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Judgment
K. Chandru, J.
I. Prologue:
In majority of these writ petitions, the Petitioners who are public servants were accused of taking bribes, caught red-handed in traps and are
facing charges before the Special Judge constituted under the Prevention of Corruption Act, 1988. When they were placed under suspension by
the competent authority, they have come to this Court challenging the orders of suspension. In most of cases, interim stay of suspension have been
granted giving some reasons for the orders. Before proceeding to deal with the merits of their contentions, it is necessary to set the tone for dealing
with the cases of public servants involved in corruption.
The Supreme Court in K.C. Sareen Vs. C.B.I., Chandigarh, in paragraph 12 had observed as follows:
Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions
created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of
the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of
such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social
order if such men are allowed to continue to manage and operate public institutions....
The Supreme Court also in State of Madhya Pradesh and Others Vs. Shri Ram Singh, in paragraphs 8,9 and 11 had observed as follows:
Corruption in a civilised society is a disease like cancer, which if not detected in time, is sure to maliganise (sic) the polity of the country leading
to disastrous consequences. It is termed as a plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is
compared with HIV leading to AIDS, being incurable. It has also been termed as royal thievery. The socio-political system exposed to such a
dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only
anti-people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest,
it is likely to cause turbulence - shaking of the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrating society.
The menace of corruption was found to have enormously increased by the First and Second World War conditions. Corruption, at the initial
stages, was considered confined to the bureaucracy which had the opportunities to deal with a variety of State largesse in the form of contracts,
licences and grants. Even after the war the opportunities for corruption continued as large amounts of government surplus stores were required to
be disposed of by the public servants. As a consequence of the wars the shortage of various goods necessitated the imposition of controls and
extensive schemes of post-war reconstruction involving the disbursement of huge sums of money which lay in the control of the public servants
giving them a wide discretion with the result of luring them to the glittering shine of wealth and property. In order to consolidate and amend the laws
relating to prevention of corruption and matters connected thereto, the Prevention of Corruption Act, 1947 was enacted which was amended from
time to time. In the year 1988 a new Act on the subject being Act 49 of 1988 was enacted with the object of dealing with the circumstances,
contingencies and shortcomings which were noticed in the working and implementation of the 1947 Act. The law relating to prevention of
corruption was essentially made to deal with the public servants, not as understood in common parlance but specifically defined in the Act.
Procedural delays and technicalities of law should not be permitted to defeat the object sought to be achieved by the Act. The overall public
interest and the social object is required to be kept in mind while interpreting various provisions of the Act and deciding cases under it.
It is in this context, the cases filed by the Petitioners will have to be looked into.
II. Facts in brief:
In all these writ petitions, the Petitioners are employees of different departments of Government and public sector units. They are faced with
actions taken by the Directorate of Vigilance and Anti Corruption. The cases registered against them relate to corruption charges and are pending
trial before the Special Courts. In view of those cases, they were placed under suspension in terms of the Tamil Nadu Civil Services (Discipline
and Appeal) Rules or Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules or under the Certified Standing Order of the Tamil
Nadu Electricity Board or under the Tamil Nadu Panchayat Act or under the Tamil Nadu Water Supply and Drainage Board service regulations.
The Petitioners have approached this Court challenging the suspension orders on untenable grounds.
In view of the common issues involved in these writ petitions, they were dealt together and a common order is passed.
The following table will show the name of the Petitioners, the post held by them, details of criminal cases, the earlier writ petitions if any filed by
them and the interim relief if any passed in their favour, which is as follows:
Sl. No .W.P. Nos. Dept. and Details of Earlier WP for Interim relief,
And post criminal case, if directions to if any
Petitioner any review if any
name
1 8451 of TNCSC Ltd.Criminal offence Nil Stay from
2009 Packer under 29.4.2009
investigation
2 9230 of CSR MisappropriationNil Stay from
2009 (Housing) of societies funds 14.5.2009
Cooperation
3 9765 of Manager, Criminal case W.P.22237/08 Direction to
2009 Animal FIR 25/07 u/s review rejected pay 75%
Husbandry 420 r/w 120-B wages
IPC
4 10187 of Sub Crl. Case (PC - Stay
2009 Registrar, Act) Cr. No. 6.7.2009
Registration 5/09 until further
Dept. orders
5 10246 of Panchayat Mis conduct, - Stay
2009 Asst., insubordination 11.6.2009
Achipatti
Panchayat
6 11093 of Jr. Asst., Bribe taking Crl.- Stay
2009 RTO Office, Case pending 26.6.2009,
Transport vacate stay
Dept pending
extended until
further orders
7 11984 of Sanitary D.P. Pending - -
2009 Maistry-Gr.II
Villianur
Commune.
