Madras High Court
Jawahar Santhakumar vs State Of Tamil Nadu on 19 March, 2010
Author: V.Dhanapalan
Bench: V.Dhanapalan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/03/2010 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.(MD).No.530 of 2009 and M.P.(MD)No.1 of 2009 and M.P.(MD)No.2 of 2009 Jawahar Santhakumar ... Petitioner Vs 1.State of Tamil Nadu, Rep by Chief Secretary to Government, Public (Special A) Department, Secretariat, Fort.St.George, Chennai 600 009. 2.P.Selvakumar ... Respondents PRAYER Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari calling for the records of the first respondent in respect of the impugned proceedings passed in G.O.(2D)No.115, Public (Special A) Department, dated 24.12.2008 and quash the same. !For Petitioner ... Mr.R.Subramanian Senior Counsel for Mr.S.D.Venkateswaran ^For Respondent 1 ... Mrs.V.Chellammal Additional Advocate General Assisted by Mr.V.Rajesakaran Special Government Pleader For Respondent 2 ... Mr.V.Karuna :ORDER
The Challenge in this Writ Petition is to the Order of suspension passed by the first respondent in his proceedings in G.O.(2D)No.115, Public (Special A) Department, dated 24.12.2008.
2. The case of the petitioner is that he was directly recruited as a Deputy Collector by the Tamil Nadu Public Public Service Commission in the year 1985 and he is now as a District Revenue Officer, Karur, [under suspension]. When certain juniors were promoted to the post of Indian Administrative Service [in short I.A.S] with effect from 21.05.1995 overlooking his name, he had filed Original Application in O.A.No.169 of 1995 before the Tamil Nadu Administrative Tribunal [hereinafter referred to as "the Tribunal"]. The said Original Application was allowed by the Tribunal on 07.02.1995 and a direction was issued to the Government to consider the claim of the petitioner for promotion to the post of IAS without reference to the belated order of censure imposed on him. Challenging the competence of a Single Member to decide the matter, the Government filed a Review Application No.70 of 1995. The Tribunal, by order dated 26.06.2002, allowed the said Review Application filed by the Government. As against the same, the petitioner filed a Special Leave Petition in S.L.P.No.6059 of 1996 before the Hon'ble Supreme Court, which remitted the matter back to the file of the Tribunal for fresh disposal on merits.
3. It is the further case of the petitioner that eventually the Tribunal gave a finding that the name of the petitioner is deemed to have been included in the panel and promoted along with his senior. The said Order dated 26.06.2002 passed by the Tribunal has become final, since as against the same, no appeal has been preferred. However, the Government did not implement the Order of the Tribunal for a period of over three months and it was finally implemented only on 05.09.2005. In the meanwhile, number of his juniors were considered for promotion to the post of I.A.S. However, the revised seniority list was not placed before the Selection Committee, and consequently, he was not selected to the said post. Aggrieved by the above action of the Government, he filed Original Application in O.A.No.749 of 2006 before the Central Administrative Tribunal [hereinafter referred to as "the CAT"]. The said Original Application was dismissed by the CAT. Challenging the same, the petitioner filed a Writ Petition in W.P.No.33696 of 2007 before this Court and a Division Bench of this Court allowed the said Writ Petition thereby directing the Government to convene a Selection Committee Meeting to review the promotion for the year 2004 and to promote him to the post of I.A.S., from the date on which his juniors were promoted with all consequential benefits.
4. Aggrieved by the Order passed by the Division Bench of this Court, the Government filed a Special Leave Petition before the Hon'ble Supreme Court and the same was admitted and interim stay was also granted. In the meanwhile, the petitioner filed two Original Applications before the CAT for consideration of his claim for promotion to the post of IAS on the ground of merits and the same are pending before the CAT. Therefore, he claims that a consistent attempt has been made to prevent him from being promoted to the post of IAS. Further, after framing of charges to the Commissioner for Disciplinary Proceedings, a disproportionate asset case was also referred to for enquiry. Though the Enquiry Officer has exonerated him from the charges, the Disciplinary Authority has chosen to disagree with the findings of the Enquiry Officer and the same is still pending.
5. On 23.12.2008, a false case has been foisted against him on the ground that he had demanded and accepted a bribe of Rs.6,000/-. In this connection, a Criminal Case in Crime No.37 of 2008 was registered and he was remanded to judicial custody by the Chief Judicial Magistrate, Karur and detained in Sub- jail, Karur on 23.12.2008 and released on bail on 26.12.2008. Based on the above, the first respondent, by his proceedings dated 24.12.2008, placed the petitioner under suspension with a condition that during the period of suspension, the headquarters will be at Karur and he shall not leave the headquarters without obtaining prior permission from the Government. He was also asked to vacate the quarters on 03.01.2009. Though he had sought for extension of time to surrender the quarters, the same was refused. In the above circumstances, the petitioner has challenged the order of suspension on the ground that without application of mind and subjective satisfaction of the first respondent, the impugned order of suspension has been passed, with a mala fide intention to deprive his rights to get promotion as IAS Officer and in view of the fact that;-
(a) On 22.12.2008, on instructions from the District Collector, rich landlords of Vengakalpatti Village, Aravakurichi Taluk, Karur District, were evicted from encroachment of burial ground of SC/ST community people; hence at the instance of rich landlords of Vengakalpatti Village, the second respondent made a false complaint to cause arrest of the petitioner;
(b) Though his batch-mates were promoted as District Revenue Officers, he was not promoted citing a censure suffered by him in the year 1989, which was completely against all Rules and Regulations.
(c) When a favourable order was passed by the Tribunal, the Government got it annulled by a Division Bench on a technical reason, i.e., a Single Administrative Member had passed the order, and therefore, he had to approach the Hon'ble Supreme Court and after several long years, he got justice and his due promotion along with his juniors. However, the State Government did not implement the order passed by the Tribunal for a long time till his juniors were promoted over him.
(d) On the contrary, the State Government had foisted 17(b) charges one after another and kept it pending for years together and later on, dropped the same. In the year 1998, the first 17(b) charges were framed and the same were ended in the year 2001. The next 17(b) charges started in the year 2002 and ended in the year 2008.
(e) A preliminary enquiry was conducted by the Government on an anonymous petition on the ground that the petitioner had disproportionate assets and this was converted into a detailed enquiry in the year 2000 and a regular case in the year 2005.
