D.Shanthi, D/O.A.Duraisamy v. The Deputy Registrar Of

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.07.2017

CORAM:

THE HONOURABLE MR.JUSTICE T.RAJA W.P.(MD)Nos.8543 and 5759 of 2016 and W.M.P.(MD)No.6864 of 2016 in W.P.(MD)No.8543 of 2016 and W.M.P.(MD)No.5173 of 2016 in W.P.(MD)No.5759 of 2016 W.P.(MD)No.8543 of 2016:- D.Shanthi ... Petitioner Vs.

1.The Deputy Registrar of Co-operative Societies, Mannarpuram, Tiruchirapalli - 20.

2.The President, MM 348, Kavandampatti Primary Agricultural Co-operative credit Society Ltd., Tiruchirapalli District. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India seeking for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned proceedings, dated 16.03.2016 of the second respondent and quash the same as illegal and ultra vires and consequently direct the petitioner to join duty as Junior Clerk of the second respondent Society.

For Petitioner : Mr.K.Narasimhan For R1 : Mr.D.Muruganantham Additional Government Pleader For R2 : Mr.T.Vadivelan W.P.(MD)No.5759 of 2016:- Ganapathy, S/o.Sundaram ... Petitioner Vs.

1.The Deputy Registrar of Co-operative Societies, Trichy Circle, Trichy - 20.

2.The President, MM 348, Goudenpatti Primary Agricultural Co-operative Credit Society Ltd., Marungapuri Taluk, Tiruchirapalli District.

3.The Co-operative Sub-Registrar, Marungapuri Field Officer, O/o.The Deputy Registrar of Co-operative Societies, Trichy Circle, Trichy. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India seeking for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order of the second respondent, dated 16.03.2016 and quash the same and consequently, direct the respondents to permit the petitioner to join duty as Secretary In-charge of M.M.348, Goundenpatti Primary Agricultural Co-operative Credit Society Ltd., Marungapuri Taluk, Trichy District.

For Petitioner : Mr.K.Narasimhan For R1 & R3 : Mr.D.Muruganantham Additional Government Pleader For R2 : Mr.D.Shanmugaraja Sethupathi ***** COMMON ORDER The petitioners were placed under suspension by order dated 16.03.2016, pending contemplation of Section 81 enquiry. 2.The learned counsel for the petitioners submitted that the order of suspension is an afterthought and passed with mala fide intention. Since the petitioners while serving as Sales Woman and Secretary In-charge respectively, the Deputy Registrar of Cooperative Societies, Mannarpuram, Trichy, first respondent herein, initiated enquiry against the second respondent Society to enquire into certain irregularities said to have taken place in the second respondent Society.

As per the proceedings issued by the first respondent, the Sub-Registrar/Field Officer, Marungapuri, was appointed as an Enquiry Officer with a direction to submit his report in time. During the course of enquiry, the first respondent issued another letter, dated 04.03.2016, to the President to suspend the petitioners pending enquiry under Section 81 of the Tamil Nadu Co-operative Societies Act. On the basis of the direction issued by the first respondent, the President of the Society, the second respondent herein, has issued proceedings, dated 16.03.

period of five months. When the second respondent has not followed any rules and regulations containing in the By-laws of the Society, he cannot take any decision to punish the petitioners by passing the order of suspension, that too, without convening a meeting and getting approval of the majority of the members elected and as on today, there is not even a single resolution passed by the Board, consisting of elected members to place the petitioners under suspension. Therefore, the impugned order of suspension passed by the second respondent, pursuant to the direction given by the first respondent, is wholly without any merit, hence, the same is liable to be set aside. 3.

It is further submitted that even after completion of more than 1 1⁄4 years from the date of suspension, till date, the said order of suspension has not been reviewed in spite of the representation given for reviewing the same. Therefore, the impugned order is liable to the quashed in the light of the ratio laid down in the case of Ajay Kumar Choudhary vs. Union of India and others, reported in 2015 (3) CTC 119, wherein, the Hon'ble Apex Court has clearly held that prolonged suspension of a Government employee will not only put the Government servant in prejudice, but also cause grave loss to the Department, since the Department has to pay huge subsistence allowance for the prolonged period, without extracting any work.

4.It is also submitted that the second respondent viz., the President of the Society has been removed by order dated 25.03.2015 and the Vice President has taken In-charge of the post of President.

5.The learned counsel appearing for the second respondent/President In-charge submitted that since the order of suspension, till date, has not been reviewed, can be set aside. He has also complained before this Court that the then President had not permitted the petitioners to take over their position to contest the case.

6.When there is no resolution passed by the elected members to place the petitioners under suspension and the order of suspension dated 16.03.2016, has not been till date reviewed, the petitioners cannot be put in prolonged suspension, in view of the decision of the Hon'ble Apex Court in Ajay Kumar Choudhary vs. Union of India and others reported in 2015 (3) CTC 119.

7.It is relevant to extract the following paragraphs of the said judgment.

"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.

Indisputably, 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." 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/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 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 contracting 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 trail 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."

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."

8.In the light of the judgment in Ajay Kumar Choudhary's case (supra), holding the prolonged suspension cannot be continued and considering the fact that till date, no charge memo has been issued against the petitioners, this Court is inclined to set aside the impugned order of suspension and accordingly, the same is set aside. The respondents 1 and 2 are hereby directed to reinstate the petitioners in service.

9.In the result, these Writ Petitions are allowed. No costs. Consequently, connected Miscellaneous Petitions are closed. Sd/- Assistant Registrar(Records) /True copy/ Sub Assistant Registrar To 1.The Deputy Registrar of Co-operative Societies, Trichy Circle, Trichy - 20.

2.The Deputy Registrar of Co-operative Societies, Mannarpuram, Tiruchirapalli - 20.

3.The President, MM 348, Goudenpatti Primary Agricultural Co-operative credit Society Ltd., Marungapuri Taluk, Tiruchirapalli District.

4.The Co-operative Sub-Registrar, Marungapuri Field Officer, O/o.The Deputy Registrar of Co-operative Societies,Trichy Circle,Trichy.

+1cc to M/S.T.VADIVELAN, Advocate SR.No.66886 +1cc to M/S.D.SHANMUGA RAJA SETHUPATHI, Advocate SR.No.66711 +2cc to M/S.K.NARASIMHAN, Advocate SR.Nos.66713&66712 smn2 MAS/KK/SAR1:21.08.2017:6P-9C W.P.(MD) Nos.8543 and 5759 of 2016 20.07.2017