Madras High Court
Mohankumar vs The Superintending Engineer on 20 July, 2021
W.P(MD)No.10396 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.07.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P(MD)No.10396 of 2021
and W.M.P.(MD)Nos.8079 and 8080 of 2021
Mohankumar ... Petitioner
vs.
1.The Superintending Engineer,
Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO),
Tirunelvei Electricity Distribution Circle,
Tirunelveli – 11.
2.The Assistant Executive Engineer,
Distribution TANGEDCO,
Vallioor,
Tirunelveli District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of a Writ of Certiorarified Mandamus, calling for the
records relating to the order passed by the 1st respondent in memo
No.ADM/IV/A1/F.Suspension/c.no.528/2019, dated 26.07.2019 and the
consequential order of rejection of petitioner's representation vide Ka.No.
008337/326/Ni.Pi.4/ol/Ko.Tha.Pa.Nee/2021, dated 17.04.2021 and quash
the same as erroneous and may direct the respondents to reinstate the
petitioner into service within a stipulated period.
https://www.mhc.tn.gov.in/judis/
1/12
W.P(MD)No.10396 of 2021
For Petitioner : Mr.K.P.Narayana Kumar
For Respondents : Mr.T.Sakthikumaran
ORDER
The present Writ petition is filed challenging the order of the first
respondent in memo No.ADM/IV/A1/F.Suspension/C.No.528/2019,
dated 26.07.2019 and the consequential order of rejection of petitioner's
representation vide Ka.No.008337/326/Ni.Pi.4/ol/Ko.Tha.Pa.Nee/2021,
dated 17.04.2021, and for a consequential direction to the respondents to
reinstate the petitioner into service within a stipulated period.
2. The petitioner while working as Assistant Engineer
(Distribution) in T.Kallikulam, Vallioor Division, a criminal case was
registered and in view of the said criminal case, petitioner was suspended
from service with effect from 26.07.2019. In the Writ Petition, the
petitioner denied that he demanded and accepted bribe. According to the
petitioner, a false case is foisted against him. Though criminal case was
registered on 26.07.2019, till date, no final report is filed. The
respondents have not issued any charge memo. The petitioner is kept
under suspension from 26.07.2019 till date. The petitioner gave a
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.10396 of 2021
representation to the respondents to revoke the suspension and filed W.P.
(MD)No.25266 of 2019. This Court, by order dated 02.02.2021, directed
the respondents to consider the representation of the petitioner, in the
light of the decision of the Hon'ble Apex Court in Ajay Kumar
Choudhary Vs. Union of India reported in 2015 (7) SCC 291, and pass
orders within a period of one week from the date of receipt of a copy of
the said order. The first respondent, by the impugned order, rejected the
request of the petitioner. Challenging the said order, the petitioner has
come out with the present Writ Petition.
3. The learned counsel appearing for the petitioner relied on the
judgment of the Hon'ble Apex Court in Ajay Kumar Choudhary Vs.
Union of India reported in 2015 (7) SCC 291.
4. The respondents filed counter affidavit. The learned counsel
appearing for the respondents submitted that the petitioner demanded and
received bribe and he was got red-handed and was arrested. The
petitioner is facing grave charges and it will not be in interest of the
Department to revoke the order of suspension. If the petitioner is
reinstated into service, it will project bad image to the public. The
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.10396 of 2021
learned counsel appearing for the respondents relied on the judgment of
the Division Bench of this Court in W.A.No.599 of 2020 [Tamil Nadu
Generation & Distribution Corporation Limited (TANGEDCO) and
others vs. A.Srinivasan], dated 02.09.2020. Paragraphs-10 & 11 of the
judgment of the First Bench of this Court read as follows:-
“10. On perusal of the judgment in Ajay Kumar
Choudhary, it is clear that the Hon-ble Supreme Court
was dealing with a case wherein the Appellant had been served
with a charge sheet before the judgment was pronounced. On
that basis, on the facts of that case, paragraph 22 reflects that
the order of suspension was not set aside although the
suspension period exceeded three months. However, while
disposing of the case, the Hon-ble Supreme Court held
that the suspension period should not extend beyond three
months if the memorandum of charges/charge sheet is not
served on the delinquent officer/employee. The judgment in
Ajay Kumar Choudhary was dealt with in detail by a Division
Bench of this Court in Director General of Police [cited
supra]. In the said judgment, this Court held as follows in
paragraphs 9,10 & 11:
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 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
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.10396 of 2021
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: 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 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.?
Likewise, the Division Bench of this Court in
R.Elumalai v. District Collector, [2020 SCC online
Mad 1472, considered the Ajay Kumar Choudhary
case and the judgment of the Delhi High Court in
Government of NCT of Delhi (cited supra) and
concluded that in cases relating to suspension for
alleged involvement in graft charges leading to a
criminal trial, interference with the suspension order
on the basis that the suspension period exceeded
three months is not justifiable.”