(f) First Information Report was lodged and house search was made. The case was referred to the Disciplinary Authority in the year 2007. Though the Disciplinary Authority came to a conclusion that none of the charges were proved, the State Government decided to deviate from such findings of the Authority and directed the petitioner to submit a fresh representation. The impugned order of suspension was passed with a mala fide intention on the ground that the second respondent, Mr.Selvakumar, submitted an application seeking for renewal of D.B.B.L Rifle and the same was rejected as early as in the year 2008 and in the said order, it was made clear that if the party was aggrieved by the same, he was asked to prefer an appeal as required under law.
(g) In those circumstances, no application of the de facto complainant was pending as on 22.12.2008 for making any demand for illegal gratification and as such, the allegation is absolutely false. Similarly, there was no application submitted by Mr.S.Baluswamy, who is stated to be the uncle of the de facto complainant Mr.Selvakumar, the second respondent herein and as such, the allegations that the petitioner demanded a bribe of Rs.6,000/- for renewal of gun license as illegal gratification is also false. Therefore, the mala fide intention on the part of the first respondent is clear from the fact that the trap was set up on 23.12.2008 at about 5.00 PM and the suspension order was served on the petitioner on the very next day, i.e., on 24.12.2008, even before the expiry of 48 hours of detention.
6. Thus, in a hasty manner, without application of mind and subjective satisfaction, the impugned order of suspension has been passed. The impugned order of suspension has been passed under item (ii) of clause (1) Rule 17(e) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, 1955, [hereinafter referred to as "the Rules"] with immediate effect and the impugned order of suspension is silent about the investigation or trial of the alleged criminal offence. Thus, the impugned order of suspension itself shows that the first respondent has not applied his mind for satisfying himself so as to pass necessary suspension order. Based on the above, the petitioner has prayed for quashing of the impugned order.
7. The first respondent has filed a counter, wherein it is stated that as the subject matter in this Writ Petition relates to Public (Special A) Department, he is having competency to file this counter affidavit and it is stated that the name of Mr.S.Jawahar Santhakumar Samraj (now Jawahar Santhakumar), the petitioner herein, formerly a Deputy Collector was considered for promotion to the post of District Revenue officers for the year 1994 - 1995 and was not included in the said panel, in view of the punishment of censure imposed on him and adverse remarks in the check period. However, against the non-inclusion of his name in the panel of District Revenue Officers for the year 1994, he did not prefer any appeal before the Government. But, he filed an Original Application in O.A.No.169 of 1995 before the Tribunal seeking a direction to the first respondent to consider his name for inclusion in the panel for the post of District Revenue Officers for the year 1994 without reference to the adverse remarks and censure suffered by him in the year 1998.
8. The Tribunal, before the first respondent could file a reply affidavit, by an order dated 07.02.1995 in O.A.No.169 of 1995 directed the first respondent to consider the claim of the petitioner for inclusion of his name in the panel of District Revenue Officer for the year 1994 - 1995 without reference to the belated order of censure imposed on him within a period of four weeks from the date of receipt of a copy of the Order. The above Judgment was passed by a Single Member (Administrative Member) of the Tribunal on 07.02.1995.
9. In the meantime, this Court passed an order in a Writ Petition filed by one Mr.Govindarajan challenging the function of the Administrative Member subsequent to 20.01.1995. As per Section 5 of the Administrative Tribunals Act, 1985 (Central Act 13 of 1985), each Tribunal shall consist of a Chairman, Vice - Chairman and Judicial and Administrative Members. That apart, a Single Member cannot function unless he is authorized by the Chairman. In view of the said Provision, the notification No.4/95 issued by the Administrative Member dated 21.01.1995 is not valid and the resultant position is that the Orders passed by the Member, Tamil Nadu Administrative Tribunal on 07.02.1995 in O.A.No.169 of 1995 is also not valid. Therefore, the direction given by the Tribunal to consider him for inclusion of his name in the panel of District Revenue officers for the year 1994 - 1995 without reference to the censure suffered by him within four weeks cannot be given effect to.
10. In the counter, it is further stated that the District Revenue Officer post is a selection post. Merit and ability are the main criteria for selection. The petitioner has suffered with the punishment of censure and has adverse remarks. Since the Government came to a conclusion that he was not found fit to be included in the panel of District Revenue Officers for the year 1994 - 1995, the Government filed a Review Application No.70 of 1995 before the Tribunal. The operative portion of the order passed by the Tribunal dated 08.12.1995 reads as follows:-
"...... to consider the claim without reference to the order of censure is deleted......"
11. In view of the above order passed by the Tribunal, the petitioner filed SLP.No.6059 of 1996 before the Hon'ble Supreme Court. By Judgment dated 26.08.1996, the Hon'ble Supreme Court remitted the matter back to the Tribunal for fresh disposal and a reply affidavit on the above Original Application was filed before the Tribunal by the first respondent. Thereafter, the Tribunal, by an order dated 26.02.2002, held as follows:-
"The petitioner suffered a punishment by way of censure which cannot be ignored and no direction can be given to the respondents to include the name without considering the punishment. Punishment of censure will have an effect and will be in currency only for a period of six months. The Administrative Member also has referred to the currency for the punishment of censure as 6 months and this is not refuted by the Government. The respondent had not produced any Rule or Government Order to show that the currency of punishment of censure will be for more than 6 months. Therefore, the applicant also has not challenged the punishment of censure imposed on him and the punishment of censure has to be taken into consideration for the purpose of deciding as to whether the name of the applicant could be included in the list for 1993 - 1994. The Orders of punishment of censure is dated 24.06.1993. This punishment will be in currency for 6 months, so that the applicant cannot be considered for promotion or inclusion till 24.12.1993. Thereafter, the punishment will not be in currency and this cannot be a bar for further promotion or inclusion in the panel."
12. Therefore, the Tribunal directed that the name of the petitioner is deemed to have been included in the panel for the year 1994 - 1995 and he is further deemed to have been promoted according to his due seniority from the date on which his immediate juniors were promoted. In the circumstances stated above and in view of the Orders of the Tribunal dated 26.06.2002 and after consultation with the Advisory Department of Secretariat and the Senior Standing Counsel of the Tribunal, it was decided to include the name of the petitioner in the panel of District Revenue officers for the year 1994 and it was published in the Government Order issued in G.O.Ms.No.1172, Public (Sepcial.A) Department, dated 31.12.1994. Later, his appeal petition dated 28.01.2005 was considered in consultation with the Advisory Department and orders were passed promoting the petitioner as District Revenue Officer notionally with effect from 25.01.1995 vide G.O.Ms.No.924, Public (Special.A) Department, dated 05.09.2005. Thus, the Government implemented the Order of the Tribunal.
