Madras High Court
A. Abdul Gani vs The Superintending Engineer, ... on 20 October, 1995
Equivalent citations: (1996)1MLJ52
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER AR. Lakshmanan, J.
1. The prayer in the writ petition is to issue a writ of certiorarified mandamus calling for the records relating to the order of the respondent in Memo No. 321/Admn.1/A5/F/Suspension/95, dated 6.7.1995, quash the same and consequently direct the respondent to treat the period of suspension as duty and grant all other attendant benefits to the petitioner.
2. The petitioner, who joined the services of the Tamil Nadu Electricity Board in the year 1991 as Assistant Engineer (Electrical), was suspended under Regulation 9(a)(i), (ii) of the Tamil Nadu Electricity Board Employees (Discipline and Appeal) Regulations (hereinafter referred to as the Regulations), by an order dated 6.7.1995. An allegation was made by one A. Sekaran stating that the petitioner and one Jagannathan demanded a sum of Rs. 100 each and informed the said A.Sekaran that unless the petitioner and the said Jagannathan were paid Rs. 100 each, no electricity connection would be provided to his father Annamalai. According to the petitioner, the complaint is false and that the money which has been received has been entered in the account books and receipt had been issued and that neither the petitioner nor Jagannathan could have stopped in providing electricity service connection to Annamalai.
3. On 4.7.1995, the said A. Sekaran lodged a complaint with the Vigilance and Anti Corruption Department, Dharmapuri. A trap was laid on 5.7.1995 during which time, currency worth Rs. 100 was seized from the petitioner as well as from Jagannathan. The petitioner was suspended under the memo impugned in this writ petition pending an enquiry into grave charges. It is stated in the impugned memo that the petitioner has been arrested by the police for accepting the bribe and since an enquiry into the grave charges was contemplated, he was placed under suspension pending enquiry. It is also stated in the memo that in the circumstances of the case it is necessary in public interest to place the petitioner under suspension from service.
4. The order of suspension is challenged by Mr.V. Manivannan, learned Counsel for the petitioner on the following grounds:
(i) The power to suspend an employee should be carefully and sparingly exercised. The relevant portion of the Regulation relied on by the learned Counsel for the petitioner reads as under:
A Board employee should be placed under suspension only if his continuance in office will be clearly detrimental to the public interest, e.g. by giving him an opportunity to continue in his malpractices or to tamper with the investigation or conduct of the disciplinary proceedings. If it is possible to retain a person in an unimportant post, pending investigation, or enquiry, suspension should not be resorted to. If a transfer from one place to another is considered sufficient, suspension should be avoided....
Placing strong reliance on the above regulation, Mr.V. Manivannan contended that when the Regulation itself provides for various alternative methods for retaining an employee by providing alternative employment so that he will not continue the mischief or tamper with the evidence, the order of suspension is vitiated in the absence of any finding that the continuance of the petitioner in the office will be detrimental to the public interest or that he will continue the mischief or tamper with the evidence.
(ii) Regulation 6(1) of Chapter II of the Regulations relating to suspension runs thus:
A Board employee can be placed under suspension only by a specific order made in writing by the competent authority. A standard form in which the order should be made is given in Appendix II. The authorities competent to place a Board employee under suspension should adopt the appended form, while placing a Board employee under suspension. A Board employee should not be placed under suspension by an oral order. Suspension takes effect from the date on which the order of suspension is made or any subsequent date specified in such order. In the case of deemed 'suspension', the suspension automatically takes effect from the date on which the event which occasioned such 'deemed suspension' takes place, even without a formal order of suspension. However, it is desirable for purposes of administrative record that a formal order in this behalf is issued by the competent authority stating the date from which the Board employee concerned is deemed to be under suspension and the circumstances leading to such deemed suspension.
Quoting the above Regulation, learned Counsel for the petitioner submitted that the power of suspension is quasi-judicial in nature and any dictation to a quasi-judicial authority as to how he should exercise the quasi-judicial power vitiates the entire order. Since the order of suspension should be passed in the standard form prescribed - as given in Appendix II -the only inference is, the authority had not independently applied his mind on the facts and circumstances of the case and as such, the order of suspension is liable to be quashed. According to Mr. V. Manivannan, the impugned order is a verbatim copy of Appendix II and it has been repeatedly held that a mechanical and verbatim reproduction of the rule vitiates against quasi judicial approach and is liable to be set aside on the ground of non-application of mind.
(iii) There is a delay of 25 days in lodging the complaint and therefore the impugned order of suspension is liable to be set aside. In support of his contention, Mr. V. Manivannan, learned Counsel for the petitioner, placed reliance on the judgments of the Supreme Court reported in B. Rajagopala Naidu v. The State Transport Appellate Tribunal Madras and Ram Chander v. Union of India .
