph 37 of the judgment in R.Ravichandran's case. The necessity or desirability to place a government servant/employee, under suspension, is dealt with, at paragraphs 44 and 46 of the reported judgment, which are reproduced.
44. In State of Tamil Nadu v. P.M.Balliappa reported in 1985 (2) LLN 362 (Mad.), this Court has held that the necessity or desirability to place the person under suspension is the objective satisfaction of the Government. More so, the Court cannot look into the sufficiency of material, but only the factum of satisfaction if the satisfaction is no satisfaction at all or it was formed on a consideration or there was total lack of application of mind.
46. In Bhup Narayan Jha v. State of Bihar and others reported in 1984 (2) SLR 573, a Full Bench of the Patna High Court dealt with rule 49A of the Bihar Services (Classification, Control and Appeal) Rules, 1930, which rule is parimateria with rule 17 of the Tamil nadu Civil Services (Classification, Control and Appeal) Rules. Rule 49A of the Bihar Services (Classification, Control and Appeal) Rules, 1930 is extracted hereunder:
"49(A)(1) :---The appointing authority or any authority to which it is subordinate or the Governor, by general or special order, 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, inquiry or trial."
The Full Bench dealing with the proviso and the need for suspension, explained its objects as follows:
"In this context it become necessary to first consider the very nature of an order of suspension made either during the pendency of a departmental proceeding or in reasonable contemplation thereof. It is well settled that suspension is of two kinds -- one by way of punishment, and the other by way of a procedural aid to the holding of disciplinary proceedings. Admittedly herein we are concerned with the latter category. It seems to be undisputed that the concept of suspension during departmental proceeding has only the large objective of ensuring a free and fair conduct of the enquiry that is either pending or is to follow. In this context, the fact that the suspension order is interlocutory or interim in nature can perhaps be hardly denied. The service rules invariably, if not inflexibly, provide for a subsistence allowance during the period and the delinquent official retains his lien on the post during the continuation of the departmental proceeding. This mellows the rigour of the order of suspension and in the event of the enquiry resulting in favour of the official, he would be invariably entitled to the revoking of the order of suspension and the reinstatement to the post with all the benefits of service and salary, (sometimes even without having worked during the said period), as may be provided in the rules. There is thus no finality or irrevocability attaching to an order of suspension, which, as already noticed, retains its character or being interim or interlocutory, in nature. The object and purposes of placing a public servant under suspension during or in contemplation of a disciplinary proceeding may be manifold and do not call for any exhaustive enumeration. However, its salient features are well known and may call for a passing notice. Where serious allegations of misconduct are imputed against an official, the service interest renders it undesirable to allow him to continue in the post where he was functioning. In case where the authority deems a further and deeper investigation into the same as necessary, it become somewhat imperative to remove the official concerned from the spheres of his activities, as it may be necessary to find out facts from people working under him or to take into possession documents and materials which would be in his custody. Usually, if not invariably, it would become embarrassing and inopportune both for the delinquent official concerned as well as the inquiring authority to do so, while such official was present at the spot and holding his official position as such. It was sought to be contended that such a situation may be avoided by merely transferring the official. However, it would be for the authority concerned to decide whether such an official, against whom prima facie serious imputations have been levelled; should at all be allowed to function anywhere else. If it so decides, then suspension during the pendency or in contemplation of an inquiry might well become inevitable. It seems to be a fallacy to assume that suspension is necessarily and wholly related to the gravity of the charge. Indeed, it may have to be ordered to facilitate free investigation and collection of evidence. Just as criminal procedure is intended to subserve the basic cause of a free and fair trial, similarly, suspension as an interim measure in aid of disciplinary proceeding, is directed to the larger purpose of a free and fair inquiry. It would thus seem that the power of suspension is not only necessary, but indeed, a salutary power, if reasonably exercised either during the pendency or in contemplation of a disciplinary proceeding.
12. After considering various decisions in State of Orissa v. Bimal Kumar Mohanty reported in 1994 (4) SCC 126, the Supreme Court held as follows:-
"13. It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge.
14. On the facts in this case, we are of the considered view that since serious allegations of misconduct have been alleged against the respondent, the Tribunal was quite unjustified in interfering with the orders of suspension of the respondent pending inquiry. The Tribunal appears to have proceeded in haste in passing the impugned orders even before the ink is dried on the orders passed by the appointing authority. The contention of the respondent, therefore, that the discretion exercised by the Tribunal should not be interfered with and this Court would be loath to interfere with the exercise of such discretionary power cannot be given acceptance."
