AI Structured Summary
Not yet generated for this judgment
Judgment
P. Sathasivam, J.—The only question raised in all these writ petitions is whether the order of suspension passed against the petitioners by the
respondent--State Transport Corporations is sustainable in law.
Factual details
For convenience, I shall refer the case oof the petitioner in W.P.No. 24989 of 2001. According to him, he is employed by second respondent-
Transport Corporation (Salem Division I). There were 22 State owned Transport Corporations. For the past several years, transport workers
were paid customary and festival bonus, on the eve of the Deepavali festival every year, at the rate of 20 per cent of their annual earnings. In
November, 2001, the State Government unilaterally reduced the festival bonus payable to all the transport workers in the State to 8.33 per cent
instead from 20 per cent. As a result, the quantum of festival bonus got reduced to Rs.2,500/- to each of every one of the 1,10,000 transport
workers in the State of Tamil Nadu. The arbitrary, illegal and unilateral action of the State Government in reducing the festival bonus payable to
transport workers on the plea of financial crunch evoked spontaneous protest, agitation and strike by all the 1,10,000 transport workers in the
State. The strike was total and resorted to all the workers without any exception. All the Central Federation of Trade Unions, like LPF., CITU.,
A.I.T.U.C., H.M.Ms., P.T.S., B.M.S., M.L.F., etc., and the members of the Trade Unions affiliated to these federations participated in the strike
without any exception. After 17 days, the strike was called off in public interest in due deference to the observations made by the First Bench of
this Court in a public interest litigation filed in this regard.
In the meanwhile, on 20-11-2001 the petitioner and the employees similarly situated like him attached to the Salem Division were issued
suspension orders on the plea that an enquiry into the charge of participation in the legal strike is pending. After the strike was called off, he
reported for duty on 26-11-2001. However, the respondents refused to permit him to work stating that he has been suspended from service. He
reliably understood that out of 119 employees (Salem Division-I), who were suspended pending enquiry, suspension has been revoked in respect
of 47 employees belonging to different trade unions for collateral and political considerations and permitted to join duty. As a measure of
victimisation and unfair labour practice, the petitioner and other employees who are the members of L.P.F., trade union affiliated to D.M.K. party,
numbering 72 employees had alone been singled out on political considerations and are continued under suspension. Having no other effective
alternative remedy, except to approach this Court under Article 226 of the Constitution of India, filed the above writ petition to quash the order of
suspension and consequently direct the respondents/Transport Corporations to reinstate the petitioner in service with full back-wages, continuity of
service and all other attendant benefits.
The Transport Corporations, who are impleaded as respondents 2 and 3 in these writ petitions, filed separate identical counter affidavit in most
of the writ petitions. Here again, for convenience, I shall refer the common counter affidavit filed by the General Manager, Tamil Nadu State
Transport Corporation (Salem Division-I), Salem in W.P.Nos. 24989 to 24995 of 2001. It is stated that the suspension orders were passed
objectively in the best interest of the 3rd respondent Corporation. The payment of bonus is merely a cash payment made to the worker in addition
to the wages. The payment is governed by the Payment of Bonus Act. It is not correct to state that consistently 20 per cent bonus was paid. In the
yesteryears, annual bonus of 8.33 per cent together with an ex-gratia amount was paid, that too was not consistently made inasmuch as the
payment of annual bonus itself is in like with productivity. The State owned transport undertakings are registered under the Companies Act.
Presently, there are 19 transport corporations having different productivity levels. For the year 2001-2001, the transport workers were paid the
statutory bonus at 8.33 per cent of the annual earnings and the same is in accordance with the Payment of Bonus Act. The amount that has been
paid as ex-gratia has no legal sanction and it was fully within the discretion of the Government. The response for strike was not spontaneous as
picturised by the petitioners. The petitioners were suspended from duty by order dated 20-11-2001. The interim order of suspension was issued
for the misconduct of inducing unwilling co-workers to participate in the strike, causing disruption of the vehicular operation, thereby causing
hardship to the travelling public at large. Depending upon the misconduct committed, charge memos were issued. It is not correct to state that
because of the trade union activities, inimical treatment was meted out to them. The respondent Corporation is least interest in the political party or
trade union affiliations of the workmen. The primary concern and anxiety of the Corporation was to protect its interests and to serve the travelling
public.
