Madras High Court
K.S.Abdul Rashid vs The State Of Tamil Nadu on 22 August, 2013
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/08/2013 Coram THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD)No13800 of 2013 and M.P.(MD).No.1 of 2013 K.S.Abdul Rashid ... Petitioner Vs The State of Tamil nadu, rep. by its Secretary to Government, Public Works (E1) Department, Fort St. George, Secretariat, Chennai-600 009. ... Respondent Petition filed under Article 226 of the Constitution of India to issue writ of Certiorari calling for the records of the respondent in his proceedings G.O.(D).No.379 Public Works (E1) Department, dated 101102011 and quash the same. !For Petitioner ... Mr.A.Thirumurthy ^For Respondent ... Mr.S.Bhaerathi Government Advocate :ORDER
The petitioner, an Executive Engineer, has been placed under suspension by the Government in G.O.(D) No.379 Public Works (E1) Department, dated 10.11.2011 under Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, following his arrest, at 13.00 hours on 19.10.2011, alleging demand and acceptance of bribe of Rs.20,000/- from one Thiru.A.Pandian, for issuance of a cheque for the works executed by him. A case in Crime No.10 of 2011 has been registered against the petitioner under Section 7 of the Prevention of Corruption Act 1988, by the Madurai Detachment of the Directorate of Vigilance and Anti Corruption. The petitioner has been remanded to judicial custody. Therefore, vide order dated 10.11.2011, as stated supra, the petitioner is deemed to have been placed under suspension from the date of arrest i.e. from 19.10.2011. Subsequently, the criminal prosecution has been withdrawn and that the same is substantiated in the reply dated 27.05.2013 given by the Superintendent of Police, Vigilance and Anti Corruption Department, Chennai-28, to a query made by the petitioner under the Right to Information Act. Lateron, the Chief Engineer (Buildings), Chief Engineer, Chennai Region and Chief Engineer General (PWD Chennai) has framed a charge memorandum in No.CII(3)/10237/2011-16 dated 24.05.2013.
2. The charge framed against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules is as follows:
"That Thiru K.S.Abdul Rashid, Executive Engineer (under suspension), PWD. In his former capacity as the Executive Engineer, PWD, WRD, Periyar Main Canal Division, Melur, Madurai actuated by corrupt motive and abuse of his official position has demanded and accepted an amount of Rs.20,000/- from Thiru P.Pandian, S/o.Alagappan, A.V.Sala Street, Melur, Madurai District and a State level contractor in Public Works Department, on 19.10.2011, as illegal gratification, being the 5% of total bill amount of Rs.3,94,482/- for issuance of cheque to him, has committed official misconduct and misdemeanor and thus, failed to maintain absolute integrity and devotion of duty as warranted under Rule 20 of Tamil Nadu Government Servants Conduct Rules, 1973."
3. The statement of allegations contained in Annexure-II in respect of the charges framed against the petitioner is extracted hereunder:
"Thiru K.S.Abdul Rashid, Executive Engineer (under suspension), PWD was formerly working as Executive Engineer, PWD, WRD, Periyar Main Canal Division, Madurai Region, Madurai during the period from 02.102009 to 19.10.2011 A.N. Thiru K.S.Abdul Rashid, in his former capacity as the Executive Engineer, PWD, WRD Periyar main Canal Division, Melur, Madurai, was the authority to sanction and pass the bills for payments to the contractors, on completion of respective works.
Thiru A.Pandian, S/o.Alagappan, A.V.Sala Street, Melur, Madurai District is a District and State level contractor in Public Works Department. The contract for the work of Renovation of Koolapandi Kanmai was taken up by Thiru A.Pandian, under the jurisdiction of Executive Engineer, PWD, WRD, Periyar Main Canal Division, Melur on 04.07.2011 at a contract value of Rs.3,97,561/-. The work was completed on 03.08.2011. Thiru E.P.Vigneswaran, Assistant Engineer, WRO, PWD, Periyar Main Canal Section, Mettupatti, had recorded the measurements for the works on 04.08.2011 in Measurement Book No.2011 and the part bill was forwarded to the Assistant Executive Engineer, PWD, WRD, Periyar Main Canal Sub Division 1, Melur.
The above work was check measured by Thiru N.Anbuselvam, Assistant Executive Engineer, WRO, PWD, Periyar main Canal Sub Division, Madurai and part bill was countersigned by him on 10.08.2011 and forwarded to the Executive Engineer, PWD, WRD, Periyar Main Canal Division, Melur for passing of bill. Thiru K.S.Abdul Rashid, Executive Engineer (under suspension), PWD, WRD, Periyar Main Canal Division, Melur had passed the bill for a value of Rs.3,94,482/- on 16.08.2011.
On knowing that, the part bill for the work of "Renovation of Koolapandi Kanmal" was passed by the Executive Engineer, PWD, WRD Periyar Main Canal Division, Melur, Thiru.A.Pandian, Contractor, had met Thiru K.S.Abdul Rashid, Executive Engineer (under suspension), and Thiru N.Anbuselvam, Assistant Executive Engineer, PWD at Public Works Department office in Thallakulam, Madurai, on 16.08.2011 regarding the payment for the said work. Thiru K.S.Abdul Rashid, Executive Engineer (under suspension), PWD and Thiru N.Anbuselvam, Assistant Executive Engineer, PWD had informed him that, the funds were not allotted for the issuance of cheque and he might get payment only after the allotment of funds.
Again after two months, Thiru A.Pandian, Contractor went to the Public Works Department office Thallakulam, Madurai on 14.10.2011 and enquired about his cheque to Tmt.Shanthi, Superintendent, Periyar Main Canal Sub Division, Madurai and she asserted that the cheque was ready to issue and asked him to meet Thiru K.S.Abdul Rashid, Executive Engineer (under suspension), PWD and Thiru N.Anbuselvam, Assistant Executive Engineer, PWD. On 18.10.2011, Thiru.A.Pandian, Contractor alongwith Thiru Gunasekaran, Secretary, Contractors Association has met Thiru K.A.Abdul Rashid, Executive Engineer (under suspension), PWD, WRO, at his office at Melur and asked about the cheque. Thiru K.S.Abdul Rashid, Executive Engineer (under suspension), PWD asserted that, A.Pandian, Contractor should pay 5% commission on the estimated amount to issue the cheque Thiru Gunasekaran, replied to Thiru K.S.Abdul Rashid, Executvie Engineer (under suspension), PWD, that he was having some election work on next day and Thiru A.Pandian, Contractor, would meet him to pay the commission amount of Rs.20,000/- on 19.10.2011.
Thiru A.Pandian, Contractor had contacted Thiru K.S.Abdul Rashid, Executive Engineer, PWD, over mobile phone on 19.10.2011 at 11.10 hours Thiru K.S.Abdul Rashid, Executive Engineer (under suspension), asked Thiru A.Pandian, Contrctor to meet him at Vai-Ka-Si, Illam at Public Works Department Complex, Madurai.
Thiru A.Pandian alongwith Thiru S.Sivakumar, Assistant Inspector General of Registration, Jawan Bhavan, 2nd Floor, Madurai went into the Room No.2, in the ground floor of Vai-Ka-Si Illam in Public Works Department, PWD was sitting in a Sofa and enquired about Thiru S.Sivakumar. For that, Thiru A.Pandian, Contractor had replied that, his name was Sridharan and doing Conractor work at Thiruppathur. Thiru.A.Pandina, Contractor had asked about his cheque. Thiru K.S.Abdul Rashid, Executive Engineer (under suspension), PWD had reiterated his earlier demand to Thiru A.Pandian, Contractor, to pay the commission amount as usual and to get the cheque. Thiru A.Pandian took out the amount from his shirt pocket and about to hand over to Thiru K.S.Abdul Rashid, Executive Engineer (under suspension), Public Works Department, he without receiving the bribe amount directed Thiru A.Pandian, Contractor to keep the amount under his diary which was on the Tea-Poi.
From the above narrated incident, it is evident that Thiru K.S.Abdul Rshid, Executive Engineer (under suspension), PWD, in his former capacity as the Executive Engineer, WRD, PWD, Periyar Main Canal Division, Melur actuated by corrupt motive had demanded and accepted an amount of Rs.20,000/- as bribe from Thiru A.Pandian, Contractor, for issuing the cheque to him, towards the part bill of Rs.3,94,482/- for the work of "Renovation of Koolapandi Kanmai"
sanctioned and passed by him.
Charge 1:
According to Rule 20 of Tamil Nadu Government Servants Conduct Rules 1973, "Every member of the service shall at the time maintain absolute integrity and devotion to duty and he shall do nothing which is unbecoming of a member of the service"
But in this case, Thiru K.S.Abdul Rashid, Executive Engineer (under suspension), PWD, in his former capacity as the Executive Engineer, WRD, PWD, Periyar Main Canal Division, Melur, Madurai actuated by corrupt motive and abuse of his official position has demanded and accepted an amount of Rs.20,000/- from Thiru A.Pandian, Contractor on 19.10.2011 as illegal gratification, being the 5% of total bill amount of Rs.3,94,482/- for issuance of cheque to him, has committed official misconduct and misdemeanor and thus failed to maintain absolute integrity and devotion to duty as warranted under Rule 20 of Tamil Nadu Government Servants Conduct Rules."
4. The list of documents, on the basis of which charges have been framed and proposed to be marked in the departmental enquiry, contained in Annexure- III, are as follows:
1.Copy of FIR in Madurai Vigilance and Anti Corruption Cr.No.10/2011 dated 19.10.2011
2.Entrustment Magazar in Cr.No.10/11 prepared at the O/o.the Deputy Superintendent of Police, Vigilance and Anti-Corruption, Madurai.
3.Seizer Magazar in Cr.No.10/2011 prepared at Thirumangalam Taluk Officer, Thirumangalam, Madurai District.4.Form-91 in Cr.No.10/2011
5.House Search Slip.
6.Rough Sketch in Cr.No.21/10
7.Diary (2011) of Thiru K.S.Abdul Rashid, Executive Engineer, PWD
8.Final Bill No.23/2011 containing pages 1 to 10
9.Xerox copy of Measurement Book 2011 containing pages 1 to 4 attested by Tmt.Santhi, Superintendent, Public Works Department (WRO), Periyar Main Canal, sub Division No.1, Madurai.
10. Xerox Copy of cheque memo register containing pages 1 to 4 attested by Tmt.Santhi, Superintendent, Public Works Department (WRO, Periyar Main Canal sub Division No.1, Madurai.
11.Xerox copy of cheque No.11450504048 in the name of Thiru A.Pandian, attested by Tmt.J.Santhi, Superintendent, Public Works Department (WRO), Periyar Main Canal Sub Division No.1, Madurai.
12. Xerox copy of attendance register of O/o the Assistant Executive Engineer, PWD, WRO, Periyar Main Canal sub Division No.1, Madurai attested by Tmt.J.Santhi, Superintendent, Public Works Department (WRO), Periyar Main Canal sub Division No.1, Madurai.
13.Xerox copy of cheque memo register dated from 12.08.2011 to 20.10.2011 of the O/o.the Assistant Executive Engineer, WRD, PWD Periyar Main Canal sub Division No.1, Madurai.
14. Xerox copy of the cheque memo Register for the year 2011-2012, O/o.the Executive Engineer, WRO, Public Works Department, Periyar Main Canal Divison, Melur, Madurai.
15. Xerox copy of the Contractor Bill Register dated from 06.07.2011 to 09.09.2011 of the O/o.the Executive Engineer, WRD, PWD, Periyar Main Canal Division, Melur, Madurai.
