Madras High Court
The Managing Director, Tamil Nadu ... vs S.V. Uthirapathi on 21 August, 1990
Equivalent citations: (1990)2MLJ534
JUDGMENT Nainar Sundaram, J.
1. This writ appeal is directed against the order of the learned single Judge in W.P. No. 15706 of 1989. The respondent in that writ v petition is the appellant, herein. The petitioner in that writ petition is the respondent herein. We are referring to the parties in this Judgment of ours as per their array in the writ petition. The petitioner, who was the senior Regional Manager under the respondent was visited with two memorandums of charges in disciplinary action; one dated 8.12.1982 and the other dated 10.12.1986. At present we are concerned only with the charge memorandum dated 10.12.1986. Though there had been agitations in the past over the processes taken in the disciplinary action against the petitioner, it is sufficient for the purpose of resolving the question coming up for consideration in this writ appeal, if we begin the narration of facts on and from. 10.11.1989, when by virtue of a decision of this Court in W.A.No.536 of 1988 and W.P.No.6837 of 1988, the order of dismissal Of the petitioner in the disciplinary action, passed on 5.4.1988 was quashed and liberty was given to the respondent to prosecute further proceedings on the two charge memorandums referred to above. On 21.11.1989 the respondent passed the order of suspension of the petitioner invoking Regulations 14(4), 14(8)and 18 of the Tamil Nadu Warehousing Corporation General and Staff Regulations, 1985, hereinafter referred to as the Regulations, read With Rule 17(e)(4) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, hereinafter referred to as the rules. The result of this order of suspension is the petitioner is deemed to have been under suspension from 5.4.1988, the date of the original order of dismissal, up to 10.11.1989, the decision of this Court in W.A. No.536 of 1988 and W,P.No.6837 of 1988 and further his suspension was continued from 11.11.1989 until further orders. The petitioner put this order of suspension in issue in W.P. No. 15706 of 1989, before the learned single Judge, who heard and disposed of this writ petition, it was contended on behalf of the petitioner that the subject of suspension has been dealt with in Regulation 14(4) of the Regulations and when such is the position, there is no scope for invoking Rule 17(a)(4) of the Rules under the cover of Regulation 18. We will have occasion presently to deal in detail with the Regulations and the rule referred to above, suffice it to state at this juncture, the learned single Judge accepted the contention advanced on behalf of the petitioner that Rule 17(a)(4) of the Rules, could not be invoked under the cover of Regulation 18 for the purpose of throwing an order of deemed suspension of the petitioner; and as a result, the learned single judge allowed the writ petition. However, liberty was given to the respondent to pass fresh orders on the same subject-matter in accordance with law. We are told that on the same day, namely 4.5.1990, when the learned single Judge made the order in the writ petition, a fresh order of suspension has been passed. But it must be noted here that the fresh order of suspension is only prospective and the respondent on principle and wants to maintain the invocation of Rule 17(e)(4) of the Rules for the purpose of passing an order of deemed suspension in the contingencies stated above. This writ appeal as already noted, is directed against the order of the learned single Judge. On notice of motion being ordered, Mr. S. Kishnaswamy represents the respondent. By consent of both the sides, the writ appeal itself is taken up today for final disposal on merits.
2. Mr. I. Mohaboob Sheriff, learned Counsel for the respondent, would submit that Regulation 18 has provided for invocation of the Rules for application mutatis mutandis where the Regulations are silent on the subject in question and Regulation : 14(4) which is dealing with the power to suspend an employee pending enquiry does not take in the subject of deemed suspension in the contingency stated above, and hence the invocation of Rule 17(e)(4) of the Rules is perfectly in order. Mr. S. Krishnasamy, learned Counsel for the petitioner, could not accept the proposition and he would submit that the entire subject of suspension has been settled by "and should be gleaned from Regulation 14(4) and hence there is no scope for going to Rule 17(e)(4) of the Rules.
3. To examine the point which arises on the submissions made by the learned Counsel for the respondent and the counter-submissions made by the learned Counsel for the petitioner, it becomes necessary to extract the relevant Regulations and the Rule referred to in the impugned order of suspension.
Regulation 14(4) reads as follows:
Authority to suspend an employee pending enquiry:
__________________________________________________ Rank of Authority to Appellate employee suspend Authority.
__________________________________________________
Class I and Managing Director Executive
II Committee
Class III to Chief Inspection Managing
& Storage Director.
