Madras High Court
A.S.Karthikeyan vs Chairman-Cum-Managing Director on 15 September, 2020
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
W.P.(MD)No.25071 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.09.2020
CORAM
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD)No.25071 of 2018
A.S.Karthikeyan ... Petitioner
-Vs-
1.Chairman-cum-Managing Director,
Tangedco, Tamil Nadu Electricity Board,
NPKRR Maligai, Anna Salai,
Chennai-2.
2.The Superintendent Engineer,
Tanjore Electricity Distribution Circle,
Tanjore-7.
3.The Inspector of Police,
V&AC,
Trichy. ...Respondents
Prayer: Writ Petitions are filed under Article 226 of Constitution of
India, to issue a Writ of Certiorarified Mandamus, to call for the records
of the second respondent and quashing the impugned order of suspension
vide M.No.14308/Ad.5/A1/F.DOC/2012, dated 06.09.2012 passed by the
second respondent and consequently direct the second respondent to
reinstate the petitioner in any non-sensitive post of equal cadre in any
other place within time frame.
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W.P.(MD)No.25071 of 2018
For Petitioners : Mr.K.Ravi Anantha Padmanaban
For Respondents : Mr.T.Sakthikumaran
Standing Counsel
for R1 & R2
Mrs.J.Padmavathi Devi
Special Government Pleader
for R3
ORDER
Prayer sought for herein is for a Writ of Certiorarified Mandamus, to call for the records of the second respondent and quashing the impugned order of suspension vide M.No.14308/Ad. 5/A1/F.DOC/2012, dated 06.09.2012 passed by the second respondent and consequently, direct the second respondent to reinstate the petitioner in any non-sensitive post of equal cadre in any other place within time frame.
2.Heard Mr.K.Ravi Anantha Padmanaban, learned counsel appearing for the petitioner and Mr.T.Sakthikumarn, learned Standing Counsel appearing for the first and second respondents and Mrs.J.Padmavathi Devi, learned Special Government Pleader appearing for the third respondent.
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3.The petitioner was working as Junior Engineer 1st Grade at the Office of the Operation and Maintenance at Pandabnallur under the respondent Department. While so, on 05.09.2012, the petitioner was arrested at All Women Police Station, Kumbakonam by Thanjavur Vigilance and Anti-Corruption Department, in Crime No.2 of 2012 for the alleged offices punishable under Section 7 of the Prevention of Corruption Act, 1988 and remanded to judicial custody.
4.In view of the said judicial custody, the petitioner was placed under suspension by the second respondent vide order dated 06.09.2012. The said order of suspension since has not sofar been revoked, on the ground of prolonged suspension, where the petitioner has been placed. The said order of suspension, dated 06.09.2012 is under challenge in this writ petition.
5.The learned counsel appearing for the petitioner would submit that, apart from the criminal case, which was pending against the petitioner, separately no disciplinary proceedings have been initiated by the respondent department. 3/24 http://www.judis.nic.in W.P.(MD)No.25071 of 2018
6.Therefore, the petitioner since has been put under prolonged suspension only on the ground that the criminal case is pending against him and in this regard, he has been placed under suspension from the year 2012, already 8 years have gone, therefore, the suspension has to be reviewed and revoked.
7.In this context, the learned counsel appearing for the petitioner would rely upon the judgment of the Hon'ble Supreme Court in the matter of Ajay Kumar Chaudary Vs., Union of India reported in (2015) 7 SCC 291 and various other judgments and draw the attention of this Court on the analogy propounded by the Hon'ble Supreme Court in the Ajay Kumar Chaudary's case and various other cases of this Court, where such kind of prolonged suspension made against an employee without making any review periodically may not be justifiable and therefore, on that ground the learned counsel appearing for the petitioner seeks indulgence of this Court against the impugned order of suspension.
8.I have heard the learned Standing Counsel appearing for the respondents/TANGEDCO, who would submit that, the petitioner 4/24 http://www.judis.nic.in W.P.(MD)No.25071 of 2018 admittedly was arrested in a D&VAC case and pursuant to the judicial custody against the petitioner, he was placed under suspension by order of the second respondent, dated 06.09.2012.