16.Xerox copy of the LOC letter received from the PAO to Bank.
17.Xerox copy of the cheque drawn particulars.
18.Xerox copy of the Letter of credit Register.
19.Xerox copy of the Call details between Thiru K.S.Abdul Rashid, Executive Engineer, PWD and Thiru A.Pandian, Contractor & Thiru Anbuselvam, Assistant Executive Engineer, PWD and Thiru Gunasekaran, Secretary, Contractors Association, Madurai on 17.10.2011 and 18.10.2011
20.Chemical Report in Chem No.664/2010
21.FIR Xerox Copy of Melur P.S.Cr.No.582/2010, u/s, 341, 353, 506(i) IPC against the Complainant.
22. FIR Xerox copy of Tallakulam PS Cr.No.2116/2010, u/s 448, 323, 506(ii) IPC on 25.06.2010 against the Complainant.
23. Recommendation letter of Thiru K.S.Abdul Rashied, Executive Engineer, PWD, WRO, Periyar Main Canal Division, Melur, Madurai to Chief Engineer, PWD to black list the complainant.
24. Court order to include the complainant name in the PWD Contractor list.
5. List of witnesses proposed to be examined during enquiry, as contained in Annexure-IV are as follows:-
1. Thiru A.Pandian, S/o.Azhagappan, D.No.10, A.V.Sala Street, Melur, Madurai District.
2.Thiru S.Sivakumar, Assistant Inspector of General of Registration, javan Bhavan, Second Floor, Madurai.
3.Tmt.M.Sarojini, Deputy Commissioner, Commercial Taxes Department, Madurai.
4.Thiru Arul Santhiappan Jeevanthra Durai, Deputy Executive Engineer, Periyar Main Canal Division, PWD, Thallakulam, Madurai.
5.Tmt Santhi, Superintendent, Public Works Department, Periyar Main Canal Division, Thallakulam, Madurai.
6.Thiru D.Mubarak Ali, Driver, PWD, Periyar Main Canal Division, Thallakulam, Madurai.
7.Thiru E.P.Vigneshwaran, Assistant Engineer, WRO/PWD, Periyar Main Canal Division, Mettupatti.
8.Thiru R.Sorai Kumar, S/o.P.A.R.Ramasamy, Assistant Executive Engineer, Periyar Vaigai Basin Sub Division No.1, Thallakulam, Madurai.
9.Thiru Anbarasan, S/o.Arumugam, Assistant Engineer, Periyar Vaigai Basin Sub Division No.II, Thallakulam, Madurai.
10.Thiru Kallanai, Watchmen, Vai-Ka-See-Illam, PWD Complex, Madurai.
11.Thiru Gunasekaran, S/o.Swamithevar, 3A, Gunamahal Illam, Bharathithasan Nagar 1st, Rup/School Road, Palanganthan, Madurai.
12.Thiru P.Sanjeevimalai Ayyappan, S/o.Ponnaiah, Junior Engineer, Buildings Construction Divison, Public Works Department, Madurai-2.
13.Tmt.R.Angammal, W/o.S.Rajendran, Head Draftsmen, Buildings Construction Division, PWD, Madurai-2.
14.Thiru Kalarani, Assistant Chemical Examiner, Deputy Director, Tamil nadu Forensic Sciences Laboratory, Chennai.
15.Thiru Thirumurugan, Head Clerk, Special Court under P.C. Act cases, Madurai.
16.Thiru Krishnamoorthy, Sub-Divisional Engineer (Vigilance), O/o.the General Manager, BSNL, Madurai.
17.Thiru Raveendiran, HC 787, Vigilance and Anti-Corruption, Madurai.
18.Thiru Sekar, HC 1399, Vigilance and Anti-Corruption, Madurai.
19.Thiru Thirunavukarasu, PC 220, Vigilance and Anti-Corruption, Madurai.
20.Thiru R.Tamilselvan, Inspector of Police, Vigilance and Anti- Corruption, Madurai.
21.Thiru Manisekran, Assistant Executive Engineer, Periyar Main Canal Division, PWD, Madurai.
22.Thiru Jeyakumar, Inspector of Police, Thallakulam (L & O) PS, Madurai City.
23.Thiru Krishnan, Sub Inspector of Police, Melur P.S. Maduai District.
24.Tmt.Kalavathi, Deputy Superintendent of Police, Vigilance andAnti Corruption, Maduai.
25.Thiru Ramesh, Inspector of Police, Vigilance and Anti-Corruption, Madurai.
6. Alleging inter alia that the charge memorandum has been actuated with malice and it is the contractor who had indulged in unlawful activities, even to the extent of assaulting the petitioner, for which a criminal case has been registered against the contractor and further contending that the Contractor Association has also passed a resolution dated 12.07.2011 condemning the action of the complainant, Thiru.A.Pandian S/o.Azhagappan, the Contractor and further contending that action initiated against the said Contractor Mr.A.Pandian for removal from the list of contractors and the consequent suspension of the said contractor on 16.07.2010, Mr.A.Thirumurthy, learned counsel for the petitioner has contended that when serious allegations have been raised against the contractor, even without giving an opportunity to the petitioner to explain the illegalities and irregularities committed by the contractor, the police has remanded the petitioner and that he has been kept under suspension, from 10.11.2011 for nearly 2 years in terms of Rule 17(e)(2) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, following the registration of a crime and remand in judicial custody.
7. Placing reliance on the decision of this Court reported in 2012 (1) CTC 124 (The Deputy Inspector General of Police v. S.Govindaraj), the learned counsel for the petitioner submitted that the impugned order of suspension is liable to be set aside both on the grounds of malafide and prolonged suspension. Heard the learned counsel for the petitioner and also perused the material available on records.
8. By G.O.(D).No.379, Public Works (E1) Department, dated 10.11.2011, the petitioner has been placed under suspension with effect from 19.10.2011, the date on which, he was arrested and remanded to judicial custody.
9. The meaning of the word "suspension" extracted from various Dictionaries and the legal meaning, are as follows:-
23. Suspension, as per Wharton's Law Lexicon, 14th Edn., is a temporary stop or hanging up as it were of a right for a time, also a censure on ecclesiastical persons, during which they are forbidden to exercise their office or take the profits of their benefices.
24. 'Suspension' means, "action of debarring or state of being debarred, especially, for a time, from a function or privilege; temporary deprivation of one's office or position, or again, state of being temporarily kept from doing or deprived of something.
25. Suspension as per Black's Law Dictionary: 7th Edn. Pg.1460 means, (1) to interrupt; postpone; defer (2) to temporarily keep a person from performing a function, occupying an office, holding a job or exercising a right or privilege.
26. As per Stroud's Judicial Dictionary, "Suspension' or 'Suspense' is a temporal, ie., temporary, "Stop of Mans' Right (Cowel). Suspension, as per Bauvier's Law Dictionary, Vol.II, means a temporary stop of right, of a law, and the like. As per the Ramanatha Iyer's Dictionary, suspension means temporary intervention or cession of something (as) office, work or labour.
27. "The act of debarring for a time from a function or privilege". It means a temporary deprivation of once office or position. The suspended officer does not cease to be a public servant, he is only prevented from discharging the duties of his office for the time being. [K.J. Aiyar's Judicial Dictionary, 14th Edn.]
28. Suspension, according to Oxford Dictionary, means, "The action of suspending or condition of being suspended, the action debarring especially for a time from, a function or privilege, temporary deprivation of one's office or position or again, state of being temporarily kept from doing or deprived of something.
29. Suspension is, to defer; to debar from any privilege, office employment, et., for a time being. [Ref. Hemanth Kumar v. S.N.Mukherjee reported in AIR 1954 Cal. 340]
30. Suspension cannotes temporary cessation of something as right, work or labour. The basic idea underlying the root word, "suspend" and all its derivatives is that a person while holding an office and performing its functions of holding a position or privilege should be interrupted in doing so and debarred for the time being from further functioning in the office or holding the position and privilege. He is intercepted in the exercise of his functions of his employment of the privilege and put aside, as it were, for a time, excluded during the period from his functions or privileges. Such is the concept of a suspension order. Reference can be made to the decision in Abid Mohd. Khan v. State of M.P. reported in AIR 1958 MP 44.
34. On the aspect whether an order of suspension is administrative or quasi judicial in Pratap Singh v. State of Punjab reported in AIR 1964 SC 72, the Supreme Court explained the effect of suspension as follows:
"Suspension of a Government servant, during the course of his service, simply means that no work is to be taken from him during the period of suspension. The Government servant does not work on a post during the period of his suspension. If he is actually discharging the duty of a certain office prior to suspension, the order of suspension would mean that he would cease to work on and discharge the duties of that post. If at that time he is not working on any post but is on leave, no question of his actually ceasing to work or giving up the discharge of duty arises, but that does not mean that the order of suspension would be ineffective."
10. R.Ravichandran's case (cited supra) relates to a Government Servant. Power of the State Government to place a Government servant under suspension is given under Rule 17(e) of the Tamil Nadu Government Servant (Discipline and Appeal) Rules, which reads as follows:
"(e) (1) A member of a service may be placed under suspension from service, where-
(i) an enquiry into grave charges against him is contemplated, or is pending; or
(ii) a complaint against him of any criminal offence is under investigation or trial and if such suspension is necessary in the public interest.
11. The power of the Government/appointing authority/disciplinary authority, to place a Government Servant or an employee under suspension, even before the formulation of charges, has been dealt with, at paragraph 37 of the judgment in R.Ravichandran's case. The necessity or desirability to place a government servant/employee, under suspension, is dealt with, at paragraphs 44 and 46 of the reported judgment, which are reproduced.
44. In State of Tamil Nadu v. P.M.Balliappa reported in 1985 (2) LLN 362 (Mad.), this Court has held that the necessity or desirability to place the person under suspension is the objective satisfaction of the Government. More so, the Court cannot look into the sufficiency of material, but only the factum of satisfaction if the satisfaction is no satisfaction at all or it was formed on a consideration or there was total lack of application of mind.
46. In Bhup Narayan Jha v. State of Bihar and others reported in 1984 (2) SLR 573, a Full Bench of the Patna High Court dealt with rule 49A of the Bihar Services (Classification, Control and Appeal) Rules, 1930, which rule is parimateria with rule 17 of the Tamil nadu Civil Services (Classification, Control and Appeal) Rules. Rule 49A of the Bihar Services (Classification, Control and Appeal) Rules, 1930 is extracted hereunder:
"49(A)(1) :---The appointing authority or any authority to which it is subordinate or the Governor, by general or special order, may place a Government servant under suspension:
(a) Where a disciplinary proceeding against him is contemplated or is pending; or,
(b) Where a case against him in respect of any criminal offence is under investigation, inquiry or trial."