5. I am unable to countenance any of the contentions raised by the learned Counsel for the petitioner. The word 'suspension', according to Oxford Dictionary, means action of debarring or state of being debarred especially for a time from a function or "state of being kept inoperative for a time". The meaning of the word 'suspend' has been given in the dictionary as 'to debar' or usually for a time from the exercise of a function or enjoyment of a privilege, specially to deprive temporarily of one's office'. By reason of suspension, the person suspended does not lose his office nor does he suffer any reduction in rank. He only ceases to exercise the powers and to discharge the duties of the office for the time being. His powers, functions and privileges remain in abeyance but he continues to be subject to the same authority. He cannot seek employment elsewhere though he does not perform his normal duties. During the period of suspension he is paid subsistence allowance, which is normally less than his salary, instead of the pay and allowances he would have been entitled to if he had not been suspended. It is true that suspension causes great mental agony to the person concerned. The suspended employee suffers from a sense of degradation in the eyes of his colleagues, friends and relations. He also suffers from certain other disadvantages in his service conditions like confirmation and promotion. However, so far as the Board is concerned, it has to pay the suspended employee, subsistence allowance during the period of suspension without taking any work from him. In the case of an employee who is exonerated of his charges in a departmental proceeding or who, if prosecuted in a criminal charge, is acquitted of his criminal charge, he is entitled to payment of full pay and allowances for the entire period of his suspension even though he did not do any work for the Board for this period. Courts have held that the power of ordering suspension should be exercised carefully and with restraint and before a suspension order is issued, one must be clear in one's mind that it is necessary and unavoidable. The management can suspend an employee if his continuance in office will be clearly detrimental to the public interest. It is also held by Courts that if it is possible to retain a person in a unimportant post, pending investigation or enquiry, suspension should not be resorted to. If a transfer from one place to another is considered sufficient, Courts have held, that suspension should also be avoided. As seen already, suspension not only causes hardship and mental agony to the employee concerned but also causes additional expenditure to the Board. The suspended official will have to be paid subsistence allowance and the substitute in his place will also have to be paid, not to mention the liability to pay the full salary if the suspension is held wholly unjustified on the case ending in acquittal. Keeping in mind the above broad principles, it is to be seen whether the discretion vested in the competent authority in this regard has been exercised properly with care and caution.
6. As already seen, the petitioner was arrested by the police for accepting bribe. It is also the case of the Board that the petitioner and another Jagannathan, who is also an employee of the Board, demanded a sum of Rs. 100 each for providing electricity service connection to one Annamalai. A complaint was also lodged on 4.7.1995 by A. Sekaran, son of the applicant Annamalai, and the Vigilance and Anti-corruption Department, Dharmapuri, laid a trap on the very next day during which time currency worth Rs. 100 was seized from the petitioner as well as from the said Jagannathan. So, there cannot be any doubt that the petitioner is facing a grave charge of corruption.
7. The contention of the learned Counsel for the petitioner that the suspension of the petitioner will create hardship, prejudice and humiliation as well as financial loss to the petitioner cannot at all be accepted. The Board feels that the continuance in office of the petitioner, in the light of the grave charges, would be detrimental to the public interest and if the petitioner is allowed to continue in office, he will definitely tamper with investigation. In the light of the enquiry into grave charges of misconduct, it is not possible for this Court to advise the Board to retain the petitioner even in an unimportant post pending investigation or to transfer him to any other place. Therefore, I reject the first contention.
8. This apart, the contention of the petitioner that his suspension will cause financial loss to him and therefore such an order must be passed after application of mind, cannot at all be countenanced. As already seen, the petitioner is suspended pending an enquiry into grave charges. The order of suspension will not in any way affect the petitioner. During the period of suspension, the Board has to pay him subsistence allowance without taking any work from him and ultimately if he is exonerated of the charge in a departmental proceedings or if he is acquitted of any criminal charge, he is entitled to payment of full pay and allowances for the entire period of suspension even though he did not do any work for the Board during the period. Therefore, this contention also fails.
