Madras High Court
K.Somasundaram vs The Revenue Divisional Officer on 2 February, 2010
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.02.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.15313 and 27484 of 2009 and M.P.NOs.1 and 1 OF 2009 and 1 of 2010 K.Somasundaram .. Petitioner in W.P.No.15313 of 2009 B.Sakthivel .. Petitioner in W.P.No.27484 of 2009 Vs. 1.The Revenue Divisional Officer, Erode. 2.The Tahsildar, Erode Taluk, Erode District. .. Respondents in both the petitions These writ petitions are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records pertaining to the orders of suspension passed by the first respondent in Ref.701/2008/A-2, dated 24.01.2008 and to quash the same and to direct the respondents to reinstate the petitioner into service with all other attendant benefits and Ref.No.702/2008/A.2, dated 01.02.2008 on the file of the first respondent and to quash the same as illegal, incompetent and without jurisdiction and consequently, direct the respondents to reinstate the petitioner in the post of Village Administrative Officer respectively. For Petitioners : Mr.S.Kamadevan in W.P.No.15313 of 2009 Mr.R.Marudhachalamurthy in W.P.No.27484 of 2009 For Respondents : Mrs.C.K.Vishnupriya, AGP - - - - COMMON ORDER
Heard both sides. In W.P.No.15313 of 2009, the petitioner is a Village Administrative Officer in Chennai Samudram 'B' Village. By proceedings, dated 29.11.2006, he was transferred to Anjur-B village. Thereafter, he was arrested in connection with a crime No.8 of 2008 on the file of the District Crime Branch, Erode with offences under Sections 120B, 419, 420, 468 and 471 IPC.
2.The petitioner contended that the alleged occurrence had taken place during October, 2005 and his name did not find place in the FIR. But, the respondent Revenue Divisional Officer, Erode, by an order, dated 24.1.2008 suspended him in public interest and that enquiry into grave charges were pending and also that he was arrested for tampering with village records and remanded to custody. The writ petition was admitted on 4.8.2009. Pending writ petition, this court granted an interim stay, stating that it was a prolonged suspension and this court in AIR 1970 MAD 155 (State of Madras Vs. K.A.Joseph) held that prolonged suspension cannot be ordered.
3.The respondents have come forward to file a vacate stay application in M.P.No.1 of 2010. In that the Revenue Divisional Officer, Erode had stated that he had received a report from the Inspector of Police, District Crime Branch that the petitioner had indulged in tampering with village records in favour of certain villagers and that he was arrested. Therefore, the petitioner was placed under suspension on public interest. Because of stay granted, he was presently posted to work as a Village Administrative Officer at Vaipadi Village, Perundurai by order, dated 21.10.2009. However, investigation on the question of tampering with records is still pending and therefore, suspension will have to continue. The posting order was given only pursuant to the interim order. But, however, now a prayer was made to revoke the interim order.
4.The letter by the Inspector of Police, District Crime Branch, dated 18.1.2010 sent to the Revenue Divisional Officer, Erode was also produced, stating that records have been sent to the Forensic Laboratory and they will get the final report by the end of February and thereafter, charge sheet will be filed against him.
5.Similarly, in W.P.No.27484 of 2009, the petitioner is also a Village Administrative Officer at Sivagiri village. He is also involved in the same crime and was also placed under suspension, by an order, dated 1.2.2008. When the petitioner came to challenge the same, since the other writ petition was referred to, that was also directed to be posted along with the vacate stay petition.
6.Heard Mr.S.Kamadevan, learned counsel for the first writ petitioner, Mr.R.Marudhachalamurthy, learned counsel for the second writ petitioner and Mrs.C.K.Vishnupriya, learned Additional Government Pleader appearing for both respondents.
7.Learned counsel for the petitioners contended that in AIR 1970 MAD 155, this Court held that though normally this court will not interfere, but in case if a person is indefinitely kept under suspension without any enquiry, the court can order restoration. This was also subsequently followed by a learned Judge of this court in W.P.No.10661 of 2009, dated 5.8.2009. Further reliance was made on the judgment of this Court in M.Chengaiah Vs. The State of Tamil Nadu reported in 1983 MLJ 348, wherein by relying upon the Government Order in G.O.Ms.No.211, P&AR Department, dated 27.2.1980, it was held that the said G.O. is only a guidance, but if there was continued suspension pending criminal investigation without any progress, the court can order restoration of his service.
8.Similarly, in a judgment of the division bench of this court in P.S.Ambigapathy Vs. The Director of Public Health and Preventive Medicine and another reported in 1991-1-LW.682, the petitioner therein was placed under suspension and since there was no extension, the same was questioned and that was upheld by the Division Bench.
9.Similarly in a judgment of this court in K.Saravanan Vs. Tamil Nadu Electricity Board reported in 1994 TLNJ 111, the Division bench held that if there is no progress in the criminal case, suspension can be revoked.
