Madras High Court
The Principal Secretary To vs B. Sundara Prabu on 11 April, 2022
W.A. No. 3079 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.04.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE Ms. JUSTICE N.MALA
W.A. No. 3079 of 2021
&
C.M.P. No. 21320 of 2021
1. The Principal Secretary to
Government of Tamil Nadu,
Labour and Employment (M1)
Department,
Fort St.George, Chennai – 600 009.
2. The Director,
Office of the Director of Industrial
Safety and Health Department,
Chennai – 600 032. ..Appellants
Vs.
B. Sundara Prabu ..Respondent
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W.A. No. 3079 of 2021
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent against
the order dated 18.12.2019 passed by this Court in W.P. No.743 of 2019.
For Appellants :: Mr.S.Silambanan,
Additional Advocate General
assisted by
Mr.V. Nanmaran
Additional Government Pleader
For Respondent :: Mr.P. Rajavel
JUDGMENT
S. Vaidyanathan,J.
And
N. Mala,J.
Challenging the order dated 18.12.2019 passed by the learned Single
Judge in W.P.No.743 of 2019, the respondents in the writ petition have
come up with the present Writ Appeal.
2. Before the learned Single Judge, the writ petitioner challenged
the order of suspension dated 30.12.2015 passed by the 2nd appellant herein
and the consequential order dated 23.11.2016 passed by the 1st appellant
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W.A. No. 3079 of 2021
herein refusing to revoke the order of suspension. The learned Single Judge
allowed the writ petition setting aside the order of suspension with a
direction to the respondents therein to reinstate the petitioner in service and
post him in some non-sensitive post.
3. Heard the learned counsel on either side and perused the
material documents available on record.
4. A Full Bench of this Court in the case of S.Ravi vs. The
District Collector reported in 2015 (4) L.W. 811 has considered a similar
issue and ultimately held that, it is the discretion of the employer whether
to recall the suspension or not. Of course, in cases of prolonged suspension,
the Court will have to interfere with the order of suspension and direct the
employer to reinstate the employee and post him in a non-sensitive post. In
this case, under the guise of pendency of a criminal case, no departmental
action has been initiated against the respondent/writ petitioner.
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W.A. No. 3079 of 2021
5. This Court has repeatedly held that, 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 a day to-day basis and bring the issue to a logical end at the
earliest point of time.
6. One of us (SVNJ) has considered the issue with regard to
prolonged suspension in the case of A.Anantharam vs. The Government
of Tamil Nadu in W.P.No.15749 of 2020, wherein, departmental action has
been initiated against the petitioner. By an order dated 17.03.2021, this
Court disposed of the said writ petition by directing the respondent
concerned to conduct the enquiry in TDP Case No.4/2019 on a day-to-day
basis without adjourning the matter beyond seven working days at any point
of time with a further direction to the petitioner to co-operate with the
respondents in the enquiry proceedings.
7. In this regard, it is worth referring to the decision of the Apex
Court in the case of Ajay Kumar Choudhary vs. Union of India reported
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W.A. No. 3079 of 2021
in 2015 (7) SCC 291, wherein, it has been held that, the suspension of the
employee need to be revoked and he shall be reinstated in a non-sensitive
post, while proceeding with the departmental proceedings. Relevant portion
of the said decision is extracted hereunder:
"8. Suspension, specially preceding the formulation
of charges, is essentially transitory or temporary in nature,
and must perforce be of short duration. If it is for an
indeterminate period or if its renewal is not based on
sound reasoning contemporaneously available on the
record, this would render it punitive in nature.
Departmental/disciplinary proceedings invariably
commence with delay, are plagued with procrastination
prior and post the drawing up of the Memorandum of
Charges, and eventually culminate after even longer
delay.
8. Learned Additional Advocate General appearing for the
appellants submitted that, in the present case, as criminal case is pending
against the respondent/writ petitioner, the appellants contemplate to initiate
departmental action against him.
9. While so, learned counsel appearing for the respondent/writ
petitioner pointed out that, prolonged suspension of two other employees,
i.e. the Revenue Inspector and the Revenue Divisional Officer who were
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W.A. No. 3079 of 2021
accused along with the writ petitioner, was revoked and the Revenue
Divisional Officer was directed to be posted in a non-sensitive post.
10. This Court is of the view that, it is left to the discretion of the
employer to decide about the suspension of the employee and the employer
need not keep the employee under suspension for a prolonged period
without extracting any work from him, as, it is a real huge loss to the
Government. It is better that, the suspension is revoked and the employee is
posted in a non-sensitive post. In the present case, as the respondent/writ
petitioner is facing charges under the Prevention of Corruption Act, and
that, the Department is contemplating departmental enquiry against the writ
petitioner, we are not inclined to order revocation of suspension of the writ
petitioner and the order dated 18.12.2019 passed by the learned Single
Judge is interfered with.
11. However, we make it clear that, in case, charge sheet is issued
and departmental enquiry is not commenced within one month from the
date of receipt of reply to the charge sheet, the respondent/writ petitioner
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W.A. No. 3079 of 2021
shall be reinstated into service by revoking the suspension and placing him
in a non-sensitive post, as the petitioner is under suspension for nearly six
years and unnecessarily, tax-payers' money is being misused by the
appellants for payment of subsistence allowance. The charge memo shall be
issued within 15 days from the date of receipt of this order. The
respondent/writ petitioner shall reply to the Charge Memo within two weeks
of receipt of the same. If the explanation offered by the respondent/writ
petitioner is not satisfactory, Enquiry Officer shall be appointed within the
time stipulated supra and enquiry can be commenced.
12. It is further made clear that, departmental enquiry shall be
completed within a period of four months from the date of
commencement. Enquiry shall go on a day-to-day basis without
adjourning the matter beyond three working days at any point of time. It is
also made clear that, if the case documents are with the Police/Directorate of
Vigilance and Anti-Corruption or any other Department, the same shall be
obtained and certified copies of those documents can be marked in the
enquiry.
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W.A. No. 3079 of 2021
S. VAIDYANATHAN,J.
AND
N. MALA,J.
nv
13. The Chief Judicial Magistrate-cum-Special Judge, Vellore,
where C.C. No. 4 of 2018 is pending, is expected to complete the same on a
day-today basis without adjourning the matter beyond three working days at
any point of time.
14. The Writ Appeal is allowed on the above terms. No costs.
Consequently, connected C.M.P. is closed.
[S.V.N.,J.] [N.M.,J.]
11.04.2022
nv
To:
1. The Principal Secretary to
Government of Tamil Nadu,
Labour and Employment (M1)
Dept.,Fort St.George, Chennai –9.
W.A.No.3079 of 2021
2. The Director,
Office of the Director of Industrial
Safety and Health Department,
Chennai – 600 032.
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