K.Balachandar v. The State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :02.02.2010CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.22424 of 2009andM.P.NO.1 OF 2009K.Balachandar.. Petitioner Vs.1.The State of Tamilnadu, rep.by the Secretary to Government, School Education Department, Secretariat, Chennai-600 009.2.The Director of Elementary Education, College Road, Chennai-600 008.3.The Joint Director (Personnel), Directorate of school Education, College Road, Chennai-600 006.4.District Elementary Educational Officer, Town Hall, Raja Street, Coimbatore-641 001.5.The Secretary to Government, Department of Personnel and Administrative Reforms, Government of Tamil nadu, Secretariat, Chennai-9. (R5 impleaded vide order dt.21.12.09 in MP.2/2009).. RespondentsThis writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ ofdeclaration declaring Rule 17(e)(2) of the Tamil Nadu CivilServices (Discipline and Appeal) Rules as ultra vires andunconstitutional.For Petitioner : Mr.V.T.Gopalan, SC for Ms.R.MaheswariFor Respondents : Ms.E.Ranganayaki, GA - - - - https://hcservices.ecourts.gov.in/hcservices/ ORDERHeard both sides. The petitioner's father was a SchoolTeacher. Unfortunately, he passed away on 13.5.1986. Consideringthe family circumstances, the petitioner was appointed oncompassionate ground as Junior Assistant with effect from1.10.1986. Subsequently, by an order, dated 26.1.1992, he wasbrought under regular establishment and he was working in theoffice of the District Elementary Education officer at Coimbatore.2.The petitioner was arrested in a trap case on 07.10.2009and a FIR was registered against the petitioner. The charge againstthe petitioner was that he demanded Rs.1 lakh for promisingemployment to one Stella Mary and had received Rs.20,000/- asadvance on 7.10.2009 at 21.25 hours. The Vigilance and AntiCorruption police laid a trap and arrested him. The money was alsorecovered from the bag which threw on seeing the police. Thepetitioner was released on bail by an order dated 13.10.2009 by theSpecial Judge-cum-Chief Judicial Magistrate, Coimbatore and that hewas in jail for more than 5 days. On receipt of the report fromthe police, the fourth respondent suspended the petitioner underRule 17(e)(2) of the Tamil Nadu Civil Services (Discipline andAppeal) Rules. 3.It is an admitted case that the petitioner was arrestedand kept in custody beyond 48 hours so as to attract Rule 17(e)(2).Therefore, the petitioner has come forward to challenge the saidsuspension order in this writ petition with a prayer to declarethat Rule 17(e)(2) of the Tamil Nadu Civil Services (Discipline andAppeal) Rules as ultra vires and unconstitutional. The petitionerthereafter filed M.P.No.2 of 2009 to implead the Secretary toGovernment, Department of Personnel and Administrative Reforms,Government of Tamil Nadu as party 5th respondent. He also filed anadditional typed set, dated 18.1.2010, stating that alternatively,suspension order, dated 8.10.2009 can be quashed for the groundsstated therein.4.According to the petitioner, his suspension wasunjustified. The defacto complainant had made a false complaint. 5.Heard the arguments of Mr.V.T.Gopalan, learned SeniorCounsel leading Ms.R.Maheswari for petitioner and Ms.E.Ranganayaki,learned Government Advocate taking notice for respondents. 6.Before proceedings with the rival contentions, it isnecessary to extract Rules 17(e)(1) and (2) and 17(6) of the TamilNadu Civil Services (Discipline and Appeal) Rules, which are asfollows:"17(e)(1)A member of a service may beplaced under suspension from service, where-(i)an enquiry into grave charges againsthim is contemplated or is pending; or(ii)a complaint against him of anycriminal offence is under investigation or trial https://hcservices.ecourts.gov.in/hcservices/ and if such suspension is necessary in the publicinterest.(2)A Government servant who is detainedin custody whether on a criminal charge orotherwise, for a period longer than forty-eighthours shall be deemed to have been suspendedunder this Rule.....(6)An order of suspension made or deemedto have been made under this Rule may at any timebe revoked by the Authority which made or isdeemed to have made the order or by any Authorityto which that Authority is subordinate."7.The learned Senior Counsel for the petitioner contendedthat inasmuch as Rule 17(e)(2) provides automatic suspensionwithout giving power to the authority who can suspend anyGovernment servant only on account of detention beyond 48 hours isarbitrary. Even in cases where a Government servant was convictedfor any offence involving, he has to be given notice before anypenalty is imposed. He further submitted that if detention is lessthan 48 hours, then under Rule 17(e)(1), the competent authoritycan place a Government servant under suspension only for statedreasons. Therefore prescription of time factor of 48 hoursdetention is not only artificial, but violative of Article 14 ofthe Constitution of India. It was further stated that the StateAdministrative Tribunal had set aside the rule by order, dated19.1.1995 as found it arbitrary. 