Madras High Court
Rajendran vs The Superintendent Of Police on 25 June, 2021
W.P(MD)No.3100 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.06.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P(MD)No.3100 of 2020
and
W.M.P(MD)No.2641 of 2020
Rajendran ... Petitioner
vs.
The Superintendent of Police,
Pudukottai District,
Pudukottai. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus, to call for the records from
the respondent in his proceedings in D.No.K1/30785/08, D.O.No.1413/08,
dated 24.09.2008 and quash the same and direct the respondent to give
the petitioner posting revoking the prolonged suspension.
For Petitioner : Mr.N.Balakrishnan
For Respondent : Mr.K.S.Selva Ganesan
Government Advocate
1/8
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W.P(MD)No.3100 of 2020
ORDER
The petitioner has filed the present Writ Petition, to quash the
proceedings of the respondent, dated 24.09.2008 and to direct the
respondent to revoke the prolonged suspension.
2.According to the petitioner, while he was working as a Head
Constable at Aranthangi Police Station, he was arrested on 21.09.2008, in
connection with Crime No.2 of 2008, for the alleged offences punishable
under Sections 7, 13(2) r/w 13(1) (d) and 12 of Prevention of Corruption
Act, 1988, for demanding and accepting bribe. The petitioner was
suspended from service by an order, dated 24.09.2008, with effect from
21.09.2008 A.N. The petitioner filed a Writ Petition in W.P(MD)No.8603 of
2009, before this Court, to set aside the order of suspension, dated
24.09.2008. At the time of hearing the Writ Petition, the learned counsel
appearing for the petitioner restricts his claim for a direction to the
respondent to dispose of the representation of the petitioner and this Court,
by an order, dated 31.08.2009, directed the respondent to consider the
representation of the petitioner and pass orders. As per the order of this
Court, dated 31.08.2009, the petitioner's representation was rejected on
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W.P(MD)No.3100 of 2020
13.10.2009. According to the petitioner, his representation, dated
24.09.2019 for revocation of suspension, was again rejected on
17.10.2019. In such circumstances, challenging the impugned order of
suspension, dated 24.09.2008, the petitioner has come out with the present
Writ Petition.
3.In support of his contention, the learned counsel appearing for the
petitioner relied on the Judgment of the Hon'ble Apex Court reported in
(2015) 7 SCC 291 [Ajay Kumar Choudhary Vs. Union of India and
another].
4.The respondent filed a counter-affidavit.
5.Mr.K.S.Selva Ganesan, learned Government Advocate appearing for
the respondent submitted that the petitioner was involved in a vigilance
case and in view of the pendency of the criminal case, the petitioner was
not entitled for revocation of suspension and the respondent has rightly
rejected the representation of the petitioner, as the revocation of suspension
will be against public policy. The learned Government Advocate appearing
for the respondent further submitted that the petitioner was already
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W.P(MD)No.3100 of 2020
imposed with a punishment of “postponement of his next increment for
three years with cumulative effect”, vide proceedings, dated 22.10.2013. In
view of the pendency of the criminal case, the suspension of the petitioner
continues till date. The Government issued a letter, dated 23.07.2015,
stating that the time limit of three months prescribed on suspension cases is
applicable only to the cases arising out of departmental disciplinary
proceedings and not applicable to vigilance case. In view of the same, the
Judgment relied on by the learned counsel appearing for the petitioner is
not applicable to the facts and circumstances of the case and prayed for
dismissal of the Writ Petition.
6.Heard the learned counsel appearing for the petitioner and the
learned Government Advocate appearing for the respondent and perused
the entire materials available on record.
7.From the materials available on record, it is seen that the petitioner
was suspended by the respondent, by an order, dated 24.09.2008, with
effect from 21.09.2008. The suspension order continues till date for nearly
13 years. In number of cases, this Court and the Hon'ble Apex Court have
deprecated the practice of keeping an employee under suspension for a long
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W.P(MD)No.3100 of 2020
period. At the same time, it has been held that it is a prerogative of the
employer either to continue the suspension or revoke the same, after
reviving the facts and circumstances of the case. The Hon'ble Apex Court in
Ajay Kumar's case (cited supra) held that if charge-sheet in criminal
case or charge-memo in disciplinary proceedings is not served within three
months, the suspension has to be revoked. At the same time, the Hon'ble
Apex Court in Ajay Kumar's case (cited supra), held that if a charge-
memo or charge-sheet is served on the delinquent employee, then it is open
to the delinquent employee to make a representation for revocation of
suspension. The employer has to consider the representation and pass
orders on such representation. The orders so passed is subject to judicial
review. The relevant portions of the said Judgment referred to above read
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 concerned person to any Department in any of its offices
within or outside the State so as to sever any local or personal contact
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W.P(MD)No.3100 of 2020
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 recognized principle of human
dignity and the right to a speedy trial and shall also preserve the
interest of the Government in the prosecution. We recognize that
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 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.”
8.In the present case, the petitioner is kept under suspension for
nearly 13 years based on the criminal case registered against the petitioner.
Only the investigating officers are to be examined to conclude the criminal
case. In such circumstances, there is no possibility of the petitioner in
tampering with evidence or influencing the official witness. Further, the
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W.P(MD)No.3100 of 2020
reason given by the respondent in the order, dated 17.10.2019, rejecting
the request of the petitioner is erroneous and not valid. Even though the
petitioner has not challenged the said order, this Court can take note of the
same while considering the Writ Petition challenging the order of
suspension. As rightly stated, the petitioner is under suspension for nearly
13 years and criminal case is in the final stage.
9.In view of the above facts, the order of suspension, dated
24.09.2008, passed by the respondent is liable to be set aside and the same
is set aside. It is open to the respondent to post the petitioner in some
other place.
10.With the above directions, this Writ Petition is allowed. No costs.
Consequently, connected Miscellaneous Petition is closed.
25.06.2021
Index : Yes / No
Internet : Yes / No
ps
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.3100 of 2020
V.M.VELUMANI,J.
ps
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
The Superintendent of Police,
Pudukottai District,
Pudukottai.
W.P(MD)No.3100 of 2020
25.06.2021
https://www.mhc.tn.gov.in/judis/