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.10396 of 2021
11. Upon considering the law laid down in the judgments
that have been discussed herein above, it is clear that there is no
absolute rule in respect of the validity of suspension orders from
the perspective of duration especially when such suspension is in
the context of a pending criminal proceeding. In other words, in
these situations, the law on suspension as laid down in
paragraph 11 of R.P.Kapur v. Union of India, AIR 1964 SC
787, by a Five Judge Bench upholding suspension pending
enquiry subject to payment of subsistence allowance as per
service conditions and that in Union of India v. Ashok Kumar
Aggarwal (2013) 16 SCC 147, wherein it was held that the court
does not sit in appeal and that such orders would be interfered
with only if the charges are patently baseless, mala fide or
vindictive would continue to hold the field. In this case, as stated
earlier, there is a pending criminal proceeding, wherein the
Respondent is being prosecuted for corruption. In these
circumstances, the decision of the learned Single Judge to direct
the Chief Judicial Magistrate to conclude the proceeding within
four months is justified and does not warrant interference. On
the other hand, especially in light of the above direction, the
revocation of the suspension on the ground that it is prolonged is
clearly unsustainable. The consequential direction to post the
Respondent in a non-sensitive post is also not sustainable
especially in view of the fact that the Respondent in an Assistant
Engineer and it is difficult to find a post that may be termed non-
sensitive in that cadre. Therefore, we allow the appeal in part
insofar as it directs the Appellants to revoke the suspension and
to post the Respondent in a non-sensitive post. On the other
hand, we affirm the impugned order to the extent that the Chief
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.10396 of 2021
Judicial Magistrate, Thiruvannamalai, has been directed to
conclude the criminal proceedings within a period of four
months, albeit with the qualification that the said period shall
run from the date of receipt of a copy of the judgment in this
appeal.”
5. Heard the learned counsel appearing for the petitioner, learned
counsel appearing for the respondents and perused the materials
available on record carefully.
6. From the materials placed on record, it is seen that a criminal
case is registered against the petitioner and he was arrested on
26.07.2019, for demanding and accepting bribe. In view of the same, by
the impugned order dated 26.07.2019, the petitioner was suspended from
service. From these facts, it is seen that the petitioner was kept under
suspension for two years. According to the petitioner, no final report is
filed and no charge memo is issued to the petitioner. Such contention is
not denied by the learned counsel for the respondents. In such
circumstances, the judgment of Hon'ble Apex Court in Ajay Kumar
Choudhary Vs. Union of India reported in 2015 (7) SCC 291 is squarely
applicable to the facts of the present case.
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.10396 of 2021
7. Paragraphs 21 and 22 of the said of judgment are relevant to
decide the issue in the present Writ Petition and the same reads as
follows:
''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/charge-sheet 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 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 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
recognised principle of human dignity and the right to a
speedy trial and shall also preserve the interest of the
Government in the prosecution. We recognise that the 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
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.10396 of 2021
adopted by us.
22. So far as the facts of the present case are concerned,
the appellant has now been served with a charge-sheet, and,
therefore, these directions may not be relevant to him any
longer. However, if the appellant is so advised he may
challenge his continued suspension in any manner known to
law, and this action of the respondents will be subject to
judicial review.''
It has been held by the Hon'ble Apex Court that if delinquent employee is
suspended from service on registration of a criminal case or in
contemplation of disciplinary proceedings, if charge sheet or charge
memo is not served on the delinquent employee within three months, the
suspension has to be revoked. If charge memo is issued within three
months, then it is for the employee to give representation for revoking
the suspension. The employer may revoke or reject the representation.
The said order is subject to judicial review. Further the employer has to
review the order of suspension periodically and pass orders either
revoking or continuing the suspension. If the employer continued
suspension, he must give valid reason for the same. In the present case,
it is not the case of the respondents that suspension of the petitioner is
reviewed periodically and continued for valid reasons. On the other
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.10396 of 2021
hand, it is not the case of the respondents that the petitioner will tamper
with the documents and influence with witnesses.
8. The judgment of Division Bench of this Court relied on by the
learned counsel for the respondent is not applicable to the facts of present
case. In that case, charge sheet was filed and trial in criminal case was in
progress. In the present case, no charge sheet has been filed and trial in
criminal case is yet to commence.
9. Considering the above materials, the impugned order is set
aside. The respondents are directed to reinstate the petitioner into
service. It is open to the respondents to transfer the petitioner to some
other place.
10. With the above direction, this Writ Petition is allowed. No
costs. Consequently, connected miscellaneous petitions are closed.
20.07.2021
Index : Yes / No
Internet : Yes / No
vsm
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.10396 of 2021
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
1.The Superintending Engineer,
Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO),
Tirunelvei Electricity Distribution Circle,
Tirunelveli – 11.
2.The Assistant Executive Engineer,
Distribution TANGEDCO,
Vallioor,
Tirunelveli District.
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.10396 of 2021
V.M.VELUMANI,J.
vsm
W.P(MD)No.10396 of 2021
and W.M.P.(MD)Nos.8079 and 8080 of 2021
20.07.2021
https://www.mhc.tn.gov.in/judis/
