Thalapathi Parthiban vs The Superintending Engineer and The Assistant Executive Engineer

S. Manikumar, J.—Being aggrieved by the impugned order, dated 22.06.2013 passed by the Assistant Executive Engineer (Rural), Tamil

Nadu Generation and Distribution Corporation Limited, Srivilliputhur, 2nd respondent herein, suspending the petitioner from service, the petitioner

has filed the present writ petition, to quash the same and consequently, he has prayed for a direction to the respondents to reinstate him in service,

with all consequential benefits. Currently, the petitioner is a Stores Supervisor in the office of the Assistant Executive Engineer (Rural), Tamil Nadu

Generation and Distribution Corporation Limited, Srivilliputhur, 2nd respondent herein. According to him, for the last one year, misappropriation

has been committed by the 2nd respondent. He also demanded bribe from every consumer, who had applied for new electricity service connection

and installation of posts. He has also forced the petitioner to receive bribe from the applicants on his behalf, by saying that he had spent huge

money for getting transfer to the office of the 2nd respondent. As the petitioner was not willing to indulge in any such unlawful activity and since he

has interest in the department, he has lodged a complaint dated 20.03.2013 against the 2nd respondent to the Vigilance Wing, Tamil Nadu

Generation and Distribution Corporation.

It is the further case of the petitioner that coming to know about the complaint, the 2nd respondent has threatened him to withdraw the

complaint, otherwise, he would teach a lesson to him. But the petitioner did not respond to his threat. In the above background, the 2nd

respondent has placed the petitioner under suspension, vide impugned order, dated 22.06.2013, alleging that on 08.06.2013, the petitioner had

attempted to attack one Mr. Murugan, Commercial Inspector, and on 21.06.2013, that he had scolded the 2nd respondent with unparliamentary

words and abused him in the name of his community. It is the case of the petitioner that no such incidents occurred at any point of time and that the

allegations are utter-false.

When the matter came up for hearing, Mr. R. Sathish, learned counsel for the petitioner raised only two points for consideration:-

1) Mala fide on the part of the 2nd respondent in placing the petitioner under suspension;

2) that the impugned order of suspension is bad in law on the ground that suspension can be invoked only when specific charges have been framed

by a competent authority and not otherwise. Reliance has been placed on the decisions of this Court Dr. B. Karanchandra Mohan Prasath vs.

State of Tamil Nadu, reported in 2011 (4) CTC 608, and R. Jeyadoss Gabriel Vs. Secretary to Government, Co-operation, Food and Consumer

Protection (CD II) Department, Secretariat, Chennai-9 and Another, . On the above pleadings and submissions, the learned counsel took this

Court through the complaint dated 20.03.2013 made against the 2nd respondent and also the relevant passages from the judgments, stated supra.

Before adverting to the allegations of mala fide, this Court deems it fit to address the second ground as to whether pendency of charges is a

mandatory requirement for placing a Government Servant under suspension.

The impugned order passed by the 2nd respondent is extracted hereunder:-

Earlier, this Court in R. Ravichandran Vs. Additional Commissioner of Police, Chennai, reported in 2010 CIJ 553 IPJ, had an occasion to

consider the nature and scope of an order of suspension. The Court framed several questions. Some of the questions raised and answered in R.

Ravichandran''s case (stated supra) may be relevant for the purpose of adjudicating the second ground of attack in this writ petition, as to whether

formulation/pendency of specific charges is a mandatory requirement for placing a Government Servant/employee under suspension. That

questions raised are as follows:-

(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 is 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?

The meaning of the word ""suspension"" extracted from various Dictionaries and the legal meaning, are as follows:-

Suspension, as per Wharton''s Law Lexicon, 14th Edn., is a temporary stop or hanging up as it were of a right for a time, also a censure on

ecclesiastical persons, during which they are forbidden to exercise their office or take the profits of their benefices.

''Suspension'' means, ""action of debarring or state of being debarred, especially, for a time, from a function or privilege; temporary deprivation

of one''s office or position, or again, state of being temporarily kept from doing or deprived of something.

Suspension as per Black''s Law Dictionary: 7th Edn. Pg. 1460 means, (1) to interrupt; postpone; defer (2) to temporarily keep a person from

performing a function, occupying an office, holding a job or exercising a right or privilege.

As per Stroud''s Judicial Dictionary, ""Suspension'' or ''Suspense'' is a temporal, i.e., temporary, ""Stop of Mans'' Right (Cowel). Suspension, as

per Bauvier''s Law Dictionary, Vol. II, means a temporary stop of right, of a law, and the like. As per the Ramanatha Iyer''s Dictionary, suspension

means temporary intervention or cession of something (as) office, work or labour.

""The act of debarring for a time from a function or privilege"". It means a temporary deprivation of once office or position. The suspended

officer does not cease to be a public servant, he is only prevented from discharging the duties of his office for the time being. [K.J. Aiyar''s Judicial

Dictionary, 14th Edn.]

Suspension, according to Oxford Dictionary, means, ""The action of suspending or condition of being suspended, the action debarring

especially for a time from, a function or privilege, temporary deprivation of one''s office or position or again, state of being temporarily kept from

doing or deprived of something.

Suspension is, to defer; to debar from any privilege, office employment, etc., for a time being. [Ref. Hemanta Kumar Bhattacharjee Vs. S.N.

Mukherjee,

Suspension can notes temporary cessation of something as right, work or labour. The basic idea underlying the root word, ""suspend"" and all its

derivatives is that a person while holding an office and performing its functions of holding a position or privilege should be interrupted in doing so

and debarred for the time being from further functioning in the office or holding the position and privilege. He is intercepted in the exercise of his

functions of his employment of the privilege and put aside, as it were, for a time, excluded during the period from his functions or privileges. Such is

the concept of a suspension order. Reference can be made to the decision in Abid Mohammad Khan Vs. The State, .

On the aspect whether an order of suspension is administrative or quasi judicial in S. Pratap Singh Vs. The State of Punjab, the Supreme

Court explained the effect of suspension as follows:

Suspension of a Government servant, during the course of his service, simply means that no work is to be taken from him during the period of

suspension. The Government servant does not work on a post during the period of his suspension. If he is actually discharging the duty of a certain

office prior to suspension, the order of suspension would mean that he would cease to work on and discharge the duties of that post. If at that time

he is not working on any post but is on leave, no question of his actually ceasing to work or giving up the discharge of duty arises, but that does not

mean that the order of suspension would be ineffective.

R. Ravichandran''s case (cited supra) relates to a Government Servant. Power of the State Government to place a Government servant under

suspension is given under Rule 17(e) of the Tamil Nadu Government Servant (Discipline and Appeal) Rules, which reads as follows:

(e) (1) A member of a service may be placed under suspension from service, where-

(i) an enquiry into grave charges against him is contemplated, or is pending; or

(ii) a complaint against him of any criminal offence is under investigation or trial and if such suspension is necessary in the public interest.

The power of the Government/appointing authority/disciplinary authority, to place a Government Servant or an employee under suspension,

even before the formulation of charges, has been dealt with, at paragraph 37 of the judgment in R. Ravichandran''s case. The necessity or

desirability to place a government servant/employee, under suspension, is dealt with, at paragraphs 44 and 46 of the reported judgment, which are

reproduced.

In State of Tamil Nadu v. P.M. Balliappa reported in 1985 (2) LLN 362(Mad.), this Court has held that the necessity or desirability to place

the person under suspension is the objective satisfaction of the Government. More so, the Court cannot look into the sufficiency of material, but

only the factum of satisfaction if the satisfaction is no satisfaction at all or it was formed on a consideration or there was total lack of application of

mind.

