TaxTMI 
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2022 (3) TMI 1543
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....er 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, supra. 4. Referring to the judgment in the case ....
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....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 was no necessity for the learned Single Judge to refer the m....
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....ice 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 Servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the disciplin....
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....mposed 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, removal or compulsory retirement and shall continue to remain under suspension until further orders. (5) An order of suspension made or deemed to have been made under this rule may at any time be r....
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....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 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 d....
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....t 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, albeit, after judicial scrutiny and supervision. The Code of Criminal Procedure, 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond a period of 90 da....
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....berty 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 fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setti....
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....igh 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, supra, rendered by the Five-Judges Bench of the Supreme Court was not cited by counsel who appeared in the case of Ajay Kumar Choudhary, supra. 22. Moreover, there are a series of Constitution Bench judgments pertaining to a challenge to order of suspension, which were not placed for consideration before the ....
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....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 postpones holding departmental enquiry and awaits the result of the criminal trial and departmental proceedings follow on the result of the criminal trial. Therefore, suspension during investigation, enquiry or trial relating to a criminal charge is also in our opinion intimately related to disciplinary matters. We cannot therefore acc....
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....or 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 itself in paragraph (22). It is despite the fact that charge-sheet therein was submitted much beyond the period of three months. 25. Learned counsel for the petitioners referred to the judgment in the case of Ajay Kumar Choudhary, supra, ignoring the set of rules applicable therein and otherwise the judgment therein was not laying absolute proposition of law that in no case the order....
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.... 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 this stage, we need to refer to the judgment of the Apex Court in the case of Promod Kumar and another, supra. 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....
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....y 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 misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or in....