Madras High Court
N. Deenadayalan vs The Deputy Inspector General Of Police, ... on 29 February, 1988
Equivalent citations: (1988)2MLJ25
ORDER Nainar Sundaram, J.
1. The order impugned is one of suspension, dated 27.1.1987. The Rule invoked is Rule 3(e)(1)(i) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, hereinafter referred to as the Rules. It is stated that the petitioner is placed under suspension on the ground that an enquiry into a grave charge is under contemplation and in the circumstances of the case, it is necessary in the public interest to place the petitioner under suspension. Admittedly, on the date of the impugned order of suspension, there was no charge as such framed against the petitioner. The petitioner has filed this writ petition on 6.10.1987. It is categorically averred in paragraph 5 of the affidavit, filed in support of this writ petition, that there had been no extension of the suspension issued against him and in the absence of extension, the suspension order must be deemed to have lapsed. Normally, as per Clause 5(ii) of G.O.Ms. No. 211, Personnel and Administrative Reforms (Personnel-N) Department, dated 27.2.1980, hereinafter referred to as the Government Order, the period of suspension should not exceed three months. But, under Clause 5(iii) of the Government Order, where the matter has been referred in the Directorate of Vigilence and Anti-Corruption for enquiry, the period of suspension could ensure upto six months. In the instant case, the respondent by his counter affidavit, sworn to on 19.1.1988, would state that the matter against the petitioner, is being enquired into by the Directorate of Vigilence and Anti Corruption. Hence, it could be stated that the period of suspension could enure upto six months, as per Clause 5(iii) of the Government Order. Learned Counsel for the petitioner would, however, state that his client has no knowledge, about the matter being enquired into by the Directorate of Vigilence and Anti-Corruption, There are powers of extension under the Government Order. The first extension could be only for a period of six months by the concerned higher authority, as per Clause 5(iv) of the Government Order. If there is going to be a further extension, that power could be exercised only by the Government, as per Clause 5(iv) of the Government Order. In the counter affidavit of the respondent there is a reference to an order of extension of 14.7.1987, stated to have been passed by the Director General of Police, extending the period of suspension upto 28.1.1988. a copy of the order of extension of suspension dated 14.7.1987 has been produced before me and a perusal of the same discloses that the extension has been made effective from 29.7.1988 till 28.1.1988. According to Mr. N.R. Chandran, learned Additional Government Pleader, appearing for the respondent, the impugned order of suspension was served on the petitioner only on 28.1.1987 afternoon, the petitioner received his salary for 28.1.1987 and hence the order of suspension became effective only from 29.1.1987 and thus the period of six months enured upto the end of 28.7.1987 and the extension as per order dated 14.7.1987 could certainly be made effective from 29.7.1987 until the end of 28.1.1988. Admittedly, the petitioner was not at all communicated with the order of extension of suspension dated 14.7.1987 extending the period of suspension from 29.7.1987, until the end of 28.1.1988. Learned Additional Government Pleader would further state that on 27.1.1988, the Government has passed an order of extension of suspension for a further period of six months effective from 29.1.1988 to 28.7.1988 or till the disciplinary proceedings, pending against the petitioner, are disposed of. Learned Additional Government Pleader produced before me a copy of this order of the Government. Here again, the petitioner was not communicated with this order of extension of suspension, stated to have been passed by the Government. There is a complaint expressed by Mr. R. Shanmugham, learned Counsel appearing for the petitioner, that any order of extension cannot be passed and kept under the table, and to be effective it ought to have been communicated to the petitioner and in the absence of such communication, the extension cannot have any sanctity in the eye of law and must be ignored. Learned Counsel for the petitioner would also submit that the impugned order of suspension dated 17.1.1987 declared it to be operative with immediate effect and when this is so, assuming that the matter is pending enquiry before the Director of Vigilence and Anti-Corruption, as claimed by the respondent. Yet the period of six months would lapse on 26.7.1987 itself and the order of extension, though stated to have been passed on 14.7.1987, making it effective from 29.7.1987, is not a proper one and it has brought about a histus and hence it could not be stated that there has been a valid order of extension and in this view, the second order of extension of suspension, stated to have been passed, by the Government on 27.1.1988 also could not stand. I will deal with this contention if occasion arises therefor after I consider the crucial question that is being raised and argued in this writ petition on the legal propriety and tenability of the impugned order of suspension dated 27.1.1987 itself.
