Madras High Court
C.Tamil Selvan vs The Executive Officer on 2 September, 2020
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
W.P.(MD) Nos.10744 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.09.2020
CORAM:
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD)No.10744 of 2020
and
W.M.P.(MD) Nos.9464 & 9466 of 2020
C.Tamil Selvan ... Petitioner
Vs.
The Executive Officer,
Selection Grade Town Panchayat,
Srivaikundam,
Thoothukudi District ... Respondent
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India to issue a
Writ of Certiorarified Mandamus, to call for the records on the file of the Respondent in
connection with the Impugned Order of Suspension passed by him in his Proceedings in
Na.Ka.No.390/2016 dated 23.09.2016 and consequent Impugned Letter of rejection
passed by him in his Proceedings in Na.Ka.No.390/2016 dated 10.08.2020 and quash
both as illegal and arbitrary and consequently direct the respondent to reinstate me in
service within the time limit that may be stipulated by this Court.
For Petitioners : Mr.G.Thalaimutharasu
For Respondent : Mrs.J.Padmavathi Devi,
Special Government Pleader
******
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W.P.(MD) Nos.10744 of 2020
ORDER
The prayer sought for in this Writ Petition is for a Writ of Certiorarified Mandamus, to call for the records on the file of the Respondent in connection with the impugned order of suspension passed by him in his Proceedings in Na.Ka.No.390/2016, dated 23.09.2016 and consequent impugned letter of rejection passed by him in his proceedings in Na.Ka.No.390/2016, dated 10.08.2020 and quash the same and consequently direct the respondent to reinstate the petitioner in service within the time limit that may be stipulated by this Court.
2. The petitioner was working as an Electrician at the respondent Town Panchayat. While so, in connection with the criminal case in Crime No.169/2016 on the file of Navi Mumbai (MS) Police Station at Maharashtra , the said Maharashtra police had arrested the petitioner on 16.09.2016 and accordingly, he had been in judicial custody for some time.
3. The said issue triggered the respondent to pass the order dated 23.09.2016 placing the petitioner under suspension with effect from 16.09.2016.
4. Subsequently, the petitioner was enlarged on bail by the orders of the concerned criminal court at Thane in the State of Maharashtra on 15.03.2017. In the meanwhile, charge sheet also has been filed in the concerned criminal court at Maharashtra, by the prosecution, where, charges framed against the petitioner are the punishable offences under sections 201 and 414 of I.P.C. http://www.judis.nic.in 2/16 W.P.(MD) Nos.10744 of 2020
5. Since no further progress was made in the criminal case, at that juncture, in the year 2018, the petitioner moved this Court by filing W.P.(MD) No.13449 of 2018 seeking to challenge the impugned suspension order dated 23.09.2016. However, where the learned counsel , who appeared for the petitioner in that writ petition, since had taken a stand that, instead of going to the correctness of the impugned suspension order dated 23.09.2016, the Court can simply issue a Mandamus by way of direction to the respondents to review the suspension order dated 23.09.2016. Accordingly, this Court by order dated 25.06.2018 passed the following order:-
“5. Considering the limited scope of the relief sought for by the petitioner as well as taking into account the submissions made by both sides, this writ petition is disposed of, with the consent of both sides at the admission stage itself, with the following direction:-
'that the second respondent is directed to consider the representation of the petitioner dated 24.04.2017, on merits and in accordance with law and pass orders thereon, by taking into account the law declared by the Hon'ble Apex Court in the case of Ajay Kumar Choudhary vs. Union of India and another reported in 2015 (7) SCC 291, within a period of six weeks from the date of receipt of a copy of this order. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.” http://www.judis.nic.in 3/16 W.P.(MD) Nos.10744 of 2020
6. Pursuant to the orders passed by this Court, the respondents on 28.09.2018, after considering the review of the suspension order has rejected the same by giving the following reasons:
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In view of the above settled policy of the Government for at least temporarily keeping away the corruption – charged public servants and/or the public servants charged on their moral-turpitude either on their official and / or private capacity, till they are exonerated of the grave charges, by way of keeping them under suspension from public service so as to encourage cleanliness in the effective delivery of public services to the general public, it is clarified that the instructions issued already in Govt.Letter No.13519/N/2015-1 dated 23.07.2015 to the effect that the time limit of three months on suspension cases specified therein, are applicable only to the suspension cases arising out of departmental disciplinary inquiries pertaining to non-vigilance and / or any non-criminal cases, in view of the admitted fact that the gravity of the Vigilance / Criminal cases is alarmingly more, than that of the seriousness of the non-vigilance / non- criminal cases in which allegation of corruption is not dealt with.” NkYk; khz;GkpF nrd;id cah;ePjp kd;w kJiu fpisapy; njhlug;gl;l tof;fpy; tof;F vz;.WP(MD)No.12765/2016-d; kPJ 23.04.2017- Mk; Njjpapy; gpwg;gpf;fg;gl;l ePjpg;Nguhizapy; fPo;fz;Ls;sthW jPh;g;gspf;fg;gl;Ls;sJ.
