Boominathan & Anr vs The Gandhigram Institute of Rural Health & Family Welfare & Ors

The above writ petitions are filed for issuing a Writ of Certiorarified Mandamus to quash the order passed by the second respondent dated

31.03.2017 and to direct the respondents to regularize the services of the petitioner with all monetary benefits.

The case of the petitioner as per the affidavits filed by the petitioner in support of the writ petitions are as follows:

2.1.The petitioner in W.P.(MD) No.6071 of 2017 was appointed as a Steward on contract basis on 17.05.2007 in the first

respondent institute and his services were made permanent with effect from 10.08.2008 as Steward cum Clerk and his services were

regularised subsequent to his completion of probation period. Similarly, the petitioner in W.P.(MD) No.6072 of 2017 was appointed

as a Health Educational Officer and he was promoted as a Teaching Assistant in Diploma in Health Education Department. On

29.08.2008 he was promoted as a Health Educational Instructor. The petitioners have stated that they have been discharging their

duties for all these years, without any adverse remarks.

2.2.The third respondent was appointed as a Director incharge of the first respondent on 10.07.2015 by the first respondent. The

petitioners states that they are the members of Staff Welfare Association of Gandhigram Institute of Rural Health and Family Welfare

Trust and further states that the appointment of third respondent as Director in-charge of the respondent institute was challenged by

way of filing Writ Petition in W.P.(MD) No.14822 of 2016. It is further stated that during the pendency of the said writ petition, the

first respondent has amended the rules so as to appoint the third respondent as a Director of the institute. Hence, it is stated that the

second Writ Petition was also filed by the Staff Association challenging the appointment of third respondent as a Director of the

institute in W.P.(MD) No.12758 of 2016. It is stated that the second respondent in order to wreck vengeance against the petitioners,

who are the President and member of the Staff Association, has started harassing the petitioners and ill-treating them during the

course of their work. The second respondent issued a charge memo against the petitioner in W.P.(MD) No. 6072 of 2017 alleging

that there was a quarrel between the petitioner and one Sankarapandian and it is stated that the second respondent without furnishing

the important documents passed final order on 04.01.2016 by imposing penalty of stoppage of increment for two years without

cumulative effect. Similarly, it is stated that as against the petitioner in W.P.(MD) No.6071 of 2017, the second respondent has

issued orders of transfer transferring the petitioner from one place to another for four times within a period of six months. It is further

stated that the second respondent issued a charge memo to the petitioner in W.P.(MD) No.6071 of 2017, on the ground that some

employees have assembled in his quarters and that despite a legal notice on 11.08.2016 through his counsel, the second respondent

started harassing the members of Staff Association by way of issuing charge memos. It is further stated that the second respondent

has issued a charge memo on 22.08.2016 and the petitioner in W.P.(MD) No.6071 of 2017 challenged the same before this Court

in W.P.(MD) No.16465 of 2016 and continuing in service by virtue an order of stay granted by this Court. Though it is admitted by

the petitioners that the writ petition filed by the Staff Association in W.P.(MD) No.14822 of 2015 and W.P.(MD) No.12758 of

2016, challenging the appointment of third respondent as Director in-charge and Director of the institution respectively were

dismissed by this Court on 21.02.2017, it is stated that W.A.(MD) Nos.307 and 308 of 2017 were filed and are pending.

2.3.It is further stated that on hearing such information about the filing of writ appeals by the Association, the second respondent has

issued the impugned order of suspension on flimsy ground of pendency of criminal case against the petitioners with false accusations.

Stating that the order of suspension is not issued in public interest and mere pendency of a criminal case does not warrant issuance of

suspension order, the petitioners have challenged the order of suspension in the writ petitions.

