Madras High Court
S. Jeyasingh Rajan vs The President on 7 August, 2006
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 07/08/2006 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.5864 of 2006 and M.P.No.1 S. Jeyasingh Rajan .... Petitioner Vs. The President Kalloorani Panchayat, Keezhapavoor Union, Tirunelveli District. .... Respondent Writ petition filed under Article 226 of Constitution of India, praying this Court to issued a writ of Certiorari, calling for the records relating to the impugned order of suspension issued by the respondent vide ref. Na.Ka.No.1/2006-2007 dated 6.6.2006. !For Petitioner ... Mr. S.S.Sundar ^For Respondent ... Mrs.Jessi Jeevapriya, Special Govt. Pleader :ORDER
This writ petition has been filed challenging the order of suspension dated 6.6.2006 passed by the respondent.
2. The brief facts necessary for disposal of the writ petition are that the petitioner was appointed as part-time Clerk in the Kalloorani Panchayat, initially on temporary basis and subsequently made permanent. He is working in the said Panchayat for the past 16 years. According to the petitioner, one K.Devaraj Muthiah preferred a complaint to the Tirunelveli Vigilance and Anti Corruption Cell against him stating that the petitioner demanded bribe for passing some bills due to him on account of certain works done by him to the Panchayat. The said complaint was registered under section 7 of the Prevention of Corruption Act, 1998. Pursuant to the said complaint, petitioner was arrested on 5.6.2006 at about 7.30 p.m. and he was released on bail at 10.45 p.m. after executing surety bond. In view of the petitioner's involvement in the criminal case, petitioner was placed under suspension by the impugned order dated 6.6.2006, which is challenged in this writ petition.
3. The President of the Panchayat/respondent herein filed a counter affidavit contending that he is not aware of whether the said Devaraj Muthiah has falsely implicated the petitioner in the guise of receiving bribe and it is for the Vigilance and Anti Corruption Department to find out as to whether there is any basis for the complaint against the petitioner. It is further stated that as the petitioner is involved in the criminal case, moreso, in the Vigilance and Anti Corruption case, the impugned order of suspension was passed. It is also stated in the counter affidavit that the respondent is the competent authority and he is having jurisdiction to issue the impugned order and therefore the writ petition is liable to be dismissed.
4. The learned cousnel appearing for the petitioner submitted that the criminal case was registered against the petitioner on the basis of the complaint given by the said Devaraj Muthiah, who is having a grudge against the petitioner with regard to fixing of blow control volve in the water connection. The learned counsel further argued that the suspension order is passed without assigning any reason and it is bad since no charge was framed in the criminal case and no disciplinary proceeding was initiated or contemplated by the respondent. Yet another contention raised was that invoking the order of suspension under the Government Servants Conduct Rules is improper as the petitioner is not a Government Servant. The learned counsel finally contended that the respondent has no jurisdiction to pass the impugned order.
5. The learned Special Government Pleader appearing for the respondent reiterated the contentions raised in the counter affidavit and prayed for dismissal of the writ petition as the petitioner is admittedly involved in criminal case.
6. I have considered the rival submissions of the learned counsel appearing for the petitioner as well as the learned Special Government Pleader.
7. The first submission of the learned counsel for the petitioner that the petitioner is not governed under the Tamil Nadu Government Servants Conduct Rules, has no substance in view of the fact that the petitioner is admittedly a Clerk of the Panchayat. The Government has long ago ordered the Panchayat staff as Government Servants and therefore there is no substance in the said contention.
8. Regarding the contention that there is no violation of the Government Servants Conduct Rules by the petitioner is also unsustainable in view of the fact that Rule 20(1) of the Tamil Nadu Government Servants Conduct Rules, 1973 clearly states that every member of the service shall at all times maintain absolute integrity and devotion to duty and shall do nothing which is becoming of a member of the service.
9. Petitioner's involvement in the criminal case and registering of criminal case against the petitioner under section 7 of the Prevention of Corruption Act, is admitted in the affidavit filed in support of the writ petition. Arrest of the petitioner and his release on bail is also admitted. Therefore, prima facie, petitioner's integrity is in question. Rule 17(e) (1) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules reads as follows, "Rule 17(e)(1) A member of a service may be placed under suspension from service, where-
(i) an enquiry into grave charges against him is contemplated, or is pending; or
(ii) a complaint againts him of any criminal offence is under investigation or trial and if such suspension is necessary in the public interest."
A perusal of the above referred rule, particularly Rule 17(e)(1)(ii) makes it clear that if a complaint against the Government servant of any criminal offence is under investigation or trial and if such suspension is necessary in the public interest, such member of the service can be placed under suspension. The said rule is applicable to every member of the Civil Services of the State and to every person holding a civil post in the State, except the person specifically provided. For proper appreciation, sub-rules (2), (3) and (4) of Rule 17(e) are extracted hereunder, "(2) A Government servant who is detained in custody whether on a criminal charge or otherwise, for a period longer than forty-eight hours shall be deemed to have been suspended under this rule.