13. The Supreme Court in Ministry of Home Affairs v. Tarak Nath Ghosh reported in 1971 (1) SCC 734, which has been considered in Biman Kumar Mohanty's case (cited supra), also raised a question as to whether the suspension of a member of the service can only be ordered after definite charges communicated to him in terms of Rule 5(2) of the All India Services (Discipline and Appeal) Rules, 1955, or whether the Government is entitled to place him under suspension even before that stage has been reached after a preliminary investigation. The Supreme Court in Tarak Nath Ghosh's case held as follows:-
Held: (1) The fact that in other rules of service there is specific provision for an order of suspension even when disciplinary proceedings were contemplated, does not mean that a member of the All India Service should be dealt with differently. It would not be proper to interpret the Rules, which form a self-contained Code, by reference to the provisions of other rules even if they were made by or under the authority of the President of India."
14. In Gyan Singh Parihar v. State of U.P., reported in 2002 (92) FLR 406 (All.), a Division Bench of the Allahabad Court tested the correctness of an order of suspension, pending a proposed disciplinary enquiry, against an employee relating to serious charges of fraud, embezzlement, bribe etc., At para 4 and 5 of the judgment, the Division Bench held as follows:
"4. Whether an employee should or should not continue in his office during the period of disciplinary enquiry is a matter to be assessed by the concerned authority and ordinarily, the Court should not interfere with the order unless it is demonstrated to be mala fide and without there being a prime fade evidence on record connecting the employee with the misconduct in question. See U.P. Rajya Krishi Utpadan Mandi Partshad and Ors. v. Sanjiv Rajan (1993 (2) LLJ 66).
5. It has not been demonstrated before the Court that the order is mala fide and without there being a prime facie evidence on record connecting the petitioner with the alleged misconduct, warranting interference by this Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India."
15. For the purpose of suspension, it is sufficient that the competent authority has arrived at a prima facie conclusion that the Government servant or an employee 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 holding the employee guilty of departmental proceedings, and in all these illustrative cases, it is the matter of necessity and public interest, involved and therefore, it should 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.
16. The appointing / disciplinary authority / government, should be allowed to exercise their discretion to place the government servant / employee under suspension, which is a step in aid, to complete the investigation / trial or charges to be framed by the department. Courts have consistently held that even if the materials are not adequate for prosecution or even after acquittal, the appointing/disciplinary authority / government is empowered to place the government servant / employee under suspension, and that the power can be exercised on proper consideration of relevant materials, in public interest.
17. Once the objective consideration of the allegations and the material on record, warrants suspension, till the completion of enquiry or trial or enquiry by the department, in public interest, it is not for this Court to examine the nature of the allegations, evidence and to record any finding thereon, which would hamper the progress of the departmental enquiry or investigation or trial against the government servant.
18. No doubt, exercise of discretion, should be rational, should not be arbitrary and that there is also a legal duty cast upon the appointing/disciplinary authority to apply his mind before exercising such discretionary power. However, when the government servant/employee against whom, an enquiry into grave charges is pending/under contemplation or an investigation into an offence or trial is pending and such charge/charges, to be formulated, require, placing a person under suspension, then the competent authority can exercise his discretionary power under the relevant rules to place the government servant/employee under suspension, pending enquiry or under contemplation or investigation/trial.
19. 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
20. 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, public interest involved in retaining the government servant/employee, against whom, serious imputation 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/employees or to facilitate a fair enquiry.
21. The appointing authority / 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/employee 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. Suspension cannot be attacked on the ground that the facts stated therein are not correct. It is well settled that High Court cannot delve into factual details, while adjudicating the correctness of an administrative order.
22. During the course of hearing, learned counsel for the petitioner submitted that the suspension of the petitioner was revoked only on 02.02.2012. Therefore, it is clear that at the time of preparation of the temporary panel i.e., on 30.12.2011, for the post of Office Superintendent for the year 2011- 2012, the petitioner was very much under suspension. The services of the petitioner has been temporarily put off, by the department, and therefore, he cannot as a matter of right seek for inclusion in the temporary panel for promotion.
23. Even taking it for granted, that on the date of preparation of temporary panel for the post of Office Superintendent for the year 2011-2012 in the Directorate of Medical and Rural Health Services, Chennai, the petitioner was not served with any charge memo, still he was under suspension. Therefore, in the humble opinion of this Court, the decisions relied on by the learned counsel for the petitioner, in strict sense, are not applicable to the facts of this case.
24. Perusal of the charge memorandum, dated 10.01.2012, issued to the petitioner shows that the department has proposed to hold an enquiry under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The supporting affidavit also does not disclose as to whether there was any objection / representation, within the time, against non inclusion of the petitioner in the temporary panel for the post of Office Superintendent for the year 2011-2012.
25. In the light of the decisions, cited supra, and having regard to the fact that the petitioner was under suspension as on 30.12.2011, the date on which a temporary panel has been prepared and issued, this Court is not inclined to issue any Mandamus as sought for. Hence, this writ petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. No costs.
gcg To
1.The Principal Secretary and Director of Indian Medicine and Homeopathy, Arumpakkam, Chennai - 600 106.
2.The Principal - In-charge, Government Homeopathy, Medical College and Hospital, Thirumangalam, Madurai District.
3.The Director, Directorate of Medical and Rural Health Services, Chennai - 600 006.