In Bhup Narayan Jha Vs. State of Bihar and Others, a Full Bench of the Patna High Court dealt with rule 49A of the Bihar Services

(Classification, Control and Appeal) Rules, 1930, which rule is parimateria with rule 17 of the Tamilnadu Civil Services (Classification, Control and

Appeal) Rules. Rule 49A of the Bihar Services (Classification, Control and Appeal) Rules, 1930 is extracted hereunder:

49(A)(1):---The appointing authority or any authority to which it is subordinate or the Governor, by general or special order, may place a

Government servant under suspension:

(a) Where a disciplinary proceeding against him is contemplated or is pending; or,

(b) Where a case against him in respect of any criminal offence is under investigation, inquiry or trial.

The Full Bench dealing with the proviso and the need for suspension, explained its objects as follows:

In this context it become necessary to first consider the very nature of an order of suspension made either during the pendency of a departmental

proceeding or in reasonable contemplation thereof. It is well settled that suspension is of two kinds -- one by way of punishment, and the other by

way of a procedural aid to the holding of disciplinary proceedings. Admittedly herein we are concerned with the latter category. It seems to be

undisputed that the concept of suspension during departmental proceeding has only the large objective of ensuring a free and fair conduct of the

enquiry that is either pending or is to follow. In this context, the fact that the suspension order is interlocutory or interim in nature can perhaps be

hardly denied. The service rules invariably, if not inflexibly, provide for a subsistence allowance during the period and the delinquent official retains

his lien on the post during the continuation of the departmental proceeding. This mellows the rigour of the order of suspension and in the event of

the enquiry resulting in favour of the official, he would be invariably entitled to the revoking of the order of suspension and the reinstatement to the

post with all the benefits of service and salary, (sometimes even without having worked during the said period), as may be provided in the rules.

There is thus no finality or irrevocability attaching to an order of suspension, which, as already noticed, retains its character or being interim or

interlocutory, in nature.

The object and purposes of placing a public servant under suspension during or in contemplation of a disciplinary proceeding may be manifold and

do not call for any exhaustive enumeration. However, its salient features are well known and may call for a passing notice. Where serious

allegations of misconduct are imputed against an official, the service interest renders it undesirable to allow him to continue in the post where he

was functioning. In case where the authority deems a further and deeper investigation into the same as necessary, it become somewhat imperative

to remove the official concerned from the spheres of his activities, as it may be necessary to find out facts from people working under him or to

take into possession documents and materials which would be in his custody. Usually, if not invariably, it would become embarrassing and

inopportune both for the delinquent official concerned as well as the inquiring authority to do so, while such official was present at the spot and

holding his official position as such. It was sought to be contended that such a situation may be avoided by merely transferring the official.

However, it would be for the authority concerned to decide whether such an official, against whom prima facie serious imputations have been

levelled; should at all be allowed to function anywhere else. If it so decides, then suspension during the pendency or in contemplation of an inquiry

might well become inevitable. It seems to be a fallacy to assume that suspension is necessarily and wholly related to the gravity of the charge.

Indeed, it may have to be ordered to facilitate free investigation and collection of evidence. Just as criminal procedure is intended to subserve the

basic cause of a free and fair trial, similarly, suspension as an interim measure in aid of disciplinary proceeding, is directed to the larger purpose of a

free and fair inquiry. It would thus seem that the power of suspension is not only necessary, but indeed, a salutary power, if reasonably exercised

either during the pendency or in contemplation of a disciplinary proceeding.

After considering various decisions in State of Orissa Vs. Bimal Kumar Mohanty, the Supreme Court held as follows:-

It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or

contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission,

the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and

the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or

disciplinary authority should consider the above aspects 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 could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling

an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the

alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee

could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or

investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or

inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible

impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It

would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate

result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent''s continuance in office

while facing departmental inquiry or trial of a criminal charge.

On the facts in this case, we are of the considered view that since serious allegations of misconduct have been alleged against the respondent,

the Tribunal was quite unjustified in interfering with the orders of suspension of the respondent pending inquiry. The Tribunal appears to have

proceeded in haste in passing the impugned orders even before the ink is dried on the orders passed by the appointing authority. The contention of

the respondent, therefore, that the discretion exercised by the Tribunal should not be interfered with and this Court would be loath to interfere with

the exercise of such discretionary power cannot be given acceptance.

The Supreme Court in The Government of India, Ministry of Home Affairs and Others Vs. Tarak Nath Ghosh, which has been considered in

Biman Kumar Mohanty''s case (cited supra), also raised a question as to whether the suspension of a member of the service can only be ordered

after definite charges communicated to him in terms of Rule 5(2) of the All India Services (Discipline and Appeal) Rules, 1955, or whether the

Government is entitled to place him under suspension even before that stage has been reached after a preliminary investigation. The Supreme Court

in Tarak Nath Ghosh''s case held as follows:-

Held: (1) The fact that in other rules of service there is specific provision for an order of suspension even when disciplinary proceedings were

contemplated, does not mean that a member of the All India Service should be dealt with differently. It would not be proper to interpret the Rules,

which form a self-contained Code, by reference to the provisions of other rules even if they were made by or under the authority of the President

of India.

In Gyan Singh Parihar Vs. State of Uttar Pradesh and Others, a Division Bench of the Allahabad Court tested the correctness of an order of

suspension, pending a proposed disciplinary enquiry, against an employee relating to serious charges of fraud, embezzlement, bribe etc., At para 4

and 5 of the judgment, the Division Bench held as follows:

Whether an employee should or should not continue in his office during the period of disciplinary enquiry is a matter to be assessed by the

concerned authority and ordinarily, the Court should not interfere with the order unless it is demonstrated to be mala fide and without there being a

prime fade evidence on record connecting the employee with the misconduct in question. See U.P. Rajya Krishi Utpadan Mandi Parishad and

Others Vs. Sanjiv Rajan,

It has not been demonstrated before the Court that the order is mala fide and without there being a prime facie evidence on record connecting

the petitioner with the alleged misconduct, warranting interference by this Court in exercise of its discretionary jurisdiction under Article 226 of the

Constitution of India.

For the purpose of suspension, it is sufficient that the competent authority has arrived at a prima facie conclusion that the Government servant

or an employee 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 holding the employee guilty of departmental proceedings, and in all these illustrative cases, it is the matter of necessity and public

interest, involved and therefore, it should 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.

The appointing/disciplinary authority/government, should be allowed to exercise their discretion to place the government servant/employee

under suspension, which is a step in aid, to complete the investigation/trial or charges to be framed by the department. Courts have consistently

held that even if the materials are not adequate for prosecution or even after acquittal, the appointing/disciplinary authority/government is

empowered to place the government servant/employee under suspension, and that the power can be exercised on proper consideration of relevant

materials, in public interest.

Once the objective consideration of the allegations and the material on record, warrants suspension, till the completion of enquiry or trial or

enquiry by the department, in public interest, it is not for this Court to examine the nature of the allegations, 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, exercise of discretion, should be rational, should not be arbitrary and that there is also a legal duty cast upon the

appointing/disciplinary authority to apply his mind before exercising such discretionary power. However, when the government servant/employee

against whom, an enquiry into grave charges is pending/under contemplation or an investigation into an offence or trial is pending and such

charge/charges, to be formulated, require, placing a person under suspension, then the competent authority can exercise his discretionary power

under the relevant rules to place the government servant/employee under suspension, pending enquiry or under contemplation or 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 atleast 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, public interest involved in retaining the government servant/employee, against whom, serious imputation 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/employees or to facilitate a fair enquiry.

The appointing authority/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/employee 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. Suspension cannot be attacked on the ground that the facts stated therein are not correct. It is well settled that

High Court cannot delve into factual details, while adjudicating the correctness of an administrative order.

Now let me consider the decision in Dr. B. Karanchandra Mohan Prasath vs. State of Tamil Nadu, reported in 2011 (4) CTC 608, relied on

by the learned counsel for the petitioner. The question which came up for consideration before a learned single Judge was, whether the

appointing/disciplinary authority in exercise of the powers under rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, can

place a Government Servant under suspension, when charges were not framed, on the date of suspension. An argument seemed to have been

advanced by the learned Senior Counsel for the petitioner therein, is that only when charges are framed and pending, suspension can be ordered.

