Madras High Court
R. Anbukkarasu vs State Of Tamil Nadu on 24 April, 2002
Author: P. Sathasivam
Bench: P. Sathasivam
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 24/04/2002 Coram The Hon’ble Mr. Justice P. SATHASIVAM Writ Petition No. 24989 of 2001 and Writ Petition No.24990 of 2001 and Writ Petition Nos.24991 to 24995, 25522, 25523, 26159, 26160, 26162, 26164, 26165, 26166, 26168, 26169 of 2001, 422 to 430, 432 to 435, 863, 1091, 1092, 2139, 2140, 3457 to 3460, 3461 to 3467, 3564 to 3572, 3730 to 3734, 3814 to 3819, 3820 to 3828, 3865 to 3875, 3909 to 3919 , 4007 to 4017, 4109 to 4115, 4237 to 4244, 4575 to 4584, 4640 to 464 9, 4875 to 4878, 4879 to 4883, 5058, 5060, 5485, 5552 to 5561, 7243, 7244, 7326 to 7338, 7339 to 7351, 7472 to 7475, 7505, 7506, 7529 to 7 534, 7543, 7585 to 7592, 7761 to 7767, 7768, 7769, 7794 to 7799, 8413 to 8418, 8432 to 8434 of 2002 and W.P.M.P.Nos. 37101, 37103, 37105, 37107, 37109, 37111, 37113, 378 12, 37813, 38675, 38677, 38681, 38685, 38687, 38689, 38693, 38695 of 2001, 658, 659, 661, 663, 664, 665, 667, 669, 671, 673, 674, 675, 676 1248, 1531, 1532, 2954, 2955, 4872 to 4882, 5000, 5002, 5004, 5005, 5006, 5007, 5009, 5011, 5013, 5221, 5222, 5223, 5225, 5227, 5335, 53 36, 5337, 5338, 5340, 5342, 5344, 5346, 5348, 5350, 5352, 5354, 5356, 5358, 5359, 5416, 5418, 5420, 5422, 5424, 5426, 5428, 5430, 5432, 54 34, 5436, 5475, 5477, 5481, 5483, 5485, 5487, 5489, 5491, 5493, 5495, 5607, 5609, 5611, 5613, 5615, 5617, 5619, 5621, 5623, 5625, 5627, 57 83, 5785, 5787, 5789, 5791, 5793, 5795, 5981, 5983, 5985, 5987, 5989, 5991, 5993, 5995, 6412 to 6421, 6547 to 6556, 6897 to 6900, 6901 to 6905, 7120, 7121, 7626, 7723 to 7732, 10037, 10038, 10135 to 10147, 1 0148 to 10156, 10158 to 10160, 10162, 10163, 10164, 10310 to 10313, 1 0350, 10351, 10375 to 10380, 10389, 10441 to 10448, 10655 to 10662, 1 0663, 10665, 10702 to 10707, 11478 to 11483, 111493 to 11500 of 2002, and W.V.M.P.Nos. 102, 103 and 108 of 2002. W.P.No. 24989 of 2001 etc., batch. R. Anbukkarasu. .. Petitioner. Vs. 1. State of Tamil Nadu, represented by its Secretary, Transport Department, Fort St. George, Chennai-600 009. 2. Tamil Nadu State Transport Corporation Limited, represented by its Managing Director, Salem Division-I, Salem-636 007. 3. General Manager, Tamil Nadu State Transport Corporation Ltd., Salem Division-I, Salem-636 007. ..... Respondents. Petitions under Article 226 of the Constitution of India for issuance of Writs of Certiorarified Mandamus as stated therein. !For Petitioner ... Mr. V. Ayyathurai in W.P.Nos. 422 to 430/2002 etc. Mr. R. Viduthalai:-For petitioner in W.P.Nos. 26159, 26160/2001 etc. Mr. D. Hariparanthaman:- For petitioner in W.P.Nos. 2139, 2140/2002 etc. Mr. A. Prabhakara Reddy:-For petitioner in W.P.No.5058, 5060/2002 etc. ^For Respondent .... Mr. R. Muthukumarasamy, Additional Advocate General, assisted by Mr. G. Muniratnam:-For Transport Corporations Mr. V. Sethuraman, Special Govt., Pleader:-For Transport Department. :COMMON ORDER
The only question raised in all these writ petitions is whether the order of suspension passed against the petitioners by the respondent--State Transport Corporations is sustainable in law.