P.Ramachandran, Inspector of Police, (Under Suspension), Sivakasi Town Circle Police Station vs Deputy General of Police, O/o the Deputy Inspector General of Police, Madurai Range, Madurai.
http://www.judis.nic.in 4/16 W.P.(MD) Nos.10744 of 2020 “Since the Government has already clarified that the time limit of three months on suspension are applicable only to the suspension cases arising out departmental disciplinary enquiries pertaining to non-vigilance and/or non criminal cases, the continuous suspension of the petitioner in the present case pending criminal cases where it was alleged that the petitioner was caught red handed while accepting the bribe cannot be faulted and this Court is not inclined to pass the order on the basis of the judgments relied upon by the learned Senior counsel for the petitioner which are distinguishable on facts. Suspension pending disciplinary proceedings and suspension pending criminal trial for serious offences are distinguishable and the distinction has been cautiously maintained by Courts. The clarification of Government in this regard is appropriate and acceptable.
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kDjhuh; jpU.nr.jkpo;nry;td; vd;gth; kPJ fLk; Fw;w epfo;T njhlh;ghd tof;fpy; Kk;ig (NRI) fhty; epiyaj;jpy; Fw;wtpay; tof;F vz;.169/2016 vd gjpT nra;ag;gl;Ls;sJ. mjpy; kDjhuh; kPJ Fw;wtpay;
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W.P.(MD) Nos.10744 of 2020
nghUe;jhJ vd njhptpf;fg;gl;Ls;sjd;gb kDjhuh; kPJ fLk; Fw;w epfo;T njhlh;ghd Fw;wtpay; tof;fpy; Fw;wgj;jphpf;if jhf;fy; nra;ag;gl;L Fw;wtpay; tof;F ePjpkd;w eltbf;ifapy; cs;s epiyapy; kDjhuhpd; Nfhhpf;ifapd; gb jdpahpd; jw;fhypf gzp ePf;fj;jpid uj;J nra;a ,ayhJ vd;w tpguk; njhptpj;Jf; nfhs;sg;gLfpwJ.
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7. Not satisfied with the said order, once again, the petitioner seems to have made a request to the respondent on 29.05.2020 to review the suspension and this time also, the respondent by latest order dated 10.08.2020, which is also impugned herein, has rejected the request of the petitioner, to review the suspension, where, the respondent has extracted the earlier order dated 28.09.2018 and reiterated the same and accordingly rejected the request.
8. Therefore, at this juncture, challenging the original order of suspension dated 23.09.2016 and the latest rejection order dated 10.08.2020, the petitioner has filed this writ petition with the aforesaid prayer.
9. Heard Mr.G.Thalaimutharasu, learned counsel appearing for the petitioner, who would submit that, the petitioner, no doubt is A-5 in the criminal case, against whom, charge under sections 201and 414 of IPC has been framed and this has been considered at the time of enlarging the petitioner on bail by the concerned criminal Court, where the learned Judge of the criminal Court has observed as follows:-
http://www.judis.nic.in 6/16 W.P.(MD) Nos.10744 of 2020 “5. Applicant is arrested from his house. He is serving where the accused no.4, wife of accused no.6 is serving. Nothing is recovered from the applicant. At the instance of accused no.4, applicant has mortgaged some ornaments with goldsmith from whom the same is recovered. From the death certificate, it can be gathered that the family members of the accused died on 16.09.2016 at '167A, South Car street, Alwarthirunagiri, Thoothukudi District'. At the most, it can be gathered that knowingly the property was stolen. Applicant has helped accused no.4 to melt the said ornaments. So he can be tried for the offences u/s 201 and 414 of I.P.C. Investigation is completed and charge-sheet is filed. Having considered the facts and circumstances of the case, in my view, further custody of applicant is not required. Hence, the order.”