8 12001 of Jr. Assistant Corruption case W.P.11806/06 Review
2009 Health before Special declined
service Judge
9 13725 of Village Asst. Bigamous - Stay w.e.f
2009 marriage and 21.7.2009
cheating of Rs.
46,600/
10 13774 of Jr. Asst. Criminal case - Stay w.e.f.
2009 Rasipuram arrested 21.7.2009
Mun icipality
11 14913 of V.A.O., B.S.Detained in - Stay w.e.f.
2009 Agraharam custody 30.07.2009
village, Erode
12 14914 of EO, Taking bribe of W.P.6473/08 Stay
2009 Thanthoni Rs. 1500/-, crl. 30.7.2009
Municipality Case pending
13 14917 of VAO, Fort- Allowed W.P.10655/08 Stay
2009 Tondiarpet encroachment of 30.7.2009 v.
Govt land. 17(b) petition
charges framed pending
14 14918 of Village Corruption, - Stay w.e.f.
2009 Health vigilance case 30.7.09
Nurse, PHC
15 15093 of Rural Produced bogus- Stay w.e.f.
2009 Welfare SSLC mark 31.7.09
Officer, certificate and
Panchayat charges framed
Dept
16 15185 of Divisional Bribery case, - Stay w.e.f.
2009 Officer, Fire criminal case 3.8.09/
Service 19/05 pending review
rejected
17 15289 of Record Crl. Case u/s. W.P.13201/05-Stay
2009 Clerk Pay &341, 397, 336, I dismissed.
Accounts 427 r/w 506(2) W.P.23301/07-Review
Office IPC II rejected
18 15331 of S.I. Of policeCriminal case u/s- Stay
2009 498A r/w 504(ii) 4.8.2009
IPC
19 15421 of Sub Crl case under W.P.2919/09 Stay
2009 Inspector of PC Act, 1988, 5.8.2009
Police taking bribe of review
Rs. 50000/- rejected
20 15487 of Sr. Drug Crl case under - Stay
2009 Inspector, investigation- 5.8.2009
Health Dept.corruption
charges
21 15488 of Secondary Responsible for W.P.22664/07 Review
2009 Grade the death of rejected stay
Teacher Rajeshkumar, crl 5.8.09
case pending
22 15641 of Sub DV&AC case W.P.23546/07 Stay
2009 Inspector of pending 6.8.2009
Police
23 15671 of Head Taking bribe Rs.W.P.1535 of Stay
2009 Constable, 4000/-, criminal 2005 5.8.2009,
Police Dept case under PC review
Act rejected
24 16643 of Sanitary Crl case u/s 302W.P.21695/05 Stay
2009 Worker, IPC dismissed as dismissed
Panchayat withdrawn
25 19707 of Headmaster,Brought pressure- Stay
2009 Corpn.H.S. on teacher in a 24.9.2009
School pending enquiry
charges u/s
17(b)
26 21734 of Village Asst. Criminal case u/s- Stay
2009 147, 148, 294B, 28.1.2010
323 and 324
IPC
27 22117 of Hospital Misbehaving - No stay
2009 worker with the women
patient, criminal
case pending
28 22604 of Record Crl case u/s 409- Stay
2009 clerk, PW and 424 IPC 5.11.2009,
Dept. pending MP
dismissed
26.10.2010
29 22927 of Accountant, Taking bribe, crl.W.P.26638/08 Review
2009 Treasury Case pending rejected, No
Dept. stay
30 23603 of Revenue Taking bribe W.P.6041/2007Stay
2009 Inspector, DV&AC case 30.11.09,
Revenue pending review
Dept. rejected
31 24944 of Foreman, Arrested by - Stay
2009 TNEB Vigilance police 4.12.2009
32 25161 of Headmaster,Crl case u/s. - Stay
2009 AD Welfare 384, 420 r/w 7.12.2009
Dept. 506(ii) IPC
III. Reasons for grant of interim orders:
After admission of writ petitions and in some cases ordering notice of motion, this Court had granted invariably an interim stay, most of the times
before notice and some times after notice. The reasons which prompted this Court to grant stay as reflected in the various interim orders are as
follows:
(a)Though fictional clause relating to deemed suspension were invoked, the Petitioners were not actually in custody for more than 48 hours and the
basis for suspension was factually wrong.