Yet another contention is that only formulation of specific charges, an enquiry is said to be pending. Reliance has been made on Union of India Vs.

K.V. Jankiraman, etc. etc., where the Hon''ble Supreme Court has taken the view that pendency of preliminary investigation, prior to the stage,

will not be sufficient to enable the authorities to adopt a sealed cover procedure.

Perusal of the judgment shows that reliance has been placed on a decision in N. Deenadayalan Vs. The Deputy Inspector General of Police,

Chengalpattu Range, wherein, a learned single Judge while explaining the words ""enquiry pending"" and ""enquiry under contemplation"", at

paragraphs 6, 7, 11 and 12, held as follows:-

Sathiadev, J., in S. Vasudevan v. The Government of Tamil Nadu, Rep., By Its Secretary, Home Department W.P. Nos. 304, 390 of 1982,

order dated 7.12.1982, dealt with a case under Rule 17(a)(1)(i) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules,

hereinafter referred to as Tamil Nadu Civil Services Rules, where a servant was placed under suspension, pending further enquiry into grave

charges against him. The learned Judge found that at the time of the passing of the impugned order of suspension there only a charge memorandum

had been issued and the enquiry was yet to begin and hence no enquiry was pending against the servant relating to grave charges against him, as

claimed in the impugned order of suspension. An attempt was made on behalf of the authorities to state that the impugned order of suspension must

be read to mean an enquiry into grave charges was contemplated against the petitioner so as to sustain it within the language of Rule 17(a)(1)(i) of

the Tamil Nadu Civil Services Rules. The learned Judge repelled the argument put forth on behalf of the authorities in the following terms:

Learned Advocate-General contends that what was intended by the impugned CO., was that, an enquiry into grave charges was ''contemplated''

against the petitioner, though in fact it was not pending. Issuing a charge memo would not mean enquiry is pending. If explanation called for and

submitted, is found to be satisfactory, then enquiry would not be ordered. Hence, stage of holding an enquiry had not reached. Rule 17(a)(1) and

(ii), has not allowed such vagaries to exist, is being specific that there are two different categories viz., (1) where an enquiry into grave charges is

contemplated and (2) where an enquiry is pending. Whenever an order of suspension is passed in public interest, without exception, Government

had always insisted that those orders are to be strictly construed confining only to the words used in the order. Even otherwise, there cannot be

ambiguity when the order is passed by Home Department in disciplinary matters, unlike orders by subordinate disciplinary authorities. The claim of

''public interest'' would depend upon the correctness or claims made on these aspects. Without even looking into records, this expression had been

mechanically used. It is now shown that due and required care had not been taken, while passing the order. There being considerable difference

between an ''enquiry pending'' and ''enquiry being contemplated'', Government cannot be heard to plead that, even though it may claim that an

enquiry is contemplated, to get over the lapse committed by its officers. At least when such G.Os. are passed, what is stated therein will have to be

understood in the manner in which it has been expressed particularly, when the rule itself contemplating different situation. Hence, on the date of the

order, when ''no enquiry was pending'' against the petitioner into grave charges, the first error apparent on the face of the order having occasioned,

the impugned order deserves to be set aside."" We could see from the above extract, learned Judge held that by the mere issuing of a charge

memorandum, enquiry could not be stated to be pending and if explanation called for an submitted is found to be satisfactory, then enquiry would

not be ordered. As already noted, framing of grave charges, need not necessarily and always culminate in the holding of an enquiry. Even after

framing of grave charges, enquiry into the same can remain in contemplation, to be dropped in appropriate cases. If enquiry is commenced after

the grave charges are framed, that will be a case of enquiry into grave charges pending so as to enable-the authority to invoke the latter part of

Rule 3(a)(1)(i) to suspend the member of the service. When enquiry into grave charges framed is in contemplation, the earlier part of Rule 3(a)(1)

(i) can be availed of to suspend the member of the service. In that case, Sathiadev, J., struck down the order of suspension, since it exposed total

lack of application of mind when it made the wrong statement that an enquiry was pending. The order of suspension in that case was impugned in

W.P. No. 390 of 1982. W.P. No. 304 of 1982 was to quash the charge memorandum and W.P. No. 391 of 1982 was filed for a MANDAMUS

to the authority concerned to consider the servant for promotion. The learned Judge allowed all the three writ petitions on 7.12.1982. The

common order of the learned Judge was taken on appeals. A Bench of this Court, consisting of Ramanujam and Ratnam, JJ. dealt with the appeals

in The The Government of Tamil Nadu and Others Vs. S. Vasudevan and Others, , and the appeal, preferred by the State as against the order in

W.P. No. 390 of 1982 quashing the suspension, was dismissed, and on the reasons countenanced by Sathiadev, J., but on a different ground. The

Bench had no occasion to touch, differ from or upset the reasonings expressed by Sathiadev, J., in his common order.

In A. Antony v. The Commissioner of Forests, Vellore and Anr. W.P. No. 9733 of 1987, order dated 3.11.1987, I had occasion to deal with

an order of suspension passed under Rule 17(a)(1)(i) of the Tamil Nadu Civil Services Rules on the ground that an enquiry into grave charges is

contemplated, and on the date of the order of suspension there had been no charge formulated. The order of suspension was held to be not

sustainable and it was set aside by Venkataswami, J., in similar contingencies, of course, dealing with petitions for stay in J. Venkataraman and

Anr. v. The Government of Tamil Nadu Rep., By Its Commissioner and Secretary, Home (Transport) Department, Madras-9 and Anr., W.M.P.

Nos. 18178 and 18179 of 1987 in W.P. Nos. 12349 and 12340 of 1987. Order dated 13.1.1988, followed the view in A. Antony v. The

Conservator of Forests, Vellore and Anr. W.P. No. 9733 of 1987, Order dated 3.11.1987.

8....

9....

10....

Two aspects mainly weigh with me to frown upon the impugned order of suspension in the present case. One is the plain and unambiguous

language of Rule 3(e)(1)(i) of the Rules. The other is the rule of interpretation that should guide the Court with regard to expressions occurring in

the very same Rule. Words are generally used in the same sense throughout in a statute unless there is something repugnant in the context. Same

word in a particular provision should bear the same meaning in both the places unless there is something in the context to the contrary. The

reference to ''charges'' in Sub-rule (e)(1)(i) of Rule 3, after Sub -rule (b)(i), which speaks about the reduction of the grounds on which It is

proposed to take action to the form of definite charge or charges, is significant. Hence, the expression ''charges'' occurring in Sub-rule (e)(1)(i) of

Rule 3 must be given the same connotation given to ''charges'' in Sub-rule (b) (i) of Rule 3. There is nothing repugnant in the context to impel the

Court to give a different meaning to the expression ''charges'' occurring in Rule 3 in different places.

The reasons expressed above oblige me to interfere in writ powers to quash the impugned order of suspension. The said reasons relate to the

first contention advanced by the learned Counsel for the petitioner. I must also place on record the other contentions advanced by the learned

Counsel for the petitioner, coveting quashing of the impugned order of suspension....

Therefore, following the views expressed in N. Deenadayalan''s case, a learned single Judge in Dr. B. Karanchandra Mohan Prasath''s case, at

paragraph 15, held as follows:-

The said judgment makes it very clear that unless otherwise the petitioner was issued with a charge memo and an enquiry into the same is pending,

a Government Servant cannot be placed under suspension.