Factual details
2. For convenience, I shall refer the case oof the petitioner in W.P.No. 24989 of 2001. According to him, he is employed by second respondent-Transport Corporation (Salem Division I). There were 22 State owned Transport Corporations. For the past several years, transport workers were paid customary and festival bonus, on the eve of the Deepavali festival every year, at the rate of 20 per cent of their annual earnings. In November, 2001, the State Government unilaterally reduced the festival bonus payable to all the transport workers in the State to 8.33 per cent instead from 20 per cent. As a result, the quantum of festival bonus got reduced to Rs.2,500/- to each of every one of the 1,10,000 transport workers in the State of Tamil Nadu. The arbitrary, illegal and unilateral action of the State Government in reducing the festival bonus payable to transport workers on the plea of financial crunch evoked spontaneous protest, agitation and strike by all the 1,10,000 transport workers in the State. The strike was total and resorted to all the workers without any exception. All the Central Federation of Trade Unions, like LPF., CITU., A.I.T. U.C., H.M.Ms., P.T.S., B.M.S., M.L.F., etc., and the members of the Trade Unions affiliated to these federations participated in the strike without any exception. After 17 days, the strike was called off in public interest in due deference to the observations made by the First Bench of this Court in a public interest litigation filed in this regard.
3. In the meanwhile, on 20-11-2001 the petitioner and the employees similarly situated like him attached to the Salem Division were issued suspension orders on the plea that an enquiry into the charge of participation in the legal strike is pending. After the strike was called off, he reported for duty on 26-11-2001. However, the respondents refused to permit him to work stating that he has been suspended from service. He reliably understood that out of 119 employees (Salem Division-I), who were suspended pending enquiry, suspension has been revoked in respect of 47 employees belonging to different trade unions for collateral and political considerations and permitted to join duty. As a measure of victimisation and unfair labour practice, the petitioner and other employees who are the members of L.P.F., trade union affiliated to D.M.K. party, numbering 72 employees had alone been singled out on political considerations and are continued under suspension. Having no other effective alternative remedy, except to approach this Court under Article 226 of the Constitution of India, filed the above writ petition to quash the order of suspension and consequently direct the respondents/Transport Corporations to reinstate the petitioner in service with full back-wages, continuity of service and all other attendant benefits.
4. The Transport Corporations, who are impleaded as respondents 2 and 3 in these writ petitions, filed separate identical counter affidavit in most of the writ petitions. Here again, for convenience, I shall refer the common counter affidavit filed by the General Manager, Tamil Nadu State Transport Corporation (Salem Division-I), Salem in W.P.Nos. 24989 to 24995 of 2001. It is stated that the suspension orders were passed objectively in the best interest of the 3 rd respondent Corporation. The payment of bonus is merely a cash payment made to the worker in addition to the wages. The payment is governed by the Payment of Bonus Act. It is not correct to state that consistently 20 per cent bonus was paid. In the yesteryears, annual bonus of 8.33 per cent together with an ex-gratia amount was paid, that too was not consistently made inasmuch as the payment of annual bonus itself is in like with productivity. The State owned transport undertakings are registered under the Companies Act. Presently, there are 19 transport corporations having different productivity levels. For the year 2001-2001, the transport workers were paid the statutory bonus at 8.33 per cent of the annual earnings and the same is in accordance with the Payment of Bonus Act. The amount that has been paid as ex-gratia has no legal sanction and it was fully within the discretion of the Government. The response for strike was not spontaneous as picturised by the petitioners. The petitioners were suspended from duty by order dated 20-11-2001. The interim order of suspension was issued for the misconduct of inducing unwilling co-workers to participate in the strike, causing disruption of the vehicular operation, thereby causing hardship to the travelling public at large. Depending upon the misconduct committed, charge memos were issued. It is not correct to state that because of the trade union activities, inimical treatment was meted out to them. The respondent Corporation is least interest in the political party or trade union affiliations of the workmen. The primary concern and anxiety of the Corporation was to protect its interests and to serve the travelling public.
5. In the light of the above pleadings, I have heard M/s. V. Ayyathurai, R. Viduthalai, D. Hariparanthaman and A. Prabhakara Reddy, learned counsel for the petitioners and Mr. R. Muthukukumarasamy, learned Additional Advocate General for Transport Corporations.
6. The points raised by the learned counsel for the petitioners are as follows:
(i) The impugned order of suspension is contrary to Standing Orders of the Transport Corporations. In the absence of charge memo, opportunity to the petitioners to submit their explanations, the order of suspension cannot be sustained;
(ii) The order of suspension is vitiated by mala fide;
(iii) The respondents selected certain persons who are members of the Union opposing the Government’s decision; hence the impugned order is liable to be set aside on the ground of arbitrariness and discrimination. The respondents selected certain persons-petitioners and suspended them. Persons belonging to the ruling party, though participated in the strike and suspended along with the petitioners, were subsequently reinstated and the suspension orders against them were revoked.
7. On the other hand, learned Additional Advocate General, after placing the relevant Standing Orders, facts and figures, supported the action of the respondents. He also contended that the Government/Transport Corporations have not discriminated any one and irrespective of party affiliation, action had been taken against those, who instigated the workmen and caused damages to the buses and caused inconvenience to the travelling public. He further contended that inasmuch as the respondents have power to order suspension, judicial review by this Court is very limited; accordingly prayed for dismissal of all the writ petitions.
