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Case Number

W.A 59 and 336 of 1982

Attorney(S)

Mr. K. Venkateswara Rao for Applt and the Advocate General assisted by Govt. Pleader for Respts. No. 1 in W.A 59/82.
Mr. R. Muthukumaraswami, for Respt, 2 in W.A 59/82.
Mr. R. Muthukumaraswami, for Applt., in W.A 336/82.
Mr. S. Ramalirigam, and Advocate General assisted by Govt. Pleader for Respts., in W.A 336/82.

Judges

Ramanujam
Sengottuvelan, JJ.

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Smart Summary

Structured Summary of the Opinion (Ramauujam, J.)

Factual and Procedural Background

The two matters were heard together because they were interconnected and raised the same points. Mohammed Khan (petitioner in W.P. No. 9704 of 1981) was functioning as Manager in the Madurai City Municipal Corporation from October 1976 and was in charge of the stationery department. Pappiah (petitioner in W.P. No. 8641 of 1981) was the Chief Accountant and had been in charge of the stationery department as manager for one day in the absence of Mohammed Khan.

Allegations of malfeasance and misfeasance relating to transactions in the stationery department in 1976 came to light in 1979. By orders dated 2 July 1979 both petitioners were suspended pending an enquiry into alleged misconduct. The suspension orders stated that an enquiry would be conducted and, in the interests of administration, the officers should be suspended.

Each petitioner challenged his suspension by filing a writ petition. Mohammed Khan's writ (W.P. No. 9704 of 1981) was dismissed by Mohan, J. (order dated 20 January 1982) with a direction to the police to file the charge-sheet within three months. Pappiah's writ (W.P. No. 8641 of 1981) was allowed by Padmanabhan, J. (order dated 18 June 1982) who quashed the suspension. The two consequent writ appeals are W.A. No. 59 of 1982 (against dismissal of Khan's writ) and W.A. No. 336 of 1982 (against Padmanabhan, J.'s order allowing Pappiah's writ).

The Commissioner, Corporation of Madurai, in counter-affidavits stated that an internal probe and report revealed serious irregularities and an alleged loss of Rs. 1,35,496.56 to the Corporation. The matter was reported to the police and was under investigation; accordingly, the petitioners were kept under suspension pending enquiry and criminal investigation.

At the time of the Division Bench's hearing, more than three years had passed since the suspension orders of 2 July 1979 and no charge-sheet had been filed in the criminal proceedings.

Legal Issues Presented

Whether the Government Orders (G.O.Ms. No. 211 Personnel & Administrative Reforms (Personnel M), dated 27 February 1980 and G.O.Ms No. 1989 R.D. & L.A., dated 24 December 1980) which prescribe time-limits for suspension (three months) apply to the petitioners or otherwise constrain indefinite suspension.
Whether the continued suspension of the petitioners for an extended period (about three years) pending police investigation and the non-filing of a charge-sheet justifies quashing the suspension orders.
Whether quashing the orders of suspension would preclude the Corporation from later instituting departmental or criminal proceedings or from re-imposing suspension if facts warrant.

Arguments of the Parties

Petitioners' Arguments (Mohammed Khan and Pappiah)

They had been kept under suspension indefinitely without any indication of finality; no charges had been framed despite suspension since 2 July 1979; hence the suspension orders were liable to be quashed.
G.O.Ms No. 211 (27 Feb 1980) prescribed a three-month normal duration for suspension pending enquiry and required restoration to duty if enquiry is not completed; G.O.Ms No. 1989 R.D. & L.A. Dept (24 Dec 1980) applied the principle to Madurai Corporation; since three months had elapsed by 2 Oct 1979, petitioners should be restored to duty with full wages for the period beyond that date.
They had sent representations to the State Government to set aside suspensions; the Government had revoked suspension in the case of one Doraiswami (similarly placed), and the failure to revoke theirs amounted to hostile discrimination.
They denied committing any illegality or irregularity in the stationery department and contended the suspension orders did not indicate how they were involved in the irregularities.
Their continued suspension for more than two years (and ultimately about three years) was inordinate and unjustified.