(b)The allegations made for passing suspension orders are vague.
(c)The order is contrary to the reasoning laid down by this Court in R. Maheswari v. District Elementary Educational Officer, Theni and Anr.
reported in (2008) 5 MLJ 635, wherein this Court held that a mere involvement in criminal case by a public servant cannot be a ground at all for
placing him under suspension.
(d)In the recital to the suspension order, there was no recital regarding contemplation of charges.
(e)No progress has been made in the criminal cases before the Special Court, wherein corruption charges against Government servants are
pending.
(f)A prolonged suspension is unwarranted and it is contrary to the division bench judgment of this Court in The State of Madras Vs. K.A. Joseph
reported in AIR 1970 Mad 155.
(g)The Government instructions were not followed before the suspension.
(h)A suspension made in case not by the appointing authority then no authorization by the competent authority was obtained.
(i)After revocation of the earlier suspension order, once again a second suspension order was passed.
In the light of these findings, it has to be seen whether the orders of suspension passed against Petitioners are liable to be interdicted by this Court.
IV. Law relating to suspension:
The Supreme Court vide its judgment in The Government of India, Ministry of Home Affairs and Others Vs. Tarak Nath Ghosh, held that there
is no difference between definite charges being framed and when the competent authority was in receipt of allegations against the Government
servant. In both cases the suspension order made will have to be treated as same. In this context, it is necessary to refer to the following passages
found in paragraphs 9 and 13 of the said judgment which reads as follows:
There would be nothing improper per se if the rules were to provide for suspension even before definite charges of misconduct had been
communicated to the officer concerned. The question is whether the language of Rule 7 is so correlated to that of Rule 5 as to lead us to hold that
the word ""charges"" in Sub-clause (1) of Rule 7 must mean a definite charge as mentioned in Sub-clause (2) of Rule 5. It may be that even in a case
where definite charges have been raised against an officer he may satisfactorily explain the circumstances and the grounds alleged against him in his
written statement. It is also possible that after the enquiry is conducted it is found that the charges are all baseless. In principle we can see no
difference between the position of an officer against whom definite charges have been framed to which he is required to put in his written statement
and a situation where on receipt of allegations of grave misconduct against him the Government is of opinion that it would not be proper to allow
the officer concerned to function in the ordinary way.
13.... Merely because the order mentioned that disciplinary proceedings were contemplated against the Respondent, as compared to Rule 7 which
contains phrases like ""the initiation of disciplinary proceedings"" and the ""starting of such proceedings"" we cannot hold that the situation in the
present case had not reached a stage which called for an order of suspension. In substance disciplinary proceedings can be said to be started
against an officer when complaints about his integrity or honesty are entertained and followed by a preliminary enquiry into them culminating in the
satisfaction of the Government that a prima facie case has been made out against him, for the framing of charges. When the order of suspension
itself shows that Government was of the view that such a prima facie case for departmental proceedings had been made out the fact that the order
also mentions that such proceedings were contemplated makes no difference. Again the fact that in other rules of service an order of suspension
may be made when ""disciplinary proceedings were contemplated"" should not lead us to take the view that a member of an All India Service should
be dealt with differently. The reputation of an officer is equally valuable no matter whether he belongs to the All India Service or to one of a
humbler cadre. It is the exigency of the conditions of service which requires or calls for an order of suspension and there can be no difference in
regard to this matter as between a member of an All India Service and a member of a State Service or a Railway Service.
(Emphasis added)
The Supreme Court had held that unless malafides are attributed to the Government and established, the Court cannot interdict an order of
suspension, vide its judgment in A.K.K. Nambiar Vs. Union of India (UOI) and Another, . The following passages found in paragraphs 7 and 10
may be usefully reproduced below:
7.... The Appellant contended that the Appellant was not suspended under Sub-rule (3) of Rule 7. That is a contention. The facts are that there
was an investigation and the trial is awaiting relating to a criminal charge against the Appellant. The order of suspension has to be read in the
context of the entire case and combination or circumstances. This order indicates that the Government applied its mind to the allegations, the
enquiries and the circumstances of the case. The Appellant has failed to establish that the Government acted mala fide. There is no allegation
against any particular officer of the Government of India about acting mala fide....
