Madras High Court
C.Rajendran vs State Of Tamil Nadu on 12 January, 2022
W.P(MD)No.4741 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P(MD)No.4741 of 2021
and W.M.P.(MD)No.3853 of 2021
C.Rajendran ... Petitioner
versus
1. State of Tamil Nadu,
Rep. by its Secretary,
Municipal Administration and
Water Supply (ME 4) Department,
Secretariat, St. George Fort,
Chennai – 600 009.
2. The Commissioner of Municipal
Administration,
th
11 Floor, Urban Administrative
Building,
75, Santhome High Road,
MRC Nagar, Raja Annamalaipuram,
Chennai – 600 028.
3. The Commissioner,
Thiruverkadu Municipality,
No.1, Sivan Koil Street,
Thiruverkadu,
Chennai – 600 077.
1/14
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W.P(MD)No.4741 of 2021
4. The Commissioner,
Kovilpatti Municipality,
Park East Street,
Kovilpatti – 628 502,
Thoothukudi District. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India,
seeking for the issuance of Writ of Certiorari to call for the records of
the second respondent impugned proceeding in Roc.No.13443/2020/VI
dated 18.02.2021 and quash the same.
For Petitioner : Mr.R.Devaraj
For R1 to R3 : Mr.J.Ashok,
Additional Government Pleader
For R4 : Mr.P.Srinivasa
ORDER
This writ petition is filed against the order of suspension dated
18.02.2021 passed by the second respondent.
2. The petitioner, who is working as a Town Planning Officer in
the fourth respondent Municipality, was placed under suspension by
the order impugned in this writ petition, pursuant to his involvement in
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W.P(MD)No.4741 of 2021
a criminal case in Crime No.8 of 2020.
3. The learned counsel appearing for the petitioner, by referring
Rule 8(9)(ii) of the Tamil Nadu Municipal Services (Discipline and
Appeal) Rules, 1970, submits that if the authority decided to place a
person under suspension on account of a criminal case pending against
him, then, the authority shall explain the necessity for such suspension
in the public interest. Here, in the order impugned in this writ petition,
there is no reference about the necessity, which arose for suspending
the petitioner on public interest. The learned counsel appearing for the
petitioner further submits that as per the decision of the Hon'ble Apex
Court in Ajay Kumar Choudhary vs. Union of India, reported in 2015
7 SCC 291, the order of suspension cannot survive for more than 90
days, if the charge memo is not furnished as against the delinquent
officer. But, in this case, though the petitioner was placed under
suspension in the month of February 2021, neither any charge memo
has been served upon him nor the order of suspension has been revoked
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W.P(MD)No.4741 of 2021
by the respondents. Therefore, on these two grounds, the impugned
order of suspension is liable to be set aside.
4. Mr.J.Ashok, learned Additional Government Pleader
appearing for the respondents 1 to 3 submits that a surprise inspection
was conducted at Thiruverkadu Municipality on 02.09.2020 by the
District Deputy Inspection Cell Officer along with Directorate of
Vigilance and Anti Corruption Officials. During the inspection,
unaccounted money of Rs.1,48,000/- was seized from one K.Kavitha,
T.M.Arun and the petitioner herein. According to him, a sum of
Rs.1,25,000/- was recovered from the petitioner. The Vigilance and
Anti Corruption Department has also registered a case in Cr.No.
8/AC/2020/C-II on 03.09.2020 against the petitioner and others for the
offence under Section 7 of Prevention of Corruption Act 1988.
However, a final report is yet to be filed in Crime No.8 of 2020. He
has also relied upon the Judgment of a Division Bench of this Court
passed in W.A.No.599 of 2020, dated 02.09.2020.
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W.P(MD)No.4741 of 2021
5. This Court paid its anxious consideration to the rival
submissions made.
6. In the case of Ajay Kumar Choudhary vs. Union of India,
reported in 2015 7 SCC 291, the Hon'ble Apex Court has 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
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. 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 that he may have and which he may misuse for
obstructing the investigation against him. The
Government may also prohibit him from contacting any
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W.P(MD)No.4741 of 2021
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
Chargesheet, 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."
