BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 23/03/2006 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.3501 of 2005 and W.P.M.P.No.5619 of 2005 E.Elangeswaran ... Petitioner Vs. The Commissioner of Police, Madurai City, Madurai. ... Respondent PRAYER Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order of suspension of the respondent in Ref.Rc.D.1(3)03312/2005 CPO No.86/2005 dated 13.01.2005 and quash the same and consequently direct the respondent herein to forthwith reinstate the petitioner with all back wages, increments and promotion and attendant benefits. !For Petitioner ... Mr.AR.L.Sundaresan, Senior Counsel. ^For Respondent ... Mr.K.V.Vijayakumar, Special Government Pleader. :ORDER
Heard the learned Senior counsel appearing for the petitioner and the
learned Special Government Pleader appearing for the respondent.
2. This writ petition is filed challenging the order of suspension passed
by the respondent dated 13.01.2005 and also for reinstating the petitioner into
the service. The impugned order of suspension passed not only on public
interest but also on the ground that the petitioner has accumulated the huge
assets disproportionate to his known source of income and he has not intimated
to the Department about his wife’s business affairs and therefore,the charge in
that respect is contemplated.
3. The case of the petitioner is that his father in law is carrying on
stone crushing unit in Nagamalai Pudukkottai, Madurai and the petitioner’s wife
has received the property by inheritance from her father. The petitioner has
also inherited the properties from his ancestors at Theni and Uthamapalayam.
4. In respect of an offence after obtaining opinion from the Deputy
Director of Prosecution he has referred the complaint as mistake of fact in one
case and laid charge sheet in another case. On account of the same, the person
arrayed as an accused in Crime No.673 of 2003 who happen to be an Advocate
entertained personal animosity against the petitioner. Another complaint given
by the said Advocate Mr.Sudakaran against one Mr.Palanivelu was also referred as
a mistake of fact and due to that reason also the said Advocate has developed
the animosity and in that regard there were anonymous letter against the
petitioner. It is stated that the said Mr.Sudakaran was subsequently murdered
and at that time the petitioner was in Madurai.
5. There was some proceedings for reference of the case to the CB CID and
ultimately this Court found that there was no flaw in investigation. This has
also developed animosity by the said Mr.Sudakaran’s family against the
petitioner.
6. In fact, in respect of that, the Advocates Association filed a writ
petition for the transfer of investigation from the Inspector of Police,
Kodaikanal to any other independent agency such as CBI or CB CID and ultimately,
the matter was referred to CB CID for investigation. The petitioner was a
honest Police Officer and the anonymous petitions were procured against the
petitioner as if the petitioner has accumulated wealth beyond the source of
income.
7. The Deputy Superintendent of Police, Vigilance & Anti Corruption
Department has called the petitioner and he has also appeared and submitted the
records. The Deputy Superintendent of Police satisfied with the explanation
submitted by the petitioner and no case was registered against him.
8. Suddenly on the eve of the preparation of panel for promotion to the
post of Deputy Superintendent of Police which was due in January 2005, the
petitioner was placed under suspension under the impugned order. Therefore,
according to the petitioner the impugned order is not only a prolonged one but
also is attributable to the mala fide nature.
9. Mr.AR.L.Sundaresan, learned Senior counsel appearing for the petitioner
would submit that the said prolonged suspension can only cause irrecoverable
damage economically, socially and mentally not only to the suspended officer but
his family also. He has also referred to an order of the Administrative
Tribunal, Ernakulam to show that in such cases there should not be prolonged
suspension by which the Government is also a loser, apart from the fact that it
causes enormous mental agony to the delinquent as well as his family members.
10. It is the case of the learned Senior counsel that eventhough the
impugned suspension order was passed as early as on 13.01.2005 no charge has
been framed against the petitioner and no criminal case has been filed against
him. The learned Senior counsel would rely upon some of the Government orders
to show that in respect of the case of the Vigilance and Anti Corruption
Department after 6 months, the matter has to be referred to the Government and
the Government has got a right of review. In the present case, there has been
no review at all for the period of nearly one year and two months. This
prolonged suspension is a clear stigma on the services of the petitioner. The
learned counsel would state that even the suspension order does not show any
prima facie ground and till date no FIR has been filed. The learned counsel
would also submit that by restoring the petitioner to duty the investigation is
not going to hamper in any event.