In yet another decision relied on by the learned counsel for the petitioner in R. Jeyadoss Gabriel vs. Secretary to Government, Co-operation

Food and Consumer Protection (CD II) Department, Secretariat, Chennai-9, reported in 2012(4) MLJ 458, the petitioner therein was placed

under suspension and consequently, he was not allowed to retire. While challenging the order of suspension, the learned counsel for the petitioner

therein, has contended that no charge sheet has been filed, no enquiry has been ordered or conducted till the date of suspension, and that therefore

the impugned order of suspension therein, is liable to be set aside. Reliance has been placed on a judgment in Dr. B. Karanchandra Mohan Prasath

vs. State of Tamil Nadu, reported in 2011 (4) CTC 608. While answering the said ground in favour of the petitioner therein, following Dr. B.

Karanchandra Mohan Prasath''s case, another learned single Judge of this Court, at paragraph 10 of the judgment in R. Jeyadoss Gabriel''s case,

has held as follows:-

The learned counsel appearing for the petitioner has rightly placed reliance on the decision of a learned single Judge of this Court in Dr. B.

Karanchandra Mohan Prasath, Profession and H.O.D. of Surgical Oncology, Madurai Medical College and Government Rajaji Hospital, Madurai

v. The State of Tamil Nadu rep. by the Secretary to Government and 2 Others (supra). The learned single Judge, in the said decision has dealt

with a similar matter and held that:

The question that has arisen for consideration is whether a Government employee could be placed under suspension on an enquiry on grave

allegations are pending against him, invoking Rule 17(b) of the Rules. In order to appreciate the said contention, it would be useful to extract Rule

17(e) of the Rules, which is extracted hereunder:

17(e)(1) A member of a service may be placed under suspension from service, where -

(1) an enquiry into grave charges against him is contemplated, or is pending, or

(2) a complaint against him of any criminal offence is under investigation or trial and if such suspension is necessary in the public interest.

The said Rule contemplates that a member of service may be placed under suspension from service, if an enquiry into grave charges against him is

contemplated or is pending. It does not envisage keeping a member of service under suspension, where an enquiry into grave allegations against

him are pending. The impugned order of suspension has been passed on the ground that an enquiry into grave allegations are pending against him.

The same is not contemplated under Rule 17(e) of the Rules.

Further the learned single Judge has further held as follows:

That apart, whether initiation of disciplinary proceedings means that charge memo should be pending against the particular officer was a question

came up for consideration before this Court. In the Judgment in D.R.P. Sundharam Vs. Canara Bank , I have considered the said point and I have

held that the initiation of disciplinary proceedings means that the charge memo should be pending, before the petitioner attains the age of

superannuation. In the case on hand, it is not the case of the respondents that the charge memo has been issued to the petitioner and the petitioner

has been called upon to answer to the charges. It is not even stated in the impugned order of suspension that the charge memo has been issued to

the petitioner and the same is pending against the petitioner. In Union of India Vs. K.V. Jankiraman, etc. etc., ], the Hon''ble Apex Court has taken

the view that the pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover

procedure. Paragraph No. 6 of the order made thereunder is usefully extracted here under:

On the first question, viz., as to when for the purposes of the sealed cover procedure the Disciplinary/Criminal proceedings can be said to have

commenced, the Full Bench of the Tribunal has held that it is only when a charge memo in a deceased or a charge-sheet in a criminal prosecution is

issued to the employee that it can be said that the Departmental proceedings/Criminal prosecution is initiated against the employee. The sealed

cover procedure is to be resorted to only after the charge memo/Charge sheet is issued. The pendency of preliminary investigation prior to that

stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The

contention advanced by the learned counsel for the appellant-Authorities that when there are serious allegations and it takes some time to collect

necessary evidence to prepare and issue the charge memo/Charge sheet, it would not be in the interest of purity of administration to reward the

employee with a promotion, increment, etc., does not impress us. The acceptance of this contention would result in injustice to the employees in

many cases. As has been experienced so far, the preliminary investigations take an inordinately long time and particularly, when they are initiated at

the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge memo/Charge

sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant

evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the

relevant Rules and the suspension by itself permits a resort to the sealed cover procedure. The authorities, thus, are not without a remedy. It was

then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those

conclusions are as follows:

(1) Consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of

pendency of a disciplinary or criminal proceedings against an official.

(2)....

(3)....

(4) The sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the

criminal Court and not before.

There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has

intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion, etc., cannot be

withheld merely because some Disciplinary/Criminal proceedings are pending against the employee. To deny the said benefit, they must be at the

relevant time pending at the stage when charge memo/Charge sheet has already been issued to the employee. Thus read, there is no inconsistency

in the two conclusions.

We, therefore, repel the challenge of the appellant - Authorities to the said finding of the Full Bench of the Tribunal.

In the given case on hand, the petitioner was served with a letter dated 30.4.2010 of the Inspector of Police, Vigilance and Anti- Corruption

alleging possession of properties/pecuniary resources disproportionate to his known sources of income. The petitioner has offered his explanation

as early as on 6.5.2010. So far, no criminal proceedings have been initiated against the petitioner even though more than one year has lapsed.

The said judgment makes it very clear that unless otherwise the petitioner was issued with a charge memo and an enquiry into the same is pending,

a Government servant cannot be placed under suspension. In the case on hand, as stated already, it is not even the case of the respondents that the

petitioner was issued with a charge memo and the same is pending against the petitioner.

Perusal of the judgments in Dr. B. Karanchandra Mohan Prasath vs. State of Tamil Nadu, reported in 2011 (4) CTC 608 and R. Jeyadoss

Gabriel Vs. Secretary to Government, Co-operation, Food and Consumer Protection (CD II) Department, Secretariat, Chennai-9 and Another,

shows that the learned Judge who decided Dr. B. Karanchandra Mohan Prasath''s case, has followed the judgment in N. Deenadayalan Vs. The

Deputy Inspector General of Police, Chengalpattu Range, The said judgment has been rendered on 25.02.1988. Subsequently, the very same

issue, as to whether a Government Servant can be placed under suspension pending contemplation of enquiry into grave charges, came up for

consideration before the Hon''ble Division Bench of this Court in D. Uthirakumaran Vs. Government of Tamil Nadu and Another, . The main

contention of the appellant therein was that under rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, suspension can be

invoked only when specific charges have already been framed or not under contemplation.

The word ""contemplation"" in rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, has been explained by the Hon''ble

Division Bench in D. Uthirakumaran''s case, as follows:-

The word contemplated qualifies the word enquiry. In other words, when complaints are received against a Government servant and if the

authority thinks that such a complaint deserves an enquiry and, therefore, the authority contemplates the framing of charges and holding of an

enquiry a Government Servant can be suspended. The Courts have repeatedly found fault with the Government for delay in framing charges. But

rarely it has been held in the past that a Government servant cannot be placed under suspension unless the charges are framed. If such an

interpretation is to be adopted one part of R. 17(e) will become nugatory. It is submitted that whenever it is in the mind of the appropriate authority

that in due course a formal departmental enquiry shall be held or there exists a contingency for such an enquiry it will satisfy the requirement of

contemplation.

The word ''contemplates'' qualifies the word enquiry. In other words, when complaints are received against a Government Servant and if the

authority thinks that such a complaint deserves an enquiry, then the authority, who contemplates framing of charges and holds an enquiry, can place

the government servant under suspension.

For better appreciation of the proposition of law, the argument of the learned Senior Counsel for the petitioner therein, extracted at paragraph

9(i) and (ii) of the judgment in D. Uthirakumaran''s case is reproduced hereunder:-

(i) No doubt Rule 17(e)(1) enable suspension pending enquiry into grave charges and there is no enquiry pending into grave charges against the

petitioner. The only other contingency will be ''pending enquiry into grave charges is contemplated''. Unless, there are formulated charge or charges

the power of suspension cannot be invoked. In support of this submission, the learned counsel relies on the decision in P.R. Nayak Vs. Union of

India (UOI), ). Though, that related to a different rule altogether, the ratio of that decision would squarely apply to this case. If it is so construed,

then, no suspension is possible.

