Madras High Court
S.Rathinavel vs The Director Of Survey And ... on 29 November, 2021
W.P(MD)No.4372 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P(MD)No.4372 of 2020
and
W.M.P.(MD)No.3676 of 2020
S.Rathinavel ... Petitioner
versus
1. The Director of Survey and Settlement/
Additional Director of Survey and Land Records,
Chepauk,
Chennai.
2. The Regional Deputy Director,
Land Survey and Records Department,
Madurai – 625 020.
3. The Assistant Director and Personal Assistant
to the District Collector (Land Survey),
District Land Survey Office,
Madurai – 625 020. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India,
seeking for the issuance of Writ of Certiorarified Mandamus, to
directing the respondents to call for the records pertaining to the
1/11
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W.P(MD)No.4372 of 2020
impugned suspension order in Rc.Y4/39766/2017 (Sy)(1) and retention
order in Rc.Y4/39766/2017 (Sy)(2) of the very same day dated
28.11.2017 are liable to be set aside and quash the same as illegal and
consequently, direct the first respondent to permit the petitioner to
retire from service with all monetary benefits.
For Petitioner : Mr.C.M.Arumugam
For Respondents : Mr.S.Shaji Bino,
Special Government Pleader
ORDER
This writ petition is filed as against the order of suspension and
order of retention dated 28.11.2017 passed by the first respondent and
also for a consequential direction to the first respondent to permit the
petitioner to retire from service with all monetary benefits.
2. The learned counsel for the petitioner submits that the
petitioner joined the service in the Survey Department in the year 1982
and he rendered 35 years of unblemished service and he was due to
retire from service on 30.11.2017. While so, the first respondent, vide
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W.P(MD)No.4372 of 2020
order dated 28.11.2017, placed the petitioner under suspension and
retained him in service, pursuant to a criminal case registered against
him in Cr.No.2 of 2018 on the file of the Inspector of Police, Vigilance
and Anti Corruption, Madurai, for the offence under Sections 468, 467
and 471 of IPC r/w. Sections 7, 13(2) r/w. 13(1)(d) of the Prevention of
Corruption Act, 1988. Challenging the same, the present writ petition
has been filed.
3. The main ground raised by the learned counsel for the
petitioner is that though the petitioner has been placed under
suspension in the year 2017, no charge memo has been issued so far
and therefore, as per the Judgment of the Hon'ble Apex Court in Ajay
Kumar Choudhary vs. Union of India, reported in 2015 7 SCC 291,
the order of suspension and retention is liable to be revoked.
4. Mr.S.Shaji Bino, learned Special Government Pleader
appearing for the respondents submits that the petitioner, while
working as Deputy Inspector of Survey and Land Records, in Madurai
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W.P(MD)No.4372 of 2020
South Taluk Office, was taken for preliminary enquiry by the
Directorate of Vigilance and Anti-Corruption, based on a complaint
given by one C.Muthumalaichamy, alleging that the petitioner
demanded a sum of Rs.8,000/- for sub-division of agriculture land in
Survey Nos.6/3B, 7/1A2 and received Rs.6,000/- from him and
thereafter, he also demanded another sum of Rs.6,000/-. The
preliminary enquiry also revealed that the petitioner informed the
complainant that Rs.4,000/- has to be paid for one sub division and
hence, for two sub divisions, he demanded Rs.8000/- and obtained
Rs.2,000/- on 23.05.2017 and Rs.3,000/- on 26.05.2017. He further
submits that the petitioner is habitually receiving gratification other
than legal remuneration and that sub division patta was not issued till
the date of lodging the complaint, i.e. on 08.06.2017. Only thereafter,
the petitioner seemed to have instructed the complainant to apply again
for sub-division on 27.06.2017 and hurriedly processed the application
by forging the signature of the Firka Surveyor, knowing that vigilance
enquiry is pending and got an order for the issuance of sub-division
patta on 30.06.2017.
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W.P(MD)No.4372 of 2020
5. The learned Special Government Pleader further submits that
based on the permission accorded by the Vigilance Commissioner to
register a case against the petitioner and based on the instructions given
by the Secretary to Government, Revenue and Disaster Management
Department to the first respondent, the petitioner was placed under
suspension as per Rule 17 of the Tamil Nadu Civil Services (Discipline
and Appeal) Rules and he was not allowed to retire from service. He
further submits that no charge memo has been issued, since the service
particulars of the petitioner were sent to the Investigating Agency,
namely, the Directorate of Vigilance and Anti Corruption. He further
submits that since it is a case of trap, the petitioner is not entitled for
any relief, as per the dictum laid down by the Hon'ble Apex Court in
Ajay Kumar Choudhary vs. Union of India, reported in 2015 7 SCC
291. In support of his contention, he also relied upon the Judgment of
this Court in W.A.No.599 of 2020, dated 02.09.2020.
6. This Court paid its anxious consideration to the rival
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W.P(MD)No.4372 of 2020
submissions made.
7. The petitioner was placed under suspension based on the
permission accorded by the Vigilance Commissioner to register a case
against the petitioner and based on the instructions given by the
Secretary to Government, Revenue and Disaster Management
Department to the first respondent. However, no charge memo has
been issued so far, since the service particulars of the petitioner have
been sent to the Investigating Agency.
8. In Ajay Kumar Choudhary vs. Union of India, reported in
2015 7 SCC 291, the Hon'ble Apex Court has held that the currency of
a Suspension Order should not extend beyond three months if within
this period the Memorandum of Charges/Chargesheet is not served on
the delinquent officer/employee; if the Memorandum of
Charges/Chargesheet is served, a reasoned order must be passed for the
extension of the suspension.
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W.P(MD)No.4372 of 2020
9. A Division Bench of this Court in R.Elumalai v. District
Collector, [2020 SCC online Mad 1472], considered Ajay Kumar
Choudhary's case and the judgment of the Delhi High Court in
Government of NCT of Delhi v. Dr.Rishi Anand [2017 SCC online
Del 10506] 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.
10. The First Bench of this Court, in W.A.No.599 of 2020, vide
Judgment dated 02.09.2020, has passed the following order:
“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
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W.P(MD)No.4372 of 2020
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 nonsensitive post is
also not sustainable especially in view of the fact that the
Respondent is 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
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W.P(MD)No.4372 of 2020
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”
11. In view of the Judgment of the First Division Bench of this
Court in W.A.No.599 of 2020, dated 02.09.2020 (cited supra), this
Court is not inclined to interfere with the order of the suspension.
Accordingly, the writ petition is dismissed.
12. It is always open to the respondents to get xerox copies of
the service particulars of the petitioner from the Investigating Agency,
namely, the Department of Vigilance and Anti-Corruption and issue a
charge memo as directed by the Hon'ble Apex Court in Ajay Kumar
Choudhary vs. Union of India, reported in 2015 7 SCC 291 and
proceed with the enquiry and pass final orders as early as possible.
No costs. Consequently, connected miscellaneous petition is closed.
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W.P(MD)No.4372 of 2020
29.11.2021
ogy
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 Director of Survey and Settlement/
Additional Director of Survey and Land Records,
Chepauk,
Chennai.
2. The Regional Deputy Director,
Land Survey and Records Department,
Madurai – 625 020.
3. The Assistant Director and Personal Assistant
to the District Collector (Land Survey),
District Land Survey Office,
Madurai – 625 020.
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W.P(MD)No.4372 of 2020
B.PUGALENDHI, J.
ogy
W.P(MD)No.4372 of 2020
29.11.2021
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