In the light of the above pleadings, I have heard M/s. V. Ayyathurai, R. Viduthalai, D. Hariparanthaman and A. Prabhakara Reddy, learned
counsel for the petitioners and Mr. R. Muthukukumarasamy, learned Additional Advocate General for Transport Corporations.
The points raised by the learned counsel for the petitioners are as follows:
(i) The impugned order of suspension is contrary to Standing Orders of the Transport Corporations. In the absence of charge memo, opportunity
to the petitioners to submit their explanations, the order of suspension cannot be sustained;
(ii) The order of suspension is vitiated by mala fide;
(iii) The respondents selected certain persons who are members of the Union opposing the Government''s decision; hence the impugned order is
liable to be set aside on the ground of arbitrariness and discrimination. The respondents selected certain persons-petitioners and suspended them.
Persons belonging to the ruling party, though participated in the strike and suspended along with the petitioners, were subsequently reinstated and
the suspension orders against them were revoked.
On the other hand, learned Additional Advocate General, after placing the relevant Standing Orders, facts and figures, supported the action of
the respondents. He also contended that the Government/Transport Corporations have not discriminated any one and irrespective of party
affiliation, action had been taken against those, who instigated the workmen and caused damages to the buses and caused inconvenience to the
travelling public. He further contended that inasmuch as the respondents have power to order suspension, judicial review by this Court is very
limited; accordingly prayed for dismissal of all the writ petitions.
I have carefully considered the rival submissions.
Non-compliance of Standing Orders
First of all, I shall deal with the relevant Standing Orders of the Tamil Nadu State Transport Corporation. Though several employees of various
Transport Corporations are arrayed as petitioners, mainly the Standing Orders of Tamil Nadu State Transport Corporation, Salem Division-I
(formerly known as Anna Transport Corporation Limited (in short ''ATC''), Salem) alone were pressed into service. M/s. R. Viduthulai and V.
Ayyathurai, by drawing my attention to Standing Order 20 of A.T.C., Salem, contended that without issuing a Charge Sheet to an employee and
getting an explanation from him, the Management has no power to pass an order of suspension. Both the learned counsel very much relied on
decisions of K. Govindarajan, J., in M. Ovireddy and others v. The General Manager, T.N.State Transport Corporation (Salem Divn.1) Ltd.,
Salem-7 and another-(Writ Petition Nos. 13977 to 13981 of 98 dated 9-9-98) and in M. Singaravelu and others v. Tamil Nadu State Transport
Corporation (Salem Division I) Ltd., Salem-(W.P.Nos. 11137 to 11142 of 98 dated 16-9-98); and decisions of K.P. Sivasubramaniam, J. in C.
Subramaniam and others v. The State of Tamil Nadu, Secretary to Government, Transport Department, Chennai-9 (W.P.Nos. 1793 to 1810 of
2002 etc., dated 30-01-2002). By heavily relying on the above said decisions, they contended that the said decisions are binding on the Tamil
Nadu State Transport Corporation, Salem Division-I (ATC). In order to appreciate the said contention, it is useful to refer the relevant Standing
Order, viz., Standing Order 20 of A.T.C.:
In case of misconduct.
(a) Procedure
Charge sheet and Explanation: A charge sheet setting out briefly the facts of the charge and circumstances alleged against him specifying the nature
of his misconduct shall be given to the employee concerned and the employee shall be bound to receive it.
An employee against whom a charge of misconduct has been made shall submit within the time indicated, which shall not be less than 3 days, his
explanation in writing to the charges alleged against him.
(b) Suspension: If on receipt of his explanation, action is proposed to be taken against him FOR MISCONDUCT he may be suspended for such a
period as the management may consider necessary appropriate and reasonable pending enquiry and final decision. The order of suspension shall
be in writing and shall take effect immediately upon communication to the employee. Such order shall set out in detail the alleged misconduct and
the employee shall be given an opportunity to explain the charge. If the explanation found satisfactory or if as a result thereof, it is decided to take
no further action under the Standing Orders, the order of suspension, if any, shall be withdrawn forthwith and the period of suspension already
undergone by the employee shall be deemed to have been period of duty and the employee shall be entitled to full wages for the said period.