(ii) As a matter of fact, there are two decisions which clearly support the case of the petitioner. They are: (i) The judgment in W.P. No. 9773 of

1987 which categorically lays down, while interpreting the said rule, that unless on the date of suspension there has been a formulation of charges,

there could be no order of suspension; and (ii) The Judgment in W.P. No. 7855 of 1987 wherein more or less the same view was taken. When

Rule 17(b)(i) of the Rules contemplates ''definite charge'', it emphasises the form. Unless, therefore, the allegations are made out, it would amount

to arbitrariness.

The reply of the learned Advocate General in opposition to the submissions stated supra, dealt with at paragraph 10 of the judgment in D.

Uthirakumaran''s case is reproduced hereunder:-

The learned Advocate General in opposition to this would urge referring to Rule 17(e)(i) as follows:-

(i) The words used in this rule are wider in concept than the All India Service Rules. In All India Service Rules, the language used is

''contemplated/pending''. Meaning of charge, according to Webster''s Dictionary, is ''To put blame on the accused.'' To enquiry would mean ''To

seek the truth by investigation or examination''. Enquiry, therefore, is a detailed or a systematic investigation into grave accusations. When such an

enquiry is pending or contemplated, certainly there could be an order of interim suspension. The question, therefore, would be: When does the

accusation start? In Y. Venkateswarlu Vs. State of Madras, this question is answered by referring to Law Lexicon. That supports the respondents

in great detail.

(ii) Alternatively it is submitted that on the issuance of charge memo there commences an enquiry. As regards the first limb, namely, ''suspension

pending enquiry into grave charges is contemplated'', it denotes a stage anterior to the issuance of the charge memo. It is not necessary that there

must be a definite charge or charges. In the nature of things, it is impossible. As a matter of fact, this Court took the same view in W.P. No. 12837

of 1986 with reference to Rule 6.18 of Sidgo Rules. This was appealed in W.A. No. 22 of 1987, reported in 1988 Writ LR 41(Mds) wherein this

aspect of the matter was confirmed. Another case which could be usefully referred to is Jyothi Bhelliappa Vs. P.M. Belliappa . Therefore, the

word ''charge'' in Rule 17(e)(i) means ''accusation''. If so construed, it would cover both the stages - anterior and posterior to the framing of the

charges. That such an interpretation alone should be put so as to make the rule workable. In B.B. Mondal v. State of W. Bengal, ( 1973-II-LLJ-

57) it has been laid down that ''charge'' means ''definitions is accusation''. This interpretation would be in accord with the reason because, when R.

17(e)(ii) is looked at, it uses the word ''complaint''. The word ''complaint'' there includes both investigation and trial. Certainly, it cannot be

contended that there could be a trial on a mere complaint in the absence of a charge memo. It is this kind of interpretation that is commended as

could be seen from G.P. Singh''s Principles of Statutory Interpretation'', 3rd Edition, pages 12 and 24. Therefore, merely because R. 17(b) uses

the word ''charge'', it cannot connote the same thing throughout the Rule. It will depend upon the context in which such a word appears. In R.

17(B) it means reduced to the form of definite charge''. In R. 17(e)(i), it would mean ''accusation'' also. That under different sections or clauses the

same word would mean differently is evident from the decision in Anand Nivas (P) Ltd., v. Anandji. Again in Chief Justice, A.P. v. L.V.A

Dikshitulu, Headnote (B) indicates that such an interpretation is permissible. In W.P. No. 2976 of 1978, reported in Dr. Balaguru Vs. The

Government of Tamil Nadu and Another, a learned single Judge of this Court took the view that in order to pass an order of interim suspension

pending contemplation of enquiry into the grave charges, there is no necessity to frame charges.

The Hon''ble Division Bench in D. Uthirakumaran''s case, (cited supra), after extracting rule 17(e) of the Tamil Nadu Civil Services

(Classification, Control and Appeal) Rules, at paragraph 16, held as follows:-

(16) Here also it talks of ''charge'' or ''charges''. Whether the word ''charges'' should be ascribed the same meaning is what requires to be

ascertained. Before we proceed to discuss that aspect, let us refer to the Judgment of N. Deenadayalan Vs. The Deputy Inspector General of

Police, Chengalpattu Range, on which Mr. D. Raju, learned counsel for the petitioner, relies and wherein the learned Judge held as follows:-

The language of Rule 3(e)(1)(i) is plain and unambiguous. It is possible to countenance suspension of a member of the service without formulating

grave charge or charges under Rule 3(e)(1)(i) of the Rules. If the answer is to be given in the affirmative, that would be doing violence to the plain

and unambiguous language if Rule 3(e)(1)(i). If the intention of the rule making authority was to confer a power of suspension even before the

initiation of disciplinary action and formulation of charges, a separate rule would have got enacted or R. 3(e)(1)(i) itself would have been aptly

worded to state that even in the contingencies of serious allegations or accusations or imputations against a member of the service, suspension

could be resorted to. But that has not been done.

The enquiry contemplated must be into grave charges. That is what the plain language of Rule 3(e)(1)(i) conveys. Under R 3(b)(i) of the Rules,

charges could only mean the reduction to a definite form the grounds on which it is proposed to take action. Same meaning should be annexed to

the expression charges occurring in Rule 3(e)(1)(i) of the Rules. It is not possible to read something into the Rule, which is not explicit therein.

After considering the judgment in N. Deenadayalan Vs. The Deputy Inspector General of Police, Chengalpattu Range, and the arguments

advanced by the learned Senior Counsel for the parties, the Hon''ble Division Bench, at paragraph 20 held as follows:-

In our considered view, R. 17(e)(1) of the Rules is more comprehensive in its scope, and the words therein are designedly used to express a

different legislative intention as under R. 40(1)(a) and (b) of the Railway Protection Force Rules, 1959 to which the attention of the Supreme Court

was drawn in the decision in P.R. Nayak Vs. Union of India (UOI), . Thus we conclude that R. 17(b) of the Rules prescribes the grounds on

which it is proposed to take action. Those grounds shall be reduced to the from of definite charge or charges. Thereafter, the member of the

Service is required to submit a written statement of defence to the charge or charges. The framing of charge under R. 17(b) is essential to enable

the member of the Service to meet the case against him. On the contrary, Rule 17(e)(1)(i) is different. That provides for suspension under the

contingencies contemplated in the Rule. Having regard to the scope of these rules, we are of the opinion that the word ''charges'' occurring in R.

17(e)(1)(i) should be given a wider meaning so as to cover the accusations or imputations made against the member of the Service. If so

construed, there is no need for formulation of charges as laid down by Nainar Sundaram, J. Having regard to the object and the intendment of

these sub-rules, with respect, we are unable to share the view of the learned Judge. Accordingly, we overrule the said decision.

From the above, it is manifestly evident that the Hon''ble Division Bench in D. Uthirakumaran Vs. Government of Tamil Nadu and Another, ,

has overruled the decision in N. Deenadayalan Vs. The Deputy Inspector General of Police, Chengalpattu Range, .

It is unfortunate that an overruled decision of this Court in the year 1988 has been relied on by the petitioner in Dr. B. Karanchandra Mohan

Prasath vs. State of Tamil Nadu, reported in 2011 (4) CTC 608, which resulted in quashing of an order of suspension, pending contemplation of

an enquiry into grave charges. While quashing the order of suspension therein, the learned Judge has also relied on a decision in D.R.P. Sundharam

Vs. Canara Bank , decided by another learned Judge on the same issue. Dr. B. Karanchandra Mohan Prasath''s case has been followed in R.

Jeyadoss Gabriel Vs. Secretary to Government, Co-operation, Food and Consumer Protection (CD II) Department, Secretariat, Chennai-9 and

Another,

Perusal of the judgments relied on by the learned counsel for the petitioner makes it abundantly clear that the Hon''ble Division Bench judgment

in D. Uthirakumaran''s case overruling N. Deenadayalan''s case has not been placed before the learned judges, who decided the cases, namely,

Dr. B. Karanchandra Mohan Prasath vs. State of Tamil Nadu, reported in 2011 (4) CTC 608 and R. Jeyadoss Gabriel Vs. Secretary to

Government, Co-operation, Food and Consumer Protection (CD II) Department, Secretariat, Chennai-9 and Another, respectively. When the

judgment of the learned Single Judge in Deenadayalan''s case has been overruled by a Hon''ble Division Bench, the former has no binding

precedential value.

