M.Mohandass vs The Chairman Cum Managing ...
2021 Latest Caselaw 3954 Mad

                                                                     W.P.(MD)No.11397 of 2016


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED:17.02.2021

                                                    CORAM:

                             THE HONOURABLE MR.JUSTICE M.DHANDAPANI

                                          W.P.(MD)No.11397 of 2016
                                                    and
                                     W.M.P.(MD).Nos.8720 and 8721 of 2016

                      M.Mohandass
                                                                             ... Petitioner
                                                           Vs.

                      1.The Chairman cum Managing Director,
                        TANGEDCO,
                        Chennai.

                      2.The Chief Engineer,
                        Tuticorin Thermal Power Station,
                        Tuticorin.

                      3.The Superintending Engineer,
                        Purchase and Administration,
                        Tuticorin Thermal Power Station,
                        Tuticorin -4.

                      4.The Executive Engineer,
                        Ash Handling Plant,
                        Tuticorin Thermal Power Station,
                        Tuticorin -4.
                                                                         ... Respondents


                      1/9


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                                                                               W.P.(MD)No.11397 of 2016


                      Prayer: Writ Petition is filed under Article 226 of the Constitution of
                      India, to issue a Writ of Certiorarified Mandamus to call for the records
                      pertaining to the Impugned Memo No.EE/AHP/TTPS/F Doc,/D, 08/11
                      dated 23.09.2011 passed by the 3rd respondent and order dated
                      07.06.2016 passed by the 3rd respondent in his proceedings in Letter No.
                      4054/102/Mu.Ni.A/Ni.Pi3        (3)/2016    and   quash      the   same      and
                      consequently direct the respondents to reinstate the petitioner in service
                      with consequential benefits by following the proceedings issued by the
                      1st respondent in (Per) CMD TANGEDCO Proceedings No.90, dated
                      25.05.2016.


                                    For Petitioner              : Mr.K.Seemaraj
                                    For Respondents             : Mr.T.Sakthi Kumaran
                                                                 Standing counsel



                                                      ORDER

This writ petition has been filed challenging the impugned Memo

dated 23.09.2011 and the order dated 07.06.2016, passed by the third

respondent and quash the same and consequently, direct the respondents

to reinstate the petitioner into service with consequential benefits, by

following the proceedings issued by the first respondent, dated

25.05.2016.

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2. The case of the petitioner is that he was joined as daily wages

employee in Tuticorin Thermal Power Plant and thereafter he was

appointed as Helper in the year 1999. Subsequently, he was promoted to

various posts and finally, he was redesignated as Assistant Engineer in

the year 2007. While he was working as Assistant Engineer, a trap was

conducted by the Deputy Superintendent of Police, Vigilance and

Anticorruption, Tuticorin, on 22.09.2011, alleging that he has received

illegal gratification of Rs.10,000/- from one Manikandan, for the purpose

of sanctioning the bill. Thereafter, he was arrested and remanded to

judicial custody and he was placed under suspension on 23.09.2011.

Challenging the same, the petitioner has filed a writ petition before this

Court in W.P.(MD).No.2303 of 2015. However, the said writ petition was

dismissed by this Court, dated 26.02.2015, with a direction to the third

respondent to consider the representation of the petitioner, dated

15.10.2014. In compliance of the said order, the third respondent has

rejected the petitioner's representation, on 18.04.2015. Challenging the

order of suspension dated 23.09.2011, as well as the rejection of

petitioner's representation dated 07.06.2016, the present writ petition has

http://www.judis.nic.in W.P.(MD)No.11397 of 2016

been filed.

3. The learned counsel appearing for the petitioner would submit

that though the petitioner was trapped under the Prevention of

Corruption Act, the law enforcing agency has filed the charge sheet

against the petitioner in the year 2012 and the same was taken on file in

Special Case No.2 of 2012 on the file of the learned Chief Judicial

Magistrate cum Special Judge, Tuticorin and till date there is no progress.

