Senthil Kumar vs Pay and Account Office Incharge The Treasury Officer

S. Manikumar, J.—Seeking to quash an order of suspension, dated 13.07.2010 passed by the Pay and Account Office Incharge, the Treasury Officer District Treasury Madurai, Madurai, the Petitioner has come forward with the present Writ Petition for a Certiorarified Mandamus to quash the same and consequently, prayed for a direction to the Respondent to reinstate the Petitioner in service.

Assailing the correctness of the order and placing reliance on a decision of this Court made in W.P. No. 22935 of 2009, dated 18.03.2011, Mr. K. Gokul, learned Counsel for the Petitioner submitted that registration of a criminal case in Crime No. 14 of 2010 under Sections 498(A), 406 & 506(i) of Indian Penal Code, 1860 done by way of a private complaint lodged by none other than the Petitioner''s wife and that therefore, there is No. need to place the Petitioner under suspension, as it is purely a dispute between the spouses and nothing to do with the official functions of the Petitioner. He further submitted that in the abovesaid unreported judgment, there was a dispute between the Petitioner''s cousin and brothers, resulting in a private complaint on the basis of which, an FIR was registered. Based on the complaint, the Petitioner therein was arrested on 22.09.2009 and lateron placed under suspension.

Learned Counsel for the Petitioner further submitted that on the above said facts, this Court was pleased to interfere with the order of suspension and set aside the order. As there is a similarity in the facts to the extent of registration of crime, on the basis of a private complaint, learned Counsel submitted that the said judgment can be applied to the case on hand. He further submitted that though the Petitioner was placed under suspension on 13.07.2010, there is No. review by the Respondent for more than one year, which is contrary to the Government guidelines issued in G.O.Ms. No. 40, Personnel and Administrative Reforms (N) Department, dated 30.01.1996.

Opposing the relief sought for in this Writ Petition, Mr. T.S.Mohamed Mohideen, learned Additional Government Pleader, submitted that in view of the registration of a criminal case and having regard to the arrest and subsequent remand by the learned Judicial Magistrate No. II, the Pay and Account Office Incharge, the Treasury Officer District Treasury Madurai, Madurai, has properly exercised his jurisdiction and suspended the Petitioner from 08.07.2010, the date on which the Petitioner was arrested and produced before the Court. He further submitted that there is No. manifest irregularity in the impugned order, warranting interference.

Heard the parties and perused the materials available on record.

The impugned order of suspension, dated 13.07.2010, passed by the the Pay and Account Office Incharge, the Treasury Officer, District Treasury Madurai, Madurai, reads as follows:-

WHEREAS, a complaint against Thiru. A.Senthilkumar, Junior Assistant, Sub Treasury, Madurai South, Madurai, registered in All Women Police Station, Tallakulam, Madurai in Cr. No. 14/10 u/s 498(A), 406, 509 and 506(i) Indian Penal Code, 1860 and Thiru A.Senthilkumar, Junior Assistant was arrested on 08.07.2010 at 12.30 p.m., and produced before Judicial Magistrate II and sent to Judicial custody. The Inspector of All Women Police Station in his letter dated 13.07.2010 has also informed that Thiru.A.Senthilkumar, Junior Assistant, Sub Treasury, Madurai South, Madurai is still under Judicial Custody. and Whereas in the circumstances of the case it is necessary to place the said Thiru. A. Senthil kumar, Junior Assistant, Sub Treasury, Madurai South under suspension from service.

Now therefore, under Sub Rule (e)(1) (ii) Clause 2 of Rule 17 of Tamilnadu Civil Services (D & A) Rules, the said Thiru A.Senthilkumar, Junior Assistant, Sub Treasury, Madurai South, Madurai is placed under suspension from service with effect from 08.07.2010.

During the period of suspension, the said Thiru.A.Senthilkumar, Junior Assistant, Sub Treasury, Madurai South, Madurai, will be paid subsistence allowances admissible under FR 53(1).

