A. Boopalan vs The Assistant Director, Khadi and Village Industries and Tamil Nadu Khadi and Village Industries Board

E. Padmanabhan, J.—The writ Petitioner, an employee of the Tamil Nadu Kadhi & Village Industries Board, prays for the issue of a writ of certiorarified mandamus to call for the records relating to the proceedings of the first Respondent in R.C. No. 3105/95/E dated 6.5.91, quash the same and consequently direct the Respondents to reinstate the Petitioner as Assistant (Secondary Grade) in Kadhi Craft, Tindivanam forthwith with arrears of salary.

The Petitioner claims that he is working as secondary grade Assistant in Khadi Crafts, Tindivanam. While he was working in the said station between 1.4.87 and S.S.91, it was alleged that there was a cash deficit to the tune of Rs. 62,396.50. A crime was registered before the local police for alleged criminal misappropriation in Crime No. 285/91 and the investigation is pending. The Petitioner states that no charge sheet had been laid by the police. By proceedings impugned, the Petitioner was placed under suspension on the ground that enquiry into grave charges against him is pending investigation and it is necessary in public interest to place him under suspension from the Board service.

The Petitioner states that nothing has been heard and there has been no improvement in the investigation by the police authorities. It is further stated that no charge sheet had been filed before the criminal Court nor charges have been framed for a departmental action till 15.3.93. On 15.3.93, a charge memo was issued to the Petitioner and he was called upon to explain. The Petitioner took the stand that he will submit his explanation only after the criminal investigation is over and the criminal trial is over. The departmental proceedings was also not being proceeded and it was left at that stage of service of charge memo.

The Petitioner states that for four years and above he is being kept under suspension and the departmental proceedings have not been finalised so far and the criminal investigation is also not yet over. The Petitioner has been kept under indefinite suspension for more than 4-1/2 years without finalising the departmental proceedings and also without finalising the criminal investigation. The Petitioner stated that he is not guilty of any of the charges and he is being paid only 50% of the salary towards subsistence allowances.

The Petitioner further claims that he is entitled for full salary after a period of one year of suspension. The Petitioner states that he has made number of representations to revoke the suspension, besides claimed full salary, besides causing a Lawyer's notice on 21.1.92. As no action has been taken and as the Petitioner is kept under indefinite suspension, he has come before this Court contending that the order of suspension is highly arbitrary. Unreasonable and violative of Article 14 of the Constitution. The Petitioner contends that he should have been reinstated by revoking the order of suspension within a reasonable time. If the Respondents have not finalised the departmental proceedings. Hence, the present writ petition.

On behalf of the Chief Executive Officer of Tamil Nadu Kadhi & Village Industries Board, a counter affidavit has been filed. In the counter affidavit it

Tamil Nadu and Village Industries Board Proceedings of the Assistant Director ( Khadi and Village Industries) Villupuram

Present. Thiru E. Rajabather. B.A.

Rc. No. 3105/9l/E

Dated 6.5.91

Sub: Establishment-Tamil Nadu Khadi & Village Industries Board- Thiru A. Boopalan, II Grade Assistant, Khadi Kraft, Tindivanam Committed certain serious irregularities- suspension from service orders issued.

Ref: I. Asst. Chief Auditor, Trichy Report Rc. No. A1/91 dated 2. Regional Deputy Director (K &VI), Trichy, Rc. No. 6715/El/91 dt. 10.4.91.

ORDER:

Whereas an enquiry into grave charges against Thiru.A. Boopalan, II Grade Assistant, Khadi Kraft, Tindivanam is pending investigation and whereas in the circumstances of the case it is necessary in the public interest to place the said A. Boopalan. II Grade Assistant under suspension from Board's service.

Now therefore under Regulation 31(a)(ii) of Tamil Nadu Khadi and Village Industries Board's service Regulations, the said A. Boopalan, II Grade Assistant is placed under suspension with immediate effect from board's service until further orders.

