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Judgment
K. Chandru, J.—Heard both sides. In W.P. No. 15313 of 2009, the petitioner is a Village Administrative Officer in Chennai Samudram ''B''
Village. By proceedings, dated 29.11.2006, he was transferred to Anjur-B village. Thereafter, he was arrested in connection with a crime No. 8 of
2008 on the file of the District Crime Branch, Erode with offences under Sections 120B, 419, 420, 468 and 471 IPC.
The petitioner contended that the alleged occurrence had taken place during October, 2005 and his name did not find place in the FIR. But, the
respondent Revenue Divisional Officer, Erode, by an order, dated 24.1.2008 suspended him in public interest and that enquiry into grave charges
were pending and also that he was arrested for tampering with village records and remanded to custody. The writ petition was admitted on
4.8.2009. Pending writ petition, this Court granted an interim stay, stating that it was a prolonged suspension and this Court in The State of
Madras Vs. K.A. Joseph, held that prolonged suspension cannot be ordered.
The respondents have come forward to file a vacate stay application in M.P. No. 1 of 2010. In that the Revenue Divisional Officer, Erode had
stated that he had received a report from the Inspector of Police, District Crime Branch that the petitioner had indulged in tampering with village
records in favour of certain villagers and that he was arrested. Therefore, the petitioner was placed under suspension on public interest. Because of
stay granted, he was presently posted to work as a Village Administrative Officer at Vaipadi Village, Perundurai by order, dated 21.10.2009.
However, investigation on the question of tampering with records is still pending and therefore, suspension will have to continue. The posting order
was given only pursuant to the interim order. But, however, now a prayer was made to revoke the interim order.
The letter by the Inspector of Police, District Crime Branch, dated 18.1.2010 sent to the Revenue Divisional Officer, Erode was also produced,
stating that records have been sent to the Forensic Laboratory and they will get the final report by the end of February and thereafter, charge sheet
will be filed against him.
Similarly, in W.P. No. 27484 of 2009, the petitioner is also a Village Administrative Officer at Sivagiri village. He is also involved in the same
crime and was also placed under suspension, by an order, dated 1.2.2008. When the petitioner came to challenge the same, since the other writ
petition was referred to, that was also directed to be posted along with the vacate stay petition.
Heard Mr. S. Kamadevan, learned Counsel for the first writ petitioner, Mr. R. Marudhachalamurthy, learned Counsel for the second writ
petitioner and Mrs. C.K. Vishnupriya, learned Additional Government Pleader appearing for both respondents.
Learned Counsel for the petitioners contended that in The State of Madras Vs. K.A. Joseph, , this Court held that though normally this Court
will not interfere, but in case if a person is indefinitely kept under suspension without any enquiry, the court can order restoration. This was also
subsequently followed by a learned Judge of this Court in W.P. No. 10661 of 2009, dated 5.8.2009. Further reliance was made on the judgment
of this Court in M. Chengaiah v. The State of Tamil Nadu reported in 1983 MLJ 348, wherein by relying upon the Government Order in G.O.Ms.
No. 211, P&AR Department, dated 27.2.1980, it was held that the said G.O. is only a guidance, but if there was continued suspension pending
criminal investigation without any progress, the court can order restoration of his service.
Similarly, in a judgment of the division bench of this Court in P.S. Ambigapathy v. The Director of Public Health and Preventive Medicine and
Anr. reported in 1991 1 LW. 682, the petitioner therein was placed under suspension and since there was no extension, the same was questioned
and that was upheld by the Division Bench.
Similarly in a judgment of this Court in K. Saravanan v. Tamil Nadu Electricity Board reported in 1994 TLNJ 111, the Division bench held that
if there is no progress in the criminal case, suspension can be revoked.
