Madras High Court
Anusuya vs The Commissioner on 10 March, 2022
W.P.(MD)No.13313 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.03.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)No.13313 of 2017
and
W.M.P.(MD)No.9990 of 2019
Anusuya ... Petitioner
vs
The Commissioner,
Thiruthangal Municipality,
Virudhunagar District. ... Respondent
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, to call for the records pertaining to
the impugned order issued by the respondent in his proceedings in
Na.Ka.No.3181/2016/C1, dated 01.12.2016 and quash the same and consequently,
direct the respondent to reinstate the petitioner and regularize the period of
suspension.
For Petitioner : Mr.C.Jeganathan
for M/S.Veera Associates
For Respondent : No appearance
******
1/9
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.13313 of 2017
ORDER
This writ petition is filed challenging the suspension order, dated
01.12.2016 with a consequential prayer to reinstate the petitioner to regularize the
period of suspension.
2. The petitioner's husband had worked as a Valve Operator in Sivakasi
Municipality and he died during the year 2018. Thereafter, the petitioner was
appointed as a Revenue Inspector on compassionate ground with effect from
19.11.2010. The petitioner was suspended from service on 01.12.2016 alleging
that the petitioner was involved in taking illegal gratification. A criminal case
was filed in Crime No.07 of 2016 on the file of the Vigilance and Anti-Corruption
Department, Virudhunagar. The allegation against the petitioner is that one
Manikandan had purchased some house properties at Thiruthangal consisting of
six houses and his brother also purchased one house at Thiruthangal. After such
purchase, the said Manikandan submitted an application seeking to change the
name in respect of house purchased properties. After submitted an application, the
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W.P.(MD)No.13313 of 2017
said Manikandan approached the petitioner for name change in the Municipal
records. The allegation against the petitioner is that she has demanded Rs.4,000/-
(Rupees Four Thousand only) as illegal gratification from the said Manikandan
who preferred a compliant to the Vigilance and Anti-corruption Department on
29.11.2016 and the trap was laid on 30.11.2016.
3. The contention of the respondent is that, on 30.11.2016, the said
Manikandan met the petitioner at her Office in Municipal and the said
Manikandan gave a sum of Rs.4000/- (Rupees Four Thousand only) which was
refused by the petitioner. It was further alleged that the petitioner has directed the
said Manikandan to hand over the said amount to one Mr. Shekar at Karthik Tea
Stall, which is situated outside of the Municipal office. Accordingly, the said
Manikandan paid the amount to the said Mr. Sekar who was waiting at the Tea
Stall. At the time, the Officials of Vigilance and Anti-corruption arrested him.
After such arrest, the Officials called the petitioner over phone and the petitioner
informed them that she was travelling in the Bus. However, the officials requested
the petitioner to wait in the Old Bus Stand. Thereafter, the officials arrested the
petitioner in the Bus Stand on 30.11.2016 itself. The entire facts were recorded in
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W.P.(MD)No.13313 of 2017
the Mahazar at the time of the petitioner's arrest. After the petitioner's arrest, the
official respondents suspended the petitioner on 01.12.2016. The petitioner
submitted a representation, dated 29.05.2017 requesting to revoke the suspension
and reinstate the petitioner in service. Since the petition was not considered, the
petitioner has filed the present writ petition.
4. The respondent has filed a counter affidavit stating that the petitioner
demanded a sum of Rs.4,000/- (Rupees Four Thousand only) from the said
Manikandan for transfer and recording his name in the Municipal records and the
petitioner was arrested by the Vigilance and Anti-Corruption Department. Based
on the arrest, the petitioner was suspended from service. Since the petitioner was
arrested in corruption case, there is no question of reinstating the petitioner and
the respondents prayed to dismiss the writ petition.
5. Heard Mr.C.Jeganathan, learned Counsel appearing for the petitioner and
no appearance for the respondents
6. It is an admitted fact that the petitioner was arrested due to the complaint
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W.P.(MD)No.13313 of 2017
of the illegal gratification in the Criminal Case. A Charge sheet was issued and
the trial has not yet commenced in the present case. The official respondents have
not issued any Charge Memo for initiating the disciplinary proceedings. The issue
of revocation of suspension was considered by the Full Bench of this High Court
in W.P. No. 2165 of 2015 and 21628 of 2018 vide order dated 15.03.2022
reported in 2022 (2) CTC 353, wherein it has been held as under:
“34. For the foregoing reasons, the reference is answered by holding that:
(i) The judgment of the Apex Court in the case of Ajay Kumar Choudhary,
supra, does not lay down absolute proposition of law that an order of
suspension cannot be continued beyond the period of three months if the
memorandum of charges / charge sheet has not been served within three
months or if the memorandum of charges / charge sheet is served without
reasoned order of extension
(ii) The judgment in R.Balaji, supra, has not reference to the earlier
judgments of co-equal strength and is thereby rendered per incuriam
(iii) the issue of challenge to the order of suspension should be analyzed on
the facts of each case, considering the gravity of the charges and the rules
applicable
(iv) Revocation of suspension with a direction to the employer to the post
the delinquent in a non-sensitive post cannot be endorsed or directed as a
matter of course. It has to be based on the facts of each case and noticing
the reason for the delay in serving the memorandum of charge / charge
sheet.
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W.P.(MD)No.13313 of 2017
The Hon’ble Full Bench has held that the revocation from suspension is not
automatic and the same ought to be dealt with based on the facts of each case and
the reasons for delay in issuing the charge memo / charge sheet.
7. In the present case the petitioner was suspended on 01.12.2016 and the
respondents have not issued any charge memo for initiating disciplinary
proceedings. It is settled principle that criminal case and disciplinary proceedings
can go on simultaneously and there is a lapse on the part of the respondent in not
issuing charge memo for initiating disciplinary proceedings. It is seen from the
records and from the counter that the case against the petitioner is that the
petitioner demanded bribe, trap was laid, the complainant visited her but she did
not receive it but directed to pay the same to one Sekar near the Tea Stall and
when paid to the said Sekar, the DVAC had caught hold the Sekar and in turn had
arrested the petitioner. Since it is not a case that the petitioner received directly
and she was caught red handed and chemical test was carried on etc. Therefore
this Court is of the considered opinion that the petitioner is entitled to the relief of
revocation of suspension.
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W.P.(MD)No.13313 of 2017
8. Hence the impugned order of suspension is set aside, the respondents are
directed to reinstate the petitioner and post the petitioner in any non-sensitive
post. After the disposal of the criminal case, the regularization of the suspension
period can be considered.
9. However, it is made clear that the observation stated supra shall not be
binding the Trial Court while deciding the case and the Trial Court shall
independently come to conclusion of the allegation against the accused. With the
above direction, the Writ Petition is allowed. No costs. Consequently, connected
miscellaneous petition is closed.
10.03.2022
Index : Yes / No
Internet : Yes
jbr
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.13313 of 2017
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 Commissioner,
Thiruthangal Municipality,
Virudhunagar District.
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W.P.(MD)No.13313 of 2017
S.SRIMATHY, J
jbr
Order made in
W.P.(MD)No.13313 of 2017
10.03.2022
https://www.mhc.tn.gov.in/judis
