Madras High Court
G.Anil Kumar vs Tamil Nadu Trade Promotion ... on 26 September, 2011
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:26.09.2011 Coram: THE HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.P. No.11087 of 2010 M.P.Nos.1,2,3 of 2010 G.Anil Kumar .. Petitioner vs. 1.Tamil Nadu Trade Promotion Organization Rep. by its Managing Director, Chennai Trade Centre Complex, Mount Poonamallee Road, Nandambakkam, Chennai 600089. 2.Mr.K.S.Kandasamy Managing Director, Tamil Nadu Trade Promotion Organization Chennai Trade Centre Complex, Mount Poonamallee Road, Nandambakkam, Chennai 600089. 3.Mr.M.Vallalar .. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus to call for the concerned records from the first respondent, to quash the order of the first respondent dated 03.05.2010, bearing No.TNTPO/01/DP/2010 and consequently direct the first respondent to reinstate the petitioner in service with all attendant benefits. For Petitioner : Mr.Balan Haridas For Respondent : Mr.M.Krishnappan Senior counsel for Mr.S.Ravichandran for R1 Mr.S.Sairaman for R3 O R D E R The petitioner, working as a Manager (Marketing), in the first respondent organization, which is a joint venture of Indian Trade Promotion Organization, Government of India and Tamil Nadu Industries Development Corporation, a Government of Tamil Nadu organization, has filed this writ petition, challenging the proceedings dated 05.03.2010, placing him under suspension. The second respondent is the Managing Director of the first respondent organization and the third respondent was the former Managing Director of the first respondent and they have been impleaded in their personal capacity, since certain allegations of malafides have been made against them. 2. M.P.No.2 of 2010 has been filed to amend the prayer in the writ petition to quash the order of suspension dated 30.05.2010 and the charge memo dated 28.05.2010 and to direct the first respondent to reinstate the petitioner and M.P.No.3 of 2010, has been filed to raise additional grounds. 3. The petition for amendment of the prayer is stoutly opposed by the respondents and a separate counter affidavit has been filed by the first respondent in M.P.Nos.2 & 3 of 2010. 4. Before the matter is taken up on merits, the miscellaneous petitions in M.P.Nos.2& 3 of 2010 are taken up for consideration, since preliminary objection has been raised as regards the maintainability of the petitions. 5. According to the petitioner, the petition to amend the prayer is maintainable since the charge sheet was issued subsequently after the writ petition was filed, challenging the order of suspension and therefore, the petitioner should be permitted to amend the prayer to quash the order of suspension as well as the charge sheet. It is to be noted that the order of suspension has been primarily challenged on the grounds of malafide and violation of the Tamil Nadu Trade Promotion Organization Employees (Conduct, Discipline and Appeal) Rules and the notification issued by the Government of India. The charge memo has been challenged not only on the ground of malafide, but the petitioner has also raised several factual issues in the affidavit and contended that the allegations in the charge memo are not tenable. In any event, the order of suspension came to be passed on 03.05.2010 placing the petitioner under suspension with immediate effect until further orders issued by the first respondent. Therefore, even assuming the charge memo is set aside, it does not automatically follow with an order of reinstatement. Likewise if the order of suspension is held to be either erroneous or unsustainable it does not automatically follow that the charge memo would be void. That apart, it has been pointed out that the reason for placing the petitioner under suspension and the cause of action for issuing the charge memo are different. Therefore, the challenge to the charge memo at this stage is not permissible more so when the enquiry officer has been appointed on 23.06.2010 to conduct the domestic enquiry and the petitioner had sent a letter even earlier requesting the management to furnish the relied on documents and a letter was also sent by the petitioner on 26.06.2010 and the copies of the documents sought for by the petitioner has been furnished. At this stage, the present application for amendment has been filed on 07.10.2010. Further it has been pointed out by the first respondent that the petitioner filed another writ petition in W.P.No.21960 of 2010 which was allowed on 21.10.2010, with liberty to the first respondent to proceed with the charge memo dated 28.05.2010, by permitting the petitioner to avail the assistance of a public servant who is in service to assist him. For better appreciation the order is quoted below:- The prayer in the writ petition is to quash the order of the second respondent dated 24.8.2010 and consequently direct the respondents to conduct the enquiry afresh in respect of Charge Sheet dated 28.5.2010 by permitting the petitioner to avail the assistance of a Public Servant as permitted under explanation to Rule 27 of the Tamil Nadu Trade Promotion Organisation Employees (Conduct, Discipline and Appeal) Rules. 2. The learned Senior Counsel for the first respondent, on instructions, submits that the writ petition may be ordered with a direction to the first respondent to give the assistance of a public servant, who is in service as requested in the prayer made in the writ petition. 