Respondent's / Corporation's Arguments (Commissioner, Corporation of Madurai)

Allegations of misconduct arising in 1979 led to deputing the Accounts Officer to probe the stationery department; his report revealed serious irregularities and lapses causing an alleged loss of Rs. 1,35,496.56 to the Corporation.
The matter was reported to the police, who were investigating and had recorded a first information report; due to the grave nature of allegations the petitioners were kept under suspension pending enquiry and criminal investigation.
The Government Orders (G.O.s) fixing time-limits for suspension do not apply to Corporation servants against whom criminal proceedings have been initiated, so the petitioners could not rely on those G.O.s to invalidate suspensions.
Doraiswami (whose suspension had been revoked by the Government) was not similarly placed—he was functioning as Commissioner of another Municipality at the time—so differential treatment was explainable.
Delay in framing charges and in continuing suspension was attributable to prolonged police investigation involving voluminous records; therefore delay could not be avoided.

Counsel Arguments in the Appeals

Counsel for the appellant in W.A. No. 59 of 1982 (D.S. Md Khan v. Secretary to Govt. R. & L.A. Dept. and another) questioned the validity of Mohan, J.'s order dismissing the writ and contended that Padmanabhan, J.'s order was the correct view.
The Advocate General appearing for the appellants in W.A. No. 336 of 1982 questioned the correctness of Padmanabhan, J.'s order and contended that the view taken by Mohan, J. was the proper one.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
K. Balan v. The Commissioner of Police, Egmore, Madras	Support for the proposition that an employer (or authority) has no justification to keep an employee under suspension indefinitely without the employee knowing his future when no charge-sheet has been filed.	The opinion records that Padmanabhan, J. relied on this Division Bench judgment to support his view that the Corporation had no justification to keep the petitioner (Pappiah) under indefinite suspension; the present Court noted that reliance in discussing the reasonableness of continued suspension without filing a charge-sheet.

Court's Reasoning and Analysis

The Division Bench proceeded in stepwise fashion, applying the factual record and relevant legal principles set out in the materials before it:

The Bench acknowledged that the Government Orders fixing time-limits for suspension (three months, with limited extensions) cannot strictly apply to Corporation servants against whom criminal proceedings have been initiated, because the G.O. itself stated the time-limit does not apply in such cases.
Even accepting that the G.O.s do not strictly bind the present cases, the Court examined whether the petitioners could nonetheless be kept under suspension indefinitely while awaiting framing of departmental charges or filing of a charge-sheet by the police. The Court emphasized that suspension is penal in nature and that, as a matter of reasonableness, indefinite suspension cannot be justified.
The Court found that a period of about three years (from 2 July 1979 to the date of the hearing) without filing a charge-sheet could not be regarded as reasonable. The Court rejected the Corporation's explanation that the charge-sheet was not filed only because of interim orders in W.A. 59 of 1982; the Court observed that, if the police were ready to file the charge-sheet, the proper course would have been to apply to the Court to vacate the interim order or to seek permission to file the charge-sheet notwithstanding the appeal, rather than leave non-filing as an unexplained delay.
The Court regarded the unexplained or unsatisfactorily explained delay in filing the charge-sheet and the prolonged suspension as a compelling factor militating in favour of quashing the suspension orders (as Padmanabhan, J. had done). At the same time, the Court clarified that quashing the suspension does not bar the Corporation from later prosecuting the petitioners in criminal court or taking departmental action; and if, upon filing a charge-sheet or framing departmental charges, the facts warrant, the Corporation would be free to place the officers under suspension again.
Applying these considerations, the Division Bench concluded that continued suspension in the specific circumstances of these cases was not justified and that the orders of suspension should be quashed. The Court made clear that its decision struck at the continued suspension rather than at the merits of any substantive departmental or criminal allegations.