2. The first contention advanced on behalf of the petitioner to nullify the impugned order of suspension is that under Rule 3(e)(1)(i) there could be suspension of a member of a service only where an enquiry into grave charges against him is contemplated or is pending, and admittedly in the instant case no grave charges have been formulated against the petitioner and hence it could not be stated that an enquiry into gravel charges against the petitioner is contemplated, as averred in the impugned order of suspension. In substance, the contention is that without grave charges getting formulated, there is no question of any enquiry into the same being contemplated. This contention, on a serious Consideration, in my view, requires countenance. Suspension, pending disciplinary proceedings, is, of course, not a punishment. But, it certainly entails certain consequences detrimental and disadvantageous to the member of the Service, who is placed under suspension. It is not possible to travel beyond the plain language of the Rule to spell out a power of suspension. Hence, the power of suspension must be strictly construed within the ambit of the language of the Rule, which confers that power.
3. The language of the Rule 3(e)(1)(i) is plain. It speaks about the power of suspension, where an enquiry into grave charges against a member of the Service is contemplated or is pending. Rule 2 of the rules specifies the penalties to be imposed for good and sufficient reason on a member of the service. Only for imposition of the penalties, there could be disciplinary action and Rule 3 as a whole deals with the disciplinary action and the procedure to be followed therefor. For imposition of major penalties or in other words where the charges are grave in nature, and if found against the member of the service in the disciplinary action will lead to imposition of major penalties, the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges. This is what Rule 3(b)(i) lays down. The charge or charges shall be communicated to the person charged together with a statement of the allegations on which each charge is based and at any other circumstance which is proposed to take into consideration in passing orders on the case. The person charged shall be required within reasonable time put in a written statement of his defence and to state whether he deserves an oral enquiry or to be heard in person. An oral enquiry shall be held if such an enquiry is desired by the person charged or is directed by the authority concerned. Sub-rule (e) of Rule 3, under which the power of suspension is given to the authority concerned, also refers to grave charges. The power of suspension is conferred by the very same rule, namely, Rule 3, which deals comprehensively with disciplinary action. Hence, the expression 'charges' occurring in Sub-rule (e) must be read only in the context of framing of charge or charges and must be annexed an uniform meaning. As already noted, the language of Rule 3(e)(1)(i) is plain and unambiguous. Is it possible to countenance suspension of a member of the Service without formulating grave charge or charges under Rule 3(e)(1)(i) of the Rules. If the answer is to be given in the affirmative, that would be doing violence to the plain and unambiguous language of Rule 3(e)(1)(i). If the intention of the Rule making Authority was to confer a power of suspension even before the initiation of disciplinary action and formulation of charges, a separates rule would have got enacted of Rule 3(e)(1)(i) itself would have been aptly worded to state that even in the contingencies of serious allegations or accusations or imputations against a member of the Service, suspension could be resorted to. But that has not been done.
4. It is suggested on behalf of the respondent that once grave charges have been formulated, they must be positively enquired into, and in such a contigency the latter part of Rule 3(e)(1)(i) has got to be invoked to place a member of the Service under suspension on the ground that enquiry into grave charges is pending; and the first part of Rule 3(e)(1)(i) could be appropriately invoked in contingencies anterior to the formulation of grave charges and at a stage charges, though not actually formulated. This suggestion presupposes that there could not be dropping of grave charges once formulated and they must without any alternative lead to enquiry into them. This line of thinking is fallacious, because the Rule as such does not curtail the power of the authority to drop action even after formulation of grave charges. It is not as if once charges have been formulated, they must be prosecuted to a culmination of rendering a finding thereon in an enquiry. There is every possibility that after the charges have been formulated and communicated to the person charged, the authority may find in the explanation offered through the written-statement of the person charged a convincing answer and after considering the relevant materials, would find it justifiable, equitable and fair to exonerate the person charged of the charges levelled. Even after the formulation of the charges, there could be dropping of the same, finding the process of disciplinary action a futile one, accepting the explanation offered by the person charged and in the light of the relevant materials. Hence, even after the formulation of charges, enquiry into the same could still be under contemplation and in that contingency the first part of Rule 3(e)(1)(i) could certainly be invoked.