13. In the counter, the stand of the first respondent is that the petitioner was appointed as a Deputy Collector by direct recruitment and he joined the service on 25.03.1987. He was promoted to the next higher category of District Revenue Officer with effect from 20.12.1995, as the punishment of censure was imposed on the petitioner, whereas his junior Mr.N.Mathivanan was promoted as District Revenue Officer on 25.01.1995. It is well established administrative procedure that whenever a person suffers from infirmity because of undergoing punishment/charge with a grave lapse, promotion to such candidate is deferred. The petitioner, because of his own commissions and omissions, has been facing disciplinary proceedings and enquiry by the Vigilance and Anti- Corruption Department from the year 1998. In the year 2003, there were four vacancies. As per Regulation 5(2) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955, [hereinafter referred to as "the Regulation"], three names shall be considered for one vacancy. Therefore, for four vacancies, 12 names were considered. Accordingly, the Selection Committee, which met on 24.12.2003, considered the following twelve officers;-
Sl.No Name of the Officers (S/Shri) 1. D.Uthirakkumaran (SC) 2. T.K.Ponnusamy (BC) 3. V.M.Xavier Chrisso Nayagam (BC) 4. P.Ekambaram (BC) 5. V.Chandrasekaran (MBC) 6. N.Mathivanan (SC) 7. Tmt.R.Vasuki (BC) 8. S.Jawahar Santhakumar Samaraj (BC) 9. Dr.M.Rajendran (BC) 10. Mahesan Kasirajan (BC) 11. V.Palanikumar (BC) 12. M.Jayaraman (MBC)
14. As the petitioner was eighth in the said Order in the panel of candidates taken up for consideration and there were only four vacancies, he did not get promotion in the year 2003. In the year 2004, there were three vacancies. As per Regulation, nine names shall be considered. Accordingly, the Selection Committee, which met on 18.12.2004, considered the following nine officers;-
Sl.No Name of the Officers (S/Shri) 1. T.K.Ponnusamy (BC) 2. N.Mathivanan (SC) 3. Tmt.R.Vasuki (BC) 4. S.Jawahar Santhakumar (BC) 5. Dr.M.Rajendran (BC) 6. Mahesan Kasirajan (BC) 7. V.Palanikumar (BC) 8. M.Jayaraman (MBC) 9. V.K.Shanmugam (MBC)
15. During the year 2004, the petitioner was assessed as "Good", whereas other officers were assessed as "Very Good". Hence, he was not considered. The assessment of service records was done by a Statutory Selection Committee constituted by the Government of India. Apart from three State Government Officials, two Senior Officials from the Government were also appointed as Selection Committee Members, besides a Member from the Union Public Service Commission. Therefore, the assessment was done, after going through the service records of the individual officer by a Committee with All India Characteristics. However, it is unfortunate that the petitioner tries to characterize the above act of the Government as a victimization by the first respondent.
16. Subsequently, by virtue of a Government Order issued in G.O.Ms.No.924, Public (Special.A) Department, dated 05.09.2005, the name of the the petitioner was included in the panel of District Revenue Officers for the year 1994 - 1995 as serial No.10-A i.e., below the name of Mr.R.Venkaesan and above Mr.N.Mathivanan and temporarily promoted as District Revenue Officer with effect from 25.01.1995, i.e., the date on which his junior Mr.N.Mathivanan was promoted to the post of District Revenue Officer. In the years 2005 and 2006, there were four and six vacancies respectively, in which the name of the petitioner was included provisionally in the Selection List for the years 2005 and 2006, as a Tribunal for Disciplinary Proceedings enquriy was pending against him relating to possession of disproportionate assets to his known sources of income. The Enquiry Report from the Commission for Disciplinary Proceedings, Chennai, was received by the Government only on 08.07.2008. The Selection Lists for the year 2005 - 2006 were valid till 22.03.2008. Therefore, he was not promoted to the post of IAS during the validity period of the Selection List, as the Tribunal for Disciplinary Proceedings case pending against him was not concluded before 22.03.2008.
17. The first respondent has further stated that in the year 2007, the petitioner was considered by the Selection Committee. However, his name was not included in the Selection List for the year 2007 on merits. The petitioner had contended that several of his juniors were considered for promotion to the post of IAS and two of them, viz., Mr.N.Mathivanan and Mr.R.Vasuki, were promoted to the post of IAS, in the three vacancies, which arose in the year 2004, by a Selection Committee Meeting held on 18.12.2004. According to the petitioner, his name was not considered due to the failure to include his name in the Selection List and also to review the selection after the seniority was altered. The State, in its Reply Affidavit, had, inter-alia, contended that the appointment of State Civil Service Officers to the post of IAS is done based on merits. Further, it was contended that the name of the petitioner was considered for promotion to the post of IAS by the Selection Committee, which met on 18.12.2004, along with other State Civil Service Officers, as per the relevant Rules and Regulations.
18. The CAT, Madras Bench, after considering the case and after perusal of the original file of the Union Public Service Commission, concerning the Selection Committee Meeting held on 18.12.2004, had, by its order dated 31.08.2007, dismissed the above Original Application holding that there is no evidence to suggest that the Selection Committee was guided by inter-se- seniority of the Officers and further after making relative assessment of Annual Confidential Report of the Officers in the zone of consideration, the Committee has given an overall grading. The overall grading of the petitioner was lower than Mr.N.Mathivanan and Tmt.R.Vasuki respectively, and hence, he was not selected.
19. It is also stated in the counter that as against the dismissal of the Original Application, the petitioner had preferred a Writ Petition in W.P.No.33696 of 2007 before this Court and a Division Bench of this Court, by order dated 17.04.2008, allowed the said Writ Petition and held as follows:-
"..... to convene the Selection Committee Meeting for reviewing the promotions made to the I.A.S., for the vacancies of the year 2004 & promote the petitioner to I.A.S., from the date when his juniors, the respondents 4 and 5 therein, were promoted, with all consequential benefits and by this, the petitioner shall be deemed to have been promoted to the I.A.S., cadre, from the date when his juniors were promoted. It cannot also be a problem to the Government, since, admittedly, for that year, three vacancies were lying vacant and out of which, only two vacancies were filled up by promoting respondents 4 & 5 and Thiru Ponnuswamy, whose name was provisionally included in the list, was not selected. Therefore, in the third vacancy, the petitioner could be accommodated. The entire process shall be completed within a period of twelve weeks from the date of receipt of a copy of this Order."
