Madras High Court
(Heard Through Vc) vs The District Collector on 17 February, 2021
W.P.No.3371 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 17.02.2021
CORAM
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.3371 of 2021
(Heard through VC)
R.Padmanaban .. Petitioner
-vs-
1.The District Collector,
Villupuram District,
Villupuram.
2.The District Revenue Officer,
Villupuram District,
Villupuram.
3.The Revenue Divisional Officer,
Thirukoilur,
Villupuram District. .. Respondents
Prayer: Petition filed under Article 226 of Constitution of India to issue
a Writ of Mandamus directing the first respondent to pay the
subsistence allowance from 16.04.2019 by considering the petitioner's
representation dated 02.12.2019.
For Petitioner : Mr.R.Jayaprakash
For Respondents : Mr.P.V.Selvakumar
Additional Government Pleader
ORDER
The petitioner has come forward with this writ petition seeking
a direction to the first respondent to pay the subsistence allowance
from 16.04.2019 by considering his representation dated 02.12.2019.
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W.P.No.3371 of 2021
2. Mr.J.Pothiraj, learned Special Government Pleader takes
notice on behalf of the respondents.
3. By consent of both parties, the writ petition is taken up for
final disposal at the admission stage itself.
4. It is the case of the petitioner that he was selected and
appointed as Village Administrative Officer (VAO) and based on the
complaint given by one G.Senthil before the Vigilance and Anti-
Corruption, Villupuram, alleging demand of bribe of Rs.500/-, a case
was registered against him on 20.12.2011, pursuant to which, he was
arrested and remanded to judicial custody on the very same date. It is
the further case of the petitioner that subsequently, the said case was
transferred from Chief Judicial Magistrate Court, Villupuram to the
Special Court for Prevention of Corruption Act cases, Villupuram and re-
numbered as Special Case No.20 of 2014 and in the interregnum
period, the petitioner was suspended from service vide proceedings
dated 21.12.2011. It is the grievance of the petitioner that though he is
entitled for subsistence allowance as per Rule 53(1) of Fundamental
Rules, he has not been paid any subsistence allowance. It is stated that
after completion of investigation and trial, orders await verdict in the
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W.P.No.3371 of 2021
criminal case and therefore, he was not permitted to retire from service
on attaining the age of superannuation. Thereafter, an order of
conviction was passed against the petitioner on 16.04.2019 in Special
Case No.20 of 2014, against which, he preferred appeal before this
Court and this Court has suspended the conviction. It is submitted that
he sent a representation dated 02.12.2019 to the first respondent,
seeking subsistence allowance from 16.04.2019 till date. Since there is
action taken thereon, the petitioner is before this Court.
5. A reading of the entire averments shows that there is no
iota of evidence as to the initiation of departmental action against the
petitioner and though the DVAC case was pending against the
petitioner, it would not preclude the higher officials to proceed against
the petitioner departmentally. The act of the respondents in not
initiating departmental action in time leads to presume that the higher
officials are also in collusion with the criminals like the petitioner and
such type of persons should not be allowed to continue in service in the
guise of suspension and permit to retire and get all the monetary
benefits on the ground of acquittal from the Criminal Court and non-
initiation of departmental enquiry.
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W.P.No.3371 of 2021
6. This Court has elaborately dealt with the issue of
suspension in W.P.No.13 of 2021 (V.Mohanraj vs. The Secretary
and two others), and passed a detailed order on 06.01.2021, holding
as under:
"6. Considering the facts and circumstances of this
case, this Court is not going to direct the respondents to
promote the petitioner to the post of Inspector by
including him in the panel and it is for the respondents to
consider the same. It is needless to mention that if any
departmental proceedings have been commenced or
initiated, it is open to the respondents to proceed with
the same so as to bring the proceedings to a logical end,
dehors pendency of the criminal case, as both criminal
proceedings as well as departmental proceedings can go
on simultaneously and the criminal case should be proved
beyond reasonable doubt by adducing oral and
documentary evidence, whereas charges in the
departmental proceedings should be established on the
basis of preponderance of probabilities. If Criminal
Proceedings are not initiated or concluded within one year
from the date of FIR, there is no hindrance on the part of
the employer to proceed with the departmental
proceedings on day to-day basis and bring the issue to a
logical end at the earliest point of time and the employee
will have to participate in the departmental proceedings
and shall not attempt to adopt dilatory tactics.
7. In this regard, the Hon'ble Supreme Court in the
case of Stanzen Toyotetsu India Private Limited vs.
Girish v. and others, reported in (2014) 3 SCC 636,
has clearly laid down a dictum as under:
“19. In the circumstances and taking into
consideration all aspects mentioned above as
also keeping in view the fact that all the three
Courts below have exercised their discretion in
favour of staying the on-going disciplinary
proceedings, we do not consider it fit to vacate
the said order straightaway. Interests of justice
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W.P.No.3371 of 2021
would, in our opinion, be sufficiently served if
we direct the Court dealing with the criminal
charges against the respondents to conclude
the proceedings as expeditiously as possible but
in any case within a period of one year from the
date of this order. We hope and trust that the
Trial Court will take effective steps to ensure
that the witnesses are served, appear and are
examined. The Court may for that purpose
adjourn the case for no more than a fortnight
every time an adjournment is necessary. We
also expect the accused in the criminal case to
co-operate with the trial Court for an early
completion of the proceedings. We say so
because experience has shown that trials often
linger on for a long time on account of non-
availability of the defense lawyers to cross-
examine the witnesses or on account of
adjournments sought by them on the flimsiest
of the grounds. All that needs to be avoided. In
case, however, the trial is not completed within
the period of one year from the date of this
order, despite the steps which the Trial Court
has been directed to take the disciplinary
proceedings initiated against the respondents
shall be resumed and concluded by the Inquiry
Officer concerned. The impugned orders shall in
that case stand vacated upon expiry of the
period of one year from the date of the order.
20. In the result, we allow these appeals
but only in part and to the extent indicated
above. The parties are left to bear their own
costs.”
8. For the purpose of brevity, this Court makes it
very clear that if any criminal proceedings have been
initiated after commencement of the departmental
proceedings, the one year time limit mentioned supra will
not apply to those cases and the departmental
proceedings shall go on uninterruptedly. Invariably, the
offenders, who have committed grave offences, are being
acquitted on the ground of benefit of doubt, owing to
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W.P.No.3371 of 2021
missing link in the chain of events and are trying to get
back the entire backwages and for those persons,
employment itself is a lottery.
9. In the present case on hand, even according to
the petitioner, a charge memo has been issued as early
as on 18.12.2015 and in case any departmental
proceedings had already commenced, the same shall be
proceeded on a day to-day basis without adjourning the
matter beyond seven working days at any point of time
and brought to a logical conclusion at the earliest. The
petitioner shall co-operate for early attainment of the
proceedings.
10. With the above observation, this writ petition is
disposed of. No costs."
7. The order of suspension is not a punishment and the
relationship between the employer and the employee subsists even
during the period of suspension. When there is master and servant
relationship, the suspension can be effected by the employer and it
cannot be questioned except on certain grounds like competence of the
Authority issuing the said order, want of jurisdiction, contrary to the
Rules, etc. As long as the competency of the authority issuing the
suspension order is not challenged, this Court cannot interfere with the
order of the suspension. It is for the respondents to review the
suspension periodically, depending upon the circumstances prevalent,
taking note of the judgment of the Hon'ble Supreme Court in Ajay
Kumar Choudhary vs. Union of India through its Secretary and
another, reported in 2015 (7) SCC 291, and to consider
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W.P.No.3371 of 2021
reinstatement in a non sensitive post, provided there are no legal
impediments, as tax payers' money should not be wasted in the form of
payment of subsistence allowance without work.
8. It is pertinent to mention here that the entire enquiry will
get vitiated in case the subsistence allowance is not paid. Since the
petitioner's representation is already pending with the 1st respondent,
a direction is issued to the 1st respondents to consider the
representation of the petitioner dated 02.12.2019, if not already
disposed of, and pass appropriate orders thereon, in accordance with
law, after affording an opportunity of hearing to the petitioner within a
period of two months from the date of receipt of a copy of this order.
9. It is needless to mention that if any departmental
proceedings have been commenced or initiated, it is open to the
respondents to proceed with the same so as to bring the proceedings to
a logical end and the respondents, while taking a decision, shall bear in
mind the judgments of the Apex Court (supra) and this Court dated
06.01.2021 made in W.P.No.13 of 2021 in V.Mohanraj case, (cited
supra) especially in paragraph Nos.6 & 9.
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W.P.No.3371 of 2021
10. It is made clear that the enquiry should not be stalled,
citing the reason of non availability of documents. If the documents are
taken by the DVAC or other Departments or filed before the Court,
certified copies of those documents can be obtained by the Department
and in the event of any such request made, other Departments are
bound to furnish the same, in order to enable the concerned
Department to proceed with the enquiry against the delinquent and
DVAC or other Departments should not be a party for non-conduct of
enquiry, No costs. Consequently, the connected miscellaneous petition
is closed.
With the above observation and direction, the writ petition is
disposed of. No costs.
17.02.2021
Index : Yes/no
Speaking order : Yes/No
rsi/ar
Note: Issue order copy on .03.2021
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W.P.No.3371 of 2021
To:
1.The District Collector,
Villupuram District,
Villupuram.
2.The District Revenue Officer,
Villupuram District,
Villupuram.
3.The Revenue Divisional Officer,
Thirukoilur,
Villupuram District.
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W.P.No.3371 of 2021
S.VAIDYANATHAN, J.
rsi/ar
W.P.No.3371 of 2021
17.02.2021
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