8. I have carefully considered the rival submissions.
Non-compliance of Standing Orders
9. First of all, I shall deal with the relevant Standing Orders of the Tamil Nadu State Transport Corporation. Though several employees of various Transport Corporations are arrayed as petitioners, mainly the Standing Orders of Tamil Nadu State Transport Corporation, Salem Division-I (formerly known as Anna Transport Corporation Limited (in short ‘ATC’), Salem) alone were pressed into service. M/s. R. Viduthulai and V. Ayyathurai, by drawing my attention to Standing Order 20 of A.T.C., Salem, contended that without issuing a Charge Sheet to an employee and getting an explanation from him, the Management has no power to pass an order of suspension. Both the learned counsel very much relied on decisions of K. Govindarajan, J., in M. Ovireddy and others v. The General Manager, T.N.State Transport Corporation (Salem Divn.1) Ltd., Salem-7 and another-(Writ Petition Nos. 13977 to 13981 of 98 dated 9-9-98) and in M. Singaravelu and others v. Tamil Nadu State Transport Corporation (Salem Division I) Ltd., Salem-(W. P.Nos. 11137 to 11142 of 98 dated 16-9-98); and decisions of K.P. Sivasubramaniam, J. in C. Subramaniam and others v. The State of Tamil Nadu, Secretary to Government, Transport Department, Chennai-9 (W.P. Nos. 1793 to 1810 of 2002 etc., dated 30-01-2002). By heavily relying on the above said decisions, they contended that the said decisions are binding on the Tamil Nadu State Transport Corporation, Salem Division-I (ATC). In order to appreciate the said contention, it is useful to refer the relevant Standing Order, viz., Standing Order 20 of A.T.C.:
“20. In case of misconduct.
(a) Procedure Charge sheet and Explanation: A charge sheet setting out briefly the facts of the charge and circumstances alleged against him specifying the nature of his misconduct shall be given to the employee concerned and the employee shall be bound to receive it.
An employee against whom a charge of misconduct has been made shall submit within the time indicated, which shall not be less than 3 days, his explanation in writing to the charges alleged against him.
(b) Suspension: If on receipt of his explanation, action is proposed to be taken against him FOR MISCONDUCT he may be suspended for such a period as the management may consider necessary appropriate and reasonable pending enquiry and final decision. The order of suspension shall be in writing and shall take effect immediately upon communication to the employee. Such order shall set out in detail the alleged misconduct and the employee shall be given an opportunity to explain the charge. If the explanation found satisfactory or if as a result thereof, it is decided to take no further action under the Standing Orders, the order of suspension, if any, shall be withdrawn forthwith and the period of suspension already undergone by the employee shall be deemed to have been period of duty and the employee shall be entitled to full wages for the said period.
If the explanation is not found satisfactory and it is considered necessary to take further proceedings under the Standing Orders, the Management shall order an enquiry to be held.
(c) However in cases where Criminal proceedings against any workmen in respect of any offence are in progress and the employer is satisfied that it is necessary or desirable to place him under suspension, he may by an order in writing suspend him with effect from such date as may be specified in the order.” It is true that on the basis of the statement of the counsel for the transport corporation, the learned Judges have quashed the order of suspension and permitted the corporation to proceed with the enquiry in accordance with law. A reading of Standing Order 20 of A.T.C. shows that it is incumbent on the part of the management to serve a charge sheet on the concerned employee, setting out the facts of the charges and circumstances, and specifying the nature of misconduct committed by him. Equally, the employee is bound to receive the charge memo and submit, within the time indicated therein, his explanation in writing to the charges alleged against him. Clause (b) of Standing Order 20 shows that on receipt of his explanation, if the management proposed to take action against him for misconduct, it (management) may suspend the employee, pending enquiry and final decision. The order shall set out in detail the alleged misconduct and he shall be given an opportunity to explain the charge. It is further seen that if the explanation is found satisfactory or it decided or considered not to take further action, the order of suspension shall be withdrawn forthwith. By pointing out the procedure provided under clause (a) and the suspension under clause (b), learned counsel appearing for the petitioners contended that without issuing a charge memo and getting explanation from the employee concerned, the corporation is not entitled to suspend an employee pending enquiry. On the other hand, learned Additional Advocate General, by pointing out the latter part of clause (b) of Standing Order, namely, “…if the explanation found satisfactory or if as a result thereof, it is decided to take no further action under the Standing Orders, the order of suspension, if any, shall be withdrawn forthwith…”, would contend that even before issuance of a charge memo and before giving an opportunity to the employee to explain, he can be suspended pending contemplation of enquiry. As rightly contended by the learned Additional Advocate General, the latter part of clause (b), namely,…”the order of suspension, if any, shall be withdrawn forthwith….” leads to an irresistible conclusion that even before issuance of a charge memo and getting explanation from the employee, the Transport Corporation is entitled to pass an order of suspension. It seems that this part of clause (b) has not been brought to the notice of both the learned Judges.
