Madras High Court

S.Gunasekaran vs The Government Of Tamil Nadu on 6 August, 2021

                                                                                  W.P. No.10494 of 2020


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 06.08.2021

                                                           CORAM

                                    THE HONOURABLE MR.JUSTICE C.SARAVANAN

                                                 W.P. No.10494 of 2020
                                                         and
                                             WMP.Nos.12752 and 12753 of 2020

                                                (Through Video Conferencing)

                     S.Gunasekaran                                           ... Petitioner

                                                              Vs.

                     The Government of Tamil Nadu
                     Rep. by Chief Secretary to Government,
                     Public (Special. A) Department,
                     Secretariat, Chennai – 600 009.                         ... Respondent

                                   Petition filed under Article 226 of the Constitution of India to
                     issue a Writ of Certiorarified Mandamus, calling for the records of the
                     respondent relating to the order in Government Letter No.270/2018-7
                     Public (Spl.A) Department dated 21.03.2002 and G.O.(D).No.81, Public
                     (Spl.A) Department, dated 08.03.2018, to quash the same and to issue
                     consequential directions to the respondent to reinstate the petitioner in
                     service.




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                                                                                W.P. No.10494 of 2020


                                    For Petitioner    : Mr.Lakshmanasamy

                                    For Respondents   : Mr.LSM Hazan Fizal
                                                        Government Advocate

                                                      ORDER

The petitioner has challenged the impugned suspension order

dated 08.03.2018. It is the case of the petitioner that after the petitioner

was placed under suspension, he has sent representations dated

27.05.2018 and 30.06.2018. However, the respondent has rejected the

same by the impugned order dated 21.03.2020 vide Letter No.270/2018

– 7 Public (Spl.A) Department.

2. The learned counsel for the petitioner submits that the

allegations against the petitioner is that he has received bribe and

proceedings against the petitioner has now been initiated in T.C.No.1 of

2020 before the Special Judge, City Civil Court, Chennai. Pursuant to

the FIR in Cr.No.3/AC/2018/CC.II dated 01.03.1918. The learned

counsel for the petitioner submits that the petitioner will attain the age of

superannuation in the year 2022 and the criminal proceedings will take

longer time. He submits that till date no charge memo has been issued by

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W.P. No.10494 of 2020

the respondent. Therefore, he prays that the writ petition be allowed in

the light of the observation of the Hon'ble Supreme Court in Ajai

Kumar Choudhary vs. Union of India reported in 2015(2) Scale 432.

In a specific attention has been drawn to para 21 of the said decision.

3. The learned counsel also referred to a recent decision of this

Court in J.Mugundan vs. Secretary to Government, Revenue and

Disaster Management Department, Fort St. George, Chennai,

W.P.No.1254 of 2020 dated 10.02.2020 authored by Justice N.Ananth

Venkatesh. Wherein paragraph 7 of the said judgment has held as

follows:-

7.In the present case, the petitioner has been kept under suspension from the year 2017 onwards and he has been happily receiving the subsistence allowance every month without doing any work for more than two years. There is no progress in the criminal case and no departmental proceedings have been initiated. Under such circumstances, continuing with the suspension of the petitioner, will serve no purpose and atleast hereafter, the petitioner must do W.P.No.1254 of 2020 some

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W.P. No.10494 of 2020

work for the money that he is receiving from the Government.

4. Defending the impugned proceedings rejecting the request of

the petitioner for revoking the order of suspension, the learned counsel

for the respondent submits that the decision of the Hon'ble Supreme

Court in Ajai Kumar Choudhary vs. Union of India will not apply in

the case of serious charges of corruption. He referred to the

administrative letter dated 26.04.2016 of the Personal and Administration

Reforms(N) Department in Letter No.13519/N/2015-1, wherein it has

been clarified as under:-

                                            ''the   instructions   issued    already      in
                                     Government      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 raising out of departmental disciplinary inquiries pertaining to non – vigilance and / or any non – criminal cases.''

5. That apart, the learned counsel for the respondent submits that

the decision of the Hon'ble Supreme Court in Ajai Kumar Chaudhary

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W.P. No.10494 of 2020

vs. Union of India has been distinguished by a decision of the Division

Bench of this Court in The Tamil Nadu Generation and Distribution

Corporation Limited (TANGEDCO) and others vs. A.Srinivasan,

W.A.No.599 of 2020 by order dated 02.09.2020. In this connection, he

refers to paragraph 9 and 10 of the said order, which reads as under:-

''9. The sheet anchor of the Respondent's case is the judgment in Ajay Kumar Choudhary. Therefore, it is necessary to extract paragraphs 21 and 22 thereof which are as under:

21.We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Charge sheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Charge sheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution.

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W.P. No.10494 of 2020

We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us.

22. So far as the facts of the present case are concerned, the Appellant has now been served with a Charge sheet, and, therefore, these directions may not be relevant to him any longer. However, if the Appellant is so advised he may challenge his continued suspension in any manner known to law, and this action of the Respondents will be subject to judicial review."