10.... We are not concerned with the correctness and the propriety of the report. We have only to examine whether the order of suspension was
warranted by the rule and also whether it was in honest exercise of powers....
The Supreme Court had also held that once there was prima facie case to hold the suspension order legal, then merely because the charge
sheeted Government servant will sustain some disadvantage cannot be a reason to stall the suspension and that the court cannot intervene and undo
the acts of internal management, vide its judgment in Shyam Lal Yadev and Others Vs. Smt. Kusum Dhawan and Others, . In paragraph 3, the
Supreme Court had observed as follows:
3.... The only question before us is as to whether there is a prima facie case in favour of the Appellant as the competent management and further
whether there is prima facie ground to hold that order of suspension imposed upon the Principal is legal.... For by every suspension the alleged
delinquent will sustain some disadvantage.... It will be strange jurisprudence which will paralyse autonomous bodies if courts can intervene on some
ipse dixit to undo acts of internal management against employees (sic) especially when the power of the employer is made out....
The Supreme Court had held that when the suspension order is passed, it is for the Government to review the said order and it continues to
operate until it is revoked by the competent authority vide its judgment in Government of A.P. Vs. V. Sivaraman, . The following passages found in
paragraph 4 of the said judgment may be usefully extracted below:
4.... Where the rules provide for suspending a civil servant and require thereof to report the matter to the government giving out reasons for not
completing the investigation or enquiry within six months, it would be for the government to review the case but it does not mean that the
suspension beyond six months becomes automatically invalid or non est. The only duty enjoined by such a rule is that the officer who made the
order of suspension must make a report to the government and it would be for the government to review the facts and circumstances of the case to
make a proper order. It is open to the government to make an order revoking the order of suspension or further (sic) continuing the suspension.
The order of suspension however, continues until it is revoked in accordance with the law....
The Supreme Court also while construing a similar rule operating in this State in relation to a Government Servant of Andhra Pradesh had held
that a wrong terminology in the order did not take away the power if it is available otherwise, vide its judgment in Director General and Inspector
General of Police, Andhra Pradesh, Hyderabad and others Vs. K. Ratnagiri, . In paragraph 7, the Supreme Court held as follows:
7.... The Rule 13(1) empowers the authority to keep the Respondent under suspension pending investigation or enquiry into the criminal charges
where such suspension is necessary in the public interest. When the first information report is issued, the investigation commences and indeed it has
commenced when the Respondent was kept under suspension. The order of suspension cannot, therefore, be said to be beyond the scope of Rule
13(1) merely because it has used the word ''prosecution'' instead of investigation into the charges against the Respondent. A wrong wording in the
order does not take away the power if it is otherwise available. The Tribunal seems to have ignored this well accepted principle.
(Emphasis added)
The Supreme Court had also held that in case the court is of the opinion that if there was a prolonged suspension, the remedy was to call for an
explanation from the authorities and if their explanation was not satisfactory, they should be directed to complete the enquiry within a stipulated
time and can increase the rate of subsistence allowance. The Supreme Court also had observed that in such case, employees should be kept out of
mischief''s range. Further if they are exonerated from the criminal charges, they will be entitled to all benefits from the date of suspension order,
vide its judgment in U.P. Rajya Krishi Utpadan Mandi Parishad and Others Vs. Sanjiv Rajan, . In paragraphs 5 and 10, it was held as follows:
5.... There is no restriction on the authority to pass a suspension order second time. The first order might be withdrawn by the authority on the
ground that at that stage, the evidence appearing against the delinquent employee is not sufficient or for some reason, which is not connected with
the merits of the case..... Ordinarily, when there is an accusation of defalcation of the monies, the delinquent employees have to be kept away from
the establishment till the charges are finally disposed of. Whether the charges are baseless, malicious or vindictive and are framed only to keep the
individual concerned out of the employment is a different matter. But even in such a case, no conclusion can be arrived at without examining the
entire record in question and hence it is always advisable to allow disciplinary proceedings to continue unhindered. It is possible that in some cases,
the authorities do not proceed with the matter as expeditiously as they ought to, which results in prolongation of the sufferings of the delinquent
employee. But the remedy in such cases is either to call for an explanation from the authorities in the matter, and if it is found unsatisfactory, to
direct them to complete the inquiry within a stipulated period and to increase the suspension allowance adequately. It is true that in the present
case, the charge-sheet was filed after almost a year of the order of suspension. However, the facts pleaded by the Appellants show that the
defalcations were over a long period from 1986 to 1991 and they involved some lakhs of rupees. It also appears that the authorities have
approached the police and in the police investigation, the amount of defalcation is found to be still more. Since the matter is of taking accounts
which are spread over from 1986 to 1991 and of correlating the entries with the relevant documents, and several individuals are involved, the
framing of charges was bound to take some time.....in the present case, the High Court has not quashed the order of suspension on the ground of
delay in framing the charges. As stated earlier, it has set aside the order of suspension on the ground that the authority had no power to pass the
second order of (sic) suspension in the same case. We are afraid that the High Court has misconstrued the nature and purpose of the power of
suspension vested in the management....
