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2022 (3) TMI 1543
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....nd the subsequent judgment delivered by another Division Bench in the case of the Chairman-cum-Managing Director, TANGEDCO and others v. R. Balaji [Judgment dated 27.8.2021 passed in W.A. No. 68 of 2021], where a view different than the view expressed earlier by the Division Bench in T. Kamarajan, supra, has been taken. 3. Learned counsel for the petitioners referring to the order passed by the learned Single Judge dated 20.12.2021 by which the reference has been made to the Larger Bench submitted that the issue regarding prolonged suspension of an employee was settled by the Apex Court in the case of Ajay Kumar Choudhary v. Union of India, (2015) 7 SCC 291, but holding the said judgment to be not laying down an absolute proposition on a challenge to the order of suspension, the order of suspension was not interfered and for that the judgment of the learned Single Judge was reversed by the Division Bench in the case of T. Kamarajan, supra, while the other Division Bench in the case of R. Balaji, supra, upheld the judgment of the learned Single Judge where interference with the order of suspension was made in the light of the judgment of the Apex Court in Ajay Kumar Choudhary, su....
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....ase and was arrested on 4.2.2014, followed by order of suspension on 5.2.2014 treating it to be a case of deemed suspension, as the petitioner remained behind bars for more than 48 hours. In the criminal case, the charge sheet was filed on 12.10.2014, followed by an order of cognizance. The charges against the petitioner were also framed, followed by the trial. It is, however, submitted that a period of almost eight years has elapsed and, therefore, there is no reason not to revoke the order of suspension. 8. A reference of the government order in G.O.Ms. No. 40, Personnel and Administrative Reforms (N) Department, dated 30.1.1996 has also been given to bring home the point that in case of prolonged suspension, the court should appropriately direct the revocation of the order of suspension. 9. The writ petitions have been opposed by learned counsel for the respondents. It is submitted that the learned Single Judge while referring the case to the Larger Bench has made a reference of the judgment of the Full Bench of this court in the case of S. Ravi and others v. The District Collector and others, 2015 (3) CTC 465. Inasmuch as the said judgment covers the issue raised, there w....
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....al) Rules, 1955: Rule 17(e): Conditions under which a member of a Service be placed under suspension.- (1) A member of a service may be placed under suspension from service, where- (i) a disciplinary proceedings against him is contemplated or is pending; or (ii) a case against him in respect of any criminal offence is under investigation, inquiry or trial. (2) A Government servant who is detained in custody whether on a criminal charge or otherwise, for a period longer than forty-eight hours shall be deemed to have been suspended under this rule. (3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. (4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government....
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....rwise, for a period longer than forty-eight hours shall be deemed to have been suspended under rule. (3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a member of a Service under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. (4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a member of Service is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the disciplinary authority on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the member of a Service shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal, r....
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....efused to cause interference in the order of suspension with the observation that whatever finding has been recorded may not be relevant to the appellant therein. However, it was observed that if the appellant is so advised, he may challenge the continued suspension in any manner known to law. The relevant paragraph heavily relied upon by learned counsel for the petitioners is paragraph (21) of the said judgment. However, it is to be considered in the light of the facts given above. Paragraphs (21) and (22) of the said judgment are quoted hereunder: "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 m....
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....ven by Section 167(2) of the Code of Criminal Procedure, 1973 which provides the period for submission of charge-sheet, but it is only for the purpose of period of remand and does not provide the limitation for submission of charge-sheet in general. The charge-sheet in the criminal case can be filed even beyond the period given under Section 167(2) of the Code of Criminal Procedure, 1973, but in case of arrest of the accused and remand in jail during the period of investigation, the remand cannot be extended beyond the period of 90 days or 60 days in a given case and in case the charge-sheet is not filed within the period aforesaid, the accused would be entitled to statutory bail. 17. The fact aforesaid has been explained in reference to Section 167(2) of the Code of Criminal Procedure, 1973 because the Apex Court in the case of Ajay Kumar Choudhary, supra, has drawn the analogy of three months from the provision aforesaid and would be reflected from a perusal of paragraph (20) of the judgment, which is quoted hereunder for ready reference: "20. It will be useful to recall that prior to 1973 an accused could be detained for continuous and consecutive periods of 15 days,....