The head quarters of the said Sri. Boopalan, II Grade Assistant during the period of suspension shall be at Tindivanam and the said A. Boopalan, II Grade Assistant shall not leave the head quarters without obtaining the prior permission of the undersigned.

Assistant Director Khadi & Village Industries Villupuram.

It is seen from the above order that in public interest the Petitioner had been placed under suspension pending investigation into grave charges. It is admitted that a crime has been registered and it was the subject matter of investigation for several long years. Now only it is stated that a charge sheet has been laid by the police before the concerned Judicial Magistrate.

There is no doubt that the order of suspension has been passed by the competent authority. Equally there is no allegation of mala fides or other vitiating factor, which would invalidate the order from its inception. However, the learned Counsel for the Petitioner contends that indefinite suspension is illegal, arbitrary and violative of Article 14 and the same has to be quashed.

As seen from the counter affidavit, it is alleged that the Petitioner and others are guilty of misappropriation of substantial sum running to several lakhs of rupees and criminal investigation has been just completed and charge sheet has been laid before the Judicial Magistrate. The departmental action is kept pending since the Petitioner had not been extending cooperation to proceed by taking a stand that he will not submit his explanation or extend his cooperation till the criminal Court decides the case against him. The power of judicial review of this Court under Article 226 has to be examined before deciding the merits of the contentions advanced in this case.

The power of suspension by the employer it has been held, is not an implied term, under an ordinary contract between the master and servant and such a power could only be the creature either by statute governing the contract or of an express term in the contract itself. The legal position has been settled by the Apex Court in Hotel Imperial v. Hotel Imperial Workers Union reported in AlR 1959 SC 1342.

In O.P. Gupta Vs. Union of India (UOI) and Others, , the Apex Court examined the order of suspension passed in respect of a Government servant kept under suspension indefinitely for a period of eleven years and in that context held thus:

... There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression subsistence allowance has an undeniable penal significance. The dictionary meaning of the word Subsist as given in Shorter Oxford English Dictionary, Vol.11 at p.1271 is to remain alive as on food: to continue to exist""."" Subsistance"" means - means of supporting life, especially a minimum livelihood. Although suspension is not one of the punishments specified in Rule 11 of the Rules, an order of suspension is not to be lightly passed against the government servant. In the case of Board of trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni the Court held that the expression life does not merely connote animal existence or a continued drudgery through life.

The expression life has a much wider meaning. Suspension in a case like the present where there was no question of inflicting any departmental punishment prima facie tantamounts to imposition of penalty which is manifestly repugnant to the principles of natural justice and fair play in action.

The conditions of service are within the executive power of the State or its legislative power under the proviso to Article 309 of the Constitution, but even so such rules have to be reasonable and fair and not grossly unjust. It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time. If such a principle were not to be recognised, it would imply that the executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration.

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The public interest in maintaining the efficiency of the services requires that civil servants should not be unfairly dealt with. The Government must view with concern that a departmental inquiry against the civil servant should have been kept alive for so long as 20 years or more that that he should have been placed under suspension without any lawful justification for as many as 11 years, without any progress being made in the departmental inquiry. It should also view with concern that a decision should have been taken by the competent authority to enforce the bar under FB 25/against the civil servant long after his retirement with a view to cause his financial loss. Such a course not only demoralises the services but virtually ruins the career of the delinquent officer as a Government servant apart from subjecting him to untold hardship and humiliation. We hope and trust that the Government in future would ensure that departmental proceedings are concluded with reasonable diligence and not allowed to be protracted unnecessarily. The Government should also view with concern that there should be an attempt on the part of the competent authority to enforce the bar against a civil servant under FB 25 long after his retirement without affording him an opportunity of a hearing. It comes of ill grace from the Government to have defeated the just claim of the Appellant on technical pleas.

