TMI Blog2022 (1) TMI 1393X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court held that exercise of judicial review to interfere with a suspension order which has been passed despite a vigilance investigation which led to registration of a criminal case against the delinquent, is thus uncalled for. The judgment of the learned Single Judge is set aside - it is directed to expedite the criminal proceedings against the delinquent and if it is not concluded within a reasonable time, then it would be open to the delinquent employee to make a representation to recall the suspension order which otherwise cannot be continued beyond a reasonable period, as it is pending for last two years - appeal allowed. - Hon'ble Mr. Munishwar Nath Bhandari, Acting Chief Justice And Hon'ble Mrs. Justice Pushpa Sathyanarayana For the Appellants : Mr. Veera Kathiravan Additional Advocate General for Mr. T. Sakthikumaran. For the Respondent : Mr. K.P. Narayanakumar. JUDGMENT MUNISHWAR NATH BHANDARI, ACJ The writ appeal has been filed against the judgment dated 20.7.2021 whereby the writ petition challenging the order of suspension was allowed. A direction for reinstatement of the writ petitioner/non-appellant was given, though with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the appellants, the learned Single Judge relied on the judgment of the Apex Court in the case of Ajay Kumar Choudhary (supra) ignoring the Larger Bench judgment of the Supreme Court in the case of R.P. Kapur v. Union of India, AIR 1964 SC 787 . It is also submitted that the analogy to serve the charge memo or charge-sheet within a period of three months evolved by the Apex Court in the case of Ajay Kumar Choudhary (supra) was not in reference to the service rules governing the delinquent employee, but based on Section 167(2) of the Code of Criminal Procedure, 1973 (for brevity, the Cr.P.C. ) having no application in service matters. It is submitted that the Apex Court in the case of Ajay Kumar Choudhary (supra) mainly relied on the provisions of the Cr.P.C. ignoring that the provisions of the Cr.P.C. have no application to service matters. Section 167(2) of the Cr.P.C. provides for the period of filing of the final report in a case when an accused is behind the bars. If an accused has been arrested and is on remand, the charge-sheet/final report in such case has to be submitted within sixty days or ninety days depending on the sentence imposable in reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Salem, 1991 (1) LW 682 has been given, apart from citing the judgment of this court in the case of Chairman and Managing Director, TANGEDCO v. R. Balaji [Judgment dated 27.8.2021 passed in W.A. No. 68 of 2021], with a prayer to dismiss the appeal, as the learned Single Judge has not committed any error in causing interference with the order of suspension. 9. We have considered the rival submissions of the parties and perused the records. 10. The writ appeal has been filed to challenge the order of the learned Single Judge whereby the order of suspension has been set aside. It is a case where the writ petitioner/non-appellant was placed under suspension by the order dated 26.7.2019. It was with registration of a criminal case on the same day for commission of an offence under the Prevention of Corruption Act, 1988, as amended in the year 2018. The allegation against the delinquent was of demand and acceptance of bribe. He was caught red-handed and, accordingly, an FIR was registered against him immediately thereupon. He subsequently made a representation for revocation of the order of suspension, but the same was rejected by the appellants by their order dated 17.4.2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Advocate General that the judgment in the case of Ajay Kumar Choudhary (supra) was delivered by the Apex Court referring to the provisions of the Cr.P.C., whereas the provisions of the Cr.P.C. are not applicable in service matters or to a matter pertaining to suspension from service. A perusal of the judgment in the case of Ajay Kumar Choudhary (supra) shows a reference to Section 167(2) of the Cr.P.C. to consider the legality of an order of suspension from service. We, therefore, find substance in the argument of learned Additional Advocate General that the revocation of an order of suspension merely on the ground that charge memo was not filed within three months cannot be driven by the provisions of the Cr.P.C., but has to be guided by service rules governing the employee and the guidelines issued by the government. The period of three months stipulated in the case of Ajay Kumar Choudhary (supra) was taken in reference to Section 167(2) of the Cr.P.C. which is the period given for submission of final report within sixty days or ninety days depending on the sentence provided for the offence. 