Madras High Court
The Chairman-Cum-Managing ... vs R.Balaji on 27 August, 2021
W.A.No.68 of 2021 and
C.M.P. No.578 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.08.2021
CORAM
THE HONOURABLE Mrs. JUSTICE PUSHPA SATHYANARAYANA
and
THE HONOURABLE Mr.JUSTICE KRISHNAN RAMASAMY
W.A.No.68 of 2021 and C.M.P. No.578 of 2021
1.The Chairman-cum-Managing Director
TANGEDCO, NPKRR Maaligai
No.144, Anna Salai, Chennai - 600 002
2.The Chief Engineer (Personnel)
TANGEDCO, NPKRR Maaligai
No.144, Anna Salai, Chennai - 600 002
3.The Superintending Engineer
CEDC/South-1/TANGEDCO
110 KV SS Complex, K.K. Nagar
Chennai - 600 078 ... Appellants
Vs.
R.Balaji ... Respondent
***
PRAYER : Writ Appeal filed under Clause 15 of the Letters Patent
against the order dated 13.12.2019 passed in W.P. No.34691 of
2019.
***
For Appellants : Mr.P.Subramanian
For Respondent : Mr.M.Arvind Subramaniam
http://www.judis.nic.in____________
Page No.1/16
W.A.No.68 of 2021 and
C.M.P. No.578 of 2021
JUDGMENT
PUSHPA SATHYANARAYANA, J.
Challenge in this writ appeal is to the order of the writ court
dated 13.12.2019 made in W.P. No.34691 of 2019, by which, the
learned single Judge directed the second appellant herein to
consider the representation of the petitioner dated 17.09.2019 in a
time bound manner. The writ court also directed the Special Court
for the cases under Prevention of Corruption Act, Chennai - 104 to
dispose of C.C. No.2 of 2017, within a period of three months from
the date of receipt of a copy of the order and directed the trial
court to refrain from giving unnecessary adjournments.
2. The case of the respondent herein/writ petitioner is that
he is working in the Electricity Board as a training Helper. A
criminal case came to be filed by the Department of Vigilance and
Anti Corruption (DVAC) in Crime No.6 of 2015 for an offence under
Section 7 of the Prevention of Corruption Act, 1988. He was shown
as A2 in the said case. Hence the petitioner was placed under
suspension by an order dated 01.05.2015. As the criminal case
was pending and the petitioner was under prolonged suspension,
he made a representation for revocation of his suspension. The
http://www.judis.nic.in____________
Page No.2/16
W.A.No.68 of 2021 and
C.M.P. No.578 of 2021
third appellant herein has rejected the said application and has
passed the impugned order stating that it is not feasible to revoke
the suspension till the petitioner is exonerated from the criminal
case. The said order was challenged before the writ court.
3. The learned single Judge, after hearing both the parties,
elaborately discussed the issue in the light of the various decisions
of the Hon'ble Apex Court and this court and held that an
employee cannot be kept under a prolonged suspension and
subsistence allowance should not be paid to him without extracting
any work from him and that such an exercise will drain the public
exchequer. The relevant paragraphs in the said order of the writ
court dated 13.12.2019 made in W.P. No.34691 of 2019, are
extracted hereunder:
"8.It is clear from the above judgment that
an employee cannot be kept under a prolonged
suspension just because there is a criminal case
pending against him. This Court had taken into
consideration all the earlier judgments on this
issue and has categorically come to a conclusion
that an employee cannot be kept under prolonged
suspension and subsistence allowance should not
be paid to him without extracting any work from
him. This Court found that such an exercise is
http://www.judis.nic.in____________
Page No.3/16
W.A.No.68 of 2021 and
C.M.P. No.578 of 2021
only going to drain the public exchequer.
9. In the present case, the petitioner has
been kept under suspension right from the year
2015 onwards. The impugned order was passed
in the year 2016. It is almost three years from
the date on which the impugned order was passed
and even now the suspension of the petitioner
continues. There is also no substantial progress in
the criminal case. The petitioner has already
given a representation to the respondents on
17.09.2019, requesting for revocation of the
suspension and the same is pending.
