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Judgment
The petitioner, an employee of the first respondent-Wakf Board who has been placed under suspension by proceedings dated 23.6.1999 prays
for the issue of a writ of mandamus directing the first respondent herein to issue posting orders placing the petitioner in the position which the
petitioner had been holding prior to 23.6.1999 with all attendant benefits privileges which the petitioner would have entitled, but for the suspension
including arrears of salary, increment etc.,
This court ordered notice of motion on 10.2.2000. The respondents have been served and they have also entered appearance. Heard
Mr.S.M.Hameed Mohideen, learned counsel appearing for the petitioner and Mr.M.Muniruddin Sheriff, learned counsel appearing for the
respondents.
With the consent of counsel for either side the writ petition itself was taken up for final disposal. Though a counter has not been filed, the counsel
for the respondents submitted detailed arguments on the basis of the files and on instructions from the first respondent. Further there is no factual
controversy. Hence the writ petition could be disposed on the very legal contention put forward by the writ petitioner. It is not necessary to await
for filing of counter.
The Petitioner is an Inspector of Wakf in the service of the first respondent-Wakf Board in the cadre of Superintendent of Wakfs. He was a
Superintendent of Wakfs at Madurai between 25.6.1995 and 29.4.1998. On and after 29.4.1998 the petitioner was transferred and had joined at
Coimbatore and has been holding the post of Superintendent of Wakfs.
With respect to certain alleged misconducts referable to the period 1995 to 1997 during which period, the petitioner was holding the post of
Superintendent of Wakfs at Madurai, disciplinary proceedings have been initiated and the petitioner was placed under suspension by proceedings
dated 23.6.1999. The petitioner has been placed under suspension by the proceedings of the Chief Executive of the first respondent Wakf Board
by his proceedings dated 23.6.1999. The order of suspension has been passed in exercise of powers conferred by regulations 16(a) of the Tamil
Nadu Wakf Board Service Regulations. The petitioner has been placed under suspension with immediate effect until further orders and his place of
headquarters has been fixed at Coimbatore. The order of suspension was passed on 23.6.1999.
Following the order of suspension on 2.7.1999, five charges were framed against the petitioner and the second respondent has been appointed
as the Enquiry Officer. The petitioner had also submitted his explanation to the three charges on 3.11.1999. The second respondent-Enquiry
Officer who was appointed on 29.11.1999 is yet to commence his proceedings. On 24.1.2000 the petitioner requested the first respondent to
restore him back to duty while pointing out Regulation 16 which provides that no employee of the Wakf Board shall be kept under suspension
beyond a period of six months. The petitioner claims that he is entitled to be restored back to duty as there can be no suspension beyond the
period of six months and that he has not in any manner delayed the proceedings.
After making such a demand, the present writ petition has been filed. The fact that the petitioner has been placed under suspension, charges
have been framed, the explanation has been submitted and enquiry officer has been appointed is not in dispute. The disciplinary proceedings are
pending against the petitioner. It is also not in dispute that the petitioner, an employee of the first respondent-Wakf Board could be placed under
suspension in terms of Regulation 16 of the Tamil Nadu Wakf Board Employees Service Regulation 1997.
Mr.S.M.Hameed Mohideen, learned counsel appearing for the writ petitioner while referring to Regulation 16 of the Tamil Nadu Wakf Board
Employees Service Regulations, framed in exercise of powers conferred u/s 110(2)(c) read with Section 24 of the Wakf Act, 1995, contended
that an order of suspension made or deemed to have been made under Regulation 16, will not enable the respondent to keep the petitioner under
indefinite suspension as the regulation mandatorily provides that an employee could be kept under suspension for six months only and he cannot be
kept under suspension for more than six months. The relevant portion of the Regulation reads thus:-
The appointing authority may place an employee under suspension when an enquiry into grave charges against him is contemplated or is
pending or when a complaint against him of any criminal offence is under investigation or trial.
Any employee who is detained in custody on a criminal charge or otherwise, for a period longer than 48 hours shall be deemed to have been
suspended by the appointing authority under this regulation. An order of suspension may be revoked at any time by the authority making the order
or by any authority to which it is subordinate provided that no employee may be kept under suspension for more than six months. The appointing
authority must complete the enquiry within this period of six months.
(b) During suspension any employee shall be entitled to subsistence allowance at one half of the average monthly pay earned by him during the 12
months immediately preceding the month in which he was suspended.
The counsel for the petitioner also relied upon an unreported order of this court where the very same regulation was the subject matter of
consideration in W.P.No:4336 and 4337 of 1999 S.Nazir Khan and another v. The Secretary -cum- Chief Executive Officer, Tamil Nadu Wakf
Board, dated 22.7.1999. This court also after detailed consideration held that the very same regulation 16 is mandatory and that the first
respondent has no authority to keep its employee under suspension beyond a period of six months.
There cannot be any controversy with respect to the interpretation that could be placed on the regulation 16 which would enable the first
respondent to place its employee under suspension for a period of six months and not beyond it.
The petitioner had been placed under suspension on 23.6.1999. The petitioner had not challenged the suspension proceedings. The petitioner
also had not challenged the disciplinary proceedings initiated against him, nor there is any reason at all for the respondent to delay the disciplinary
proceedings. Nor it could be stated that the conduct on the part of the petitioner had resulted in the delay of the disciplinary proceedings. Even
assuming so, such a delay cannot be a ground to keep the petitioner under suspension beyond six months, nor there is an enabling provision in
regulation 16, which confers power on the first respondent to extend the period of suspension.
It is well settled that when a statutory rule provides the exercise of power in a particular manner and subject to such restrictions as the rule
imposes, there could be no deviation. Such a power including the power of suspension has to be exercised only in conformity with the said rule and
not otherwise. The regulation provides for the petitioner being suspended besides it provides for deemed suspension in case of arrest and
detention. The regulation takes in all the contingency relating to disciplinary proceedings as well as suspension and it is not as if there is some gap
or omission, nor any omission in the provisions been pointed out.
The order of suspension has been passed in exercise of Regulation 16, which is a statutory regulation. As such the suspension could be only for
a period of six months and the view taken by this court in the earlier writ petition, it is represented by the counsel for respondent, has been upheld
by the Division Bench also. In the circumstances, it is clear that the petitioner cannot be kept under suspension beyond a period of six months. In
other words, on the expiry of six months, the petitioner is deemed to have been restored back to service with all concomitant benefits and rights
attached to the post.
The petitioner had asked for a mandamus directing the respondents to issue posting orders on the expiry of six months period reckoned from
23.6.1999, the date of suspension and for consequential direction to pay arrears of salary, increments and other benefits and privileges. The relief
prayed for has to be ordered in favour of the petitioner and the counsel for the respondent is unable to pointed out any ground or reason to
disallow the petitioner''s claim or the relief of mandamus prayed for by the petitioner in the light of the Division Bench Judgment of this court as well
as the mandatory rule which disables the first respondent from keeping the petitioner under suspension beyond a period of six months.
In the circumstances the writ of mandamus is allowed and the first respondent is directed to forthwith reinstate the petitioner and issue
reposting to the petitioner which he was holding on 23.6.1999 in the cadre of Superintendent of Wakfs within four weeks from today and also
sanction all arrears of pay on and after 23.12.1999 and disburse the same within eight weeks from the date of communication of the order.
The parties shall bear their respective costs. Consequently, connected W.M.Ps are closed.