TMI Blog2022 (3) TMI 1543X X X X Extracts X X X X X X X X Extracts X X X X ..... - By the order of reference, the learned Single Judge referred to the view expressed by a Division Bench in the case of the THE DIRECTOR GENERAL OF POLICE, MYLAPORE AND ORS. VERSUS T. KAMARAJAN [ 2019 (11) TMI 1798 - MADRAS HIGH COURT] , and the subsequent judgment delivered by another Division Bench in the case of the THE CHAIRMAN-CUM-MANAGING DIRECTOR TANGEDCO; THE CHIEF ENGINEER (PERSONNEL) TANGEDCO; THE SUPERINTENDING ENGINEER CEDC/SOUTH-1/TANGEDCO, CHENNAI VERSUS R. BALAJI [ 2021 (8) TMI 1384 - MADRAS HIGH COURT] , where a view different than the view expressed earlier by the Division Bench in T. Kamarajan has been taken. HELD THAT:- Reference made to the judgment of the Apex Court in the case of STATE OF TAMIL NADU VERSUS PROMOD KUMAR AND ORS. [ 2018 (8) TMI 2120 - SUPREME COURT] . The aforesaid judgment is again to be read in the context of the facts given therein. That was a case of deemed suspension, as the employee therein remained behind bars for more than 48 hours. Wherein, largely the issue was in reference to challenge to the charge memo. In paragraph (27) of the said judgment, the court analyzing the facts did not find it appropriate to continue the order of susp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the delay in serving the memorandum of charges/charge-sheet. - W.P. Nos. 2165 of 2015 and 21628 of 2018 - - - Dated:- 15-3-2022 - M.N. BHANDARI, C.J., V. BHARATHIDASAN AND D. BHARATHA CHAKRAVARTHY, JJ. For the Appellant : G. Ilamurugu and M. Muthappan For the Respondent : P. Muthukumar, State Government Pleader assisted by B. Vijay, Additional Government Pleader ORDER M.N. Bhandari, C.J. 1. In pursuance of the order dated 20.12.2021 passed by the learned Single Judge in W.P. No. 2165 of 2015, the matter has come up before the Larger Bench. 2. The reference by the learned Single Judge is on account of two conflicting judgments delivered by the Division Benches on a challenge to the order of suspension. By the order of reference, the learned Single Judge referred to the view expressed by a Division Bench in the case of the Director General of Police and another v. T. Kamarajan, and the subsequent judgment delivered by another Division Bench in the case of the Chairman-cum-Managing Director, TANGEDCO and others v. R. Balaji [Judgment dated 27.8.2021 passed in W.A. No. 68 of 2021], where a view different than the view expressed earlier by the Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioners referred to the rules governing the case on hand. Adverting to Rule 17(e)(1) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, it is submitted that the authority passing the order of suspension has absolute authority to revoke it and in case it is to be extended, periodical review should be made for extension of time, but in this case the respondents failed to review the order of suspension despite expiry of long period and, thus, it becomes a case of prolonged suspension. 7. The facts of the case have also been referred by learned counsel for the petitioner in W.P. No. 2165 of 2015 [P. Kannan v. The Commissioner for Municipal Administration and others]. In the said case, based on a complaint, a trap was organized against one Veeramani, who was sitting next to the petitioner while working as a Clerk. After registration of an FIR, the petitioner was also implicated in the criminal case and was arrested on 4.2.2014, followed by order of suspension on 5.2.2014 treating it to be a case of deemed suspension, as the petitioner remained behind bars for more than 48 hours. In the criminal case, the charge sheet was filed on 12.10.2014, followed by an order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... text it has been given. It was also observed in Arignar Anna Sugar Mills Ltd., supra, that the judgment of the Apex Court cannot be applied as a statute and, thereby, after traversing the facts of the judgment in the case of Ajay Kumar Choudhary, supra, the Division Bench refused to cause interference with the order of suspension. Reference of many other judgments was given and would be dealt with at the time of consideration of the rival arguments. 11. We have considered the rival submissions and perused the records and judgments cited on either side. 12. Learned counsel for the petitioners has made a reference of Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 and Rule 3(e) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955. The said provisions are extracted hereunder: Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955: Rule 17(e): Conditions under which a member of a Service be placed under suspension.