10. Now I shall consider various decisions cited by both sides. Mr. V. Ayyathurai, learned counsel for petitioners in some of the writ petitions, referred to a decision in O.P. Gupta v. Union of India, reported in (1987) 4 Supreme Court Cases 328), wherein the Supreme Court has held that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a government servant injuriously. The Supreme Court has further held that it is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time and if such a principle were not to be recognised, it would imply that the executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration.
11. He also relied on another decision in M. Paul Anthony v. Bharat Gold Mines Ltd., ((1999) 3 S.C.C.679), wherein Their Lordships have held: (para
29) “29. Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by a “suspension syndrome” and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee’s trivial lapse which has often resulted in suspension. Suspension notwithstanding, non-payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee…”
12. Mr. V. Ayyathurai has also relied on a decision in Ramana Dayaram Shetty v. International Airport Authority (1979 II LLJ 2 17). The following observation of Their Lordships is very much pressed into service:-
“11……It is a well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affectation of some right or denial of some privilege.”
13. Mr. R. Viduthalai, learned counsel for petitioners in some of the writ petitions, referred to a decision in Jagodamba Prasad Shukla v. State of U.P. (2001 (1) LLN 51), wherein the Supreme Court has held that “the payment of subsistence allowance, in accordance with the Rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance…”. also relied a Division Bench decision of Rajasthan High Court in Beni Ram Kushwaha v. State of Rajasthan (2001 (3) L.L.N. 1207), wherein Their Lordships have held that it should not be an administrative routine or an automatic order to suspend an employee, that the appropriate authority should apply his mind to the circumstances and the stigma and ignominy attached to cessation of work, and that the employee cannot be kept under suspension for an indefinite period. In K. Saravanan v. Tamil Nadu Electricity Board (1994 T.L.N.J. 111), a Division Bench of this Court has held that prolonged suspension is bad. In Abdul Gani v. T.S.E., D.E.D.C., T.N.E.B., (1996-1-L. L.J. 948), AR. Lakshmanan, J. (as he then was), after referring to Regulation 9 (a) (i) (2) of Tamil Nadu Electricity Board Employees ( Discipline and Appeal) Regulations, has held that suspension of an employee from service should be resorted to only when such a suspension is necessary and unavoidable and where continuance in service would be detrimental to public interest. The learned Judge has also held that disciplinary action is vested in employer to suspend an employee or not and the said discretion should be exercised properly with care and caution. In State of Orissa v. Bimal Kumar Mohanty (AIR 1994 S.C. 22 96), it has been held: (para 12) “12. It is thus settled law that normally when an appointed 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…”
14. Mr. R. Vidhuthalai also relied on a Division Bench decision of Delhi High Court in Delhi Electricity Supply Undertaking v. Satsangi (1984 I LLJ
438). He very much pressed into service the following observation in para 38:
“38. The power of suspension is no doubt available under the service conditions and rules governing the employee, but it has to be exercised with circumspection, care and after due appliance of mind. Normally a sort of preliminary enquiry or investigation is gone through for ascertaining the prima facie view of the matter and whether the circumstances impel recourse to suspension….”
15. In Secretary to Government v. K. Munniappan (AIR 199 7 Supreme Court 2559), the Supreme Court while considering Rule 17 ( e) (1) of Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, held that actual pendency of enquiry is not a precondition to suspend an officer. In Swaminathan, M. v. The Chairman and Managing Director, SIDCO (1988 Writ L.R.
41), a Division Bench of this Court held that an order of suspension can be made even before the actual initiation of a disciplinary proceeding.
