G.Thilagam vs The District Collector
2021 Latest Caselaw 24782 Mad

                                                                               W.P(MD)No.21132 of 2018



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   DATED: 16.12.2021

                                                        CORAM:

                                  THE HONOURABLE DR JUSTICE ANITA SUMANTH

                                               W.P.(MD) No.21132 of 2018
                                                         and
                                          W.M.P(MD)Nos.18951 and 18592 of 2018

                G.Thilagam                                                 ...Petitioner

                                                           Vs.

                The District Collector,
                Trichy District,
                Trichy.                                                    ...Respondent


                PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
                issuance of Writ of Certiorarified Mandamus calling for the records pertaining
                to the impugned order passed by the respondent in RC.No.1050/2013, TP.2,
                dated 09.05.2013, placing the petitioner under suspension from service, quash
                the same and direct the respondent to pass necessary orders for her
                reinstatement into services.

                                  For Petitioner    : Mr.M.Sankaralingam
                                                      for Mr.R.Subramanian

                                  For Respondent     : Mr.A.K.Manikkam
                                                       Special Government Pleader


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https://www.mhc.tn.gov.in/judis
                                                                                 W.P(MD)No.21132 of 2018




                                                      ORDER

Heard Mr.M.Sankaralingam, learned counsel appearing for

Mr.R.Subramanian, learned counsel on record for the petitioner and

Mr.A.K.Manikkam, learned Special Government Pleader appearing for the

District Collector, Trichy/respondent.

2.The petitioner has come before this Court challenging an order dated

09.05.2013 placing the petitioner under suspension. The petitioner's case is that

he joined as an Junior Assistant in the Department of Town Panchayat on

27.02.1997 and was promoted through the ranks.

3.While employed as Executive Officer Grade – I in Poovalur Town

Panchayat at Trichy District, on 11.07.2012, a contract had been awarded to an

individual by name Rajendran on 28.02.2013. A charge thereafter came to be

laid as against the petitioner, based on a complaint filed by the said Rajendran

to the effect that the petitioner had sought illegal gratification for release of a

cheque to him.

4.An explanation is set forth by the petitioner at paragraph No.3 of the

affidavit pointing out various discrepancies in the work entrusted and carried

https://www.mhc.tn.gov.in/judis W.P(MD)No.21132 of 2018

out by the said contractor. The petitioner would contend that while the

complainant had insisted upon the payment of the amount, the petitioner had

sought sanction for the same from the Assistant Director of Town Panchayat in

that regard.

5.Thus, at the time of the alleged occurrence, funds had not been allotted

by the Assistant Director for issuance of the cheque. All in all, he would submit

that the complaint has absolutely no basis. A criminal case was initiated in

Crime No. 5 of 2013 and taken on file by the learned Special Judge for

Vigilance and Anti-corruption, Trichy. The matter is stated to be pending as on

date.

6.Reliance of the petitioner upon the judgments of the Hon’ble Supreme

Court in Ajay Kumar Choudhary Vs. Union of India through its Secretary and

another in 2015(7) SCC 291 and State of Tamilnadu represented by Secretary

to Government (Home) Vs. Promod Kumar IPS and Another dated 21.08.2018.

7.Reliance placed by the petitioner upon a decision of a Division Bench

of this Court in W.A.No.64 of 2021 in Chairman-cum-Managing Director,

TANGEDCO, Chennai and two others Vs.R.Balaji dated 27.08.2021 is of no

avail as the nature of charges in that case arose from an interpretation of the

Tamilnadu Electricity Board Employees Discipline and Appeal Regulations.

https://www.mhc.tn.gov.in/judis W.P(MD)No.21132 of 2018

8.Mr.Manikkam, has relied upon two decisions of this Court and one of

the Delhi High Court to the effect that the ratio of the judgements of the

Supreme Court relied upon by the petitioner must not be construed to be a hard

and fast rule, but must be applied bearing in mind the circumstance that arise on

a case on case basis. He relied upon:

i) Govt of NCT of Delhi Vs. Dr.Rishi Anand in W.P(C)8134 of 2017 dated

13.09.2017

ii) Director General of Police, Chennai and another Vs. T.Kamarajan

dated 19.11.2019 in W.A.No.3957 of 2019

iii) Tamil Nadu Generation & Distribution, Corporation Limited

(TANGEDCO), Chennai – 2 Vs. A.Srinivasan in W.ANo.599 of 2020 dated

02.09.2020.

9.In the cases of T.Kamarajan and A.Srinivasan, the First Bench of this

Court dealt with an appeals filed by the State against orders of learned Single

Judges founded basically upon the ratio of the Judgment of the Supreme Court

in Ajay Kumar Choudhary's case.

10.In both cases, the learned Single Judges had directed that the criminal

proceedings pending before the competent Courts be concluded within a fixed

timeframe and that in the interim, the respondents in Writ Appeal / the

https://www.mhc.tn.gov.in/judis W.P(MD)No.21132 of 2018

employees, be posted in a non-sensitive post.