The Headquarters of the said Thiru A.Senthilkumar, Junior Assistant, Sub Treasury, Madurai South, Madurai, during the period of suspension shall be Madurai and the said Thiru A.Senthilkumar, Junior Assistant, Sub Treasury, Madurai South, Madurai shall not leave the headquarters without obtaining the prior permission of the authority concerned.

Material on record and pleadings disclose that the Petitioner was arrested on 08.07.2010. Rule 17(e) of the Tamil Nadu Civil Services Discipline and Appeal Rules, which deals with suspension of a Government servant which states that a member of a service may be placed under suspension from service, where an enquiry into grave charges against him is contemplated, or is pending or a complaint against him or any criminal offence is under investigation or trial and if such suspension is necessary in the public interest. The rule does not distinguish between a registration of a crime on a private complaint or on the report. It only states that pending investigation into a crime or trial, and in public interest, an employee can be placed under suspension. The rule does not take away, the powers of the appointing/disciplinary authorities to place a person under suspension, if a complaint against him of any criminal offence is under investigation or pending trial. Just because, the crime has been registered on the basis of a private complaint. If the contentions of the Petitioner are to be accepted, then, when the police refuses to register any complaint, the registration of a crime, on the orders of the Court of competent jurisdiction or when summons is issued by a criminal Court, cannot be acted upon by the disciplinary/appointing authority, and that the Government Servant cannot at all be suspended. The interpretation of the rule should for the purpose, for which it has been framed and any other contra interpretation made by the Petitioner, taking away the powers of disciplinary/appointing authority, would be an infringement to the rule. If the contentions of the learned Counsel for the writ Petitioner are to be accepted, then the Rule 17(e) would be made inapplicable to cases, where a crime is registered on a private complaint and in cases, where the Court takes cognizance of an offence. Interpretation of the statuary provision should be to effectuate the rule, unless it is per se violative of the Constitution of India, or the enabling provisions of the statute. In this context, it is useful to extract few decisions of the Supreme Court in Anwar Hasan Khan Vs. Mohammad Shafi and Others, , the Supreme Court, at paragraph 8, held as follows:

For interpreting a particular provision of an Act, the import and effect of the meaning of the words and phrases used in the statute have to be gathered from the text, the nature of the subject-matter and the purpose and intention of the statute. It is a cardinal principle of construction of a statute that effort should be made in construing its provisions by avoiding a conflict and adopting a harmonious construction. The statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved. The well-known principle of harmonious construction is that effect should be given to all the provisions and a construction that reduces one of the provisions to a "dead letter" is not harmonious construction.

In Shri. R.S. Pillai Vs. Smt. M.L. Peratchi @ Selvi and 10 others, ,a Division Bench of this Court, at paragraphs 23 held as follows:

Before we take up such an exercise,the settled legal position in interpreting the statutes has to be borne in mind. It is settled law that the statute must be read as a whole and this principle equally applies to different parts of the same Section Balasinor Nagrik Cooperative Bank Ltd. Vs. Babubhai Shankerlal Pandya and Others, .

No provision in the statute and No. word in the Section may be construed in isolation Syed Hasan Rasul Numa v. Union of India, AIR 1991 SC 711.

Where the language of the provision is plain, clear and unambiguous, only the plain meaning of the provision is to be adopted so as to avoid any hardship or absurdity resulting there from R.S. Raghunath Vs. State of Karnataka and another, and Mohammed All Khan v. W.T.Coinmr, AIR 1997 SC 1165.

Again in M. Sathyanathan Vs. The District Collector and The Assistant Director, (Geology and Mines), , this Court held that,

It is well-settled principle of interpretation that a statute is to be interpreted on its plain reading; in the absence of any doubt or difficulty arising out of such reading of a statute defeating or frustrating the object and purpose of an enactment, it must be read and understood by its plain reading. However, in case of any difficulty or doubt arising in interpreting a provision of an enactment, Courts will interpret such a provision keeping in mind the objects sought to be achieved and the purpose intended to be served by such a provision so as to advance the cause for which the enactment was brought into force. If two interpretations are possible, the one which promotes or favours the object of the Act and purpose it serves, is to be preferred. At any rate, in the guise of purposive interpretation, the Courts cannot rewrite a statute. A purposive interpretation may permit a reading of the provision consistent with the purpose and object of the Act, but the Courts cannot legislate and enact the provision either creating or taking away substantial rights by stretching or straining a piece of legislation. Vide Sri Ram Saha Vs. State of West Bengal and Others, .