9. The last contention of Mr.V. Manivannan is that the respondent has issued the order of suspension in a standard form as prescribed in Appendix II and that since the power of suspension is quasi judicial in nature, any dictation to a quasi-judicial authority as to how he should exercise the quasi-judicial power vitiates the entire order. According to Mr. V. Manivannan, the Board should not direct the disciplinary authority to pass the order of suspension in the form prescribed in Appendix II and if such a direction is given, the only inference that could be drawn would be, that the authority who passed the order of suspension had not independently applied his mind on the facts and circumstances of the case and as such, the same is liable to be quashed. I am unable to appreciate this contention as well. Regulation 6 of Chapter II provides that an employee of the Board can be placed under suspension only by a specific order made in writing by the competent authority. A standard form in which such an order should be made is given in Appendix II and that the authority competent to place an employee of the Board under suspension should adopt the form prescribed in Appendix II. A Board employee should not be placed under suspension by an oral order. In my opinion, Regulation 6 only directs the competent authority to place an employee of the Board under suspension by making a specific order in writing. A standard form is also prescribed in Appendix II. That form is only a model form of order of suspension. It is printed at the top of the form as follows:
Appendix - II (Model form of Order of Suspension) Tamil Nadu Electricity Board Memorandum No. Dated:
Sub: Establishment - Thiru (Name and Designation)
- Suspension from service - Ordered....
10. Therefore, it is seen that the model form of suspension is suggested for the employer to adopt the said form so long as it is applicable to the individual cases. There is nothing wrong or illegal to prescribe a model form for the officers to follow. The only condition precedent is, that the order should be passed by the competent authority in writing. In the instant case, the competent authority has applied his mind and passed the impugned order. It is not a cyclostyled order or mechanical verbatim reproduction of the form found in Appendix II. In my opinion, the competent authority has applied his mind and passed the order of suspension. Prescribing a form or format by the management for the competent authority to pass orders of suspension cannot at all be construed as a dictation to the competent authority. The format is only a model form and it is for the authority concerned to adopt the form wherever it is applicable and to disregard the same wherever it is inapplicable. The impugned order produced before me is not a cyclostyled order or the verbatim reproduction of the model form. The order is a typed one and that itself shows the application of mind on the part of the competent authority while passing the impugned order. Therefore, this contention also fails.
11. Regulation 9 of the Regulations framed in exercise of the powers conferred by Section 79(c) of the Electricity (Supply) Act, 1948, deals with suspension. Regulation 9(a) states that a member of a class of service may be placed under suspension from service where 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 and if such suspension is necessary in the public interest. In the instant case, as already seen, the petitioner has demanded a bribe and also received the same and he was also trapped by the Vigilance and Anti-Corruption Department at the time of receiving the bribe. First information Report has also been lodged before the Chief Judicial Magistrate, Krishnagiri, in Crime No. 2/AC/95 by the Vigilance and Anti-Corruption Department. The complaint was lodged under Section 7 of the Prevention of Corruption Act. The complaint was given on 4.7.95 by one A. Sekaran and the petitioner and one Jagannathan were cited as accused 1 and 2. The said complaint against the petitioner is also under investigation. When the petitioner is facing an enquiry into grave charges and a complaint is also given before the competent criminal court against the petitioner and another, which is under investigation, person like the petitioner, in my opinion, should be kept under suspension in public interest. There is also no delay as alleged in lodging the complaint. The competent authority has only exercised his power under Regulation 9(a). Therefore, it is futile on the part of the petitioner to question the competency of the officer placing him under suspension on certain flimsy and imaginary grounds.
12. The decision reported in B. Rajagopala Naidu v. The State Transport Appellate Tribunal, Madras , cited by the learned Counsel for the petitioner is a case arising under the Motor Vehicles Act, 1939. The Supreme Court, on the facts and circumstances of that case, held that G.O. No. 1298, dated 28.4.1956 was outside the purview of Section 43-A of that Act inasmuch as it purports to give directions to the Tribunals in matters which have to be dealt with in quasi judicial manner and therefore was invalid. Since the order was solely based on the basis of the said Government Order, the Supreme Court has quashed the Government Order as outside the purview of Section 43-A.
13. Citing the above decision, Mr. V. Manivannan contended that the format prescribed under Appendix II and the direction given in Regulation 6 of Chapter II have to be construed as interference with the discretion conferred on quasi judicial authorities, since, according to him, the power of exercise of discretion is controlled by Regulation 6 of Chapter II and Appendix II. The judgment of the Supreme Court cited above has been rendered on the peculiar facts and circumstances of the said case and is therefore distinguishable on facts. It is settled law that the scope of the jurisdiction of the quasi judicial authorities or the Tribunals constituted by the statute can well be regulated by the statute and principles for guidance of the said Tribunals may also be prescribed subject, of course, to the inevitable requirement that these provisions do not contravene the fundamental rights guaranteed by the Constitution. In the instant case, it is not proved that Regulation 6 of Chapter II and the format prescribed under Appendix II do in any way affect or contravene the fundamental rights of the petitioner.