9.Subsequently, in the criminal case, after investigation, charge sheet has been filed and the same has been served on the petitioner on 26.11.2013, where the criminal case is pending trial before the concerned Court and unless and until the said criminal case is decided one way or other, the revocation of the suspension order made against the petitioner would not arise at all. At this juncture, as that kind of revoking the suspension, would lead to a bad precedent, where, in the eye of the other employees, who have been working in the respondent Transport Corporation, it may create some bad precedent, where, even an employee, who has been arrested by the D&VAC people and when the criminal case filed against them are pending before the concerned criminal Court even such kind of employee is taken back to the job by revoking the suspension. It would create an embarrassing position for the respondent organization, especially, in the office, where he will be posted after revocation of suspension.
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10.Apart from these aspects, the learned Standing Counsel would also submit that, insofar as the legal position in this regard is concerned, especially, in the context of the law laid down by the Hon'ble Supreme Court in Ajay Kumar Chaudary's case is concerned, the learned Standing Counsel would submit that, the said decision of the Hon'ble Supreme Court and the principle laid down therein, if it is applied to the facts of this case, that would not help the petitioner. By elaborating this submission, the learned Standing Counsel would submit that, since charge sheet admittedly has been filed and has been served on the petitioner on 26.11.2013, the principle laid down by the Hon'ble Supreme Court in Ajay Kumar Chaudary's case, especially, in paragraph No.21 would not be any help to the petitioner, infact, the principle laid down by the Hon'ble Supreme Court in the said decision at para No.22 would make it clear that, the case, wherein a charge sheet has been filed, the said principle at para 21 of the said judgment may not be applicable.
11.In this context, learned Standing Counsel appearing for the respondents TANGEDCO has relied upon a recent judgment of 6/24 http://www.judis.nic.in W.P.(MD)No.25071 of 2018 a Division Bench of this Court made in W.A.No.599 of 2020, dated 02.09.2020 in the matter of Tamil Nadu General & Distribution Corporation Ltd., and others Vs., A.Srinivasan.
12.By relying upon these decisions, the learned Standing Counsel would submit that, it may not be conducive for the respondents and the Office, where the petitioner was earlier working or in any Office if he is posted at the respondent organization, if the suspension made against the petitioner is revoked, as of now, without knowing the result of the criminal case, which is already on trial before the concerned Court.
13.Therefore, the learned Standing Counsel would submit that, based on the analogy adopted by the Hon'ble Division Bench in the aforesaid judgment in W.A.No.599 of 2020, the same can be adopted in this case also in the interest of justice.
14.I have considered the said submissions made by the learned counsel appearing for both sides and perused the materials placed before this Court.
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15.No doubt, the petitioner has been placed under suspension by order dated 06.09.2012, since then he has been under suspension for 8 years.
16.No departmental proceedings has been initiated by the respondents and only issue is the pendency of the criminal case, where eventhough charge sheet has been filed, the trial is not over. To the result, for the past 8 years the petitioner has been placed under suspension, which is definitely would be a longer period, where if an employee is kept under suspension without extracting any work and subsistence allowance is paid, that would no way help the employee monetarily or otherwise.
17.However, on the other hand, in view of the grave criminal charge pending against the petitioner, where trial is on before the competent criminal Court, without knowing the result of the said criminal trial, whether it would be proper to revoke the suspension made against the petitioner and reinstate the petitioner.
18.This question was posed at regular interval in various cases before this Court.
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19.One such case was considered by a Division Bench of this Court in W.A.No.599 of 2020, dated 02.09.2020, as cited supra.
20.In that case also, the employee was similarly placed, where he was arrested in a trap case and criminal case was filed before the concerned criminal Court, pursuant to which, he was placed under suspension and the said suspension since was not revoked considering it as a prolonged suspension, when a writ petition was filed by the said employee before the Writ Court, a learned Judge of this Court, by order dated 27.02.2020, allowed the writ petition i.e., W.P.No.3398 of 2020 by directing the TANGEDCO to revoke the suspension against the said employee and reinstate him by posting him in any non sensitive post. Aggrieved over the said order passed by this Court, W.A.No.599 of 2020 was filed by the TANGEDCO, which was considered and decided by the Division Bench in the said judgment, dated 02.09.2020.
21.In order to appreciate the principle laid down and adopted, after considering all the relevant cases in this aspect, in the said Judgment, the relevant portion of the said Division Bench judgment is extracted hereunder.
9/24 http://www.judis.nic.in W.P.(MD)No.25071 of 2018 '7. The principal question that arises for consideration is whether the order of suspension is liable to be revoked in the facts and circumstances of the case. The undisputed position, in this case, is that criminal proceedings were initiated against the Respondent on the basis of the trap laid by the Vigilance and Anti-Corruption Department. Such proceedings are admittedly pending before the Chief Judicial Magistrate, Thiruvannamalai in S.C.No.53 of 2018. Therefore, this is clearly a case wherein a charge sheet was filed and the criminal process is underway. The law relating to suspension orders and their revocation should be examined against this background.