5. In P.R. Nayak v. Union of India , the question arose before six learned Judge of the Supreme Court as to whether an order of suspension of the delinquent member of the service made before the actual initiation or commencement of disciplinary proceedings, is bad violative of Rule 3(1) of the All India Service (Discipline and Appeal) Rules, 1969. Rule 3(1) of the aforesaid Rules enabled the Government to place under suspension a member of the service, if having regard to the nature of the charges and the circumstances in any case, the Government which initiates any disciplinary proceedings is satisfied that it is necessary or desirable to place under suspension the member of the service against whom such proceedings are started. The majority view in that decision was that the intention of Rule Making Authority was to restrict its operation only to these cases in which the Government concerned, is possessed of sufficient materials, whether after preliminary investigation or otherwise and the disciplinary proceedings have, in fact, commenced and not merely when they are contemplated. The earlier view of the two Judges of the Supreme Court in Government of India, Ministry of Home Affairs v. Tarak Nath Ghosh , that the Government is entitled to place a member of the service under suspension even before definite charges are communicated to him, when preliminary investigation has been made into his conduct following allegations of corrupt or malpractice levelled against him, was not agreed to. It is true that Rule 3(1) of the All India Services (Discipline and Appeal) Rules, 1969, spoke about the initiation of disciplinary proceedings and the satisfaction of the Government which initiates disciplinary proceedings having regard to the nature of the charges and the circumstances of the case about the necessity or desirability to place the member of the service under suspension and the Supreme Court pointed out that a plain reading of the said Rule does not suggest that suspension can be ordered merely when disciplinary proceedings are contemplated. Here, a plain reading of Rule 3(a)(1)(i) of the Rules suffests that there must be contemplation of enquiry into grave charges. The Rule does not speak about suspension in the contingency of an enquiry contemplated into only serious allegations or accussations or imputations against the member of a service. The enquiry contemplated must be into grave charges. That is what the plain language of Rule 3(a)(1)(i) conveys. Under Rule 3(b)(i) of the Rules, charges could only mean the reduction to a definite from the grounds on which it is proposed to take action. Same meaning should be annexed to the expression 'charges' occurring in Rule 3(a)(1)(i) of the Rules. It is not possible to read something into the Rule, which is not explicit therein.
6. Sathiadev, J., in S. Vasudevan v. The Government of Tamil Nadu, Rep., By Its Secretary, Home Department W.P. Nos. 304, 390 of 1982, order dated 7.12.1982, dealt with a case under Rule 17(a)(1)(i) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, hereinafter referred to as Tamil Nadu Civil Services Rules, where a servant was placed under suspension, pending further enquiry into grave charges against him. The learned Judge found that at the time of the passing of the impugned order of suspension there only a charge memorandum had been issued and the enquiry was yet to begin and hence no enquiry was pending against the servant relating to grave charges against him, as claimed in the impugned order of suspension. An attempt was made on behalf of the authorities to state that the impugned order of suspension must be read to mean an enquiry into grave charges was contemplated against the petitioner so as to sustain it within the language of Rule 17(a)(1)(i) of the Tamil Nadu Civil Services Rules. The learned Judge repelled the argument put forth on behalf of the authorities in the following terms:
Learned Advocate-General contends that what was intended by the impugned CO., was that, an enquiry into grave charges was 'contemplated' against the petitioner, though in fact it was not pending. Issuing a charge memo would not mean enquiry is pending. if explanation called for and submitted, is found to be satisfactory, then enquiry would not be ordered. Hence, stage of holding an enquiry had not reached. Rule 17(a)(1) and (ii), has not allowed such vagaries to exist, is being specific that there are two different categories viz., (1) where an enquiry into grave charges is contemplated and (2) where an enquiry is pending. Whenever an order of suspension is passed in public interest, without exception, Government had always insisted that those orders are to be strictly construed confining only to the words used in the order. Even otherwise, there cannot be ambiguity when the order is passed by Home Department in disciplinary matters, unlike orders by subordinate disciplinary authorities. The claim of 'public interest' would depend upon the correctness or claims made on these aspects. Without even looking into records, this expression had been mechanically used. It is now shown that due and required care had not been taken, while passing the order. There being considerable difference between an 'enquiry pending' and 'enquiry being contemplated', Government cannot be heard to plead that, even though it may claim that an enquiry is contemplated, to get over the lapse committed by its officers. At least when such G.Os. are passed, what is stated therein will have to be understood in the manner in which it has been expressed particularly, when the rule itself contemplating different situation. Hence, on the date of the order, when 'no enquiry was pending' against the petitioner into grave charges, the first error apparent on the face of the order having occasioned, the impugned order deserves to be set aside.
