IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08/03/2002
CORAM:
THE HON'BLE MR. JUSTICE K. SAMPATH
W.P.No. 1879 Of 2002 and W.P.M.P.No. 2600 of 2002 and W.V.M.P.No. 106 of 2002
U. Gunasekaran ... Petitioner
Vs.
The Executive Director,
Tamil Nadu Science and
Technology Centre,
Guindy, Chennai 600 0025. ... Respondent
!For Petitioner in W.P.
And for Respondent in WVMP: ... Mr.M.K. Hidayathullah
For Respondent in W.P. &
Petitioner in MVMP: ... Mr.Vijaynarayan
This writ petition is filed under Article 226 of the
Constitution for the issue of a writ of certiorarified mandamus to call
for the records of the respondent in Memo No.36/E1/2002 dated 4-1-2002,
quash the same as illegal and unlawful and consequently direct the
respondent to reinstate the petitioner with continuity of service and
other benefits.
:ORDER
By consent the main writ petition itself was taken up and
arguments heard.
2. The case of the petitioner is as follows:
He joined the office of the respondent on 9.11.1990 on a
temporary basis and his services were regularised with effect from
2-7-1994. He has been designated as Scientific Assistant. He has been
very sincere and dutiful in discharging his job. There was no allegation
of any insubordination or misconduct against him. In 1998 some
disciplinary proceedings were initiated against one Rajaboopathy. The
petitioner was called upon to give statement in the enquiry proceedings.
He gave his statement, which was true. However, since he did not comply
with the extraneous order of the respondent, the latter developed
animosity with him and he was found fault with whatever act he was doing.
He was abused and scolded in a most derogatory and filthy language. The
petitioner’s wife fell sick and was operated for hernia. He has two sons
and a daughter. The petitioner was put to great hardship because of the
ill-health of his wife and he had to do all the routine work both in
taking care of his children and his ailing wife. On 3-1-2002 the
petitioner gave a letter to the respondent seeking permission to have his
lunch outside in a hotel. He sought for lunch break of 30 minutes. The
respondent refused permission. He also directed the petitioner to go to
Villupuram on 4-1-2002 to conduct the mobile exhibition for three days.
The petitioner expressed his inability to go to Villupuram since his wife
was bed-ridden. The respondent took serious note of this and immediately
on 4-1-2002 he passed orders of suspension and it was approved under sub
rule (e) of Rule 17 of the Tamil Nadu Civil Service (Classification,
Control and Appeals) Rules, vide Memo No.36/E1/2002. Challenging this,
the present writ petition has been filed.
3. The order impugned states that the petitioner is
suspended with effect from 4-1-2002 afternoon, pending enquiry on his
misbehaviour in the Chamber of the Executive Director and disobedience as
per sub rule (e) of Rule 17 of the Tamil Nadu Civil Service
(Classification, Control and appeals) Rules until further orders. The
writ petition was admitted and interim stay for a period of four weeks
was granted on 30-1-2002.
4. A counter has been filed by the first respondent
denying the various allegations and further stating that the power has
been exercised with bona fide intention as per the Rules and the writ
petition is not maintainable. On merits the counter states as follows:
There is a Museo Bus with 24 built-in exhibits with
Portable Planetarium which is travelling all parts of Tamil Nadu,
particularly schools and colleges in the rural places for popularising
science and technology concepts among the general public, particularly
students. On rotation basis, the scientific and technical staff working
in the Centre are posted to look after the duty. Accordingly, one
Manoharan was posted in the Museo Bus for discharging duties at Elumalai
Polytechnic from 4-1-2002 to 6-1-2002 and from 7-1-2002 to 9-1-2002.
Stating that his mother-in-law was seriously ill he requested the
Executive Director to relieve him by posting a substitute in his place.
The petitioner was posted to look after the duties of Elumalai
Polytechnic, Villupuram, in the Executive Director’s Memo No.457/P1/2001,
dated 4 -1-2002. Instead of attending to the duty, the petitioner rushed
into the Executive Director’s Chamber at 5.20 p.m., when officers were
discussing about the financial and other policy matters. The
Superintendent of Accounts Section was also waiting to get the signature
of the Executive Director in the bills and cheques to be disbursed
immediately. Without getting the permission of the Executive Director,
he pulled the chair and sat on it and shouted at the Executive Director
that he would not attend his duty. He further told the Executive
Director that his wife was ill and he could not go to Villupuram. He
disturbed the work in the Executive Director’s Chambers for sometime. He
behaved in a more indisciplined manner unbecoming of a responsible staff
member. At the time of his misbehaviour, four staff members were also
present and they had also given complaints against him. Due to his
misbehaviour the petitioner was suspended from duty and the order was
sent to him by registered post. On 6-1-2002 the suspension order was
also handed over to the petitioner in person. It was not true to say
that the respondent developed animosity with the petitioner or that he
was harassed and put to great hardship. It was equally false to say that
the respondent abused powers and scolded the petitioner in derogatory or
filthy language. The permission to have lunch outside was rejected
because the respondent being a public oriented enterprise, there were
equipment worth about Rs.30 lakhs in the custody of the petitioner and if
he left the premises, there was a possibility that the equipment might be
stolen or damaged. In fact, on one past occasion when the petitioner
left the premises, a transistor worth approximately Rs.700/- was stolen.