The Apex Court in Allahabad Bank and Another Vs. Deepak Kumar Bhola, declined to interfere with an order of suspension merely because ten years have elapsed since the charge sheet was filed. In that context it has been held thus:

We are unable to agree with the contention of the learned Counsel for the Respondent that there has been no application of mind or the objective consideration of the facts by the Appellant before it passed the orders of suspension. As already observed, the very fact that the investigation was conducted by the CBI which resulted in filing of a charge-sheet, alleging various offences having been committed by the Respondent, was sufficient for the Appellant to conclude that pending prosecution the Respondent should be suspended. It would be indeed inconceivable that a bank should allow an employee to continue to remain on duty when he is facing serious charges of corruption and misappropriation of money. Allowing such an employee to remain in the seat would result in giving him further opportunity to indulge in the acts for which he was being prosecuted. Under the circumstances, it was the bounden duty of the Appellant to have taken recourse to the provisions of Clause 19.3 of the First Bipartite Settlement, 1966. The mere fact that nearly 10 years have elapsed since the charge-sheet was filed, can also be no ground for allowing the Respondent to come back to duty on a sensitive post in the Bank, unless he is exonerated of the charge.

In the present case, charge-sheet has been filed and it is pending for 11 years and it is a large scale misappropriation of funds involving moral turpitude.

In Secretary to Government and another Vs. K. Munniappan, , the Apex Court held that actual pendency is not a pre-condition of suspension of officer pending further investigation of the offences as one of the grounds. Unless and until an in-depth investigation is done, there would be little scope to identify the persons involved in the crime and to take follow-up action as per law. This is a case where the Supreme Court examined the position in respect of a Government employee who has already reached the age of superannuation and the Supreme Court, while allowing the appeal preferred by the State quashed the orders of the Tamil Nadu Administrative Tribunal.

In U.P. Rajya Krishi Utpandan Mandi Parishad and Ors. v. Sanjiv Rajan reported in 1993 (3) (Supp.) SCC 483, while holding that a second suspension order could be passed, the Apex Court allowed the appeal preferred by the employer and set aside the order of the High Court quashing the suspension while holding thus:

... In matters of this kind, it is advisable that the concerned employees are kept out of mischief's range. If they are exonerated, they would be entitled to all their benefits from the date of the order of suspension. Whether the employees should or should not continue in their office during the period of inquiry is a matter to be assessed by the authority concerned and ordinarily, the Court should not interfere with the orders of suspension unless they are passed mala fide and without there being even a prima facie evidence on record connecting the employees with the misconduct in question. In the present case, before the preliminary report was received, the Director was impressed by the first Respondent-employee's representation. However, after the report, it was noticed that the employee could not be innocent. Since this is the conclusion arrived at by the management on the basis of the material in their possession, no conclusions to the contrary could be drawn by the Court at the interlocutory stage and without going through the entire evidence on record. In the circumstances, there was no justification for the High Court to revoke the order of suspension.

Thus it is seen that interference with order of suspension depends upon the facts of each case as well as the other grounds of judicial review as are available, while issuing a writ of certiorari.

In Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, the Apex Court, while examining the scope of judicial review with respect to the orders of suspension, held thus:

To place an employee under suspension is an unqualified right of the employer. This right is conceded to the employer in service jurisprudence everywhere. It has even received statutory recognition under service rules framed by various authorities, including the Government of India and the state Governments. (See: for example, Rule 10 of the Central Civil Services (Classification, Control & Appeal) (Rules). Even under the General Clauses Act, 1897, this right is conceded to the employer by Section 16 which, inter alia, provides that power to appoint includes power to suspend or dismiss.

Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by a "" suspension syndrome"" and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse which has often resulted in suspension. Suspension notwithstanding, non-payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nickname of subsistence allowance"", so that the employee may sustain himself. this Court, in O.P. Gupta v. Union of India made the following observations with regard to subsistence allowance:

An order of suspension of a government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of suspension as explained by this Court in Khem Chanel v. Union of India is that he continues to be a member of the government service but is not permitted to work and further during the period of suspension he is paid only some allowance- generally called subsistence allowance- which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental enquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression subsistence allowance has an undeniable penal significance. The dictionary meaning of the word subsist as given in Shorted Oxford English Dictionary. Vol. II at p.2171 is to remain alive as on food: to continue to

exist. Subsistence means - means of supporting life, especially a minimum livelihood.