8.The learned Senior Counsel further stated that inasmuchRule 17(e) begins by showing that members of a service may beplaced under suspension in respect of Rule 17(e)(1)(i) and (ii),but when it comes to Rule 17(e)(2), there is automatic suspension.Therefore, the rule gives no discretion to the competent authorityand even without application of mind, such suspension was made.9.The learned Senior counsel relied upon the judgment ofthe Supreme Court in Union of India and Rajiv Kumar reported in2003 (6) SCC 516.10.However, this court is unable to agree with thesubmissions made by the learned senior counsel. It must be notedthat rule of suspension of a Government servant is framed underArticle 309 of the Constitution. The prescription of 48 hours hasnexus with the deemed suspension prescribed therein, unless it isviolative of Articles 14 or 16 of the Constitution. 11.Suspension of a Government servant does not attractconstitutional protection granted under Article 311(2) of theConstitution. The Supreme Court in Mohd. Ghouse v. State of A.P.reported in AIR 1957 SC 246 in paragraph 9 held as follows:"9. It was next contended on behalf of theappellant that as the authority which appointedhim was the Governor of the Province, it was only https://hcservices.ecourts.gov.in/hcservices/ that authority that could dismiss or remove himfrom service, and that the order of suspensionmade by the High Court on January 28, 1954, was incontravention of Article 311 of the Constitution,and was, in consequence, bad. This contention doesnot appear to have been pressed in the High Court,and is, moreover, without substance....."12.The same view was reiterated by the Supreme Court inState of Orissa v. Shiva Parashad Das reported in (1985) 2 SCC 65.The following passage found in paragraph 3 may be usefullyextracted below:"3. An order of suspension passedagainst a government servant pendingdisciplinary enquiry is neither one of dismissalnor of removal from service within Article 311of the Constitution. This position was clearlylaid down by a Constitution Bench of this Courtin Mohammad Ghouse v. State of Andhra1. It isunfortunate that this decision was not broughtto the notice of the learned Judges of the HighCourt. Clause (1) of Article 311 will getattracted only when a person who is a member ofCivil Service of the Union or an All-IndiaService or a Civil Service of a State or one whoholds a civil post under the Union or a State is“dismissed” or “removed” from service. Theprovisions of the said clause have noapplication whatever to a situation where agovernment servant has been merely placed undersuspension pending departmental enquiry sincesuch action does not constitute either dismissalor removal from service. The High Court was,therefore, manifestly in error in quashing theorder of suspension passed against therespondent on the ground that it was violativeof clause (1) of Article 311 of theConstitution."13.Even in case where the final order of punishment was setaside on technical ground, the person was held to be placed underdeemed suspension to facilitate further enquiry. Therefore, theconcept of deemed suspension or automatic suspension on account ofcertain contingencies is not new to the service rules. 14.In construing Rule 12(4) of Central Civil Services(Classification, Control & Appeal) Rules, 1957, the Supreme Courtin Khem Chand v. Union of India reported in 1963 Supp (1) SCR 229 =AIR 1963 SC 687 held in paragraphs 16,18 and 19 as follows:"16. Equally untenable is the appellant’snext contention that the impugned Rule contravenes https://hcservices.ecourts.gov.in/hcservices/ the provisions of Article 19(l)(f) of theConstitution. The argument is that as a result ofthis Court’s decree the appellant had a right tohis arrears of pay and allowances. This rightconstituted his property; and as the effect of theimpugned Rule is that he would not, for some timeat least, get those arrears it restricts hisright. It may be conceded that the right toarrears of pay and allowances constituted propertywithin the meaning of Article 19(l)(f) of theConstitution and further, that the effect of Rule12(4) is a substantial restriction of his right inrespect of that property under Art 19(l)(f). Thequestion remains whether this restriction is areasonable restriction in the interests of thegeneral public. No body can seriously doubt theimportance and