- (1) A member of a service may be placed under suspension from service, where- (i) a disciplinary proceedings against him is contemplated or is pending; or (ii) a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken on the basis of facts which led to the conviction in a Criminal Court. (6) An order of suspension made or deemed to have been made under this rule may at any time be revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate. Rule 3(e) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955: Rule 3(e) (1) A member of a 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 a 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 rule. (3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a member of a Service under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant to narrate the facts of the said case. The delinquent officer prepared a note that approximately four acres of land were not defence lands, but were private lands in respect of which NOCs could be issued. Based on the note aforesaid, NOCs were issued by the appellant, followed by his transfer. The NOCs granted by the appellant resulted in the action against him and he was, thus, placed under suspension from 30.9.2011. Challenge to the order of the suspension beyond the period of 180 days was made. The challenge could not sustain and, ultimately, the matter went to Supreme Court. When the matter reached the Apex Court in the year 2015, a period of four years had already elapsed, and in between the charge-sheet in the criminal case was submitted. In view of the above, the Apex Court refused to cause interference in the order of suspension with the observation that whatever finding has been recorded may not be relevant to the appellant therein. However, it was observed that if the appellant is so advised, he may challenge the continued suspension in any manner known to law. The relevant paragraph heavily relied upon by learned counsel for the petitioners is paragraph (21) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suspension. In the next paragraph, i.e., paragraph (22), it was ruled that looking to the facts of the case, the appellant having been served with the charge sheet, though much beyond the period of three months, the directions given in paragraph (21) were held to be not relevant. Yet, ignoring the direction given in paragraph (22), the judgment in the case of Ajay Kumar Choudhary, supra, is applied even in the cases where the charge-sheet is served before the challenge of the order of suspension or during the pendency of the writ petition, though service of charge-sheet may be after a period of three months. 16. The aforesaid is only one aspect to find out the extent of applicability of the case of Ajay Kumar Choudhary, supra. Otherwise, the judgment rendered therein is driven by Section 167(2) of the Code of Criminal Procedure, 1973 which provides the period for submission of charge-sheet, but it is only for the purpose of period of remand and does not provide the limitation for submission of charge-sheet in general. The charge-sheet in the criminal case can be filed even beyond the period given under Section 167(2) of the Code of Criminal Procedure, 1973, but in case of arrest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence and, accordingly, the judgment of the Apex Court in Ajay Kumar Choudhary, supra, needs to be considered for its application. In such context, the Division Bench of this court in Arignar Anna Sugar Mills Ltd., supra, held that the law laid down by the Apex Court in the case of Ajay Kumar Choudhary, supra, does not lay down any absolute proposition that order of suspension can never be extended beyond three months. Paragraphs 9, 10, 12, 18 and 19 of the judgment delivered by the Division Bench of this court in Arignar Anna Sugar Mills Ltd., supra, are quoted hereunder: 9. We are of the view that Ajay Kumar Choudhary (supra) does not lay down any absolute proposition that an order of suspension should never extend beyond three months. In fact, in Ajay Kumar Choudhary (supra), the Supreme Court observed that the directions regarding the restriction on extension of a suspension order beyond three months would not apply as the appellant had been served with a charge sheet. The appellant had only been given the liberty to challenge his continued suspension in any manner known to law, if so advised, and it was clarified that the action of the respondents in continuing suspension w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot move the Court on the ground that his right under Article 21 of the Constitution had been infringed. [emphasis supplied] 19. In Arignar Anna Sugar Mills Ltd., supra, it was held that a judgment is to be understood in the context of the facts in which it is rendered. Sentences in a judgment cannot be read in the same manner as a statute and otherwise have to be considered in the context the judgment has been given. Paragraph (12) of the judgment quoted above makes a reference about the proposition in reference to the applicability of criminal laws in the departmental proceedings. 