Madras High Court
K.Krishnamurthy vs The Commissioner Of Municipal ... on 24 January, 2020
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
W.P.No.9194 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.01.2020
CORAM
THE HONOURABLE Mr.JUSTICE N.ANAND VENKATESH
W.P. No. 9194 of 2019
K.Krishnamurthy ... Petitioner
Vs
The Commissioner of Municipal Administration,
Chepauk, Chennai – 5. ... Respondent
PRAYER : Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorarified Mandamus, calling for the records
of the respondent in connection with the impugned orders passed by him in
ROC No.24566/2013/V1 dated 13.07.2013 and ROC No.24566/2013/V1
dated 24.02.2016 and quash the same and direct the respondent to
reinstate the petitioner into service and grant him all consequential service
and monetary benefits and grant such other further relief.
For Petitioner : Mr.K.Venkatramani
Standing Counsel
For Respondent : Mr. P.S.Sivashanmugasundaram
Special Government Pleader
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http://www.judis.nic.in
W.P.No.9194 of 2019
ORDER
This Writ Petition has been filed challenging the order of suspension passed by the respondent on 13.07.2013 and the order dated 24.02.2016 and for direction to the respondent to reinstate the petitioner into service.
2. The case of the petitioner is that he was working as a Town Planning Officer, Grade II at Dharmapuri Municipality. A criminal case came to be lodged based on the complaint given against the petitioner and an FIR was registered in Crime No.3/AC/2013 and the petitioner was arrested and remanded to judicial custody on 12.07.2013. Thereafter, the suspension order came to be passed by the respondent on 13.07.2013.
3. The suspension order continued for a long time and therefore, the petitioner approached this Court and filed W.P. No.34172 of 2015 challenging the suspension order. This Court, by order dated 28.10.2015, disposed of the Writ Petition with a direction to the respondent to consider reviewing / revoking the order of suspension. The respondent again rejected the request made by the Petitioner. Hence, both the original order and the subsequent order have become subject matter of challenge in the 2/18 http://www.judis.nic.in W.P.No.9194 of 2019 present Writ Petition.
4. Mr.Venkatramani, learned senior counsel appearing on behalf of the petitioner submitted that the petitioner has been kept under suspension from the year 2013 onwards and till date, even in the criminal case, only one witness has been examined. Learned counsel submitted that the petitioner cannot be kept under suspension for such a prolonged period and learned counsel relied upon the judgment of Hon'ble Supreme Court in [Ajay Kumar Choudhary Vs. Union of India and others] and also the judgment in the [State of Tamil Nadu Vs. Promod Kumar]. Learned counsel also placed reliance upon the judgment of this Court passed in W.P. No.11967 of 2018 dated 25.07.2019.
5. The respondent has filed a counter affidavit in this case and it has been stated that the petitioner was caught red handed while receiving bribe and he was arrested and remanded to judicial custody. Therefore, the suspension order came to passed against the petitioner. This suspension order was again reviewed and it was found that the same cannot be suspended or revoked in view of the serious criminal charges against the petitioner under the Prevention of Corruption Act. A further stand has been 3/18 http://www.judis.nic.in W.P.No.9194 of 2019 taken in the counter affidavit to the effect that if the petitioner is again taken back to service, it will be a disincentive for the public servants who are committed to a honest conduct in public service.
6. Mr. P.S.Sivashanmugasundaram, learned Special Government Pleader, appearing on behalf of the respondent submitted that considering the seriousness of the offences committed by the petitioner and also the fact that the final report has also been filed and the trial has also commenced in criminal case, the suspension order should not be interfered at this stage. Learned counsel further submitted that the suspension order passed against the petitioner was again reconsidered and keeping in mind the seriousness of the charge, the respondent has decided not to revoke the suspension order. Learned counsel submitted that a time limit can be fixed for the completion of the criminal case and till then, the order of suspension can continue against the petitioner.
7. This Court has carefully considered the submissions made on either side and perused the entire materials available on record.
8. The only issue that requires consideration in this case is as to 4/18 http://www.judis.nic.in W.P.No.9194 of 2019 whether the suspension of the petitioner has to continue, since the petitioner is already out of service for the last seven years and he is being paid subsistence allowance without extracting any work. At this juncture, it will be relevant to take note of the judgment passed by this Court in W.P. No.11967 of 2018, dated 25.07.2019, wherein, this Court had an occasion to consider the entire law on the subject. The relevant portions of the order is extracted hereunder.