In The State of Orissa Vs. Sudhansu Sekhar Misra and Others, the Hon''ble Supreme Court explained as to when a decision can be taken as

a precedent, which as follows:-

A decision is only an authority for what it actually decides. What is of the essence of a decision is its ratio and not every observation found therein

nor what logically follows from the various observations made in it. On this topic, this is what Earl of Halsbury LC said in Quinn v. Leathem,

reported in 901 AC 495.

Now before discussing the case of Allen vs. Flood, reported in 1898 AC 1 and what was decided therein, there are two observations of a general

character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the

particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be

expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is

that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically

from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not

always logical at all.

It is not profitable task to extract a sentence here and there from a judgment and to build upon it.

In Union of India (UOI) and Others Vs. Dhanwanti Devi and Others, the Supreme Court has explained, what constitutes a precedent, which

as follows:-

Before adverting to and considering whether solatium and interest would be payable under the Act, at the outset, we will dispose of the objection

raised by Shri Vaidyanathan that Union of India (UOI) Vs. Hari Krishan Khosla (Dead) by Lrs., is not a binding precedent nor does it operate as

ratio decidendi to be followed as a precedent and is per se per incuriam. It is not everything said by a Judge while giving judgment that constitutes

a precedent. The only thing in a Judge''s decision binding a party is the principle upon which the case is decided and for this reason it is important

to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic

postulates- (i) findings of material facts, direct and inferential. A inferential finding of facts is the inference which the Judge draws from the direct, or

perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the

combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not

every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as

applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended

to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It

would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision

is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided

is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi ascertained on

a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it

was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial

decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what

reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts

and circumstances of the case which constitutes its ratio decidendi.

Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in

which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or

a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges arc to employ an

intelligent technique in the use of precedents. It would, therefore, be necessary to see whether Hari Krishnan Khosla case, reported in 1993 Supp

(2) SCC 149, would form a binding precedent. Therein, admittedly the question that had arisen and was decided by the Bench of three Judges

was whether solatium and interest are payable to an owner whose land was acquired under the provisions of the Central Act? On consideration of

the facts, the relevant provisions in the Central Act and the previous precedents bearing on the topic, the Court had held that solatium and interest

are not a part of compensation. It is a facet of the principle in the statute. The Central Act omitted to provide for payment of solatium and interest

since preceding the acquisition the property was under requisition during which period compensation was paid to the owner. The position obtained

and enjoyed by the Government during the period of requisition continued after acquisition. The same principle was applied without further

elaboration on entitlement to payment of interest of an owner. It is true that the decisions relied on by Shri Vaidyanathan on the principle of

payment of interest as part of compensation in respect of land acquired were brought to the attention of this Court for discussion. What would be

its purport would be considered a little later. Suffice it to say for the present that the finding that solatium and interest are not payable for the lands

acquired under the Central Act as part of compensation is a binding precedent. Obviously, therefore, this Court followed the ratio therein in Distt.

Judge case reported in Union of India (UOI) and Another Vs. District Judge, Udhampur and Others, . The contention, therefore, that Hari Krishan

Khosla case, cannot be treated as a binding precedent since therein there is no ratio but a conclusion without discussion, in not tenable and devoid

of force. In that view, it is not necessary to discuss in extenso the effect of the decisions cited by Sri. Vaidyanathan. Equally, the contention of Shri.

Vaidyanathan that the ratio in Hari Krishan Khosla case is in conflict with the ratio in Satinder Singh and Others Vs. Amrao Singh and Others,

which was neither distinguished nor overruled and that the decision of a coordinate Bench, cannot have the effect of overruling decision of another

coordinate Bench, cannot be given countenance. The effect of the ratio in Satinder Singh case will be considered a little later; suffice it to state that

there is no conflict in the ratio of these two cases, if the facts in Satinder Singh case are closely analysed and the principle laid down therein is

understood in its proper perspective. Therefore, Hari Krishan Khosla case, cannot be held to be per incuriam nor has it the effect of overruling the

ratio decidendi of Satinder Singh and Others Vs. Amrao Singh and Others,

In Government of West Bengal Vs. Tarun K. Roy and Others, , as regards binding precedent of a judgment, the Supreme Court at paragraph

26, has observed as follows:-

26.... If rule of law is to be followed, judicial discipline demands that the court follows its earlier binding precedent. The Calcutta High Court itself

has rejected such a plea. The matter is pending in appeal. An order passed to the contrary by another learned Single Judge in ignorance of the

earlier binding precedent by itself would not constitute a binding precedent and may be held to have been rendered per incuriam.

In State of Punjab and Another Vs. Devans Modern Brewaries Ltd. and Another, the Hon''ble Supreme Court explained the doctrine of

precedents and when a judgment becomes per incuriam. Paragraphs 334 to 336, 339 and 343, of the judgment are relevant and they are as

follows:-

Precedent

The doctrine of precedent is a well-accepted principle. A ruling is generally considered to be binding on lower courts and courts having a

smaller bench structure:

A precedent influences future decisions. Every decision is pronounced on a specific set of past facts and from the decision on those facts a rule has

to be extracted and projected into the future. No one can foresee the precise situation that will arise, so the rule has to be capable of applying to a

range of broadly similar situations against a background of changing conditions. It has therefore to be in general terms and ''malleable''. No word

has one proper meaning, nor can anyone seek to fix the meaning of words for others, so the interpretation of the rule remains flexible and open-

ended. (See Dias Jurisprudence, 5th Edn., p. 136.)

However, although a decision has neither been reversed nor overruled, it may cease to be ""law"" owing to changed conditions and changed

law. This is reflected by the principle ""cessante ratione cessat ipsa lex"".

It is not easy to detect when such situations occur, for as long as the traditional theory prevails that judges never make law, but only declare it, two

situations need to be carefully distinguished. One is where a case is rejected as being no longer law on the ground that it is now thought never to

have represented the law; the other is where a case, which is acknowledged to have been the law at the time, has ceased to have that character

owing to altered circumstances. (See Dias Jurisprudence, 5th Edn., pp. 146-47.)

It is the latter situation which is often of relevance. With changes that are bound to occur in an evolving society, the judiciary must also keep

abreast of these changes in order that the law is considered to be good law. This is extremely pertinent especially in the current era of globalisation

when the entire philosophy of society, on the economic front, is undergoing vast changes.

Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree

with the principles of law enunciated by another Bench, the matter may be referred only to a larger Bench. (See Pradip Chandra Parija and Others

Vs. Pramod Chandra Patnaik and Others, followed in Union of India (UOI) and Another Vs. Hansoli Devi and Others, But no decision can be

arrived at contrary to or inconsistent with the law laid down by the coordinate Bench. Kalyani Stores Vs. The State of Orissa and Others, and

Krishna Kumar Narula etc. Vs. The State of Jammu and Kashmir and Others, both have been rendered by the Constitution Benches. The said

decisions, therefore, cannot be thrown out for any purpose whatsoever; more so when both of them if applied collectively lead to a contrary

decision proposed by the majority.

It is also trite that the binding precedents which are authoritative in nature and are meant to be applied should not be ignored on application of

the doctrine of sub silentio or per incuriam without assigning specific reasons therefor. I, for one, do not see as to how Kalyani Stores and K.K.

Narula read together can be said to have been passed sub silentio or rendered per incuriam.

In the light of the law on precedents, this Court deems it fit to consider as to whether the judgments relied on by the petitioner, have any

precedential value or deserve to be declared, as Per Incuriam. On the aspect of Per Incuriam, let me consider, what Per Incuriam means and when

the said principle can be applied.