20. The Union Public Service Commission filed SLP(C).No.15015 of 2008 and obtained an interim order of stay on 10.07.2008. Thereafter, the State Government filed Special Leave Petition before the Hon'ble Supreme Court in the matter on 14.11.2008 and the same was numbered as SLP(C).No.17515 of 2008. In the meanwhile, the petitioner filed M.A.No.310 of 2008 before the CAT to condone the delay in filing Original Application praying to include his name in the Selection List for the year 2003. The Government raised an objection to condone the delay and a reply affidavit in M.A.No.310 of 2008 was filed before the CAT on 05.01.2009. The case came up for hearing on 13.02.2009. The petitioner also filed O.A.No.681 of 2008 before the CAT seeking a direction to the first respondent to include his name in the Selection List for the year 2007 for appointment to the post of IAS. A reply affidavit has also been filed by the State Government on 19.12.2008 stating that he was considered, but not included in the Selection List for the year 2007 on merits. As per Regulation, the promotion to the post of IAS was done. Inclusion of junior member of State Civil Service in preference to senior member in the Selection List is not violative of Articles 14 and 16 of the Constitution of India and the same has been upheld by the Hon'ble Supreme Court in the case of R.S.Dass v. UOI and others reported in AIR 1987 SC 593.
21. It is also stated in the counter that a Regular Case in RC/204/04/TANCEM/CSUIII was registered against the petitioner for the allegation of possession of assets to the known source of income. Based on the report submitted by the Director of Vigilance and Anti-Corruption, Tribunal enquiry was conducted and the charges were held as not proved by the Commissioner for Disciplinary Proceedings, Chennai. The Director, Vigilance and Anti-Corruption requested the Government to review the findings of the Commissioner for Disciplinary Proceedings, Chennai. Accordingly, the Government examined in detail the review proposal and accepted the same and sought for further explanation from the petitioner for the deviation of the findings of the Commissioner for Disciplinary Proceedings, Chennai. Accordingly, the petitioner has submitted his further explanation and the remarks of the Director, Vigilance & Anti-Corruption have been sought for and received, which was examined in detail and the same is under consideration of the Government.
22. It is further stated in the counter that the allegation of the petitioner that a false case has been foisted on the file of Tiruchirappali Vigilance and Anti-Corruption in Crime No.37 of 2008 on 23.12.2008 against him is incorrect. The said case was registered on the complaint of one Tr.P.Selvakumar, S/o.Perumal, Periyavadugapatty, Athur Village, Vennaimalai Post, Karur District, the second respondent herein. Before organizing a trap, the antecedents of the complainant, as well as the reputation of the petitioner, were verified by the Deputy Superintendent of Police and only after such verification, the said trap was organized. Therefore, the contention of the petitioner that a false has been foisted against the petitioner cannot be allowed to stand. The petitioner was remanded to judicial custody by the Chief Judicial Magistrate, Karur on 23.12.2008 and was released on bail on 26.12.2008.
23. Based on the above, under item (ii) of clause (1) of Rule 17(e) of the Rules, he was placed under suspension and on 23.12.2008, a Criminal Case in Crime No.37 of 2008 on the file of the Vigilance & Anti-Corruption, Tiruchirappalli, was registered. Thereafter, on 27.12.2008, the petitioner has made a representation before the District Collector, Karur, with a request to permit him to stay at the District Revenue Officers' Quarters and the same was examined by the District Collector and informed that as per Rule, his request cannot be considered. Therefore, the District Collector, by his proceedings dated 29.12.2008, directed the petitioner to vacate the quarters. The petitioner, thereafter, made a request to the District Collector for extension of time to vacate the quarters and the same was also not considered.
24. It is a well established procedure that when a criminal case against a Government Servant is under investigation, as per Rule 17(e) of the Rules, he/she can be placed under suspension until further orders, and accordingly, the first respondent issued the suspension order, which is not against law as alleged by the petitioner, and therefore, there is no mala fide intention of the Government in the matter of suspension, as the accused should not be absolved from the actual offence committed by him. Therefore, the contention of the petitioner that he was implicated in a false case on the instigation of rich landlords, who were evicted by the petitioner in Vengagalpatty, Karur District, on a representation made by SC/ST Community people is baseless, since the petitioner, being a District Revenue Officer, would have acted in such a manner in many other cases and all such instances cannot be made as a reason for registration of a case.
25. The first respondent, in the counter, has also stated that the first disciplinary action initiated against the petitioner was closed based on the findings of the Enquiry Officer. Thereafter, the Government initiated second disciplinary action against the petitioner under Rule 17(b) of the Rules on 18.04.2005 for the irregularities committed by him while he was working as District Revenue Officer (L&E), Corporation of Chennai. The above case was originated based on the report received from the Commissioner (in-charge), Corporation of Chennai on 09.05.2002. After thorough examination of the case, on 20.08.2002, the Government directed the Director of Vigilance and Anti- Corruption to conduct a preliminary enquiry into the allegations made against the petitioner. Pursuant to the same, the Director of Vigilance and Anti- Corruption held that the allegations levelled as against the petitioner are proved and recommended for disciplinary action.
26. The Government, therefore, initiated disciplinary action under Rule 17(b) of the Rules, during the year 2005 and not during the year 2002 as stated by the petitioner. In the said case, the Enquiry Officer has come to a conclusion that some interpolations were made in the original records of Corporation, Chennai. Hence, on 13.09.2005, again it was referred to the Director of Vigilance and Anti-Corruption for investigation. The Director of Vigilance and Anti-Corruption, by his letter dated 17.11.2005, requested for a detailed enquriy to probe the interpolations and on 22.06.2006, the Government permitted the Director of Vigilance and Anti-Corruption to conduct a detailed enquiry into the interpolations. Since the allegation of interpolation said to have been levelled against the petitioner was substantiated, on 04.05.2007, an additional charge was framed. Based on the findings of the Enquiry Officer, after following the procedures contemplated under the relevant Rules and manual of the Director of vigilance and Anti-Corruption, on 25.03.2008, the further actions were dropped. Therefore, the contention of the petitioner that it was kept pending for years together is baseless.