Officer/Secretary
and Chief
Administrative
Officer in respect
of staff under their
control.
___________________________________________________
The employees may be placed under suspension pending enquiry into grave charges, where such suspension is necessary in the interests of the Corporation for facilitating enquiry into charges. The reasons for such suspension should be recorded in detail. The authority competent to suspend an employee may at his discretion sanction to him a subsistence allowance at a rate not exceeding half of-the substantive pay during the period of suspension. No employee shall be kept under suspension pending enquiry against him for a period exceeding one year without the specific orders of the Board of Directors.
Regulation 14(8) runs as follows:
If there be any doubt regarding the procedure to be adopted in the imposition of penalties or taking disciplinary action under this regulation, the procedure prescribed or used for the purpose of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules as amended from time to time shall be followed.
Here we must straightway say that we are not concerned with any doubt regarding the procedure to be adopted in the imposition of penalties or taking disciplinary action. It may not be relevant to concentrate on Regulation. 14(8) for the purpose of this case. Regulation 18 is in the following terms:
Application of rules, regulations and orders of the Government of Tamil Nadu: In respect of matters not specifically provided for in these regulations, the relevant provisions of the rules, regulations and orders of the Government of Tamil Nadu for the time being in force shall apply mutatis mutandis to the employees of the Corporation unless the Board by order direct otherwise.
4. Regulation 14(4) nowhere comes to the subject of deemed suspension where a necessity to continue the disciplinary action and hold further enquiry when the penalty of dismissal, removal or compulsory retirement from service imposed upon a servant is set aside or declared or rendered void in consequence of or by a decision of Court of law. Regulation 14(4) contemplates a regular order of suspension pending enquiry into gave charges. When that regulation is silent on this subject, namely, deemed suspension in the contingencies stated above, regulation 18 will have to be looked into when it says in respect of matters not specifically provided for in these Regulations, the relevant provisions of the Rules, Regulations and orders of the Government of Tamil Nadu for the time being in force shall apply mutatis mutandis to the employees of the Corporation, unless the Board by order directs otherwise. The subject of deemed suspension in the contingencies stated above, could not be stated to have been, specifically provided for, in this Regulations. Hence, there is a justification to fall back upon Regulation 18 so as to invoke Rule 17(e)(4) of the Rules. Now let us look into Rule 17(e)(4) of the Rules for the purpose of completing the picture relating to the provisions of the Regulations and the Rule. It runs as follows:
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 consequences 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 allegation 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.
5. The implications of Rule 17(e)(4) are patent from a mere reading of it. Here is a case where by virtue of a decision of this Court in W.A.No.536 of 1988 and W.P.No.6937 of 1988, the order of dismissal dated 5.4.1988 has been set at naught. Liberty has been reserved for the respondent to prosecute further proceedings in disciplinary action on the basis of the very same charge memorandums. The process of prosecuting the charge memorandum dated 10.12.1986 is now being done. In such a contingency, certainly Rule 17(e)(4) could be invoked. This is the position and implication apparant to us from a reading of the Regulations and the Rule. The learned single Judge was of the opinion Regulation 14(4) which deals with a case where a member in the services of the respondent may be placed under suspension, pending enquiry is same as Rule 17(e)(4) of the Rules and both deal with the same matter, and hence there is no scope for bringing in Rule 17(e)(4) of the Rules. This could not be a correct statement in view of our analysis and appraisal of the implications of the Regulations and the Rule. At the risk of repetition, we must say that regulation 14(4) has not dealt with the subject of deemed suspension in the stated contingencies, and in such case, by virtue of Regulation 18, Rule 17(e)(4) of the Rules could be properly invoked for the purpose of passing an order of deemed suspension. We could not subscribe our support to the approach of the learned single Judge to the question in issue and the constructions put up by him over the Regulations and the Rule, in the light of our discussion over the subject, as done above. Accordingly, we are obliged to interfere in writ appeal and we allow this appeal; set aside the order of the learned single Judge in W.P. No. 15706 of 1989 and the said writ petition will stand dismissed. There will be no order as to costs. 6. The disciplinary action against the petitioner has become a long drawn process in view of the agitations before Court and it is better that the disciplinary action is completed with due expedition. Mr. S. Krishnasamy, learned Counsel for the petitioner, says that his client will submit his explanation to the charge memorandum within four weeks from today, and if so done, the respondent shall complete the disciplinary action and pass order thereon within a period of eight weeks from the date of the submission of the explanation.