10. Taking into consideration the facts and
circumstance of the case and also the above
discussion made by this Court, this Court deems it
fit and proper to direct the 2nd respondent to
consider the representation made by the petitioner
on 17.09.2019, in the light of the judgment that
has been referred supra and pass appropriate
orders within a period of four weeks from the date
of receipt of copy of this order. In the fitness of
things, the 2nd respondent can consider posting
the petitioner in some non-sensitive post and
extract work from the petitioner rather than pay
the subsistence allowance by keeping the
petitioner idle. There shall also be a direction to
the Special Court for the cases under Prevention
of Corruption Act, Chennai&-104, to dispose of
C.C.No.2 of 2017, within a period of three months
http://www.judis.nic.in____________
Page No.4/16
W.A.No.68 of 2021 and
C.M.P. No.578 of 2021
from the date of receipt of copy of this order. The
Court shall ensure that the trial proceeds on the
day to day basis and no unnecessary adjournments
shall be granted. A copy of this order shall also be
marked to the Special Court for the cases under
Prevention of Corruption Act, Chennai-104."
4. Questioning the legality and correctness of the said order,
this intra-court appeal has been preferred by the State.
5. The main contention of the learned State Government
counsel is that the writ court, after granting a direction to the
criminal court to conclude the proceedings in a time bound
manner, should not have directed revocation of suspension, as the
result of the criminal proceedings itself would give a solution to the
issue as to whether the suspension of the petitioner is to be
revoked or not. It is the further contention of the learned State
Government Counsel that the suspension of the writ petitioner is
only after the DVAC report and the criminal case registered against
the respondent. The appellants took action against the respondent,
while he was caught red handed by receiving bribe from a person.
As the respondent was charged with serious offence of corruption,
for which punishment may even extend to ten years, he cannot be
http://www.judis.nic.in____________
Page No.5/16
W.A.No.68 of 2021 and
C.M.P. No.578 of 2021
inducted or retained in the department, pending disposal of the
trial, as the very conduct and reputation of the respondent are
questionable. The effect of retention of such person in service
pending trial would demoralize the other servants and frustrate the
object of the Prevention of Corruption Act. In support of his
contention, the learned State Government Counsel relied on the
decision of this court in W.A. No.552 of 2020 dated 21.07.2020 and
W.A. No.559 of 2020 dated 02.09.2020.
6. Per contra, the learned counsel appearing for the
respondent/writ petitioner submitted that the trial has commenced
in the criminal case and witnesses have to be examined. It is his
further submission that the respondent cannot be kept under a
prolonged suspension and the same is against the judgment of the
Hon'ble Supreme Court in State of Tamil Nadu vs. Pramod
Kumar and Another reported in (2018) 17 SCC 677. It is his
further submission that the suspension of the respondent can be
revoked and he can be placed in an insensitive post till the
completion of the criminal case.
7. Heard both sides and perused the materials available on
record, including the impugned order.
http://www.judis.nic.in____________
Page No.6/16
W.A.No.68 of 2021 and
C.M.P. No.578 of 2021
8. It is an admitted fact that the respondent herein/writ
petitioner was trapped, while he was accepting bribe to do his
bounden duty. He was arrested and suspended from service since
01.05.2015. Criminal trial is going on and the respondent
herein/writ petitioner is under continuous suspension. In such
circumstances, whether the respondent herein/writ petitioner, who
is under prolonged suspension and receiving subsistence
allowance, can be engaged in a non-sensitive post.
9. Learned counsel for the respondent herein/writ petitioner
argued that the respondent herein/petitioner has been kept under
prolonged suspension for more than six years and the Vigilance
case pending in C.C.No.2 of 2017 on the file of Special Judge for
the cases under Prevention of Corruption Act, 1988, Chennai, has
not made any significant progress in completing the trial because
they have examined only a few witnesses out of 25 witnesses.
When there is no development in the criminal case, which is
pending on the file of the trial court the impugned order should be
revoked and the petitioner should be posted in a non-sensitive
post and so the petitioner could be made to work for the salary
which has been paid in the form of subsistence allowance.
http://www.judis.nic.in____________
Page No.7/16
W.A.No.68 of 2021 and
C.M.P. No.578 of 2021
10. It is not in dispute that the petitioner has been placed
under prolonged suspension for more than six years. The trial in
C.C. No.2 of 2017 on the file of the Special Judge for the cases
under Prevention of Corruption Act, 1988, Chennai, is in progress.
