Madras High Court
J.John De Britto vs The District Collector on 17 November, 2016
Author: S.Vimala
Bench: S.Vimala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17.11.2016 CORAM THE HON'BLE DR.JUSTICE S.VIMALA W.P.(MD)No.3997 of 2016 and W.M.P.(MD)No.3590 of 2016 J.John De Britto ... Petitioner -vs- The District Collector, Dindigul District, Dindigul. ... Respondent Prayer: Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari to call for the records pertaining to the impugned order passed by the respondent in Roc.No.23028/2014/A2,dated 11.09.2014 and quash the same as illegal. !For Petitioner : Mr.J.Lawrance ^For Respondent : Mr.T.S.Mohammed Mohideen Additional Government Pleader :ORDER
The impugned order of suspension dated 11.09.2014 is under challenge in this writ petition.
2.Heard the learned counsel for the petitioner and the learned counsel for the respondent.
3.The case of the petitioner is that he was appointed as a Revenue Assistant in the year 2012, through Tamil Nadu Public Service Commission, in the office of the Tahsildar, Dindigul Taluk and later, he was promoted as Revenue Inspector in the year 2014, at Chinnalapaati Firka, Authoor Taluk, Dindigul District. While so, on 10.09.2014, he was arrested by the Inspector of Police, Vigilance and Anti Corruption, Dindigul on the complaint give by one Mr.Ganesh Pandi, alleging that the petitioner demanded and accepted bribe. Since the petitioner was arrested, and a criminal case has been registered in Crime No.2 of 2015, under Section 7 of the Prevention of Corruption Act. By the impugned order dated 11.09.2014, the respondent has suspended the petitioner. Aggrieved over the same, the petitioner has filed this writ petition.
4.The learned counsel for the respondent would submit that as a criminal case is pending against the petitioner, the suspension is a deemed suspension and therefore, that order cannot be challenged in this writ petition.
5.The learned counsel for the petitioner would submit that the prolonged suspension is prohibited and it was come to the adverse comments of the Hon'ble Supreme Court in AJAY KUMAR CHOUDHARY v. UNION OF INDIA, reported in 2015 (3) CTC 119.
6. In the case of Ajay Kumar Choudhary v. Union Of India Through Its Secretary, dated 16th February 2015, the Supreme Court has come down heavily on this type of provisions which allow the competent authorities to extend the period of suspension for indefinite periods after periodical reviews. In the said case, Ajay Kumar Choudhary, the appellant had initially been suspended by the Suspension Order dated 30.9.2011. This suspension was extended on 28.12.2011 for a further period of 180 days. Then, with effect from 26.6.2012 the suspension was extended for another period of 180 days. Thereafter, the third extension of his suspension was ordered on 21.12.2012, but for a period of 90 days. It came to be followed by the fourth suspension for yet another period of 90 days with effect from 22.3.2013. Thus, he continued to be under suspension continuously from 30.09.2011.
?The Supreme Court observed as under:
?Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the Memorandum of Charges, and eventually culminate after even longer delay.?
The Supreme Court further observed as under:
?Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his Department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is to determine his innocence or iniquity. Much too often this has now become an accompaniment to retirement.?
The Supreme Court referred to its earlier decisions wherein the right to speedy trial in criminal cases was recognized. It observed that ?(t)he legal expectation of expedition and diligence being present at every stage of a criminal trial and a fortiori in departmental inquiries has been emphasised by this Court on numerous occasions.?
Thus, the Supreme Court extended the benefit of the right of a speedy trial in criminal cases to the issue of suspension in service law jurisprudence. The Supreme Court specifically referred to the decision of a Constitution Bench in the case of Abdul Rehman Antulay v. R.S. Nayak, 1992 (1) SCC 225, wherein it had been held that the right to speedy trial is a fundamental right implicit in Article 21 of the Constitution and in which detailed directions were issued in this regard. The Supreme Court applied the legal principle evolved in the aforesaid Antulay case in service law jurisprudence and held that the impugned decision of the Delhi High Court in the present case setting aside the decision of CAT which had directed that the appellant?s suspension would not be extended beyond 90 days from 19.3.2013, could not be sustained in view of the pronouncement of the Constitution Bench in the aforesaid Antulay case.
The Supreme Court also referred to the provision contained in the Proviso to Section 167(2) of the Criminal Procedure Code, 1973, which has the effect of circumscribing the power of the Magistrate in criminal cases to authorise detention of an accused person beyond period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the investigation relates to any other offence. The Supreme Court extrapolated the quintessence of the Proviso of Section 167(2) of the Cr.P.C., 1973, to moderate Suspension Orders in cases of departmental / disciplinary inquiries also. The Supreme Court held as under:
?It seems to us that if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a Memorandum of Charges/Chargesheet has not been served on the suspended person. It is true that the proviso to Section 167(2) Cr.P.C. postulates personal freedom, but respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same pedestal.?
Accordingly, the Supreme Court issued the following important directions in the matter of suspension of an employee:
?We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Charge sheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Charge sheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us.?
The principle of right to speedy trial in a criminal case has now been extended to the service law matters and the suspension of a Government servant cannot be continued beyond 90 days if charge sheet (for a departmental enquiry) is not given on time. Moreover, the Supreme Court has directed that even where the charge-sheet is served on time and the suspension is required to be extended by the competent authority, a reasoned order must be passed for the extension of the suspension.
The rationale in the above judgment I.e the legal principle laid down in this case is also applicable to employees of public sector undertakings (PSUs) and Government banks, etc. These directions are contained in the Office Memorandum vide F. No. 11012/04/2016-Estt.(A) dated 23.08.2016 of the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training. This O.M. has further directed that all Ministries / Departments / Offices should bring the above guidelines to the notice of all Disciplinary Authorities under their control.
The O.M. issued by the Government of India specifically reproduces the following directions given by the Supreme Court in the above case:
?We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges / Chargesheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. ? ? Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us.?
It is noteworthy that in the above case, the Supreme Court had also observed that this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. The court recognized that previous Constitution Benches had been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. It was observed that, however, the imposition of a limit on the period of suspension had not been discussed in prior case law, and would not be contrary to the interests of justice.
7.In view of the above observation, the order of suspension dated 11.09.2014 is hereby revoked and the respondent is directed to post the petitioner in any one of the non-sensitive posts. The respondent is also directed to conclude the enquiry within a period of four months from the date of receipt of a copy of this order. The enquiry shall proceed dehors the pendency of the criminal case.
8.In the result, the writ petition is allowed. No costs. Consequently, connected miscellaneous petition is also closed.
To:
The District Collector, Dindigul District, Dindigul..