In R.Sridharan v. Presiding Officer reported in 2008 (6) MLJ 1181, at paragraph 41, this Court has held that,

Interpretation of a statutory provision should be to find out the intention of the legislature and that has to be understood with due regard that the object of the legislation also. The word employed in the statute will acquire meaning and content depending upon the context in which they are used. The word should not be torn out by the context and by interpretation, it would made another provision Otiose/redundant and such interpretation should not be adopted.

As regards the power of the Government to retain a person under suspension in matters involving moral turpitude and the right of a Government Servant to seek for retention in service, this Court in R.Ravichandran v. Addl. Commr. of Police, Chennai reported in 2010 CIJ 553 IPJ, framed the following issues for consideration,

(i) Whether the authority, who has placed a government servant under suspension is statutorily bound to review the suspension, when he is facing investigation into a criminal case/trial of an offence, involving moral turpitude, like corruption embezzlement, misappropriation or for such other serious offences before the criminal Court and if review of suspension is not done by the authority, who has placed the government servant, under suspension, or by the higher authority, whether the said order would become automatically invalid?

(ii) Whether the time limit prescribed for review of suspension in G.O.Ms. No. 40, dated 30.01.1996 is applicable to criminal case?

(iii) What is the right of a government servant during the period of suspension pending enquiry into the charges, under contemplation /pending investigation /trial?

(iv) When the appointing /disciplinary authority /government can exercise his discretion to place a government servant under suspension and

what are all the factors to be taken into consideration?

(v) Whether the order of suspension is administrative or quasi-judicial nature?

(vi) When the power of judicial review exercised by Courts in adjudicating the legality or correctness of an order of suspension passed by the appointing /disciplinary authority /government, pending contemplation of the charges /enquiry /investigation /trial, what is the extent of discretion to be exercised by Courts?

(vii) Whether the Courts can merely strike down orders of suspension issued against the government servant and continued, pending disposal of the investigation /trial of offences involving moral turpitude, particularly, corruption, on the sole ground that there is No. progress in the investigation or trial for a considerable period, there is No. likelihood of tampering with the witnesses or prolonged suspension, pending investigation or trial, causes agony and humiliation?

(viii) Whether a government servant placed under suspension for involvement in serious offences /misconduct, involving moral turpitude can seek for retention in service in any insignificant post or seek for transfer, on the sole ground that the suspension is prolonged pending investigation /trial?

At paras 81 to 88 and 89, this Court further held as follows:-

For the purpose of suspension, it is sufficient that the competent authority has arrived at a prima facie conclusion that the Government servant has committed a serious misconduct, which entails major penalties, like dismissal, removal or compulsory retirement, etc., from service. Illustrative cases, where action has to be taken immediately, are persons, involving in serious acts of misdemeanor, such as, (a) offence or conduct involving moral turpitude, (b) corruption, embezzlement or misappropriation of Government money, (c) possession of disproportionate assets, (d) misuse of official powers for personal gain, (e) serious negligence or dereliction of duty, (f) desertion of duty and (g) refusal or deliberate failure to carry out written orders of superior officers; (h) apprehension of tampering with witnesses or documents or likelihood of causing prejudice to an inquiry, investigation or trial; (j) likelihood of subversion of discipline in office; (k) involvement of scandals, and (l) likelihood of ultimate conviction out of departmental proceedings, and in all these illustrative cases, it is the matter of necessity and public interest, involved and therefore, it which must be left to the absolute discretion of the competent authority, with whom, the power is vested to suspend and that such discretion exercised in public interest should not be interfered with lightly.