The Full Bench dealing with the proviso and the need for suspension, explained its objects as follows:
"In this context it become necessary to first consider the very nature of an order of suspension made either during the pendency of a departmental proceeding or in reasonable contemplation thereof. It is well settled that suspension is of two kinds -- one by way of punishment, and the other by way of a procedural aid to the holding of disciplinary proceedings. Admittedly herein we are concerned with the latter category. It seems to be undisputed that the concept of suspension during departmental proceeding has only the large objective of ensuring a free and fair conduct of the enquiry that is either pending or is to follow. In this context, the fact that the suspension order is interlocutory or interim in nature can perhaps be hardly denied. The service rules invariably, if not inflexibly, provide for a subsistence allowance during the period and the delinquent official retains his lien on the post during the continuation of the departmental proceeding. This mellows the rigour of the order of suspension and in the event of the enquiry resulting in favour of the official, he would be invariably entitled to the revoking of the order of suspension and the reinstatement to the post with all the benefits of service and salary, (sometimes even without having worked during the said period), as may be provided in the rules. There is thus no finality or irrevocability attaching to an order of suspension, which, as already noticed, retains its character or being interim or interlocutory, in nature. The object and purposes of placing a public servant under suspension during or in contemplation of a disciplinary proceeding may be manifold and do not call for any exhaustive enumeration. However, its salient features are well known and may call for a passing notice. Where serious allegations of misconduct are imputed against an official, the service interest renders it undesirable to allow him to continue in the post where he was functioning. In case where the authority deems a further and deeper investigation into the same as necessary, it become somewhat imperative to remove the official concerned from the spheres of his activities, as it may be necessary to find out facts from people working under him or to take into possession documents and materials which would be in his custody. Usually, if not invariably, it would become embarrassing and inopportune both for the delinquent official concerned as well as the inquiring authority to do so, while such official was present at the spot and holding his official position as such. It was sought to be contended that such a situation may be avoided by merely transferring the official. However, it would be for the authority concerned to decide whether such an official, against whom prima facie serious imputations have been levelled; should at all be allowed to function anywhere else. If it so decides, then suspension during the pendency or in contemplation of an inquiry might well become inevitable. It seems to be a fallacy to assume that suspension is necessarily and wholly related to the gravity of the charge. Indeed, it may have to be ordered to facilitate free investigation and collection of evidence. Just as criminal procedure is intended to subserve the basic cause of a free and fair trial, similarly, suspension as an interim measure in aid of disciplinary proceeding, is directed to the larger purpose of a free and fair inquiry. It would thus seem that the power of suspension is not only necessary, but indeed, a salutary power, if reasonably exercised either during the pendency or in contemplation of a disciplinary proceeding.
12. After considering various decisions in State of Orissa v. Bimal Kumar Mohanty reported in 1994 (4) SCC 126, the Supreme Court held as follows:-
"13. It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge.
14. On the facts in this case, we are of the considered view that since serious allegations of misconduct have been alleged against the respondent, the Tribunal was quite unjustified in interfering with the orders of suspension of the respondent pending inquiry. The Tribunal appears to have proceeded in haste in passing the impugned orders even before the ink is dried on the orders passed by the appointing authority. The contention of the respondent, therefore, that the discretion exercised by the Tribunal should not be interfered with and this Court would be loath to interfere with the exercise of such discretionary power cannot be given acceptance."
13. The Supreme Court in Ministry of Home Affairs v. Tarak Nath Ghosh reported in 1971 (1) SCC 734, which has been considered in Biman Kumar Mohanty's case (cited supra), also raised a question as to whether the suspension of a member of the service can only be ordered after definite charges communicated to him in terms of Rule 5(2) of the All India Services (Discipline and Appeal) Rules, 1955, or whether the Government is entitled to place him under suspension even before that stage has been reached after a preliminary investigation. The Supreme Court in Tarak Nath Ghosh's case held as follows:-
Held: (1) The fact that in other rules of service there is specific provision for an order of suspension even when disciplinary proceedings were contemplated, does not mean that a member of the All India Service should be dealt with differently. It would not be proper to interpret the Rules, which form a self-contained Code, by reference to the provisions of other rules even if they were made by or under the authority of the President of India."
14. In Gyan Singh Parihar v. State of U.P., reported in 2002 (92) FLR 406 (All.), a Division Bench of the Allahabad Court tested the correctness of an order of suspension, pending a proposed disciplinary enquiry, against an employee relating to serious charges of fraud, embezzlement, bribe etc., At para 4 and 5 of the judgment, the Division Bench held as follows:
"4. Whether an employee should or should not continue in his office during the period of disciplinary enquiry is a matter to be assessed by the concerned authority and ordinarily, the Court should not interfere with the order unless it is demonstrated to be mala fide and without there being a prime fade evidence on record connecting the employee with the misconduct in question. See U.P. Rajya Krishi Utpadan Mandi Partshad and Ors. v. Sanjiv Rajan (1993 (2) LLJ 66).
5. It has not been demonstrated before the Court that the order is mala fide and without there being a prime facie evidence on record connecting the petitioner with the alleged misconduct, warranting interference by this Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India."
15. For the purpose of suspension, it is sufficient that the competent authority has arrived at a prima facie conclusion that the Government servant or an employee has committed a serious misconduct, which entails major penalties, like dismissal, removal or compulsory retirement, etc., from service. Illustrative cases, where action has to be taken immediately, are persons, involving in serious acts of misdemeanor, such as, (a) offence or conduct involving moral turpitude, (b) corruption, embezzlement or misappropriation of Government money, (c) possession of disproportionate assets, (d) misuse of official powers for personal gain, (e) serious negligence or dereliction of duty, (f) desertion of duty and (g) refusal or deliberate failure to carry out written orders of superior officers; (h) apprehension of tampering with witnesses or documents or likelihood of causing prejudice to an inquiry, investigation or trial; (j) likelihood of subversion of discipline in office;
(k) involvement of scandals, and (l) likelihood of holding the employee guilty of departmental proceedings, and in all these illustrative cases, it is the matter of necessity and public interest, involved and therefore, it should be left to the absolute discretion of the competent authority, with whom, the power is vested to suspend and that such discretion exercised in public interest should not be interfered with lightly.
16. The appointing/disciplinary authority/government, should be allowed to exercise their discretion to place the government servant/employee under suspension, which is a step in aid, to complete the investigation/trial or charges to be framed by the department. Courts have consistently held that even if the materials are not adequate for prosecution or even after acquittal, the appointing/disciplinary authority/government is empowered to place the government servant/employee under suspension, and that the power can be exercised on proper consideration of relevant materials, in public interest.
17. Once the objective consideration of the allegations and the material on record, warrants suspension, till the completion of enquiry or trial or enquiry by the department, in public interest, it is not for this Court to examine the nature of the allegations, evidence and to record any finding thereon, which would hamper the progress of the departmental enquiry or investigation or trial against the government servant.
18. No doubt, exercise of discretion, should be rational, should not be arbitrary and that there is also a legal duty cast upon the appointing/disciplinary authority to apply his mind before exercising such discretionary power. However, when the government servant/employee against whom, an enquiry into grave charges is pending/under contemplation or an investigation into an offence or trial is pending and such charge/charges, to be formulated, require, placing a person under suspension, then the competent authority can exercise his discretionary power under the relevant rules to place the government servant/employee under suspension, pending enquiry or under contemplation or investigation/trial.
19. In this context, it is pertinent to extract the observations of Lord Denning, as found in Wade on Administrative Law, "The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means atleast this :
the statutory body must be guided by relevant consideration and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted is good faith, nevertheless the decision will be set aside
20. The duty of the Court is restricted only to the limited extent to see that where the appointing/disciplinary authority has taken into consideration the nature of the charge, its complexity, public interest involved in retaining the government servant/employee, against whom, serious imputation are levelled and whether retention of such person, would be scandalous to the department or sub-serve the discipline in the department or affect the morale of other government servants/employees or to facilitate a fair enquiry.
21. The appointing authority/disciplinary authority/government is entitled to exercise the control and maintain the master and servant relationship. To suspend an employee, as an interim measure for anyone of the reasons stated supra, which are illustrative, is the absolute right of an employer and no employee can insist that he must be allowed to be retained in service and discharge his duties and enjoy the fruits or privileges attached to the post. While testing the correctness of the order of suspension, all that has to be seen by the Court is whether the power of the appointing/disciplinary authority, in controlling the employees, has been exercised reasonably, without any mala fide and that there should not be any lack of jurisdiction. Any action taken by the appointing/disciplinary authority, in public interest to maintain a clean and honest administration, cannot be interfered with lightly. Even though the government servant/employee is put to mental agony, it is only to the limited extent of restricting him from discharging his duties and enjoy other privileges attached to the post and it is only an interim measure, till he is cleared off of the imputations levelled against him. Suspension cannot be attacked on the ground that the facts stated therein are not correct. It is well settled that High Court cannot delve into factual details, while adjudicating the correctness of an administrative order.
22. Now let me consider the decision in Dr.B.Karanchandra Mohan Prasath vs. State of Tamil Nadu, reported in 2011 (4) CTC 608, relied on by the learned counsel for the petitioner. The question which came up for consideration before a learned single Judge was, whether the appointing/disciplinary authority in exercise of the powers under rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, can place a Government Servant under suspension, when charges were not framed, on the date of suspension. An argument seemed to have been advanced by the learned Senior Counsel for the petitioner therein, is that only when charges are framed and pending, suspension can be ordered. Yet another contention is that only formulation of specific charges, an enquiry is said to be pending. Reliance has been made on Union of India v. K.V.Janakiraman reported in AIR 1991 SC 2010, where the Hon'ble Supreme Court has taken the view that pendency of preliminary investigation, prior to the stage, will not be sufficient to enable the authorities to adopt a sealed cover procedure.
23. Perusal of the judgment shows that reliance has been placed on a decision in N.Deenadayalan vs. The Deputy Inspector General of Police, Chengalpattu Range, reported in 1988 (2) MLJ 25, wherein, a learned single Judge while explaining the words "enquiry pending" and "enquiry under contemplation", at paragraphs 6, 7, 11 and 12, held as follows:-
6. Sathiadev, J., in S. Vasudevan v. The Government of Tamil Nadu, Rep., By Its Secretary, Home Department W.P. Nos. 304, 390 of 1982, order dated 7.12.1982, dealt with a case under Rule 17(a)(1)(i) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, hereinafter referred to as Tamil Nadu Civil Services Rules, where a servant was placed under suspension, pending further enquiry into grave charges against him. The learned Judge found that at the time of the passing of the impugned order of suspension there only a charge memorandum had been issued and the enquiry was yet to begin and hence no enquiry was pending against the servant relating to grave charges against him, as claimed in the impugned order of suspension. An attempt was made on behalf of the authorities to state that the impugned order of suspension must be read to mean an enquiry into grave charges was contemplated against the petitioner so as to sustain it within the language of Rule 17(a)(1)(i) of the Tamil Nadu Civil Services Rules. The learned Judge repelled the argument put forth on behalf of the authorities in the following terms:
"Learned Advocate-General contends that what was intended by the impugned CO., was that, an enquiry into grave charges was 'contemplated' against the petitioner, though in fact it was not pending. Issuing a charge memo would not mean enquiry is pending. if explanation called for and submitted, is found to be satisfactory, then enquiry would not be ordered. Hence, stage of holding an enquiry had not reached. Rule 17(a)(1) and (ii), has not allowed such vagaries to exist, is being specific that there are two different categories viz., (1) where an enquiry into grave charges is contemplated and (2) where an enquiry is pending. Whenever an order of suspension is passed in public interest, without exception, Government had always insisted that those orders are to be strictly construed confining only to the words used in the order. Even otherwise, there cannot be ambiguity when the order is passed by Home Department in disciplinary matters, unlike orders by subordinate disciplinary authorities. The claim of 'public interest' would depend upon the correctness or claims made on these aspects. Without even looking into records, this expression had been mechanically used. It is now shown that due and required care had not been taken, while passing the order. There being considerable difference between an 'enquiry pending' and 'enquiry being contemplated', Government cannot be heard to plead that, even though it may claim that an enquiry is contemplated, to get over the lapse committed by its officers. At least when such G.Os. are passed, what is stated therein will have to be understood in the manner in which it has been expressed particularly, when the rule itself contemplating different situation. Hence, on the date of the order, when 'no enquiry was pending' against the petitioner into grave charges, the first error apparent on the face of the order having occasioned, the impugned order deserves to be set aside."