The allegations levelled against the respondent have to be properly
dealt with by the Trial Court where the criminal case is pending. In
the meanwhile, the delinquent has been under prolonged
suspension for more than six years with payment of salary in the
form of subsistence allowance. As per the provision, the petitioner
would be entitled to be paid 75% of his salary as subsistence
allowance, after a period of six months from the date of his
suspension. Instead of paying 75% of the salary by way of
subsistence allowance without extracting any work from the
petitioner, he could be posted in a non-sensitive post and salary
could be paid by extracting work from him. Besides, the trial in
the criminal case also has not yet been completed. Neither the
department nor the petitioner is in a position to say as to how long
it is likely to take for the completion of the trial. Under such
circumstances, if the petitioner is kept under suspension
continuously by paying the salary in the form of subsistence
allowance, for no work, it will definitely drain the public exchequer.
In this regard, it is useful to refer to the decision of the Hon'ble
http://www.judis.nic.in____________
Page No.8/16
W.A.No.68 of 2021 and
C.M.P. No.578 of 2021
Apex Court in Ajay Kumar Choudhary vs. Union of India
reported in (2015) 7 SCC 291, wherein, the Hon'ble Supreme
Court at paragraph 21, has held thus:
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/Chargesheet 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. 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.
http://www.judis.nic.in____________
Page No.9/16
W.A.No.68 of 2021 and
C.M.P. No.578 of 2021
11. In yet another judgment in State of Tamil Nadu vs.
Pramod Kumar reported in (2018) 17 SCC 677, the Hon'ble
Supreme Court, at paragraphs 24 to 28, held as under:
" 24. The first Respondent was placed under
deemed suspension under Rule 3(2) of the All India
Services Rules for being in custody for a period of more
than 48 hours. Periodic reviews were conducted for his
continuance under suspension. The recommendations of
the Review Committees did not favour his reinstatement
due to which he is still under suspension. Mr.P.
Chidambaram, learned Senior Counsel appearing for the
first Respondent fairly submitted that we can proceed on
the basis that the criminal trial is pending. There cannot be
any dispute regarding the power or jurisdiction of the State
Government for continuing the first Respondent under
suspension pending criminal trial. There is no doubt that
the allegations made against the first Respondent are
serious in nature. However, the point is whether the
continued suspension of the first Respondent for a
prolonged period is justified.
25. The first Respondent has been under suspension
for more than six years. While releasing the first
Respondent on bail, liberty was given to the investigating
agency to approach the Court in case he indulged in
tampering with the evidence. Admittedly, no complaint is
made by the CBI in that regard. Even now the Appellant
has no case that there is any specific instance of any
attempt by the first Respondent to tamper with evidence.
26. In the minutes of the Review Committee
meeting held on 27.06.2016, it was mentioned that the
first Respondent is capable of exerting pressure and
http://www.judis.nic.in____________
Page No.10/16
W.A.No.68 of 2021 and
C.M.P. No.578 of 2021
influencing witnesses and there is every likelihood of the
first Respondent misusing office if he is reinstated as
Inspector General of Police. Only on the basis of the
minutes of the Review Committee meeting, the Principal
Secretary, Home (SC) Department ordered extension of
the period of suspension for a further period of 180 days
beyond 09.07.2016 vide order dated 06.07.2016.
27. This Court in Ajay Kumar Choudhary v. Union of
India, (2015) 7 SCC 291 has frowned upon the practice of
protracted suspension and held that suspension must
necessarily be for a short duration. On the basis of the
material on record, we are convinced that no useful
purpose would be served by continuing the first
Respondent under suspension any longer and that his
reinstatement would not be a threat to a fair trial. We
reiterate the observation of the High Court that the
Appellant State has the liberty to appoint the first
Respondent in a non sensitive post.
28. With the aforesaid observation, the appeals are
disposed of."
12. Under similar circumstances, a Division Bench of this
Court in the case of The Deputy Inspector General of Police,
Coimbatore Range, Coimbatore vs. S.Govindaraj, in
W.A.No.566 of 2011 by its order dated 23.11.2011 while
considering Rule 3(e)(5) of the Tamil Nadu Police Subordinate
Services (Discipline and Appeal) Rules, 1955, has categorically
held that after a period of six months from the date of suspension,
http://www.judis.nic.in____________
Page No.11/16
W.A.No.68 of 2021 and
C.M.P. No.578 of 2021
if an incumbent has to be paid 75% of his salary by way of
subsistence allowance, such a person could be posted in a non-
sensitive post, may be in a far off place.
