Dismissed

T. Valliammal, Extension v. the Director of Social Welfare

Madras HC14 Jul 2015WP(MD)/11985/2015

Case brief

AI extract

What is this about?

This is a writ petition challenging the suspension order of a petitioner who was suspended following an arrest for bribery. The Supreme Court was cited to establish that suspension does not terminate service but remains within the administrative domain unless arbitrary or mala fide. The Madras High Court declined to interfere, dismissing the petition.

What did the court decide?

Writ petition dismissed; no interference with the suspension order.

T. Valliammal, Extension Vs the Director of Social… — Service and Employment | Madras HC (2015)

¶1

¶2

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

¶3

DATED : 14.07.2015

¶4

CORAM:

¶5

THE HONOURABLE Mr.JUSTICE S.VAIDYANATHAN

¶6

W.P.(MD)No.11985 of 2015

T.Valliammal

... Petitioner

Vs.

1.The Director of Social Welfare, Chennai – 2.

¶11

2.The District Social Welfare Officer, Tirunelveli District.

¶12

3.The Commissioner, Shencottai Panchayat Union, Tirunelveli District.

¶13

4.The Block Development Officer, Shencottai, Tirunelveli District.

¶14

... Respondents

¶15

PRAYER: Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the 1^st respondent to consider the petitioner's representation dated 28.03.2015 for reinstate her into service forthwith.

¶16

For Petitioner : Mr.S.T.Sasidharan Tamilkani For Respondents : Mr.K.Maheshraja, G.A.

¶17

O R D E R

¶18

The petitioner seeks a Writ of Mandamus, directing the respondent to consider the petitioner's representation dated 28.03.2015 for reinstate her into service forthwith.

¶19

2.The case of the petitioner is that the petitioner was working as Extension Officer (Social Welfare) in the third respondent office. The 1^st respondent by a proceeding dated10.07.2013 issued a suspension order since, the Vigilance and Anticorruption has arrested the petitioner on 09.07.2013 for receiving the bribe amount of Rs.800/-. The petitioner made a representation dated 17.01.2014 to the 1^st respondent requesting subsistence allowance. However, the same has not been considered. The petitioner made another representation dated 28.03.2015 for reinstate her into service. As the said representation has not been considered, the petitioner is before this Court with this Writ petition.

¶20

3.The order of suspension is not a punishment and the relationship between the employer and the employee subsists. When there is master and https://hcservices.ecourts.gov.in/hcservices/ 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

¶21

¶22

Rules, etc. Hence, as long as the competency of the authority issuing the suspension order is not challenged, this Court is not inclined to interfere with the order of the suspension.

¶23

4.The Apex Court in the case of Union of India and another vs. Ashok Kumar Aggarwal , reported in 2013 (14) Scale 323 has relied on a number decisions and considered the issue relating to the order of suspension. The relevant paragraphs of the judgment (supra) are extracted hereunder:

¶24

"7. During suspension, relationship of master and servant continues between the employer and the employee. However, the employee is forbidden to perform his official duties. Thus, suspension order does not put an end to the service. Suspension means the action of debarring for the time being from a function or privilege or temporary' deprivation of working in the office. In certain cases, suspension may cause stigma even after exoneration in the departmental proceedings or acquittal by the Criminal Court, but it cannot be treated as a punishment even by any stretch of imagination in strict legal sense.(Vide: O.P. Gupta v. Union of India and Ors. MANU/SC/0670/1987: AIR 1987 SC 2257; and Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. MANU/SC/0225/1999 : AIR 1999 SC 1416).