We could see from the above extract, learned Judge held that by the mere issuing of a charge memorandum, enquiry could not be stated to be pending and if explanation called for an submitted is found to be satisfactory, then enquiry would not be ordered. As already noted, framing of grave charges, need not necessarily and always culminate in the holding of an enquiry. Even after framing of grave charges, enquiry into the same can remain in contemplation, to be dropped in appropriate cases. If enquiry is commenced after the grave charges are framed, that will be a case of enquiry into grave charges pending so as to enable-the authority to invoke the latter part of Rule 3(a)(1)(i) to suspend the member of the service. When enquiry into grave charges framed is in contemplation, the earlier part of Rule 3(a)(1)(i) can be availed of to suspend the member of the service. In that case, Sathiadev, J., struck down the order of suspension, since it exposed total lack of application of mind when it made the wrong statement that an enquiry was pending. The order of suspension in that case was impugned in W.P. No. 390 of 1982. W.P. No. 304 of 1982 was to quash the charge memorandum and W.P. No. 391 of 1982 was filed for a MANDAMUS to the authority concerned to consider the servant for promotion. The learned Judge allowed all the three writ petitions on 7.12.1982. The common order of the learned Judge was taken on appeals. A Bench of this Court, consisting of Ramanujam and Ratnam, JJ. dealt with the appeals in The Government of Tamil Nadu v. S. Vasudevan 1984 L.I.C. 1875, and the appeal, preferred by the State as against the order in W.P. No. 390 of 1982 quashing the suspension, was dismissed, and on the reasons countenanced by Sathiadev, J., but on a different ground. The Bench had no occasion to touch, differ from or upset the reasonings expressed by Sathiadev, J., in his common order.
7. In A. Antony v. The Commissioner of Forests, Vellore and Anr. W.P. No. 9733 of 1987, order dated 3.11.1987, I had occasion to deal with an order of suspension passed under Rule 17(a)(1)(i) of the Tamil Nadu Civil Services Rules on the ground that an enquiry into grave charges is contemplated, and on the date of the order of suspension there had been no charge formulated. The order of suspension was held to be not sustainable and it was set aside by Venkataswami, J., in similar contingencies, of course, dealing with petitions for stay in J. Venkataraman and Anr. v. The Government of Tamil Nadu Rep., By Its Commissioner and Secretary, Home (Transport) Department, Madras-9 and Anr., W.M.P. Nos. 18178 and 18179 of 1987 in W.P. Nos. 12349 and 12340 of 1987. Order dated 13.1.1988, followed the view in A. Antony v. The Conservator of Forests, Vellore and Anr. W.P. No. 9733 of 1987, Order dated 3.11.1987.
8...................
9...................
10.................
11. Two aspects mainly weigh with me to frown upon the impugned order of suspension in the present case. One is the plain and unambiguous language of Rule 3(e)(1)(i) of the Rules. The other is the rule of interpretation that should guide the Court with regard to expressions occurring in the very same Rule. Words are generally used in the same sense throughout in a statute unless there is something repugnant in the context. Same word in a particular provision should bear the same meaning in both the places unless there is something in the context to the contrary. The reference to 'charges' in Sub-rule (e)(1)(i) of Rule 3, after Sub -rule (b)(i), which speaks about the reduction of the grounds on which It is proposed to take action to the form of definite charge or charges, is significant. Hence, the expression 'charges' occurring in Sub-rule
(e)(1)(i) of Rule 3 must be given the same connotation given to 'charges' in Sub-rule (b) (i) of Rule 3. There is nothing repugnant in the context to impel the Court to give a different meaning to the expression 'charges' occurring in Rule 3 in different places.
12. The reasons expressed above oblige me. to interfere in writ powers to quash the impugned order of suspension. The said reasons relate to the first contention advanced by the learned Counsel for the petitioner. I must also place on record the other contentions advanced by the learned Counsel for the petitioner, coveting quashing of the impugned order of suspension........."
24. Therefore, following the views expressed in N.Deenadayalan's case, a learned single Judge in Dr.B.Karanchandra Mohan Prasath's case, at paragraph 15, held as follows:-
"The said judgment makes it very clear that unless otherwise the petitioner was issued with a charge memo and an enquiry into the same is pending, a Government Servant cannot be placed under suspension."
25. In yet another decision relied on by the learned counsel for the petitioner in R.Jeyadoss Gabriel vs. Secretary to Government, Co-operation Food and Consumer Protection (CD II) Department, Secretariat, Chennai-9, reported in 2012 (4) MLJ 458, the petitioner therein was placed under suspension and consequently, he was not allowed to retire. While challenging the order of suspension, the learned counsel for the petitioner therein, has contended that no charge sheet has been filed, no enquiry has been ordered or conducted till the date of suspension, and that therefore the impugned order of suspension therein, is liable to be set aside. Reliance has been placed on a judgment in Dr.B.Karanchandra Mohan Prasath vs. State of Tamil Nadu, reported in 2011 (4) CTC 608. While answering the said ground in favour of the petitioner therein, following Dr.B.Karanchandra Mohan Prasath's case, another learned single Judge of this Court, at paragraph 10 of the judgment in R.Jeyadoss Gabriel's case, has held as follows:-
10. The learned counsel appearing for the petitioner has rightly placed reliance on the decision of a learned single Judge of this Court in Dr.B.Karanchandra Mohan Prasath, Profession & H.O.D. of Surgical Oncology, Madurai Medical College and Government Rajaji Hospital, Madurai v. The State of Tamil Nadu rep. by the Secretary to Government and 2 Others (supra). The learned single Judge, in the said decision has dealt with a similar matter and held that:
"The question that has arisen for consideration is whether a Government employee could be placed under suspension on an enquiry on grave allegations are pending against him, invoking Rule 17(b) of the Rules. In order to appreciate the said contention, it would be useful to extract Rule 17(e) of the Rules, which is extracted hereunder:
"17(e)(1) A member of a service may be placed under suspension from service, where -
(1) an enquiry into grave charges against him is contemplated, or is pending, or (2) a complaint against him of any criminal offence is under investigation or trial and if such suspension is necessary in the public interest."
The said Rule contemplates that a member of service may be placed under suspension from service, if an enquiry into grave charges against him is contemplated or is pending. It does not envisage keeping a member of service under suspension, where an enquiry into grave allegations against him are pending. The impugned order of suspension has been passed on the ground that an enquiry into grave allegations are pending against him. The same is not contemplated under Rule 17(e) of the Rules."
Further the learned single Judge has further held as follows:
"That apart, whether initiation of disciplinary proceedings means that charge memo should be pending against the particular officer was a question came up for consideration before this Court. In the Judgment in D.R.P.Sundharam v. Canara Bank represented by its Executive Director CDJ (2008) MHC 113 , I have considered the said point and I have held that the initiation of disciplinary proceedings means that the charge memo should be pending, before the petitioner attains the age of superannuation. In the case on hand, it is not the case of the respondents that the charge memo has been issued to the petitioner and the petitioner has been called upon to answer to the charges. It is not even stated in the impugned order of suspension that the charge memo has been issued to the petitioner and the same is pending against the petitioner. In Union of India v. K.V. Janakiraman, [AIR 1991 SC 2010], the Hon'ble Apex Court has taken the view that the pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. Paragraph No.6 of the order made thereunder is usefully extracted here under:
"6. On the first question, viz., as to when for the purposes of the sealed cover procedure the Disciplinary/Criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge memo in a deceased or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the Departmental proceedings/Criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge memo/Charge sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-Authorities that when there are serious allegations and it takes some time to collect necessary evidence to prepare and issue the charge memo/Charge sheet, it would not be in the interest of purity of administration to reward the employee with a promotion, increment, etc., does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been experienced so far, the preliminary investigations take an inordinately long time and particularly, when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge memo/Charge sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant Rules and the suspension by itself permits a resort to the sealed cover procedure. The authorities, thus, are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos.1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows: (1) Consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official. (2) ...............
(3) ...............
(4) The sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal Court and not before."
There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion, etc., cannot be withheld merely because some Disciplinary/Criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge memo/Charge sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions.
We, therefore, repel the challenge of the appellant - Authorities to the said finding of the Full Bench of the Tribunal."
In the given case on hand, the petitioner was served with a letter dated 30.4.2010 of the Inspector of Police, Vigilance and Anti- Corruption alleging possession of properties/pecuniary resources disproportionate to his known sources of income. The petitioner has offered his explanation as early as on 6.5.2010. So far, no criminal proceedings have been initiated against the petitioner even though more than one year has lapsed.
The said judgment makes it very clear that unless otherwise the petitioner was issued with a charge memo and an enquiry into the same is pending, a Government servant cannot be placed under suspension. In the case on hand, as stated already, it is not even the case of the respondents that the petitioner was issued with a charge memo and the same is pending against the petitioner."
26. Perusal of the judgments in Dr.B.Karanchandra Mohan Prasath vs. State of Tamil Nadu, reported in 2011 (4) CTC 608 and R.Jeyadoss Gabriel vs. Secretary to Government, Co-operation Food and Consumer Protection (CD II) Department, Secretariat, Chennai-9, reported in 2012 (4) MLJ 458, shows that the learned Judge who decided Dr.B.Karanchandra Mohan Prasath's case, has followed the judgment in N.Deenadayalan vs. The Deputy Inspector General of Police, Chengalpattu Range, reported in 1988 (2) MLJ 25. The said judgement has been rendered on 25.02.1988. Subsequently, the very same issue, as to whether a Government Servant can be placed under suspension pending contemplation of enquiry into grave charges, came up for consideration before the Hon'ble Division Bench of this Court in D.Uthirakumaran vs. The Government of Tamil Nadu, reported in 1988 (9) WLR 229. The main contention of the appellant therein was that under rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, suspension can be invoked only when specific charges have already been framed or not under contemplation.
27. The word "contemplation" in rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, has been explained by the Hon'ble Division Bench in D.Uthirakumaran's case, as follows:-
The word contemplated qualifies the word enquiry. In other words, when complaints are received against a Government servant and if the authority thinks that such a complaint deserves an enquiry and, therefore, the authority contemplates the framing of charges and holding of an enquiry a Government Servant can be suspended. The Courts have repeatedly found fault with the Government for delay in framing charges. But rarely it has been held in the past that a Government servant cannot be placed under suspension unless the charges are framed. If such an interpretation is to be adopted one part of R.17(e) will become nugatory. It is submitted that whenever it is in the mind of the appropriate authority that in due course a formal departmental enquiry shall be held or there exists a contingency for such an enquiry it will satisfy the requirement of contemplation.
28. The word 'contemplates' qualifies the word enquiry. In other words, when complaints are received against a Government Servant and if the authority thinks that such a complaint deserves an enquiry, then the authority, who contemplates framing of charges and holds an enquiry, can place the government servant under suspension.
29. For better appreciation of the proposition of law, the argument of the learned Senior Counsel for the petitioner therein, extracted at paragraph 9(i) and (ii) of the judgment in D.Uthirakumaran's case is reproduced hereunder:-
(i) No doubt Rule 17(e)(1) enable suspension pending enquiry into grave charges and there is no enquiry pending into grave charges against the petitioner. The only other contingency will be 'pending enquiry into grave charges is contemplated'. Unless, there are formulated charge or charges the power of suspension cannot be invoked. In support of this submission, the learned counsel relies on the decision in P.R.Nayak v. Union of India (1972-I-
LLJ-535). Though, that related to a different rule altogether, the ratio of that decision would squarely apply to this case. If it is so construed, then, no suspension is possible.
