K. Baby vs The Revenue Divisional Officer

K. Chandru

The petitioner, who was working as a Village Administrative Officer of Gudalur Village, Thanjavur Taluk, has filed the present writ petition seeking to challenge an order, dated 26.8.2005. By the aforesaid order, the petitioner was placed under suspension in view of the fact that a criminal offence was under investigation and public interest requires that she should be placed under suspension. The order was made by the Revenue Divisional Officer, Thanjavur, the respondent herein. In the order it was also stated that the petitioner was arrested on 25.8.2005 in a trap case laid by the Vigilance and Anti Corruption unit, Thanjavur for having demanded and accepted bribe of Rs.1000/-from one Sivanesan, a resident of Gudalur village for recommending transfer of patta. A criminal case was also registered in Crime No.9 of 2005 under various provisions of the Prevention of Corruption Act. The petitioner had also obtained bail. The petitioner challenged the order of suspension before this court in W.P.(MD)No.9643 of 2005. However, this court without going into the merits of the suspension, directed that if any representation is made by the petitioner, the same can be considered by the department. In the meanwhile, the Special Court-cum-Chief Judicial Magistrate Thanjavur at Kumbakonam by an order, dated 16.11.2006 had framed charges and ordered the matter for trial. At that juncture, the petitioner once again moved this court with W.P.(MD)No.6244 of 2006 seeking for revocation of suspension. This was on the ground that though suspension was made in the year 2005, there was no review by the department. However, this court on merits dismissed the writ petition vide its judgment, dated 5.10.2007, stating that as long as there is prima facie case for suspension, there is no question of revoking the suspension and the petitioner''s writ petition was thoroughly misconceived. The petitioner did not prefer any appeal against the said order and has also not filed any review before this court. However, on finding that similarly placed persons were receiving favourable interim order, the petitioner once again preferred W.P.(MD)No.12065 of 2009.

The learned counsel for the petitioner contended that earlier judgment though became final, did not deal with the case of prolonged suspension. Therefore, by referring to the division bench judgment of this court in State Vs. K.A. Joseph reported in AIR 1970 Madras 155, interim stay was granted pending notice of motion. Aggrieved by the interim order, the respondent has filed a vacate stay application in M.P.(MD)No.1 of 2010 together with supporting counter affidavit, dated 6.8.2010. In the counter affidavit, it was stated that a criminal case against the petitioner is pending in S.C.No.2 of 2006 before the court of Special Judge-cum-Chief Judicial Magistrate, Thanjavur at Kumbakonam. Further, subsequent to the filing of the earlier two writ petitions, there is no change of circumstances. It was claimed that the accused must be kept under suspension in public interest. The petitioner is facing serious charges which is pending trial in the court. The petitioner for the first six months of her suspension was paid 50% of subsistence allowance and thereafter, it was enhanced to 75% in view of the pendency of the criminal trial.

The attempt of the petitioner to keep on filing writ petition after writ petition challenging the very same suspension is nothing but a raid on the court. If the petitioner was aggrieved by the order passed by this court in W.P.(MD)No.6244 of 2006, dated 5.10.2007, she should have filed an appeal against the said order and cannot file one more writ petition urging some new grounds which were neither raised nor urged before this court. Order 2 Rule 2 of the CPC requires such grounds to be raised in a suit and if not raised, it is deemed to have been given up. The substance of such rule is that there cannot be an attack against an order on piecemeal basis by filing several petitions. Though CPC do not directly apply to the proceedings under Article 226 of the Constitution of India, yet it has been held that the underlying principle in Order 2 Rule 2 will also squarely apply to the proceedings under Article 226. Therefore, the petitioner''s attempt to file an another writ petition is clearly an abuse of the process of the court.

It is seen from records that an interim stay has been granted relying upon the judgment of this court in The State of Madras Vs. K.A. Joseph reported in AIR 1970 Madras 155. In the said case, 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. Thirdly 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 very short judgment, it is clearly seen that the court was only concerned about the delay in framing of charges by the department. It did not deal with any case involving criminal prosecution that too on corruption charges. Secondly, the court gave an opportunity to the respondent to frame charges and not to be merely contended keeping a person under suspension. When that was not forthcoming and the order of the court was violated, the court revoked the suspension order, but also took care in granting liberty to the Government to post that person in some other place.

If materials are found and the competent authority had applied his mind, the order of suspension cannot be interfered with. Further the relevant rules themselves provide for a review by the competent authority. Hence there will not be any further scope for judicial interference by this court.

Further, this court had gone extensively into the scope of judicial review over such suspension orders in its elaborate judgment in R. Ravichandran Vs. The Additional Commissioner of Police, Traffic, Chennai and another in W.P.No.12590 of 2009, dated 05.10.2010. That case also related to suspension on similar allegations. Hence it is useful to reproduce the following passages found in paragraphs 80 to 83 which are as follows:

No Government servant, particularly a person charged with a misconduct of corruption, has right to insist that he should be retained in service and allowed to discharge his duties and enjoy the privileges of the post held by him, during the pendency of the enquiry into grave charges or trial, involving moral turpitude and it is the absolute discretion of the appointing/disciplinary authority or the Government to suspend such government servant from discharging the duties attached to the post and to forbid him from exercising the privileges, except to the extent of payment of salary, regulated in the Statute or rules, applicable to the case of such Government servant.

For the purpose of suspension, it is sufficient that the competent authority has arrived at a prima facie conclusion that the Government servant has committed a serious misconduct, which entails major penalties, like dismissal, removal or compulsory retirement, etc., from service. Illustrative cases, where action has to be taken immediately, are persons, involving in serious acts of misdemeanor, such as, (a) offence or conduct involving moral turpitude, (b) corruption, embezzlement or misappropriation of Government money, (c) possession of disproportionate assets, (d) misuse of official powers for personal gain, (e) serious negligence or dereliction of duty, (f) desertion of duty and (g) refusal or deliberate failure to carry out written orders of superior officers; (h) apprehension of tampering with witnesses or documents or likelihood of causing prejudice to an inquiry, investigation or trial; (j) likelihood of subversion of discipline in office; (k) involvement of scandals, and (l) likelihood of ultimate conviction out of departmental proceedings, and in all these illustrative cases, it is the matter of necessity and public interest, involved and therefore, it which must be left to the absolute discretion of the competent authority, with whom, the power is vested to suspend and that such discretion exercised in public interest should not be interfered with lightly.

When the criminality of the government servant is adjudicated before the Court of competent jurisdiction and when the Police, Vigilance and Anti-Corruption Department has launched prosecution or proposed to launch for imposing appropriate punishment under the penal laws, the appointing/disciplinary authority/government, should be allowed to exercise their discretion to place the government servant under suspension, which is a step in aid, to complete the investigation/trial. Courts have consistently held that even if the materials are not adequate for prosecution or even after acquittal, when the appointing/disciplinary authority/government is empowered to place the government servant under suspension, the power can be exercised on proper consideration of relevant materials, in public interest.

Once the objective consideration of the allegations, the material on record, warrants suspension, till the completion of enquiry or trial, in public interest, it is not for this Court to examine the nature of the allegations, the evidence and to record any finding thereon, which would hamper the progress of the departmental enquiry or investigation or trial against the government servant.

In the light of the above, the writ petition will stand dismissed with costs of Rs.5000/-(Rupees five thousand only). In this case, the costs is imposed only because the petitioner''s filing writ petition after writ petition is clearly abuse the process of law. Consequently, connected miscellaneous petitions stand closed.