14. The decision reported in Ram Chander v. Union of India , is a case where in appeal under Rule 18(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968, against the penalty of removal under Rule 6(viii) imposed by the General Manager against a railway servant, the Railway Board dismissed the appeal by an order which was just a mechanical reproduction of the phraseology of Rule 22(2) without any attempt on the part of the Railway Board to marshal the evidence on record with a view to decide about the sustainability of the findings recorded by the disciplinary authority. Further, in the order itself there was no indication that the Railway Board applied its mind as to whether the act of misconduct with which the railway servant concerned was charged, together with the attendant circumstances and the past record of the appellant were such that he should have been visited with the extreme penalty of removal from service for a single lapse during the period of 24 years of his service; there being non-compliance with the requirements of Rule 22(2), the Supreme Court held, the order passed by the Railway Board was illegal and must be set aside.
15. The above case, in my opinion, is not applicable to the case on hand. The appeal was filed before the Supreme Court against the final order of penalty of removal under Rule 6(viii) imposed by the General Manager against a railway servant. The Supreme Court set aside the order of dismissal on the ground that it was just a mechanical reproduction of the phraseology of Rule 22(2) of the Rules. In the instant case, only an order of suspension was issued pending an enquiry into grave charges and also pending investigation of a criminal complaint already lodged before the competent criminal court. I have already rejected the contention of the learned Counsel for the petitioner that the order impugned is a cyclostyled order or a mechanical and verbatim reproduction of the model form. It is neither a cyclostyled order nor a mechanical and verbatim reproduction of the model form. The impugned order is in a typed form. This apart, the Supreme Court in the above cited case has interfered with the order of dismissal on the ground that there was no indication in the order that the Railway Board has applied its mind as to whether the act of misconduct with which the railway employee was charged together with the attendant circumstances, etc. As already stated, in the instant case, an enquiry is contemplated in regard to the grave charges of misconduct and also criminal investigation is pending. Therefore, this judgment will be of no assistance to the petitioner.
16. Regulation 9(a) empowers the authority to keep the petitioner under suspension pending investigation or enquiry into criminal charges and where such suspension is necessary in the public interest. When the first information report was lodged, the investigation commences and indeed it has commenced when the petitioner was placed under suspension. The order of suspension cannot be said to be beyond the scope of Regulation 9. The petitioner seems to have ignored this well accepted principle.
17. The decision reported in D. Uthirakumaran v. The Government of Tamil Nadu 1988 Writ L.R. 229 is a judgment by a Division Bench of this Court consisting of S. Mohan, J., as he then was, and Padmini Jesudurai. The Bench has elaborately considered the situations in which a member of service may be placed under ad interim suspension. The Division Bench held that with regard to suspension pending enquiry, it is certainly not punitive in character. In such a case, it means the relationship of master and servant remains in abeyance for a temporary phase. It is an action in order to maintain purity of service when an employee is awaiting an enquiry in regard to his suspected misconduct. The Bench also held that the suspension pending or in contemplation of disciplinary enquiry does not amount to temporary removal from service and does not attract Article 311 of the Constitution. The power of suspension not by way of punitive action but to keep an officer out of the sphere of action is a substantive power and it is not dependent on the enquiry on the charges and the result flowing from the enquiry. In paragraph 21, the Bench has observed as follows:
It is not correct to say that unless there is a formulation of charges, there cannot be an order of suspension, under Rule 17(3)(1)(i) of the Rules. Prudence should also dictate this course because if the nature of misconduct is such (it is unnecessary for us to give instances of grave misconduct) that it may not be possible to formulate charges, the exigencies of administration might require immediate suspension so that such a grave misconduct may not be repeated. One illustration will suffice. Supposing a civil servant is caught red handed while accepting a bribe to do a favour, in such a case, to insist that all the materials be gathered against him, formulate the charges and thereafter suspend him would not only be ill-advised but time consuming. By virtue of his office, the civil servant may easily tamper with the entire evidence and prevent witnesses from coming forward to depose against him.
18. The principles laid down in the above decision squarely apply to the case on hand. In this case, as illustrated by the Bench, the petitioner was caught red handed while accepting a bribe to do an obligation or favour to a party. In such a case, as pointed out by the Bench, to insist that all the materials be gathered against him and formulate the charge and thereafter suspend him is not only ill-advised but also time-consuming. As pointed out by the Bench, persons like the petitioner may, by virtue of his office, easily tamper with the entire evidence and prevent witnesses coming forward to depose against him.
19. In this case, the accusations are grave enough, since, should they ultimately be proved, it would result in serious consequences. Therefore, the learned Counsel for the petitioner is not correct to urge that there are no materials for placing the petitioner under suspension. Hence, I am of the view, the accusations are grave enough and sufficient for placing the petitioner under suspension. I can only conclude this order by saying that it is only a bona fide exercise of power and there is no vindictiveness or arbitrariness on the part of the authority concerned in exercising his power under Regulation 9.
20. In the result, the writ petition fails and is dismissed at the stage of admission itself.