Holding and Implications

Core Ruling:

W.A. 59 of 1982 — ALLOWED; W.A. 336 of 1982 — DISMISSED.

Direct consequences and implications (as stated in the opinion):

The orders of suspension passed against the petitioners were quashed (the opinion makes clear that quashing the suspension will not prevent the Corporation from prosecuting the petitioners in criminal court or taking departmental action).
Should a charge-sheet be filed before a criminal court or charges framed in departmental proceedings, the Corporation remains at liberty to place the petitioners under suspension again if the facts and circumstances warrant such action.
There will be no order as to costs.

The opinion did not purport to lay down any broader precedent beyond its application to the facts before the Court; it confined itself to the consequences on the parties and expressly preserved the Corporation's rights to future departmental or criminal proceedings.

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D.S Mohammed Khan v. The Secretary To Government, Rural Development And Local Administration Dept., Madras 9 And Another

Ramauujam, J.

1. Since both the matters are interconnected and the points arising in both the cases are the same, they are dealt with together.

2. W.A No. 59 of 1982 is against the dismissal of W.P No. 9704 of 1981 filed by one Mohammed Khan against the order of suspension pending enquiry by Mohan, J. and W.A No. 336 of 1982 is against the order of Padmanabhan, J. in W.P 8641 of 1981 allowing the writ petition filed by one Pappiah against whom a similar order of suspension has been passed by the Commissioner, Corporation of Madurai.

3. Thiru Mohammed Khan, the petitioner in W.P No. 9704 of 1981 was functioning as Manager, in the Madurai City Municipal Corporation from October, 1976. He was in charge of the Stationery department and Thiru Pappiah, the petitioner in W.P 8641 of 1981 was the Chief Accountant who is said to have been in charge of the stationery department as manager for one day in the absence of Thiru Mohammed Khan. On the ground that certain acts of malfeasance and misfeasance occurred in the year 1976 which came to light in the year 1979, by an order, dated 2nd July, 1979, both of them had been suspended pending enquiry into allegations of misconduct in the stationery department. The order of suspension proceed on the basis that certain allegations had been made with reference to the transactions in the stationery department when both of them functioned as managers, that an enquiry into the same is going to be conducted and that in the interests of administration they should be placed under suspension. The said orders of suspension have been questioned by each of them in their respective writ petitions. According to the petitioners (1) they had been kept under suspension indefinitely without any indication of its finality, and though the suspension order was passed on 2nd July, 1979 no charges had been framed and, therefore, the orders of suspension are liable to be quashed; and (2) as per G.O.Ms No. 211, Personnel and Administrative Reform (Personnel M) Department, dated 27th February, 1980, the time-limit of three months has been fixed as the normal duration of order of suspension and that no person can be kept under suspension pending enquiry beyond three months and in cases where the contem plated enquiry is not completed within the said period officers should be restored to duty, that the principle contained in the said G.O has been applied to persons on the establishment of the Corporation of Madurai in G.O.Ms 1988 R.D and L.A department, dated 24th December, 1980 and as three months have elapsed by 2nd October, 1979, the petitioners should be restored to duty with full wages for the period beyond 2nd October, 1979 on the ground that the order of suspension imposed on both of them should be deemed to have been revoked in view of the said two Government Orders; (3) that the petitioners sent representations to the State Government on various dates for setting aside the orders of suspension but there is no response from the Government though the Government has entertained similar representations from one Duraiswami who had also functioned as Manager in Madurai Corporation during the year 1976 and who had been earlier suspended pending enquiry, and on his representation the order of suspension has been revoked by the Government and the inaction on the part of the Government with reference to their representations are concerned should be taken to amount to a hostile discrimination; (4) that they have not committed any illegality or irregularity when they were functioning in the stationery department and as such the orders of suspension which do not indicate how the petitioners are involved in the irregularities subsequently found in the stationery department, and (5) whatever be the allegations of misconduct or the charges framed in relation thereto, the continuous suspension of the petitioners for a period of more than two years, cannot at all be justified.