(ii) As a matter of fact, there are two decisions which clearly support the case of the petitioner. They are : (i) The judgment in W.P. No. 9773 of 1987 which categorically lays down, while interpreting the said rule, that unless on the date of suspension there has been a formulation of charges, there could be no order of suspension; and (ii) The Judgment in W.P. No. 7855 of 1987 wherein more or less the same view was taken. When Rule 17(b)(i) of the Rules contemplates 'definite charge', it emphasises the form. Unless, therefore, the allegations are made out, it would amount to arbitrariness.
30. The reply of the learned Advocate General in opposition to the submissions stated supra, dealt with at paragraph 10 of the judgment in D.Uthirakumaran's case is reproduced hereunder:-
"10. The learned Advocate General in opposition to this would urge referring to Rule 17(e)(i) as follows :-
(i) The words used in this rule are wider in concept than the All India Service Rules. In All India Service Rules, the language used is 'contemplated/pending'. Meaning of charge, according to Webster's Dictionary, is 'To put blame on the accused.' To enquiry would mean 'To seek the truth by investigation or examination'. Enquiry, therefore, is a detailed or a systematic investigation into grave accusations. When such an enquiry is pending or contemplated, certainly there could be an order of interim suspension. The question, therefore, would be : When does the accusation start ? In Venkatesvarlu v. State of Madras (1954-I-LLJ-474) this question is answered by referring to Law Lexicon. That supports the respondents in great detail.
(ii) Alternatively it is submitted that on the issuance of charge memo there commences an enquiry. As regards the first limb, namely, 'suspension pending enquiry into grave charges is contemplated', it denotes a stage anterior to the issuance of the charge memo. It is not necessary that there must be a definite charge or charges. In the nature of things, it is impossible. As a matter of fact, this Court took the same view in W.P. No. 12837 of 1986 with reference to Rule 6.18 of Sidgo Rules. This was appealed in W.A. No. 22 of 1987, reported in 1988 Writ LR 41 (Mds) wherein this aspect of the matter was confirmed. Another case which could be usefully referred to is State of Tamil Nadu v. P.M.Belliappa, (1985) Lab IC 51 (Mds). Therefore, the word 'charge' in Rule 17(e)(i) means 'accusation'. If so construed, it would cover both the stages - anterior and posterior to the framing of the charges. That such an interpretation alone should be put so as to make the rule workable. In B. B. Mondal v. State of W. Bengal, (1973-II-LLJ-57) it has been laid down that 'charge' means 'definitions is accusation'. This interpretation would be in accord with the reason because, when R.17(e)(ii) is looked at, it uses the word 'complaint'. The word 'complaint' there includes both investigation and trial.
Certainly, it cannot be contended that there could be a trial on a mere complaint in the absence of a charge memo. It is this kind of interpretation that is commended as could be seen from G.P.Singh's Principles of Statutory Interpretation', 3rd Edition, pages 12 and 24. Therefore, merely because R. 17(b) uses the word 'charge', it cannot connote the same thing throughout the Rule. It will depend upon the context in which such a word appears. In R. 17(B) it means reduced to the form of definite charge'. In R. 17(e)(i), it would mean 'accusation' also. That under different sections or clauses the same word would mean differently is evident from the decision in Anand Nivas (P) Ltd., v. Anandji. Again in Chief Justice, A.P. v. L.V.A Dikshitulu, Headnote (B) indicates that such an interpretation is permissible. In W.P. No. 2976 of 1978, reported in (1979) 1 Mds LJ 4 a learned single Judge of this Court took the view that in order to pass an order of interim suspension pending contemplation of enquiry into the grave charges, there is no necessity to frame charges.
31. The Hon'ble Division Bench in D.Uthirakumaran 's case, (cited supra), after extracting rule 17(e) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, at paragraph 16, held as follows:-
(16) Here also it talks of 'charge' or 'charges'. Whether the word 'charges' should be ascribed the same meaning is what requires to be ascertained. Before we proceed to discuss that aspect, let us refer to the Judgment of Nainar Sundaram J. in W.P. No. 9855 of 1967, reported in 1988 Writ LR 97 (Mds) (N. Deenadayalan v. The Deputy Inspector General of Police, Chengalpattu Range) on which Mr. D. Raju, learned counsel for the petitioner, relies and wherein the learned Judge held as follows :-
"The language of Rule 3(e)(1)(i) is plain and unambiguous. It is possible to countenance suspension of a member of the service without formulating grave charge or charges under Rule 3(e)(1)(i) of the Rules. If the answer is to be given in the affirmative, that would be doing violence to the plain and unambiguous language if Rule 3(e)(1)(i). If the intention of the rule making authority was to confer a power of suspension even before the initiation of disciplinary action and formulation of charges, a separate rule would have got enacted or R. 3(e)(1)(i) itself would have been aptly worded to state that even in the contingencies of serious allegations or accusations or imputations against a member of the service, suspension could be resorted to. But that has not been done.
The enquiry contemplated must be into grave charges. That is what the plain language of Rule 3(e)(1)(i) conveys. Under R 3(b)(i) of the Rules, charges could only mean the reduction to a definite form the grounds on which it is proposed to take action. Same meaning should be annexed to the expression charges occurring in Rule 3(e)(1)(i) of the Rules. It is not possible to read something into the Rule, which is not explicit therein."
32. After considering the judgment in N.Deenadayalan vs. The Deputy Inspector General of Police, Chengalpattu Range, reported in 1988 (2) MLJ 25, and the arguments advanced by the learned Senior Counsel for the parties, the Hon'ble Division Bench, at paragraph 20 held as follows:-
"20. In our considered view, R. 17(e)(1) of the Rules is more comprehensive in its scope, and the words therein are designedly used to express a different legislative intention as under R. 40(1)(a) and (b) of the Railway Protection Force Rules, 1959 to which the attention of the Supreme Court was drawn in the decision inP.R.Nayak v. Union of India (1972-I-LLJ-535). Thus we conclude that R. 17(b) of the Rules prescribes the grounds on which it is proposed to take action. Those grounds shall be reduced to the from of definite charge or charges. Thereafter, the member of the Service is required to submit a written statement of defence to the charge or charges. The framing of charge under R. 17(b) is essential to enable the member of the Service to meet the case against him. On the contrary, Rule 17(e)(1)(i) is different. That provides for suspension under the contingencies contemplated in the Rule. Having regard to the scope of these rules, we are of the opinion that the word 'charges' occurring in R. 17(e)(1)(i) should be given a wider meaning so as to cover the accusations or imputations made against the member of the Service. If so construed, there is no need for formulation of charges as laid down by Nainar Sundaram, J. Having regard to the object and the intendment of these sub-rules, with respect, we are unable to share the view of the learned Judge. Accordingly, we overrule the said decision.
33. From the above, it is manifestly evident that the Hon'ble Division Bench in D.Uthirakumaran vs. The Government of Tamil Nadu, reported in 1988 (9) WLR 229, has overruled the decision in N.Deenadayalan vs. The Deputy Inspector General of Police, Chengalpattu Range, reported in 1988 (2) MLJ 25.
34. It is unfortunate that an overruled decision of this Court in the year 1988 has been relied on by the petitioner in Dr.B.Karanchandra Mohan Prasath vs. State of Tamil Nadu, reported in 2011 (4) CTC 608, which resulted in quashing of an order of suspension, pending contemplation of an enquiry into grave charges. While quashing the order of suspension therein, the learned Judge has also relied on a decision in D.R.P.Sundharam vs. Canara Bank, rep. by its Executive Director, reported in CDJ 2008 MHC 113, decided by another learned Judge on the same issue. Dr.B.Karanchandra Mohan Prasath's case has been followed in R.Jeyadoss Gabriel vs. Secretary to Government, Co-operation Food and Consumer Protection (CD II) Department, Secretariat, Chennai-9, reported in 2012 (4) MLJ 458.
35. The power of the authority to place an employee/government servant under suspension and the right of an employee/government servant, pending criminal case and the right of the employee, to seek for retention, have been extensively considered by this Court in R.Ravichandran v. Addl. Commr. Of Police, Chennai, reported in 2010 CIJ 553 IPJ, wherein, this Court, while considering the correctness of order of suspension, pending investigation into a crime/trial/contemplation of enquiry/pendency of charges, has formulated certain issues for consideration, "(i) Whether the authority, who has placed a government servant under suspension is statutorily bound to review the suspension, when he is facing investigation into a criminal case/trial of an offence, involving moral turpitude, like corruption, embezzlement, misappropriation or for such other serious offences before the Criminal Court and if review of suspension is not done by the authority, who has placed the government servant under suspension or by the higher authority, whether the said order would become automatically invalid?
(ii) Whether the time limit prescribed for review of suspension in G.O.Ms.No.40, dated 30.01.1996 is applicable to criminal cases?
(iii) What is the right of a government servant during the period of suspension pending enquiry into the charges, under contemplation/pending investigation/trial?
(iv) When the appointing/disciplinary, authority/government can exercise his discretion to place a government servant under suspension and what are all the factors to be taken into consideration?
(v) Whether the order of suspension is administrative or quasi-judicial nature?
(vi) When the power of judicial review exercised by Courts in adjudicating the legality or correctness of an order of suspension passed by the appointing/disciplinary, authority/government, pending contemplation of the charges/enquiry/investigation/trial, what is the extent of discretion to be exercised by Courts?
(vii) Whether the Courts can merely strike down orders of suspension issued against the government servant and continued, pending disposal of the investigation/trial of offences involving moral turpitude, particularly, corruption, on the sole ground that there is no progress in the investigation or trial for a considerable period, there is no likelihood of tampering with the witnesses or prolonged suspension, pending investigation or trial, causes agony and humiliation?
(viii) Whether a government servant placed under suspension for involvement in serious offences/misconduct, involving moral turpitude can seek for retention in service in any insignificant post or seek for transfer, on the sole ground that the suspension is prolonged pending investigation/trial?
36. Perusal of the judgments relied on by the learned counsel for the petitioner makes it abundantly clear that the Hon'ble Division Bench judgment in D.Uthirakumaran's case overruling N.Deenadayalan's case has not been placed before the learned judges, who decided the cases, namely, Dr.B.Karanchandra Mohan Prasath vs. State of Tamil Nadu, reported in 2011 (4) CTC 608 and R.Jeyadoss Gabriel vs. Secretary to Government, Co-operation Food and Consumer Protection (CD II) Department, Secretariat, Chennai-9, reported in 2012 (4) MLJ 458, respectively. When the judgment of the learned Single Judge in Deenadayalan's case has been overruled by a Hon'ble Division Bench, the former has no binding precedential value.
37. In the above reported case, this Court has not only considered the question pertaining to corruption, but also considered the powers of the authority. While considering the need to place the government servant under suspension, this Court has also considered the right of the government servant to seek for restoration, when criminal case is registered. While answering the above issues, at Paragraphs 81 to 84 and 87, this Court has held as follows:
"81. For the purpose of suspension, it is sufficient that the competent authority has arrived at a prima facie conclusion that the Government servant has committed a serious misconduct, which entails major penalties, like dismissal, removal or compulsory retirement, etc., from service. Illustrative cases, where action has to be taken immediately, are persons, involving in serious acts of misdemeanor, such as, (a) offence or conduct involving moral turpitude, (b) corruption, embezzlement or misappropriation of Government money,
(c) possession of disproportionate assets, (d) misuse of official powers for personal gain, (e) serious negligence or dereliction of duty, (f) desertion of duty and (g) refusal or deliberate failure to carry out written orders of superior officers; (h) apprehension of tampering with witnesses or documents or likelihood of causing prejudice to an inquiry, investigation or trial; (j) likelihood of subversion of discipline in office; (k) involvement of scandals, and (l) likelihood of ultimate conviction out of departmental proceedings, and in all these illustrative cases, it is the matter of necessity and public interest, involved and therefore, it which must be left to the absolute discretion of the competent authority, with whom, the power is vested to suspend and that such discretion exercised in public interest should not be interfered with lightly.