8. On perusal of the Full Bench judgment in S.Ravi, it is clear that the Court did not direct the revocation of suspension if the suspension period exceeds a specific duration. This is clear from paragraph~48 and 49 of the said judgment which read as under:
“48. Tracing the rule from 1930, the first one Madras Civil Services (Classification, Control and Appeal) Rules; thereafter called as Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, 1953, and then the present rules, namely, Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, having been experienced by the administrative set up, the order of suspension made or deemed to have been made under the rule may at any time be revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate. When the dominant position of the rules from 1930 does not distinguish the conflicting interest of the delinquent employee of revocation at any time and not 10/24 http://www.judis.nic.in W.P.(MD)No.25071 of 2018 categorising the clauses, the executive order, which has been brought into action on 30.01.1996, has not been incorporated in the rules till now. Therefore, the force of law as to the application of rule is that notwithstanding the pendency of any case and the Government servant is placed under suspension, the authority competent is empowered to revoke the suspension at any point of time. Keeping the Government servant in a hanging position of prolonged suspension without revocation or review of such order, taking into account various factors, such as, investigation and the other mechanism involved in the process of conclusion of the enquiry for certain reasons not to conclude the enquiry, may not be right on the executive authority and, therefore, we feel, the said issue needs to be considered either by amending the rules or by bringing a proper legislation in regulating the order of suspension.
49. The Constitution of India guarantees the right of public employment and the equality thereof guaranteed to every one under Article 16 (1) shall be made available to every citizen, including the delinquent employee. Such a right has to be enjoyed by the Government servant during the pleasure of the Governor of the State. Therefore, the executive order, taking away the rights conferred upon the citizens, without making necessary amendment to the rules or bringing proper legislation, is bad in law and the review of the order of suspension by the authority without giving any distinction of the category of cases shall be made as a mandatory requirement by prescribing a period of review, otherwise, there will be a 11/24 http://www.judis.nic.in W.P.(MD)No.25071 of 2018 serious prejudice and continued apathy over the issue of keeping the Government servant for an unending period under suspension.”
9. The sheet anchor of the Respondents case is the judgment in Ajay Kumar Choudhary. Therefore, it is necessary to extract paragraphs 21 and 22 thereof which are as under:
“21.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. 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 12/24 http://www.judis.nic.in W.P.(MD)No.25071 of 2018 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.
22. So far as the facts of the present case are concerned, the Appellant has now been served with a Chargesheet, and, therefore, these directions may not be relevant to him any longer. However, if the Appellant is so advised he may challenge his continued suspension in any manner known to law, and this action of the Respondents will be subject to judicial review.”
10. On perusal of the judgment in Ajay Kumar Choudhary, it is clear that the Hon'ble Supreme Court was dealing with a case wherein the Appellant had been served with a charge sheet before the judgment was pronounced. On that basis, on the facts of that case, paragraph 22 reflects that the order of suspension was not set aside although the suspension period exceeded three months. However, while disposing of the case, the Hon'ble Supreme Court held that the suspension period should not extend beyond three months if the memorandum of charges/charge sheet is not served on the delinquent officer/employee. The judgment in Ajay Kumar Choudhary was dealt with in detail by a Division Bench of this Court in Director General of Police [cited supra]. In the said judgment, this Court held as follows in paragraphs 9-11.
9. We are of the view that Ajay Kumar Choudhary (supra) does not lay down any 13/24 http://www.judis.nic.in W.P.(MD)No.25071 of 2018 absolute proposition that an order of suspension should never extend beyond three months. In fact, in Ajay Kumar Choudhary (supra), the Supreme Court observed that the directions regarding the restriction on extension of a suspension order beyond three months would not apply as the appellant had been served with a charge sheet. The appellant had only been given the liberty to challenge his continued suspension in any manner known to law, if so advised, and it was clarified that the action of the respondents in continuing suspension would be subject to judicial review. In our view, the learned Single Bench erred in setting aside the suspension placing reliance on Ajay Kumar Choudhary (supra).