The main grounds on which the order of suspension is challenged by the petitioners in the respective Writ Petitions are as follows:

a) It is only to wreck vengeance against the petitioners, a criminal complaint was lodged with false allegations and the case was

registered against the petitioners and 16 others in Crime No.301 of 2016. The case was registered only on 02.12.2016. After filing

the writ appeal by the Association the second respondent chose to suspend the petitioners on the ground of involvement and

pendency of the criminal case against the petitioners. Hence, the impugned order of suspension is biased in nature and it suffers from

mala fide.

b) The impugned order of suspension is passed with ulterior motive and only to harass the petitioners as they are active office bearers

/ members of the Staff Welfare Association. The third respondent herself is the de-facto complainant in the criminal case and she who

set the criminal law into motion initiated disciplinary proceedings and passed the order of suspension against the petitioners. The

impugned order is therefore nothing but purely due to personal vendetta and the power is exercised without any bona fide.

c) The allegations found in the complaint lodged by the second respondent are all false and frivolous and they are made with oblique

motive only to harass the petitioners being the President and the active member of the Staff Welfare Association.

d) The order suspending the petitioners on the simple ground of pendency of the criminal case is against the well settled principles of

law as mere involvement of any employee in a criminal case does not warrant issuance of an order of suspension as there is no public

interest involved in the present case where the criminal complaint lodged by the second respondent is purely personal.

e) The criminal complaint was lodged as against 17 employees of the institute without any iota of truth and that the same will prove

the conduct of the third respondent whose intention was to harass the petitioners and others who are the members of the Association.

The learned Senior Counsel appearing for the petitioners mainly submitted that the order of suspension is nothing but male fide exercise of

power and that the order of suspension is not required in public interest. The learned Senior Counsel for the petitioners relied upon a Judgment of a

learned Single Judge of this Court in the case of R.Maheswari Vs. District Elementary Educational Officer, Theni and Another reported in (2008)

5 MLJ 635. The following passage in the judgment is apposite and thus extracted hereunder:

6.As rightly pointed out by the learned counsel for the petitioner, mere involvement in a criminal case by a public servant, cannot be

a ground at all for placing him under suspension. It is for the the authority to analyse various facts and materials available so as to

assess independently as to whether the continuation of public servant on duty without an order of suspension shall be to the detriment

of the interest of public or not. If only, the authority comes to such a conclusion that an order of suspension is necessary in the pubic

interest, then the authority can pass such an order of suspension. A plain reading of the order under challenge in this writ petition

would go to show that there was no such conclusion arrived at by the authority. Even in the counter, it is not the case of the first

respondent that the impugned order came to be passed in the interest of public. It is to be seen that even in cases where the public

interest is involved, in a routine fashion, such an order of suspension should not be passed, because the provision gives a clear

indication that such suspension should be necessary. In this case, nothing of that sort is found at all.

At the time of admitting the writ petitions, this Court has granted an order of interim stay of all further proceedings pursuant to the impugned

order of suspension passed by the second respondent. Despite an order of stay has been granted by this Court in both the writ petitions, the

petitioners were not allowed to be in service by reinstating them. It is stated further that the petitioners have issued contempt notice and even then

the order of this Court was not obeyed. Alleging that the conduct of the third respondent is contumacious, contempt petitions in Cont.P.(MD)

Nos.964 and 965 of 2017 were filed by the petitioners in the writ petitions. After filing of contempt petitions the respondents 1 and 2 herein, filed a

petition to vacate the stay granted by this Court on 06.04.2017.

In the affidavits filed in support of the petition to vacate the interim stay granted by this Court, the first respondent inter alia contended as

follows:

6.1.The writ petitions filed by the Association in W.P.(MD) No.14822 of 2015 and W.P.(MD) No.12758 of 2016 were dismissed

by order dated 21.02.2017 rejecting all the contentions raised by the Association and upholding the appointment of third respondent

as Director of the Institute. Insofar as the petitioner in W.P.(MD) No.6072 of 2017 is concerned, the first respondent submitted that

the petitioner found guilty of misbehavior and disobedience to his higher officers and that an enquiry was conducted. It is further

stated that based on the enquiry report a minor penalty of stoppage of increment for two years without cumulative effect was

imposed. It is also stated that as against the punishment, the petitioners filed an appeal which was also dismissed finding that the order

of disciplinary authority does not call for any interference.

6.2.The first respondent relied upon the final order passed by this Court in W.P.(MD) No.14822 of 2015 and W.P.(MD) No.

12758 of 2016 wherein, this Court painfully observed that the noble organization like the first respondent has been pulled out to

Court by the Staff Association infuriated by the appointment of the third respondent as the Director of the institute.

