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TMI Blog2001 (2) TMI 1060X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner in W.P. No. 18512 of 2000 was working as Financial Adviser and Chief Accounts Officer in the 1st Respondent Port Trust when he was placed under suspension by the impugned order of the 1st Respondent. The issues raised and the reliefs sought for in all the three writ petitions are one and the same and therefore the averments made in W.P. No. 18507 of 2000 are dealt with as follows: 3. It is the case of the Petitioners that in accordance with the decision taken by the Export Promotion Meet held in Madras Port Trust on 27.5.94 by the Cabinet Secretary, Government of India, to encourage berth reservation scheme implemented as is being done in Bombay and as directed by the Joint Secretary, Ministry of Surface Transport, a note was prepared for the said purpose by the Marketing Manager of the 1st Respondent Port Trust on 4.7.94. The said note was approved by the Traffic Manager, Chief Mechanical Engineer and Financial Adviser and Chief Accounts Officer namely the Petitioners in the writ petitions as well as by the Chairman of Chennai Port Trust on 14.7.94. Based upon the said note, a communication was sent to the Joint Secretary, Ministry of Surface Transport seeking clearan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was recommended by the evaluation committee for consideration and approval by the 1st Respondent initially and by the Board later on. The 1st Respondent placed the recommendations of the evaluation committee before the Board. On receipt of the said recommendations, the Board in turn constituted a sub-committee consisting of few trustees of the Board of highest integrity. The said sub-committee went into the details of the proposal and based on the sub committee's recommendation the Board approved the entrustment of work to M./s Bengal Tinger Lines in respect of C.T.B.I (North) and to M/s X-Press Container Lines in respect of West Quay 1 and 2. The said decision of the Board was intimated to the Ministry which was approved by the 2nd Respondent and the work was allotted to the respective shipping lines and the work were also completed. 5. On 21.3.96, the Central Bureau of Investigation registered a case under R.C.15 (A)/96 against the Chairman, Chennai Port Trust Shri M. Kalaivanan and M/s X-Press Container Lines under Section 120B read with 420 IPC, Section 13(2) read with 13(1) (d) of Prevention of Corruption Act, 1988. After investigation, charge sheet was filed before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uspension against them. Such orders of selective suspension is bad. In support of the said submission, the Learned Senior Counsel relied upon a judgment of the Supreme Court reported in 2000 (1) ATJ 734 (K. Sukdhendar Reddy v. State of A.P. and Anr.)" 8. Secondly, the Learned Senior Counsel would contend that in this case, the Authority to place the Petitioners under suspension is the appointing Authority. In so far as the Petitioners are concerned, they are the employees covered under Clause (a) of Sub-section (I) of Section 24 of Major Port Trust Acts, 1963. In that event the Petitioners cannot be placed under suspension without the approval of the 2nd Respondent. In the present case, the order of suspension has been made at the directions of the 2nd Respondent itself without there being any recommendation by the Board and the statutory Authority acting on the instruction of higher Authorities is bad in as much as the appointing Authority has not applied his mind and recommended the suspension of the Petitioners to the 2nd Respondent. For the said purpose, the Learned Senior Counsel would rely upon a judgment of this Court reported in (1963) 76 L.W. 76 (V.V. Shunmugha Nadar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in 1997 Writ L.R. 120 (N.M. Soman sundaram v. The Director General of Police, Government Estate, Madras-4 and 3 Ors.)" and the judgment of the Apex Court reported in AIR 1966 SC 447 (The State of West Bengal and Anr. v. Nripendra Nath Bagchi). 11. Per contra, Mr. A.L. Somayaji, Learned Senior Counsel appearing for the 1st Respondent would contend that the Petitioners were the members of the tender committee constituted to evaluate the tenders. Only on their recommendations the Board accepted the proposals and the same was forwarded to the 2nd Respondent for approval. Even though a criminal case was registered against the Petitioners as well as the then Acting Chairman who was implicated as the 1st accused, the Acting Chairman was alone suspended as early as on 23.9.96 and there was no decision taken by the Board. The said order of suspension was taken invoking Rule 3(3) of All India Service (Discipline and Service) Rule, 1969. However, the said order of suspension was set aside by a Division Bench of this Court in W.P. No. 1382 of 1998 in order dated 17.3.99. The Authority competent to place the 1st accused namely the Acting Chairman under suspension vests with the 2nd Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent based upon the above factual position would submit that the contention of the Learned Senior Counsel for the Petitioners that the impugned orders of suspension are hit by the principles of selective suspension is not correct. Admittedly, in the charge sheet only seven persons were implicated. Out of the seven persons, the 1st accused was then Acting Chairman, an IAS officer. He was placed under suspension on 23.9.96 even before the charge sheet was filed on 2.11.99 invoking Rule 3(3) of All India Service (Discipline and Service) Rules, 1969. However, the said