N. Chennakesavalu vs The State of Tamil Nadu and Another

M.M. Ismail, C.J.—This is an appeal against the order of Mohan J. dated 29th November 1979 dismissing Writ Petition No. 5700 of

1979. In the writ petition, the Appellant herein had prayed for the issue of a writ of certiorari to quash the order of the Commissioner,

Tiruchengode Municipality dated 4th February, 1976. Since the entire order of the Commissioner has been extracted in the order of the learned

Judge, we shall also extract the same in full:

Proceedings of the Commissioner, Tiruchengode Municipality.

Present: Thiru G. Sivalingam, B.A.(hons.), R.O.C. No. 1439, of I976-C.1., dated 4th February. 1976.

Subject: Establishment-Public Health- Tiruchengode Sanitary Inspector Thiru N. Chennakesavalu -Under Suspension-Orders issued.

Ref.: 1. Letter No. Nil, dated 3rd February, 1976 of the Inspector of Police, Vigilance and Anti-corruption, Salem.

Cr. No. 2/Acp/76 u/s 161 I.P.C. and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947.

Order: The Inspector of Police, Vigilance and Anti-corruption Salem has informed in his letter, dated 3rd February, 1976 that one Thiru N.

Chennakesavalu, Sanitary Inspector of this Municipality was arrested in his house of Tiruchengode on 2nd February, 1976 at about 7:30 p.m. for

having received illegal gratification of Rs. 225 from the Milk Vendor.

Therefore, Thiru N. Chennakesavalu, Sanitary Inspector of this Municipality is deemed to have been placed under suspension with effect from the

date and time of taking him to custody i.e., 7:30 p.m. on 2nd

(Sd.) G. Sivalingam,

Commissioner,

After extracting the above order, the learned Judge has stated as follows:

After the Petitioner''s suspension, the matter has progressed in that on 18th October, 1978 a charge memo had been issued to the Petitioner, for

which he had submitted his explanation on 20th November, 1978. After this, on 8th July, 1979 he made representations to the first Respondent to

reinstate him in service by lifting the suspension. Since that request had not been complied with inspite of repeated reminders, he has come forward

with this petition to quash the order of the second Respondent.

Certainly, it is not open to the writ Petitioner to come to this Court seeking to quash this order of more suspension pending enquiry into the charges

since it is half way through. Nothing prevents the Petitioner from partaking in the enquiry and establishing his innocence. Therefore, since this order

is a mere interim order of suspension, I refuse to admit the same. However, a direction will issue to the second Respondent to complete the

enquiry within six months from this date.

In the writ appeal preferred against this order Mr. A. Ramachandran, learned Counsel for the Appellant contended that the learned Judge had

not dealt with the real point urged on behalf of the Appellant herein. According to the learned Counsel, the point urged by him was that

Government have framed the Tamil Nadu Municipal Public Health Service (Discipline and Appeal) Regulations, 1973 (by G.O. Ms. No. 1892,

Health and Family Planning, dated 1st August, 1973), and under para 8 of that Regulation, the Municipal Health Officer can suspend a member of

the service like the Appellant herein only for a period of three months, and, if it exceeds three months, he must get the sanction of the Additional

Director of Health Services and Family Planning and such sanction has not been obtained in the present case. In view of this contention, we asked

the learned Government Pleader to state the facts as to what happened, The learned Government Pleader drew our attention to the actual terms of

the order sought to be quashed which is, dated 4th February, 1976 and submitted that that order is not an order of suspension at all. It merely

recorded an automatic suspension brought about by another provision of the same Regulations. In view of this, it has become necessary to

consider the scope of para 8 of the Regulations referred to above. Para 8 reads as follows:

(1). A member of the service may be placed under suspension from service where-(i) an enquiry into grave charges against him is contemplated

or is pending; or

(ii) a complaint against him of any criminal offence is under investigation or trial and, if such suspension is necessary in the public interest.

(2) A member of the service, who is detained in custody, whether on a criminal charge or otherwise, for a period longer than forty-eight hours,

shall be deemed to have been suspended under this regulation.

(3) to (6)....

(7) The Municipal Health Officer may suspend any member of the service except those holding the posts under Class 1 and Category I of Class II

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Provided that suspension pending enquiry referred to in Clause (i) of Sub-clause (1) shall not ordinarily be for a period exceeding three months and

in exceptional cases where the enquiry cannot be completed within three months, the period of suspension may be extended for a further period

with the sanction of the Additional Director of Health Services and Family Planning.

(8) The Additional Director of Health Services and Family Planning shall be the authority competent to place under suspension any member of the

service holding the posts in Class I and Category I of Class II.

(9) During the period of his suspension, the member of the Service shall be paid, a subsistence allowance at such rates, as are prescribed under the

Fundamental Rules,

Thus it will be seen that when the suspension is made under Clause (7) of para 8, it can be done only for a period of three months and, if it is

extended, it must be done with the sanction of the Additional Director of Health Services and Family Planning. Clause (8) contemplates the

suspension by the Additional Director of Health Services and Family Planning himself, and, therefore, it does not impose any restriction on him on

the duration of suspension. It is only on Clause (7) Mr. A. Ramachandran relies. However, the learned Government Pleader sought to bring the

case within Clause (2) of para 8 and submitted that the language of the order of the Commissioner, Tiruchengode, dated 4th February, 1976 also

indicated that he purported to make that order only with reference to Clause (2) of para 8. However, before Clause (2) of para 8 can be invoked,

the person concerned, must have been detained in custody, whether on a criminal charge or otherwise for a period longer than forty-eight hours.

The proceedings of the Commissioner, dated 4th February, 1976 themselves show that when the proceedings were issued, the Appellant could

not have been in custody for a period longer than forty-eight hours, because the Appellant was stated to have been arrested at 7:30 p.m. on 2nd

February 1976, and forty-eight hours would expire only at 7:30 p.m. on 4th February 1976 and consequently during the working hours of the

office of the Commissioner, he could not have come to the conclusion that the Appellant was already detained in custody for a period longer than

forty-eight hours. In view of this, we gave an opportunity to the learned Government Pleader to ascertain, whether factually the Appellant was

detained in custody for a period longer than forty-eight hours from 7:30 p.m. on 2nd February, 1976. After instructions, the learned Government

Pleader represent that the Appellant was not detained in custody for a period longer than forty-eight hours. In view of this, Clause (2) of para 8 of

the Regulations is not attracted to the facts of this case and the proceedings of the Commissioner are unwarranted with reference to that clause.

Consequently, we allow the writ appeal and set aside the order of the learned Judge and the proceedings of the Commissioner, dated 4th

February, 1976. There will be no order as to costs in this appeal.