10. Relying upon the said observation, the learned counsel would submit that, A-4 in the criminal case is none other the office colleague of A-5 and A-6 is none other than the husband of A-4. A-6 being the main accused in the criminal case, allegedly has stolen some golden ornaments from Mumbai and brought to Srivaikundam, where through A-4, i.e. wife of A-6, as he allegedly wanted to melt the ornaments, A-4 seems to have requested A-5 i.e. the petitioner, to introduce or fix a gold smith and in view of the said request made by A-4, being a office colleague of A-5, A-5/ the petitioner seems to have introduced the gold smith.
11. That is the reason why A-5 also has been implicated in the criminal case, where charge has been framed against him for the alleged offences, punishable under sections 201 and 414 of IPC.
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12. Therefore, the learned counsel appearing for the petitioner would submit that, the reasons stated in the order dated 10.08.2020 reiterating the earlier order dated 28.09.2018, based on the guidelines issued by the Government, as to the procedure to be adopted by the Disciplinary Authorities to review the suspension within three months interval in view of the judgment rendered by the Hon'ble Supreme Court in Ajay Kumar Choudhary vs Union of India (UoI) and others reported in 2015 (7) SCC 291 is unsustainable, because, according to the learned counsel for the petitioner, the petitioner's case cannot come under the purview of any Vigilance and Anti Corruption issue and there has been no serious allegation in the criminal case made against the petitioner except the charges punishable under sections 201 and 414 of IPC. Therefore, the learned counsel for the petitioner would submit that, the reason stated in the impugned order rejecting the request of the petitioner to review the suspension may not be justifiable. Hence, the learned counsel would seek indulgence of this Court to interfere with the impugned orders.
13. However, Mrs.J.Padmavathy Devi, learned Special Government Pleader appearing for the respondent would submit that, since there has been a serious criminal case pending against the petitioner, where charge sheet also has been filed, the principle laid down in Ajay Kumar Choudhary vs Union of India (UoI) and others, referred to above, to review the suspension within a period of three months interval, may not be strictly applicable to the facts of the present case.
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14. She would also submit that, whether the petitioner has committed any crime punishable under sections 201 & 414 of IPC or not, or the petitioner is an innocent, can only be decided by the competent criminal Court, where charge sheet already been laid and according to the instructions, the trial is on.
15. When that being the position, the present rejection order passed by the respondent is in tune with the clarification or directives issued by the State Government, in respect of the procedure to be adopted for reviewing the suspension or prolonged suspension made against the erring staff or employees. Therefore, the said impugned order does not require any interference from this Court, she contended.
16. I have considered the said submissions made by the learned counsel appearing on both sides and perused the materials placed before this Court.
17. The uncontroverted facts are that, the petitioner was arrested in connection with the criminal case, where, charge has been filed for the alleged offences punishable under sections 201 and 414 of IPC.
18. Section 201 of Indian Penal Code reads thus:
“201. Causing disappearance of evidence of offence, or giving false information to screen offender — http://www.judis.nic.in 9/16 W.P.(MD) Nos.10744 of 2020 Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;
If a capital offence.—shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
If punishable with imprisonment for life.—and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
If punishable with less than ten years’ imprisonment.—and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.”
19. Like that, Section 414 of Indian Penal code reads thus:
414. Assisting in concealment of stolen property — Whoever voluntarily assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
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20. These two punitive sections of I.P.C. speaks about causing disappearance of evidence and assisting in concealment of stolen property.
21. This has exactly been observed by the learned Judge while enlarging the petitioner on bail to state that, if at all any charge has to be framed against the petitioner, that must be only under Sections 201 and 414 of IPC.
22. In this context, the learned counsel appearing for the petitioner submitted that, since A-4, wife of A-6, who is the main accused, is the office colleague of A-5/ petitioner, when she asked for introduction of gold smith in the locality, since the petitioner is a local man, in order to help the office colleague, he introduced a goldsmith.