4. In the counter-affidavit filed in both the writ petitions, the Commissioner, Corporation of Madurai, had taken up the stand that in the year 1979 certain allegations of misconduct came to be made against the petitioners and Doraiswami and others who were working in the stationery department, that on the basis of the said allegations the Accounts Officer was deputed to probe into the aflairs of the said department, that he had submitted a report bringing to light serious irregularities and lapses on the part of the petitioners and others in passing the requirement of papers for printing registers required for the Corporation and issue of papers thereby causing a loss of Rs. 1,35,496.56, to the Corporation. Thereafter the matter was reported to the police who are investigating into the matter. Having regard to the fact that the allegations were of grave nature, the petitioners and others were kept under suspension pending enquiry into the said allegations and the police authorities had already started their investigation. He has also stated that the time-limit fixed in G.O.Ms No. 211 Personnel and Administrative Reforms (Personnel) department, dated 27th February, 1980 and G.O.Ms No. 1980 R.D & L.A department, dated 24th December, 1980 will not apply to the case of the petitioners as criminal complaint has been filed against them and the matter is under investigation, and therefore, the petitioners cannot seek the aid of the said Government Orders for invalidating the orders of suspension. So far as the petitioner's allegation that similar order of suspension passed against one Duraiswami had been set aside by the Government and that similar protection had not been given to the petitioners, the Commissioner, Corporation of Madurai has stated in his counter-affiidavit that Dorai-swami was not functioning in the Madurai Corporation at the time of suspension but was functioning as the Commissioner of some other Municipality and ‘therefore, it might have been felt by the Government that even without his suspension the investigation will not be handicapped. As regards the contention of the petitioners that they are not responsible for any loss of Corporation funds or for misappropriation of the same and therefore the orders of suspension cannot be legally sustained, the counter-affiidavit proceeds to state that the extent to which they are involved in the misconduct is being investigated by the police and it can be ascertained only after the trial and at this stage one cannot presume that the petitioners are not involved in the matter. As regards the petitioners' complaint of long and inordinate delay in framing the charges and the continued suspension, the contention of the Corporation is that the delay is due to the prolonged investigation by the police, that the case involves going through voluminous records and determine the extent of involvement of the petitioners in the various transactions and, therefore, the delay cannot be avoided.

5. The writ petition filed by Mohammed Khan came to be heard by Mohan, J. who by his order, dated 20th January, 1982, held that the time-limit fixed in the two Government Orders referred to by the petitioners cannot apply and as the petitioner is suspected to have misappropriated the funds of the Municipal Corporation and actually a police complaint has been preferred and a first information report has been recorded and that as the charge sheet is about to be filed, it is not desirable to direct restoration of the petitionrs to office, revoking the order of suspension and that instead, without unduly prolonging the agonising situation in which the petitioner is placed, he directed the police to file the charge sheet within three months from the date of the order. In that view, he dismissed the writ petition with the above directions.

6. The other writ petition filed by Pappiah came to be heard by Padmanabhan, J. who, by his order, dated 18th June, 1982, held that the order of suspension had been issued on the contemplation of a departmental enquiry and, therefore, the Corporation cannot take advantage of the fact that they had made a complaint to the police, that even if the order of suspension is taken to be based on a criminal complaint, the charge-sheet should have been filed within a reasonable time and that it is not open to the Corporation to keep the petitioner under suspension beyond three months under the pretext of pending criminal investigation. It was also held that the Government having set aside a similar order of suspension passed against one Duraiswami who is similarly placed as the petitioner, the same treatment should be given to the petitioners also and the orders of suspension against them should have also been vacated. The learned Judge relied on a judgment of a Division Bench of this Court in K. Balan v. The Commissioner of Police, Egmore, Madras,1 in support of his view that the Corporation had no justification to keep the petitioner under suspension indefinitely without his knowing what his future is as no charge-sheet has been filed so far and no further indulgence should he given to the Corporation by continuing the suspension till the filing of the charge-sheet. But, the learned Judge has, however, stated—