order of suspension was set aside by a Division Bench of this Court. Out of the remaining six accused, all the three Petitioners who were cited as accused 2 to 4 were alone the officers of the 1st Respondent Port Trust. The remaining three accused are the Senior Vice President of Pat-Volk Limited, Chennai, Regional Representative of M/s X-Press Container Lines, Chennai and M/s X-Press Container Lines, Chennai represented by Mr. S.B. Rao namely the sixth accused. They are all not the officers of the Port Trust and therefore there is no question of placing these three persons under suspension at the instance of the 1st Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso to Regulation 7 of the Regulations, there is no illegality in directing the 1st Respondent to place the Petitioners under suspension in view of the fact that all the Petitioners had been implicated in a criminal case and charge sheet has also been filed against them. Further, the learned standing counsel contended that factually the 1st Respondent sent his proposal for approval of the 2nd Respondent for placing the Petitioners under suspension in letter dated 10.10.2000. Only on the basis of the said proposal, the direction was issued by the 2nd Respondent in the letter dated 20.10.2000. Therefore, the contention of the Learned Senior Counsel for the Petitioners that the 1st Respondent has acted only on the directions of the 2nd Respondent is not correct. Therefore, the learned standing counsel for the 2nd Respondent submitted that the contention of the Learned Senior Counsel for the Petitioners in challenging the impugned orders of suspension are liable to be rejected. 17. Coming to the first contention of the Learned Senior Counsel for the Petitioners, it is to be noted that in the charge sheet filed on 2.11.99 before the Special Court, CBI Cases, Chennai, seven acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause (a) of Sub-section (1) of Section 24 of the Act by the Chairman; and in the case of any other employee by the appointing authority. Provided that no such order relating to an employee referred to in Clause (a) of Sub-section (1) of Section 24 of the Act shall have effect until it is approved by the Central Government. 19. A reading of the said Regulations would clearly indicate that the Chairman of the Port Trust is the appointing Authority in so far as the Class I posts other than those covered by Clause (a) of Sub-section (i) of Section 24 of the Act. Admittedly, even as per the averments made in the affidavits filed in support of the writ petitions, the Petitioners are the employees covered under Clause (a) of Sub-section (i) of Section 24 of Major Port Trusts Act, 1963. In so far as the officers governed under Clause (a) of Sub-section (i) of Section 24 they can be placed under suspension by the Chairman as per proviso to Regulation 7. However, such orders of suspension shall have the effect only after the approval by the 2nd Respondent. Therefore, the competent Authority to either approve or refuse to approve any order of suspension is the 2nd Respondent. The grieva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent reported in " 1995 (5) SCC 302" the Apex Court had an occasion to consider a case where the exercise of the powers by the competent Authority under directions are in compliance with the instruction of some other person or Authority amounts to failure to exercise the discretion altogether. That was also a case of the exercise of power by a statutory Authority vested with jurisdiction passed orders on the instruction of the higher Authority. In the judgment relied upon by the Learned Senior Counsel for the Petitioners reported in "1984 Writ L.R. 84", a Division Bench of this Court considered the scope of Statute No. 27 of Chapter XXVI of the Laws of the University of Madras. According to the said statute "appointments to the teaching staff of a college shall be made only after the Principal has been given an opportunity of expressing his views. All appointments shall be reported to the Syndicate which shall satisfy itself that they meet the requirements of the University." While considering the said statute, the Division Bench held that the appointments made by a private college will become effective as per the terms contained in the order of appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 6.10.2000 directing the 1st Respondent to take action to seek approval of the 2nd Respondent under proviso to Regulation 7(2) of the Regulations. Therefore, the Learned Senior Counsel would contend that the Authority competent to exercise the power of placing the Petitioners under suspension cannot act on the directions of the 2nd Respondent without independently applying his mind. It is true that by letter dated 6.10.2000 the 2nd Respondent has directed the 1st Respondent to seek approval under proviso to Regulation 7(2) of the Regulations for placing the Petitioners under suspension. The said direction was considered by the 1st Respondent and thereafter only a proposal has been mooted out by the 1st Respondent in letter dated 10.10.2000. Merely because the proposal has been mooted out by the 1st Respondent to place the Petitioners under suspension on the directions of the approving Authority in its letter dated 6.10.2000, the subsequent approval granted by the 2nd Respondent for placing the Petitioners under suspension cannot be held to be invalid. Therefore, I do not find any illegality in the 1st Respondent in passing the impugned orders of suspension against the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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