10.Finally, the learned counsel for the petitioners relied upon the judgment of the Supreme Court in O.P. Gupta v. Union of India reported in (1987) 4 SCC 328. Reliance was placed upon the following passage found in paragraph 15, which is as follows:
"15. We have set out the facts in sufficient detail to show that there is no presumption that the government always acts in a manner which is just and fair. There was no occasion whatever to protract the departmental inquiry for a period of 20 years and keeping the appellant under suspension for a period of nearly 11 years unless it was actuated with the mala fide intention of subjecting him to harassment. The charge framed against the appellant was serious enough to merit his dismissal from service. Apparently, the departmental authorities were not in a position to substantiate the charge. But that was no reason for keeping the departmental proceedings alive for a period of 20 years and not to have revoked the order of suspension for over 11 years. An order of suspension of a government servant does not put an end to his service under the government. He continues to be a member of the service in spite of the order of suspension. The real effect of the order of suspension as explained by this Court in Khem Chand v. Union of India1 is that he continues to be a member of the government service but is not permitted to work and further during the period of suspension he is paid only some allowance generally called subsistence allowance which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression subsistence allowance has an undeniable penal significance. The dictionary meaning of the word subsist as given in Shorter Oxford English Dictionary, Vol. II at p. 2171 is to remain alive as on food; to continue to exist. Subsistence means means of supporting life, especially a minimum livelihood. Although suspension is not one of the punishments specified in Rule 11 of the Rules, an order of suspension is not to be lightly passed against the government servant. In the case of Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni2 the court held that the expression life does not merely connote animal existence or a continued drudgery through life. The expression life has a much wider meaning. Suspension in a case like the present where there was no question of inflicting any departmental punishment prima facie tantamounts to imposition of penalty which is manifestly repugnant to the principles of natural justice and fair play in action. The conditions of service are within the executive power of the State or its legislative power under the proviso to Article 309 of the Constitution, but even so such rules have to be reasonable and fair and not grossly unjust. It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time. If such a principle were not to be recognised, it would imply that the executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration."
(Emphasis added)
11.It is under these circumstances, a prayer was made to quash the suspension order passed against the petitioners. However, the decisions relied on by the petitioners were of no use to them, since in the present case, there was specific criminal case against petitioners and investigation is under progress. The petitioners were also arrested by the police in connection with the criminal case. It is not enough to say that their names were not in the FIR. In fact, FIR is only a starting point for an investigation. The further progress in the investigation may reveal several facts, which were not stated in the FIR. In any event, the letter sent by the Inspector of Police, District Crime Branch, Erode shows that the report is awaited from the Forensic Laboratory and that a charge sheet will be filed before the end of February.
12.In any event, there is no automatic restoration to service. If there is valid order of suspension made by the authorities and there is no mala fide alleged against them and it is passed by the competent authorities, the question of interfering with such suspension may not arise.
13.The Supreme Court vide its judgment in Allahabad Bank v. Deepak Kumar Bhola reported in 1997 (4) SCC 1 held that if suspension is pending criminal trial, on the ground of moral turpitude a mere expiry of long period of 10 years since filing of the charge sheet is not a proper ground for reinstatement.
14.The Supreme Court in its decision reported in 1990 (3) SCC 60 (Director General and Inspector General of Police, Andhra Pradesh, Hyderabad and others Vs. K.Ratnagiri) has held in paragraph 3 as follows:
"3....The government may review the case and make further or other order but the order of suspension will continue to operate till it is rescinded by an appropriate authority."
15.The Supreme Court in Union of India Vs. Rajiv Kumar reported in 2003 (6) SCC 516 had an occasion to decide the issue of prolonged suspension. The Supreme Court held that in a genuine case, if the authorities feel that suspension has to be continued, the court cannot interfere with the same. The following passage found in paragraph 29 may be usefully extracted below:
"29. Another plea raised relates to a suspension for a very long period. It is submitted that the same renders the suspension invalid. The plea is clearly untenable. The period of suspension should not be unnecessarily prolonged but if plausible reasons exist and the authorities feel that the suspension needs to be continued, merely because it is for a long period that does not invalidate the suspension."
Even O.P.Gupta's case (cited supra) takes the similar view.
16.In the light of the above, the impugned orders do not call for any interference. Hence both the writ petitions will stand dismissed. No costs.
17.In the case of first writ petitioner (K.Somasundaram), who had the benefit of restoration due to the interim order, will also stand suspended by virtue of the order passed in his writ petition. It is needless to state that if the criminal case do not progress or there are no prima facie case against petitioners which can be noted after filing of the charge sheet before the criminal court, it is open to the first respondent to review the said order in terms of Rule 17(6) if such applications are made by petitioners. Consequently, connected miscellaneous petitions stand closed.
vvk To
1.The Revenue Divisional Officer, Erode.
2.The Tahsildar, Erode Taluk, Erode District