3. In view of conceding of the prayer by the learned Senior Counsel for the first respondent, the writ petition is disposed of with liberty to the first respondent to proceed with the charge memo dated 28.5.2010 by permitting the petitioner to avail the assistance of a public servant, who is in service. No costs. Consequently, connected miscellaneous petition is closed. For all the above reasons, the preliminary objection raised by the first respondent is sustained and M.P.Nos.2 & 3 of 2010 are dismissed. 6.As noticed above, the challenge in this writ petition is to an order passed by the first respondent placing the petitioner under suspension. The petitioner joined the Indian Trade Promotion Organization, a Government of India enterprise, during 2000, as a Deputy Manager. The petitioner was deputed to the first respondent and his services were absorbed by the first respondent as Manager (Marketing) w.e.f 30.09.2003. According to the petitioner he has been discharging his duties sincerely and efficiently and in his confidential report his superiors have ranked him outstanding. In paragraphs 5 to 11 of the affidavit, the petitioner has made various allegations of malafides against the respondents 2 & 3 and contended that since the petitioner submitted an application under the RTI Act, seeking information about the illegal appointment of the Manager (Accounts) and about the tender process, in order to keep the petitioner away from the office, he has been placed under suspension. By way of an additional affidavit, the petitioner has raised contention stating that under the Service Rules of the first respondent, there is no Rule which governs the suspension and therefore, the Central Civil Services (C.C.A) Rules would apply and since the order of suspension has not been reviewed for more than 90 days, the suspension automatically lapses and the petitioner is entitled to be reinstated. In support of the said contention, the learned counsel placed reliance on the decision of the Delhi High Court in Shri.N.K.Sethi vs. India Trade Promotion Organization, 118(2005) DLT 181. 7. The learned counsel appearing for the petitioner after reiterating the averments in the affidavit would contend that the impugned order of suspension is actuated with bias and it is sufficient if the likelihood of bias is established. In support of the said contention, the learned counsel placed reliance on the decisions of the Hon'ble Supreme Court in (1987) 4 SCC 611,[Ranjit Thakur vs. Union of India, and others], (1991) 1 SCC 104,[Dr(MRS Kirti Deshmankar vs. Union of India and others], (1995) Suppl (1) SCC 21[Tilak Chand Magatram Obhan vs. Kamala Prasad Shukla and others], (2010) 10 SCC 539 [Mohd. Yunus Khan vs. State of Uttar Pradesh and others] and other decisions in support of his contention that bias may be defined as a preconceived opinion or predetermination to decide a case in particular manner as a result of which it does not leave the mind open to conviction. 8. The learned Senior counsel appearing for the respondents 1 & 2 by relying upon the counter affidavit would contend that the allegations of malafide and bias have been emphatically denied in the counter affidavit and no part of the allegation is true. Paragraphs 8 to 16 of the counter affidavit are in reply to the allegations of malafide made by the petitioner in the writ affidavit. It is further submitted that suspension is not a punishment and it is only the first step in a disciplinary proceedings and there are no grounds to challenge the order of suspension. The learned Senior counsel placed reliance on the decisions of the Hon'ble Supreme Court in 1999 (1) CLR 1032 [M.Paul Antony (Capt) vs. Bharat Gold Mines Ltd], AIR 1977 SC 1466[State of M.P. vs. State of Maharashtra], 1989 LIC 1750 [D.Utrhirakumaran vs. Government of TN] and AIR 1957 SC 82[Lakshmi Devi Sugar Mills Ltd vs. Ram Sarup]. The learned Senior counsel also placed reliance on the decision of the Hon'ble Division Bench of this Court in Superintendent of Police vs. V.K.Kuppuraj, 2008 6 MLJ 583, for the proposition that the power to suspend an employee is the discretion of the employer and in view of the serious allegations against the petitioner, the management placed him under suspension and they were fully justified in doing so. 9. The learned counsel appearing for the third respondent by relying upon the counter affidavit submitted that the third respondent worked as the Managing Director of the first respondent between 21.02.2007 and 01.03.2009 and during that period several reforms have been implemented in Chennai Trade Centre and he acted within the frame work of the Rules and Regulations. Further it is submitted that the petitioner has levelled allegations against all officers of the first respondent except himself and it shows his diabolic and malicious attitude. The other allegations made in the writ affidavit have been denied by the third respondent in his counter affidavit. The third respondent has further stated that the writ petition has been filed against him with a malafide intention to spoil his image and his submissions as stated in the counter affidavit are without prejudice to his rights to proceed against the petitioner for defamation. 10. The learned Senior counsel for the first respondent submitted that the decision of the Delhi High Court has no application to the facts of the case and it relates to Rules or instruction issued by the Central Vigilance Commission (CVC) and therefore, the order of suspension should not be interfered. The writ petitioner has filed a reply affidavit denying the allegations made by the first respondent in the counter affidavit. 