16. A careful analysis of all the decisions referred to above would go to show that power of suspension is available under the Service Conditions and Rules governing the employees, and that the same has to be exercised with due care and appliance of mind. In the light of the rival contentions, I have also verified the suspension orders, which contain invariably the reason for suspension pending enquiry into departmental proceedings or criminal charges. As stated earlier, for the moment, I am concerned with the Standing Order of the State Transport Corporation, Salem Division I (ATC). I have also observed that M/s. R. Viduthalai and V. Ayyathurai vehemently contended that inasmuch as the very same Standing Order 20 (a) and (b) were considered by K. Govindarajan, J. and K.P. Sivasubramaniam, J., in the Writ Petitions referred to above, it is binding on the Management of the State Transport Corporation, Salem Division I too. I have already referred to the argument of the learned Additional Advocate General, particularly with reference to the latter part of clause (b) of Standing Order 20. As rightly argued, the reading of both the clauses clearly shows that even before laying a charge sheet and getting explanation from the employee, the Corporation is empowered to pass an order of suspension. It is also seen from the earlier orders of this Court that the counsel appearing for the Transport Corporation has not brought the latter part of clause (b) of the Standing Order 20 to the notice of the learned Judges. In the absence of any discussion with reference to clauses (a) and (b) of Standing Order 20 and recording reason or reasons thereon as well as the concession given by the counsel for the respondents, I am of the considered view that both the decisions cannot be cited as binding decisions. In this regard, learned Additional Advocate General has very much relied on a Full Bench decision of this Court in Philip Jeyasingh v. The Joint Registrar of Cooperative Societies (1992-1-L.W. 216). In that decision, the Full Bench considered the binding nature of the judgment, duty to be followed by the subsequent Benches, exceptions, meaning and scope of “Per Incuriam”, “Orbiter Dictum”, “Sub silentio”. After referring all the earlier decisions on the point in question, they culled down the following principles:
(1) A judgment is per incuriam if it is rendered in ignorance of a binding authority.
(2) A judgment is per incuriam if it is rendered in ignorance of a statute or a rule having the force of a statute.
(3) A judgment is not per incuriam because it is based on a wrong understanding of the law or a binding precedent.
(4) A judgment is not per incuriam because the reasoning is wrong in the opinion of the subsequent Bench.” As rightly argued by the learned Additional Advocate General, clause (2) of para 46 of the above principle is applicable to the cases on hand, since in both the decisions referred to above, the entire Standing Order has not been gone into; accordingly and in the light of the Full Bench decision, both the judgments are per incuriam. It is also relevant to note that by order dated 23-04-2002 in Review Petition Nos. 18 to 47 of 2002 in W.P.Nos. 1793 to 1810, 1903 to 1906, 1194 to 1 201/2002, K.P. Sivasubramaniam, J., has reviewed his earlier orders passed in the said writ petitions and set aside the same. Taking note of the fact that the learned Judge (K.P. Sivasubramaniam, J.) himself reviewed and set aside the earlier orders passed in the writ petitions cited supra, and in the light of the language used in the Standing Orders of Tamil Nadu State Transport Corporation, Salem Division-I (ATC), I hold that the Transport Corporation is empowered to suspend an employee pending departmental enquiry, even prior to issuance of charge sheet and getting explanation from the employee. No doubt, if the Transport Corporation, after getting explanation from the concerned employee, is satisfied with the same and thought that no further action is warranted under the Standing Orders, it (Transport Corporation) can withdraw the order of suspension forthwith.
17. Mr. D. Hariparanthaman, learned counsel for the petitioners, by drawing my attention to Standing Orders of State Transport Corporation, Trichy Division (DCTC); Madurai Division (PRC); Tirunelveli Division (Kattabomman Transport Corporation), contended that inasmuch as the Management failed to supply a statement in detail, the reason for such suspension to the workman within a week from the date of suspension, the impugned orders are liable to be quashed. For this, the learned Additional Advocate General has brought to my notice that since the suspension order itself contains reasons, the said contention is liable to be rejected. In the light of the argument, I have verified the relevant clauses, namely, clause 17 (4) (a) of Standing Orders of Tirunelveli Division, clause 24 (2) (a) of Standing Orders of Trichy Division and other Transport Cor porations. No doubt, it is stated that a statement setting out in detail the reason for such suspension shall be supplied to the workman within a week from the date of suspension. In the light of the argument, I have also perused the suspension orders. All the suspension orders contain reasons with reference to misconduct in terms of Standing Orders as well as criminal action under the provisions of Indian Penal Code and Public Property Act. In the light of the fact that the suspension order itself contain reasons, it cannot be contended that it is violative of the Standing Orders as referred to by Mr. D. Hariparanthaman; accordingly I reject his contention. In some cases though the suspension order does not contain reasons, it is demonstrated before me that in those cases, the details of charges have been furnished to the employees within the prescribed time and, in turn, they also submitted their explanation. Depending on their involvement, the management reviewed and revoked the suspension in certain cases. Hence, the contrary contentions are liable to be rejected. Mala fide exercise of power
