Madras High Court
P.Subramanian vs The Chief Engineer on 22 July, 2021
W.P.(MD)No.3128 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.07.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P.(MD)No.3128 of 2020
P.Subramanian ... Petitioner
Vs.
1.The Chief Engineer,
Distribution TANGEDCO,
K.Pudur, Madurai-625 007.
2.The Superintending Engineer,
Sivagangai Electricity Distribution Circle,
TANGEDCO,
Sivagangai-630 651. ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution
of India, to issue a Writ of Mandamus, directing the second
respondent to revoke the suspension and reinstate the petitioner in
the post of Commercial Assistant in the light of the Hon'ble
Supreme Court in Ajay Kumar Choudhary vs. Union of India
reported in 2015(7) SCC 291 within the stipulated time.
For Petitioner : Mr.A.Rajkumar Sen
For Respondent : Mr.T.Sakthikumaran
Government Advocate
1/11
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W.P.(MD)No.3128 of 2020
ORDER
This writ petition is filed for a direction to the second
respondent to revoke the suspension and reinstate the petitioner in
the post of Commercial Assistant in the light of the judgment of the
Hon'ble Apex Court in Ajay Kumar Choudhary vs. Union of
India reported in 2015(7) SCC 291 within the stipulated time.
2. According to the petitioner, he was appointed as
Commercial Assistant on 03.02.2000 through Employment
Exchange in the respondents Department. Subsequently, he was
transferred to the office of Assistant Engineer, Singampunari.
While so, a case in Cr.No.4 of 2008 for the offences punishable
under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption
Act, 1988, has been registered for demanding and accepting of
Rs.200/- as illegal gratification from one Mrs.Sivaneshwari and the
said criminal case is pending. Based on the said criminal case, the
petitioner was suspended from service on 30.08.2008 by the
second respondent by proceedings dated 01.09.2008. Even though
the second respondent issued order of suspension on 30.08.2008,
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W.P.(MD)No.3128 of 2020
the second respondent has not initiated any disciplinary
proceedings and not served any chargememo and has not
conducted any enquiry till date. Without conducting any enquiry,
the petitioner is put under suspension for a prolonged period of 13
years. The petitioner sent various representations to revoke the
order of suspension. The respondents failed to pass orders on the
representation, hence, the petitioner has come out with the present
writ petition.
3. The learned counsel appearing for the petitioner submitted
that the petitioner is under suspension from 30.08.2008 and the
respondents have not issued any chargememo to him. No
chargesheet is filed in the criminal case and relied on the judgment
of the Hon'ble Apex Court in Ajay Kumar Choudhary vs. Union
of India and another reported in 2015(7) Supreme Court
Cases 291. The Hon'ble Apex Court in the above referred
judgment in paragraphs- 21 and 22 of the judgment 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
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W.P.(MD)No.3128 of 2020
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.
22. So far as the facts of the present case
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W.P.(MD)No.3128 of 2020
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.''
4. The the learned Standing counsel appearing for the
respondents submitted that the petitioner has committed grave
misconduct and the criminal case initiated against him is pending.
The contention of the learned counsel appearing for the petitioner
that an employee cannot be kept under suspension for a prolonged
period and his reliance of Ajay Kumar Choudhary's case is not
applicable to the facts of the present case. The learned Standing
counsel appearing for the respondents relied on the judgment of
the First Bench of this Court, dated 02.09.2020 in W.A.No.
599/2020,[Tamil Nadu Generation & Distribution Corporation
Limited (TANGEDCO) and others vs. A.Srinivasan] and submitted
that revocation of suspension after certain period, is not automatic
and when criminal case is pending, the petitioner can be kept
under suspension till the disposal of the criminal case.
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W.P.(MD)No.3128 of 2020
5. The learned Standing counsel appearing for the
respondent referred to Paragraph-11 of the said judgment and
contended that unless the charges are patently baseless, mala fide
or vindictive, the Court cannot interfere with order of suspension
and prayed for dismissal of the writ petition. Paragraph-11 of the
said judgment reads as follows:-
“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
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W.P.(MD)No.3128 of 2020
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 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.”
6. Heard the learned counsel appearing for the petitioner
and the learned Standing Counsel appearing for the respondents
and perused the materials available on record.
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W.P.(MD)No.3128 of 2020
7. From the above rival submissions made by the learned
counsel on either side, it is seen that the criminal case was
registered against the petitioner for demanding and accepting
bribe. The petitioner was arrested and subsequently, enlarged on
bail. A reading of the impugned order of suspension shows that in
view of criminal case registered against the petitioner, he was
suspended from service with effect from 30.08.2008. It is the
contention of the learned counsel appearing for the petitioner that
after registration of criminal case against the petitioner, there is no
progress in the criminal case. It is not the case of the respondents
that in the criminal case, charge-sheet is filed and the same has
been served on the petitioner. In such circumstances,
Paragraph-21 of the Judgment in Ajay Kumar Choudhary Vs.
Union of India (UoI) and others reported in 2015(7) SCC 291,
is squarely applicable to facts of the present case. The Hon'ble
Apex Court has categorically held that the suspension order should
not extend beyond three months, if within this period,
memorandum of charges/charge-sheet is not served on the
delinquent employee. The Hon'ble Apex Court has also held that if
the memorandum of charges/charge-sheet is served on the
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W.P.(MD)No.3128 of 2020
delinquent employee, a reasoned order must be passed for
extension of suspension. In the present case, no charge-sheet is
filed in the criminal case and therefore, as per the judgment of
Hon'ble Apex Court referred to above, the order of suspension
should not be extended beyond three months. Even if charge-sheet
is filed, suspension can be extended only by reasoned order by the
respondents. The judgment of the First Bench relied on by the
learned Standing counsel appearing for the respondent is not
applicable to the facts of the present case, as in the said judgment,
charge-sheet is filed and direction has been given to the concerned
Magistrate to conclude the disciplinary proceedings within four
months. It is pertinent to note that in paragraph-22 of the
judgment, reported in 2015(7 SCC 291 (Supra), the Hon'ble
Apex Court has held that if chargesheet is served on the delinquent
employee, it is open to him to challenge his continuous suspension
and the action of the employer will be subject to judicial review.
8. The Hon'ble Apex Court while holding that order of
suspension should not be extended beyond three months. If charge
sheet or charge memo is not served on the delinquent employee
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W.P.(MD)No.3128 of 2020
within that time, has given liberty to the Department in to transfer
the concerned person to any Department in any of its Office, so as
to sever any local or personal contact that he may have and which
he may misuse for obstructing the proceedings initiated.
9. In view of the ratio laid down in the judgment of the
Hon'ble Apex Court referred to above, the impugned order of
suspension is liable to be set aside and is hereby set set aside. It is
open to the respondents to transfer the petitioner to some other
place, so that, the petitioner will not be in a position to tamper
with documents or obstruct the proceedings pending against him.
10. Accordingly the writ petition is allowed. No costs.
Index:Yes/No
Internet:Yes/No 22.07.2021
am
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.
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W.P.(MD)No.3128 of 2020
V.M.VELUMANI, J.
am
W.P.(MD)No.3128 of 2020
22.07.2021
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