BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13/07/2007 CORAM: THE HONOURABLE MR. JUSTICE K.CHANDRU WRIT PETITION (MD) No.3121 of 2007 and M.P.(MD) No. 1 of 2007 I.Selvaraj .. Petitioner vs. The Superintendent of Police, Theni District, Theni. .. Respondent Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records relating to the impugned order passed by the respondent in his proceedings D.O.873/2006/C.No.F1/24850/2006 dated 24.9.2006 and quash the same as illegal. !For petitioner : Mr.M.Ajmal Khan ^For respondent : Mrs.V.Chellammal, Special Government Pleader :ORDER
I have heard Mr.M.Ajmal Khan, learned counsel appearing for the petitioner
and Mrs.V.Chellammal, learned Special Government Pleader taking notice for the
respondents and have perused the records.
2. The impugned order dated 24.9.2006 is one of suspension pending
enquiry. The petitioner is working as an Head Constable at Kurangani Police
Station under the respondent Department.
3. The suspension is made under Rule 3(e)(i)(ii) of the T.N.P.S.S.(D & A)
Rules. The reason found in the order is that a criminal proceeding is pending
against the petitioner in Vigilance and Anti-Corruption Crime No.16/2006 for
having demanded and accepted some bribe amount. His petition for reviewing the
order was also considered and rejected by the respondent vide order dated
9.2.2007. A detailed counter affidavit has also been filed justifying the
suspension.
4. The grievance of the petitioner is that even though the order of
suspension has been passed as early as in the year 2006, the application for
review was also rejected erroneously. However, it is argued by the counsel that
the provision quoted in the order of suspension is wrong and therefore, there is
a mechanical application of mind by the respondent.
5. This Court is unable to go into the merits of the allegations made by
the petitioner. So long as the power of suspension is available with the
respondents and it has been exercised by the competent authority, the Court
cannot go behind the order of suspension.
6. The Supreme Court in its decision reported in 1990 (3) SCC 60 [Director
General and Inspector General of Police, Andhra Pradesh, Hyderabad and others
vs. K.Ratnagiri] has held in paragraph 7 as follows:
Para 7: “…The Rule 13(1) empowers the authority to keep the respondent
under suspension pending investigation or enquiry into the criminal charges
where such suspension is necessary in the public interest. When the first
information report is issued, the investigation commences and indeed it has
commenced when the respondent was kept under suspension. The order of
suspension cannot, therefore, be said to be beyond the scope of Rule 13(1)
merely because it has used the word ‘prosecution’ instead of investigation into
the charges against the respondent. A wrong wording in the order does not take
away the power if it is otherwise available. The Tribunal seems to have ignored
this well accepted principle.” (Emphasis added)
7. Further, it was observed in paragraph 3 as follows:
Para 3: “….The government may review the case and make further or other
order but the order of suspension will continue to operate till it is rescinded
by an appropriate authority.”
8. Once again, the Supreme Court vide its decision reported in 1994 (2)
SCC 617 [State of Haryana vs. Hari Ram Yadav and others] held in paragraph 10 as
follows:
Para 10: “…The law is well settled that in cases where the exercise of
statutory power is subject to the fulfilment of a condition then the recital
about the said condition having been fulfilled in the order raises a presumption
about the fulfilment of the said condition, and the burden is on the person who
challenges the validity of the order to show that the said condition was not
fulfilled. In a case, where the order does not contain a recital about the
condition being fulfilled, the burden to prove that the condition was fulfilled
would be on the authority passing the order if the validity of the order is
challenged on the ground that the condition is not fulfilled….”
9. Further, in paragraph 11 of the judgment, it was observed as follows:
Para 11: “… There is no averment in the said petition challenging the validity
of the impugned order of suspension on the ground that the Governor of Haryana
was not satisfied that it was either necessary or desirable to place Respondent
1 under suspension. In the absence of any such averment it must be held that
the impugned order was passed after fulfilling the requirement of Rule 3(1) of
the Rules in view of the presumption as to the regularity of official acts which
would be applicable and the absence of a recital in the order about the Governor
being satisfied that it was either necessary or desirable to place respondent 1
under suspension is of no consequence…”
10. In the light of the above, the writ petition filed by the petitioner
is misconceived and deserves to be dismissed.
Accordingly, the writ petition as well as the Miscellaneous Petition will stand
dismissed. No costs.
asvm
To
The Superintendent of Police,
Theni District,
Theni.