If the explanation is not found satisfactory and it is considered necessary to take further proceedings under the Standing Orders, the Management
shall order an enquiry to be held.
(c) However in cases where Criminal proceedings against any workmen in respect of any offence are in progress and the employer is satisfied that
it is necessary or desirable to place him under suspension, he may by an order in writing suspend him with effect from such date as may be
specified in the order.
It is true that on the basis of the statement of the counsel for the transport corporation, the learned Judges have quashed the order of suspension
and permitted the corporation to proceed with the enquiry in accordance with law. A reading of Standing Order 20 of A.T.C. shows that it is
incumbent on the part of the management to serve a charge sheet on the concerned employee, setting out the facts of the charges and
circumstances, and specifying the nature of misconduct committed by him. Equally, the employee is bound to receive the charge memo and submit,
within the time indicated therein, his explanation in writing to the charges alleged against him. Clause (b) of Standing Order 20 shows that on
receipt of his explanation, if the management proposed to take action against him for misconduct, it (management) may suspend the employee,
pending enquiry and final decision. The order shall set out in detail the alleged misconduct and he shall be given an opportunity to explain the
charge. It is further seen that if the explanation is found satisfactory or it decided or considered not to take further action, the order of suspension
shall be withdrawn forthwith. By pointing out the procedure provided under clause (a) and the suspension under clause (b), learned counsel
appearing for the petitioners contended that without issuing a charge memo and getting explanation from the employee concerned, the corporation
is not entitled to suspend an employee pending enquiry. On the other hand, learned Additional Advocate General, by pointing out the latter part of
clause (b) of Standing Order, namely, ""...if the explanation found satisfactory or if as a result thereof, it is decided to take no further action under
the Standing Orders, the order of suspension, if any, shall be withdrawn forthwith..."", would contend that even before issuance of a charge memo
and before giving an opportunity to the employee to explain, he can be suspended pending contemplation of enquiry. As rightly contended by the
learned Additional Advocate General, the latter part of clause (b), namely,...""the order of suspension, if any, shall be withdrawn forthwith...."" leads
to an irresistible conclusion that even before issuance of a charge memo and getting explanation from the employee, the Transport Corporation is
entitled to pass an order of suspension. It seems that this part of clause (b) has not been brought to the notice of both the learned Judges.
Now I shall consider various decisions cited by both sides. Mr. V. Ayyathurai, learned counsel for petitioners in some of the writ petitions,
referred to a decision in O.P. Gupta Vs. Union of India (UOI) and Others, , wherein the Supreme Court has held that an order of suspension,
unless the departmental inquiry is concluded within a reasonable time, affects a government servant injuriously. The Supreme Court has further held
that it is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental
proceedings should be concluded with reasonable diligence and within a reasonable period of time and if such a principle were not to be
recognised, it would imply that the executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and
distress for an indefinite duration.
He also relied on another decision in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, , wherein Their Lordships have held:
(para 29)
Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers
have been found to be afflicted by a ""suspension syndrome"" and the employees have been found to be placed under suspension just for nothing. It
is their irritability rather than the employee''s trivial lapse which has often resulted in suspension. Suspension notwithstanding, non-payment of
subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee...
Mr. V. Ayyathurai has also relied on a decision in Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, . The
following observation of Their Lordships is very much pressed into service:-
11......It is a well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its
actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them.................Every action
of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its
bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affectation of
some right or denial of some privilege.