The charges are also grave and the authorities have come to the conclusion that during the disciplinary proceedings, the officers should not continue
in employment to enable them to conduct the proceedings unhindered. Hence, we are satisfied that the order in appeal was not justified.
We find from the charge-sheet that the allegations against the first Respondent are grave inasmuch as they indicate that the amounts mentioned
therein are not deposited in the bank and forged entries have been made in the passbook of the relevant accounts and the amounts are shown as
having been deposited. In the circumstances, the High Court should not have interfered with the order of suspension passed by the authorities. The
Division Bench has given no reason for upholding the learned Single Judge''s order revoking the suspension order. 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.....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.
Taking the similar view in Union of India (UOI) Vs. Rajiv Kumar, , the Supreme Court had held that if suspension is for a long period that by
itself cannot make the suspension invalid. In paragraphs 15 and 29, it was observed as follows:
15.... it is clear that the order of suspension does not lose its efficacy and is not automatically terminated the moment the detention comes to an end
and the person is set at large. It could be modified and revoked by another order as envisaged under Rule 10(5)(c) and until that order is made,
the same continues by the operation of Rule 10(5)(a) and the employee has no right to be reinstated in service. This position was also highlighted in
(sic) Balvantrai Ratilal Patel v. State of Maharashtra. Indication of the expression ""pending further order"" in the order of suspension was the basis
for the aforesaid view.
Another plea raised relates to a suspension for a very long period. It is submitted that the same renders the suspension invalid. The plea is
clearly untenable. The period of suspension should not be unnecessarily prolonged but if plausible reasons exist and the authorities feel that the
suspension needs to be continued, merely because it is for a long period that does not invalidate the suspension.
(Emphasis added)
Once again the Supreme Court in State Bank of India and Another Vs. Rattan Singh, had held that mere fact that 10 years have elapsed
cannot be a ground to set aside the suspension order and make an employee to come back to a sensitive post unless he was exonerated. In
paragraph 6, the Supreme Court had observed as follows:
6.... since at the relevant time, both a departmental enquiry as well as a criminal prosecution were under contemplation. Thereafter in view of the
pendency of the criminal prosecution, the Appellant did not initiate a departmental enquiry. The order of suspension, therefore cannot be faulted
looking to the provisions set out above. When a criminal prosecution on serious charges is pending against the Respondent, the Bank is entitled to
suspend him. In this connection, our attention has been drawn to a decision of this Court in the case of Allahabad Bank v. Deepak Kumar Bhola1
where this Court said that where CBI had conducted an investigation resulting in the filing of a charge-sheet, this was sufficient for the Appellant to
conclude that recourse had to be taken to Clause 19.3 to suspend the Respondent. The mere fact of 10 years having elapsed was no ground to
allow him to come back to a sensitive post unless he was exonerated. In the case of Punjab National Bank v. Jagdish Singh (a decision to which
one of us was a party), it was held that when a bank employee is being prosecuted, the bank has the power to suspend the employee under the
Bipartite Settlement....