We could see from the above extract, learned Judge held that by the mere issuing of a charge memorandum, enquiry could not be stated to be pending and if explanation called for an submitted is found to be satisfactory, then enquiry would not be ordered. As already noted, framing of grave charges, need not necessarily and always culminate in the holding of an enquiry. Even after framing of grave charges, enquiry into the same can remain in contemplation, to be dropped in appropriate cases. If enquiry is commenced after the grave charges are framed, that will be a case of enquiry into grave charges pending so as to enable-the authority to invoke the latter part of Rule 3(a)(1)(i) to suspend the member of the service. When enquiry into grave charges framed is in contemplation, the earlier part of Rule 3(a)(1)(i) can be availed of to suspend the member of the service. In that case, Sathiadev, J., struck down the order of suspension, since it exposed total lack of spplication of mind when it made the wrong statement that an enquiry was pending. The order of suspension in that case was impugned in W.P. No. 390 of 1982. W.P. No. 304 of 1982 was to quash the charge memorandum and W.P. No. 391 of 1982 was filed for a MANDAMUS to the authority concerned to consider the servant for promotion. The learned Judge allowed all the three writ petitions on 7.12.1982. The common order of the learned Judge was taken on appeals. A Bench of this Court, consisting of Ramanujam and Ratnam, JJ. dealt with the appeals in The Government of Tamil Nadu v. S. Vasudevan 1984 Lab.I.C. 1875, and the appeal, preferred by the State as against the order in W.P. No. 390 of 1982 quashing the suspension, was dismissed, and on the reasons countenanced by Sathiadev, J., but on a different ground. The Bench had no occasion to touch, differ from or upset the reasonings expressed by Sathiadev, J., in his common order.
7. In A. Antony v. The Commissioner of Forests, Vellore and Anr. W.P. No. 9733 of 1987, order dated 3.11.1987, I had occasion to deal with an order of suspension passed under Rule 17(a)(1)(i) of the Tamil Nadu Civil Services Rules on the ground that an enquiry into grave charges is contemplated, and on the date of the order of suspension there had been no charge formulated. The order of suspension was held to be not sustainable and it was set aside by Venkataswami, J., in similar contingencies, of course, dealing with petitions for stay in J. Venkataraman and Anr. v. The Government of Tamil Nadu Rep., By Its Commissioner and Secretary, Home (Transport) Department, Madras-9 and Anr., W.M.P. Nos. 18178 and 18179 of 1987 in W.P. Nos. 12349 and 12340 of 1987. Order dated 13.1.1988, followed the view in A. Antony v. The Conservator of Forests, Vellore and Anr. W.P. No. 9733 of 1987, Order dated 3.11.1987.