Mr. R. Viduthalai, learned counsel for petitioners in some of the writ petitions, referred to a decision in Jagodamba Prasad Shukla v. State of
U.P. 2001 (1) LLN 51, wherein the Supreme Court has held that ""the payment of subsistence allowance, in accordance with the Rules, to an
employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance..."". He also relied on a
Division Bench decision of Rajasthan High Court in Beni Ram Kushwaha v. State of Rajasthan 2001 (3) L.L.N. 1207, wherein Their Lordships
have held that it should not be an administrative routine or an automatic order to suspend an employee, that the appropriate authority should apply
his mind to the circumstances and the stigma and ignominy attached to cessation of work, and that the employee cannot be kept under suspension
for an indefinite period. In K. Saravanan v. Tamil Nadu Electricity Board 1994 T.L.N.J. 111, a Division Bench of this Court has held that
prolonged suspension is bad. In Abdul Gani v. T.S.E., D.E.D.C., T.N.E.B., 1996 1 L.L.J. 948, AR. Lakshmanan, J. (as he then was), after
referring to Regulation 9 (a) (i) (2) of Tamil Nadu Electricity Board Employees (Discipline and Appeal) Regulations, has held that suspension of an
employee from service should be resorted to only when such a suspension is necessary and unavoidable and where continuance in service would
be detrimental to public interest. The learned Judge has also held that disciplinary action is vested in employer to suspend an employee or not and
the said discretion should be exercised properly with care and caution. In State of Orissa Vs. Bimal Kumar Mohanty, , it has been held: (para 12)
It is thus settled law that normally when an appointed 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...
Mr. R. Vidhuthalai also relied on a Division Bench decision of Delhi High Court in Delhi Electric Supply Undertaking Vs. G.P. Satsangi, . He
very much pressed into service the following observation in para 38:
The power of suspension is no doubt available under the service conditions and rules governing the employee, but it has to be exercised with
circumspection, care and after due appliance of mind. Normally a sort of preliminary enquiry or investigation is gone through for ascertaining the
prima facie view of the matter and whether the circumstances impel recourse to suspension....
In Secretary to Government and another Vs. K. Munniappan, , the Supreme Court while considering Rule 17 (e) (1) of Tamil Nadu Civil
Services (Classification, Control and Appeal) Rules, held that actual pendency of enquiry is not a pre-condition to suspend an officer. In
Swaminathan, M. v. The Chairman and Managing Director, SIDCO 1988 W.L.R. 41, a Division Bench of this Court held that an order of
suspension can be made even before the actual initiation of a disciplinary proceeding.
A careful analysis of all the decisions referred to above would go to show that power of suspension is available under the Service Conditions
and Rules governing the employees, and that the same has to be exercised with due care and appliance of mind. In the light of the rival contentions,
I have also verified the suspension orders, which contain invariably the reason for suspension pending enquiry into departmental proceedings or
criminal charges. As stated earlier, for the moment, I am concerned with the Standing Order of the State Transport Corporation, Salem Division I
(ATC). I have also observed that M/s. R. Viduthalai and V. Ayyathurai vehemently contended that inasmuch as the very same Standing Order 20
(a) and (b) were considered by K. Govindarajan, J. and K.P. Sivasubramaniam, J., in the Writ Petitions referred to above, it is binding on the
Management of the State Transport Corporation, Salem Division I too. I have already referred to the argument of the learned Additional Advocate
General, particularly with reference to the latter part of clause (b) of Standing Order 20. As rightly argued, the reading of both the clauses clearly
shows that even before laying a charge sheet and getting explanation from the employee, the Corporation is empowered to pass an order of
suspension. It is also seen from the earlier orders of this Court that the counsel appearing for the Transport Corporation has not brought the latter
part of clause (b) of the Standing Order 20 to the notice of the learned Judges. In the absence of any discussion with reference to clauses (a) and
(b) of Standing Order 20 and recording reason or reasons thereon as well as the concession given by the counsel for the respondents, I am of the
considered view that both the decisions cannot be cited as binding decisions. In this regard, learned Additional Advocate General has very much
relied on a Full Bench decision of this Court in Philip Jeyasingh v. The Joint Registrar of Co-operative Societies 1992 1L.W. 216. In that decision,
the Full Bench considered the binding nature of the judgment, duty to be followed by the subsequent Benches, exceptions, meaning and scope of
Per Incuriam"", ""Orbiter Dictum"", ""Sub silentio"". After referring all the earlier decisions on the point in question, they culled down the following
principles:
(1) A judgment is per incuriam if it is rendered in ignorance of a binding authority.
(2) A judgment is per incuriam if it is rendered in ignorance of a statute or a rule having the force of a statute.
(3) A judgment is not per incuriam because it is based on a wrong understanding of the law or a binding precedent.
(4) A judgment is not per incuriam because the reasoning is wrong in the opinion of the subsequent Bench.