27. It is also stated that the assessment of service records was done by a Statutory Selection Committee constituted by the Government of India, in which apart from Three State Government Officials, Two Senior Officials from the Government were also appointed as Selection Committee Members, besides a Member from the Union Public Service Commission. Therefore, the grading was done after going through the service records of the individual officer by a Committee with All India characteristics. The promotion to the post of IAS was done as per the Regulations. Therefore, the inclusion of junior member of State Civil Service in preference to senior member in the selection list is not at all violative of Articles 14 and 16 of the Constitution of India. Since the overall grading of the petitioner was lower than Thiru N.Mathivanan and Tmt.R.Vasuki, the petitioner was not selected, and therefore, no mala fide intention was made out in his case.
28. The further contention of the petitioner that the complainant, the second respondent herein, has not approached the petitioner on 22.12.2008 cannot be accepted, as a mere reading of the complaint given by the second respondent on 23.12.2008, would go to show that the second respondent had approached the petitioner on 22.12.2008 at about 20.00 hours at the office of the petitioner, viz., O/o, the District Revenue Office, Karur and at that time, he demanded Rs.6,000/- from the second respondent for renewal of his gun license and also one Mr.Balusamy, a relative of the second respondent.
29. The contention of the petitioner that the application submitted by the second respondent seeking for renewal of gun license was rejected by him in May 2008 is also baseless, since the above application of the second respondent dated 30.05.2007 pending in the office of the petitioner in RC.No.D3/37575/2007 was requisitioned and obtained by the trap laying officer on 24.12.2008 containing 11 pages. The communication in the last page was found initialed on 09.05.2008 by the petitioner, for note instructing Mr.P.Selvakumar, the second respondent, to appear for personal enquiry on 19.05.2008, and thereafter, without any further communication, the file was stopped. The pendency of the application for renewal of gun license from 30.07.2007 to 23.12.2008, nearly for seventeen months would clearly establish that the reference was pending only for money, when there were no other remarks on the application of the second respondent. The said file was handed over to the Trap Laying Officer by the District Collector, Karur on 24.12.2008.
30. Similarly the contention of the petitioner that no application of Mr.S.Balusamy, a relative of the petitioner, was pending with him is also baseless, since the application of Mr.S.Balusamy pending in the office of the petitioner since 16.11.2007, was also requisitioned and obtained by the Trap Laying Officer on 24.12.2008 from the District Collector, karur in RC.No.D3/37962/2007. The last correspondence seen in the file relates to 24.03.2008, in which the concerned Assistant has filled up the format by renewing the gun license of Mr.S.Balusamy from 01.01.2008 to 31.12.2010 and the concerned Assistant has initialed on 24.03.2008 and for obtaining signature of the petitioner, the said file was pending from 24.03.2008 to 23.12.2008, which shows that the said application of Mr.Sa.Balusamy was pending only for money and according to his convenience, the petitioner has fabricated the facts and projected a false case that he was not at fault and no such applications of the petitioner and his relative were pending with him. The above trap was laid at the instance of vested parties to wreck vengeance against the petitioner due to the eviction order passed by him, is nothing but an imagination of the petitioner and it has no basis at all.
31. Likewise, the contention of the petitioner that two police constables thrust the money into the pocket of the petitioner cannot be accepted, since no police constable would dare to indulge in such act against an Officer, that too, in the cadre of a District Revenue Officer. The contention of the petitioner that the trap was set up on 23.12.2008 at about 05.00 PM and the suspension order was issued on 24.12.2008, even before the expiry of 48 hours of detention would show that the suspension order was issued without application of mind cannot be allowed to stand, since the expiry of 48 hours of detention in judicial custody is not a criteria to place a Government Servant under suspension. Rule 17(e) (1) (ii) of the Rules reads as follows;-
"A member of a service may be placed under suspension from service, where, a complaint against him of any criminal offence is under investigation or trial and if suspension is necessary in the public interest."
32. In view of the above Rule and the involvement of the petitioner in a criminal case, the petitioner was placed under suspension and there is nothing wrong in placing him under suspension. In the suspension order, the involvement of the petitioner in the above criminal case has been clearly stated, and therefore, it cannot be stated that without application of mind and subjective satisfaction, the suspension order has been issued and the same is well within Rules. Therefore, the contention that the trap and the suspension order were pre-planned is also baseless, since now-a-days, with the assistance of available modern gadgets communication, it could be made in between two agencies within a minute and it is also possible to get any order within hours together.
33. As per Rule 17(e) (1) of the Rules, the first respondent is having statutory power to place the petitioner under suspension, and therefore, it cannot be said that the impugned order of suspension is tainted with mala fide motives and the same was issued well within the Rules.
34. Since a criminal case was registered by the Vigilance and Anti- Corruption, Tiruchirappalli, against the petitioner and the investigation is still pending, after conclusion of the investigation and merits of the case, the same will be finalized, and therefore, the petitioner need not invoke the extraordinary jurisdiction under Article 226 of the Constitution of India. Based on the above, the learned Additional Advocate General has prayed for dismissal of the Writ Petition.
35. The second respondent has also filed a counter, wherein it is stated that he has submitted an application in the year 2008 before the petitioner seeking for renewal of gun license. However, the said application was rejected on the ground that an agriculturist does not need a gun license. Again, in the year 2008, the second respondent approached the petitioner for obtaining gun license for his relative Mr.S.Balusamy. Though the second respondent, several times, approached the petitioner for gun license, there was no response from the petitioner. On 22.12.2008, he approached the office of the petitioner. Though he waited up to 08.00 PM, the petitioner did not turn up. While he was waiting at the office of the petitioner, he found that there were Carton Boxes with words "Anbukarangal" and "Shanthi Nilayam" written on them. On enquiry, he found that those boxes were Hand Towels and Pillow Covers for orphanages in Karur to be given as gift by the petitioner on 23.12.2008 for the festival of Christmas.
36. On the same day, i.e., on 23.12.2008, when he went to the home, he came to know that the first respondent has passed an eviction order thereby removing the cultivation done in the fields of his relatives on the ground that it was a Government Poromboke land and the petitioner destroyed the live turmeric plants standing in his lands. Since the said act of the petitioner was not tolerable, the second respondent made a complaint before the Vigilance and Anti-Corruption on the ground that the petitioner had demanded bribe. Pursuant to the complaint given by him, the above criminal case was registered against the petitioner by the Deputy Superintendent of Police, Vigilance and Anti- Corruption, Trichy and he was arrested and remanded to judicial custody and released on bail. Based on the involvement of the petitioner in the above criminal case, the first respondent issued the suspension order.