When the criminality of the government servant is adjudicated before the Court of competent jurisdiction and when the Police, Vigilance and Anti-Corruption Department has launched prosecution or proposed to launch for imposing appropriate punishment under the penal laws, the appointing/disciplinary authority/government, should be allowed to exercise their discretion to place the government servant under suspension, which is a step in aid, to complete the investigation/trial. Courts have consistently held that even if the materials are not adequate for prosecution or even after acquittal, when the appointing/disciplinary authority/government is empowered to place the government servant under suspension, the power can be exercised on proper consideration of relevant materials, in public interest.

Once the objective consideration of the allegations, the material on record, warrants suspension, till the completion of enquiry or trial, in public interest, it is not for this Court to examine the nature of the allegations, the evidence and to record any finding thereon, which would hamper the progress of the departmental enquiry or investigation or trial against the government servant.

No. doubt, the exercise of discretion, should be rational, should not be arbitrary and that there is also a legal duty cast upon the appointing/disciplinary authority/Government to apply its mind before exercising such discretionary power. However, when the government servant against whom, an enquiry into grave charges or an investigation into an offence or trial is pending and such charge/charges, involves moral turpitude, then the competent authority can exercise his discretionary power under Rule 17 of the Tamil Nadu Civil Service (Discipline and Appeal) Rules and place the government servant under suspension, pending enquiry into grave charges under contemplation into charges/enquiry into formulated charges/investigation/trial.

In this context, it is pertinent to extract the observations of Lord Denning, as found in Wade on Administrative Law,

The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant consideration and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No. matter that the statutory body may have acted is good faith, nevertheless the decision will be set aside.

The duty of the Court is restricted only to the limited extent to see that where the appointing/disciplinary authority has taken into consideration the nature of the charge, its complexity, the public interest involved in retaining the government servant, against whom, serious imputation of corruption, misappropriation, embezzlement, etc., are levelled and whether retention of such person, would be scandalous to the department or sub-serve the discipline in the department or affect the morale of other government servants.

The appointing/disciplinary, authority /government is entitled to exercise the control and maintain the master and servant relationship. To suspend an employee, as an interim measure for anyone of the reasons stated supra, which are illustrative, is the absolute right of an employer and No. employee can insist that he must be allowed to be retained in service and discharge his duties and enjoy the fruits or privileges attached to the post. While testing the correctness of the order of suspension, all that has to be seen by the Court is whether the power of the appointing/disciplinary authority, in controlling the employees, has been exercised reasonably, without any mala fide and that there should not be any lack of jurisdiction. Any action taken by the appointing/disciplinary authority, in public interest to maintain a clean and honest administration, cannot be interfered with lightly. Even though the government servant is put to mental agony, it is only to the limited extent of restricting him from discharging his duties and enjoy other privileges attached to the post and it is only an interim measure, till he is cleared off of the imputations levelled against him. The suspension cannot be attacked on the ground that the facts stated therein are not correct. It is well settled that the High Court cannot delve into the factual details, while adjudicating the correctness of an administrative order.

The order of suspension for a misconduct, involving moral turpitude, in the instant case, alleged act of corruption and the further order, refusing to revoke the order of suspension, both being discretionary and administrative in nature, should not ordinarily be interfered with by the High Court under Article 226 of the Constitution of India. Allowing a person charged with serious acts of corruption or any other misconduct, involving moral turpitude, to discharge his duties and enjoy the fruits of the post, would be against a public policy and it would not be in public interest or to maintain a clean and effective administration.

It is the responsibility of the appointing/disciplinary, authority/government to take into consideration that other employees/servants of the department are not demoralised and restoring the services of such person, in service, would be certainly deleterious to the efficiency of others. Powers exercised by the appointing/disciplinary authority in rejecting the request, cannot be said to be arbitrary. The appointing/disciplinary authority/government has to maintain honesty, good conduct, efficiency in administration and to keep away persons, facing serious charges.