As rightly argued by the learned Additional Advocate General, clause (2) of para 46 of the above principle is applicable to the cases on hand,
since in both the decisions referred to above, the entire Standing Order has not been gone into; accordingly and in the light of the Full Bench
decision, both the judgments are per incuriam. It is also relevant to note that by order dated 23-04-2002 in Review Petition Nos. 18 to 47 of
2002 in W.P.Nos. 1793 to 1810, 1903 to 1906, 1194 to 1201/2002, K.P. Sivasubramaniam, J., has reviewed his earlier orders passed in the
said writ petitions and set aside the same. Taking note of the fact that the learned Judge (K.P. Sivasubramaniam, J.) himself reviewed and set aside
the earlier orders passed in the writ petitions cited supra, and in the light of the language used in the Standing Orders of Tamil Nadu State
Transport Corporation, Salem Division-I (ATC), I hold that the Transport Corporation is empowered to suspend an employee pending
departmental enquiry, even prior to issuance of charge sheet and getting explanation from the employee. No doubt, if the Transport Corporation,
after getting explanation from the concerned employee, is satisfied with the same and thought that no further action is warranted under the Standing
Orders, it (Transport Corporation) can withdraw the order of suspension forthwith.
Mr. D. Hariparanthaman, learned counsel for the petitioners, by drawing my attention to Standing Orders of State Transport Corporation,
Trichy Division (DCTC); Madurai Division (PRC); Tirunelveli Division (Kattabomman Transport Corporation), contended that inasmuch as the
Management failed to supply a statement in detail, the reason for such suspension to the workman within a week from the date of suspension, the
impugned orders are liable to be quashed. For this, the learned Additional Advocate General has brought to my notice that since the suspension
order itself contains reasons, the said contention is liable to be rejected. In the light of the argument, I have verified the relevant clauses, namely,
clause 17 (4) (a) of Standing Orders of Tirunelveli Division, clause 24 (2) (a) of Standing Orders of Trichy Division and other Transport
Corporations. No doubt, it is stated that a statement setting out in detail the reason for such suspension shall be supplied to the workman within a
week from the date of suspension. In the light of the argument, I have also perused the suspension orders. All the suspension orders contain
reasons with reference to misconduct in terms of Standing Orders as well as criminal action under the provisions of Indian Penal Code and Public
Property Act. In the light of the fact that the suspension order itself contain reasons, it cannot be contended that it is violative of the Standing
Orders as referred to by Mr. D. Hariparanthaman; accordingly I reject his contention. In some cases though the suspension order does not contain
reasons, it is demonstrated before me that in those cases, the details of charges have been furnished to the employees within the prescribed time
and, in turn, they also submitted their explanation. Depending on their involvement, the management reviewed and revoked the suspension in
certain cases. Hence, the contrary contentions are liable to be rejected.
Mala fide exercise of power
Mr. R. Viduthalai, learned counsel for some of the petitioners, contended that the impugned order of suspension suffers from mala fide and
colourable exercise of power calculated to victimise the employees for participating the State-wide strike to press their legitimate demands for the
reduction of 20 per cent bonus every year on the eve of Deepavali festival. In support of his contention, he highlighted that in Tamil Nadu State
Transport Corporation-Salem Division-I (ATC), out of 119 employees who were suspended pending enquiry, suspension has been revoked in
respect of 47 employees belonging to different trade unions for collateral and political considerations and permitted to join duty. In the affidavit it is
stated that as a matter of fact, victimisation and unfair labour practice, some of the employees who are employees of LPF trade union affiliated to
D.M.K. party numbering to 72 have alone been singled out and are continued under suspension. It is also stated that out of 72 employees who are
still continued under suspension, some of them belong to the affiliated union of CITU, AITUC who are opposed to the ruling party on the issue in
question. Similar contention has been raised by M/s. V. Ayyathurai and D. Hariparanthaman. With regard to those averments, it has been stated in
the counter affidavit filed by the General Manager, Tamil Nadu State Transport Corporation (Salem Division-I) that,
...certain employees who were suspended, were permitted to join duty, but it was only on receipt of their explanations. The petitioners in
W.P.Nos. 24991 and 24993 of 2001 have submitted their explanations. Hence, they were permitted to join duty, by order dt. 5-1-2002 and they
have also joined duty on 10-1-2002 and 11-1-2002. It is also not correct to state that because of their trade union activities, inimical treatment
was meted out to them. The respondent corporation is least interest in the political party or trade union affiliations of the workmen. Hence, the
allegation that the suspension of the employees numbering about 72 belonging to LPF alone are yet to be revoked, is not correct. The primary
concern and anxiety of the Corporation was to protect the interests and to serve the travelling public.....