37. The first and foremost contention of the learned Senior Counsel appearing for the petitioner is that without application of mind and without subjective satisfaction, the impugned order of suspension has been passed. The impugned order has been passed on mala fide grounds, in view of the fact that;-
(a) On 22.12.2008, on instructions from the District Collector, rich landlords of Vengakalpatti Village, Aravakurichi Taluk, karur District, were evicted from encroachment of burial ground of SC/ST community people; hence at the instance of rich landlords of Vengakalpatti Village, the second respondent was set to give a false complaint to cause arrest of the petitioner;
(b) the suspension order has been passed due to mala fide intention of the Higher Authorities.
(c) On the facts and circumstances of the case, the continuation of suspension is not required in the present case; and
(d) On merits, there had been no occasion for the petitioner to demand and accept bribe, since the application of the second respondent seeking gun license was already disposed of.
38. The learned Senior Counsel further submits that under Rule 17(e)(1)(ii) of the Rules, a member of service may be placed under suspension from service, where, a complaint against him of any criminal offence is under investigation or trial and if suspension is necessary in the public interest. Thus, according to the petitioner, the suspension is warranted when a criminal offence is under investigation or trial. However, the impugned order does not refer to either the stage of investigation or the stage of trial and it only reads that it was reported that the petitioner was arrested in a trap case and remanded to judicial custody, and as such, he is suspended from service. Thus, the order reflects that the first respondent has not applied his mind to satisfy himself as to whether the requirements of the Rule regarding investigation or trial are available or not. In the absence of the same, the suspension order becomes illegal and invalid.
39. It is also submitted that the trap was laid on 23.12.2008 at about 05.00 PM at Karur and on the very next day, i.e., on 24.12.2008, the order of suspension was passed by the first respondent at Chennai and served on the petitioner, while he was in judicial custody at Karur. Therefore, there would not have been any possibility for the authorities to place the entire records before the first respondent for consideration of the same and satisfaction for passing the impugned order. From the above facts, it could be understand that in a hasty manner, the impugned order of suspension has been passed by the first respondent, which shows that the first respondent has never applied his mind and satisfied himself about the necessity for placing him under suspension.
40. With regard to mala fide intention on the part of the defacto complainant, the second respondent herein, it is submitted by the learned Senior Counsel that on 23.12.2008, on instructions from the District Collector, rich landlords were evicted from certain encroachments of burial ground of SC/ST community people at Vengakalpatti Village, Aravakurichi Taluk, Karur District. During removal of encroachments, it is alleged that turmeric plants, which were standing in the fields for more than seven months, were destroyed and according to the second respondent, the encroachers are his close relatives. It is accepted by the second respondent in his counter that on 22.12.2008, he waited in the office of the petitioner from 04.00 PM to 08.00 PM and he could not meet the petitioner. Therefore, the second respondent, instigated by his close relatives, developed mala fide intention as against the petitioner. The second respondent has also accepted in his counter that when he was waiting at the office of the petitioner, he found that there were Carton Boxes with words "Anbukarangal" and "Shanthi Nilayam" written on them. On enquriy, he found that those boxes were Hand Towels and Pillow Covers for orphanages in Karur to be given as gift by the petitioner on 23.12.2008 for the festival of Christmas. Therefore, the second respondent utilised the occasion as an opportunity to offer a sum of Rs.6,000/- as donation which was refused by the petitioner. However, the second respondent gave the said money to Mr.Ananda Sekar, Camp Assistant, as if the petitioner had asked him to handover the amount to the Personal Clerk with instructions to directly pay the same to the charitable institutions. Thus, due to the mala fide intention on the part of the second respondent and his close relative, the entire episode has been set up.
41. Insofar as the mala fide intention on the part of the authority is concerned, it is contended that the petitioner was driven to legal proceedings from the year 1995 onwards for inclusion of his name in the panel for promotion to the post of IAS. Ultimately, he also succeeded before the Division Bench of this Court. However, the Government filed a Special Leave Petition before the Hon'ble Supreme Court and the same is also admitted in the counter filed by the first respondent. Thus, the authorities have got mala fide intention as against the petitioner. He further submits that the mala fide intention on the part of the authorities is also established in view of the fact that under the guise of search and seizure, all Court records have been seized from the house of the petitioner.
42. The learned Senior Counsel, in support of his contentions, has relied on a decision of the Hon'ble Supreme Court in State of Orissa v. Bimal Kumar Mohanty reported in AIR 1994 SC 2296, wherein, in paragraph 12, it has been held as follows:-
"12. 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."
43. Relying on the above Judgment, it is contended by the learned Senior Counsel that there was no occasion for the first respondent to consider the facts and circumstances of the case. According to him, since the impugned order has been passed against the principles enunciated in the above Judgment, the suspension order becomes illegal, invalid and has to be quashed. The petitioner was suspended from service on 24.12.2008. In the Criminal Case registered against him, the investigation has been completed and charge sheet has also been laid on 28.10.2009. The completion of investigation and filing of charge sheet was on the request made by the petitioner and on the directions issued by this Court in Crl.OP(MD).No.4984 of 2009, dated 14.08.2009, and therefore, the question of tampering of the witnesses or records by the petitioner in future does not arise. Though 13 months have completed, the suspension order passed as against the petitioner has not been revoked by the first respondent. The learned Senior Counsel, relying on an Order of this Court dated 21.12.2009 made in W.P.No.22697 of 2009, submits that the suspension order has to be revoked and the petitioner has to be reinstated in service and may be posted in any non- sensitive post.
44. Per contra, Mrs.V.Chellammal, learned Additional Advocate General, assisted by Mr.V.Rajasekaran, learned Special Government Pleader, submits that pursuant to the complaint given by one Mr.P.Selvakumar, the second respondent herein, alleging that the petitioner demanded Rs.6,000/- as bribe for renewal of his gun license as well as that of his relative Mr.S.Balusamy, a trap was set up and the petitioner was arrested and released on bail. In view of the involvement of the petitioner in the above criminal case, the first respondent, by G.O.(2D).No.115, Public (Special.A) Department, dated 24.12.2008, placed the petitioner under suspension, which is under challenge in this Writ Petition.
45. With regard to the ground of locus standi to pass the impugned order of suspension, the learned Additional Advocate General submits that since the first respondent, who passed the impugned order of suspension, is the Chief Secretary to Government, Public (Special.A), Department, Secretariat, Chennai, he is having competency to pass such order. Therefore, the petitioner cannot question the competency of the authority to pass the impugned order of suspension.