8. Mr. N.R. Chandran, learned Additional Government Pleader, appearing for the respondent, would draw my attention to certain pronouncements to sustain the stand of the respondent that there could be an order of suspension under Rule 3(a)(i)(i) of the Rules even in a case where charges have not been formulated and the expression 'charges' occurring in the Rule should be liberally construed as to include a case anterior to the formulation of charges and where an enquiry into grave misconduct is contemplated against the member of the service. Learned Additional Government Pleader would first refer to the minority view in S. Pratap Singh v. State of Punjab , with regard to the expression 'charge of misconduct' occurring in Rule 3.26(d) of the Punjab Civil Services Rules, 1959. The minority view in that pronouncement was that Rule 3.26 is of general application and therefore, the expression 'charge of misconduct' in the Rule is not to be interpreted narrowly as meaning 'the charges formally framed and communicated to the Government servant concerned' with the intimation that a formal departmental enquiry had been initiated against him on those charges and whenever any charge of misconduct is under enquiry by the Government, be it informally or formally, the Government is competent to suspend the Government servant and if the requirements of the case require to take action under Rule 3.26(d). The minority view upheld the order of suspension against the Government servant. The majority view was different and as per the majority view", the order of suspension was set aside. It is a well settled proposition that when the Supreme Court is divided, it is the judgment of the majority which constitutes the 'Law Declared' by the Supreme Court and not the view or the observations of the Judges in the minority. It would be a different matter if the majority view has concurred with certain aspects of the minority view, though the ultimate conclusion of the majority was different from that of the minority. But in the above pronouncement, I find that the construction of the Rules, as done by the minority, was not concurred with by the majority. This is what R. Rajagopala Ayyangar, J., speaking for the majority, expressed about the interpretation of the Rule done by the minority, the view of the minority having been expressed by Raghubar Dayal, J:
The relevant rules on the topic as well as their interpretation have all been dealt in the judgment of Dayal, J., and we agree in the main with his conclusion that the orders impugned were not beyond the power of the Government. We should, however, add that we should not be taken to have accepted the interpretation which Dayal J., has placed on each one of the several rules which he has considered.... In the view which we have taken on the second ground of challenge to the orders of Government we have not considered it necessary to examine in detail the several rules to which out attention was drawn or their proper interpretation".
9. The second pronouncement relied on by the learned Additional Government Pleader in that of V. Ramaswami, J., as he then was, in Dr. A. Balaguru v. The Government of Tamil Nadu REP., By Its Commissioner and Secretary, Agricultural Department, Madras-9 and Anr. W.P. No. 2976 of 1978, Order dated 17.8.1978, There the order of suspension was passed under Rule 17(e)(1)(i) of the Tamil Nadu Civil Services Rules on the ground that an enquiry into grave charges is contemplated when, in fact, no definite charge was framed and communicated to the servant. The learned Judge sustained the order of suspension, holding that even without the service of the charge memorandum there could be an order of suspension on the ground that enquiry into grave charges is contemplated. In that case, the learned Judge took note of certain factual fractures, which ran as follows:- A petition containing certain allegations against the servant was received by the authority; the authority forwarded the petition to the Government with a request to entrust the matter to some other senior high level officer of the Government for enquiry on the ground that the servant had been disputing the bona fides of the authority on earlier occasions and therefore, he did not want to deal with that matter, on receipt of the petition, the Government forwarded the matter to the Direct of Vigilance and Anti-Corruption for a discrest enquiry and report; on the receipt of the report of the Director of Vigilance and Anti-Corruption in which the Director suggested that a detailed enquiry was called for, the concurrence of the Vigilance Commissioner was sought for and obtained, the Vigilance Commissioner also stated that since the allegations levelled against the servant were serious enough, the Government would consider the question of suspending the servant, pending a detailed enquiry; the Government first considered the question of transferring the servant to different station; but ultimately the Government came to the conclusion that since an enquiry into grave charges was contemplated the servant had to be placed under suspension and accordingly by the impugned order the servant was placed under suspension, pending enquiry into grave charges contemplated. The learned Judge categorically expressed the view that in the above circumstances, an enquiry into grave charges against the servant can be said to be in contemplation of the Government, enabling the Government to suspend the servant pending such contemplated enquiry. This pronouncement stands on its own footing based on the facts dealt with by the learned Judge. Apart from the question of construction of the Rule, the facts of the present case are entirely different. Here I find that apart from enumerating certain charges and statement in the counter-affidavit of the respondent that an enquiry into them is being done by the Director of Vigilance and Anti-Corruption, no other compelling and serious features are being put forth to place the petitioner under suspension.
