Sankar v. The District Collector
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.03.2021
CORAM
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN W.P.No.6501 of 2021 and W.M.P.No.7077 of 2021 Sankar
...Petitioner
-vs1.The Collector, Collectorate Building, Villupuram District-605 602.
2.The District Revenue Officer, Collectorate Building, Villupuram District-605 602.
3.Tahsildar, Gingee Taluk, Office Building, Villupuram District-604202.
...Respondents
Prayer: Petition is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the suspension order in Ref.No.Na.Ka.Aa.3/2012-2019 dated 25.06.2019 passed by the 3rd respondent and quash the same and consequently, directing the 3rd respondent for reinstatement of his job as Village Assistant.
For Petitioner : Mr.P.Manish For Respondents : Mr.J.Pothiraj Spl. Govt. Pleader
O R D E R
This Writ Petition has been filed, seeking to quash the suspension order made in Ref.No.Na.Ka.Aa.3/2012-2019 dated 25.06.2019 issued by the 3rd respondent, with the consequential direction to 3rd respondent to reinstate the petitioner as Village Assistant.
2. According to the petitioner, he was working as Village Assistant in the Pakkam Village, Gingee Taluk and pursuant to a false complaint lodged by one Vaidvel, she was arrested by Nallan Pillai Petral Police in connection with Crime No.107 of 2019 and remanded to judicial custody. It is further case of the
petitioner that he was suspended from service due to his arrest and remand without any enquiry or notice. Though the 1st respondent had sent a memo to the 3rd respondent on 22.12.2020 for consideration of his reinstatement, his order of suspension has not been revoked. Aggrieved by the action of the 3rd respondent and having left with no other efficacious remedy, the petitioner is before this Court.
3. Heard the learned counsel on either side and perused the material documents available on record.
4. This Court has elaborately dealt with the issue of suspension in W.P.No.13 of 2021 (V.Mohanraj vs. The Secretary and two others), and passed a detailed order on 06.01.2021, holding as under:
"6. Considering the facts and circumstances of this case, this Court is not going to direct the respondents to promote the petitioner to the post of Inspector by including him in the panel and it is for the respondents to consider the same. It is needless to mention that if any departmental proceedings have been commenced or initiated, it is open to the respondents to proceed with the same so as to bring the proceedings to a logical end, dehors pendency of the criminal case, as both criminal proceedings as well as departmental proceedings can go on simultaneously and the criminal case should be proved beyond reasonable doubt by adducing oral and documentary evidence, whereas charges in the departmental proceedings should be established on the basis of preponderance of probabilities.
If Criminal Proceedings are not initiated or concluded within one year from the date of FIR, there is no hindrance on the part of the employer to proceed with the departmental proceedings on day to-day basis and bring the issue to a logical end at the earliest point of time and the employee will have to participate in the departmental proceedings and shall not attempt to adopt dilatory tactics.
7. In this regard, the Hon'ble Supreme Court in the case of Stanzen Toyotetsu India Private Limited vs. Girish v. and others, reported in (2014) 3 SCC 636, has clearly laid down a dictum as under: "19. In the circumstances and taking into consideration all aspects mentioned above as also keeping in view the fact that all the three Courts below have exercised their discretion in favour of staying the on-going disciplinary proceedings, we do not
consider it fit to vacate the said order straightaway. Interests of justice would, in our opinion, be sufficiently served if we direct the Court dealing with the criminal charges against the respondents to conclude the proceedings as expeditiously as possible but in any case within a period of one year from the date of this order. We hope and trust that the Trial Court will take effective steps to ensure that the witnesses are served, appear and are examined. The Court may for that purpose adjourn the case for no more than a fortnight every time an adjournment is necessary. We also expect the accused in the criminal case to co-operate with the trial Court for an early completion of the proceedings.
We say so because experience has shown that trials often linger on for a long time on account of nonavailability of the defense lawyers to cross-examine the witnesses or on account of adjournments sought by them on the flimsiest of the grounds. All that needs to be avoided. In case, however, the trial is not completed within the period of one year from the date of this order, despite the steps which the Trial Court has been directed to take the disciplinary proceedings initiated against the respondents shall be resumed and concluded by the Inquiry Officer concerned.
The impugned orders shall in that case stand vacated upon expiry of the period of one year from the date of the order.
20. In the result, we allow these appeals but only in part and to the extent indicated above. The parties are left to bear their own costs."
8. For the purpose of brevity, this Court makes it very clear that if any criminal proceedings have been initiated after commencement of the departmental proceedings, the one year time limit mentioned supra will not apply to those cases and the departmental proceedings shall go on uninterruptedly. Invariably, the offenders, who have committed grave offences, are being acquitted on the ground of benefit of doubt, owing to missing link in the chain of events and are trying to get back the entire backwages and for those persons, employment itself is a lottery.
9. In the present case on hand, even according to the petitioner, a charge memo has been issued as early as on 18.12.2015 and in case any departmental proceedings had already commenced, the same shall be proceeded on a day to-day basis without adjourning the matter beyond seven working days at any point of time and brought to a logical conclusion at the earliest. The petitioner shall co-operate for early attainment of the proceedings.
10. With the above observation, this writ petition is disposed of. No costs."
5. The order of suspension is not a punishment and the relationship between the employer and the employee subsists even during the period of suspension. When there is master and servant relationship, the suspension can be effected by the employer and it cannot be questioned except on certain grounds like competence of the Authority issuing the said order, want of jurisdiction, contrary to the Rules, etc. As long as the competency of the authority issuing the suspension order is not challenged, this Court cannot interfere with the order of the suspension.
6. Insofar as the present case on hand is concerned, the relief sought for by the petitioner, that the suspension order needs to be interfered with, cannot be blindly granted, in the absence of any prima facie case made to that extent. It is for the respondent to review the suspension periodically after the initial waiting period of six months, depending upon the circumstances prevalent, taking note of the judgment of the Hon'ble Supreme Court in Ajay Kumar Choudhary vs. Union of India through its Secretary and another, reported in 2015 (7) SCC 291, and to consider his reinstatement in a non sensitive post, provided there are no legal impediments, as tax payers money should not be wasted in the form of payment of subsistence allowance without extracting any work. The 3rd respondent, while taking a decision, shall bear in mind the judgments of the Apex Court (supra) and this Court dated 06.01.2021 made in W.P.No.13 of 2021 in V.Mohanraj case, (cited supra) especially in paragraph Nos.6 & 9.
7. It is made clear that the enquiry should not be stalled, citing the reason of non availability of documents. If the documents are taken by the DVAC or other Departments or filed before the Court, certified copies of those documents can be obtained by the Department and in the event of any such request made, other Departments are bound to furnish the same, in order to enable the concerned Department to proceed with the enquiry
against the delinquent and DVAC or other Departments should not be a party for non-conduct of enquiry.
With the above observation and direction, this writ petition is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed.
Sd/- Assistant Registrar(CS VII) //True Copy// Sub Assistant Registrar ar To:
1.The Collector, Collectorate Building, Villupuram District-605 602.
2.The District Revenue Officer, Collectorate Building, Villupuram District-605 602.
3.Tahsildar, Gingee Taluk, Office Building, Villupuram District-604202.
+1cc to the Government Pleader, S.R.No.16899 W.P.No.6501 of 2021 SR II(CO) KKV/29/06/2021