(Emphasis added)
Taking exception to courts passing orders of revocation of suspension even after a charge sheet was filed in the criminal case on the plea that
there will not be any further necessity to keep the Government servant under suspension, it was held that there is distinction between a suspension
during criminal investigation and the continued suspension after the charge sheet was filed. This view was expressed by the Supreme Court in
Union of India (UOI) and Others Vs. Udai Narain, . In paragraph 4, the Supreme Court had observed as follows:
A bare look at Rule 10 of CCS (Classification, Control and Appeal) Rules, 1965 would show that the interpretation placed by the Tribunal
does not appear to be correct. An unduly narrow technical view has been taken by the Tribunal to quash the order of suspension. The view of the
Tribunal that the expression ""investigation, inquiry or trial"" would not include the stage of filing of the charge-sheet in the Court and since
investigation was over and the trial had not yet commenced, the Respondent could not be placed under suspension, we are unable to accept. The
delinquent cannot be considered to be any better off after the charge-sheet had been filed against him in the Court after completion of the
investigation, than his position during the investigation of the case itself. It has been brought to our notice that sanction for prosecution has already
been obtained and case has been fixed for framing of charges by the trial court. In this view of the matter we find that the view taken by the
Tribunal in the impugned order is not sustainable and the order of suspension was not liable to be quashed on the ground that the case was neither
at the stage of investigation or enquiry or trial.
(Emphasis added)
The Supreme Court had also held that suspension is not a punishment and it is passed only to forbid or to disable an employee to discharge his
duty and it is a step in aid to the ultimate result of the investigation or enquiry and that the court should not proceed in haste to pass an order
interdicting suspension and normally the appointing authority or the disciplinary authority while passing order takes into consideration the gravity of
misconduct, vide its judgment in State of Orissa Vs. Bimal Kumar Mohanty, . The following passages found in paragraphs 5,13 and 14 may be
usefully reproduced below:
We have given our anxious and serious consideration to the respective contentions. True, normally, this Court would not interdict the exercise of
the power to pass interim orders by the courts or tribunals, obviously, with the expectation that they exercise the discretionary power with
circumspection after weighing pros and cons to subserve the ultimate result of the pending adjudication. The question is whether this is a fit case
where the Tribunal itself should have interdicted the orders of suspension when the appointing authority contemplated disciplinary proceedings or
pending investigation into the crime.
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.... 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.... 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.
14.... 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 interferred with and this Court would be loath to interfere with the exercise of
such discretionary power cannot be given acceptance.
The Supreme court had also held that if investigation is conducted by the CBI, which resulted in filing of charge sheet before the Special Court
for various offences, that is sufficient for concluding that the Government servant should be suspended and the fact that there was delay of 10 years
cannot be a ground for the Government servant to come back to duty unless he was exonerated of charges as held in Allahabad Bank and Another
Vs. Deepak Kumar Bhola, . The following passages found in paragraphs 10 and 11 may be usefully reproduced below:
In our opinion the aforesaid observations correctly spell out the true meaning of the expression ""moral turpitude"". Applying the aforesaid test, if
the allegations made against the Respondent are proved, it will clearly show that he had committed an offence involving moral turpitude and,
therefore, the Appellant had the jurisdiction to suspend him under the aforesaid Clause 19.3. The High Court observed that there was nothing on
record to suggest that the management had formed an opinion objectively on the consideration of all relevant material available against the
Petitioner that in the circumstances of the case the criminal acts attributed to the Petitioner implied depravity and vileness of character and are such
as would involve moral turpitude. It did not regard entering into a criminal conspiracy to commit the aforesaid offences as being an offence
involving moral turpitude. We are, to say the least, surprised at the conclusion which has been arrived at by the Allahabad High Court. There was
material on record before the Appellant, in the form of the report of the CBI/SPE, which clearly indicated the acts of commission and omission,
amounting to ""moral turpitude"" alleged to have been committed by the Respondent. Furthermore the Respondent has been charged with various
offences allegedly committed while he was working in the Bank and punishment for which could extend up to ten years'' imprisonment (in case the
Respondent is convicted u/s 467 IPC).
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 the 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.
(Emphasis added)
The said judgment came to be followed in a subsequent judgment in the case relating to State Bank of India v. Rattan Singh (cited supra).