14. The judgment in Ajay Kumar Choudhary (supra) was otherwise cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been made under the 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. When the dominant position of the rules from 1930 does not distinguish the conflicting interest of the delinquent employee of revocation at any time and not categorising the clauses, the executive order, which has been brought into action on 30.01.1996, has not been incorporated in the rules till now. Therefore, the force of law as to the application of rule is that notwithstanding the pendency of any case and the Government servant is placed under suspension, the authority competent is empowered to revoke the suspension at any point of time. Keeping the Government servant in a hanging position of prolonged suspension without revocation or review of such order, taking into account various factors, such as, investigation and the other mechanism involved in the process of conclusion of the enquiry for certain reasons not to conclude the enquiry, may not be right on the executive authority and, therefore, we feel, the said issue needs to be considered either by amending the rules or by bringing a proper legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us. 22. So far as the facts of the present case are concerned, the Appellant has now been served with a Chargesheet, and, therefore, these directions may not be relevant to him any longer. However, if the Appellant is so advised he may challenge his continued suspension in any manner known to law, and this action of the Respondents will be subject to judicial review.' 10. On perusal of the judgment in Ajay Kumar Choudhary, it is clear that the Hon'ble Supreme Court was dealing with a case wherein the Appellant had been served with a charge sheet before the judgment was pronounced. On that basis, on the facts of that case, paragraph 22 reflects that the order of suspension was not set aside although the suspension period exceeded three months. However, while disposing of the case, the Hon'ble Supreme Court held that the suspension period should not extend beyond three months if the memorandum of charges/charge sheet is not served on the delinquent officer/employee. The judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or allowed to continue upon consideration of all relevant facts and circumstances, including the nature of the charges.' Likewise, the Division Bench of this Court in R. Elumalai v. District Collector, [2020 SCC online Mad 1472], considered the Ajay Kumar Choudhary case and the judgment of the Delhi High Court in Government of NCT of Delhi (cited supra) and concluded that in cases relating to suspension for alleged involvement in graft charges leading to a criminal trial, interference with the suspension order on the basis that the suspension period exceeded three months is not justifiable. 11. Upon considering the law laid down in the judgments that have been discussed herein above, it is clear that there is no absolute rule in respect of the validity of suspension orders from the perspective of duration especially when such suspension is in the context of a pending criminal proceeding. In other words, in these situations, the law on suspension as laid down in paragraph 11 of R.P. Kapur v. Union of India, AIR 1964 SC 787, by a Five Judge Bench upholding suspension pending enquiry subject to payment of subsistence allowance as per service conditions and that in Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and without realizing the seriousness of the offence. This is apart from the fact that there exist government instructions dated 26.4.2016, where referring to various judgments of the Supreme Court, which include Ajay Kumar Choudhary (supra) and R.P. Kapur (supra), it was instructed that the time limit of three months on suspension cases is applicable only to the cases arising out of departmental disciplinary enquiries pertaining to nonvigilance and/or any non-criminal cases and the said time limit is not applicable to suspension of an employee facing criminal case or grave corruption charges pending against him. The learned Single Judge has not referred to the aforesaid government directives, despite a resolution by the appellants for adoption of the guidelines to their Corporation as well. 17. The Larger Bench judgment of the Apex Court in the case of R.P. Kapur (supra) has been referred by the Division Bench of this court in A. Srinivasan (supra). The judgment in the case of R.P. Kapur (supra) was not cited in the case of Ajay Kumar Choudhary (supra) despite being a Larger Bench judgment and, thus, was distinguished by the Division Bench of this court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reunder providing for the scale of payment during suspension, the payment would be in accordance therewith. These general principles in our opinion apply with equal force in a case where the Government is the employer and a public servant is the employee with this modification that in view of the peculiar structural hierarchy of Government, the employer in the case of Government, must be held to be the authority which has the power to appoint a public servant. On general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental inquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental inquiry against him.' .... 10. This Court in another case titled Government of India, Ministry of Home Affairs v. Tarak Nath Ghosh [(1971) 1 SCC 734 : (1971) 3 SCR 715] held: 'Serious allegations of corruption and malpractices had been made against the respondent, a member of the Indian Police Service, serving in the State of Bihar. Inquiries made by the State Government revealed that there was a prima facie case made out against him. He was suspended b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed interlocutory order and this Court, while reiterating that this Court does not interfere with the interlocutory orders, held that the Court was constrained to do so when the court had overlooked the serious allegations of misconduct. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 redhanded 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 learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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