18. Mr. R. Viduthalai, learned counsel for some of the petitioners, contended that the impugned order of suspension suffers from mala fide and colourable exercise of power calculated to victimise the employees for participating the State-wide strike to press their legitimate demands for the reduction of 20 per cent bonus every year on the eve of Deepavali festival. In support of his contention, he highlighted that in Tamil Nadu State Transport Corporation-Salem Division-I (ATC), out of 119 employees who were suspended pending enquiry, suspension has been revoked in respect of 47 employees belonging to different trade unions for collateral and political considerations and permitted to join duty. In the affidavit it is stated that as a matter of fact, victimisation and unfair labour practice, some of the employees who are employees of LPF trade union affiliated to D.M.K. party numbering to 72 have alone been singled out and are continued under suspension. It is also stated that out of 72 employees who are still continued under suspension, some of them belong to the affiliated union of CITU, AITUC who are opposed to the ruling party on the issue in question. Similar contention has been raised by M/s. V. Ayyathurai and D. Hariparanthaman. With regard to thos averments, it has been stated in the counter affidavit filed by the General Manager, Tamil Nadu State Transport was only on receipt of their explanations. The petitioners in W.P.Nos. 24991 and 24993 of 2001 have submitted their explanations. Hence, they were permitted to join duty, by order dt. 5-1-200 2 and they have also joined duty on 10-1-2002 and 11-1-2002. It is also not correct to state that because of their trade union activities, inimical treatment was meted out to them. The respondent corporation is least interest in the political party or trade union affiliations of the workmen. Hence, the allegation that the suspension of the employees numbering about 72 belonging to LPF alone are yet to be revoked, is not correct. The primary concern and anxiety of the Corporation was to protect the interests and to serve the travelling public…..” Similar counter affidavit has been filed in other cases also. In the light of the denial of the allegation of the petitioners and the specific information given by the General Manager of the respondent Corporation, I am satisfied that the petitioners have not established the allegation that the respondent acted mala fide against few persons, who are opposing the ruling party. In this regard, it is brought to my notice by the Additional Advocate General that even a person who is a member of the ruling party was also suspended along with the petitioners. The very same person has filed W.P.No. 10313/2002 questioning the order of suspension. The learned Additional Advocate General has also demonstrated similar instances to show that action was taken irrespective of party affiliation. It is unnecessary to refer all those details furnished by the respondents. I am satisfied that petitioners failed to establish the plea of mala fide. In this regard, it is also relevant to note the decision of the Apex Court in Partap Singh v. State of Punjab (AIR 1964 Supreme Court 72). Regarding grounds of “ultra vires” and “mala fide”, Their Lordships have held that if bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts” . Accordingly, in order to substantiate the plea of mala fide, it is for the petitioners to allege and prove the same by placing acceptable materials. I have already referred to the fact that though the petitioners have complained that the members of LPF and other unions who are opposing the action of the Government alone are retained, their explanation not considered and revoked the case of others, the same has been stoutly denied by the respondent by the highest officer and also demonstrated that on the basis of their explanation and after satisfying themselves, those persons were permitted to join duty. They also explained that the activities in trade union and their affiliation have nothing to do with the action taken by the respective Corporation. In the light of the factual position, as observed by the Supreme Court, it is for the petitioners to establish their plea of mala fide by placing acceptable materials. After going through the information furnished in the counter affidavit and in the light of the fact that action was taken not only against the members of a particular trade union, but also against persons affiliated to ruling party, I hold that the petitioners have failed to prove the plea of mala fide.
Discrimination and selective suspension
19. Though it is contended that the respondents have discriminated the petitioners who are opposing the ruling party, inasmuch as the very same issue has been considered in the earlier paragraph, I am of the view that it is unnecessary to refer the same once again. Further, learned Additional Advocate General brought to my notice that before revoking the order of suspension, the Corporations considered the nature of the charge levelled against them, their involvement etc. The counsel for the petitioners as well as respondents demonstrated and argued the case by showing various orders granting revocation of suspension orders. In the light of the said contention, I have carefully perused those orders and I am satisfied that after considering the nature and volume of charge, their involvement, participation etc., the Corporations accepted their explanation and revoked the suspension order. In other words, I am satisfied that the Corporation considered the individual case of merits and on the basis of statement made in the explanation, passed appropriate orders revoking the suspension; accordingly I reject the contention regarding discrimination.