20. Subsequent to the judgment aforesaid, a challenge to prolonged suspension was considered by the Division Bench in the case of Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO) and others v. A. Srinivasan, [judgment dated 2.9.2020 passed in W.A. No. 599 of 2020], wherein referring to the earlier judgment of a Division Bench of this court in the case of R. Elumalai v. District Collector and the judgment of the Delhi High Court in the case of Government of NCT of Delhi v. Dr. Rishi Anand, it was held that in cases relating to order of suspension involving graft charges le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Suspension is of two kinds, namely, as a punishment, or as an interim measure pending a departmental enquiry or pending a criminal proceeding. We shall deal with these aspects of suspension in detail later. So far as suspension as a punishment is concerned, it is conceded that it is a disciplinary matter. The dispute is only as to suspension pending a departmental enquiry or pending a criminal proceeding. There can in our opinion be no doubt that suspension of this kind also must be comprised within the words disciplinary matters as used in Article 314. Take the case of suspension pending a departmental enquiry. The purpose of such suspension is generally to facilitate a departmental enquiry and to ensure that while such enquiry is going on -- it may relate to serious lapses on the part of a public servant--he is not in a position to misuse his authority in the same way in which he might have been charged to have done so in the enquiry. In such a case suspension pending a departmental enquiry cannot be but a matter immediately related to disciplinary matters. Take again the case where suspension is pending criminal proceedings. The usual ground for suspension pending a criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted. (3) The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all. [emphasis supplied] 28. In view of the aforesaid, the court is required to analyze the judgment of the Apex Court in the case of Ajay Kumar Choudhary, supra, taking note of the facts and if paragraphs (21) and (22) are read together it would become clear that even the Apex Court has not applied the direction given in paragraph (21) in view of the filing of the charge-sheet during the pendency of the appeal or litigation before the court. It was not a case where the charge-sheet was filed within three months, rather much subsequent to it. Thus, the direction in paragraph (21) of the judgment in the case of Ajay Kumar Choudhary, supra, should have been applied after taking note of the facts of that case where even the interference with the suspension order was not made, though by the time the judgment of the Apex Court was rendered, more than a period of four years already passed from the date of suspension. Ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted within three months if the order of suspension is revoked with a direction to post the employee in a non-sensitive post, it may have serious repercussions. Thus, the court should analyze each case on its facts when a challenge to the order of suspension has been made. 32. Moreover, an order of suspension is not considered to be a punishment, as has been held by the Apex Court in State of Orissa v. Bimal Kumar Mohanty, (1994) 4 SCC 126. For ready reference, paragraph 13 of the said judgment is reproduced hereunder: 13. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the order of suspension should not be driven in reference to a judgment, but needs to be determined on facts and after considering the rules governing the delinquent. Judicial review in such matters should be minimal. In the instant case, the allegation against the delinquent is quite serious, as he not only demanded but accepted bribe and was caught red-handed by the Anti-Corruption Department. The aforesaid were the relevant facts, but were not considered by the learned Single Judge while causing interference with the order of suspension. It is even after ignoring the earlier judgment of the Division Bench in the case of A. Srinivasan (supra), wherein it was categorically held that the judgment of the Apex Court in the case of Ajay Kumar Choudhary (supra) does not evolve a general principle for causing interference with the order of suspension if charge-sheet is not served or charge memo is not filed within three months of the order of suspension. The finding of the Division Bench of this Court in the case of A. Srinivasan (supra) has even been ignored, though binding in nature. 21. In view of the above, we find reasons to cause interference with the judgment of the lea ..... 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