Madras High Court
The Principal ... vs Tmt.T.Gowri on 29 April, 2021
W.A.(MD) No.98 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.04.2021
CORAM
THE HON'BLE MR.JUSTICE T. S. SIVAGNANAM
and
THE HON'BLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.98 of 2020
The Principal Secretary/Commissioner
of Commercial Taxes,
Ezhilagam, Chepauk,
Chennai – 600 005. ...Appellant
-Vs-
Tmt.T.Gowri ...Respondent
Prayer: Writ Appeal filed under Clause 15 of Letter Patent against the
order dated 10.01.2019 passed in W.P.(MD)No.20639 of 2017.
For Appellant : Mrs.J.Padmavathy Devi,
Spl. Govt. Pleader
For Respondent :Mr.G.Thalaimutharasu
JUDGMENT
[Judgment of the Court was made by T. S. SIVAGNANAM, J.,]
This appeal by the Principal Secretary/ Commissioner of
Commercial Taxes is directed against the order dated 10.01.2019, made
in W.P.(MD)No.20639 of 2017.
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W.A.(MD) No.98 of 2020
2. The said Writ Petition was filed by the respondent, who was
working as Typist in the appellant department. The relief sought for in
the Writ Petition was to quash the order of suspension dated 07.01.2016.
3. The learned Writ Court, by applying the decision of the Hon'ble
Supreme Court in Ajaykumar Chowdhary Vs. Union of India [2015 (7)
SCC 291], directed the appellant department to reconsider the order of
suspension passed against the respondent. Aggrieved by the same, the
Department preferred this appeal and during the pendency of the appeal,
the appellant has passed an order on 12.04.2019 and held that the request
made by the respondent to revoke the order of suspension cannot be
complied with. Since the order dated 12.04.2019 was passed by the
appellant during the pendency of this appeal, this Court can cumulatively
consider the correctness of the direction issued by the learned Writ Court
as well as the order passed by the appellant dated 12.04.2019, by treating
the said order impugned in this appeal, at the instance of the
respondent/writ petitioner.
4. The appellant Department cannot dispute the fact that the
Hon'ble Supreme Court has laid down the guidelines as to how the order
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W.A.(MD) No.98 of 2020
of suspension should be reviewed in order to avoid an employee being
kept under prolonged suspension. However, the question would be
whether it is an universal rule. This aspect was elaborately dealt with by
the Hon'ble first bench of this Court in the case of Tamil Nadu
Generation & Distribution Corporation Limited Vs. A.Srinivasan
[W.A.No.599 of 2020], after referring to the decision in the case of
Ajaykumar Chowdhary Vs. Union of India [2015 (7) SCC 291] and
other decisions on the point, it was held that no absolute rule in respect
of the validity of the suspension orders from the perspective of duration,
especially when such suspension is in the context of pending criminal
proceedings. The operative portion of the said judgment reads as
follows:
“11. Upon considering the law laid down in the
judgments that have been discussed herein above, it is clear
that there is no absolute rule in respect of the validity of
suspension orders from the perspective of duration
especially when such suspension is in the context of a
pending criminal proceeding. In other words, in these
situations, the law on suspension as laid down in paragraph
11 of R.P. Kapur v. Union of India, AIR 1964 SC 787, by a
Five Judge Bench upholding suspension pending enquiry
subject to payment of subsistence allowance as per service
conditions and that in Union of India v. Ashok Kumar
Aggarwal (2013) 16 SCC 147, wherein it was held that the
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W.A.(MD) No.98 of 2020
court does not sit in appeal and that such orders would be
interfered with only if the charges are patently baseless,
mala fide or vindictive would continue to hold the field. In
this case, as stated earlier, there is a pending criminal
proceeding, wherein the Respondent is being prosecuted for
corruption. In these circumstances, the decision of the
learned single Judge to direct the Chief Judicial Magistrate
to conclude the proceeding within four months is justified
and does not warrant interference. On the other hand,
especially in light of the above direction, the revocation of
the suspension on the ground that it is prolonged is clearly
unsustainable. The consequential direction to post the
Respondent in a non~sensitive post is also not
sustainable especially in view of the fact that the Respondent
is an Assistant Engineer and it is difficult to find a post that
may be termed non~sensitive in that cadre. Therefore,
we allow the appeal in part insofar as it directs the
Appellants to revoke the suspension and to post the
Respondent in a non~sensitive post. On the other
hand, we affirm the impugned order to the extent that the
Chief Judicial Magistrate, Thiruvannamalai, has been
directed to conclude the criminal proceedings within a
period of four months, albeit with the qualification that the
said period shall run from the date of receipt of a copy of
the judgment in this appeal.”
5. Bearing the above principle in mind, if we examine the order
passed in the Writ Petition, we find that there is no error in directing the
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W.A.(MD) No.98 of 2020
appellant Department to consider the review of the order of suspension.
So far as the order dated 12.04.2019, which was passed by the appellant
during the pendency of this appeal, we find that there has not been a
proper examination of the relevant factors, which are to be considered
while reviewing the order of suspension. Therefore, we will be fully
justified in setting aside the order dated 12.04.2019, passed by the
appellant. If such is the conclusion that this Court would arrive at, then
it should be seen what is the ultimate direction that has to be given.
Before we decide, we have to take note of the fact that criminal case is
registered against the respondent is pending and there appears to be no
appreciable progress. So far as the charge memo is concerned, it was
issued on 26.04.2016 and the respondent/writ petitioner has filed a writ
petition and obtained stay of all further proceedings, pursuant to the
charge memo on the ground that the allegations in the criminal case and
in the departmental charge memo are identical. It is not clear as to
whether the appellant has sought for vacating the interim order granted in
the said writ petition.
6. In such circumstances, the question would be whether the
respondent/writ petitioner should still be continued under suspension.
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W.A.(MD) No.98 of 2020
Since the departmental charge memo has already been issued, necessary
particulars would have been gathered and statement would have already
been recorded from the various witnesses. Therefore, the question of
respondent tampering with the official witnesses would not arise. The
same would equally apply to the criminal proceedings as well.
Therefore, it is appropriate for the appellant Department to review the
order of suspension and consider the case of the respondent to be posted
in some non-sensitive post. As it appears that she has attained the age of
58 years, but for the extension of service granted by the Government, she
should have attained the age of retirement. Similar observations were
made by this Court in the case of the Principal Secretary cum
Commissioner of Commercial Taxes Vs. G.Chelliah [W.A.(MD)No.462
of 2017], to which one of us (TSSJ) is a party.
7. In the light of the above, this Writ Appeal is dismissed and the
order and directions made in Writ Petition is confirmed and for the
reasons which we have stated above, the order passed by the appellant
dated 12.04.2019, which was passed during the pendency of the appeal,
is set aside and the appellant is directed to take note of the observations
made in this judgment and pass appropriate orders, so that the respondent
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W.A.(MD) No.98 of 2020
be get any non-sensitive post. It will be well open to the appellant
Department to move the writ Court for vacating the interim order
obtained by the respondent staying the departmental enquiry. The above
direction be complied with as expeditiously as possible, preferably
within a period of four (4) months from the date of receipt of a copy of
this order. No costs.
[T.S.S. J.,] [S.A.I. J.,]
29.04.2021
Index : Yes/No
Internet : Yes
vsm
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.
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W.A.(MD) No.98 of 2020
T. S. SIVAGNANAM, J.,
and
S.ANANTHI, J.,
vsm
W.A.(MD)No.98 of 2020
29.04.2021
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