20. Mr. D. Hariparanthaman attacked the order of suspension on the ground that inasmuch as the respondents selected the petitioners and passed an order of suspension, the same cannot be sustained. In support of his contention, he relied on a decision of the Apex court in E.S. Reddy v. Chief Secretary, Government of Andhra Pradesh, reported in 1987 (2) LLN 289. In that case, the Supreme Court has held that selective suspension of one officer alone without suspending alleged co-accused is not proper and advised the State Government therein to place the other concerned officers under suspension, if not, revoke the suspension of the petitioner. In K. Sukhendar Reddy v. State of A.P., reported in (1999) 6 Supreme Court Cases 257, the Supreme Court has held that the Government cannot be permitted to resort to selective suspension. There is no dispute with regard to the above proposition. The question is whether the respondents-Transport Corporations discriminated the petitioners by keeping them under suspension and revoked the same against others. I have already considered this aspect and as demonstrated by the respondents, after the order of suspension, the explanation offered by them were duly considered by the Corporation depending upon their involvement and nature of the charges and the explanation, irrespective of party affiliation etc. They were permitted to join duty. It is also explained before this Court that those who involved in serious offence, namely, causing damage to the buses, preventing the workmen from attending the lawful duty were kept under suspension pending enquiry. For illustration, I shall refer the action taken in respect of the Strike held from 10-11-2001 to 25-11-2002 by Tamil Nadu State Transport Corporation (Villupuram Division.III) Ltd., Kancheepuram:
-------------------------------------------------------------- Sl. Nature of Relevant Union No. Misconduct Section Affilia-
of the Police tion FIR
-------------------------------------------------------------- No.of Participation in No police I Employees the illegal Strike Case ---
issued with by absenting for Charge Memo more than eight 3500 consecutive days No.of Arrested by Police 151 Cr.P.C. ATP -14 Employees as A1 and actively R/W 7(i)(a) LPF -44 Suspended participated in the CLA Act. CITU –14 II and Charge illegal Strike and INTUC- 5 Sheeted absented for duty PMK - 4 and then NJP - 3 Revoked PSM - 7 APLF – 7 116MLF - 4 HMS- -1 Others-13 No.of Blocking of Buses 1) 151 CRPC ATP - 2 Employees and preventing the R/W 7(i) LPF - 2 Suspended loyal workers to (a) CLA Act CITU - 9 III and Charge attend duty. 2) 2 & 3 TNPPD NJP - 1 Sheeted Misbehaviour with Act APLF - 1 And not Branch Manager and 3) Section 294 MLF - 1 Revoked Misbehaviour with & 353 IPC Supervisor. Inciting 4)Section 143 16 others to Strike & 188 IPC work, pelted stones and caused damages to the Corporation bus.
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This shows that the management considered the case of all deserving employees irrespective of party affiliation.
Though Mr. Hariparanthaman extensively argued the merits of the charges, their alleged involvement, order of revocation in favour of few persons etc., I am of the view that those aspects cannot be gone into by this Court by exercising jurisdiction under Article 226 of the Constitution of India. All those aspects are to be agitated in the enquiry; accordingly I do not find any substance in the contention raised.
Interference by this Court under Art.226 of the Constitution of India.
21. In V. Pushparaj v. T.N. Newsprint and Papers, Ltd., (19 98 (1) LLN
735), I had an occasion to consider the power of this Court under Article 226 of the Constitution of India challenging the order of suspension. After analysing the relevant provision relating to order of suspension and the earlier Division Bench decision of this Court, I have held: (para 12) “12. It is settled law that when the authority who issued the order of suspension is competent and there is no violation of any statutory provision, it is not possible for this Court to go into the merits and materials placed with regard to the order of suspension. The following observation of the Division Bench of this Court reported in P. Mahamani v. Tamil Nadu Magnesite, Ltd. (1993 (2) L.L.N. 353), is relevant and the same, in para 20 at page 362 is extracted hereunder:
“….Further the Court cannot go into the question whether the order of suspension and the charge memo are based on proper materials.” Apart from this, in another decision reported in M. Swaminathan v. Chairman and Managing Director, SIDCO (1988 W.L.R. 41), a Bench of this Court, while considering the scope and jurisdiction of this Court under Art. 226 of the Constitution of India in a matter like suspension have observed thus:
“Before parting with this case, we would like to make it clear that the jurisdiction that Art. 226 of the Constitution of India should not be freely exercised in matters of suspension pending or in contemplation of disciplinary proceedings. We find to our consternation that a tendency has recently developed on the part of the employees to rush to this Court with petition under Art.226 of the Constitution of India against such orders of suspension and such petitions are very often entertained. In our view, unless an order of suspension is invalid in law either for want of competence on the part of the authority passing the same or for violation of any specific rule, the High Court hold not entertain writ petitions against such orders of suspension. It is high time that the litigants are told in unequivocal terms that the High Court will not sit in appeal over the orders of suspension passed by competent authorities. The writ petitions in which the merits of the orders of suspension are canvassed on the basis of factual allegations shall not be entertained and they shall be thrown out at the threshold. It must be remembered that the High Court cannot go into the question whether the order of suspension is passed on proper materials…...” Same view has been reiterated in B. Srinivasan v. T.N.A. Engineering Co-op Federation Ltd., reported in 1998 (1) LLN 780. In New India Assurance Co. Ltd. v. S.M.I. Kazim and others (2001 (4) Supreme 566), the Supreme Court has held that an order of suspension during the pendency of a departmental enquiry is ordinarily not interfered with by the High Court in exercise of jurisdiction under Article 226 of the Constitution unless the order is mala fidely passed or that the appropriate authority has not passed the order of suspension. In all these cases, it is not the case of the petitioners that the authority who opposed the order of suspension is incompetent. On the other hand, the appropriate authority alone has passed the order of suspension. Regarding the claim that mala fide exercise of power, after analysing the materials, I have held the petitioners failed to substantiate the same. It is also relevant to refer a decision of the Supreme Court in U.P. Rajya Krishi Utpadan Mandni Parishad v. Sanjiv Rajan, reported in 1993 Supp (3) Supreme Court Cases 483, in which the Supreme Court has held that the Court should not ordinarily interfere with suspension orders, unless passed mala fide and without their being even a prima facie evidence connecting the delinquent with the misconduct in question. I have already held that the plea of mala fide has not been established by the petitioners. Normally it is advisable to let the disciplinary proceedings proceeded un-hindered and ultimately if exonerated, they would be entitled to all the benefits from the date of suspension. In the light of the legal position and in view of the fact that all the factual aspects can be considered in the enquiry, in the absence of any material to show that the order has been mala fidely passed, interference by this Court at this juncture is not warranted.