46. With regard to the contention of mala fide intention, the learned Additional Advocate General submits that a person, who alleges mala fide, has to prove the mala fide action of the authority concerned and unless and until the mala fide action of the authority is proved, the Court cannot interfere with the same. In respect of the said contention, the learned Additional Advocate General has relied on a Judgment of the Hon'ble Supreme Court in Ajitkumar Nag vs. General Manager (PJ), Indian Oil Corporation Limited, Haldia and others reported in 2005 (7) SCC 764, wherein, in paragraph 56, it has been held as follows:-
56. In our view, neither the learned Single Judge nor the Division Bench has committed any error of law and/or of jurisdiction which deserves interference in exercise of discretionary jurisdiction under Article 136 of the Constitution. As is clear, the situation has been created by the appellant. It was very grave and serious and called for immediate stern action by the General Manager. Exercise of extraordinary power in exceptional circumstances under Standing Order 20(vi) in the circumstances, cannot be said to be arbitrary, unreasonable or mala fide. It is well settled that the burden of proving mala fide is on the person making the allegations and the burden is "very heavy".
(vide E.P. Royappa v. State of T.N.424) There is every presumption in favour of the administration that the power has been exercised bona fide and in good faith. It is to be remembered that the allegations of mala fide are often more easily made than made out and the very seriousness of such allegations demands proof of a high degree of credibility. As Krishna Iyer, J. stated in Gulam Mustafa v. State of Maharashtra525 (SCC p. 802, para2): "It (mala fide) is the last refuge of a losing litigant."
47. Insofar as contention of the petitioner that there is no application of mind while issuing the suspension order, the learned Additional Advocate General submits that under Rule 17(e)(1)(ii) of the Rules, a member of a service may be placed under suspension from service, where, a complaint against him of any criminal offence is under investigation or trial and if suspension is necessary in the public interest. But, a close reading of the impugned order of suspension issued by the first respondent, it is crystal clear that the suspension order has been passed with clear application of mind and on appreciation of the materials available before the authorities as evident from paragraph 1 of the order, wherein, it has been indicated that inasmuch the petitioner herein was arrested in a trap case for demand and acceptance of a bribe of Rs.6,000/- and a criminal case was registered in Crime No.37 of 2008 and he was remanded to judicial custody by the Chief Judicial Magistrate, Karur and detained in Sub-jail on 23.12.2008, it was felt necessary in the public interest to place him under suspension, and therefore, the above decision relied on by the petitioner will not come to the rescue of the petitioner.
48. The learned Additional Advocate General, in support of her contention, has relied on a Judgment of a Division Bench of this Court in S.Jeevanantham vs. The Government of Tamil Nadu, rep by its Secretary to Government, Commercial Taxes and Registration Department, Chennai and others reported in CDJ 2010 MHC 283, wherein, in paragraph 7, it has been held as follows:-
"Rule 17(e)(1) (ii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules also provides for placing a Government Servant under suspension, if any criminal offence is under investigation or trial. Rule 17(e)(1) (ii) reads as under:-
a complaint against him of any criminal offence is under investigation or trial and if such suspension is necessary in the public interest."
49. Further, the learned Additional Advocate General submits that the contention of the petitioner that the suspension order has been passed in a hurried manner is baseless, since now-a-days, with the assistance of available modern gadgets and communication, the materials relating to the arrest of the petitioner were squarely placed before the appropriate authorities and due to advent of Fax and E-mail, the authorities concerned have taken a decision and placed the petitioner under suspension in public interest. Therefore, it cannot be said that in a hurried manner, the impugned order of suspension has been passed by the first respondent.
50. It is also submitted by the learned Additional Advocate General that the post of District Revenue Officer was created in the year 1960 mainly to ease the burden of the District Collectors and to enable the District Collectors to concentrate more on the welfare schemes. Hence, the post itself carries onerous responsibilities and in the absence of District Collectors, it is for the District Revenue Officer to take charge of the administration of the District concerned, and therefore, a fair amount of integrity and devotion are required for the said post.
51. It is further submitted by the learned Additional Advocate General that resorting to suspension pending criminal case is not punitive in nature, which means that the relationship of master and servant remains in abeyance temporarily. Therefore, in all fairness of things, continuing him under suspension is necessary in the public interest till the disposal of the above criminal case. In respect of the above submission, she relies on a Judgment of a Division Bench of this Court in Chairman and Managing Director, Tamil Nadu Salt Corporation Limited, Chennai vs. M.Subramanian reported in 2007 (1) MLJ 550, wherein, it has been held as follows:-
"(a)In service jurisprudence, the concept of suspension is a well recognised one and in contemplation or pending disciplinary proceedings the employer has got the right to place its employee under suspension and normally court cannot sit in judgment over the discretion of the employer. In this case, the petitioner in his affidavit in W.P.(MD)No.8327/2006 would state that the order of suspension was vague and arbitrary; it was passed behind the back of the petitioner; and that it was resorted to as a revenge as against the petitioner in view of he approached the Court by filing writ challenging the transfer order.
(b)The perusal of the order of suspension, dated 05.09.2006, would show that in contemplation of disciplinary proceedings, the petitioner was placed under suspension. The relevant portion of the suspension order is extracted here under for ready reference.
"Certain major lapses had been noticed in terms of lack of overall control and supervision by Thiru M.Subramanian the then PM (IGS), MVSC with regard Project activities which are of serious in nature. Therefore in order to avoid further deterioration in the Project activities Thiru M.Subramanian was transferred immediately from the Project to Trichy as Regional Manager Trichy vide CO proceeding No.353/PA/2006 dated 03.08.2006.
2.As per the rules Thiru.M.Subramanian has been referred to Medical Committee vide CO Lr.No.353/PA/2006 dated 11.8.2006, since he immediately applied for Medical leave on receipt of transfer order.
3.WHEREAS, an enquiry into grave charges against Thiru M.Subramanian is contemplated.
4.AND WHEREAS it is necessary in the public interest to place the said Thiru M.Subramanian under suspension from service, pending framing of charges with immediate affect....."
(c)The perusal of the above excerpt would at once make us to understand and infer that the respondent, in contemplation of disciplinary proceedings only suspended the petitioner. Learned counsel for the petitioner would submit that as on date only charges relating to the petitioner having not joined the post, to which he was transferred alone, was framed and no other charges. At this stage, this Court cannot visualise as to what the respondent would do or would not do. In paragraph 1 of the suspension order, it is set out that such suspension order was passed in contemplation disciplinary action relating to some serious lapses in the service of the petitioner as Project Manager." In this connection, the decision of the Hon'ble Supreme Court in State of Orissa v. Bimalkumar Mohanty reported in AIR 1994 SC 2296' 1994 (4) SCC 126 :
1995-1-LLJ-568 could fruitfully be referred to. An excerpt from it would run thus;
"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 of 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."