“I make it clear that my quashing the order of suspension will not exonerate the petitioner in the event of the department deciding to prosecute the petitioner in a criminal court or taking any departmental action. I further make it clear that once the respondent reaches a definite stage as to the action to be taken against the petitioner, my order in this writ petition will not prevent them from placing the petitioner under suspension if the facts and circumstances so warrant”

7. The learned counsel appearing for the appellant in W.A No. 59 of 1982, D.S Md Khan v. Secretary to Govt. R and L.A Dept and another, questions the validity of the order passed by Mohan, J. dismissing the writ petition and contends that the order passed by Padmanabhan, J. is the proper one in the circumstances of the case,. The learned Advocate General appearing for the appellants in W.A No. 336 of 1982, on the other hand questions the correctness of the order of Padmanabhan, J. and contends that in the circumstances of the case the view taken by Mohan, J is the proper one.

8. It cannot be disputed that more than three years have passed as on date since the order of suspension was passed on 2nd July, 1979. Tili now no departmental proceedings have been initiated before the Criminal Court by filing a charge-sheet. No doubt it is now said by the learned counsel appearing for the Corporation that the charge-sheet is ready to be filed but it could not be filed in view of the interim orders passed in W.A 59 of 1982, granting interim suspension of the order of Mohan, J. which directed the police to file the charge-sheet within three months, and, therefore, the non-filing of the charge-sheet after Mohan, J. dismissed the writ petition on 20th January, 1982 cannot amount to a delav on the part of the police and in fact the police is ready to file the charge-sheet within a week or two. The question is whether on the facts and circumstances of this case the continued suspension of the petitioners in the writ petitions should be taken to be justified.

9. It is no doubt true the Government, Orders referred to above cannot strictly be applied to cases of Corporation servants against whom criminal proceedings have been initiated, for, in paragraph 8 in G.O.Ms No. 1989 R.D and L.A Department, dated 24th December, 1980 it is stated that the time-limit ordered in the above paragraphs will not be applicable to the cases of Corporation servants against whom criminal proceedings have been initiated. The question is even if the said two Government Orders do not apply to the cases of the petitioners, whether they can be kept under suspension indefinitely without any time-limit awaiting framing of the charges for the departmental enquiry of filing of the charge-sheet by the Police. Even assuming that the investigation by the police takes a longer time than the time taken at the departmental enquiry to frame charges, as the police may need a longer time for investigating into the matter, three years period taken by the police in this case cannot be said to be reasonable. The order of suspension is penal in nature and it is for this reason the Government in the above two orders have directed that the cases of suspension have to be reviewed within a period of three months and continue the suspension beyond three months only if the circumstances warrant and that too for another period of three months. The submission of the Corporation that the police was ready to file the charge sheet after the direction given by Mohan, J. but it could not be filed because of the interim directions made by this Court in W.A 59 of 1982 cannot be accepted as a proper explanation for not filing the charge-sheet. The Corporation should have moved the Court to vacate the interim order or seek permission to file the charge-sheet without prejudice to the pendency of the the writ appeal. Not having taken any such steps, the police cannot take that as an excuse for not filing the charge-sheet even though they were ready to file the same. Whatever be the reason for non-filing of the charge-sheet for nearly three years, that is a factor that should be taken by this Court for quashing the order of suspension as has been done by Padmanabhan, J. However, we have to make it clear that the quashing of orders of suspension passed against the petitioners in the writ petitions will not stand in the way of the Corporation of Madurai taking any departmental action or prosecuting them in any criminal court and that once the charge-sheet is filed before the criminal court or the charges framed in departmental action, the Corporation is at liberty to place them under suspension if the facts and circumstances so warrant.

10. In this view, we allow W.A 59 of 1982, and dismiss W.A 336 of 1982. There will however be no order as to costs.

VCS.

D.S Mohammed Khan v. The Secretary To Gov...