Madras High Court
Mrs.R.Vijyakumari vs The Secretary To Government on 10 March, 2021
W.P.No.6072 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.03.2021
CORAM
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.6072 of 2021
and W.M.P.No.6705 of 2021
Mrs.R.Vijyakumari ... Petitioner
-vs-
1. The Secretary to Government,
Government of Tamil Nadu,
Municipal Administration and Water Supply Department,
Secretariat, Fort St.George,
Chennai-600 009.
2. The Managing Director,
Chennai Metropolitan Water Supply & Sewerage Board,
(Personnel and Administrative (VC) Department),
No.1, Pumping Station Road, Chintadripet,
Chennai-600 002. ... Respondents
Prayer: Petition is filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Certiorarified Mandamus, calling for
the records of the 2nd respondent in Proc.No.CMWSSB/P&A/VC2/32156/19
dated 02.11.2019 (ii) Memo No.CMWSSB/P&A/VC2/32156/19 dated
03.03.2020 and (iii) Memo No.CMWSSB/P&A/VC2/32156/19 dated 08.01.2021
and quash the same and consequently direct the respondents to reinstate
the petitioner by granting all attendant benefits forthwith.
For Petitioner : Mr.A.Ilaya Perumal
For R1 : Mr.P.V.Selvakumar
Addl. Govt. Pleader
For R2 : Mr.Vigneshwaran
*****
1/8
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W.P.No.6072 of 2021
ORDER
This Writ Petition has been filed, to call for the records of the 2nd
respondent in Proc.No.CMWSSB/P&A/VC2/32156/19 dated 02.11.2019 (ii)
Memo No.CMWSSB/P&A/VC2/32156/19 dated 03.03.2020 and (iii) Memo
No.CMWSSB/P&A/VC2/32156/19 dated 08.01.2021 and quash the same and
consequently direct the respondents to reinstate the petitioner by granting
all attendant benefits forthwith.
2. Mr.P.V.Selvakumar, learned Additional Government Pleader takes
notice on behalf of R1 and Mr.Vigneshwaran, learned counsel for R2. By
consent of both parties, the writ petition is taken up for final disposal at
the admission stage itself.
3. According to the petitioner, she was appointed as Assistant
Engineer in Chennai Metropolitan Water Supply & Sewerage Board (CMWSS)
and after periodical promotion, was at last promoted as Superintending
Engineer. It is the further case of the petitioner that on 14.11.2019, she was
arrested by the Additional Superintendent of Police and Inspector of Police,
DVAC on the false complaint of bribery and thereafter, she was released on
bail in Crime No.22/AC/2019 in Crl.M.P.No.1547 of 2019. It is further case of
the petitioner that while in custody, she was served with a suspension order
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W.P.No.6072 of 2021
by the 2nd respondent dated 02.11.2019. Though she sent a representation
dated 22.11.2019 to the 2nd respondent for revocation of the suspension
order, no decision has been taken thereon for revoking the suspension order
and she has been kept under suspension for quite a long time, which is
against the judgment of the Apex Court in Ajay Kumar Choudry vs. Union of
India, reported in (2015) 7 SCC 291. Having no other efficacious remedy, the
petitioner is before this Court.
4. It is represented by the respondents that a charge memo has
already been issued to the petitioner.
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
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W.P.No.6072 of 2021
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 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
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W.P.No.6072 of 2021
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.”
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
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W.P.No.6072 of 2021
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.
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 her reinstatement in a non sensitive post, provided there are no
legal impediments, on the basis of the representation of the petitioner
dated 22.11.2019 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,
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W.P.No.6072 of 2021
while taking a decision, shall bear in mind the judgments of the Apex Court
(supra) 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.
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, No costs. Consequently, the connected
miscellaneous petition is closed.
10.03.2021
Internet: Yes/No
Speaking Order: Yes/No
Note: Issue order copy on 23.03.2021
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W.P.No.6072 of 2021
S.VAIDYANATHAN, J.,
ar
To:
1. The Secretary to Government,
Government of Tamil Nadu,
Municipal Administration and Water Supply Department,
Secretariat, Fort St.George,
Chennai-600 009.
2. The Managing Director,
Chennai Metropolitan Water Supply & Sewerage Board,
(Personnel and Administrative (VC) Department),
No.1, Pumping Station Road, Chintadripet,
Chennai-600 002.
3. The Director, Vigilance and Anti Corruption,
Chennai.
W.P.No.6072 of 2021
10.03.2021
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