11. On the other hand, the respondent has filed a counter. It is stated in
the counter affidavit that the suspension order itself was passed as per the
direction of the Government in order to avoid the investigation by the Director
of Vigilance and Anti Corruption Department to be hampered. The counter
affidavit also states that the Vigilance and Anti Corruption Department analysed
various aspects in depth as and arrived at the conclusion of disproportionate
assets of Rs.16,57,220/- by the petitioner, eventhough, it is admitted in the
counter that the petitioner’s wife E.Kaladevi is an income-tax assessee filing
returns from 1996.
12. The respondent would state that the petitioner has never intimated to
the Department about the business affairs of his wife which is violative to Rule
12(4) of TNSPO’s Conduct Rules, 1964. According to the respondent there is no
rule that only after registering a criminal case under the Prevention of
Corruption Act the suspension order can be passed. According to the learned
Special Government Pleader, it is considering the gravity of the situation the
suspension has not been reviewed so far.
13. I have considered the submissions of Mr.AR.L.Sundaresan, learned
Senior counsel for the petitioner as also the learned Special Government
Pleader.
14. Inspite of the fact that the petitioner was kept under suspension from
13.01.2005 admittedly no charge memo has been framed departmentally and also no
criminal case has also been filed against the petitioner. It is also admitted
that not even FIR has been filed. The counter affidavit only states that the
Director of Vigilance and Anti Corruption is of the prima facie view that the
petitioner has accumulated disproportionate wealth of assets to the extent of
Rs.16,57,200/-. If it is really true that under the Rule 12(4) of TNSPO’s
Conduct Rules,,1964, the petitioner has not intimated about the business affairs
of his wife, nothing prevented the respondent from framing such charges against
the petitioner. The respondent who has chosen to state that the non filing of a
criminal case need not hamper the power of suspension, failed to appreciate that
such suspension cannot be a prolonged one which results in the punishment and
stigma on the life of the delinquent officer and as the Supreme Court has
pointed out, in some cases, the sufferings and mental agony suffered by a
delinquent during the prolonged suspension will be much more than the punishment
itself. Eventhough, the suspension is not a punishment in reality it cannot be
ignored that such suspension results in more dangerous consequences and
disastrous impact not only on the fair and good name of the concerned individual
but also the Government. Apart from the Government losing the revenue, the
damage suffered by such as delinquent officer due to the prolonged suspension is
irreversible.
15. As the hon’ble Apex Court has held in The Government of India,
Ministry of Home Affairs and others Vs.Tarak Nath Ghosh reported in AIR 1971
S.C. 823 “The Government is always entitled to place an Officer under suspension
even before definite charges are communicated to him during the preliminary
investigation “Whether it is necessary or desirable on the facts of the case is
a matter to be decided by the Government considering the facts and circumstances
of the case. It is true that when a person is placed under suspension it is not
merely the gravity of the charge but it must also depend upon the question as to
whether it is necessary to keep him away from the post or office that he
occupies. In the present case, even assuming that there is an investigation
regarding the improportionate assets while admittedly as per the Director of
Vigilance and Anti Corruption Department itself it was found that the business
affairs of the petitioner’s wife was not intimated by the petitioner and she is
an income-tax assessee, nothing prevented the respondent to review the
situation.
16. I am of the considered view that by keeping the petitioner under
suspension, the same is not going to help the investigation any further,
especially in the circumstance that more than one year has lapsed and even the
charge has not been framed against him. In any event this Court cannot decide
about the validity or necessity of continuation of suspension but can direct the
full salary to be paid in certain circumstances.
17. In view of the same, the respondent is directed to review the entire
situation relating to the order of suspension and pass appropriate orders
regarding the review within a period of four weeks from the date of receipt of
a copy of this order.
18. It is made clear that in the event of the respondent not passing such
orders of review within the time stipulated above, the petitioner will be
entitled for payment of full salary.
19. With the above direction, the writ petition is disposed of. There is
no order as to costs. Consequently, connected W.P.M.P. is closed.
sms
To
The Commissioner of Police,
Madurai City,
Madurai.