He would further submit that the petitioner has rendered unblemished

service and he has been falsely implicated in the criminal case and he has

not committed any offence. He would also submit that the very same

issue was already decided by the Hon'ble Apex Court in the case of

Ajaykumar Choudhary vs. Union of India and another reported in

2015 (7) SCC 291 and hence, he seeks direction to the third respondent

to reinstate the petitioner into service with all attendant benefits.

4. Heard the learned counsel appearing for the petitioner, the

learned Standing counsel appearing for the respondents and perused the

materials available on record.

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5. This Court is unable to go into the merits of the allegations

made by the petitioner. So long as the power of suspension is available

with the third respondent and it has been exercised by the competent

authority, this Court cannot go behind the order of suspension.

6. The Hon'ble Supreme Court in its decision reported in 1990 (3)

SCC 60 (Director General and Inspector General of Police,

AndhraPradesh, Hyderabad and others Vs. K.Ratnagiri) has held in

Paragraph No.7 as follows:

"7....The Rule 13(1) empowers the authority to keep the respondent under suspension pending investigation or enquiry into the criminal charges where such suspension is necessary in the public interest. When the first information report is issued, the investigation commences and indeed it has commenced when the respondent was kept

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under suspension. The order of suspension cannot, therefore, be said to be beyond the scope of Rule 13(1) merely because it has used the word 'prosecution' instead of investigation into the charges against the respondent. A wrong wording in the order does not take away the power if it is otherwise available. The Tribunal seems to have ignored this well accepted principle."

7. Further, it was observed in Paragraph No.3 as follows:

"3....The government may review the case and make further or other order but the order of suspension will continue to operate till it is rescinded by an appropriate authority."

8. Once again, the Hon'ble Supreme Court vide its decision

reported in 1994 (2) SCC 617 (State of Haryana Vs. Hari Ram Yadav

and others) held in Paragraph No.10 as follows:

"10....The law is well settled that in cases where

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the exercise of statutory power is subject to the fulfilment of a condition then the recital about the said condition having been fulfilled in the order raises a presumption about the fulfilment of the said condition, and the burden is on the person who challenges the validity of the order to show that the said condition was not fulfilled. In a case, where the order does not contain a recital about the condition being fulfilled, the burden to prove that the condition was fulfilled would be on the authority passing the order if the validity of the order is challenged on the ground that the condition is not fulfilled...."

9. Further, in Paragraph No.11 of the judgment, it was observed as

follows:

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"11....There is no averment in the said petition challenging the validity of the impugned order of suspension on the ground that the Governor of Haryana was not satisfied that it was either necessary or desirable to place Respondent 1 under suspension. In the absence of any such averment it must be held that the impugned order was passed after fulfilling the requirement of Rule 3(1) of the Rules in view of the presumption as to the regularity of official acts which would be applicable and the absence of a recital in the order about the Governor being satisfied that it was either necessary or desirable to place respondent 1 under suspension is of no consequence...."

10. In the light of the above, the writ petition filed by the petitioner

is misconceived and deserves to be dismissed. Accordingly, the Writ

Petition stands dismissed. However, it is open to the petitioner to seek a

review of the order of suspension by making a fresh representation

before the competent authorities and if any such representation is made,

it is needless to state that the authorities will consider the said

representation and pass orders on the same, in accordance with law. No

costs. Consequently, the connected Miscellaneous Petition is closed.

17.02.2021

http://www.judis.nic.in W.P.(MD)No.11397 of 2016

akv

M.DHANDAPANI,J.

akv

To

1.The Chairman cum Managing Director, TANGEDCO, Chennai.

2.The Chief Engineer, Tuticorin Thermal Power Station, Tuticorin.

3.The Superintending Engineer, Purchase and Administration, Tuticorin Thermal Power Station, Tuticorin -4.

4.The Executive Engineer, Ash Handling Plant, Tuticorin Thermal Power Station, Tuticorin -4.

W.P.(MD)No.11397 of 2016

17.02.2021

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