¶25

In State of Orissa v. Bimal Kumar Mohanty MANU/SC/0475/1994 : AIR 1994 SC 2296, this Court observed as under:

¶26

"... the order of suspension would be passed taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of evidence placed before the appointing authority and on application of the mind by the disciplinary authority. Appointing authority or disciplinary authority should consider..... and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law should be laid down in that behalf. In other words, it is to refrain him to avail further opportunity to perpetuate the alleged misconduct or to remove the impression among the members of service that dereliction of duty will pay fruits and the offending employee may get away even pending inquiry without any impediment or to provide an opportunity to the delinquent officer to scuttle the inquiry or investigation to win over the other witnesses or the delinquent having had an opportunity in office to impede the progress of the investigation or inquiry etc. It would be another thing if the action is actuated by mala fide, arbitrarily or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the https://hcservices.ecourts.gov.in/hcservices/ investigation or inquiry. The Authority also should keep in mind public interest of the impact of the delinquent's continuation in office while facing departmental inquiry

¶27

¶28

or a trial of a criminal charge.(Emphasis added)

¶29

(See also: R.P. Kapur v. Union of India and Anr. MANU/SC/0275/1963 : AIR 1964 SC 787; and Balvantrai Ratilal Patel v. State of Maharashtra MANU/SC/0321/1967 : AIR 1968 SC 800)."

¶30

The power of suspension should not be exercised in an arbitrary manner and without any reasonable ground or as vindictive misuse of power. Suspension should be made only in a case where there is a strong prima facie case against the delinquent employee and the allegations involving moral turpitude, grave misconduct or indiscipline or refusal to carry out the orders of superior authority are there, or there is a strong prima facie case against him, if proved, would ordinarily result in reduction in rank, removal or dismissal from service. The authority should also take into account all the available material as to whether in a given case, it is advisable to allow the delinquent to continue to perform his duties in the office or his retention in office is likely to hamper or frustrate the inquiry.

¶31

In view of the above, the law on the issue can be summarised to the effect that suspension order can be passed by the competent authority considering the gravity of the alleged misconduct i.e. serious act of omission or commission and the nature of evidence available. It cannot be actuated by mala fide, arbitrariness, or for ulterior purpose. Effect on public interest due to the employee's continuation in office is also a relevant and determining factor. The facts of each case have to be taken into consideration as no formula of universal application can be laid down in this regard. However, suspension order should be passed only where there is a strong prima facie case against the delinquent, and if the charges stand proved, would ordinarily warrant imposition of major punishment i.e. removal or dismissal from service, or reduction in rank etc.

¶32

In Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel and Ors. MANU/SC/4080/2006: (2006) 8 SCC 200, this Court explained:

¶33

"18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards hut no standardised formula, universally applicable to all cases, can he evolved. Each case has to he considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the https://hcservices.ecourts.gov.in/hcservices/ individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on

¶34

¶35

wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material may be struck down. In other words, when a court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision."

¶36

Long period of suspension does not make the order of suspension invalid. However, in State of H.P. v. B.C. Thakur (1994) SCC (L and S) 835, this Court held that where for any reason it is not possible to proceed with the domestic enquiry the delinquent may not be kept under suspension.

¶37

There cannot be any doubt that the Rules 1965 are a self contained code and the order of suspension can be examined in the light of the statutory provisions to determine as to whether the suspension order was justified. Undoubtedly, the delinquent cannot be considered to be any better off after the charge sheet has been filed against him in the court on conclusion of the investigation than his position during the investigation of the case itself. (Vide: Union of India and Ors. v. Udai Narain MANU/SC/1061/1998 : (1998) 5 SCC 535).