82. When the criminality of the government servant is adjudicated before the Court of competent jurisdiction and when the Police, Vigilance and Anti-
Corruption Department has launched prosecution or proposed to launch for imposing appropriate punishment under the penal laws, the appointing/disciplinary authority/government, should be allowed to exercise their discretion to place the government servant under suspension, which is a step in aid, to complete the investigation/trial. Courts have consistently held that even if the materials are not adequate for prosecution or even after acquittal, when the appointing/disciplinary authority/government is empowered to place the government servant under suspension, the power can be exercised on proper consideration of relevant materials, in public interest.
83. Once the objective consideration of the allegations, the material on record, warrants suspension, till the completion of enquiry or trial, in public interest, it is not for this Court to examine the nature of the allegations, the evidence and to record any finding thereon, which would hamper the progress of the departmental enquiry or investigation or trial against the government servant.
84. No doubt, the exercise of discretion, should be rational, should not be arbitrary and that there is also a legal duty cast upon the appointing/disciplinary authority/Government to apply its mind before exercising such discretionary power. However, when the government servant against whom, an enquiry into grave charges or an investigation into an offence or trial is pending and such charge/charges, involves moral turpitude, then the competent authority can exercise his discretionary power under Rule 17 of the Tamil Nadu Civil Service (Discipline and Appeal) Rules and place the government servant under suspension, pending enquiry into grave charges under contemplation into charges/enquiry into formulated charges/investigation/trial.
87. The appointing/disciplinary, authority /government is entitled to exercise the control and maintain the master and servant relationship. To suspend an employee, as an interim measure for anyone of the reasons stated supra, which are illustrative, is the absolute right of an employer and no employee can insist that he must be allowed to be retained in service and discharge his duties and enjoy the fruits or privileges attached to the post. While testing the correctness of the order of suspension, all that has to be seen by the Court is whether the power of the appointing/disciplinary authority, in controlling the employees, has been exercised reasonably, without any mala fide and that there should not be any lack of jurisdiction. Any action taken by the appointing/disciplinary authority, in public interest to maintain a clean and honest administration, cannot be interfered with lightly. Even though the government servant is put to mental agony, it is only to the limited extent of restricting him from discharging his duties and enjoy other privileges attached to the post and it is only an interim measure, till he is cleared off of the imputations levelled against him. The suspension cannot be attacked on the ground that the facts stated therein are not correct. It is well settled that the High Court cannot delve into the factual details, while adjudicating the correctness of an administrative order."
38. The above-said judgment has been further elaborated by His Lordship Justice K.Chandru, in a batch of Writ Petitions in W.P.(MD)Nos.10882 of 2009, etc., dated 01.11.2010 [R.Sakunthala v. The State of Tamil Nadu] and relevant portions of the above order are extracted hereunder:
"15.Before proceeding to deal with the main case, it is seen from records that in this batch of writ petitions, in most of the writ petitions, interim stay has been granted on identical grounds . In that a reference was made to the judgment of this court in The State of Madras Vs. K.A.Joseph reported in AIR 1970 Madras 155. In that case, the respondent Joseph was placed under suspension pending contemplation of enquiry. Since suspension lasted for more than 10 months, he moved this court. This Court directed that charges should be framed within three months and if that was not done, he can again approach the court for redress. When no charges were framed by the competent authority, he filed another writ petition. This court while entertaining that writ petition, by an interim order revoked the suspension order.
12. An appeal was filed by the State in W.A.No.45 of 1969. The appeal was finally disposed of by a division bench of this court which came to be reported as AIR 1970 Madras 155. The short order contained only three paragraphs. In paragraph 1, the court dealt with the facts of the case, which is as follows:
".... It is sufficient for us to observe that a period of nearly ten months had elapsed since the Officer was first placed under suspension, and that, on an earlier representation, the Court directed that charges should be framed within three months, and that, if that was not done, the petitioner could approach the Court, again for redress, and, the outcome is the order from which the writ appeal is sought to be filed."
17.Repelling the objections raised by the State regarding the power of judicial review over such order, in paragraph 2, it was observed as follows:
"2....On the contrary, in our view there is a very clear and distinct principle of natural justice, that an Officer is entitled to ask, if he is suspended from his office because of grave averments or grave reports of misconduct, that the matter should be investigated with reasonable diligence, and that charges should be framed against him within a reasonable period of time....."
18.When the Government Pleader in that case expressed his difficulty about the embarrassment if the Government servant resumed duty in the same place, the court moulded the relief in the following manner:
"3.... The learned Government Pleader submits that there may be great difficulty in permitting the Officer to resume duties in the very post, when the performance of those duties by him in the past, had led to the imputation of grave irregularities, we are unable to see any real difficulty in the matter. We clarify the position by stating that it is open to the Government to permit the Officer to resume duty in that identical post, or, any post of equal grade and emoluments, which may be available for making an order of resumption of duty."
19.It can be seen from the above case that there was initial disobedience of the order passed by this court in not framing the charges. Thereafter, the suspension was revoked. There was objection for restoration of service on the ground that this court has no jurisdiction to interfere with the suspension which was rejected. Thirdly when the embarrassment of restoration of a Government servant facing serious charges to the very same place was made, the court also directed his being posted to some other post in the very same status and salary.
20.From a reading of the very short judgment, it is clearly seen that the court was only concerned about the delay in framing of charges by the department. It did not deal with any case involving criminal prosecution that too on corruption charges. Secondly, the court gave an opportunity to the respondent to frame charges and not to be merely contended keeping a person under suspension. When that was not forthcoming and the order of the court was violated, the court revoked the suspension order, but also took care in granting liberty to the Government to post that person in some other place."
39. The above referred judgment has been taken on appeal and that the same has been confirmed by the Division Bench in W.A.(MD)No.84 of 2011, dated 21.01.2011, where the relief sought for, was to revoke the order of suspension.
40. In a decision of His Brother Justice N. Paul Vasanthakumar, in E.S.Mathiyan v. The Joint Director of Medical and Rural Health Services and Family Welfare reported in 2011 (2) LLN 782 (Mad), the learned Judge considered the correctness of the suspension order passed under Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, pending investigation into the criminal trial booked under Section 392 IPC. After considering the catena of decisions and the Division Bench judgment made in W.A.(MD)No.84 of 2011, dated 21.01.2011, this Court held that the impugned order of suspension cannot be quashed. The decisions relied on by the learned Judge are extracted hereunder:
"(i) A Division Bench of this Court considered Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules in W.A.No.1114 of 2007 (the Secretary to Government of Tamil Nadu and others v. N.Shanmugasundaram) and by Judgment dated 5.11.2007 upheld the order of suspension pending investigation/trial of criminal offence.
(ii) A Division Bench of this Court in the case of M.Rajammal v. Principal District Judge reported in 2009 (4) MLJ 212 held that Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, contemplates that a member of a 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 or any criminal offence is under investigation or trial and if such suspension is necessary in the public interest. In the said Judgment, the decisions of the Supreme Court in Hotel Imperial v. Hotel Workers' Union reported in AIR 1959 SC 1342 : 1959 II LLJ 544 and in R.P.Kapur v. Union of India reported in AIR 1964 SC 787 : 1966 II LLJ 164 were followed and upheld the similar order of suspension.
(iii) In W.A.No.1818 of 2009, dated 15.12.2009, a Division Bench of this Court in the case of S.Jeevanantham vs. the Government of Tamil Nadu and others considered an identical issue and confirmed the order of a learned Single Judge dismissing the Writ Petition, which was filed challenging the order of suspension.
(iv) Suspension orders were also upheld in the case of D.Gnanasekaran v.
Chief Educational Officer reported in 2007 (1) MLJ 457 and in the case of S.Jeyasingh Rajan v. President, Kalloorani Panchayat reported in 2006 (4) MLJ
59.
(v) The Supreme Court in the case of Allahabad Bank and another vs. Deepak Kumar Bhola reported in 1997 (4) SCC 1, upheld the order of suspension of a bank employee, who was facing a criminal offence involving in moral turpitude. In the said Judgment, the order of the Allahabad High Court, quashing the order of suspension was set aside and the appeal filed by the bank was allowed.
(vi) The Supreme Court in the decisions in R.P.Kapoor v. Union of India reported in AIR 1964 SC 787l; Balwantray Ratilal Patel v. State of Maharastra reported in AIR 1968 SC 800; A.K.K.Nambiar v. Union of India reported in 1969 (3) SCC 864; V.P.Gidroniya v. State of Madhya Pradesh reported in 1970 (1) SCC 362; Ministry of Home Affairs v. Tarak Nath Ghosh reported in 1971 (1) SCC 734; Government of Andhra Pradesh v V.Sivaraman reported in 1990 (3) SCC 57; Uttar Pradesh Rajya Krishi Utpadan Manti Samiti Parishad v. Sanjiv Rajah reported in 1993 (2) LLN 11; State of Orissa v. Bimal Kumar Mohanty reported in 1994 (1) LLN 889; State of Madhya Pradesh v. Ram Singh reported in 2000 (5) SCC 88; State Bank of India v. Rattan Singh reported in 2000 (10) SCC 396; K.C.Sareen v. CBI reported in 2001 (6) SCC 584; Union of India v Rajiv Kumar reported in 2003 (6) SCC 516, held that a person involved in a criminal case can be placed under suspension till he is exonerated and she can claim only subsistence allowance and he cannot demand revocation of suspension as a matter of right.
(vii) A Division Bench of the Madurai Bench of this Court in W.A.(MD)No.84 of 2011 dated 21.1.2011 (R.Sakunthala v. The State of Tamil Nadu) following the above cited decisions, confirmed the order of the learned single Judge dismissing the writ petition, seeking revocation of the suspension order."
41. Reverting back to the case on hand, prima facie, the order of suspension in G.O.(D).No.379 Public Works (E1) Department, dated 10.11.2011 cannot be said to have been made arbitrarily, by the Government. As stated supra, after taking a decision not to proceed with the criminal case, a charge memorandum No.CII(3)/10237 /2011-16, dated 24.05.2013 has been issued by the Engineer-in-Chief (Buildings) & Chief Engineer (Buildings), Chennai Region & Chief Engineer (General), PWD, Chennai. The Charge, Statement of allegations, list of witnesses and the list of documents proposed to be examined and marked, have already been extracted in the foregoing paragraphs.