necessity of proper disciplinaryaction being taken against government servants forinefficiency, dishonesty or other suitablereasons. Such action is certainly against theimmediate interests of the government servantconcerned; but is absolutely necessary in theinterests of the general public for serving whoseinterests the government machinery exists andfunctions. Suspension of a government servantpending an enquiry is a necessary part of theprocedure for taking disciplinary action againsthim. It follows, therefore, that when the penaltyof dismissal has been set aside but thedisciplinary authority decides to hold a furtherenquiry on the same facts against him a freshorder of suspension till the enquiry can becompleted, in accordance with law, is a reasonablestep of the procedure. We have no hesitation inholding, therefore, that insofar as Rule 12(4)restricts the appellant’s right under Article 19(1)(f) of the Constitution, it is a reasonablerestriction in the interests of the generalpublic. Rule 12(4) is therefore within the savingprovisions of Article 19(6), so that there is nocontravention of the constitutional provisions........18. This brings us to the attack on the Rule onthe basis of Article 14. According to Mr Sharmathe result of the impugnet Rule is that where apenalty of dismissal, removal or compulsoryretirement from service imposed on a governmentservant is set aside or declared or rendered voidin consequence of or by a decision of a court oflaw and the disciplinary authority decides to holda further enquiry against him on the allegationson which the penalty was originally imposed, theconsequence will follow that the government https://hcservices.ecourts.gov.in/hcservices/ servant shall be deemed to have been placed undersuspension from the date of the originalimposition of penalty, whereas no such consequencewill follow where a similar penalty is set asidenot by a court of law but by, the departmentaldisciplinary authority. According to Mr Sharma,therefore, there is a discrimination between agovernment servant the penalty of dismissal,removal or compulsory retirement on whom is setaside by a decision of a court of law and anothergovernment servant a similar penalty on whom isset aside on appeal by the departmentaldisciplinary authority. The argument howeverignores the result of Rule 30(2) and Rule 12(3) ofthese Rules. Rule 30(2) provides inter alia thatin the case of an appeal against an order imposingany of the penalties specified in Rule 13 i.e. thepenalty of dismissal, removal or compulsoryretirement and certain other penalties, theAppellate Authority shall pass orders: “(i)setting aside, reducing, confirming or enhancingthe penalty; or (ii) remitting the case to theauthority which imposed the penalty or to anyother authority with such direction as it may deemfit in the circumstances of the case.” Rule 12(3)provides that “where a penalty of dismissal,removal or compulsory retirement from serviceimposed upon a government servant under suspensionis set aside in appeal or on review under theserules and the case is remitted for further enquiryor action or with any other directions, the orderof his suspension shall be deemed to havecontinued in force on and from the date of theoriginal order of dismissal, removal or compulsoryretirement and shall remain in force until furtherorders”. Where a penalty of dismissal, removal orcompulsory retirement imposed upon a governmentservant is set aside by the departmental authorityon appeal, it may or may not order furtherenquiry; just as where a similar penalty is setaside by a decision of a court of law thedisciplinary authority may or may not direct afurther enquiry. Where the Appellate Authorityafter setting aside a penalty of dismissal,removal or compulsory retirement makes an orderunder Rule 30(2)(ii) remitting the case to theauthority which imposed the penalty, for furtherenquiry, Rule 12(3) will come into operation andso the order of suspension which in almost allcases is likely to be made where a disciplinaryproceeding is contemplated or is pending shall bedeemed to have continued in force on and from thedate of the original order of dismissal and shallremain in force until further orders. There is https://hcservices.ecourts.gov.in/hcservices/ therefore no difference “worth the name betweenthe effect of Rule 12(4) on a government servantthe penalty of dismissal, removal or compulsoryretirement on whom is set aside by a decision of acourt of law and a further enquiry is decided uponand the effect of Rule l2(4) on another governmentservant a similar penalty on whom is set aside inappeal or on review by the departmental authorityand a further enquiry is decided upon. In bothcases the government servant will be