The above decision has been further elaborated by Brother Hon''ble Mr. Justice K.Chandru, by an order, dated 01.11.2010, wherein the learned Judge has dismissed a batch of Writ Petitions in W.P.(MD)Nos. 10882 of 2009, etc., and the relevant portions of the above order are extracted hereunder:

Before proceeding to deal with the main case, it is seen from records that in this batch of writ petitions, in most of the writ petitions, interim stay has been granted on identical grounds. In that a reference was made to the judgment of this Court in The State of Madras v. K.A.Joseph reported in AIR 1970 Mad 155. In that case, the Respondent Joseph was placed under suspension pending contemplation of enquiry. Since suspension lasted for more than 10 months, he moved this Court. This Court directed that charges should be framed within three months and if that was not done, he can again approach the court for redress. When No. charges were framed by the competent authority, he filed another writ petition. This Court while entertaining that writ petition, by an interim order revoked the suspension order.

An appeal was filed by the State in W.A. No. 45 of 1969. The appeal was finally disposed of by a division bench of this Court which came to be reported as The State of Madras Vs. K.A. Joseph, . The short order contained only three paragraphs. In paragraph 1, the court dealt with the facts of the case, which is as follows:

... It is sufficient for us to observe that a period of nearly ten months had elapsed since the Officer was first placed under suspension, and that, on an earlier representation, the Court directed that charges should be framed within three months, and that, if that was not done, the Petitioner could approach the Court, again for redress, and, the outcome is the order from which the writ appeal is sought to be filed.

Repelling the objections raised by the State regarding the power of judicial review over such order, in paragraph 2, it was observed as follows:

2...On the contrary, in our view there is a very clear and distinct principle of natural justice, that an Officer is entitled to ask, if he is suspended from his office because of grave averments or grave reports of misconduct, that the matter should be investigated with reasonable diligence, and that charges should be framed against him within a reasonable period of time....

When the Government Pleader in that case expressed his difficulty about the embarrassment if the Government servant resumed duty in the same place, the court moulded the relief in the following manner:

3... The learned Government Pleader submits that there may be great difficulty in permitting the Officer to resume duties in the very post, when the performance of those duties by him in the past, had led to the imputation of grave irregularities, we are unable to see any real difficulty in the matter. We clarify the position by stating that it is open to the Government to permit the Officer to resume duty in that identical post, or, any post of equal grade and emoluments, which may be available for making an order of resumption of duty.

It can be seen from the above case that there was initial disobedience of the order passed by this Court in not framing the charges. Thereafter, the suspension was revoked. There was objection for restoration of service on the ground that this Court has No. jurisdiction to interfere with the suspension which was rejected. Thirdly when the embarrassment of restoration of a Government servant facing serious charges to the very same place was made, the court also directed his being posted to some other post in the very same status and salary.

From a reading of the very short judgment, it is clearly seen that the court was only concerned about the delay in framing of charges by the department. It did not deal with any case involving criminal prosecution that too on corruption charges. Secondly, the court gave an opportunity to the Respondent to frame charges and not to be merely contended keeping a person under suspension. When that was not forthcoming and the order of the court was violated, the court revoked the suspension order, but also took care in granting liberty to the Government to post that person in some other place.

The above referred judgment has been taken on appeal and that the same was confirmed in W.A.(MD) No. 84 of 2011, dated 21.01.2011.

In C.Balasubramanian v. The Commissioner, Tiruchirappalli Corporation reported in 2011 (1) CWC 319, wherein a Division Bench of this Court declined to interfere with the order of suspension, passed against the Appellant therein, who indulged in corrupt practices and facing criminal trial, under the Prevention of Corruption Act.

In a recent decision of Hon''ble Mr. Justice N. Paul Vasanthakumar, in E.S.Mathiyan v. The Joint Director of Medical and Rural Health Services and Family Welfare reported in 2011 (2) LLN 782 (Mad), has considered the correctness of an order of suspension, passed under Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, pending investigation into a criminal case, registered u/s 392 Indian Penal Code, 1860. After considering a catena of decisions and the Division Bench judgment made in W.A.(MD) No. 84 of 2011, dated 21.01.2011 stated supra, the learned Judge has held that the impugned order of suspension cannot be quashed. It is worthwhile to extract the decisions, referred to by the learned Judge.