42. Material on record further discloses that the petitioner has also submitted a detailed explanation to the charge memorandum on 10.06.2013. Criminal case is stated to have been registered against the contractor. The impugned order of suspension in G.O.(D).No.379 Public Works (E1) Department, dated 10.11.2011, following arrest and detention in judicial custody in respect of Cr.No.10 of 2011 under Section 7 of the Prevention of Corruption Act, 1988 registered by the Madurai Detachment of the Directorate of Vigilance and Anti Corruption against the petitioner, is well within the competence of the Government, in terms of Rule 17(e)(2) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
43. In the decision the Deputy Inspector General of Police v. S.Govindaraj reported in 2012 (1) CTC 124 (cited supra) relied on by the petitioner, the petitioner therein has been placed under suspension, during the pendency of a corruption case registered under the provisions of prevention of Corruption Act. Contending inter alia that the petitioner therein has been kept under suspension for 5 years even though the investigation was over and that a charge sheet has been filed before the learned Chief Judicial Magistrate, Coimbatore, as early as on 02.03.2008 and taken on file as Special C.C.No.7 of 2008 and that there was no progress in the trial Court, except examining PW1, who had sanctioned the prosecution, against the petitioner therein, the order of suspension made against a police constable, pending investigation into a criminal case, had been assailed. A Perusal of the reported judgment also shows that a contention has been raised in the writ petition that the name of the petitioner did find place in the First Information Report. The allegation was made only against the Sub Inspector of Police. Placing reliance on Rule 17(3)(e)(6) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 a further contention has been made that said Rule provides for revocation of suspension.
44. Rule 17(e) of the Tamilnadu Civil Services (Discipline and Appeal) Rules is extracted hereunder:
"(1) A member of a service may be placed under suspension from service, where-
(i) an enquiry into grave charges against him is contemplated, or is pending; or
(ii) a complaint against him of any criminal offence is under investigation or trial and if such suspension is necessary in the public interest.
(2) A Government servant who is detained in custody whether on a criminal charge or otherwise, for a period longer than forty-eight hours shall be deemed to have been suspended under this rule.
(3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government Servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.
Provided that no such further inquriy shall be ordered unless it is intended to meet a situation where the Court of law has passed an order purely on technical grounds without going into the merits of the case. (5) Where a Government servant is suspended or is deemed to have been suspended (Whether in connection with any disciplinary proceedings or otherwise) and any other disciplinary proceedings are commenced or any other criminal complaint is under investigation or trial against him during the continuance of that suspension, and where the suspension to the Government servant is necessary in public interest as required under clause (1), the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension until the termination of all or any such proceedings including departmental proceedings taken on the basis of facts which led to the conviction in a Criminal Court.
(6) An order of suspension made or deemed to have been made under this rule may at any time be revoked by the authority which made or is deemed to have made the order of by any authority to which that authority is subordinate.
45. A conjoined reading of Rule 17(e)(1) and 17 (e)(5) of Tamil Nadu Civil Services (Discipline and Appeal) Rule, makes it clear that a discretion is conferred on the authority to revoke an order of suspension made in connection with any disciplinary proceedings or any other proceedings, whereby the suspension of Government services is necessary in public interest, as required in Rule 17(e)(1)(ii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. As per Rule 17(e)(5), the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension until the termination of all of any of such proceedings including departmental proceedings, taken on the basis of facts which led to the conviction in a Criminal Court.
46. In the Deputy Inspector General of Police v. S.Govindaraj reported in 2012 (1) CTC 124 it was one of the contentions that there was no specific allegation against the writ petitioner therein, in the F.I.R. However, charge sheet has been filed against him in Special Special C.C.No.7 of 2008. There was no progress in the criminal case, except examining PW1, who had sanctioned prosecution against the writ petitioner therein. In the above reported case, by observing that the writ petitioner therein was kept under prolonged suspension, for nearly 5 years with salary, in the form of Subsistence Allowance, without extracting any work from him, which is nothing but wasting of Government money, and by applying Rule 3(e)(5) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, a Division Bench of this Court has confirmed the order of the learned single Judge, directing revocation of suspension. A perusal of the judgment in S.Govindaraj's case (cited supra) indicates that no decision of the Supreme Court, on the aspect of placing an individual under suspension, involving corruption has been considered. Therefore, this Court is inclined to consider some of the judgments of the Apex Court, dealing with suspension.
47. In Gomthy Vs. State, reported in 1996 (2) KLT 91, it has been held that Judgment rendered ignoring the binding authority or basing on wrong understanding of law or a binding precedent, would be Judgment per incuriam.
48. In State of Bihar vs. Kalika Kuer, reported in AIR 2003 SC 2443 = 2003 (5) SCC 448, the Supreme Court held as follows:-
At this juncture, we may examine as to in what circumstances a decision can be considered to have been rendered per incuriam. In Halsbury's Laws of England (Fourth Edition) Vol.26: Judgment and Orders Judicial Decisions as Authorities (Pages 297-298, Para 578) we find it observed about per incuriam as follows:-
"A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction while covered the case before it, in which case it must decide which case to follow (Young vs. Bristol Aeroplane Co.Ltd., reported in 1944 (1) KB 718 = 1944 (2) All ER 293), or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force(Young vs. Bristol Aeroplane Co.Ltd., reported in 1944 (1) KB 718 = 1944 (2) All ER 293). A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties(Morvelle Ltd., vs. Wakeling, reported in 1955 (2) QB 379 = 1955 (1) All ER 708 C), or because the court had not the benefit of the best argument(Bryers vs. Canadian Pacific Streamships, Ltd., reported in 1957 (1) QB 134 = 1956 (3) All ER 560(CA) and as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority(A and J Mucklow Ltd., vs. IRC, reported in 1954 Ch 615 = 1954 (2) All ER 508 (CA). Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake."(Williams vs. Glasbrooks Bros. Ltd., reported in 1947 (2) All ER 884 (CA).
49. After considering various decisions in State of Orissa v. Bimal Kumar Mohanty reported in 1994 (4) SCC 126, the Supreme Court held as follows:-
"13. It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge.
14. On the facts in this case, we are of the considered view that since serious allegations of misconduct have been alleged against the respondent, the Tribunal was quite unjustified in interfering with the orders of suspension of the respondent pending inquiry. The Tribunal appears to have proceeded in haste in passing the impugned orders even before the ink is dried on the orders passed by the appointing authority. The contention of the respondent, therefore, that the discretion exercised by the Tribunal should not be interfered with and this Court would be loath to interfere with the exercise of such discretionary power cannot be given acceptance."
50. The Supreme Court in Ministry of Home Affairs v. Tarak Nath Ghosh reported in 1971 (1) SCC 734, which has been considered in Biman Kumar Mohanty's case (cited supra), also raised a question as to whether the suspension of a member of the service can only be ordered after definite charges communicated to him in terms of Rule 5(2) of the All India Services (Discipline and Appeal) Rules, 1955, or whether the Government is entitled to place him under suspension even before that stage has been reached after a preliminary investigation. The Supreme Court in Tarak Nath Ghosh's case held as follows:-
Held: (1) The fact that in other rules of service there is specific provision for an order of suspension even when disciplinary proceedings were contemplated, does not mean that a member of the All India Service should be dealt with differently. It would not be proper to interpret the Rules, which form a self-contained Code, by reference to the provisions of other rules even if they were made by or under the authority of the President of India."
51. In Gyan Singh Parihar v. State of U.P., reported in 2002 (92) FLR 406 (All.), a Division Bench of the Allahabad Court tested the correctness of an order of suspension, pending a proposed disciplinary enquiry, against an employee relating to serious charges of fraud, embezzlement, bribe etc., At para 4 and 5 of the judgment, the Division Bench held as follows:
"4. Whether an employee should or should not continue in his office during the period of disciplinary enquiry is a matter to be assessed by the concerned authority and ordinarily, the Court should not interfere with the order unless it is demonstrated to be mala fide and without there being a prime fade evidence on record connecting the employee with the misconduct in question. See U.P. Rajya Krishi Utpadan Mandi Partshad and Ors. v. Sanjiv Rajan (1993 (2) LLJ 66).
5. It has not been demonstrated before the Court that the order is mala fide and without there being a prime facie evidence on record connecting the petitioner with the alleged misconduct, warranting interference by this Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India."
52. In this context, it is pertinent to extract the observations of Lord Denning, as found in Wade on Administrative Law, "The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means atleast this :
the statutory body must be guided by relevant consideration and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted is good faith, nevertheless the decision will be set aside
53. In a catena of decisions extracted supra, and in particular Allahabad Bank and another vs. Deepak Kumar Bhola reported in 1997 (4) SCC 1, the Supreme Court held considered the plea of prolonged suspension for 10 years, pending trial, in a corruption case and though it was urged that a prolonged suspension was bad in law, the Apex Court declined to accept the said contention.
54. Rule 17 (3)(e)(5) and (6) of the Tamil Nadu Civil Services (Discipline and Appeal Rules) confers a discretion on the authority to place an individual under suspension, and for the reasons to be recorded in writing, continue the Government servant under suspension until the termination of all or any such proceedings including the disciplinary proceedings taken on the basis of facts which leading to the conviction in a criminal Court.
55. In the decision of P.Anbalagan v. The Conservator of Forests, Trichy Circle, Trichy, placing reliance on Rule 10 of the Central Civil Services Rules a contention was raised before this Court that after the expiry of 90 days, the disciplinary/appointing authority is bound to review the order of suspension and if such exercise is not done, on the expiry of the above such period, the order of suspension earlier passed would lapse. For better understanding the rule is extracted hereunder:
"10. (6) An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority competent to modify or revoke the suspension, before the expiry of ninety days from the date of order of suspension, on the recommendation of the Review Committee constituted for the purposes and pass orders either extending or revoking the suspension. Subsequent reviews shall be made before the expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time.
(7) Notwithstanding anything contained in sub-rule (5), an order of suspension made or deemed to have been made under sub-rules (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days."
56. Comparing the relevant State and Central Services Rules, this Court at paras 12 to 20 held as follows:
"12. Reading of the above said rules makes it clear that an order of suspension made under 10 of the said Rules, would not survive after the period of 90 days, unless it is extended after review. The provision itself makes it clear that before the expiry of the 90 days from the date of order of suspension, on the recommendation of the Review Committee constituted for the purpose, a specific order should be passed, either extending or revoking the suspension. As the rule cited supra, mandates, review before the expiry of 90 days from the date of initial suspension, the Supreme Court in Dipak's case cited supra, has held that a subsequent review or extension, as invalid, on account of not reviewing the initial order of suspension, within a period of 90 days. The rule which is available in Central Civil Services, cannot be mutatis mutandis applied to the Tamil Nadu Civil Services (Discipline and Appeal) Rules. External aid is not permissible when the Discipline and appeal Rules applicable to state service do not contemplate any review, after a specific period.
13. While interpreting statutes, Courts have consistently held that it is not sound principles of construction to interpret expressions used in one Act with reference to their use in another Act, and the decisions rendered with reference to construction of one Act cannot be applied to the provisions of another Act, when two provisions are not in pari materia materials.
14. It is also well settled that before applying the decisions rendered under a Central Act or State Act, on the same subject, attention must be drawn to the variance in the language. When the legislature substitutes or makes certain amendments to certain provisions/substitutes / inserts etc., then it should be held that such amendment/substitution etc., are done with a specific object and alteration so made is done deliberately.
15. Amendments made in the Central Services Rule cannot simply be imported or added in the State Services Rules on the same subject. It is also well settled that when the word, 'may' is used, in a provision it is not always decisive, and regard should be made as to whether in the context, subject matter and object of the statutory provision in question, it is mandatory or directory.
16. It is well settled by the Apex Court in a catena of decisions that the question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it one way or the other; the impact of the provision whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for contingency of the non- compliance with the provision; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered.
17. It is also to be seen that while interpreting a provision in case of non-compliance, whether the object of the enactment itself would be defeated. It is also a settled principle of law that a mandatory enactment must be obeyed or fulfilled exactly, but it is suffice, if a directory enactment be obeyed or fulfilled substantially. Perusal of the provision both Central and State Services Rule, makes it clear that the provision enabling it competent authority to extend the suspension is a discretionary power, failure of which does not render the suspension, a nullity.