The Apex Court in a still later decision in K. Sukhendar Reddy Vs. State of Andhra Pradesh and Another, while quashing the order of suspension held thus:.

Another vital factor which has come on record is that in the criminal case a number of senior IAS officers, even senior to the Appellant, may be found involved, but nothing positive or definite can be said as yet as the investigation is likely to take time. The matter is pending with the police since 1.12.1996 when the FIR was lodged at Anakapalli Town Police Station. The investigation has not been completed although about two- and-a-half years have passed. We do not know how long it will take to complete the investigation. That being so, the officer of the rank of the Appellant, against whom it has now come out that the disciplinary proceedings are not contemplated, cannot be kept under suspension for an indefinite period, particularly in a situation where many more senior officers may ultimately be found involved, but the Appellant alone has been placed under suspension. The Government cannot be permitted to resort to selective suspension. It cannot be permitted to place an officer under suspension just to exhibit and feign that action against the officers, irrespective of their high status in the service hierarchy, would be taken.

On a consideration of the above pronouncements as well as various other pronouncements of this Court and the Apex Court, the power of judicial review with respect to orders of suspension is already well settled by the above said decisions.

On the facts of the case, though the learned Senior Counsel had rightly placed reliance upon the Division Bench judgment of this Court, there is every justification to quash the order of suspension, as an indefinite suspension for more than a decade is definitely arbitrary and it violates Article

The Respondents claim that they have merely filed the charge sheet, but they have been postponing the matter without proceeding further. Even if the writ Petitioner is not cooperating, they could have proceeded with the matter as provided in the rules. Though Mr. Bhaskaran represents that investigation is completed, till date, the charges have not been filed into Court nor it has been filed before the judicial Magistrate. This being the position, there is no justification at all to keep the Petitioner under indefinite suspension for 11 long years assuming that there are sufficient materials to place him under suspension and also assuming that his continuance in office may defeat the investigation or results in records being tampered.

In this case, for more than 10 years the Petitioner had been kept under suspension and the investigating officer has already collected the materials including the registers and other documents and, therefore, there is no chance of the Petitioner tampering with the materials. Further, the Petitioner could very well be posted to some other Branch without his being entrusted with any financial transaction or he may be posted in some non-sensitive post. The delay is fatal and for the delay the Respondents have to either blame themselves or the investigating officer, who had taken more than ten years. It is also to be noticed that the Petitioner had not been extending cooperation in respect of the departmental charges framed, but on that score, the Petitioner cannot be kept under indefinite suspension. In the fitness of things, the Respondents should have proceeded with the charges even if the Petitioner is not cooperating, by proceeding ex-parte as is provided in the rules. Even that had not been done. This would show that the Respondents are not sure of the ground. Less said is better for the Respondents as well.

A Division Bench of this Court in 1994 TNLJ III had also after analysing the case law, held that there is no justification to keep the employee under indefinite suspension without any progress in the criminal case and held that such a proceeding is arbitrary and quashed the same. Following the same this writ petition is also allowed. The impugned proceedings are quashed.

Further it is made clear that it is open to the Respondents to post the Petitioner to any non-sensitive post in any place, which the Respondents deems fit. The Respondents are directed to reinstate the Petitioner within four weeks from the date of communication of this order, failing compliance, the Petitioner will be entitled to avail salary from the date of this order and till date of reinstatement. Still, if the Respondents deem it fit to keep the Petitioner under suspension, it will be open to them to do so by paying full salary and keep him out of office.

In the result, the writ petition is allowed in the above terms and the impugned proceedings are quashed. Parties shall bear their respective

costs. Consequently, connected W.M.P. is closed.