M.Jeyasingh Cruz Angelus, v. The Chief Educational Officer,

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20.12.2016 CORAM :

THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN W.P.(MD)Nos.23371, 17094, 7769, 10221 and 19543 of 2016 and Cont.P(MD)No.1308 of 2016 and connected miscellaneous petitions M.Jeyasingh Cruz Angelus ... Petitioner in all WPs vs.

1)The Chief Educational Officer, Tuticorin District, Tuticorin.

2)The District Educational Officer, Tuticorin, Tuticorin District.

3)The Tuticorin Diocesan Association, Tuticorin, Tuticorin District.

4)The Manager, R.C. Schools, RC Diocese, Tuticorin, Tuticorin District.

5)Manal Matha Higher Secondary School, Rep. by its Correspondent, Sokkenkudieruppu, Tuticorin District.

6)S.Shayaraj Royan, Correspondent, Manal Matha Higher Secondary School, Sokkenkudieruppu, Tuticorin District.

... Respondents 1 to 6 in all WPs 7)The Superintendent of R.C. Schools, Tuticorin District.

... 7th Respondent in WP(MD).19543/2016 and WP(MD).23371/2016 8)T.Gunabalan ...

7th Respondent in WP(MD).7769/2016

Prayer in WP(MD).23371/2016 : Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the impugned Proceedings in Ref.No.2016/309 dated 22.11.2016 issued by the 4th Respondent herein and to quash the same and consequently direct the respondents 3 to 7 herein to re-instate the petitioner as Headmaster in the 5th respondent school as per Section 22(3) of the Tamil Nadu Recognized Private Schools (Regulation) Act 1973 and direct the respondents 3 to 7 to pay full salary from 25.01.2016 till the date of reinstatement as Headmaster in the 5th respondent school.

Prayer in WP(MD).17094/2016 : Writ Petition is filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the impugned proceedings in Ref.No. 2016/173 dated 23.07.2016 issued by the 4th respondent herein and to quash the same and consequently direct the respondents 3 to 5 herein to re-instate the Petitioner as Headmaster in the 5th respondent school as per Section 22(3) of the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 and direct the respondents 3 to 5 to pay full salary from 25.01.2016, till the date of reinstatement as Headmaster in the 5th Respondent school.

Prayer in WP(MD).7769/2016 : Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus calling for the records relating to the Impugned proceedings issued by the 3rd respondent herein Ref.No.2016/59 dated 25.03.2016 and the subsequent proceedings in Ref.No. 2016/60 dated 26.03.2016 quash the same and direct the Respondents 3 and 6 herein to furnish the additional documents marked on the side of the Management during the enquiry on 19.03.2016 and statement of witness of Management and further direct the Respondents 3 & 6 to give permission to examine defence witnesses with assistnace of defence assistant and to pay entire subsistence allowance and reinstating the petitioner as Headmaster in the 5th Respondent school as per section 22(3) of the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973.

Prayer in WP(MD).10221/2016 : Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned proceedings in Ref.No. 2016/96 dated 24.05.2016 issued by the 4th Respondent herein and to quash the same and consequently direct the Respondents 3 to 5 herein to reinstate the Petitioners as Headmaster in the 5th Respondent school as per Section 22(3) of the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 and direct the Respondents 3 to 5 to pay salary from 25.01.2016, till the date of reinstatement as Headmaster in the 5th Respondent school.

Prayer in WP(MD).19543/2016 : Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned proceedings in Ref.No.2016/255 dated 22.09.2016 issued by the 4th Respondent herein and to quash the same and consequently direct the Respondents 3 to 7 herein to re-instate the petitioner as Headmaster in the 5th Respondent school as per Section 22(3) of the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 and direct the Respondents 3 to 7 to pay full salary from 25.01.2016, till the date of reinstatement as Headmaster in the 5th Respondent school. Prayer in CONT P(MD).

1308/2016 : Petition filed under Section 11 of the Contempt of Courts Act this Hon'ble Court may be pleased to punish the Respondents/Contemnors for willful disobedience of the interim order passed in W.M.P(MD) No.12404 of 2016 in W.P (MD) No.17094 of 2016 dated 16.09.2016 Prayer in WMP(MD).12404/2016 in WP(MD).17094/2016 : Petition praying that in the circumstances stated therein and in the affidavit filed therewith the High Court will be pleased to stay the operation of the impugned proceedings in Ref.No.2016/173 dated 23.07.2016 issued by the 4th Respondent herein pending disposal of the Writ Petition.