11. Heard the learned counsels for the parties and perused the materials available on record. 12. Before we proceed to consider the factual matrix of the case, it would be first desirable and proper to consider the legal issue raised by the petitioner by contending that under the Service Rule of the first respondent organization, there is no rule which governs the order of suspension and therefore, the provision of CCS (CCA) Rules would apply and if the same is applied, an order of suspension which has not been reviewed would automatically lapse. 13. The Board of the first respondent organization in its meeting held on 03.12.2008, approved the Employees (Conduct, Discipline and Appeal) Rules and the same came into effect from 03.12.2008 to all the employees of the first respondent. Rule 5 deals with misconduct, Rule 9 prohibits an employee to have any connection with press or radio, Rule 21 deals with suspension, Rule 23 relates to payment of subsistence allowance and Rule 25 about the penalties which may be imposed on an employee. Rule 27 deals with procedure for imposing major penalties, Rule 29 deals with procedure for imposing minor penalties and Rule 35 specifies the Appellate Authority. Rule 39 states that notwithstanding anything contained in the Rules, the CVC shall exercise jurisdiction over the employees of the first respondent and clarifications on any corresponding rules issued by the CVC and the Government from time to time shall be applicable to the employees of the first respondent. Rule 42 confers on the Board, the power to modify or add to the Rules and states that whenever the Rule is silent and need further clarification, the Rules of the Central Government will be applied. For the purpose of this case, Rule 22, 39 and Rule 42 would be relevant and for easy reference they are quoted below:- "SUSPENSION 22 (1) The Appointing Authority of any authority to which it is subordinate or the Disciplinary Authority or any other authority empowered in that behalf by the Board of Directors by general or special order may place an employee under suspension: (a) where a disciplinary proceeding against him is contemplated or is pending; or (b) where a case against him in respect of any criminal offense is under investigation or trial. (2) An employee who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours shall be deemed to have been suspended with effect from the date of detention, by an order of Appointing Authority, and shall remain under suspension until further orders. (3) Where a penalty of dismissal or removal from service imposed upon an employee under suspension is set aside on 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 or removal and shall remain in force until further orders. (4) Where a penalty of dismissal or removal from service imposed upon an employee 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 consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, the employee shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal or removal and shall continue to remain under suspension until further orders. (5) An order of suspension made or deemed to have been made under this Rule, may, at any time, be revoked by the Organization which made or is deemed to have made the order of by any authority to which that authority is subordinate." 39.Miscellaneous:- Notwithstanding anything contained in these rules, the Central Vigilance Commission shall exercise jurisdiction over the employees of the Authority and the vigilance and anti-corruption rules/instructions, order and clarifications on any corresponding rules, issued by the Central Vigilance Commission and the Government from time to time shall be applicable to the employees of the Authority. 42.Amendments:- The Board may amend, modify or add to these rules, from time to time, and all such amendments notifications or additions shall take effect from the date stated therein. Wherever the rule is silent and need further clarification, the rules of the Central Government will be applied. 14. As noticed above, Sub-Rule 1 of Rule 22, empowers the appointing authority of any authority to which it is subordinate or the disciplinary authority or any other authority empowered by the Board to place an employee under suspension, when disciplinary proceedings against him is contemplated or pending or where a case against him in respect of any criminal offence is under investigation or trial. Sub-Rule 2 of Rule 22 deals with deemed suspension, which is not relevant for the purpose of this case. Sub-Rule 3 of Rule 22, states that even when a penalty of dismissal or removal is set aside on appeal and remitted for further enquiry, the order of suspension shall deem to continue. Sub-Rule 4 of Rule 22, states that if the penalty of dismissal imposed on an employee, if rendered void or set aside by a Court of law and if the disciplinary authority considers it necessary to hold a further enquiry, the employee shall be deemed to have been placed under suspension from the original date. Sub-Rule 5 of Rule 22, gives power to revoke the order of suspension. 15. As noticed above, in terms of Rule 22(5) there is power to revoke an order of suspension, but the Rules are silent as regards the power to review the order of suspension. Therefore, it is contended by the petitioner that the provisions of the CCS(CCA) Rules would apply and the amendments to the Central Government Rules have to be incorporated in the Service Rule of the respondent organization and if the Service Rules are silent, the Rules of the Central Government will automatically apply in view of the Rules 39 and 42 of the Service Rules. 