Conclusion:
In the light of the legal position, it is to be noted that there is no dispute regarding competency of person who passed the impugned orders. In other words, in all these cases the authority authorised to pass orders alone has passed the order of suspension. Likewise, though it is contended that the order is contrary to the Standing Orders, I have already demonstrated that the competent authority is empowered to pass suspension orders pending enquiry/contemplation of enquiry. The claim for mala fide and discrimination, in the light of the averments in the counter affidavit and of the various orders passed by the respondents revoking the suspension orders, after accepting their explanation irrespective of party affiliation are liable to be rejected. No doubt, the counsel for the petitioners after taking me through the complaints by certain workmen, officers of the Corporation, discrepancy in the First Information Report, charge sheet etc., contended that the impugned orders of suspension are liable to be interfered by this Court. It is true that few discrepancies are there. On this ground, as observed by the Division Bench, the same cannot be gone into by this Court when the petitioners have ample opportunity to demonstrate in the enquiry. This Court cannot go into the question whether the order of suspension was passed on proper materials or not. At the same time, I am aware of the fact that in most of these cases, the petitioners were suspended from 20-11-2001 onwards. It is also relevant to note that most of the employees are charged with violation of their Standing Orders and only few of them are facing charges under Indian Penal Code, Tamil Nadu Public Property (Destruction and Loss) Act or other criminal law. It is also not disputed that by keeping these employees under suspension for a longer period, it is for the State Transport Corporations to pay subsistence allowance without extracting any work from them; considering the revenue loss etc. as well as the power of interference by this Court in a matter like this, I pass the following orders:
1) The respondent-Transport Corporations are directed to consider the cases of the employees against whom charges are levelled only for violation of their respective Standing Orders and by reviewing the same they are directed to revoke the order of suspension within 30 days from today.
2) The suspension orders against the employees who are facing criminal charges under the Indian Penal Code, Tamil Nadu Public Property (Destruction and Loss) Act or any other criminal law are confirmed and it is for the respective Corporation to review their cases once in a month. If the Corporation is satisfied, it is for them to pass appropriate orders as to revocation of their suspension orders.
3) It is made clear that during the period of suspension, the employees are entitled to subsistence allowance in terms of the Standing Orders applicable to them.
22. The Writ Petitions are ordered accordingly. No costs. Consequently, all the connected W.P.M.Ps., and W.V.M.Ps., are closed.
24-04-2002 Index- Yes.
Internet- Yes.
R.B. To
1) The Secretary to Government, Transport Department, Fort St. George, Chennai—600 009.
2. The Managing Director, Tamil Nadu State Transport Corporation Ltd., Salem Division—I, Salem—636 007.
3. The General Manager, Tamil Nadu State Transport Corporation Ltd., Salem Division—I, Salem—636 007.
4. The General Manager (Operation), Tamil Nadu State Transport Corporation, Madurai Division-I) Ltd., Madurai.
5. The General Manager, Tamil Nadu State Transport Corporation (Madurai Division-4) Ltd., Dindigul.
6. The General Manager, Tamil Nadu State Transport Corporation, (Villupuram Division-3), Kancheepuram.
7. The General Manager, Tamil Nadu State Transport Corporation, (Kumbakonam Division-4), Pudukottai.
8. The General Manager, Tamil Nadu State Transport Corporation (Villupuram Division-2), Vellore-9.
9. The General Manager, Tamil Nadu State Transport Corporation (Coimbatore Division-1) Ltd., Coimbatore-43.
10. The General Manager, Tamil Nadu State Transport Corporation (Kumbakonam Division-2) Ltd., Tiruchirapalli.
11. The General Manager, Tamil Nadu State Transport Corporation (Madurai Division-2) Ltd., Tirunelveli.
P. SATHASIVAM. J.
Common Order in W.P.Nos.24989/2001 etc., and in WPMP Nos. 37101/2001 etc., and WVMP Nos.102,103 and 108/2002.
Dt:- 24-04-2002