(i) A Division Bench of this Court considered Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules in W.A. No. 1114 of 2007 (the Secretary to Government of Tamil Nadu and Ors. v. N.Shanmugasundaram) and by judgment dated 5.11.2007 upheld the order of suspension pending investigation/trial of criminal offence.

(ii) A Division Bench of this Court in the case of M. Rajambal Vs. The Principal District Judge, held that Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, contemplates that a member of a service may be placed under suspension from service, where an enquiry into grave charges against him is contemplated, or is pending or a complaint against him or any criminal offence is under investigation or trial and if such suspension is necessary in the public interest. In the said Judgment, the decisions of the Supreme Court in The Management of Hotel Imperial, New Delhi and Others Vs. Hotel Workers'' Union, and in R.P. Kapur Vs. Union of India (UOI) and Another, were followed and upheld the similar order of suspension.

(iii) In W.A. No. 1818 of 2009, dated 15.12.2009, a Division Bench of this Court in the case of S.Jeevanantham v. the Government of Tamil Nadu and Ors. considered an identical issue and confirmed the order of a learned Single Judge dismissing the Writ Petition, which was filed challenging the order of suspension.

(iv) Suspension orders were also upheld in the case of D. Gnanasekaran and M. Anantharamasubramanian Vs. The Chief Educational Officer, and in the case of S.Jeyasingh Rajan v. President, Kalloorani Panchayat reported in 2006 (4) MLJ 59.

(v) The Supreme Court in the case of Allahabad Bank and Another Vs. Deepak Kumar Bhola, , upheld the order of suspension of a bank employee, who was facing a criminal offence involving in moral turpitude. In the said Judgment, the order of the Allahabad High Court, quashing the order of suspension was set aside and the appeal filed by the bank was allowed.

(vi) The Supreme Court in the decisions in R.P.Kapoor v. Union of India reported in AIR 1964 SC 787l;

Balvantray Ratilal Patel Vs. The State of Maharashtra, ; A.K.K. Nambiar Vs. Union of India (UOI) and Another, ; V.P. Gidroniya Vs. The State of Madhya Pradesh and Another, ; The Government of India, Ministry of Home Affairs and Others Vs. Tarak Nath Ghosh, ; Government of A.P. Vs. V. Sivaraman, ; Uttar Pradesh Rajya Krishi Utpadan Manti Samiti Parishad v. Sanjiv Rajah reported in 1993 (2) LLN 11; State of Orissa v. Bimal Kumar Mohanty reported in 1994 (1) LLN 889; State of Madhya Pradesh and Others Vs. Shri Ram Singh, ; State Bank of India and Another Vs. Rattan Singh, ; K.C. Sareen Vs. C.B.I., Chandigarh, ; Union of India (UOI) Vs. Rajiv Kumar, , held that a person involved in a criminal case can be placed under suspension till he is exonerated and she can claim only subsistence allowance and he cannot demand revocation of suspension as a matter of right.

(vii) A Division Bench of the Madurai Bench of this Court in W.A.(MD) No. 84 of 2011 dated 21.1.2011(R.Sakunthala v. The State of Tamil Nadu) following the above cited decisions, confirmed the order of the learned single Judge dismissing the writ petition, seeking revocation of the suspension order.

In view of the above, though the Petitioner has contended that only at the instances of his wife, ie., on a private complaint, a Crime No. 14 of 2010 under Sections 498(A), 406 & 506(i) of Indian Penal Code, 1860 has been registered and it cannot be taken note of by the appointing /disciplinary authority, for placing the Petitioner under suspension, this Court is not inclined to subscribe to the same. As regards the contention that the Respondent has failed to review the suspension, pending investigation, the same has been already answered in R.Ravichandran v. Addl. Commr. of Police, Chennai reported in 2010 CIJ 553 IPJ.

For the foregoing reasons, and following the decisions, stated supra, this Court is not inclined to interfere with the order of suspension. Hence, this Writ Petition is dismissed. Consequently, connected Miscellaneous Petitions are also dismissed. No. costs.