10. On perusal of the judgment in Ajay Kumar Choudhary, it is clear that the Hon'ble Supreme Court was dealing with a case wherein the Appellant had been served with a charge sheet before the judgment was pronounced. On that basis, on the facts of that case, paragraph 22 reflects that the order of suspension was not set aside although the suspension period exceeded three months. However, while disposing of the case, the Hon'ble Supreme Court held that the suspension period should not extend beyond three months if the memorandum of charges/charge sheet is not served on the delinquent officer/employee. The judgment in Ajay Kumar Choudhary was dealt with in detail by a

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W.P. No.10494 of 2020

Division Bench of this Court in Director General of Police [cited supra]. In the said judgment, this Court held as follows in paragraphs 9-11:

9. We are of the view that Ajay Kumar Choudhary (supra) does not lay down any absolute proposition that an order of suspension should never extend beyond three months. In fact, in Ajay Kumar Choudhary (supra), the Supreme Court observed that the directions regarding the restriction on extension of a suspension order beyond three months would not apply as the appellant had been served with a charge sheet. The appellant had only been given the liberty to challenge his continued suspension in any manner known to law, if so advised, and it was clarified that the action of the respondents in continuing suspension would be subject to judicial review. In our view, the learned Single Bench erred in setting aside the suspension placing reliance on Ajay Kumar Choudhary (supra).

10. It is well settled that a judgment is to be understood in the context of the facts in which the judgment is rendered. Sentences in a judgment cannot be read in the same manner as a statute and in any case, words and sentences in a judgment cannot be read out of context. In Padma Sundara Rao (Dead) and others v. State of Tamil Nadu and others, reported in (2002) 3 SCC 533, cited by Mr.S.Saji, learned counsel appearing on behalf of the appellant, a Five Judge Bench of the Supreme Court held as under:

'9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in

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W.P. No.10494 of 2020

with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board (1972) 2 WLR 537. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.'

11. In the instant case, as observed above, a charge sheet had been issued, though after five months and four days of the suspension. The learned Single Bench ought to have considered the question of whether the suspension should outright be set aside or allowed to continue upon consideration of all relevant facts and circumstances, including the nature of the charges.” Likewise, the Division Bench of this Court in R.Elumalai v. District Collector, [2020 SCC online Mad 1472, considered the Ajay Kumar Choudhary case and the judgment of the Delhi High Court in Government of NCT of Delhi (cited supra) and concluded that in cases relating to suspension for alleged involvement in graft charges leading to a criminal trial, interference with the suspension order on the basis that the suspension period exceeded three months is not justifiable.''

The learned counsel for the respondent also further refers the another

decision of the First Bench of this Court in D.Jawahar vs. The

Chariman, TNEB, Anna Salai, Chennai, W.A.No.552 of 2020 dated https://www.mhc.tn.gov.in/judis/

W.P. No.10494 of 2020

21.07.2020, wherein a similar view was taken by the First Bench of this

Court. Therefore, he prays for dismissal of this writ petition.

6. Heard the learned counsel for the Petitioner and the learned

counsel for the Respondent and perused the impugned order rejecting the

request of the petitioner for revoking the suspension order dated

08.03.2018.

7. I have also considered the decision of the Hon'ble Supreme

Court in Ajai Kumar Choudhary vs. Union of India and that few

decisions of the Division Bench of this Court in W.A.No.522 of 2020

and 599 of 2020 cited by the learned counsel for the respondent and that

of the decision of this Court in W.A.No.1254 of 2020 dated 10.02.2020.

Incidentally few orders also have been passed by this Court in

S.Kumaraguru vs. Tami Nadu State Transport Corporation(KUM)

Limited, Writ Petition No.23022 of 2018, dated 04.08.2020, wherein the

distinction was made between the Disciplinary Proceedings and Criminal

Proceedings. It has held under:-

''6. The fact that the criminal proceedings are pending for a long time ipso facto does not mean that the Respondent can delay the completion of the https://www.mhc.tn.gov.in/judis/

W.P. No.10494 of 2020

Disciplinary Proceedings. In a criminal proceedings, an accused can get an acquittal if the accused is able to establish a reasonable doubt in the case of prosecution. On the other hand, in a Disciplinary Proceedings, a guilt can be established based on the principles of preponderance of probability. If in case, such an officer is later found guilty in the criminal proceedings, the Department can suitably proceed under the relevant Disciplinary Rules applicable to such an employee irrespective of the outcome of the earlier Disciplinary Proceedings.''

8. It is also noticed that the petitioner is likely to attain the age of

superannuation in the year 2022. Considering the above facts and

circumstances of this case and in view of the decision of this Court in

W.P.No.1254 of 2020, the prayer of the petitioner is allowed by directing

the respondent to permit the petitioner to report duty in any non sensitive

post where the petitioner will not get any opportunity to either indulged

in any alleged corruption or temper with the evidence against him both in

the Criminal Proceeding that are pending in TC No.1 of 2020 before the

Special Judge,City Civil Court at Chennai or in the proposed https://www.mhc.tn.gov.in/judis/

W.P. No.10494 of 2020

Disciplinary Proceedings which is yet to be initiated after the petitioner

was placed under suspension on 08.03.2018. Therefore, the respondent

is directed to permit the petitioner duty on 01st September 2021 in any

non sensitive post as mentioned above. Since the Disciplinary

Proceeding and the Criminal Proceedings after proceeded on different

track altogether. The respondent shall issue a charge memo within a

period of three months from the date of receipt of a copy of this order and

endeavour to complete the same preferably within a period of six months

thereafter. The Special Judge, City Civil Court, Chennai in TC.No.1 of

2020 shall also endeavour to complete the trail and pass orders on merits

in accordance with law preferably within a period of 12 month from the

date of receipt of a copy of this order.