16. In exercise of the powers conferred by proviso to Article 309 and clause 5 of the Article 148 of the Constitution, a notification was issued amending the CCS(CCA) Rules termed as CCS(CCA) Amendment Rules 2003 and in Rule 10 after the Sub-Rules, the following Sub-Rules were inserted and the same came into force on 19.03.2004:- "(6). An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority competent to modify or revoke, the suspension, before the expiry of ninety days from the date of order of suspension, on the recommendation of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension. Subsequent reviews shall be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time. (7) Notwithstanding anything contained in sub-rules, an order of suspension made or deemed to have been made under sub-rules (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days." 17. The Government by office memorandum dated 07.01.2004 issued certain instructions for review of the order of suspension passed against Government servants and it is useful to refer to the said office memorandum, which reads as follows:- "No. 11012/4/2003-Estt. Government of India Ministry of Personnel, P.G. & Pensions (Department of Personnel & Training) New Delhi, dated the 7th January,2004 OFFICE MEMORANDUM Sub: Suspension of Government Servants-Review of- Instructions reg. The undersigned is directed to say that Rule 10 (Suspension) of the CCS (CCA) Rules,1965 is being amended to provide that an order of suspension made or deemed to have been made under this Rule,1965 is being amended to provide that an order of suspension made or deemed to have been made under this Rule shall be reviewed by the competent authority on recommendation of the Review Committee constituted for the purpose. It is also being provided in the Rules that an order of suspension made or deemed to have been under sub Rules (1) or (2) of Rule 10 shall not be valid after 90 days unless it is extended after review for a further period before the expiry of 90 days. It is further being provided that extension of suspension shall not be for a period exceeding 180 days at a time. (Copy of Notification is enclosed). 2. It is, Therefore, necessary to constitute Review Committee(s) to review the suspension cases. The composition of Review Committee(s) may be as follows:- I. The disciplinary authority, the appellate authority and another officer of the level of disciplinary/ appellate authority from the same office or from another Central Government office (in case another officer of same level is not available in the same office, in a case where the President is not the disciplinary authority or the appellate authority. II. The disciplinary authority and two officers of the level of Secretary/ Addl. Secretary/ Joint Secretary who are equivalent or higher in rank the disciplinary authority from the same office or from another Central Government ( in case another officer of same level is not available in the same office), in a case where the appellate authority is the President. III. Three Officers of the level of Secretary/Addl.Secretary/Joint Secretary who are higher in rank than the suspended official from the same department/office or from the Central Government Department/Office (in case another officer of same level is not available in the same office), in a case where the disciplinary authority is not the President. The administrative ministry/ department/ office concerned may constitute the review committees as indicated above on a permanent basis or ad hoc basis. 3. The Review Committee(s) may take a view regarding revocation/continuation of the case and also taking into account that unduly loan suspension, while putting the employee concerned to undue hardship involve payment of subsistence allowance without the employee performing any useful service to the Government. Without prejudice to the foregoing if the officer has been under suspension for one year without any charge being filed in the Court of law or no charge memo has been issued in prejudice to the case against him. However, in case the officer is in police/judicial custody or is accused of a serious crime or a matter involving national security, the review committee may recommend the continuation of the suspension of the official concerned. 4. In so far as persons serving in the Indian Audit and Account Department are concerned, these instructions are issued in consultation with the Comptroller and Auditor General of India. 5. All Ministries/Departments are requested to bring the above instruction to the notice of all disciplinary authorities under their control and ensure that necessary Review Committees are constituted accordingly. It may also be impressed upon all concerned that lapsing of any suspension order on account of failure to review the same will be viewed seriously." 