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....houdhary (supra), the Supreme Court observed that the directions regarding the restriction on extension of a suspension order beyond three months would not apply as the appellant had been served with a charge sheet. The appellant had only been given the liberty to challenge his continued suspension in any manner known to law, if so advised, and it was clarified that the action of the respondents in continuing suspension would be subject to judicial review. In our view, the learned Single Bench erred in setting aside the suspension placing reliance on Ajay Kumar Choudhary (supra). 10. It is well settled that a judgment is to be understood in the context of the facts in which the judgment is rendered. Sentences in a judgment cannot be read in the same manner as a statute and in any case, words and sentences in a judgment cannot be read out of context. In Padma Sundara Rao (Dead) v. State of Tamil Nadu, reported in (2002) 3 SCC 533, cited by Mr. S. Saji Bino, learned counsel appearing on behalf of the appellant, a Five Judge Bench of the Supreme Court held as under: "9. Courts should not place reliance on decisions without discussing as to how the factual situation f....
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....mil Nadu Generation and Distribution Corporation Limited (TANGEDCO) and others v. A. Srinivasan, [judgment dated 2.9.2020 passed in W.A. No. 599 of 2020], wherein referring to the earlier judgment of a Division Bench of this court in the case of R. Elumalai v. District Collector and the judgment of the Delhi High Court in the case of Government of NCT of Delhi v. Dr. Rishi Anand, it was held that in cases relating to order of suspension involving graft charges leading to criminal trial, interference with the suspension order on the basis that the suspension period exceeded three months is not justifiable. 21. Another judgment of the Division Bench of this court is in the case of Secretary to Government v. S.R. Venkatesh, wherein referring to several judgments of the Supreme Court in paragraph (9) interference with the order of suspension was not made, though therein the judgment of the Apex Court in the case of Ajay Kumar Choudhary, supra, was not referred. However, the Division Bench has considered the issue in reference to the judgment of the Five-Judges Bench of the Apex Court in the case of R.P. Kapur v. Union of India, AIR 1964 SC 787. The judgment in the case of R.P. Kapur....
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....t while such enquiry is going on -- it may relate to serious lapses on the part of a public servant--he is not in a position to misuse his authority in the same way in which he might have been charged to have done so in the enquiry. In such a case suspension pending a departmental enquiry cannot be but a matter immediately related to disciplinary matters. Take again the case where suspension is pending criminal proceedings. The usual ground for suspension pending a criminal proceeding is that the charge is connected with his position as a government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude. In such a case a public servant may be suspended pending investigation, enquiry or trial relating to a criminal charge. Such suspension also in our opinion is clearly related to disciplinary matters. If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted, even in case of acquittal proceedings may follow where the acquittal is other than honourable. The usual practice is that where a public servant is being tried on a criminal charge, the Government post....
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....e any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh (1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]." [emphasis supplied] Inasmuch as the Apex Court in Ajay Kumar Choudhary, supra, has not considered the earlier judgments of Constitution Benches of the Apex Court, the earlier judgments, delivered by Bench of larger strength would be binding on High Courts too and it cannot be said that the judgment in Ajay Kumar Choudhary, supra, lays down absolute proposition of law on suspension, as what was held in paragraph (21) of the judgment was not applied in the said case itse....
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....e appeal or litigation before the court. It was not a case where the charge-sheet was filed within three months, rather much subsequent to it. Thus, the direction in paragraph (21) of the judgment in the case of Ajay Kumar Choudhary, supra, should have been applied after taking note of the facts of that case where even the interference with the suspension order was not made, though by the time the judgment of the Apex Court was rendered, more than a period of four years already passed from the date of suspension. Yet, the Apex Court refused to cause interference with the order of suspension. The aforesaid cannot be ignored by this court and otherwise the conflicting judgment of this court in the case of R. Balaji, supra, is without reference to the earlier judgments of the Division Benches in the case of T. Kamarajan, supra, and Arignar Anna Sugar Mills Ltd., supra. Thus, the judgment in the case of R. Balaji, supra, is to be treated as per incuriam. 29. We are not referring to the judgment of the Full Bench in the case of S. Ravi and others, supra, for the reason that in the judgment reference of the decision in the case of Ajay Kumar Choudhary, supra, was not made. 30. At t....
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....uiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects 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 could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduc....