Madras High Court
M.Saravanan vs The Chairman-Cum-Managing ... on 18 February, 2021
W.P.No.3542 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 18.02.2021
CORAM
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.3542 of 2021
(Heard through VC)
M.Saravanan .. Petitioner
-vs-
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,
PEDC/TANGEDCO/230 KVSS Complex,
4 Road, Thuraimangalam,
Perambalur – 621 220. .. Respondents
Prayer: Petition filed under Article 226 of Constitution of India to issue
a Writ of Mandamus to consider the petitioner’s representation dated
07.11.2021 and direct the respondents to revoke the suspension order
dated 14.02.2020 bearing Memo No.36/ADM.II/A.2/F.Suspension/2020
passed by the 3rd respondent and reinstate the petitioner in service with
all benefits including continuity of service.
For Petitioner : Mr.M.Aravind Subramaniam
For Respondents : Mr.Fakkir Mohideen
1/10
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W.P.No.3542 of 2021
ORDER
The writ petition has been filed seeking a direction to the
respondents to consider the petitioner’s representation dated
07.11.2021 and to revoke the suspension order dated 14.02.2020
bearing Memo No.36/ADM.II/A.2/F.Suspension/2020 passed by the 3rd
respondent and reinstate the petitioner in service with all benefits
including continuity of service.
2. Mr.Fakkir Mohideen, learned counsel takes notice on behalf
of the respondents. By consent of both parties, the writ petition is
taken up for final disposal at the admission stage itself.
3. The petitioner was placed under suspension based on the
complaint given by one Mr.P.Dharmalingam. Since, he was kept under
suspension for more than a year, he submitted a representation dated
07.11.2020 to the respondents to revoke the suspension order dated
14.02.2020, which did not evoke any response. Hence, this petition.
4. Learned Standing Counsel appearing for the Respondents
drew the attention of this Court to the recent judgment of the First
Bench of this Court passed in W.A.No.3957 of 2019 dated 19.11.2019
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W.P.No.3542 of 2021
and contended that the First Bench has discussed the issued in extenso
and held as follows:
“22.The decision of the Supreme Court in Ajay
Kumar Choudhary (supra) itself shows that there
cannot be a hard and fast rule in this regard. If
that were so, the Supreme Court would have
quashed the suspension of Ajay Kumar
Choudhary. However, in view of the fact that the
charge memo had been issued to Ajay Kumar
Choudhary – though after nearly three years of
his initial suspension, the Supreme Court held
that the directions issued by it would not be
relevant to his case.”
12. The reason for us to accept the aforesaid proposition
emerges from an insistence in such matters on the
trustworthiness, integrity and the devotedness that is
required of a disciplined officer, who, in our opinion, should
be beyond the influence of any allegations of corruption. The
impact on the moral fibre of the society and the faith of the
people should not be diluted on account of any occasional
instances of misconduct. At the same time, officers should be
guarded against ungenerous and unfavourable criticism on
the basis of any invented tales, but their conduct should not
be open to any genuine suspicion. The charges levelled
against the respondent/writ petitioner in the present case
can be assessed either way on the basis of the evidence that
may be collected during the disciplinary proceedings or even
during the criminal trial. This Court, therefore, should be
cautious enough to take care while passing an order of
reinstatement about the gravity of the allegations and the
possibility of the delinquent in either trying to influence or
delay the proceedings and gain advantage only by a sheer
passage of time. The concept of human rights and protection
of Article 21 should not altogether eclipse the circumstances
of a case, where serious graft charges are pending
adjudication.
13. In our opinion, it would be appropriate that in such
cases and on peculiar facts, it would be expedient and in the
interest of justice to ensure that public faith and confidence
is not diluted and consequently, we modify the order of the
learned Single Judge directing posting of the respondent/writ
petitioner against a nonsensitive post to the extent that he
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W.P.No.3542 of 2021
shall be treated to be on leave with salary for a period of
three months from today. The appellant State will be bound
to conclude the enquiry proceedings and the respondent/writ
petitioner will be bound to co-operate with the same in order
to bring the disciplinary proceedings to a logical conclusion.
The said proceedings would be, however, subject to any
other proceedings that may be pending in this regard against
the respondent/writ petitioner.
14. Learned counsel for the respondent/writ petitioner
submits that a direction may be issued with regard to the
conclusion of the criminal trial as well. This is not a petition,
nor the subject matter of the petition is the criminal trial and
therefore, it will be open to the respondent/writ petitioner to
approach the appropriate forum for any such direction.
15. The writ appeal is, accordingly, allowed to the extent
indicated above. No costs. Consequently, C.M.P.No.24826 of
2019 is closed."
5. 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
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W.P.No.3542 of 2021
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 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.”
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W.P.No.3542 of 2021
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 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."
6. 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.
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W.P.No.3542 of 2021
7. Insofar as the present case on hand is concerned, the relief
sought for by the petitioner, that the suspension order needs to be
interfered with, cannot be blindly granted, in the absence of any prima
facie case made to that extent. 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 his
reinstatement in a non sensitive post, provided there are no legal
impediments, on the basis of the representation of the petitioner dated
07.11.2021 in accordance with law, after affording an opportunity of
hearing to the petitioner, as tax payers money should not be wasted in
the form of payment of subsistence allowance without work. The
respondents shall take a decision within a period of 60 days from the
date of receipt of a copy of this order and while taking a decision, the
respondents shall bear in mind the judgments of the Apex Court
(supra), Division Bench of this Court dated 19.11.2019 made in
W.A.No.3957 of 2019 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.3542 of 2021
8. 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.
9. With the above directions, the writ petition is disposed of.
No costs.
18.02.2021
Index : Yes/no
Speaking order : Yes/No
rsi
To
1.The Chairman-cum-Managing Director,
TANGEDCO,
NPKRR Maaligai,
No.144, Anna Salai,
Chennai – 600 002.
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W.P.No.3542 of 2021
2.The Chief Engineer (Personnel),
TANGEDCO,
NPKRR Maaligai,
No.144, Anna Salai,
Chennai – 600 002.
3.The Superintending Engineer,
PEDC/TANGEDCO/230 KVSS Complex,
4 Road,
Thuraimangalam,
Perambalur – 621 220.
https://www.mhc.tn.gov.in/judis/
W.P.No.3542 of 2021
S.VAIDYANATHAN, J.
rsi
W.P.No.3542 of 2021
18.02.2021
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