Finally, the learned Counsel for the petitioners relied upon the judgment of the Supreme Court in O.P. Gupta Vs. Union of India (UOI) and
Others, . Reliance was placed upon the following passage found in paragraph 15, which is as follows:
We have set out the facts in sufficient detail to show that there is no presumption that the government always acts in a manner which is just and
fair. There was no occasion whatever to protract the departmental inquiry for a period of 20 years and keeping the appellant under suspension for
a period of nearly 11 years unless it was actuated with the mala fide intention of subjecting him to harassment. The charge framed against the
appellant was serious enough to merit his dismissal from service. Apparently, the departmental authorities were not in a position to substantiate the
charge. But that was no reason for keeping the departmental proceedings alive for a period of 20 years and not to have revoked the order of
suspension for over 11 years. An order of suspension of a government servant does not put an end to his service under the government. He
continues to be a member of the service in spite of the order of suspension. The real effect of the order of suspension as explained by this Court in
Khem Chand v. Union of India is that he continues to be a member of the government service but is not permitted to work and further during the
period of suspension he is paid only some allowance ''generally called subsistence allowance'' which is normally less than the salary instead of the
pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the
departmental inquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression ''subsistence allowance''
has an undeniable penal significance. The dictionary meaning of the word ''subsist'' as given in Shorter Oxford English Dictionary, Vol. II at p.
2171 is ''to remain alive as on food; to continue to exist''. ''Subsistence'' means - means of supporting life, especially a minimum livelihood.
Although suspension is not one of the punishments specified in Rule 11 of the Rules, an order of suspension is not to be lightly passed against the
government servant. In the case of Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni the court held that the
expression ''life'' does not merely connote animal existence or a continued drudgery through life. The expression ''life'' has a much wider meaning.
Suspension in a case like the present where there was no question of inflicting any departmental punishment prima facie tantamounts to imposition
of penalty which is manifestly repugnant to the principles of natural justice and fair play in action. The conditions of service are within the executive
power of the State or its legislative power under the proviso to Article 309 of the Constitution, but even so such rules have to be reasonable and
fair and not grossly unjust. It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent
that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time. If such a principle were
not to be recognised, it would imply that the executive is being vested with a totally arbitrary and unfettered power of placing its officers under
disability and distress for an indefinite duration.
It is under these circumstances, a prayer was made to quash the suspension order passed against the petitioners. However, the decisions relied
on by the petitioners were of no use to them, since in the present case, there was specific criminal case against petitioners and investigation is under
progress. The petitioners were also arrested by the police in connection with the criminal case. It is not enough to say that their names were not in
the FIR. In fact, FIR is only a starting point for an investigation. The further progress in the investigation may reveal several facts, which were not
stated in the FIR. In any event, the letter sent by the Inspector of Police, District Crime Branch, Erode shows that the report is awaited from the
Forensic Laboratory and that a charge sheet will be filed before the end of February.
In any event, there is no automatic restoration to service. If there is valid order of suspension made by the authorities and there is no mala fide
alleged against them and it is passed by the competent authorities, the question of interfering with such suspension may not arise.
The Supreme Court vide its judgment in Allahabad Bank and Another Vs. Deepak Kumar Bhola, held that if suspension is pending criminal
trial, on the ground of moral turpitude a mere expiry of long period of 10 years since filing of the charge sheet is not a proper ground for
reinstatement.
The Supreme Court in its decision reported in Director General and Inspector General of Police, Andhra Pradesh, Hyderabad and others Vs.
K. Ratnagiri, has held in paragraph 3 as follows:
...The government may review the case and make further or other order but the order of suspension will continue to operate till it is rescinded by
an appropriate authority.
The Supreme Court in Union of India (UOI) Vs. Rajiv Kumar, had an occasion to decide the issue of prolonged suspension. The Supreme
Court held that in a genuine case, if the authorities feel that suspension has to be continued, the court cannot interfere with the same. The following
passage found in paragraph 29 may be usefully extracted below:
Another plea raised relates to a suspension for a very long period. It is submitted that the same renders the suspension invalid. The plea is
clearly untenable. The period of suspension should not be unnecessarily prolonged but if plausible reasons exist and the authorities feel that the
suspension needs to be continued, merely because it is for a long period that does not invalidate the suspension.
Even O.P. Gupta''s case (cited supra) takes the similar view.
In the light of the above, the impugned orders do not call for any interference. Hence both the writ petitions will stand dismissed. No costs.
In the case of first writ petitioner (K. Somasundaram), who had the benefit of restoration due to the interim order, will also stand suspended by
virtue of the order passed in his writ petition. It is needless to state that if the criminal case do not progress or there are no prima facie case against
petitioners which can be noted after filing of the charge sheet before the criminal court, it is open to the first respondent to review the said order in
terms of Rule 17(6) if such applications are made by petitioners. Consequently, connected miscellaneous petitions stand closed.