18. It is also to be noted that there are no negative words in the State Services Rules demanding the consequences of when no order is passed, extending suspension. Central Rules provide a duty and it also lays down the manner in which and the time in which the duty shall be performed, failing which, an inconvenience resulting therefrom has been prescribed. Whereas, in the State rule though discretion is conferred on the competent authority, no specific time limit has been prescribed. There is no legal fiction created or could be inferred under the State rule that failure to exercise discretion confers right for the suspended employee to seek for revocation as a matter of routine.
19. The discretionary power conferred under Rule 17(5)(6) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, does not confer a right to claim that non-compliance of the same, would not invalidate the order of suspension. The word 'May' use in Rule 17(5) of the said rule is only an enabling provision conferring discretion.
20. The Judgment relied on by the petitioner is not applicable to the facts of this case for the reason that there is no right conferred on the petitioner to seek for review of suspension. Rule 17(5) and (6) only enables the competent authority, may for the reasons to be recorded in writing, direct the Government Servant who is placed under suspension, shall continue to be under suspension, until termination or all or any of such proceedings including disciplinary proceedings."
57. In the light of the decision of this Court in Writ Petition (MD).No.10882 of 2009, dated 01.11.2010, confirmed in W.A.(MD).No.84 of 2011, dated 21.01.2011 stated supra, and the decisions of the Supreme Court, on the aspect of suspension, this Court deems it fit to consider the decisions of the Supreme Court, on the law of precedent.
58. In State of Orissa vs. Sudhansu Sekar Misra, reported in AIR 1968 SC 647, the Hon'ble Supreme Court explained as to when a decision can be taken as a precedent, which as follows:-
"A decision is only an authority for what it actually decides. What is of the essence of a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic, this is what Earl of Halsbury LC said in Quinn v. Leathem, reported in 901 AC 495.
'Now before discussing the case of Allen vs. Flood, reported in 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."
It is not profitable task to extract a sentence here and there from a judgment and to build upon it."
59. In Union of India Vs. Dhanwanti Devi, reported in 1996 (6) SCC 44 = 1996 (7) Supreme 51, at page 51, the Supreme Court has explained, what constitutes a precedent, which as follows:-
"Before adverting to and considering whether solatium and interest would be payable under the Act, at the outset, we will dispose of the objection raised by Shri Vaidyanathan that Union of India v. Hari Krishan Khosla case reported in 1993 Supplement (2) SCC 149, is not a binding precedent nor does it operate as ratio decidendi to be followed as a precedent and is per se per incuriam. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi According to the well-settled theory of precedents, every decision contains three basic postulates- (i) findings of material facts, direct and inferential. A inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi. ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges arc to employ an intelligent technique in the use of precedents. It would, therefore, be necessary to see whether Hari Krishnan Khosla case, reported in 1993 Supp (2) SCC 149, would form a binding precedent. Therein, admittedly the question that had arisen and was decided by the Bench of three Judges was whether solatium and interest are payable to an owner whose land was acquired under the provisions of the Central Act? On consideration of the facts, the relevant provisions in the Central Act and the previous precendents bearing on the topic, the Court had held that solatium and interest are not a part of compensation. It is a facet of the principle in the statute. The Central Act omitted to provide for payment of solatium and interest since preceding the acquisition the property was under requisition during which period compensation was paid to the owner. The position obtained and enjoyed by the Government during the period of requisition continued after acquisition. The same principle was applied without further elaboration on entitlement to payment of interest of an owner. It is true that the decisions relied on by Shri Vaidyanathan on the principle of payment of interest as part of compensation in respect of land acquired were brought to the attention of this Court for discussion. What would be its purport would be considered a little later. Suffice it to say for the present that the finding that solatium and interest are not payable for the lands acquired under the Central Act as part of compensation is a binding precedent. Obviously, therefore, this Court followed the ratio therein in Distt. Judge case reported in 1994 (4) SCC 737. The contention, therefore, that Hari Krishan Khosla case, cannot be treated as a binding precedent since therein there is no ratio but a conclusion without discussion, in not tenable and devoid of force. In that view, it is not necessary to discuss in extenso the effect of the decisions cited by Sri.Vaidyanathan. Equally, the contention of Shri.Vaidyanathan that the ratio in Hari Krishan Khosla case is in conflict with the ratio in Satinder Singh case, reported in 1961 (3) SCR 676 = AIR 1961 SC 908 which was neither distinguished nor overruled and that the decision of a coordinate Bench, cannot have the effect of overruling decision of another coordinate Bench, cannot be given countenance. The effect of the ratio in Satinder Singh case will be considered a little later; suffice it to state that there is no conflict in the ratio of these two cases, if the facts in Satinder Singh case are closely analysed and the principle laid down therein is understood in its proper perspective. Therefore, Hari Krishan Khosla case, cannot be held to be per incuriam nor has it the effect of overruling the ratio decidendi of Satinder Singh case (1961) 3 SCR 676 : AIR 1961 SC 908.
60. In Government of W.B vs. Tarun Roy and others, reported in 2004 (1) SCC 347, as regards binding precedent of a judgment, the Supreme Court at paragraph 26, has observed as follows:-
26.......... If rule of law is to be followed, judicial discipline demands that the court follows its earlier binding precedent. The Calcutta High Court itself has rejected such a plea. The matter is pending in appeal. An order passed to the contrary by another learned Single Judge in ignorance of the earlier binding precedent by itself would not constitute a binding precedent and may be held to have been rendered per incuriam.
61. In State of Punjab v. Devans Modern Breweries Ltd., reported in (2004) 11 SCC 26, the Hon'ble Supreme Court explained the doctrine of precedents and when a judgment becomes per incuriam. Paragraphs 334 to 336, 339 and 343, of the judgment are relevant and they are as follows:-
Precedent: 334. The doctrine of precedent is a well-accepted principle. A ruling is generally considered to be binding on lower courts and courts having a smaller bench structure:
"A precedent influences future decisions. Every decision is pronounced on a specific set of past facts and from the decision on those facts a rule has to be extracted and projected into the future. No one can foresee the precise situation that will arise, so the rule has to be capable of applying to a range of broadly similar situations against a background of changing conditions. It has therefore to be in general terms and 'malleable' . No word has one proper meaning, nor can anyone seek to fix the meaning of words for others, so the interpretation of the rule remains flexible and open-ended. (See Dias Jurisprudence, 5th Edn., p. 136.)"
335. However, although a decision has neither been reversed nor overruled, it may cease to be "law" owing to changed conditions and changed law. This is reflected by the principle "cessante ratione cessat ipsa lex".
". It is not easy to detect when such situations occur, for as long as the traditional theory prevails that judges never make law, but only declare it, two situations need to be carefully distinguished. One is where a case is rejected as being no longer law on the ground that it is now thought never to have represented the law; the other is where a case, which is acknowledged to have been the law at the time, has ceased to have that character owing to altered circumstances. (See Dias Jurisprudence, 5th Edn., pp. 146-47.)"
336. It is the latter situation which is often of relevance. With changes that are bound to occur in an evolving society, the judiciary must also keep abreast of these changes in order that the law is considered to be good law. This is extremely pertinent especially in the current era of globalisation when the entire philosophy of society, on the economic front, is undergoing vast changes.
339. Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a larger Bench. (See Pradip Chandra Parija v. Pramod Chandra Patnaik, reported in 2003 (7) SCC 01, SCC at paras 6 and 7; followed in Union of India v. Hansoli Devi, reported in 2002 (7) SCC 01, SCC at para 2.) But no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate Bench. Kalyani Stores, reported in AIR 1966 SC 1686 and K.K. Narula, reported in AIR 1967 SC 1368, both have been rendered by the Constitution Benches. The said decisions, therefore, cannot be thrown out for any purpose whatsoever; more so when both of them if applied collectively lead to a contrary decision proposed by the majority.
343. It is also trite that the binding precedents which are authoritative in nature and are meant to be applied should not be ignored on application of the doctrine of sub silentio or per incuriam without assigning specific reasons therefor. I, for one, do not see as to how Kalyani Stores and K.K. Narula read together can be said to have been passed sub silentio or rendered per incuriam.
62. With due respect to the Honourable Division Bench, which decided S.Govindaraj case (cited supra), taking note of the law declared by the Supreme Court in the matter of precedents, this Court, is inclined to apply the decision in Allahabad Bank and another vs. Deepak Kumar Bhola reported in 1997 (4) SCC 1 and followed by this Court in E.S.Mathiyan v. The Joint Director of Medical and Rural Health Services and Family Welfare reported in 2011 (2) LLN 782 (Mad), to the facts of this case.
63. The decision made by the Honourable Supreme Court in Allahabad Bank case is proximate, to the issue as to whether a Government servant can be continued under suspension pending investigation into crime/trial or pending enquiry into charges or into contemplation of serious charges involving corruption, embezzlement and other misconduct involving moral turpitude and integrity of Government servant or a employee of Public Sector undertaking or Corporation or members or other Board owned and controlled by the Government. The Government or the appointing authority/disciplinary authority, cannot be compelled to revoke the order of suspension issued to a Government Servant, who is involved in a serious charges of corruption, and such other charges involving moral turpitude. A distinction has to be made in the matter of placing a government service or continuing him under suspension, in case of corruption charges. Corruption is like a canker which erodes a system. Keeping a person out of employment, on account of corruption charges, into an enquiry or investigation into a crime or trial, is purely the discretion of the appointing authority.
64. In the light of the Apex Court decision stated supra, this Court is not inclined to hold that G.O.(D).No.379, Public Works (E1) Department, dated 10.11.2011 as invalid or contrary to the Statutory Rules. Receipt of subsistence allowance, subject to satisfying the statutory provisions, is certainly a matter of right. But revocation of suspension pending trial into corruption charges, cannot be claimed as a matter of right, as it would defeat the purpose of the Statutory Rules, which empower the authority to suspend and continue the same.
65. The petitioner has alleged malafide as against the contractor, Mr.A.Pandian and further contended that, a compliant has also been lodged with the police, following the same there was suspension of the said contractor on 16.07.2010. From the perusal of the averments made in the supporting affidavit and material on record enclosed, this Court is not inclined to accept the contentions of malice, against the Secretary to the Government, Public Works Department, Chennai, who has passed the order of suspension, after the arrest of the petitioner on 19.10.2011, for demand and acceptance of bribe of Rs.20,000/- from a contractor and pursuant to the registration of crime No.10 of 2011 under Section 7 of Prevention of Corruption Act, 1988 registered by the Madurai Detachment, Directorate of Vigilance and Anti Corruption. No motive can be attributed against the Secretary to the Government, Public Works Department, Chennai. Charges of corruption have been now framed against the petitioner in proceedings CII(3)/10237/2011-16, dated 24.05.2013.
66. Now that the criminal case has been withdrawn and that charge memorandum dated 10.11.2011 has been framed, it is for the Secretary to the Government, Public Works Department Chennai, to take a decision as to whether the continuation of the petitioner under suspension is required or not. As such the impugned of suspension vide order in G.O.(D).No.379, Public Works (E1) Department, dated 10.11.2011 does not suffer from any illegality or material irregularity. This Court is not inclined to set aside the impugned order.
67. With the above directions, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
jikr To The State of Tamil nadu, rep. by its Secretary to Government, Public Works (E1) Department, Fort St. George, Secretariat, Chennai-600 009.