10. It is well settled that a judgment is to be understood in the context of the facts in which the judgment is rendered. Sentences in a judgment cannot be read in the same manner as a statute and in any case, words and sentences in a judgment cannot be read out of context. In Padma Sundara Rao (Dead) and others v. State of Tamil Nadu and others, reported in (2002) 3 SCC 533, cited by Mr.S.Saji Bino, learned counsel appearing on behalf of the appellant, a Five Judge Bench of the Supreme Court held as under:
9.Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board (1972) 2 WLR 537.14/24
http://www.judis.nic.in W.P.(MD)No.25071 of 2018 Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.-
11. In the instant case, as observed above, a charge sheet had been issued, though after five months and four days of the suspension. The learned Single Bench ought to have considered the question of whether the suspension should outright be set aside or allowed to continue upon consideration of all relevant facts and circumstances, including the nature of the charges.” Likewise, the Division Bench of this Court in R.Elumalai v. District Collector, [2020 SCC online Mad 1472, considered the Ajay Kumar Choudhary case and the judgment of the Delhi High Court in Government of NCT of Delhi (cited supra) and concluded that in cases relating to suspension for alleged involvement in graft charges leading to a criminal trial, interference with the suspension order on the basis that the suspension period exceeded three months is not justifiable.
11. Upon considering the law laid down in the judgments that have been discussed herein above, it is clear that there is no absolute rule in respect of the validity of suspension orders from the perspective of duration especially when such suspension is in the context of a pending criminal proceeding. In other words, in these situations, the law on suspension as laid down in paragraph 11 of R.P. Kapur v. Union of India, AIR 1964 SC 787, by a Five Judge Bench upholding suspension pending enquiry subject to payment of subsistence allowance as per service conditions and that in Union of India v. Ashok Kumar Aggarwal (2013) 16 SCC 147, wherein it was held that the court does not sit in appeal and that such orders would be interfered with only if the charges are patently baseless, mala fide or vindictive would continue to hold the field. In this case, as stated 15/24 http://www.judis.nic.in W.P.(MD)No.25071 of 2018 earlier, there is a pending criminal proceeding, wherein the Respondent is being prosecuted for corruption. In these circumstances, the decision of the learned single Judge to direct the Chief Judicial Magistrate to conclude the proceeding within four months is justified and does not warrant interference. On the other hand, especially in light of the above direction, the revocation of the suspension on the ground that it is prolonged is clearly unsustainable. The consequential direction to post the Respondent in a non~sensitive post is also not sustainable especially in view of the fact that the Respondent is an Assistant Engineer and it is difficult to find a post that may be termed non~sensitive in that cadre. Therefore, we allow the appeal in part insofar as it directs the Appellants to revoke the suspension and to post the Respondent in a non~sensitive post. On the other hand, we affirm the impugned order to the extent that the Chief Judicial Magistrate, Thiruvannamalai, has been directed to conclude the criminal proceedings within a period of four months, albeit with the qualification that the said period shall run from the date of receipt of a copy of the judgment in this appeal.
12. The writ appeal is accordingly disposed of on the above terms. Consequently, the connected miscellaneous petition is closed. No costs.”
22.In the said Division Bench judgment, the import of the Ajay Kumar Chaudary's case was discussed and various other judgments like 1-S.Ravi and others Vs., District Collector and others (2015 4 LW.811), 2-State of Tamil Nadu Vs., Promod Kumar (2018 (17) SCC 677), 3.The Agricultural Production Commissioner and Principal Secretary to Government and 16/24 http://www.judis.nic.in W.P.(MD)No.25071 of 2018 another Vs., J.Vijayakumar W.A(MD).No.1260 of 2015, dated 20.04.2017, 4-The District Collector, Chengalpattu Vs., K.Devendran in W.A.No.613 of 2017 dated 15.06.2017, 5- Director General of Police Vs., T.Kamarajan W.A.No.3957 of 2019 dated 19.11.2019, 6-Government of NCT of Delvi Vs. Dr.Rishi Anand (2017 SCC online Delhi 10506), 7-R.Elumalai Vs., District Collector (2020 SCC online Mds 1472), 8- R.B.Kapur Vs., Union of India AIR 1964 SC 787, 9.Union of India Vs., Ashok Kumar Aggarval (2013) 16 SCC 147 also has been considered.
23.By considering all these judgments, where in some of the cases the principle laid down in Ajay Kumar Chaudary's case was taken into account and considered as to whether the principle laid down in Ajay Kumar Chaudary's case would be made applicable to every such case, where the employee has been placed under suspension or prolonged suspension and if not, what was the import of the said principle laid down in the Ajay Kumar Chaudary's case have also been considered.
