Madras High Court
M.Anbu Selvam vs The Division Engineer (Highways) on 22 July, 2021
W.P.(MD)No.11871/2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.07.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P.(MD)No.11871 of 2021
M.Anbu Selvam ... Petitioner
Vs.
The Division Engineer (Highways)
Construction & Maintenance,
Madurai. ... Respondent
PRAYER: Writ Petition is filed under Article 226 of the Constitution
of India, to issue a Writ of Certiorarified Mandamus, calling for the
records in Memorandum No.13/2020/Aa2/dated 23.04.2021 on the
file of the respondent and quash the same and consequently, direct
the respondent to revoke the order of suspension dated 17.10.2019.
For Petitioner : Mr.S.Kumar
For Respondent : Mr.P.Subbaraj,
Government Advocate.
1/10
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.11871/2021
ORDER
This writ petition is filed to quash the impugned order, dated
23.04.2021, passed by the second respondent and for a direction to
the respondent to revoke the order of suspension dated 17.10.2019.
2. According to the petitioner, he was appointed as Gang
Mazoor on 01.08.1998. Due to ulterior motive, a false case has
been registered against the petitioner in Crime No.16 of 2019, by
the All Women Police Station, Melur, for the offences under
Sections 417, 406 and 420 of I.P.C. He was remanded to judicial
custody from 14.10.2019. Thereafter, he was released on bail. Due
to the arrest and remand of the petitioner, the respondent placed
the petitioner under suspension, by order dated 17.10.2019.
Though charge sheet has been filed as early as on 24.01.2020, trial
has not been completed and no charge memo has been issued by
the respondent. Till date, the respondent has not revoked the
order of suspension. Hence, the petitioner gave a representation
on 04.06.2020, to revoke the order of suspension. Since the same
was not considered, the petitioner has filed W.P.(MD)No.8597 of
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.11871/2021
2020, challenging the order of suspension dated 17.10.2019. By
order dated 04.08.2020, this Court directed the respondent to
consider the representation of the petitioner and pass orders on
merits within a period of eight weeks. However, the respondent
refused to revoke the order of suspension by communication dated
08.09.2020. Challenging the said communication, the petitioner
filed W.P.(MD)No.5455 of 2021. By order dated 12.03.2021, this
Court directed the petitioner to make a representation for
revocation of suspension and the same shall be considered in
accordance with the decision of Hon'ble Apex Court in Ajay
Kumar Choudhary Vs. Union of India reported in 2015 (7)
SCC 291. However, the respondent without considering the said
judgment, rejected the request of the petitioner for revocation of
suspension, on the ground that criminal case is pending.
Challenging the said order, the petitioner has come out with the
present Writ Petition.
3. The learned counsel appearing for the petitioner submitted
that though charge sheet has been filed as early as on 24.01.2020,
trial has not been completed so far. The respondent has also not
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.11871/2021
reviewed the order of suspension. The petitioner is kept under
suspension for a long period and prayed for setting aside the order
of suspension. Keeping an employee under suspension for a long
time and paying subsistence allowance causes financial loss to the
respondent Department. The learned counsel for the petitioner
further submitted that keeping an employee under suspension for
indefinite long period, is deprecated by this Court as well as by the
Hon'ble Apex Court. In support of his contention, the learned
counsel appearing for the petitioner relied on a judgment of
Hon'ble Apex Court in Ajay Kumar Choudhary Vs. Union of
India reported in 2015 (7) SCC 291.
4. Heard the learned counsel appearing for the petitioner and
the learned Government Advocate appearing for the respondent
and perused the materials available on record.
5. From the materials available on record, it is seen that the
petitioner was arrested on 14.10.2019 in Crime No.16 of 2019, for the
offences under Sections 417, 406 and 420 of I.P.C., and thereafter,
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.11871/2021
he was enlarged on bail. The respondent, by proceedings dated
17.10.2019, suspended the petitioner from service, in view of the
registration of criminal case and arrest of the petitioner. Though the
charge sheet has been filed as early as on 24.01.2020, trail has not been
completed so far and no charge memo has been issued by the respondent.
Therefore, the petitioner gave a representation on 04.06.2020.
Since the same was not considered, the petitioner filed a writ
petition in W.P(MD)No.8597 of 2020. This Court by order dated
04.08.2020, directed the respondent to consider the representation
of the petitioner and pass orders within a period of eight weeks.
However, the respondent refused to revoke the order of suspension
by communication dated 08.09.2020. Hence, the petitioner filed
W.P.(MD)No.5455 of 2021, challenging the said communication. By
order dated 12.03.2021, this Court directed the respondent to
consider the request of the petitioner in accordance with the
decision of the Hon'ble Apex Court. However, the respondent
rejected the representation of the petitioner citing the pendency of
the criminal case. The issue of consideration of suspension of
delinquent employee and revocation was considered by the Hon'ble
Apex Court in Ajay Kumar Choudhary vs. Union of India and
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.11871/2021
another reported in 2015(7) Supreme Court Cases 291. The
Hon'ble Apex Court in the judgment referred to above, held that
when an employee was suspended from service in contemplation of
domestic enquiry or pending criminal case, charge memo must be
served within three months from the date of suspension or charge-
sheet must be served within three months. If employer fails to
serve the charge memo within three months, the order of
suspension has to be revoked. If charge sheet/charge memo is
served, it is open to the delinquent employee to make a
representation to the employer for revocation of suspension. Any
order passed by the employer on the representation is subject to
judicial review. When the employer rejects the request for
revocation, valid reasons must be given. It is well settled that long
period of suspension is not a ground for revocation of suspension.
At the same time, it is also held that protracting the period of
suspension is not advisable as it will cause financial loss to the
Government and also cause mental agony and hardship to the
delinquent employee.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.11871/2021
6. The Hon'ble Apex Court in Ajay Kumar Choudhary' case
at paragraphs- 21 and 22, held 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 adopted by
us.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.11871/2021
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.''
7. It has been also held by the Hon'ble Apex Court that the
Department is free to transfer the concerned person to any
Department in any of its offices so as to sever any local or personal
contact that he may have and which he may misuse for obstructing
the trial of the criminal case and disciplinary proceedings initiated
against him. In the present case, though the petitioner was
suspended on 17.10.2019, the respondent has not revoked or
reviewed the order of suspension of the petitioner till date. As per
the judgment of this Court and the Hon'ble Apex Court especially,
as per the ratio in the judgment of Hon'ble Apex Court in Ajay
Kumar Choudhary' case [Supra] the suspension of the
petitioner is liable to be revoked.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.11871/2021
8. For the above reasons, the impugned order dated
23.04.2021, is set aside. The respondent is directed to reinstate the
petitioner within a period of four weeks from the date of receipt of
a copy of this order. It is open to the respondent to transfer the
petitioner to some other place and posting him in an insignificant
post.
9. Accordingly this Writ Petition is allowed. No costs.
Index:Yes/No
Internet:Yes/No 22.07.2021
am
To
1.The District Collector,
Sivagangai,
Sivagangai District.
2.The District Revenue Officer,
Sivagangai,
Sivagangai District.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.11871/2021
V.M.VELUMANI, J.
am
W.P.(MD)No.11871 of 2021
22.07.2021
https://www.mhc.tn.gov.in/judis/