Even if recital in an order of suspension was not satisfactory, that cannot be a ground for interfering with a suspension order on the ground that
condition precedent for suspension was not fulfilled as was held by the Supreme Court in State of Haryana Vs. Hari Ram Yadav and others, . In
paragraphs 10 and 11, the Supreme Court held as follows:
10.... The law is well settled that in cases where the exercise of statutory power is subject to the fulfilment of a condition then the recital about the
said condition having been fulfilled in the order raises a presumption about the fulfilment of the said condition, and the burden is on the person who
challenges the validity of the order to show that the said condition was not fulfilled. In a case, where the order does not contain a recital about the
condition being fulfilled, the burden to prove that the condition was fulfilled would be on the authority passing the order if the validity of the order is
challenged on the ground that the condition is not fulfilled....
11.... There is no averment in the said petition challenging the validity of the impugned order of suspension on the ground that the Governor of
Haryana was not satisfied that it was either necessary or desirable to place Respondent 1 under suspension. In the absence of any such averment it
must be held that the impugned order was passed after fulfilling the requirement of Rule 3(1) of the Rules in view of the presumption as to the
regularity of official acts which would be applicable and the absence of a recital in the order about the Governor being satisfied that it was either
necessary or desirable to place Respondent 1 under suspension is of no consequence....
V. Why interim orders in matters of suspension ?
In the light of the above authoritative pronouncements of the Supreme Court, there was no scope at all for entertaining writ petitions against
orders of suspension and that too to grant interim orders of stay even without hearing the other side and without the benefit of any counter affidavit.
The judgment in R. Maheswari''s case (2008 (5) MLJ 635) relied on in many of cases for the grant of interim orders cannot be said to be
laying down the correct proposition of law. In that case, recital in suspension order was referred to for setting aside a suspension. It must be noted
that there is no statutory form prescribed for suspension and the Government follows only proforma forms. When a person is facing criminal case
and that too for serious offences that by itself can be a ground for suspension as held by the Supreme Court in A.K.K. Nambiar''s case (cited
supra) and in K. Ratnagiris case (cited supra). Further a mere wrong terminology in the order did not take away the power of suspension as held in
K. Ratnagiri''s case (cited supra).
It will be startling proposition to say that involvement in a criminal case by a public servant cannot be a ground at all for placing him under
suspension. The judgment in R. Maheswari''s case did not refer to any legal precedent and cannot be followed in the light of the authoritative
pronouncements of the Supreme Court referred to above.
Similarly, while granting interim orders in some cases, the court relied upon a judgment of this Court in The State of Madras Vs.K.A. Joseph
reported in AIR 1970 Mad 155 on the ground that prolonged suspension can be stayed by the court. In that case, the Respondent Joseph was
placed under suspension pending contemplation of enquiry. Since suspension lasted for more than 10 months, he moved this Court. This Court
directed that charges should be framed within three months and if that was not done, he can again approach the court for redress. When no
charges were framed by the competent authority, he filed another writ petition. This Court while entertaining that writ petition, by an interim order
revoked the suspension order.
An appeal was filed by the State in W.A. No. 45 of 1969. The appeal was finally disposed of by a division bench of this Court which came to
be reported as The State of Madras Vs. K.A. Joseph, . The short order contained only three paragraphs. In paragraph 1, the court dealt with the
facts of the case, which is as follows:
... It is sufficient for us to observe that a period of nearly ten months had elapsed since the Officer was first placed under suspension, and that, on
an earlier representation, the Court directed that charges should be framed within three months, and that, if that was not done, the Petitioner could
approach the Court, again for redress, and, the outcome is the order from which the writ appeal is sought to be filed.
Repelling the objections raised by the State regarding the power of judicial review over such order, in paragraph 2, it was observed as follows:
2.... On the contrary, in our view there is a very clear and distinct principle of natural justice, that an Officer is entitled to ask, if he is suspended
from his office because of grave averments or grave reports of misconduct, that the matter should be investigated with reasonable diligence, and
that charges should be framed against him within a reasonable period of time....
When the Government Pleader in that case expressed his difficulty about the embarrassment if the Government servant resumed duty in the
same place, the court moulded the relief in the following manner:
3.... The learned Government Pleader submits that there may be great difficulty in permitting the Officer to resume duties in the very post, when the
performance of those duties by him in the past, had led to the imputation of grave irregularities, we are unable to see any real difficulty in the matter.
We clarify the position by stating that it is open to the Government to permit the Officer to resume duty in that identical post, or, any post of equal
grade and emoluments, which may be available for making an order of resumption of duty.