18. The learned counsel for the petitioner would contend that the above notification is binding on the first respondent and since the order of suspension was not reviewed within a period of 90 days, it automatically lapses. Admittedly, the impugned order of suspension has been passed after the issuance of the above notification by the Government of India. Therefore, the question which arises for consideration is as to whether the impugned order of suspension automatically lapses in view of the notification of the Government of India referred above. Infact this question is no longer res-integra and has been decided by the Delhi High Court in the case of N.K.Sethi, referred supra, wherein identical question was raised before the Hon'ble Delhi High Court and after analyzing the Service Rules of the ITPO, which are identical to that of the Service Rule of the first respondent, it was held as follows:- 14. The said rule makes instructions, orders and clarifications with regard to any corresponding rules issued by the CVC and the Government as well, applicable to ITPO. The rules starts with the non obstinate clause:- "Notwithstanding anything contained in these rules.......". The provision is of wide amplitude and makes the above instructions, orders and clarifications by CVC as well as Government applicable. The Notification dated 23.12.2003 had been issued by the Government amending sub-rules 6 and 7 of Rule 10 of the CCS (CCA) Rules,1965. The said Notification is issued in the name of the President. The said Notification prescribes for review of suspension within a stipulated time frame and the procedure therefore. The records of the respondents had been called and perused. The records and processing of the case of suspension of the petitioner shows that the respondents were duly aware and in the knowledge of the Notification dated 23.12.2004 and the Office Memorandum dated 7.1.2004 issued pursuant thereto. In fact the respondents have constituted the Review Committee in accordance with the procedure laid down in the Memorandum and the case was reviewed by the Committee so constituted. 15. The learned senior counsel when confronted with this situation submitted that they had followed the amendments in sub-rules 6 and 7 and applied them in principle to their Department and had accordingly constituted the Committees but that does not bind them to the period of limitation within which the review was to be carried out as there is no such period in their rules. I am unable to accept this contention. Rule 39 of the ITPO Employees (Conduct Discipline and Appeal) Rules, as noted earlier, itself provides that rules, instructions, orders and clarification on any corresponding rules issued by CVC or the Government would be applicable to the employees of the authority. The said Notification dated 23.12.2003 and the Office Memorandum dated 7.1.2004 would fall within the ambit of instructions, orders and clarifications issued by the Government. The respondents themselves have accepted the application of these rules by Constituting the review committees in accordance with the said provisions. It is idle for the respondents to contend that while the review committees are constituted in accordance with the Memorandum and the amended rules, the provisions relating to time period for review, as provided under the CCS (CCA) Rules,1965 would not be applicable. The said contention is devoid of merit. Respondents having failed to review the petitioner's case for suspension within the stipulated period as noted above the suspension is liable to be revoked and is hereby revoked. Nothing stated herein before shall be taken as an expression of opinion on the merits of the petitioner's case and/or as curtailing the respondent's power of suspension, as permissible under the Rules. The writ petition is allowed in the above terms. 19. It is submitted by the learned counsel for the petitioner that no appeal has been preferred against the above judgment rendered on 22.02.2005 and the same has become final. One other noteworthy feature is that the respondent organization is a joint venture organization of the ITPO and TIDCO and the Service Rule of the ITPO and the first respondent organization are pari-materia. Thus the decision of the Hon'ble Delhi High Court binds the first respondent organization and in the absence of any appeal against the said decision, it binds the parties inter-se as ITPO was the respondent in the said writ petition before the Delhi High Court. 20. As noticed above, Rule 39, makes it manifestly clear that not only provides that the Vigilance and Anti-Corruption Rules/Instructions, but also order and clarifications on any corresponding rules issued by the CVC and the Government from time to time shall apply to the employees of the respondent organization. Further, the Delhi High Court has recorded a finding that the ITPO themselves have accepted the application of the Rules by constituting a review committee in accordance with the provisions of the notification. Therefore, in the absence of any review to the order of suspension as statutorily required to be done, it is held that the impugned order of suspension is not valid after a period of 90 days from the date on which it was issued namely 03.05.2010. 21. In view of the above finding, this Court has not gone into the allegations of malafide and bias and consequently, the decisions cited at the bar on this aspect have not been dealt with. 22.In view of the above finding, the writ petition is allowed and the impugned order of suspension dated 05.05.2010 is quashed. M.P.No.1 of 2010 is closed and M.P.Nos.2&3 of 2010 are dismissed for the reasons stated above. No costs. 26.09.2011 Index : Yes/No Internet: Yes/No pbn T.S.SIVAGNANAM,J.
Pbn To Tamil Nadu Trade Promotion Organization Rep. by its Managing Director, Chennai Trade Centre Complex, Mount Poonamallee Road, Nandambakkam, Chennai 600089.
Pre-Delivery Order in W.P. No.11087 of 2010 26.09.2011