Per incuriam means of decision of its own or of a Court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule

having the force of law. A ruling making a specific reference to an earlier binding precedent may or may not be correct, but cannot be said to be

per incuriam.

The literal meaning of the expression ""per incuriam"" is ""through want of care"" (Vide: Mozley and Whitely''s Law Dictionary. 7th Edition, page

255). In Black''s Law Dictionary, 5th Edition, page 1025, it has been defined as ""through inadvertence"". In Halsbury''s Laws of England. Fourth

Edition, Volume 26, page 259 - Paragraph.578, it is stated thus:

A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction

which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House of Lords

decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory

force. A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties, or because the court had not the

benefit of the best argument, and as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in

ignorance of some inconsistent statute or binding authority. Even if a decision of the Court of Appeal has misinterpreted a previous decision of the

House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake.

In Ramachandra Naidu Vs. Pattabhi Reddy, reported in 1964 (1) ALT 90, it was held that a decision rendered per incuriam need not be

followed, even by that Judge not to speak of other courts of co-ordinate jurisdiction and to a decision given per incuriam the principle of comity of

judgments will not apply.

In State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, the Supreme Court held as follows:-

''Incuria'' literally means ''carelessness''. In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in

relaxation of the rule of stare decisis. The ''quotable in law'' is avoided and ignored if it is rendered, ''inj ignoratium of a statute or other binding

authority (Young vs. Bristol Aeroplane Co. Ltd., reported in 1944 (1) KB 718 : 1944 (2) All ER 293). Same has been accepted, approved and

adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.

In Gomthy Vs. State, reported in 1996 (2) KLT 91, it has been held that Judgment rendered ignoring the binding authority or basing on wrong

understanding of law or a binding precedent, would be Judgment per incuriam.

In Government of Andhra Pradesh and Another Vs. B. Satyanarayana Rao (Dead) by Lrs. and Others, the Supreme Court held as follows:-

Rule of per incuriam can be applied where a Court omits to consider a binding precedent of the same court or the superior court rendered on the

same issue or where a court omits to consider any statute while deciding that issue. We therefore find that the rule of per incuriam cannot be

invoked in the present case. Moreover a case cannot be referred to a larger Bench on mere asking of a party. A decision by two Judges, unless it

is demonstrated that the said decision by any subsequent change in law or decision ceases to laying down a correct law.

In State of Bihar Vs. Kalika Kuer @ Kalika Singh and Others, , the Supreme Court held as follows:-

At this juncture, we may examine as to in what circumstances a decision can be considered to have been rendered per incuriam. In Halsbury''s

Laws of England (Fourth Edition) Vol. 26: Judgment and Orders Judicial Decisions as Authorities (Pages 297-298, Para 578) we find it observed

about per incuriam as follows:-

A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction

while covered the case before it, in which case it must decide which case to follow (Young vs. Bristol Aeroplane Co. Ltd., reported in 1944 (1)

KB 718 : 1944 (2) All ER 293), or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or

when the decision is given in ignorance of the terms of a statute or rule having statutory force(Young vs. Bristol Aeroplane Co. Ltd., reported in

1944 (1) KB 718 : 1944 (2) All ER 293). A decision should not be treated as given per incuriam, however, simply because of a deficiency of

parties (Morvelle Ltd., vs. Wakeling, reported in 1955(2) QB 379 : 1955 (1) All ER 708 C), or because the court had not the benefit of the best

argument(Bryers vs. Canadian Pacific Streamships, Ltd., reported in 1957 (1) QB 134 : 1956 (3) All ER 560(CA) and as a general rule, the only

cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority (A.

and J. Mucklow Ltd., vs. IRC, reported in 1954 Ch 615 : 1954 (2) All ER 508 (CA). Even if a decision of the Court of Appeal has

misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to

rectify the mistake.""(Williams vs. Glasbrooks Bros. Ltd., reported in 1947 (2) All ER 884 (CA).

In Nicks (India) Tools Vs. Ram Surat and Another, the Supreme Court held that ""In the instant case, we have already noticed the basic

ground on which the Labour Court reduced the back wages was based on a judgment of the High Court of Punjab and Haryana which as further

noticed by us, was overruled by a subsequent judgment of a Division Bench. Therefore, the very foundation of the conclusion of the Labour Court

having been destroyed, the appellant could not derive any support from the above cited judgments of that Court.

In Nirmal Jeet Kaur Vs. The State of Madhya Pradesh and Another, on the principles of per incuriam, at paragraph 21, the Apex Court

observed as follows:-

Incuria'' literally means ''carelessness''. In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in

relaxation of the rule of stare decisis. The ''quotable in law'' is avoided and ignored if it is rendered, ''inj ignoratium of a statute or other binding

authority (Young vs. Bristol Aeroplane Co. Ltd., reported in 1944 (1) KB 718 : 1944 (2) All ER 293). Same has been accepted, approved and

adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.

In Central Board of Dawoodi Bohra Community and Another Vs. State of Maharashtra and Another, at paragraph 7, the Supreme Court

reiterated per incuriam means a decision rendered by ignorance of a previous binding decision such as a decision of its own or of a court of

coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law.

In M.P. Rural Road Development Authority and Another Vs. L.G. Chaudhary Engineers and Cont., after considering a catena of decisions,

reiterated what per incuriam means, the Supreme Court at paragraphs 28 to 33, considered the principles and judgments as follows:-

The principle of per incuriam has been very succinctly formulated by the Court of Appeal in Young v. Bristol Aeroplane Co. Ltd. reported in

1944 KB 718(CA) Lord Greene, Master of Rolls formulated the principles on the basis of which a decision can be said to have been rendered

per incuriam"". The principles are: (KB p. 729)

Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a

question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of

a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory

provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples

of decisions given per incuriam.

The decision in Young v. Bristol Aeroplane Co. Ltd. R reported in 1944 KB 718(CA) was subsequently approved by the House of Lords in

Young v. Bristol Aeroplane Co. Ltd. reported in 1946 AC 16(HL), AC at p. 169 of the Report. Lord Viscount Simon in the House of Lords

expressed His Lordship''s agreement with the views expressed by Lord Greene, the Master of Rolls in the Court of Appeal on the principle of per

incuriam (see the speech of Lord Viscount Simon in Bristol Aeroplane Co. Ltd. case, reported in 1946 AC 16(HL), AC at p. 169 of the Report).

Those principles have been followed by the Constitution Bench of this Court in The Bengal Immunity Company Limited Vs. The State of Bihar

and Others, (see the discussion in SCR at pp. 622 and 623 of the Report).

The same principle has been reiterated by Lord Evershed, Master of Rolls, in Morelle Ld. v. Wakeling, reported in 1955 (4) 2 QB 379(CA),

QB at p. 406. The principle has been stated as follows:

As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or

forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned; so that in such cases some part of the

decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.

In State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, this Court held (SCC p. 162, para 40) that the doctrine of ""per

incuriam"" in practice means ""per ignoratium"" and noted that the English courts have developed this principle in relaxation of the rule of stare decisis

and referred to the decision in Bristol Aeroplane Co. Ltd. reported in 1946 AC 163(HL). The learned Judges also made it clear that the same

principle has been approved and adopted by this Court while interpreting Article 141 of the Constitution (see Synthetics and Chemicals Ltd. case,

SCC para 41).

In Municipal Corporation of Delhi Vs. Gurnam Kaur, a three-Judge Bench of this Court explained this principle of per incuriam very

elaborately in SCC para 11 at p. 110 of the Report and in explaining the principle of per incuriam the learned Judges held:

A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a

statute.

In The Oriental Insurance Company Ltd. Vs. Siby George and Others, the Supreme Court reiterated that a decision rendered in ignorance of

binding precedents, has no precedential value and thus it is per incuriam.