6.3.The first respondent further pointed out that an attempt was made by the petitioners in these writ petitions in the writ appeals and

the Hon''ble Division Bench of this Court made it clear that the disciplinary action initiated against the office bearers of the Staff

Association is not the subject matter of the writ petition and that it is for the individual concerned to suitably defend themselves in the

departmental proceedings. The first respondent further elaborated the incident that occurred on 30.11.2016 at 10.00 a.m., during the

office hours. It is pointed out that the petitioners and other employees under the leadership of the petitioners sat in front of the

Director''s chamber and gheraoing the Director in-charge from entering into her office at 10.00 a.m. Further, the crowd including the

petitioners insulted and disturbed the Director in-charge by uttering abusive words. Describing the act as not a minor incident but a

serious misconduct, the respondents 1 and 2 contended that the conduct of the employees was intended to grossly undermine the

authority of the Director and renders her position vulnerable. By the conduct of the third respondent, it is stated that the third

respondent was made to look like a laughing stock in front of other employees. Since the incident was calculated to harm the

reputation of the third respondent and consequently that of the institute, the same will affect the moral of the institute and other

members of the institute. It is further stated that only on account of such rude and high handed activities the third respondent / The

Director in-charge of the institute lodged a complaint to the Ambathurai Police Station leading to the registration of the case in Crime

No.301 of 2016. Since charge sheet was laid before the Judicial Magistrate No.III for the criminal offences under Sections 147,

341, 294(b) and 353 I.P.C. and the petitioners are accused Nos.1 and 2 in the charge sheet, the first respondent stated that the

order of suspension was passed under sub Rule (1) of Rule 10 of Gandhigram Institute of Rural Health and Family Welfare Trust

Employees (Discipline and Appeal) Rule, 2003.

With regard to the specific grounds raised in the writ petitions, it is stated in the counter affidavit that the charges against the petitioners attract

Sections 147, 341, 294(b) and 353 I.P.C. The order of suspension issued on the basis of the First Information Report and charge sheet after

investigation by the police is appropriate as it is required in public interest.

It is further submitted by the respondents 1 and 2 that the second respondent is wholly responsible for the smooth functioning of the institute and

it is her duty to initiate disciplinary action as per the service rules of the institute. It is further stated that the order of suspension was issued after

consulting the Chairman of the institute, namely, the first respondent herein. The contention of the petitioners that the order of suspension was

issued with mala fide motive and to harass the petitioners is specifically denied and it is reported that the petitioners were suspended only in public

interest particularly when the institute has undertaken several activities and has to serve the public as a Central Training Institute in the field of

Health, Family Welfare and Rural Health apart from conducting health programs.

It is not in dispute that the power is available to the second respondent to suspend an employee under Sub Rule (1) of Rule 10 of Gandhigram

Institute of Rural Health and Family Welfare Trust Employees (Discipline and Appeal) Rule, 2003 which is extracted as below:

The appointing authority or any authority to which it is subordinate or the disciplinary authority of any other authority empowered

in this behalf by the Board of Trustees by General or special order, may place an employee under suspension.

a) Where a disciplinary proceedings against him is contemplated or is pending.

(or)

b) Where in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the

State.

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

d) Where an employee is alleged to have committed acts of gross negligence, insubordination and disobedience.

Though the power is available to the second respondent to suspend an employee when a case against him in respect of any offence is under

investigation, enquiry or trial, it is not mandatory in all cases to place an employer under suspension, merely because the charge sheet has been filed

pursuant to the complaint lodged by the second respondent.

It is pertinent to mention that the criminal complaint was lodged by the second respondent. Based on the complaint the charge sheet was laid

and by relying upon the relevant rule, the petitioners were suspended for the only reason that a criminal case against the petitioners is under

investigation. Thus, the second respondent is the de-facto complainant and acted as a disciplinary authority while placing the petitioners under

suspension by the impugned orders. It is not out of context to mention the filing of the writ petitions by the Association challenging the appointment

of the third respondent as the Director in-charge or as the Director of the institute. Though the criminal complaint was lodged immediately after the

incident alleged to have taken place on 30.11.2016, the impugned order of suspension was passed after the appeals were filed by the Staff