23. He would further submit that, for what purpose, A-6 required the gold smith is not known to the petitioner.
24. The aforesaid submission made by the learned counsel appearing for the petitioner can, prima facie taken into account but, whether intentionally the petitioner introduced the gold smith to A-6 or only in order to help the office colleague, he introduced the gold smith, are all the matters for trial which is pending before the concerned Court.
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25. However, the purpose of this writ petition is, as to whether, the charge framed against the petitioner for the offences punishable under sections 201 ad 414 of IPC can be put under the parameters fixed by the Government through their clarification and as to what procedure to be followed in respect of reviewing the suspension when such a request is made due to prolonged suspension in the light of the law declared by the Hon'ble Apex Court in Ajay Kumar Choudhary vs Union of India (UoI) case.
26. If we take up the nature of the offence as alleged against the petitioner in the criminal case is concerned, certainly, it would not come under the purview of Vigilance and Anti corruption.
27. Unless and until the accused is tried and found guilty, the Law will presume that, the accused is an innocent. This is the settled legal proposition in the criminal jurisprudence.
28. Insofar as the service conditions of the petitioner is concerned, he is an employee of the respondent and since he is placed under prolonged suspension from 2016, he is getting subsistence allowance every month, thereby, the money of the Government or the respondent Town Panchayat is considerably being paid to the petitioner without extracting any work.
29. These are all the circumstances having been considered by the Hon'ble Supreme Court in Ajay Kumar Choudhary\'s case, where, yet another circumstance also was taken into account by the Hon'ble Supreme Court to state that, if an employee http://www.judis.nic.in 12/16 W.P.(MD) Nos.10744 of 2020 is kept under prolonged suspension, without showing any progress, either in the departmental proceedings or in the criminal case, the tainted atmosphere, where he or she is placed, would be a social stigma to the employee concerned. In such kind of social stigma, an employee cannot be kept under prolonged period unendingly. The reason being that, in the locality, where the employee with prolonged suspension is residing, he has to earn a very bad reputation in the minds or in the estimation of the colleagues, friends, relatives and in all walks of life in the Society, where the employee is moving. In that kind of pathetic situation, no employee can be placed under suspension for an unending period.
30. This has been emphasized and underlined by the Hon'ble Apex Court in the said case referred to above. Therefore, this Court feels that, the petitioner, for the reasons cited in the impugned order, that, his suspension cannot be reviewed in view of the guidelines given by the Government that, the review in once in three months theory would not be applicable to Vigilance and criminal cases with serious offences, may not, in the considered opinion of this Court, prima facie could be applied to the facts and circumstances the petitioner's case.
31. In the light of the above discussion and factual matrix, this Court feel that, the impugned order, dated 10.08.2020 reiterating the earlier stand taken by the respondent for not reviewing the prolonged suspension of the petitioner cannot be sustained.
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32. Resultantly, this Court is inclined to dispose of this writ petition with the following orders:
“ (i) that the impugned order, dated 10.08.2020 is hereby quashed;
(ii) the matter is remitted back to the respondent, where there shall be a direction to the respondent to reconsider the review proposal, as already indicated, to review the impugned suspension order passed against the petitioner on 23.09.2016 in the light of the law declared by the Hon'ble Apex Court in Ajay Kumar Choudhary's case, as well as the observations made herein above in this order;
(iii) It is made clear that, since the case of the petitioner may not come within the parameters of the Vigilance and Anti Corruption cases and also even in respect of criminal case, the charge against the petitioner is only for the alleged offences punishable under sections 201 and 414 of IPC, where, the trial, even though, is said to have been commenced, it will take some years to complete the same, as some of the accused in the case, said to have absconded; and hence, the aforesaid review exercise of the impugned suspension order shall be undertaken, as mentioned above, by the respondent and final orders to that effect be passed within a period of six weeks from the date of receipt of a copy of this order.”
33. With these directions, the writ petition stands disposed of. However, there http://www.judis.nic.in 14/16 W.P.(MD) Nos.10744 of 2020 shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
02.09.2020
Index : Yes
Internet : Yes
sts
Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. To:
The Executive Officer, Selection Grade Town Panchayat, Srivaikundam, Thoothukudi District http://www.judis.nic.in 15/16 W.P.(MD) Nos.10744 of 2020 R.SURESH KUMAR, J.
sts Order made in W.P.(MD)Nos.10744 of 2020 Dated:
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