On the conduct of a litigant and the learned counsel, citing overruled cases, reference to following decisions may be relevant:-

(i) In Mamleshwar Prasad and Another Vs. Kanhaiya Lal (Dead) through L. Rs., , The Hon''ble Justice Krishna Iyer, while explaining the conduct

of a litigant and the precedential value of a judgment, at paragraphs 5 to 8 observed as follows:-

A litigant cannot play fast and loose with the Court. His word to the Court is as good as his bond and we must, without more ado, negative the

present shift in stand by an astute discovery of a plea that the earlier judgment was rendered per incuriam.

The wisdom which has fallen from Bowen, L.J. in Ex parte Pratt, reported in 52 QB 334 at 341, though delivered in a different context, has

wider relevance to include the present position. The learned Lord Justice observed:

There is a good old-fashioned rule that no one has a right to conduct himself before a tribunal as if he accepted its jurisdiction, and then afterwards,

when he finds that it has decided against him, to turn round and say, ''You have no jurisdiction''.

Certainty of the law, consistency of rulings and comity of courts all flowering from the same principle converge to the conclusion that a decision

once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence

or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may

not have the sway of binding precedents. It should be a glaring case, an obtrusive omission. No such situation presents itself here and we do not

embark on the principle of judgment per incuriam.

Finally it remains to be noticed that a prior decision of this Court on identical facts and law binds the Court on the same points in a later case.

Here we have a decision admittedly rendered on facts and law, indistinguishably identical, and that ruling must bind.

(ii) In D.P. Chadha Vs. Triyugi Narain Mishra and Others, the Supreme Court, at paragraph 26, held as follows:-

A lawyer must not hesitate in telling the court the correct position of law when it is undisputed and admits of no exception. A view of the law

settled by the ruling of a superior court or a binding precedent even if it does not serve the cause of his client, must be brought to the notice of

court unhesitatingly. This obligation of a counsel flows from the confidence reposed by the court in the counsel appearing for any of the two sides.

A counsel, being an officer of court, shall apprise the Judge with the correct position of law whether for or against either party.

(iii) In State of Orissa Vs. Nalinikanta Muduli, the Supreme Court, tested the correctness of a case which was decided on the basis of a overruled

decision, and expressing anguish over such act, duty of the counsel, failure on the part of the counsel in bringing it to the notice of the court, at

paragraph 6, the Apex Court held as follows:-

It is strange that a decision which has been overruled by this Court nearly a quarter of a century back was cited by the Bar and the Court did

not take note of this position and disposed of the matter placing reliance on the said overruled decision. It does not appear that the decision of this

Court reversing the judgment of the High Court was brought to the notice of the learned Single Judge who was dealing with the matter. It is a very

unfortunate situation that learned counsel for the accused who is supposed to know the decision did not bring this aspect to the notice of the

learned Single Judge. Members of the Bar are officers of the court. They have a bounden duty to assist the court and not mislead it. Citing

judgment of a court which has been overruled by a larger Bench of the same High Court or this Court without disclosing the fact that it has been

overruled is a matter of serious concern. It is one thing that the Court notices the judgment overruling the earlier decision and decides on the

applicability of the later judgment to the facts under consideration on it. It also does not appear that learned counsel appearing for the respondent

before the High Court did not (sic) refer to the judgment of this Court. All this shows that the matter was dealt with very casually. From the

judgment of the High Court it is noticed that the hearing was concluded on 13-3-2003 and the judgment was delivered on 25-4-2003. It was

certainly the duty of the counsel for the respondent before the High Court to bring to the notice of the Court that the decision relied upon by the

petitioner before the High Court has been overruled by this Court. Moreover, it was the duty of the learned counsel appearing for the petitioner

before the High Court not to cite an overruled judgment. It is not that the decision is lost in antiquity. It has been referred to in a large number of

cases since it was rendered. It has been referred to recently in many cases e.g. S.M. Datta Vs. State of Gujarat and Another, M.C. Abraham and

Another, A.K. Dhote and J.F. Salve and Another Vs. State of Maharashtra and Others, Union of India (UOI) Vs. Prakash P. Hinduja and

Another, , and earlier in many oft-cited decisions in State of Haryana and others Vs. Ch. Bhajan Lal and another Shri S.A. Khan, Janata Dal Vs.

H.S. Chowdhary and Others, Union of India v. W.N. Chadha, reported in 1993 Supp (4) SCC 260 and State of Bihar and Another Vs. P.P.

Sharma, IAS and Another, . We can only express our anguish at the falling standards of professional conduct.

The decision in Union of India Vs. K.V. Jankiraman, etc. etc., deals with a case of adopting a sealed cover procedure, in the matter of

consideration of a person, for promotion, wherein, the Supreme Court held that pendency of a preliminary investigation prior to the stage will not

be sufficient to enable the authorities to adopt the sealed cover procedure. There the Supreme Court explained, as to when the sealed procedure

has to be adopted. The Court held that only when a charge memo is issued or criminal prosecution is launched against an employee, such

procedure has to be adopted. With due respect, the said judgment will not have any bearing on the issue, as to when suspension has to be invoked

by the appointing/disciplinary authority. Suspension when to be invoked as a temporary measure, has been explained by the Hon''ble Supreme

Court in the decisions extracted above.

In the light of the principles of law laid down by the Supreme Court, on the aspect of suspension, law of Precedents and per incuriam, this

Court with due respect, is constrained to declare the decisions in Dr. B. Karanchandra Mohan Prasath vs. State of Tamil Nadu, reported in 2011

(4) CTC 608 and R. Jeyadoss Gabriel vs. Secretary to Government, Co-operation Food and Consumer Protection (CD II) Department,

Secretariat, Chennai-9, reported in R. Jeyadoss Gabriel Vs. Secretary to Government, Co-operation, Food and Consumer Protection (CD II)

Department, Secretariat, Chennai-9 and Another, as per incuriam and the same have no binding effect. Following the decisions of the Apex Court

and D. Uthirakumaran''s case decided by the Hon''ble Division Bench of this Court, reported in D. Uthirakumaran Vs. Government of Tamil Nadu

and Another, , this Court is not inclined to sustain the second ground of challenge that only after formulation of specific charges, suspension can be

invoked.

The first ground of challenge is based of malice in fact. To sustain the above ground, the petitioner has contended that last year, the 2nd

respondent had indulged in misappropriation. He had also demanded bribe from every consumer, who applied for new electricity service

connection and for installation of posts. The petitioner has also alleged that the 2nd respondent has compelled the petitioner to receive bribe and

therefore he was constrained to lodge a complaint with the Inspector of Police, Vigilance and Anti Corruption Wing, Tamil Nadu Generation and

Distribution Corporation Limited.

Though the petitioner has made serious allegations, there is no proof of acknowledgment of the complaint by the Vigilance Wing of Tamil Nadu

Generation and Distribution Corporation Limited. The complaint is stated to have been made on 20.03.2013. If any such serious complaint has

been made and acknowledged, the Vigilance Department would have taken necessary action. The impugned order has been passed on

22.06.2013, for an incident, which stated to have occurred on 08.06.2013, when the petitioner attempted to assault Mr. B. Murugan, Commercial

Inspector and for other incidents, which occurred on 21.06.2013, when the petitioner is alleged to have uttered unparliamentary words against the

2nd respondent. Both the abovesaid acts of misconduct have been prima facie found to have attracted Standing Order No. 20(2)(i). Malice in fact

alleged is not substantiated. The competency of the 2nd respondent in placing the petitioner under suspension has not been disputed. Hence, this

Court is not inclined to countenance the first ground of challenge.

In the light of the above discussion and decisions, cited supra, this Court is of the view that the petitioner has not made out a case for

interference with the impugned order, both on law and on facts. In the result, the writ petition is dismissed. Consequently, M.P. (MD) No. 1 of

2013 is closed. No costs.