deemed to beunder suspension from the date of the originalorder of dismissal, except that where in adepartmental enquiry a government servant was notplaced under suspension prior to the date when thepenalty was imposed, this result will not follow,as Rule l2(3) would not then have any operation.It is entirely unlikely however, that ordinarily,a government servant will not be placed undersuspension prior to the date of his dismissal.Rule 12(1) provides that the appointing authorityor any authority to which it is subordinate or anyother authority empowered by the President in thatbehalf may place a government servant undersuspension: (a) where a disciplinary proceedingagainst him is contemplated or is pending, or (b)where a case against him in respect of anycriminal offence is under investigation or trial.Mr Sharma does not say that ordinarily any casesoccur where a government servant is visited with apenalty of dismissal, removal or compulsoryretirement, in a departmental proceeding, withoutthere being a previous order of suspension underthe provisions of Rulel 2(l) and we do not thinkany such case ordinarily occurs. Consequently, theeffect of Rule 12(3) will be the same on agovernment servant a penalty of dismissal, removalor compulsory retirement on whom is set aside inappeal by the departmental authority as the effectof Rule l2(4) on a government servant a similarpenalty on whom is set aside by a decision of acourt of law. The contention that Rule 12(4)contravenes Article 14 of the Constitution musttherefore be rejected.19. As we find that all the above attacks onthe validity of Rule l2(4) fail, the furtherattack on the Rule on the basis of Article 31(1)of the Constitution also necessarily fails. For,whatever deprivation of property may result fromRule l2(4) would be by authority of law-the lawbeing Rule l2(4)."15.The said Rule 12(4) was subsequently made as Rule 10(4)of CCS(CCA) Rules. When the said rule came to be challenged, the https://hcservices.ecourts.gov.in/hcservices/ Supreme Court upheld the constitutional validity of the said rulein Mahender Singh v. Union of India, reported in 1991 Supp (2) SCC127. The following passage found in paragraph 6 may be usefullyextracted below:"6. There are three requirements for theapplication of Rule 10(4); (i) the governmentservant is dismissed, removed or compulsorilyretired as a measure of penalty; (ii) the penaltyof dismissal, removal or compulsory retirement isset aside or declared or rendered void by adecision of a court of law; (iii) thedisciplinary authority, decides to hold a furtherinquiry against the government servant on theallegations on which the original order ofpenalty was imposed. If these three requirementsare satisfied then the government servant shallbe deemed to have been placed under suspension bythe appointing authority from the date oforiginal order of penalty of dismissal, removalor compulsory retirement and he shall continue toremain under suspension until further orders."16.Thereafter, the very same rule was once again consideredby the Supreme Court in Nelson Motis v. Union of India reported in(1992) 4 SCC 711. In paragraph 10, the Supreme Court observed asfollows:"10......The cases which attract sub-rule (4), are thus those where the penaltyimposed on the government servant is set asideon technical grounds not touching the merits ofthe case. Since at one stage the disciplinaryauthority records a finding on the chargesagainst the government servant, which is notupset on merits, the situation is entirelydifferent from that in the cases covered by sub-rule (3). The classification is thus founded onan intelligible differentia, having a rationalrelation to the object of the rules and Rule 10(4) has to be held as constitutionally valid."17.When a Government servant who is also a public servantis arrested and being tried in a criminal case, he cannot beallowed to discharge his duties as a public servant lest it may notinspire confidence of public faith imposed on the Government.Further, when arrest takes place in relation to a corruption caseand where a Government servant had demanded and accepted bribe, thequestion of his being kept in service before the trial is concludedis unthinkable. Therefore, rules have been framed to the effectthat if a Government servant is arrested in connection with acriminal case and detained in custody beyond 48 hours, he should bedeemed to be under suspension and it it to avoid any administrativedelay being obtained from the competent authority or from the State https://hcservices.ecourts.gov.in/hcservices/ Government. Therefore, the said rule has been made. 18.Introduction of 48 hours has nexus to the object soughtto be achieved. If a person is arrested by the police, then Article22(2) mandates that such arrested should be produced before thenearest Magistrate within a period of 24 hours of such arrest. Itwas thereafter, the concerned Magistrate will consider the questionof remanding the person in custody. Therefore, minimum time thatcan be taken for this process can be 48 hours. In case a personcomes out on bail on a bail granted by the Magistrate, then thedeemed provision under Rule 17(e)(2) may not operate. 