11.The Bench refers to an earlier decision of the Division Bench in the

case of Arignar Anna Sugar Mills Ltd. v. R.Vengatasamy and another (2017

SCC OnLine Mad 33673) and the Delhi High Court in the case of Dr.Rishi

Anand (supra).

12.The ratio that they cull from the judgment in Ajay Kumar

Choudhary's case is that the principles of expedition and diligence at every

stage of criminal trial must be applied in the case of departmental enquiry as

well. They specifically note that no absolute proposition has been laid down to

the effect that an suspension order should be set aside, if charges were not

served within a specific timeframe.

13.At paragraph 10 of the order in the case of T.Kamarajan, they state as

follows:

10. There is another decision in the case of Arignar Anna Sugar Mills Ltd. v. R.Vengatasamy and another, reported in 2017 SCC OnLine Mad 33673 of a Division Bench, whereunder, while referring to the judgment of Ajay Kumar Choudhary (supra), it has been held in paragraphs (6) to (12) as follows:

“6. With the greatest of respect to the learned Single Bench, Ajay Kumar Choudhary (supra) does not lay down any absolute proposition that a suspension order should be set aside whenever charges are not served within three months. On

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the other hand, the Supreme Court propounded the proposition that the principles of expedition and diligence at every stage of a criminal trial ought to be applied in case of departmental enquiries. At all stages, i.e., investigation, inquiry, appeal, revision, the burden lies on the prosecution and in this case on the employer to justify and explain the delay. The Court is to engage in a balancing test to determine whether this right had been denied in the instant case.

7. In the case before the Supreme Court, the Central Administrative Tribunal had, having regard to the facts and circumstances of the case, directed that the suspension of the appellant in that case could not be extended beyond 90 days from 19.3.2013. The High Court had set aside the aforesaid direction viewing it as a substitution of a judicial determination to the authority possessing the power, i.e., the Government. The Supreme Court set aside the pronouncement of the High Court as unsustainable.

8. In Ajay Kumar Choudhary (supra), the Supreme Court observed that if within three months the memorandum was not served, a reasoned order must be passed for the extension of the suspension. The Supreme Court also observed that the Government was free to transfer a person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he might have and which he might use for obstructing the investigation against him.

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

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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 Bino, 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 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

https://www.mhc.tn.gov.in/judis W.P(MD)No.21132 of 2018

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.

12. The decision of the Supreme Court in Ajay Kumar Choudhary (supra) enunciates the proposition that principles of criminal law should be applied to departmental proceedings. Even criminal law permits incarceration beyond three months in serious and grave cases pending trial.”

14.The emphasis by way of highlight in paragraph 9 extracted above is

by this Court to bring home the point that there is no cast-iron rule in this

regard and that a view would have to be taken such matters, in a case on case

basis, in line with the judgment of the Hon'ble Supreme Court and applying the

observations therein to the facts and circumstances of that particular case.

15.A Bench of Delhi High Court in the case of Dr.Rishi Anand is to

similar effect and at paragraph 17, they note that it may not always be possible

for the government to serve a charge sheet within 90 days, or even thereafter

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for several justifiable reasons. In such a case reinstating the Government

servant, even in a non-sensitive post, cannot be prudent.

16.On a reading of the Judgment of the Hon'ble Supreme Court, they

opine that the Court has not denuded the government of its authority to

continue/extend the suspension of the government servant before or after

service of the charge sheet.

17.In the case of A.Srinivasan, a detailed reference is made to the Full

Bench Judgment in the case of S.Ravi and Others v. District Collector and

Others (2015 (4) LW 811), particularly paragraphs 48 and 49, concluding that

there was no automatic revocation of suspension, if the period of suspension

exceeded a specific duration.

18.In counter, the District Collector/respondent points out that the

Department of Vigilance and Anti-corruption (DVAC), which has initiated the

criminal case, has not been made as a party to the matter. That is true. In such a

circumstance, and bearing in mind the close identity of the facts based upon

which the criminal as well as disciplinary proceedings turn, it would suffice to

direct the criminal court to proceed with the matter expeditiously and conclude

the same expeditiously, at any rate, within ten (10) months from today.

19.This writ petition is dismissed with the direction as above. No costs.

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Consequently, connected miscellaneous petitions are closed.

16.12.2021 Index : Yes/No Internet: Yes CM/sm

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 District Collector, Trichy District, Trichy.

https://www.mhc.tn.gov.in/judis W.P(MD)No.21132 of 2018

DR. ANITA SUMANTH , J.

CM/sm

W.P.(MD) No.21132 of 2018 and W.M.P(MD)Nos.18951 and 18592 of 2018

https://www.mhc.tn.gov.in/judis W.P(MD)No.21132 of 2018

16.12.2021

https://www.mhc.tn.gov.in/judis