The perusal of the available records would show that we could see no mala fide intention on the part of the Corporation in placing the petitioner under suspension.
9. Prima facie and ex-facie the order of suspension does not suffer from any illegality or absence of any legal backing. The challenge to the suspension order is embedded on the logical fallacy "Post hoc, ergo propter hoc" (After this, therefore because of this) simply because the petitioner's writ preceded the suspension order, the former event cannot be assumed as 'Causa Causans' to the later. The events that occurred after the filing of the writ cannot be ignored also. The suspension order also, without mincing words, clearly highlights on what lines disciplinary action is contemplated. In such a case and also in view of the above discussion supra, no interference is warranted as against the order of suspension. Accordingly, this point is answered against the petitioner."
52. I have considered the above submissions made by the learned counsel on either side and perused the material documents and also analyzed the relevant Rules.
53. Admittedly, the petitioner was appointed as a Deputy Collector by direct recruitment and he joined the service on 25.03.1987. Subsequently, by virtue of a Government Order issued in G.O.Ms.No.924, Public (Special.A) Department, dated 05.09.2005, the name of the the petitioner was included in the panel of District Revenue Officers for the year 1994 - 1995 as serial No.10-A i.e., below the name of Mr.R.Venkatesan and above Mr.N.Mathivanan and temporarily promoted as District Revenue Officer with effect from 25.01.1995, i.e., the date on which his junior Mr.N.Mathivanan was promoted to the post of District Revenue Officer. In the years 2005 and 2006, there were four and six vacancies respectively, to which the name of the petitioner was included provisionally in the Selection List, though a Tribunal for Disciplinary Proceedings enquriy was pending against him relating to possession of disproportionate assets to his known sources of income. The Enquiry Report from the Commission for Disciplinary Proceedings, Chennai, was received by the Government only on 08.07.2008. The Selection Lists for the years 2005 and 2006 were valid till 22.03.2008. Therefore, he was not promoted to the post of IAS during the validity period of the Selection List, as the Tribunal for Disciplinary Proceedings case pending against him was not concluded before 22.03.2008.
54. Further, in the year 2007, the petitioner was considered by the Selection Committee. However, his name was not included in the Selection List for the year 2007. The contention of the petitioner is that several of his juniors were considered for promotion to the post of IAS and two of them, viz., Mr.N.Mathivanan and Mr.R.Vasuki, were promoted to the post of IAS, in the three vacancies, which arose in the year 2004, by a Selection Committee Meeting held on 18.12.2004. According to the petitioner, his name was not considered due to the failure to include his name in the Selection List and also to review the selection after the seniority was altered. However, the stand of the first respondent is that the name of the petitioner was considered for promotion to the post of IAS by the Selection Committee, which met on 18.12.2004, along with other State Civil Service Officers, as per the relevant Rules and Regulations, and the appointment of State Civil Service Officers to the post of IAS was done based on merits.
55. Also, it is seen that a regular case in RC/204/04/TANCEM/CSUIII was registered against the petitioner for the allegation of possession of assets to the unknown sources of income. Based on the report submitted by the Director of Vigilance and Anti-Corruption, Tribunal enquiry was conducted and the charges were held as not proved by the Commissioner for Disciplinary Proceedings, Chennai. But, the Director, Vigilance and Anti-Corruption requested the Government to review the findings of the Commissioner for Disciplinary Proceedings, Chennai. The Government examined in detail the review proposal and accepted the same and sought for further explanation from the petitioner for deviation of the findings of the Commissioner for Disciplinary Proceedings, Chennai. The petitioner submitted his further explanation and the remarks of the Director, Vigilance & Anti-Corruption had been sought for and received, which were examined in detail and the same are under consideration of the Government.
56. It is a well established procedure that when a criminal case against a Government servant is under investigation, as per Rule 17(e) (1) of the Rules, he/she can be placed under suspension until further orders. Therefore, as per the said rule, the first respondent is having a statutory power to place the petitioner under suspension in the given situation.
57. As held by the Supreme Court in State of Orissa v. Bimal Kumar Mohanty, relied upon by both the parties, 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.
58. 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, inquiry etc. But, 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.
59. Since a criminal case was registered by the Vigilance and Anti- Corruption, Tiruchirappalli, against the petitioner and the investigation is still pending, the guilt or otherwise of the matter same will be finalized only after conclusion of the investigation.
60. It is a well settled proposition of law that unless and until the mala fide action of the authority is proved, the Court cannot interfere with the same. This law is laid down by the Supreme Court in Ajitkumar Nag vs. General Manager (PJ), Indian Oil Corporation Limited, Haldia and others, reported in 2005 (7) SCC 764. Further, a Division Bench of this Court in Chairman and Managing Director, Tamil Nadu Salt Corporation Limited, Chennai vs. M.Subramanian, reported in 2007 (1) MLJ 550, has held in categorical terms that in service jurisprudence, the concept of suspension is a well recognised one and, in contemplation or pending disciplinary proceedings, the employer has got every right to place its employee under suspension and normally Court cannot sit in judgment over the discretion of the employer.
61. For all the foregoing reasons, this Writ Petition is devoid of merit and, accordingly, it is dismissed. However, it is seen that pursuant to the complaint given by the second respondent on 23.12.2008, a case had been registered in crime No.37 of 2008 and, thereafter, the petitioner was placed under suspension on 24.12.2008 and his claim for promotion on several occasions were not considered. Prolonging the suspension without conclusion of the proceedings would definitely cause prejudice to the right of the petitioner for promotion. Therefore, to meet the ends of justice, this Court feels it desirable to conclude the proceedings one way or other within a time frame. Accordingly, the first respondent is directed to expedite the conclusion of the disciplinary proceedings pending against the petitioner, preferably not later than three months from the date of receipt of a copy of this order, and communicate the same to the petitioner immediately thereafter. It is needless to mention that in case the proceedings end in favour of the petitioner, the petitioner is entitled to promotion in accordance with law. No costs. Consequently, the connected M.Ps. are closed.
NB/dixit To The Chief Secretary to Government, State of Tamil Nadu, Public (Special A) Department, Secretariat, Fort.St.George, Chennai 600 009.