2015 (3) TMI 1428 - HC - Indian Laws

Suspension of petitioner set aside - whether the suspension of the Petitioner on the ground that he was involved in a Criminal case under the Prevention of Corruption Act can be set aside on the ground of prolonged suspension? - HELD THAT - It cannot be gainsaid that an Employer has a right to take Disciplinary action against the Employee who is believed to have committed misconduct. An Employer who has contemplated Disciplinary action against an Employee may place him under suspension. After suspending an Employee the matter rests there. As such an Employee suffers and it results in unnecessary expenses to the Employer/State by way of payment of Subsistence Allowance in lieu of nothing. Placing an Employee under suspension is the discretion of an Authority and where the directions is properly exercised for good and sufficient grounds the order cannot be held bad in law merely because the reasons were not communicated. It is true that the prosecution should not be allowed to become a persecution. However when does the prosecution become persecution will certainly depend upon the facts and circumstances of a given case. It is the primordial duty of the Court concerned to dispose of a case concerning corruption by holding the trial on day to day basis as per Section 4(4) of the Prevention of Corruption Act 1988. In fact as per Section 4 of the Prevention of Corruption Act a Special Judge appointed under the Act is to try offences specified in Section 3(1) of the Act. The word only shows the exclusive jurisdiction of the Special Judge to try all offences specified in Section 3(1) of the Act. In the decision of the Hon ble Supreme Court in VICE CHANCELLOR JAMMU UNIVERSITY VERSUS DUSHIANT KUMAR RAMPAL 1977 (2) TMI 131 - SUPREME COURT it is observed that It is immaterial that evil effects flow from an Order of Suspension as it causes real hardship and inconvenience to a civil servant due to stigma attached to it. In fact by placing an Employee under suspension without proper application of mind Government is a looser because it has to pay heavy amount by way of Subsistence Allowance and other payments without taking any service from the Employee. Vide the present Rules namely Tamil Nadu Civil Services (Discipline and Appeal) Rules under Rule 17(e)(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 thereby empowering the Competent Authority to take a decision as to the revocation of suspension at any time. The said rule framed in exercise of the powers conferred by the Proviso to Article 309 of the Constitution shall be exercised in the manner as contemplated. A reading of the said rule would unambiguously indicate that there cannot be any distinction between an Ordinary case and a Criminal case as to the involvement of the delinquent Employee. The Constitution of India guarantees the right of public employment and the equality thereof guaranteed to every one under Article 16(1) shall be made available to every citizen including the delinquent Employee. Such a right has to be enjoyed by the Government servant during the pleasure of the Governor of the State. Therefore the Executive Order taking away the rights conferred upon the citizens without making necessary amendment to the Rules or bringing proper legislation is bad in law and the review of the Order of Suspension by the authority without giving any distinction of the category of cases shall be made as a mandatory requirement by prescribing a period of review otherwise there will be a serious prejudice and continued apathy over the issue of keeping the Government servant for an unending period under suspension. The Registry is directed to list these matters before the appropriate Bench for hearing in usual course.

Summary

Issues Involved:
1. Whether the suspension of the Petitioner on the grounds of involvement in a criminal case under the Prevention of Corruption Act can be set aside due to prolonged suspension.
2. Whether the decision in C. Balasubramanian v. The Commissioner, Tiruchirapalli Corporation, or the decision in The Deputy Inspector General of Police v. S. Govindaraj represents the correct position of law.

Issue-wise Detailed Analysis:

1. Prolonged Suspension Due to Criminal Case Involvement:

The Petitioner, a Village Administrative Officer, was arrested and charged under the Prevention of Corruption Act, 1988, and subsequently placed under suspension by the Revenue Divisional Officer. Despite a representation for revocation of the suspension, the request was denied, leading to the filing of a writ petition. The Petitioner's counsel argued that the prolonged suspension was unjustified and emphasized the fundamental right to a speedy trial. The counsel also cited that the Petitioner is entitled to full salary after 90 days of suspension, suggesting reinstatement to avoid unnecessary payment without work.

2. Conflicting Judgments and Correct Position of Law:

The Single Judge referred the matter to a Larger Bench due to conflicting judgments by two Division Benches on whether prolonged suspension in corruption cases should be revoked. The key judgments in question were:
- C. Balasubramanian v. The Commissioner, Tiruchirapalli Corporation (2011): This case held that a person involved in corruption should not be reinstated merely because of prolonged suspension, emphasizing the need to maintain the purity of administration and public interest.
- The Deputy Inspector General of Police v. S. Govindaraj (2012): This case found that prolonged suspension without progress in the criminal trial was unjustified. The court ordered the revocation of suspension and reinstatement in a non-sensitive post, highlighting the waste of government resources in paying subsistence allowance without extracting work.

Analysis of Arguments and Legal Precedents:

The Petitioner's counsel contended that suspension is not a punishment and should not be stigmatic. They argued that prolonged suspension without trial progress is unfair, referencing various legal precedents and government orders, including:
- G.O. Ms. No. 40 (1996): This order mandates a monthly review of suspension cases.
- Rule 17(6) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules: It allows revocation of suspension at any time by the competent authority.
- Supreme Court Decisions: Several cases were cited to support the argument that prolonged suspension without trial progress is unjust, including Allahabad Bank v. Deepak Kumar Bhola (1997), Union of India v. Rajiv Kumar (2003), and others.

Court's Conclusion:

The court analyzed the two conflicting judgments and concluded that both decisions were correct based on their specific facts and circumstances. It held that:
- C. Balasubramanian's Case: The decision was correct in maintaining suspension in corruption cases to preserve public interest and administrative purity.
- Govindaraj's Case: The decision was justified in revoking prolonged suspension without trial progress to avoid wastage of government resources.

The court emphasized the need for periodic review of suspension orders and suggested that the executive authority should not keep employees under prolonged suspension without proper review. It also highlighted the importance of balancing public interest with the rights of the employee and suggested possible amendments to the rules or legislation to regulate suspension orders.

Final Direction:

The court directed the Registry to list the matters before the appropriate Bench for further hearing, following the analysis and conclusions drawn regarding the conflicting judgments.