19.If a Government servant is not at all arrested or oncoming to know that he may be arrested in a case involvingcognizable offence, if gets anticipatory bail even in those cases,there may not be any detention in custody. But that does not meanthat the Government servant can escape from being suspended. Inthose cases, the competent authority can always depending upon thegravity of the offence and pending criminal investigation, cansuspend him under rule 17(e)(1)(ii) in public interest. In eitherof the circumstances, the Government servant cannot escape from anyaction being taken against him in connection with his misconduct.It is not as if the government servant has no remedy against anyarbitrary suspension, because either the same authority or theappellate authority has power to revoke suspension, which is deemedto have been made under those rules, under Rule 17(6) as extractedabove. 20.Therefore, the power to place a government servant undersuspension, who is involved in a criminal case and also creating adeemed clause for suspension has got its aim and purpose and it isfully in consonance with Articles 14 and 16 of the Constitution. Itis one thing to state that the provision is invalid. The otherthing is to state is an order made pursuant to the rule wasillegal. Since the rule has been made in public interest and forefficiency of civil service, the question of impugning the same asultra vires or unconstitutional may not arise. 21.The decision of the Supreme Court in Union of India andRajiv Kumar reported in 2003 (6) SCC 516 cited by the learnedSenior Counsel has no relevance to the facts of this case. In thatcase, the question arose was whether deemed suspension will come toan end as soon as detention period is over. After considering therelevant rule, the Supreme Court held that it is not so. Perhapshaving this decision in mind, the petitioner has come forward tochallenge the vires of the said rule.22.The Supreme Court in its decision reported in 1990 (3)SCC 60 (Director General and Inspector General of Police, AndhraPradesh, Hyderabad and others Vs. K.Ratnagiri) has held inparagraph 3 as follows:"3....The government may review the caseand make further or other order but the order of https://hcservices.ecourts.gov.in/hcservices/ suspension will continue to operate till it isrescinded by an appropriate authority."23.The Supreme Court in Union of India Vs. Rajiv Kumarreported in 2003 (6) SCC 516 had an occasion to decide the issue ofprolonged suspension. The Supreme Court held that in a genuinecase, if the authorities feel that suspension has to be continued,the court cannot interfere with the same. The following passagefound in paragraph 29 may be usefully extracted below:"29. Another plea raised relates to asuspension for a very long period. It issubmitted that the same renders the suspensioninvalid. The plea is clearly untenable. Theperiod of suspension should not be unnecessarilyprolonged but if plausible reasons exist and theauthorities feel that the suspension needs to becontinued, merely because it is for a long periodthat does not invalidate the suspension."24.Knowing fully well that it is impossible to strike downthe rule as unconstitutional, the petitioner has made thealternative plea to set aside his suspension. Considering the factthat the petitioner had involved in a trap case and caught red-handed for receiving bribe of Rs.20,000/-, the question of revokingsuspension will not arise. 25.Hence, the writ petition will stand dismissed. However,there will be no order as to costs. Consequently, connectedmiscellaneous petition also stands dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo1.The Secretary to Government, The State of Tamilnadu, School Education Department, Secretariat, Chennai-600 009.2.The Director of Elementary Education, College Road, Chennai-600 008. https://hcservices.ecourts.gov.in/hcservices/

3.The Joint Director (Personnel), Directorate of school Education, College Road, Chennai-600 006.4.District Elementary Educational Officer, Town Hall, Raja Street, Coimbatore-641 001.5.The Secretary to Government, Department of Personnel and Administrative Reforms, Government of Tamil Nadu, Secretariat, Chennai-9.1 cc To M/s.R.Maheswari, Advocate, SR.5757W.P.NO.22424 of 2009SV(CO)sra 08.02.2010