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W.P(MD)No.4741 of 2021
7. However, the First Bench of this Court, in W.A.No.599 of
2020, vide Judgment dated 02.09.2020, has passed the following order:
“10. On perusal of the judgment in Ajay Kumar
Choudhary, it is clear that the Hon'ble Supreme Court
was dealing with a case wherein the Appellant had been
served with a charge sheet before the judgment was
pronounced. On that basis, on the facts of that case,
paragraph 22 reflects that the order of suspension was
not set aside although the suspension period exceeded
three months. However, while disposing of the case, the
Hon'ble Supreme Court held that the suspension period
should not extend beyond three months if the
memorandum of charges/charge sheet is not served on
the delinquent officer/employee. The judgment in Ajay
Kumar Choudhary was dealt with in detail by a Division
Bench of this Court in Director General of Police [cited
supra]. In the said judgment, this Court held as follows in
paragraphs 9-11:
9. We are of the view that Ajay Kumar
Choudhary (supra) does not lay down any
absolute proposition that an order of suspension
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W.P(MD)No.4741 of 2021
should never extend beyond three months. In
fact, in Ajay Kumar Choudhary (supra), the
Supreme Court observed that the directions
regarding the restriction on extension of a
suspension order beyond three months would
not apply as the appellant had been served with
a charge sheet. The appellant had only been
given the liberty to challenge his continued
suspension in any manner known to law, if so
advised, and it was clarified that the action of
the respondents in continuing suspension would
be subject to judicial review. In our view, the
learned Single Bench erred in setting aside the
suspension placing reliance on Ajay Kumar
Choudhary (supra).
10. It is well settled that a judgment is to
be understood in the context of the facts in
which the judgment is rendered. Sentences in a
judgment cannot be read in the same manner as
a statute and in any case, words and sentences
in a judgment cannot be read out of context. In
Padma Sundara Rao (Dead) and others v. State
of Tamil Nadu and others, reported in (2002) 3
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W.P(MD)No.4741 of 2021
SCC 533, cited by Mr.S.Saji Bino, learned
counsel appearing on behalf of the appellant, a
Five Judge Bench of the Supreme Court held as
under:
'9. Courts should not place reliance on
decisions without discussing as to how the
factual situation fits in with the fact situation of
the decision on which reliance is placed. There
is always peril in treating the words of a speech
or judgment as though they are words in a
legislative enactment, and it is to be
remembered that judicial utterances are made in
the setting of the facts of a particular case, said
Lord Morris in Herrington v. British Railways
Board (1972) 2 WLR 537.
Circumstantial flexibility, one additional or
different fact may make a world of difference
between conclusions in two cases.'
11. In the instant case, as observed above,
a charge memo had been issued, though after
the period of five months and four days of the
suspension. The learned Single Bench ought to
have considered the question of whether the
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W.P(MD)No.4741 of 2021
suspension should outright be set aside or
allowed to continue upon consideration of all
relevant facts and circumstances, including the
nature of the charges.”
Likewise, the Division Bench of this Court in R.Elumalai
v. District Collector, [2020 SCC online Mad 1472,
considered the Ajay Kumar Choudhary case and the
judgment of the Delhi High Court in Government of
NCT of Delhi (cited supra) 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.
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
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W.P(MD)No.4741 of 2021
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 hand,
we affirm the impugned order to the extent that the Chief
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W.P(MD)No.4741 of 2021
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.”
8. In view of the Judgment passed by 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 entertain this writ petition. Accordingly, the
writ petition is dismissed. However, the Directorate of Vigilance and
Anti Corruption is directed to file a final report within a period of six
months from the date of receipt of a copy of this order. Based on the
final report, the respondents shall review the order of suspension
passed against the petitioner. No costs. Consequently, connected
miscellaneous petition is closed.
12.01.2022
ogy
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W.P(MD)No.4741 of 2021
To
1. The Secretary,
Municipal Administration and
Water Supply (ME 4) Department,
Secretariat, St. George Fort,
Chennai – 600 009.
2. The Commissioner of Municipal
Administration,
th
11 Floor, Urban Administrative
Building,
75, Santhome High Road,
MRC Nagar, Raja Annamalaipuram,
Chennai – 600 028.
3. The Commissioner,
Thiruverkadu Municipality,
No.1, Sivan Koil Street,
Thiruverkadu,
Chennai – 600 077.
4. The Commissioner,
Kovilpatti Municipality,
Park East Street,
Kovilpatti – 628 502,
Thoothukudi District.
5. The Director,
Vigilance and Anti Corruption,
Chennai.
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W.P(MD)No.4741 of 2021
B.PUGALENDHI, J.
ogy
W.P(MD)No.4741 of 2021
12.01.2022
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