The petitioner had committed grave misconducts and the charges are likely
to be framed shortly. A domestic enquiry is also likely to be conducted.
The suspension order had been passed properly and no exception can be
taken to this.
5. A reply has been filed setting out the events that
had happened subsequent to the petitioner obtaining the interim order,
besides denying the case set out in the counter and reiterating the
contentions in the main writ petition. It is further stated in the reply
that he obtained the copy of the order from this Court on 4.2.2002 and
furnished a copy of the same to the respondent. Immediately on receipt
of the order from this Court, the respondent called the petitioner and
informed him that he would revoke the order of suspension provided the
petitioner withdrew the writ petition. On 6-2-2002 the petitioner sent a
letter to the Counsel for the respondent through his Counsel narrating
the above facts and sought for amicable settlement in the matter. In
fact, on 6-2-2002 he met the respondent accompanied by his uncle Mr.
Rangaraj. On that day the respondent started abusing the petitioner.
These facts have been suppressed in the counter. The incumbent Officer
is bent on removing the petitioner from service on some pretext or the
other.
6. This is a case of suspension pending departmental
enquiry. From the narration, I do not find any mala fides in the order
of suspension passed by the respondent. I had occasion to consider the
question regarding stay of suspension in W.P.No.4724/98 and
W.M.P.Nos.7312 and 7313 of 1998 and held that there was no scope for
interference by this Court under Article 226 of the Constitution when
serious allegations of misconduct are made against the aggrieved party.
7. In STATE OF ORISSA VS. BIMAL KUMAR MOHANTY (AIR 1997
SC 2290 = 1 994(4) SCC 126) the Supreme Court referred to a number of
earlier decisions and ultimately held as follows:
“It is thus settled law that normally when an appointing authority or the
disciplinary authority seeks to suspend an employee, pending inquiry or
contemplated inquiry or pending investigation into grave charges of
misconduct or defalcation of funds or serious acts of omission and
commission, the order of suspension would be passed after taking into
consideration the gravity of the misconduct sought to be inquired into or
investigated and the nature of the evidence placed before the appointing
authority and on application of the mind by disciplinary 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 enquiry without any impediment or to prevent an
opportunity to the delinquent officer to scuttle the enquiry 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
enquiry, etc. But as stated earlier, each case must be considered
depending on the nature of the allegations, gravity of the situation and
the indelible impact it creates on the service for the continuance of the
delinquent employee in a service pending enquiry or contemplated enquiry
or investigation. It would be another thing if the action is actuated by
mala fides, arbitrary or for ulterior purpose. The suspension must be a
step in aid to the ultimate result of the investigation or enquiry. The
authority also should keep in mind public interest of the impact of the
delinquent’s continuance in office while facing departmental enquiry or
trial of a criminal charge.”
To the same effect is the decision of the Supreme Court in SECRETARY TO
GOVERNMENT, PROHIBITION AND EXCISE DEPARTMENT VS. SRINIVASAN (199 6-3
SCC 157).
8. In the latest decision of the Supreme Court NEW
INDIA ASSURANCE CO. LTD. VS. S.M.I. KAZIM AND OTHERS (2001-1 LLJ 1700
) it has been held that,
“an order of suspension during the pendency of a departmental inquiry is
ordinarily not interfered with by the High Court in exercise of its
jurisdiction under Article 226 of the Constitution until and unless the
Court comes to a conclusion that the order has been mala fidely passed;
or that the appropriate authority has not passed the order of
suspension.”
9. In as much as no mala fides have been shown in this
matter, it is not possible to invoke Article 226 of the Constitution.
The writ petition fails and the same is dismissed. The connected
miscellaneous petitions are also dismissed. There will be no order as to
costs. However, there will be a direction to the respondent to complete
the enquiry within a period of three months from the date of receipt or
production of a copy of the order in the writ petition.
Index: Yes 8-3-2002 IGP To The Executive Director, Tamil Nadu Science and Technology Centre, Guindy, Chennai 600 025. K. SAMPATH, J. W.P.No.1879/2002 & W.P.M.P.No.2600/2002 and W.V.M.P.No.106/2002 8-3-2002