Similar counter affidavit has been filed in other cases also. In the light of the denial of the allegation of the petitioners and the specific information
given by the General Manager of the respondent Corporation, I am satisfied that the petitioners have not established the allegation that the
respondent acted mala fide against few persons, who are opposing the ruling party. In this regard, it is brought to my notice by the Additional
Advocate General that even a person who is a member of the ruling party was also suspended along with the petitioners. The very same person
has filed W.P.No. 10313/2002 questioning the order of suspension. The learned Additional Advocate General has also demonstrated similar
instances to show that action was taken irrespective of party affiliation. It is unnecessary to refer all those details furnished by the respondents. I am
satisfied that petitioners failed to establish the plea of mala fide. In this regard, it is also relevant to note the decision of the Apex Court in S. Pratap
Singh Vs. The State of Punjab, . Regarding grounds of ""ultra vires"" and ""mala fide"", Their Lordships have held that if bad faith would vitiate the
order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts"". Accordingly, in order to
substantiate the plea of mala fide, it is for the petitioners to allege and prove the same by placing acceptable materials. I have already referred to
the fact that though the petitioners have complained that the members of LPF and other unions who are opposing the action of the Government
alone are retained, their explanation not considered and revoked the case of others, the same has been stoutly denied by the respondent by the
highest officer and also demonstrated that on the basis of their explanation and after satisfying themselves, those persons were permitted to join
duty. They also explained that the activities in trade union and their affiliation have nothing to do with the action taken by the respective
Corporation. In the light of the factual position, as observed by the Supreme Court, it is for the petitioners to establish their plea of mala fide by
placing acceptable materials. After going through the information furnished in the counter affidavit and in the light of the fact that action was taken
not only against the members of a particular trade union, but also against persons affiliated to ruling party, I hold that the petitioners have failed to
prove the plea of mala fide.
Discrimination and selective suspension
Though it is contended that the respondents have discriminated the petitioners who are opposing the ruling party, inasmuch as the very same
issue has been considered in the earlier paragraph, I am of the view that it is unnecessary to refer the same once again. Further, learned Additional
Advocate General brought to my notice that before revoking the order of suspension, the Corporations considered the nature of the charge
levelled against them, their involvement etc. The counsel for the petitioners as well as respondents demonstrated and argued the case by showing
various orders granting revocation of suspension orders. In the light of the said contention, I have carefully perused those orders and I am satisfied
that after considering the nature and volume of charge, their involvement, participation etc., the Corporations accepted their explanation and
revoked the suspension order. In other words, I am satisfied that the Corporation considered the individual case of merits and on the basis of
statement made in the explanation, passed appropriate orders revoking the suspension; accordingly I reject the contention regarding discrimination.
Mr. D. Hariparanthaman attacked the order of suspension on the ground that inasmuch as the respondents selected the petitioners and passed
an order of suspension, the same cannot be sustained. In support of his contention, he relied on a decision of the Apex court in E.S. Reddy v.