For Petitioner : Mr.N.Dilip Kumar in WP(MD).23371/2016 For Petitioner : Mr.J.Ashok in WP(MD).17094, 7769, 10221, 19543/2016 & Cont P(MD).1308/2016 For Respondents 1 & 2 : Mr.S.Sathish Kumar Additional Government Pleader in WP(MD).17094,7769,10221,19543/2016 For Respondents 3 to 7 : Mr.G.R.Swaminathan for Mr.V.John Kennedy in WP(MD).233371 & 19543/2016 For Respondents 3 to 5 : Mr.V.John Kennedy in WP(MD).17094/2016 For Respondents 3 to 6 : Mr.V.John Kennedy in WP(MD).7769/2016 For Respondent No.7 : Fr.K.Iganchmuthu in WP(MD).7769/2016 For Respondents 3 to 6 : No Appearance in WP(MD).10221/2016 For Contemnor : Mr.V.John Kennedy in Cont P(MD).1308/16

COMMON ORDER The petitioner, who is a Headmaster in the 5th respondent school, has been placed under suspension on 25.01.2016. Subsequently, the suspension has been periodically extended. The orders extending the suspension periodically are impugned in W.P.(MD)Nos.23371, 17094, 7769, 10221 and 19543 of 2016. Alleging non compliance of the interim stay granted by this Court in W.P(MD)No.17094 of 2016, dated 16.09.2016, Cont.P(MD) No.1308 of 2016 has been filed.

2.According to the respondents, the petitioner has misbehaved with the girls students studying in Standards X, XI, and XII in the 5th respondent school and the suspension is not the punishment. The respondents further submit that the petitioner's behaviour with girls and boys is completely different and his behaviour appears to be Duryodhana with boys students and Dushasana with girls students. In any event, the enquiry has commenced and the charges have got to be proved, only after a detailed enquiry and that the suspension itself is not a punishment warranting interference by this Court. Therefore, it is submitted that W.P.(MD)Nos.23371, 17094, 7769, 10221 and 19543 of 2016 are liable to be dismissed.

It is further submitted that only at the instance of the petitioner, entire proceedings are stalled and under the guise that the respondents have not complied with the orders of this Court in W.P(MD)No.17094 of 2016, dated 16.09.2016, Cont.P(MD)No.1308 of 2016 has been filed. As further proceedings are prevented at the instance of the petitioner, no contempt is made out. 3.As rightly contended by the respondents, suspension is not a punishment and the charges are serious in nature and the same have got to be proved in the enquiry. Therefore, it is not proper for this Court at this juncture, to interfere with the impugned orders and it is for the petitioner to put forth his defence to disprove the charges made against him. 4.

9. 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. Hence, as long as the competency of the authority issuing the suspension order is not challenged, this Court is not inclined to interfere with the order of the suspension.

10. The Apex Court in the case of Union of India and another vs. Ashok Kumar Aggarwal, reported in 2013

(14) Scale 323 has relied on a number decisions and considered the issue relating to the order of suspension. The relevant paragraphs of the judgment (supra) are extracted hereunder:

"7. During suspension, relationship of master and servant continues between the employer and the employee. However, the employee is forbidden to perform his official duties. Thus, suspension order does not put an end to the service. Suspension means the action of debarring for the time being from a function or privilege or temporary'

deprivation of working in the office. In certain cases, suspension may cause stigma even after exoneration in the departmental proceedings or acquittal by the Criminal Court, but it cannot be treated as a punishment even by any stretch of imagination in strict legal sense.(Vide: O.P. Gupta v. Union of India and Ors. MANU/SC/0670/1987: AIR 1987 SC 2257; and Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.

and Anr.

MANU/SC/0225/1999 : AIR 1999 SC 1416).

8. In State of Orissa v. Bimal Kumar Mohanty MANU/SC/0475/1994 : AIR 1994 SC 2296, this Court observed as under:

"... the order of suspension would be passed taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of evidence placed before the appointing authority and on application of the mind by the disciplinary authority.

Appointing authority or disciplinary authority should consider..... and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the

nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law should be laid down in that behalf. In other words, it is to refrain him to avail further opportunity to perpetuate the alleged misconduct or to remove the impression among the members of service that dereliction of duty will pay fruits and the offending employee may get away even pending inquiry without any impediment or to provide an opportunity to the delinquent officer to scuttle the inquiry or investigation to win over the other witnesses or the delinquent having had an opportunity in office to impede the progress of the investigation or inquiry etc. It would be another thing if the action is actuated by mala fide, arbitrarily or for ulterior purpose.

The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The Authority also should keep in mind public interest of the impact of the delinquent's continuation in office while facing departmental inquiry or a trial of a criminal charge.(Emphasis added) (See also: R.P. Kapur v. Union of India and Anr. MANU/SC/0275/1963 : AIR 1964 SC 787; and Balvantrai Ratilal Patel v. State of Maharashtra MANU/SC/0321/1967 : AIR 1968 SC 800)."