¶38

The scope of interference by the Court with the order of suspension has been examined by the Court in a large number of cases, particularly in State of M.P. v. Sardul Singh MANU/SC/0510/1969 : (1970) 1 SCC 108; P.V. Srinivasa Sastry v. Comptroller & Auditor General of India MANU/SC/0207/1993 : (1993) 1 SCC 419; Director General, ESI and Anr. v. T. Abdul Razak MANU/SC/0585/1996 : AIR 1996 SC 2292; Kusheshwar Dubey v. Bharat Cooking Coal Ltd. and Ors. MANU/SC/0246/1988 : AIR 1988 SC 2118; Delhi Cloth General Mills v. Kushan Bhan MANU/SC/0228/1960 : AIR 1960 SC 806; U.P. Rajya krishi Utpadan Mandi Parishad and Ors. v. Sanjeev Rajan MANU/SC/0844/1993 : (1993) Supp. (3) SCC 483; State of Rajasthan v. B.K. Meena and Ors. MANU/SC/0008/1997 : (1996) 6 SCC 417; Secretary to Govt., Prohibition and Excise Department v. L. Srinivasan MANU/SC/1108/1996 : (1996) 3 SCC 157; and Allahabad Bank and Anr. v. Deepak Kumar Bhola MANU/SC/1126/1997 : (1997) 4 SCC 1, wherein it has been observed that even if a criminal trial or enquiry takes a long time, it is ordinarily not open to the court to interfere in case of suspension as it is in the exclusive domain of the competent authority who can always review its order of suspension being an inherent power conferred upon them by the provisions of Article 21 of the General Clauses Act, 1897 and while exercising such a power, the authority can consider the case of an employee for revoking the suspension order, if satisfied that the criminal case pending would be https://hcservices.ecourts.gov.in/hcservices/ concluded after an unusual delay for no fault of the employee concerned. Where the charges are baseless, mala fide or vindictive and are framed only to keep the delinquent employee

¶39

¶40

out of job, a case for judicial review is made out. But in a case where no conclusion can be arrived at without examining the entire record in question and in order that the disciplinary proceedings may continue unhindered the court may not interfere. In case the court comes to the conclusion that the authority is not proceeding expeditiously as it ought to have been and it results in prolongation of sufferings for the delinquent employee, the court may issue directions. The court may, in case the authority fails to furnish proper explanation for delay in conclusion of the enquiry, direct to complete the enquiry within a stipulated period. However, mere delay in conclusion of enquiry or trial can not be a ground for quashing the suspension order, if the charges are grave in nature. But, whether the employee should or should not continue in his office during the period of enquiry is a matter to be assessed by the disciplinary authority concerned and ordinarily the court should not interfere with the orders of suspension unless they are passed in mala fide and without there being even a prima facie evidence on record connecting the employee with the misconduct in question.

¶41

Suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the proceedings unhindered. Suspension is an interim measure in aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his position. More so, at this stage, it is not desirable that the court may find out as which version is true when there are claims and counter claims on factual issues. The court cannot act as if it an appellate forum de hors the powers of judicial review."

¶42

5.The Honourable Supreme Court in the recent decision in Ajay Kumar Choudhary -vs- Union of India through its Secretary and another in paragraphs 8 and 13 to 15 as held as follows:-

¶43

"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.

¶44

It will be useful to recall that prior to 1973 an accused could be detained for continuous and consecutive periods of 15 days, albeit, after judicial scrutiny and supervision. The Code of Criminal Procedure of 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the https://hcservices.ecourts.gov.in/hcservices/ investigation relates to any other offence. Drawing support from the observations contained of the Division Bench in Raghubir Singh v. State of Bihar, 1986 (4) SCC 481, and more so of the

¶45

¶46

Constitution Bench in Antulay, we are spurred to extrapolate the quintessence of the proviso of Section 167(2) of the Code of Criminal Procedure 1973 to moderate Suspension Orders in cases of departmental/disciplinary inquiries also. It seems to us that if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a Memorandum of Charges/Chargesheet has not been served on the suspended person. It is true that the proviso to Section 167(2) Code of Criminal Procedure postulates personal freedom, but respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same pedestal.

¶47

We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Cherished 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 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.

¶48

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."

¶49

6.In view of the above, I find no reason to interfere with the order of suspension and the Writ Petition is dismissed.

¶50

7.However, it is open to the department to proceed against the petitioner departmentally on day to day basis and the respondents shall https://hcservices.ecourts.gov.in/hcservices/ also review the suspension order periodically. It is also open to the respondents to issue charge sheet, if so advised and complete the enquiry, if any commenced, as early as possible preferably within a

¶51

¶52

period of one year from the date of receipt of a copy of this order. As far as the payment of subsistence allowance is concerned, it shall be considered and paid, if it is payable in terms of the provisions applicable to the respondents. No costs.

¶53

Sd/Assistant Registrar (T&P) /True Copy/

¶54

Sub Assistant Registrar

¶55

¶56