Chief Secretary, Government of Andhra Pradesh, reported in 1987 (2) LLN 289. In that case, the Supreme Court has held that selective
suspension of one officer alone without suspending alleged co-accused is not proper and advised the State Government therein to place the other
concerned officers under suspension, if not, revoke the suspension of the petitioner. In K. Sukhendar Reddy Vs. State of Andhra Pradesh and
Another, , the Supreme Court has held that the Government cannot be permitted to resort to selective suspension. There is no dispute with regard
to the above proposition. The question is whether the respondents-Transport Corporations discriminated the petitioners by keeping them under
suspension and revoked the same against others. I have already considered this aspect and as demonstrated by the respondents, after the order of
suspension, the explanation offered by them were duly considered by the Corporation depending upon their involvement and nature of the charges
and the explanation, irrespective of party affiliation etc. They were permitted to join duty. It is also explained before this Court that those who
involved in serious offence, namely, causing damage to the buses, preventing the workmen from attending the lawful duty were kept under
suspension pending enquiry. For illustration, I shall refer the action taken in respect of the Strike held from 10-11-2001 to 25-11-2002 by Tamil
Nadu State Transport Corporation (Villupuram Division.III) Ltd., Kancheepuram:
--------------------------------------------------------------
Sl. Nature of Relevant Union
No. Misconduct Section Affilia-
of the Police tion
FIR
--------------------------------------------------------------
No.of Participation in No police
I Employees the illegal Strike Case ---
issued with by absenting for
Charge Memo more than eight
3500 consecutive days
No.of Arrested by Police 151 Cr.P.C. ATP -14
Employees as A1 and actively R/W 7(i)(a) LPF -44
Suspended participated in the CLA Act. CITU -14
II and Charge illegal Strike and INTUC- 5
Sheeted absented for duty PMK - 4
and then NJP - 3
Revoked PSM - 7
APLF - 7
116MLF - 4
HMS- -1 Others-13
No.of Blocking of Buses 1) 151 CRPC ATP - 2
Employees and preventing the R/W 7(i) LPF - 2
Suspended loyal workers to (a) CLA Act CITU - 9
III and Charge attend duty. 2) 2 & 3 TNPPD NJP - 1
Sheeted Misbehaviour with Act APLF - 1
And not Branch Manager and 3) Section 294 MLF - 1
Revoked Misbehaviour with & 353 IPC
Supervisor. Inciting 4)Section 143
16 others to Strike & 188 IPC
work, pelted stones
and caused damages
to the Corporation
bus.
--------------------------------------------------------------
This shows that the management considered the case of all deserving employees irrespective of party affiliation.
Though Mr. Hariparanthaman extensively argued the merits of the charges, their alleged involvement, order of revocation in favour of few persons
etc., I am of the view that those aspects cannot be gone into by this Court by exercising jurisdiction under Article 226 of the Constitution of India.
All those aspects are to be agitated in the enquiry; accordingly I do not find any substance in the contention raised.
Interference by this Court under Art. 226 of the Constitution of India.
In V. Pushparaj v. T.N. Newsprint and Papers, Ltd., 1998 (1) LLN 735, I had an occasion to consider the power of this Court under Article
226 of the Constitution of India challenging the order of suspension. After analysing the relevant provision relating to order of suspension and the
earlier Division Bench decision of this Court, I have held: (para 12)
It is settled law that when the authority who issued the order of suspension is competent and there is no violation of any statutory provision, it
is not possible for this Court to go into the merits and materials placed with regard to the order of suspension. The following observation of the
Division Bench of this Court reported in P. Mahamani v. Tamil Nadu Magnesite, Ltd. 1993 (2) L.L.N. 353, is relevant and the same, in para 20 at
page 362 is extracted hereunder:
....Further the Court cannot go into the question whether the order of suspension and the charge memo are based on proper materials.
Apart from this, in another decision reported in M. Swaminathan v. Chairman and Managing Director, SIDCO 1988 W.L.R. 41, a Bench of this
Court, while considering the scope and jurisdiction of this Court under Art. 226 of the Constitution of India in a matter like suspension have
observed thus:
Before parting with this case, we would like to make it clear that the jurisdiction that Art. 226 of the Constitution of India should not be freely
exercised in matters of suspension pending or in contemplation of disciplinary proceedings. We find to our consternation that a tendency has
recently developed on the part of the employees to rush to this Court with petition under Art. 226 of the Constitution of India against such orders
of suspension and such petitions are very often entertained. In our view, unless an order of suspension is invalid in law either for want of
competence on the part of the authority passing the same or for violation of any specific rule, the High Court hold not entertain writ petitions against
such orders of suspension. It is high time that the litigants are told in unequivocal terms that the High Court will not sit in appeal over the orders of
suspension passed by competent authorities. The writ petitions in which the merits of the orders of suspension are canvassed on the basis of factual
allegations shall not be entertained and they shall be thrown out at the threshold. It must be remembered that the High Court cannot go into the
question whether the order of suspension is passed on proper materials......