It can be seen from the above case that there was initial disobedience of the order passed by this Court in not framing the charges. Thereafter,
the suspension was revoked. There was objection for restoration of service on the ground that this Court has no jurisdiction to interfere with the
suspension which was rejected. Further when the embarrassment of restoration of a Government servant facing serious charges to the very same
place was made, the court also directed his being posted to some other post in the very same status and salary.
From a reading of the judgment in Joseph''s case, it is clearly seen that the court was concerned about the delay in framing of charges by the
department. It did not deal with a case involving criminal prosecution that too on corruption charges. The court also gave an opportunity to the
Respondent to frame charges and not to contend by keeping a person under suspension. When that was not forthcoming and when the order of
the court was violated, the court revoked the order of suspension. But it took care in granting liberty to the Government to post that person in
some other place.
However in the present cases, by staying the suspension orders, the Petitioners who were facing serious charges of corruption were directed to
be restored in the same post. Further Joseph''s case (cited supra) did not apply to suspension due to the pendency of criminal cases. It depended
upon the action to be initiated by the competent authority to frame charges under the relevant service rules. But even the direction given by the
division bench to post them in some other places was not made as a condition precedent.
Further, the other grounds for granting interim orders on the ground that one was not in custody beyond 48 hours, no proper recital found in
the order, no progress in the criminal case was made, the Government instructions were not followed and there cannot be second order of
suspension, have all been answered by the Supreme Court in the decisions cited above. Therefore, there is no case made out to entertain the writ
petitions and they are deserved to be dismissed.
VI. Interim orders cannot become final orders:
It was finally submitted that the Petitioners having been enjoyed the benefit of interim orders, the court should not vacate the order at this stage.
In this context, it is necessary to refer to the following decisions of this Court and the Bombay High Court, which are as follows.
A Division bench judgment of this Court in C. Kamatchi Ammal v. Kattabomman Transport Corporation Ltd. and Ors. reported in AIR 1987
MAD 173 has held that interlocutory orders made in the course of proceedings will necessarily lapse with the decision of the suit unless the suit is
one for permanent injunction and the interim injunction is made permanent as a part of the decretal order made by the court.
The Bombay High Court vide its decision reported in Ramesh Akre and Ors. v. Smt. Mangalabai Pralhad Akre and Ors. reported in AIR
2002 Bom 487 has held as follows:
Similarly, it is also not necessary that suit should be disposed of only on merits in order to bring an end to interim order. What is contemplated
in law is that such interim order would continue to operate till suit is disposed of one way or the other and would come to an end on the day suit is
disposed of. Whether suit is disposed of for want of prosecution or on merits is not the criteria to decide existence of interim orders. These orders
by their very nature are temporary and remain in force only during the pendency of the suit and come to an end when the suit is disposed of one
way or the other.
Therefore, on that ground the Petitioners'' grievance cannot be accepted.
In the light of the above, there is no case made out to entertain the writ petitions. Hence all the writ petitions will stand dismissed.
Consequently, connected miscellaneous petitions stand closed. However there will be no order as to costs.
VII.EPILOGUE:
Before parting with the case, it is worthwhile to recall the observations made by the Supreme Court regarding undesirability of entertaining the
writ petition on suspension even at the threshold vide its judgment in Secretary to Government, Prohibition and Excise Department Vs. L.
Srinivasan, .
In paragraph No. 3, it was observed as follows:
3.... The Respondent while working as Assistant Section Officer, Home, Prohibition and Excise Department had been placed under suspension.
Departmental inquiry is in process. We are informed that charge-sheet was laid for prosecution for the offences of embezzlement and fabrication of
false records etc. and that the offences and the trial of the case is pending. The Tribunal had set aside the departmental enquiry and quashed the
charge on the ground of delay in initiation of disciplinary proceedings. In the nature of the charges, it would take a long time to detect
embezzlement and fabrication of false records which should be done in secrecy. It is not necessary to go into the merits and record any finding on
the charge levelled against the charged officer since any finding recorded by this Court would gravely prejudice the case of the parties at the
enquiry and also at the trial. Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on
either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the
Administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum
dehors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the
suspension order and charges even at the threshold. We are coming across such orders frequently putting heavy pressure on this Court to examine
each case in detail. It is high time that it is remedied.