(3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government Servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders."
10. As the petitioner is involved in the criminal offence and the investigation is pending, the first respondent thought it fit to suspend the petitioner on public interest. A person is to be placed under suspension or not in a given case, pending investigation or trial of a criminal case has to be decided only by the competent authority on public interest. Once the discretion given to the competent authority is exercised in a particular manner, the said action of the authority is justified in view of the statutory provision contained in Rule 17(e)(1)(ii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Sufficiency of the reason or otherwise to place a person under suspension cannot be gone into in writ proceedings. It is like a discretion given to the authority to give promotion to a person against whom Section 17(b) charges are pending, as contemplated under Rule 39(d) of the Tamil Nadu State and Subordinate Service Rules. The said rule is extracted hereunder, "Rule 39(d) Where it is necessary to promote an officer against whom an enquiry into allegations of corruption or misconduct is pending the appointing authority may promote him temporarily pending enquiry into the charges against him. The competent authority shall have discretion to make regular promotion in suitable cases."
No one can compel the authority to exercise the discretionary power in a particular manner unless it is established that the power exercised is arbitrary and in discriminatory manner. Therefore, the petitioner cannot contend that the impugned order of suspension is without any basis.
11. The contention of the learned counsel for the petitioner that by virtue of the impugned order petitioner's right conferred under Article 14 and 21 of the Constitution is affected is unsustainable in view of the fact that the suspension order is only a temporary cessation of work and not a final punishment. If the criminal case, registered against the petitioner, is found to be untrue, naturally petitioner will get the suspension revoked and the period of suspension will be regulated as per Rule 54(b) of the Fundamental Rules. Hence the petitioner's right is not at all affected by the impugned order of suspension.
12. The other contention of the learned counsel for the petitioner that the respondent has no jurisdiction to pass the impugned order is also unsustainable in view of the fact that the appointing authority in respect of a Clerk in the Panchayat is the President as per Section 84 of the Tamil Nadu Panchayats Act, 1994. The functions of the President (Executive Authority) of the Panchayats are provided in Section 84, which is extracted hereunder, "Section 84. Functions of executive authority.- The executive authority shall,-
(a) carry into effect the resolutions of the village panchayat:
Provided that where the executive authority considers that a resolution has not been legally passed or is in excess of the powers conferred by this Act or that, if carried out, it is likely to endanger human life or health or the public safety, the executive authority shall refer the matter to the Government for orders and their decision shall be final;
(b) control all the officers and servants of the village panchayat;
(c) discharge all the duties specifically imposed and exercise all the powers conferred on the executive authority and subject to all restrictions and conditions imposed, by or under this Act, exercise the executive power for the purpose of carrying out the provisions of this Act and be directly responsible for the due fulfilment of the purposes therof."
At this juncture it is pertinent to mention that Section 84 of the Act has been amended by the Tamil Nadu Panchayats (Amendment) Act, 1999 (Act 2 of 1999), by which, in clause (a) in the proviso, for the word "president", the words "executive authority" have been substituted.
13. The Executive Authority, namely, the President of the Village Panchayat is given control with regard to the disciplinary matters and the same is made clear by the Government in its letter No.43006/E5/2001-1, Rural Development Department, dated 20.11.2001, addressed to all the District Collectors. Under Section 106 of the Tamil Nadu Panchayats Act, 1994, the Executive Authority, the Commissioner or the Secretary is empowered to punish officers and servants. The said section is extracted hereunder, "Section 106. Power to punish officers and servants.- Subject to such control as may be prescribed, the executive authority, the commissioner or the secretary may censure, fine, withhold increments or promotions from, or reduce to a lower rank in the seniority list, or to a lower post or time-scale or to a lower stage in a time-scale, suspend, remove or dismiss any officer or servant in the service of village panchayat or panchayat union council or the discrict panchayat, as the case may be, for any breach of departmental rules or discipline, or for carelessness, unfitness, neglect of duty or other misconduct."
In view of the conferment of control, particularly disciplinary control on the President of the Village Panchayats, the order passed by the respondent suspending the petitioner in this case is well within his statutory powers and the contention that the respondent has no jurisdiction to pass the impugned order is held against the petitioner.
14. In view of the foregoing reasons, I do not find any merit in the writ petition and consequently the writ petition is dismissed. The impugned order dated 6.6.2006 passed by the respondent is sustained. No costs. Connected miscellaneous petition is also dismissed.
vr To The President, Kalloorani Panchayat, Keezhapavoor Union, Tirunelveli District.