Same view has been reiterated in B. Srinivasan v. T.N.A. Engineering Co-op Federation Ltd., reported in 1998 (1) LLN 780. In New India
Assurance Co. Ltd. v. S.M.I. Kazim and others 2001 (4) Supre 566, the Supreme Court has held that an order of suspension during the
pendency of a departmental enquiry is ordinarily not interfered with by the High Court in exercise of jurisdiction under Article 226 of the
Constitution unless the order is mala fidely passed or that the appropriate authority has not passed the order of suspension. In all these cases, it is
not the case of the petitioners that the authority who opposed the order of suspension is incompetent. On the other hand, the appropriate authority
alone has passed the order of suspension. Regarding the claim that mala fide exercise of power, after analysing the materials, I have held the
petitioners failed to substantiate the same. It is also relevant to refer a decision of the Supreme Court in U.P. Rajya Krishi Utpadan Mandni
Parishad v. Sanjiv Rajan, reported in U.P. Rajya Krishi Utpadan Mandi Parishad and Others Vs. Sanjiv Rajan, , in which the Supreme Court has
held that the Court should not ordinarily interfere with suspension orders, unless passed mala fide and without their being even a prima facie
evidence connecting the delinquent with the misconduct in question. I have already held that the plea of mala fide has not been established by the
petitioners. Normally it is advisable to let the disciplinary proceedings proceeded un-hindered and ultimately if exonerated, they would be entitled
to all the benefits from the date of suspension. In the light of the legal position and in view of the fact that all the factual aspects can be considered
in the enquiry, in the absence of any material to show that the order has been mala fidely passed, interference by this Court at this juncture is not
warranted.
Conclusion:
In the light of the legal position, it is to be noted that there is no dispute regarding competency of person who passed the impugned orders. In other
words, in all these cases the authority authorised to pass orders alone has passed the order of suspension. Likewise, though it is contended that the
order is contrary to the Standing Orders, I have already demonstrated that the competent authority is empowered to pass suspension orders
pending enquiry/contemplation of enquiry. The claim for mala fide and discrimination, in the light of the averments in the counter affidavit and of the
various orders passed by the respondents revoking the suspension orders, after accepting their explanation irrespective of party affiliation are liable
to be rejected. No doubt, the counsel for the petitioners after taking me through the complaints by certain workmen, officers of the Corporation,
discrepancy in the First Information Report, charge sheet etc., contended that the impugned orders of suspension are liable to be interfered by this
Court. It is true that few discrepancies are there. On this ground, as observed by the Division Bench, the same cannot be gone into by this Court
when the petitioners have ample opportunity to demonstrate in the enquiry. This Court cannot go into the question whether the order of suspension
was passed on proper materials or not. At the same time, I am aware of the fact that in most of these cases, the petitioners were suspended from
20-11-2001 onwards. It is also relevant to note that most of the employees are charged with violation of their Standing Orders and only few of
them are facing charges under Indian Penal Code, Tamil Nadu Public Property (Destruction and Loss) Act or other criminal law. It is also not
disputed that by keeping these employees under suspension for a longer period, it is for the State Transport Corporations to pay subsistence
allowance without extracting any work from them; considering the revenue loss etc. as well as the power of interference by this Court in a matter
like this, I pass the following orders:
1) The respondent-Transport Corporations are directed to consider the cases of the employees against whom charges are levelled only for
violation of their respective Standing Orders and by reviewing the same they are directed to revoke the order of suspension within 30 days from
today.
2) The suspension orders against the employees who are facing criminal charges under the Indian Penal Code, Tamil Nadu Public Property
(Destruction and Loss) Act or any other criminal law are confirmed and it is for the respective Corporation to review their cases once in a month.
If the Corporation is satisfied, it is for them to pass appropriate orders as to revocation of their suspension orders.
3) It is made clear that during the period of suspension, the employees are entitled to subsistence allowance in terms of the Standing Orders
applicable to them.
The Writ Petitions are ordered accordingly. No costs. Consequently, all the connected W.P.M.Ps., and W.V.M.Ps., are closed.