10. Thirdly, learned Additional Government Pleader would cite the order passed by me in P. Govindarajulu and Anr. v. The Superintendent Of Police, South Arcot W.P. Nos. 8623 and 8624 of 1985 dated 23.8.1985. There the preamble to the impugned order passed under Rule 3(a)(1)(i) of the Rules ran as follows:
Whereas an enquiry into grave charges is pending against M.C. 478 Govindarajulu of Kannapuram P.S., and whereas in the circumstances of the case it is necessary in the public interest to place him under suspension from service with immediate effect.
Thus the preamble which set out the ground for suspension stated that on enquiry into grave charges is pending. This was found to be factually incorrect. After pointing out that the language of Rule 3(e)(1)(i) of the Rules is unambiguous, when it expressed the dichetemy of the contingencies, it was found that the authority concerned did not make up his mind as to which of the contingencies was really pending before he resorted to the power of suspension. In that view, the impugned order of suspension was set aside. It is true that there are certain observations in that case that when an enquiry into grave charge is contemplated, the charges could be even in the incubation stage or at the investigation stage without - being formulated or framed. But the vitiating factor that was taken note of was the non-application of mind on the part of the authority, who passed the impugned order of suspension, on an incorrect factual statement. I had no occasion to consider the present point, on a controversy being raised over the same, as being done in the present case.
11. Two aspects mainly weigh with me to frown upon the impugned order of suspension in the present case. One is the plain and unambiguous language of Rule 3(e)(1)(i) of the Rules. The other is the rule of interpretation that should guide the Court with regard to expressions occurring in the very same Rule. Words are generally used in the same sense throughout in a statute unless there is something repugnant in the context. Same word in a particular provision should bear the same meaning in both the places unless there is something in the context to the contrary. The reference to 'charges' in Sub-rule (e)(1)(i) of Rule 3, after Sub -rule (b)(i), which speaks about the reduction of the grounds on which It is proposed to take action to the form of definite charge or charges, is significant. Hence, the expression 'charges' occurring in Sub-rule (e)(1)(i) of Rule 3 must be given the same connotation given to 'charges' in Sub-rule (b) (i) of Rule 3. There is nothing repugnant in the context to impel the Court to give a different meaning to the expression 'charges' occurring in Rule 3 in different places.
12. The reasons expressed above oblige me. to interfere in writ powers to quash the impugned order of suspension. The said reasons relate to the first contention advanced by the learned Counsel for the petitioner. I must also place on record the other contentions advanced by the learned Counsel for the petitioner, coveting quashing of the impugned order of suspension.
(a) The orders of extending the period of suspension one dated 14.7.1987, extending the period of suspension from 29.7.1987 until the end of 28.1.1988; and the other dated 27.1.1988, granting further extension of suspension from 29.1.1988 to 28.7.1988 or till the disciplinary proceedings pending against the petitioner are disposed of, were not at all communicated to the petitioner and hence they must be held to be not effective and the impugned order of suspension, assuming it is tenable in law, must be deemed to have lapsed long back.
(b) The first order of extension of suspension was not made effective before the lapse of the initial period of suspension and that brought about a hiatus and hence the extension not having been brought about before such lapse could be of no avail and consequently the second order of extension of suspension was also inefficacious.
(c) The impugned order of suspension does not satisfy the norms set out in the Government Order and it is not claimed in the counter-affidavit of the respondent and it is not substantiated before this Court that the continuance of the petitioner in Service would be clearly detrimental to the public interest, in that it would give the petitioner an opportunity to continue the mal-practices, alleged against him, or tamper with the investigation into the mis-conduct, alleged against him.
(d) The petitioner has been kept under suspension unduly for a long time and practically this has turned out to be unreasonable and penal in nature, Without the petitioner being punished in any disciplinary action.
I have no occasion to go into the above contentions raised by the learned Counsel for the petitioner, since I have sustained the first contention put forth by him. Accordingly, this writ petition is allowed. No costs. The petitioner must be deemed to be in service, entitled to all the service benefits without reference to the impugned order of suspension, which stands quashed.