2020 (9) TMI 1301 - HC - Indian Laws

Suspension Order - Demand of illegal gratification to fix the change over switch - HELD THAT - The undisputed position in this case is that criminal proceedings were initiated against the Respondent on the basis of the trap laid by the Vigilance and Anti-Corruption Department. Such proceedings are admittedly pending before the Chief Judicial Magistrate Thiruvannamalai in S.C. No. 53 of 2018. Therefore this is clearly a case wherein a charge sheet was filed and the criminal process is underway. The law relating to suspension orders and their revocation should be examined against this background. On perusal of the Full Bench judgment in S. RAVI AND ORS. VERSUS THE DISTRICT COLLECTOR AND ORS. 2015 (3) TMI 1428 - MADRAS HIGH COURT it is clear that the Court did not direct the revocation of suspension if the suspension period exceeds a specific duration. On perusal of the judgment in Ajay Kumar Choudhary 2015 (6) TMI 592 - SUPREME COURT 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. 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 R.P. Kapur v. Union of India 1963 (11) TMI 87 - SUPREME COURT by a Five Judge Bench upholding suspension pending enquiry subject to payment of subsistence allowance as per service conditions and that in UNION OF INDIA ANR. VERSUS ASHOK KUMAR AGGARWAL 2013 (11) TMI 1658 - SUPREME COURT wherein it was held that the court does not sit in appeal and that such orders would be interfered with only if the charges are patently baseless mala fide or vindictive would continue to hold the field. Appeal allowed in part insofar as it directs the Appellants to revoke the suspension and to post the Respondent in a non-sensitive post.

Summary

Issues Involved:
1. Legality of prolonged suspension.
2. Applicability of the Ajay Kumar Choudhary judgment.
3. Validity of the suspension in the context of pending criminal proceedings.
4. Directions for the conclusion of criminal proceedings.

Detailed Analysis:

1. Legality of Prolonged Suspension:

The Respondent, a Junior Engineer, was placed under deemed suspension on 13.01.2017 following an arrest for demanding illegal gratification. The suspension continued for over three years, prompting the Respondent to challenge it. The court examined the Full Bench judgment in *S. Ravi and Others v. District Collector and Others*, which highlighted that prolonged suspension without review is improper. The judgment suggested the need for legislation to regulate suspension periods. It emphasized that keeping a government servant under indefinite suspension without periodic review violates the right to public employment guaranteed under Article 16(1) of the Constitution of India.

2. Applicability of the Ajay Kumar Choudhary Judgment:

The Respondent's counsel relied on *Ajay Kumar Choudhary v. Union of India*, where the Supreme Court held that suspension should not extend beyond three months if the charge sheet is not served. If served, a reasoned order must justify the extension. The judgment aimed to safeguard human dignity and ensure a speedy trial. However, the court noted that in *Ajay Kumar Choudhary*, the appellant had been served with a charge sheet before the judgment, and the suspension was not set aside despite exceeding three months. The court in *Director General of Police v. T. Kamarajan* clarified that *Ajay Kumar Choudhary* does not establish an absolute rule against suspensions extending beyond three months, especially when a charge sheet has been filed.

3. Validity of Suspension in the Context of Pending Criminal Proceedings:

The principal question was whether the suspension should be revoked given the pending criminal proceedings. The court acknowledged that the Respondent was being prosecuted for corruption, and the charge sheet had been filed. The law on suspension, as laid down in *R.P. Kapur v. Union of India* and *Union of India v. Ashok Kumar Aggarwal*, supports suspension pending inquiry, provided subsistence allowance is paid. The court held that there is no absolute rule on the duration of suspension, especially in cases involving pending criminal proceedings. The decision to suspend should consider the nature of charges and the ongoing criminal process.

4. Directions for the Conclusion of Criminal Proceedings:

The learned single Judge had directed the Chief Judicial Magistrate to conclude the criminal proceedings within four months. The court found this direction justified and did not warrant interference. However, the court disagreed with the revocation of the suspension and the directive to post the Respondent in a non-sensitive post. Given the Respondent's position as an Assistant Engineer, finding a non-sensitive post was deemed impractical.

Conclusion:

The court allowed the appeal in part, setting aside the revocation of suspension and the directive to post the Respondent in a non-sensitive post. The court affirmed the direction to the Chief Judicial Magistrate to conclude the criminal proceedings within four months from the date of receipt of the judgment. The writ appeal was disposed of on these terms, and the connected miscellaneous petition was closed with no costs.