The Superintendent (In-Charge) Central Prision-1 v. C.Suresh Kumar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 13.4.2009CORAMTHE HON'BLE MR.JUSTICE P.JYOTHIMANIANDTHE HON'BLE MRS.JUSTICE ARUNA JAGADEESANW.A.No.1050 of 2007The Superintendent (In-Charge)Central Prision-1Puzhal, Chennai-600 066... Appellant/RespondentVs.C.Suresh Kumar.. Respondent/PetitionerPRAYER: Against the order of the learned Single Judge dated11.7.2007 made in W.P.No.23093 of 2007. This Writ Petitionpresented to this Court under Article 226 of the constitution ofIndia to issue a Writ of Certiorarified Mandamus to call for therecords relating to the impugned order of the respondent inNo.3684/P.O.3/2007 dated 28.6.2007 quash the same and direct therespondent to reinstate the petitioner in service with allattendant benefits.For Appellant:Mr.R.ThirugnanamSpecial Government PleaderFor Respondent:Mr.P.RajendranJUDGMENT(Delivered by P.JYOTHIMANI,J.)Heard Mr.R.Thirugnanam, learned Special Government Pleaderappearing for the appellant and Mr.P.Rajendran, learned counsel fortherespondent.2. The writ appeal is directed against the order of thelearned Single Judge dated 11.7.2007 passed in W.P.No.23093 of2007, by which the learned Single Judge, by relying upon a judgmentof the Division Bench of this Court in Sivanthipatti Nagar HigherSecondary School v. R.Paulraj and two others, 1997 WLR 35, heldthat the order of suspension passed against the respondent is notvalid since the Officer, who has passed the order, was holding thepost only as an Officer In-charge; apart from deciding that underRule 17(e)(1) of the Tamil Nadu Civil Services (Discipline and https://hcservices.ecourts.gov.in/hcservices/ Appeal) Rules, a member of service may be placed under suspensiononly if such suspension is necessary in the public interest.3. On a reference to the impugned order of suspension dated28.6.2007, it is clear that the respondent was involved in concealing100 grams of Ganja and he was arrested and a case has been filedagainst him. It is also stated that the conduct of the respondent isagainst Rules 126 and 134(2) of the Tamil Nadu Prison Rules, 1983 inPrison Manual Volume (2), and Rule 20 of the Tamil Nadu GovernmentServants Conduct Rules, 1973.4. It is true that under Rule 17(e) of the Tamil Nadu CivilServices (Discipline and Appeal) Rules, a member of service can beplaced under suspension when a complaint against him in respect of acriminal offence is under investigation and if such suspension isnecessary in public interest. Rule 17(e) of the Tamil Nadu CivilServices (Discipline and Appeal) Rules is as follows:"Rule:17(e) Conditions under which a member of a CivilService be placed under suspension:(e) (1) A member of a service may be placed undersuspension from service, where (i) an enquiry into grave charges against him iscontemplated, or is pending; or(ii) a complaint against him of any criminal offence isunder investigation or trial and if such suspension isnecessary in the public interest."5. The words "if such suspension is necessary in the publicinterest" employed in Rule 17(e) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules have to be construed on the facts andcircumstances of each case and merely because such words are notexplicitly mentioned in the impugned order of suspension, it does notmean that existence of public interest goes. 6. On a perusal of the impugned order of suspension it is clearthat the respondent is, certainly, involved in a grave offence andkeeping him under suspension, therefore, cannot be said to be againstpublic interest. 7. As far as the other point raised that the impugned suspensionorder has been passed by an Officer In-charge is concerned, asrightly pointed out by the learned Special Government Pleader, theOfficer, who has passed the order is holding the post in addition tothe post already held by him. The proceedings of the AdditionalDirector General of Prisons dated 28.2.2007, by which the authorityhas been put in additional charge, is as follows: https://hcservices.ecourts.gov.in/hcservices/ "Thiru K.Sadasivam, Superintendent of Prisons, CentralPrision-I, Puzhal is permitted to retire from service onthe afternoon of 28.2.2007 on attaining the age ofsuperannuation. He is relieved of his duties on theafternoon on 28.2.2007 and he is directed to hand overcharge of the posts of Superintendent of Prisons andAdditional Superintendent of Prisons, Central Prison-I,Puzhal to Thiru R.Duraisamy, Superintendent of Prisons,Central Prison-II, Puzhal, who will hold the same inaddition to his own duties until further orders."8. In such view of the matter, it cannot be said that theOfficer, who has passed the order of suspension, is an Officer In-charge. Even otherwise, the Division Bench judgment in SivanthipattiNagar Higher Secondary School v. R.Paulraj and two others, which hasbeen referred to by the learned Single Judge, is no more good law, inview of the subsequent decision of the Full Bench of this Court inA.Savariar v. The Secretary, Tamil Nadu Public Service Commission,2008 (4) CTC 753, wherein the Full Bench of this Court, afterreferring to various judgments of the Supreme Court regarding thewords "appropriate authority", has specifically held as follows:"7. Under such circumstances, unless contrary intentionis expressed by the Government either by way of astatutory provision or by way of an executiveinstruction, a Government servant who holds the post asin-charge has got power to discharge the statutoryfunctions and responsibilities of the said post."9. In fact, the Full Bench, after referring to the judgment ofthe Supreme Court in Gopalji Kanna v. Allahabad Bank, AIR 1996 SC1729, has held that the earlier Division Bench judgment in C.Baskaranv. The District Collector, Trichy, 1997 WLR 33, which is similar tothat of the Division bench judgment in Sivanthipatti Nagar HigherSecondary School v. R.Paulraj and two others, referred to by thelearned Single Judge in the impugned order, is not correct law, andheld that the Officer In-charge has got powers to discharge statutoryfunctions, in the following words:"8. Besides since already this issue has been covered bythe judgment of the Honourable Apex Court reported inGopalji Kanna v. Allahabad Bank, AIR 1996 SC 1729 asreferred above, we are of the opinion, the view of theDivision Bench reported in C.Baskaran v. The DistrictCollector, Trichy, 1997 Writ L.R. 33 rendered inW.A.No.1054 of 1983 is not a correct law. Consequently,we hold that an officer-in-charge of a post has gotpower to discharge the powers and statutory functions ofthe said post." https://hcservices.ecourts.gov.in/hcservices/

10. In view of the categoric pronouncement by the Full Benchholding that even an Officer In-charge is entitled to dischargestatutory functions, we are of the considered opinion that thelearned Special Government Pleader is correct in his contention that the impugned order of suspension does not suffer from any infirmityor irregularity. In such view of the matter, this writ appeal is allowed and theorder of the learned Single Judge is set aside.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsasiTo:The Superintendent (In-Charge)Central Prision-1Puzhal, Chennai-600 066.1 cc To The Government Pleader, SR.13917W.A.No.1050 of 2007MBS(CO)SRA(20/4/2009)