“5.According to the learned counsel, this Court, in a number of decisions, has followed the law declared by the Hon'ble Supreme Court in Ajay Kumar Choudhary case and set aside the suspension orders and directed the authorities concerned to reinstate the petitioners in the respective writ petitions and post them in non-sensitive posts. Many of the cases, which were allowed by this Court also, pertaining to the alleged demand of illegal gratification by the petitioner therein. In support of his contention, the learned counsel would rely on the following decisions:
(i) In Ajay Kumar Choudhary V. Union of India through its Secretary and another reported in (2015) 7 Supreme Court Cases 291, he would draw the attention of this Court at paragraph 21, which is extracted hereunder:
“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/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 5/18 http://www.judis.nic.in W.P.No.9194 of 2019 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.”
(ii)In K.Selvamani V. The State of Tamil Nadu, rep. By the Principal Secretary to Government, Home (Pol-2) Department, Fort St. George, Chennai and another reported in 2017 (1) CTC 795, at paragraph 6 to 8, it has been held by this Court as follows:
“6. I am of the opinion that the issue involved in this case has to be decided only based on the decision of the Hon'ble Supreme Court in 2015 (2) SCALES 432 [Ajay Kumar Choudhry Vs. Union of India], wherein it has been held that the currency of suspension order should not be extended beyond three months, if within this period, the Memorandum of charges/charge sheet 6/18 http://www.judis.nic.in W.P.No.9194 of 2019 is not served on the delinquent official and if charge memo/sheet is served, a reasoned order must be passed for extension of the suspension. Subsequently, the Government of Tamil Nadu has also issued instructions in Letter No.13519/N/2016-1, P & AR (Per.N) Dept, dated 23.07.2015, to all Principal Secretaries to Government, Department of Secretariat and Head of Departments to follow the directions of the Hon'ble Supreme Court on the limitation period of suspension in letter and spirit.
7. Even in the instant case, the facts of the case could show that the respondents have not passed any reasoned order for extension of suspension in respect of the petitioner herein. The petitioner cannot be kept under prolonged suspension. Further, in the case Ambigapathy, P.S. Vs. The Director of Public Health & Preventive Medicine, reported in 1991 Writ L.R. 273, a Division Bench of this Court has held that the prolonged suspension is unreasonable and without any justification.
Following the above said decision, I am of the opinion, the petitioner herein is entitled to the relief sought for in the writ petition and the impugned order is liable to be quashed.
8.Accordingly, the writ petition is allowed and the impugned order is quashed. The respondents are directed to reinstate the petitioner in any non-sensitive post at a far away place forthwith. Consequently, connected Miscellaneous Petition is closed. No costs.“
(iii) In Civil Appeal No.8427-8428 of 2018 arising out of S.L.P.(Civil) No.12112-12113 of 2017 dated 21st August, 2018 [between State of Tamil Nadu rep. By Secretary to Government (Home) V. Promod Kumar IPS & another] the Hon'ble Supreme Court in paragraph No.23, has observed as under:
7/18http://www.judis.nic.in W.P.No.9194 of 2019 “23.This Court in Ajay Kumar Choudhary v. Union of India protracted suspension and held that suspension must necessarily be for a short duration. On the basis of the material on record, we are convinced that no useful purpose would be served by continuing the first Respondent under suspension any longer and that his reinstatement would not be a threat to a fair trial. We reiterate the observation of the High Court that the Appellant State has the liberty to appoint the first Respondent in a non sensitive post.”
(iv) In W.P.No.28454 of 2017 dated 01.04.2019 [between T.Soundararajan V. The District Revenue Officer, Villupuram and others], this Court in paragraph 6 has observed as follows:
“6.In the light of the categorical pronouncement of the Supreme Court as aforesaid, the order of prolonged suspension dated 30.03.2017, without even charge sheet being filed till date, is quashed and the petitioner is directed to be reinstated forthwith.”
(v) In W.P.No.33806 of 2018 dated 02.04.2019 [between P.Saravanan V. The Superintending Engineer, TANGEDGO, TNEB, Chengalpattu Electricity Distribution Circle, Chengalpattu] in paragraphs No.8 & 9, this Court has held as follows:
“8. In the case on hand, the order of suspension was issued long back and the writ petitioner is under continuous suspension without any progress in the departmental disciplinary proceedings as well as the criminal case. This being the factum of the case, this Court is of an opinion that there is no useful purpose would be served in keeping the writ petitioner under suspension for further period.
9. Accordingly, the following orders are passed:-
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(i) The impugned order of suspension passed by the respondent in Memo No. 50/Adm.2/A.1/F. Suspension/2009, dated 26.5.2009 is quashed.
(ii)The respondent is directed to reinstate the petitioner in service.
(iii) The respondent is directed to post the writ petitioner in any one of the non-sensitive post till the conclusion of the departmental disciplinary proceedings as well as the criminal case registered against the writ petitioner.
(vi) In W.P.No.13961 of 2018 dated 05.04.2019 [between B.Elankovan V. The Chairman, TANGEDCO, Nadippisai Pulavar K.R.Ramasamy Building, No.144, Anna Salai, Chennai – 600 002 and others] in paragraphs No.6 to 8, this Court has observed as follows:
“6. Competent Officials of the State as well as the Departments are the custodians of the tax payers money and they have got every duty to protect the public money and spend the same judiciously and in accordance with law. A public official wasting the tax payers money is committing misconduct and it is necessarily that such officials are also to be booked under the Discipline and Appeal Rules. The money of the tax payers are spend by the public officials without considering the circumstances and other aspects.
7. This apart, an employee is not allowed to take employment anywhere during the period of suspension. If a person is made to sit ideally without any work for number of years, the same would cause a mental agony, which is not good for the betterment of the society in general. All these aspects are to be considered, while prolonging the period of suspension.9/18
http://www.judis.nic.in W.P.No.9194 of 2019 Even, at the time of reviewing the order of suspension, the authorities competent must take into consideration of all these aspects and if necessary, revoke the order of suspension and post such employee in any one of the non-sensitive post till the conclusion of the departmental proceedings or criminal case. In view of the fact that the writ petitioner is under suspension for the past eight years, there is absolutely no progress in the Departmental Disciplinary Proceedings.
8. Under these circumstances, this Court is of an opinion that the present writ petition is to be considered. Accordingly, the following orders are passed:-
(1) The impugned order of suspension issued by the fourth respondent in proceedings in Ref.No.F/N/vz;/40828-epgp1-c2- m/vz;/5838-2014 dated 26.12.2014 is quashed. (2) The respondents are directed to reinstate the writ petitioner forthwith.
(3) The respondents are directed to post the writ petitioner in any one of the non-sensitive post till the conclusion of the departmental disciplinary proceedings.”
(vii) In W.P.No.33379 of 2018 dated 08.04.2019 [between P.Govindarajan V. The Chairman cum Managing Director, TANGEDCO (Tamil Nadu Generation and Distribution Corporation Ltd.), Tamil Nadu Electricity Board, No.144, Anna Salai, Chennai- 2 and others], in paragraphs No.11 & 12, this Court has held as under:
“11. In the case on hand, the order of suspension was issued long back and the writ petitioner is under continuous suspension without any progress in the departmental disciplinary proceedings as well as the criminal case. This being the factum of the case, this Court is of an opinion that there is no useful 10/18 http://www.judis.nic.in W.P.No.9194 of 2019 purpose would be served in keeping the writ petitioner under suspension for further period.
12. Under these circumstances, this Court is of an opinion that the present writ petition is to be considered. Accordingly, the following orders are passed:-
(1) The impugned order of suspension issued by the third respondent in proceedings in Memo No.114197/ 951/ G7/G72/2015-1, dated 3.3.2015, is quashed. (2) The respondents are directed to reinstate the writ petitioner in service.
(3) The respondents are directed to post the writ petitioner in any one of the non-sensitive post till the conclusion of the departmental disciplinary proceedings.
(viii) In W.P.No.11328 of 2019 dated 29.04.2019 [between J.Mathialagan V. The Chairman, Tamil Nadu Generation and Distribution Corporation Ltd., (TANGEDCO),NPKRR Maaligai, No.144, Anna Salai, Chennai and others] in paragraphs No.8 to 10, this Court has observed and held as follows:
“8. Competent Officials of the State as well as the Departments are the custodians of the tax payers money and they have got every duty to protect the public money and spend the same judiciously and in accordance with law. A public official wasting the tax payers money is committing misconduct and it is necessarily that such officials are also to be booked under the Discipline and Appeal Rules. The money of the tax payers are spend by the public officials without considering the circumstances and other aspects
9. This apart, an employee is not allowed to take employment anywhere during the period of suspension. If a person is made 11/18 http://www.judis.nic.in W.P.No.9194 of 2019 to sit ideally without any work for number of years, the same would cause a mental agony, which is not good for the betterment of the society in general. All these aspects are to be considered, while prolonging the period of suspension. Even, at the time of reviewing the order of suspension, the authorities competent must take into consideration of all these aspects and if necessary, revoke the order of suspension and post such employee in any one of the non-sensitive post till the conclusion of the departmental proceedings or criminal case. In view of the fact that the writ petitioner is under suspension for the past seven years, there is absolutely no progress in the Departmental Disciplinary Proceedings.
10. Under these circumstances, this Court is of an opinion that the present writ petition is to be considered. Accordingly, the following orders are passed:-
(1) The impugned order of suspension issued by the third respondent in Memo No.115/ Adm.II/A4/ F.Suspension/2012 dated 11.5.2012 is quashed.
(2)The respondents are directed to reinstate the writ petitioner forthwith.
(3) The respondents are directed to post the writ petitioner in any one of the non-sensitive post till the conclusion of the departmental disciplinary proceedings.”
6.Therefore, the learned counsel would submit that consistently this Court, even in cases of corruption, held that the employee cannot be suspended for an indefinite period. While so, in the present case, from 2016 onwards the petitioner has been placed under suspension.
7.According to the learned counsel, the criminal trial has not progressed at all and the criminal trial is likely to be delayed.
Therefore, the petitioner's claim for revocation of suspension 12/18 http://www.judis.nic.in W.P.No.9194 of 2019 notwithstanding the pendency of criminal trial is imperative and the issue is also directly covered by the above decisions of the Hon'ble Supreme Court of India and also of this High Court.
12.This Court is unable to appreciate the arguments advanced by the learned Special Government Pleader on behalf of the respondents particularly with reference to the citation, since those orders cited by him one the Hon'ble Supreme Court and other by a Division Bench of this Court were rendered prior to Ajay Kumar Choudhary case and therefore, it cannot hold the field any further after the pronouncement of the decision by the Hon'ble Supreme Court of India in the Ajay Kumar Choudhary case. In fact, after Ajay Kumar Choudhary case, numerous orders have been passed by the Division Bench as well as the learned single Judges of this Court following the legal principle of the Hon'ble Supreme Court and directed reinstatement of the suspended employees. Therefore, the arguments advanced on behalf of the respondents deserved to be rejected.
13.While so, this Court is in agreement with the submissions made on behalf of the learned counsel for the petitioner. The Hon'ble Supreme Court of India in Ajay Kumar Choudhary case has elaborately held that the suspension is only transitory or temporary in nature and must perforce be of short duration. In fact, in paragraphs No.11 and 12, the Hon'ble Supreme Court has frowned upon the long period of suspension'. Those paragraphs are also extracted hereunder:
“11.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 13/18 http://www.judis.nic.in W.P.No.9194 of 2019 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.
12. 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.
Indubitably the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the accused. But we must remember that both these factors are legal ground norms, are inextricable tenets of common law jurisprudence, antedating even the Magna Carta of 1215, which assures that - "We will sell to no man, we will not deny or defer to any man either justice or right." In similar vein the Sixth Amendment to the Constitution of the United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial.“
14.In same lines, various High Courts and particularly this High Court have passed numerous orders setting aside the suspension order and directed the authorities concerned to post the suspended officers concerned in non-sensitive posts. This 14/18 http://www.judis.nic.in W.P.No.9194 of 2019 was done keeping in mind public interest, as payment of huge subsistence allowance without extracting work from the employee concerned, drains public exchequer. Moreover, the person accused is entitled to speedy trial under Article 21 of the Constitution of India. Therefore, in order to uphold the public interest and also constitutional imperatives, the suspension orders have been interfered with by the Courts”.
9. It is clear from the above judgment that even in cases involving corruption, the delinquent employee cannot be kept under suspension for an undefined period. It is a gross waste of public money if subsistence allowance is being paid without extracting any work. In the present case, the petitioner has been happily receiving the subsistence allowance for the last seven years without doing any work.
10. This Court is inclined to give a direction to the respondent to revoke the order of suspension and post the petitioner in some non sensitive post in any district and this will ensure that the work is extracted from the petitioner and he is paid monthly salary.
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11. This Writ Petition is disposed of with the following directions:
a) The respondent is directed to pass appropriate orders within a period of four weeks from the date of receipt of copy of this order, revoking the order of suspension and post the petitioner in some non sensitive post and
b) the Chief Judicial Magistrate, Dharmapuri, is directed to complete the proceedings in Special CC No.3 of 2013 within a period of three months from the date of receipt of copy of this order. No costs.
24.01.2020 Index:Yes/No Speaking order / Non speaking order bkn 16/18 http://www.judis.nic.in W.P.No.9194 of 2019 To
1.The Commissioner of Municipal Administration, Chepauk, Chennai – 5.
2.The Chief Judicial Magistrate, Dharmapuri.
17/18http://www.judis.nic.in W.P.No.9194 of 2019 N.ANAND VENKATESH. J., bkn W.P. No. 9194 of 2019 24.01.2020 18/18 http://www.judis.nic.in