Welfare Association. There appears to be some connection. The chronology of the events in the present case gives an indication that it is likely that

the second respondent in the present case had some reason for excising her discretionary power in placing the petitioners under suspension on the

ground of pending investigation of criminal offences on the complaint lodged by the second respondent. It is to be noted that the second

respondent has not taken any departmental action as against the petitioners immediately after the incident on 30.11.2016. It is not known as to

why and how the second respondent lodged a criminal complaint and proceeded instead of taking disciplinary action against all the employees. If

the second respondent was not chosen to initiate the departmental action pursuant to the alleged incident dated 30.11.2016, this Court does not

justify the order of suspension against two individuals pursuant to the complaint that was lodged against 17 employees of the institute. The order of

suspension appears to be intentional as something has happened to embarrass the second respondent by filing the writ appeals as against the

orders passed in the writ petitions. In both the cases the petitioners and the second respondent are involved. It is to be noted that the petitioners

have raised their objections with regard to the appointment of the third respondent as the Director of the institute and the second respondent has

initiated actions against the individuals on different grounds. Hence, there is an element of bias in this case which is mainly focused by the learned

Senior Counsel appearing for the petitioners. It is not brought to this Court any disciplinary proceedings against any of the petitioner or other

employees involved in the incident occurred on 30.11.2016. In such circumstances, the decision to suspend the petitioners on account of pendency

of criminal complaint against them at the instance of the second respondent appears to be tainted with male fide both on fact and legal. The incident

on 30.11.2016 appears to be a protest raised by the employees against the third respondent and it is seen that the writ petition in W.P.(MD)

No.14822 of 2015 and W.P.(MD) No. 12758 of 2016 are pending then. The second respondent who is the de-facto complainant has

subsequently passed the impugned order of suspension and has therefore acted, may be due to the circumstances as a Judge in her own case. The

impugned proceedings therefore suffers on account of existence of an element of bias which renders the order vulnerable. It is not demonstrated

before this Court that the order of suspension is purely in the public interest, as the criminal case is on the basis of some protest or agitation inside

the work place of the de-facto complainant and the accused employees. It is also relevant to point out that the criminal case which is pending is

likely to cause embarrassment to the second respondent as well as the petitioners and other workers who are accused in the criminal case. It is not

stated by the second respondent that the charge sheet was taken on file on the date when the order of suspension was passed. In such

circumstances, this Court is not in a position to ascertain that the criminal complaint was taken cognizance by the Court so as to invoke the power

under the rules cited while issuing the impugned order. The second respondent, of course, is the authority who is duty bound to take action as she

is responsible for the smooth administration of the institute. Filing a criminal complaint against 17 of the employees and suspending some of them on

the ground of pendency of criminal case which is related to the same complaint given by the second respondent, is not in the best interest of the

institution. Hence, the explanation in the counter that the impugned order of suspension was in the interest of maintenance of peace and discipline in

the campus of the institute and it is to uphold the dignity and repudiation of the office cannot be accepted. It is nothing but the individual perception

of the second respondent which is not conducive for a smooth administration.

For all the above reasons, this Court is unable to sustain the order of impugned suspension. As a result, the writ petitions are allowed and the

impugned order of suspension is set aside. No costs. Consequently, the connected Writ Miscellaneous Petitions are closed.

This Court has granted interim order of stay for a period of four weeks originally by order dated 06.04.2017. Though the stay was properly

communicated to the respondents, the petitioners were not reinstated. It was, therefore, contempt petitions were filed. After taking notice for the

respondents the learned counsel for the respondents took time stating that he has filed a petition to vacate the interim stay and submitted that the

affidavit filed in support of the petition to vacate the interim order is to be treated as a counter in the main writ petition. It was, therefore, the

contempt petition was directed to be posted along with the petition for vacate stay. In the contempt petitions no counter affidavit has been filed by

the respondents. This attitude of the respondents is also a matter to be noticed and the second respondent in the writ petitions has personal motive

or reasons. Since the petition to vacate the interim order is taken up, the contempt petitions also taken along with the Writ Petitions. The writ

petitions are allowed and the respondents are directed to reinstate the petitioner in both the Writ Petitions forthwith. Though the main Writ Petitions

itself are allowed in favour of the petitioners, this Court taking lenient view does not find any willful disobedience of the order passed by this Court

as this Court has granted only an order of stay and the respondents have promptly filed petition to vacate stay with a fond hope of vacating the

interim order. Hence, the contempt petitions are closed.