T.Rajamani, v. The Divisional Engineer,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.11.2016
CORAM:
THE HONOURABLE MR. JUSTICE R.SUBBIAH W.P.No.5341 of 2016 and W.M.P.No.4654 of 2016 T.Rajamani ..
Petitioner vs.
1.The Divisional Engineer, Highways, Construction & Maintenance, Tiruvannamalai.
2.The Inspector of Police, Mei Chengam Police Station, Tiruvannamalai District.
..
Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari calling for the records of the first respondent in proceedings in Se.Mu.Ka.No.900/2015/Kamukkam dated 23.10.2015 and quash the same.
For Petitioner :
Mr.N.Suresh For Respondents :
Mr.K.Dhananjayan, Special Government Pleader
O R D E R
This Writ Petition has been filed praying for issuance of a Writ of Certiorari to quash the proceedings of the first respondent in Se.Mu.Ka.No.900/2015/Kamukkam dated 23.10.2015.
2. The petitioner was working as "Salai Paniyalar" employed in Highways Department in Tiruvannamalai under the control of the first respondent. On 22.10.2015, the second respondent registered an F.I.R against the petitioner and others, as if they had involved in a road roko for demanding justice for the death of one Mr.Ramamoorthy on 21.10.2015 in Pondicherry and therefore, the petitioner was arrested on 22.10.2015 and he was
remanded to judicial custody for 5 days. Since the petitioner was implicated in a criminal case, the first respondent placed the petitioner under suspension, vide impugned order dated 23.10.2015. The petitioner would contend that so far no disciplinary proceeding is initiated against him and the currency of suspension is allowed to continue beyond 3 months and memorandum of charges or charge sheet is also not served on him. The petitioner, based on the recent judgment of the Hon'ble Supreme Court of India in Ajay Kumar Choudhary v. Union of India and Another [(2015) 7 SCC 291], prayed to the respondent for revocation of the order of suspension by submitting a representation dated 22.01.2016 and since no response was forthcoming, came forward with this writ petition.
3. When the matter is taken up for consideration, Mr.N.Suresh, learned counsel appearing for the petitioner placed reliance upon a recent decision passed by this Court in W.P. (MD).No.18326 of 2015 dated 01.08.2016 [G.Chelliah v. The Principal Secretary -cum-Commissioner of Commercial Taxes, Chennai-5], wherein a learned Single Judge of this Court by placing reliance on the judgment of the Hon'ble Supreme Court in Ajay Kumar Choudhary v. Union of India [(2015) 7 SCC 291], has directed the respondent therein to revoke the order of suspension and post the petitioner therein in any non-sensitive post where the Department feels that the petitioner therein can be accommodated. Therefore, learned counsel appearing for the petitioner prays for similar orders.
4. Heard the submissions of Mr.K.Dhananjayan, learned Special Government Pleader appearing for the respondents and also perused the entire materials available on record.
5. It is relevant to extract the following paras of the judgment in Ajay Kumar Choudhary v. Union of India [(2015) 7 SCC 291]:
"8.The learned Senior Counsel for the appellant, however, has rightly relied on a series of judgments of this Court, including O.P.Gupta Vs. Union of India, (1987) 4 SCC : 1987 SCC (L&S) 400 : (1987)5 ATC 14, where this Court has enunciated that the suspension of an employee is injurious to his interests and must not be continued for an unreasonably long period; that, therefore, an order of suspension should not be rightly passed.
9. Our attention has also been drawn to K.Sukhendar Reddy Vs. State of A.P, (1999) 6 SCC 257 : 1999 SCC (L&S) 1088, which is topical in that it castigates selective suspension perpetuated
indefinitely in circumstances where other involved persons had not been subjected to any scrutiny. Reliance on this decision is in the backdrop of the admitted facts that all the persons who have been privy to the making of the office notes have not been proceeded against departmentally.
....
11. Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature.
Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the memorandum of charges, and eventually culminate after even longer delay.
12. Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment in his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is, to determine his innocence or iniquity. Much too often this has now become an accompaniment to retirement.
Indutiably, the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the accused. But we must remember that both these factors are legal grounds norms, are inextricable tenets of Common Law Jurisprudence, antedating even the Magna Carta of 1215, which assures that _ We will sell to no man, we will not deny or defer to any man either justice or right.? In similar vein the Sixth Amendment to the Constitution of the United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial.
13. Article 12 of the Universal Declaration of
Human Rights, 1948 assures that:
"12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.
Everyone has the right to the protection of the law against such interference or attacks.?
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21. We, therefore, direct that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employee; if the memorandum of charges/charge sheet is served, a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence.
We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time- limits to their duration. However the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance superseded in view of the stand adopted by us."
In the above cited judgment, the Hon'ble Supreme Court has made it clear that the currency of a suspension order should not extend beyond three months if, within this period, the memorandum of charges/charge-sheet is not served on the delinquent officer/employee; if the memorandum of charges/charge sheet is served, a reasoned order must be passed for the extension of suspension. Further, the Principal Secretary to Government also issued Letter No.13519/N/2015-1, dated
23.07.2015, to all Principal Secretaries to Government of all the Departments of Secretariat and all Heads of Departments to follow the directions issued by the Hon'ble Supreme Court of India on the limitations relating to the period of suspension, in letter and spirit. Even after that, the respondents had failed to act on their own directives. Further from the dictum laid down in the above referred judgment, if the charge sheet is not filed within a period of three months, a reasoned order should be passed for extension of the suspension. In the instant case, charge sheet was not filed within three months from the date of order of suspension and the respondent has also not passed any reasoned order for extension of the suspension.
6. Hence, in view of the dictum laid down by the Hon'ble Supreme Court in the above cited judgment, this Writ Petition is allowed and the impugned order passed by the first respondent in proceedings in Se.Mu.Ka.No.900/2015/Kamukkam dated 23.10.2015 is set aside and the respondents are directed to post the petitioner in any non-sensitive post where the department feels that the petitioner can be accommodated within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.
Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar jvm To 1.The Divisional Engineer, Highways, Construction & Maintenance, Tiruvannamalai.
2.The Inspector of Police, Mei Chengam Police Station, Tiruvannamalai District.
+1cc to Mr.N. Suresh, Advocate, S.R.No.66906 +1cc to the Government Pleader, S.R.No.66661 kji(CO) md(30/11/2016) W.P.No.5341 of 2016