9. The power of suspension should not be exercised in an arbitrary manner and without any reasonable ground or as vindictive misuse of power. Suspension should be made only in a case where there is a strong prima facie case against the delinquent employee and the allegations involving moral turpitude, grave misconduct or indiscipline or refusal to carry out the orders of superior authority are there, or there is a strong prima facie case against him, if proved, would ordinarily result in reduction in rank, removal or dismissal from service. The authority should also take into account all the available material as to whether in a given case, it is advisable to allow the delinquent to continue to perform his duties in the office or his

retention in office is likely to hamper or frustrate the inquiry.

10. In view of the above, the law on the issue can be summarised to the effect that suspension order can be passed by the competent authority considering the gravity of the alleged misconduct i.e. serious act of omission or commission and the nature of evidence available. It cannot be actuated by mala fide, arbitrariness, or for ulterior purpose. Effect on public interest due to the employee's continuation in office is also a relevant and determining factor. The facts of each case have to be taken into consideration as no formula of universal application can be laid down in this regard. However, suspension order should be passed only where there is a strong prima facie case against the delinquent, and if the charges stand proved, would ordinarily warrant imposition of major punishment i.e. removal or dismissal from service, or reduction in rank etc.''

11. In Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel and Ors. MANU/SC/4080/2006: (2006) 8 SCC 200, this Court explained:

"18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards hut no standardised formula, universally applicable to all cases, can he evolved. Each case has to he considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material may be struck down. In

other words, when a court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decisionmaking process and not the decision."

12. Long period of suspension does not make the order of suspension invalid. However, in State of H.P. v. B.C. Thakur (1994) SCC (L and S) 835, this Court held that where for any reason it is not possible to proceed with the domestic enquiry the delinquent may not be kept under suspension.

13. There cannot be any doubt that the Rules 1965 are a self contained code and the order of suspension can be examined in the light of the statutory provisions to determine as to whether the suspension order was justified. Undoubtedly, the delinquent cannot be considered to be any better off after the charge sheet has been filed against him in the court on conclusion of the investigation than his position during the investigation of the case itself. (Vide: Union of India and Ors. v. Udai Narain MANU/SC/1061/1998 : (1998) 5 SCC 535).

14. The scope of interference by the Court with the order of suspension has been examined by the Court in a large number of cases, particularly in State of M.P. v. Sardul Singh MANU/SC/0510/1969 : (1970) 1 SCC 108; P.V. Srinivasa Sastry v. Comptroller & Auditor General of India MANU/SC/0207/1993 : (1993) 1 SCC 419; Director General, ESI and Anr. v. T. Abdul Razak MANU/SC/0585/1996 : AIR 1996 SC 2292; Kusheshwar Dubey v.

Bharat Cooking Coal Ltd.

and Ors.

MANU/SC/0246/1988 : AIR 1988 SC 2118; Delhi Cloth General Mills v. Kushan Bhan MANU/SC/0228/1960 : AIR 1960 SC 806; U.P. Rajya krishi Utpadan Mandi Parishad and Ors. v. Sanjeev Rajan MANU/SC/0844/1993 : (1993) Supp. (3) SCC 483; State of Rajasthan v. B.K. Meena and Ors. MANU/SC/0008/1997 : (1996) 6 SCC 417; Secretary to Govt., Prohibition and Excise Department v. L. Srinivasan MANU/SC/1108/1996 : (1996) 3 SCC 157; and Allahabad Bank and Anr. v. Deepak Kumar Bhola MANU/SC/1126/1997 : (1997) 4 SCC 1, wherein it has been observed that even if a criminal trial or enquiry takes a long time, it is ordinarily not open to the court to interfere in case of suspension as it is in the exclusive domain of the competent authority who can

always review its order of suspension being an inherent power conferred upon them by the provisions of Article 21 of the General Clauses Act, 1897 and while exercising such a power, the authority can consider the case of an employee for revoking the suspension order, if satisfied that the criminal case pending would be concluded after an unusual delay for no fault of the employee concerned. Where the charges are baseless, mala fide or vindictive and are framed only to keep the delinquent employee out of job, a case for judicial review is made out. But in a case where no conclusion can be arrived at without examining the entire record in question and in order that the disciplinary proceedings may continue unhindered the court may not interfere.

In case the court comes to the conclusion that the authority is not proceeding expeditiously as it ought to have been and it results in prolongation of sufferings for the delinquent employee, the court may issue directions. The court may, in case the authority fails to furnish proper explanation for delay in conclusion of the enquiry, direct to complete the enquiry within a stipulated period. However, mere delay in conclusion of enquiry or trial can not be a ground for quashing the suspension order, if the charges are grave in nature.