24.In this context, it is to be noted that, eventhough at para 17/24 http://www.judis.nic.in W.P.(MD)No.25071 of 2018 No.21 of Ajay Kumar Chaudary case, it has been made clear that, the suspension order should not be extended beyond three months, if, within this period, the memorandum of charges/charge sheet is not served on the delinquent Officer/employee, at para No.22, it has been held that so far as the cases where the charge sheet are filed, the import of para 21 would not be applicable. It has further been held in Ajay Kumar's case that, the appellant has now been served wit the charge sheet, therefore, these directions at para 21 may not be relevant to him any longer. It was further held in Ajay Kumar's case that, if the appellant so advised, he may challenge his continued suspension in any manner known to law and this action of the respondent will be subject to judicial review.
25.These aspects have been considered by the Division Bench in W.A.No.599 of 2020, where at para No.11 of the judgment, as has been extracted above, the Division Bench has made it clear that, it is not automatic that in every case, the prolonged suspension has been interfered with.
26.Therefore, ultimately, the Division Bench has come to the conclusion that, insofar as the direction given by the Writ Court in 18/24 http://www.judis.nic.in W.P.(MD)No.25071 of 2018 the case, which was appealed in W.A.No.599 of 2020, that the concerned criminal Court can be directed to dispose of the criminal case within a time frame is concerned, it can be upheld. However, the direction given by the Writ Court to the extent giving direction to the respondent i.e., employer to revoke the suspension and place the employee in a non sensitive post is concerned, the Division Bench has not agreed to accept the said direction given by the Writ Court, accordingly, the said portion of the direction given by the Writ Court was set aside.
27.Here also, the facts are almost similar, where, the petitioner has been placed under suspension, pursuant to a D&VAC case, where he was arrested and he had been in judicial custody.
28.Subsequently, after investigation, charge sheet has been filed and was admittedly served on the petitioner on 26.11.2013.
29.Thereafter, as usual, the criminal case is pending for longer period without seeing the light of the conclusion till date. Therefore, the petitioner, since being in prolonged suspension from 2012, has approached this Court seeking for such a prayer. 19/24 http://www.judis.nic.in W.P.(MD)No.25071 of 2018
30.However, if analyzed the principle laid down by various decisions of the Hon'ble Apex Court as well as this Court, including the latest judgment in W.A.No.599 of 2020, the import of the orders therein has been extensively extracted herein above, this Court feels that, no such direction can be given to the respondents to revoke the suspension immediately by taking into account that the suspension faced by the petitioner is the prolonged one.
31.At the same time, since the charge sheet has already been filed before the concerned criminal Court, a suitable direction can be given to complete the trial within a time frame and after the trial is over and a judgement is delivered by the criminal court, it is open to the respondents to review the suspension and can take a decision thereon, according to the situation that will prevail there depending upon the outcome of the criminal case. In that view of the matter, this Court is inclined to pass the following order in this writ petition:
'(i)that the Chief Judicial Magistrate, Kumbakonam is hereby directed to complete the trial in S.C.No.28 of 2014 within a period of four (4) months from the date of receipt of a copy of this order 20/24 http://www.judis.nic.in W.P.(MD)No.25071 of 2018 and in this regard, the learned Chief Judicial Magistrate can take up the said case for trial either on day-to-day basis or an alternative dates, for which, the prosecution i.e., DV&AC, Thanjavore shall give full co- operation to produce the witnesses for completion of examination of witnesses.
(ii)After the trial is over and the judgment is delivered by the concerned criminal Court, the respondent TANGEDCO shall take up the request of the petitioner to review the suspension order, which is impugned herein and accordingly, the respondents shall decide the same depending upon the outcome of the criminal case referred to above. Till such time, the petitioner's suspension shall be continued and the petitioner shall be entitled to get the subsistence allowance allowable to him under the relevant Service Regulation and the same shall be paid every month without fail by the respondents. '
32.With all these directions, the Writ Petition is disposed of. No costs.
14.09.2020 Index : Yes/No Internet : Yes/No rmk Note:copy of this order shall be marked to the Chief Judicial Magistrate, Kumbakonam and also the Inspector of Police, Vigilance and Anti- Corruption Department, Thanjavur for necessary 21/24 http://www.judis.nic.in W.P.(MD)No.25071 of 2018 information and for compliance, as indicated in the order.
Note:In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned.
To The Inspector of Police, Vigilance and Anti-Corruption, Trichy.
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