13. In the case on hand, the appellants have not followed the
regulations laid down under Tamil Nadu Electricity Board
Employee's Discipline and Appeal Regulations 9 clause (dd) and
(e), which are extracted hereunder:
(dd) Where a Board employee is suspended or is
deemed to have been suspended (whether in connection
with any disciplinary proceedings or otherwise) and if any
other disciplinary proceedings is commenced against him
during the continuance of that suspension, the authority
competent to place him under suspension may, for reasons
to be recorded by him in writing, direct that the Board
employee shall continue to be under suspension until the
termination of all or any such proceedings.
(e) An order of suspension made or deemed to have
been made under this regulation may at any time be
revoked by the authority which made or is deemed to have
made the order or by any authority to which that authority
is subordinate.
14. A thorough reading of the above said regulations would
clearly show that the rule empowers the appellants herein, at any
time, to revoke the suspension order. But, the appellants, have
http://www.judis.nic.in____________
Page No.12/16
W.A.No.68 of 2021 and
C.M.P. No.578 of 2021
failed to consider the request for reviewing the order of prolonged
suspension in spite of his representations.
15. Considering all these facts and in the light of the
judgments quoted before the writ court as well as this court, the
learned single Judge has held that an employee cannot be kept
under a prolonged suspension just because there is a criminal case
pending against him and has categorically came to a conclusion
that the subsistence allowance should not be paid to him without
extracting any work from him. Hence the learned single Judge
directed the appellants to consider the representation made by the
petitioner on 17.09.2019, in the light of the judgments referred
supra and pass orders in a time bound manner and has also made
an observation that the second appellant may consider posting the
petitioner in some non-sensitive post and extract work from the
petitioner rather than paying the subsistence allowance by keeping
the petitioner idle. The learned single Judge also further directed
the trial court to complete the criminal proceedings within a period
of three months from the date of receipt of a copy of this order.
16. From the e-Courts website, we found that C.C. No.2 of
2017 is pending and it has been adjourned to 03.09.2021, to
http://www.judis.nic.in____________
Page No.13/16
W.A.No.68 of 2021 and
C.M.P. No.578 of 2021
summon further witness. It is to be noted that the order of the writ
court was dated 13.12.2019 and the learned Judge directed the
trial court to complete the trial as expeditiously as possible, within
three months from the date of receipt of a copy of the order.
17. In such circumstances, we do not find any error or defect
in the order of the learned single Judge's observation that the
appellants can consider posting the respondent herein/writ
petitioner in a non-sensitive post and extract work from the
petitioner rather than paying the subsistence allowance for no
work. Learned Special Judge for the cases under Prevention of
Corruption Act, 1988, Chennai, is directed to complete the trial in
C.C. No.2 of 2017, within a period of three months from the date of
receipt of a copy of this judgment.
18. Accordingly, the writ appeal is dismissed. However, there
shall be no order as to costs. Consequently, the connected civil
miscellaneous petition is closed.
[P.S.N., J.] [K.R., J.]
27.08.2021
Index : Yes / No
Internet : Yes / No
Asr
http://www.judis.nic.in____________
Page No.14/16
W.A.No.68 of 2021 and
C.M.P. No.578 of 2021
To
1.The Chairman-cum-Managing Director
TANGEDCO, NPKRR Maaligai
No.144, Anna Salai, Chennai - 600 002
2.The Chief Engineer (Personnel)
TANGEDCO, NPKRR Maaligai
No.144, Anna Salai, Chennai - 600 002
3.The Superintending Engineer
CEDC/South-1/TANGEDCO
110 KV SS Complex, K.K. Nagar
Chennai - 600 078
http://www.judis.nic.in____________
Page No.15/16
W.A.No.68 of 2021 and
C.M.P. No.578 of 2021
PUSHPA SATHYANARAYANA, J.
AND
KRISHNAN RAMASAMY, J.
Asr
W.A.No.64 of 2021
Date : 27.08.2021
http://www.judis.nic.in____________
Page No.16/16