But, whether the employee should or should not continue in his office during the period of enquiry is a matter to be assessed by the disciplinary authority concerned and ordinarily the court should not interfere with the orders of suspension unless they are passed in mala fide and without there being even a prima facie evidence on record connecting the employee with the misconduct in question.

Suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the proceedings unhindered. Suspension is an interim measure in aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his position. More so, at this stage, it is not desirable that the court may find out as which version is true when there are claims and counter claims on factual issues. The court cannot act as if it an appellate forum de hors the powers of judicial review."

11. The Honourable Supreme Court in the recent decision in Ajay Kumar Choudhary vs. Union of India through its Secretary and another, reported in 2015 (3) CTC 119, has held as follows:-

"8. 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.

13. It will be useful to recall that prior to 1973 an accused could be detained for continuous and consecutive periods of 15 days, albeit, after judicial scrutiny and supervision. The Code of Criminal Procedure of 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the investigation relates to any other offence. Drawing support from the observations contained of the Division Bench in Raghubir Singh v.

State of Bihar, 1986 (4) SCC 481, and more so of the Constitution Bench in Antulay, we are spurred to extrapolate the quintessence of the proviso of Section 167(2) of the Code of Criminal Procedure 1973 to moderate Suspension Orders in cases of departmental/disciplinary inquiries also. It seems to us that if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a Memorandum of Charges/Chargesheet has not been served on the suspended person.

right to a speedy trial should also be placed on the same pedestal.

14. We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Cherished is not served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet 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 concerned person 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 recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that 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 stands superseded in view of the stand adopted by us.

15.So far as the facts of the present case are concerned, the Appellant has now been served with a Chargesheet, and, therefore, these directions may not be relevant to him any longer. However, if the Appellant is so advised he may challenge his continued suspension in any manner known to law, and this action of the Respondents will be subject to judicial review."

12. In view of the above, I find no reason to interfere with the order of suspension and the Writ Petition is dismissed.

13. However, it is open to the 2nd respondent to proceed against the petitioner departmentally and the respondents shall also review the suspension order periodically. It is made clear that periodical review of suspension does not amount to setting aside the departmental proceedings, when the employee is under suspension. It is also made clear that both criminal proceedings as well as departmental proceedings can go on simultaneously and it is only in exception cases, where the case is of such a grave nature or involves question of fact or law which are not simple, it would be advisable for the employer to await the decision of the trial court so that the defence of the employee in the criminal case may not be prejudiced.

If Criminal Proceedings are not initiated or concluded within one year from the date of suspension, there is no hindrance on the part of the employer to proceed with the departmental proceedings on day today basis and bring the issue to a logical end within six months and the employ will have to participate in the departmental proceedings and shall not attempt to adopt dilatory tactics.

14. 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 crossexamine 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."

Thus, it is also open to the respondents to issue charge sheet, if so advised and complete the enquiry, if any commenced, as early as possible preferably within a period of six months from the date of receipt of a copy of this order. As far as the payment of subsistence allowance is concerned, it shall be considered and paid, if it is payable in terms of the provisions applicable to the respondents. No costs. Consequently, connected miscellaneous petitions are closed.

5.In view of the above, this Court without rendering any finding on the merits of the cases, directs the respondents to proceed with the enquiry on day-to-day basis, without adjourning the same at any point of time and to pass final orders, as expeditiously as possible. It is for the petitioner to take part in the enquiry and raise all the grounds available to him. 6.At this juncture, learned counsel for the petitioner has submitted that independent enquiry officer may be appointed to proceed with the enquiry, to which, Mr.G.R.Swaminathan, learned counsel for the respondents 3 to 7 replied that only independent officer has been appointed to proceed with the enquiry. The said submission is recorded.

With the above direction and observation, W.P.(MD)Nos.23371, 17094, 7769, 10221 and 19543 of 2016 are disposed of and Cont.P (MD)No.1308 of 2016 is closed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar(Crl.Side) /True Copy/ Sub Assistant Registrar To 1)The Chief Educational Officer, Tuticorin District, Tuticorin.

2)The District Educational Officer, Tuticorin, Tuticorin District.

+1cc to M/S.N.Dilipkumar, Advocate in SR No.82357 +1cc to M/S.V.John Kennedy, Advocate in SR No.82148 +4ccs to the Spl.Govt.Pleader in SR Nos.82964, 82973, 82972 and 82975 W.P.(MD)Nos.23371, 17094, 7769, 10221 and 19543 of 2016 and Cont.P(MD)No.1308 of 2016 and connected miscellaneous petitions 20.12.2016 nbi anr/ss3/23.01.2017/14p/9c