2022 (3) TMI 1543 - HC - Indian Laws

Court clarifies suspension rules, emphasizes case-by-case assessment.

P. Kannan, D. Sekar Versus The Commissioner for Municipal Administration, The Regional Director of Municipal Administration, The Commissioner Ariyalur Municipality, The Assistant Director of Survey and Land Records

The court held that the Supreme Court's judgment in Ajay Kumar Choudhary does not establish an absolute rule that suspension cannot exceed three months ... Prolonged suspension of an employee - applicability of the case of Ajay Kumar Choudhary [2015 (6) TMI 592 - SUPREME COURT] - Section 167(2) of the Code of Criminal Procedure, 1973. Currency of a suspension order can go beyond three months or not, if within the period aforesaid the memorandum of charges/charge-sheet is not served on the delinquent officer/employee. The court is required to analyze the judgment of the Apex Court in the case of Ajay Kumar Choudhary, taking note of the facts and if paragraphs (21) and (22) are read together it would become clear that even the Apex Court has not applied the direction given in paragraph (21) in view of the filing of the charge-sheet during the pendency of the appeal or litigation before the court. Now the matter is being referred to Larger Bench, on account of two conflicting judgments delivered by the Division Benches on a challenge to the order of suspension - By the order of reference, the learned Single Judge referred to the view expressed by a Division Bench in the case of the THE DIRECTOR GENERAL OF POLICE, MYLAPORE AND ORS. VERSUS T. KAMARAJAN [2019 (11) TMI 1798 - MADRAS HIGH COURT], and the subsequent judgment delivered by another Division Bench in the case of the THE CHAIRMAN-CUM-MANAGING DIRECTOR TANGEDCO; THE CHIEF ENGINEER (PERSONNEL) TANGEDCO; THE SUPERINTENDING ENGINEER CEDC/SOUTH-1/TANGEDCO, CHENNAI VERSUS R. BALAJI [2021 (8) TMI 1384 - MADRAS HIGH COURT], where a view different than the view expressed earlier by the Division Bench in T. Kamarajan has been taken. HELD THAT:- Reference made to the judgment of the Apex Court in the case of STATE OF TAMIL NADU VERSUS PROMOD KUMAR AND ORS. [2018 (8) TMI 2120 - SUPREME COURT]. The aforesaid judgment is again to be read in the context of the facts given therein. That was a case of deemed suspension, as the employee therein remained behind bars for more than 48 hours. Wherein, largely the issue was in reference to challenge to the charge memo. In paragraph (27) of the said judgment, the court analyzing the facts did not find it appropriate to continue the order of suspension, as there would be no threat to the fair trial. The judgment in the said case was on its own facts. Thus, the judgment of the Apex Court in the case of Ajay Kumar Choudhary, does not lay down absolute proposition of law that an order of suspension cannot be continued beyond the period of three months if the memorandum of charges/charge-sheet is not served within three months. Rather, the issue of challenge to the order of suspension should be analyzed on the facts of each case. It is keeping with the gravity of the charges and the period therein because in case of trap, the order of interference with the order of suspension may have serious consequences. At this stage, it is to be noted that in certain cases where memorandum of charges/charge-sheet was not filed within three months, the order of revocation was passed with a direction to the employer to post the delinquent in a non-sensitive post - such direction may have serious repercussions. For instance, when an employee makes an allegation of rape against a co-employee, followed by registration of criminal case, then merely for the reason that charge-sheet could not be submitted within three months if the order of suspension is revoked with a direction to post the employee in a non-sensitive post, it may have serious repercussions. Thus, the court should analyze each case on its facts when a challenge to the order of suspension has been made. The reference is answered by holding that: (i) The judgment of the Apex Court in the case of Ajay Kumar Choudhary, does not lay down absolute proposition of law that an order of suspension cannot be continued beyond the period of three months if the memorandum of charges/charge-sheet has not been served within three months, or if memorandum of charges/charge-sheet is served without reasoned order of extension. (ii) The judgment in R. Balaji, has no reference to the earlier judgments of co-equal strength and is thereby rendered per incuriam. (iii) The issue of challenge to the order of suspension should be analyzed on the facts of each case, considering the gravity of the charges and the rules applicable. (iv) Revocation of suspension with a direction to the employer to post the delinquent in a non-sensitive post cannot be endorsed or directed as a matter of course. It has to be based on the facts of each case and after noticing the reason for the delay in serving the memorandum of charges/charge-sheet. Issues Involved:1. Prolonged suspension of an employee.2. Conflicting judgments on suspension orders.3. Applicability of the Supreme Court's judgment in Ajay Kumar Choudhary.4. Rules governing suspension under Tamil Nadu Civil Services and Police Subordinate Services.5. Judicial review and interpretation of precedents.Detailed Analysis:1. Prolonged Suspension of an Employee:The case was referred to the Larger Bench due to conflicting judgments by Division Benches on the issue of prolonged suspension. The petitioners argued that the Supreme Court in Ajay Kumar Choudhary v. Union of India (2015) 7 SCC 291 established that suspension should not extend beyond three months without serving a memorandum of charges/charge-sheet, and even if served, a reasoned order must be passed for extension. They urged the court to affirm the judgment in R. Balaji, which upheld interference with prolonged suspensions.2. Conflicting Judgments on Suspension Orders:The learned Single Judge referred the matter to the Larger Bench due to conflicting views in the cases of T. Kamarajan and R. Balaji. The former did not interfere with the suspension order, while the latter did, citing Ajay Kumar Choudhary. The respondents argued that the judgment in T. Kamarajan should prevail as it considered Ajay Kumar Choudhary, unlike R. Balaji, which was rendered per incuriam.3. Applicability of the Supreme Court's Judgment in Ajay Kumar Choudhary:The court analyzed Ajay Kumar Choudhary, noting that the Supreme Court did not apply the three-month rule rigidly. The judgment drew an analogy from Section 167(2) of the Code of Criminal Procedure, which limits remand periods but does not apply directly to service jurisprudence. The court emphasized that Ajay Kumar Choudhary should not be read as laying down an absolute proposition that suspension cannot exceed three months without a charge-sheet.4. Rules Governing Suspension under Tamil Nadu Civil Services and Police Subordinate Services:The court referred to Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and Rule 3(e) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules. These rules provide for suspension in cases of pending disciplinary proceedings or criminal charges. The court noted that judgments must be applied considering the specific rules governing the case, and not as statutes.5. Judicial Review and Interpretation of Precedents:The court highlighted that judgments should be understood in the context of their facts and not read as statutes. It referred to various precedents, including Constitution Bench judgments, which were not considered in Ajay Kumar Choudhary. The court concluded that the judgment in Ajay Kumar Choudhary does not lay down an absolute rule on suspension and should be applied based on the facts of each case. The court also emphasized that suspension is not a punishment but a preventive measure.Conclusion:The court answered the reference by holding that:(i) Ajay Kumar Choudhary does not lay down an absolute rule that suspension cannot continue beyond three months without a charge-sheet.(ii) The judgment in R. Balaji is rendered per incuriam as it does not reference earlier judgments.(iii) Suspension orders should be analyzed based on the facts of each case and the applicable rules.(iv) Revocation of suspension with a direction to post the delinquent in a non-sensitive post should not be a matter of course but based on the facts of each case.The matter was directed to be placed before the roster Bench for disposal of the writ petitions.