Madras High CourtR.Murugavel vs The Commissioner Of Police on 29 August, 2013Author:D.HariparanthamanBench:D.HariparanthamanIN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED  : 29.08.2013

CORAM:

THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN

Writ Petition No.20391 of 2013 and
M.P.No.1 of 2013

R.Murugavel				... Petitioner
	
 vs.
	
1.The Commissioner of Police,
  Coimbatore City,
  Coimbatore.

2.The Deputy Commissioner of Police (Traffic)
  Coimbatore City,
  Coimbatore. 		... Respondents

	Writ Petition filed underArticle 226of the Constitution of India for the issuance of writ of Certiorarified Mandamus, calling for the records pertaining to the impugned suspension order of the 2nd respondent in Memo No.CPO:181/2012/C.No.F1/6552/2013 dated 13.02.2013 and quash the same and consequently direct the respondents to reinstate the petitioner in the service. 

		For Petitioner    	:  Mr.G.Shivasurya

		For Respondents   :  Mr.V.Subbiah, Spl.Govt.Pleader


O R D E RThe petitioner was appointed as Grade I Constable in the Police Department. He was promoted as Special Sub-Inspector of Police and posted at B3 Traffic Kattur Police Station, Coimbatore City.2. While so, a case was registered in Crime No.20/2013 on the file of Perur Police Station, Coimbatore District, underSections 294(b),323,427and506(ii)of IPC against the petitioner on the allegation that the petitioner along with Sundarajan and Natarajan had beaten the defacto complainant Meenatchi Sundaram and damaged the glass bottles of his petty shop and caused simple hurt.3.  In these circumstances, the petitioner obtained anticipatory bail from this Court by an order dated 13.02.2013 in Crl.O.P.No.2855 of 2013.4. Based on the registration of the aforesaid criminal case, the second respondent passed the impugned suspension order dated 13.02.2013 under Rule 3(e)(1)(i)&(ii)  of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 (for short TNPSS (D & A) Rules).5. The order of suspension is under challenge in this writ petition.6.  Heard both sides.7. The learned counsel for the petitioner has submitted that the petitioner was not arrested and remanded to custody, and therefore, there was no necessity to place him under suspension.  It is further submitted that paying subsistence allowance from tax payers money would cause loss to the Government exchequer and therefore, he prayed that the suspension of the petitioner may be revoked and he could be transferred to a faraway place.8. The petitioner has relied on the following judgments of this Court:-i) The Deputy Inspector General of Police, Coimbatore Range v. S.Govindaraj[2012 (1) CTC 124]ii) R.Gunasekaran, Sub-Inspector of Police v. The Deputy Inspector General of Police, Thanjavur Range, [CDJ 2013 MHC 713]9. I have considered the submissions made by the learned counsel for the petitioner.10. It is necessary to extract clause 3 (e)(1) & (2) of TNPSS       (D & A) Rules:-"3(e)(1) A member of a service may be placed under suspension from service,where-(i) an enquiry into grave charges  against him is contemplated or is pending, or(ii) a complaint against him of any criminal offence is under investigation or he is under trial and if such suspension is necessary in the public interest.(2)A member of a service who is detained in custody whether on a criminal charge or otherwise, for a period longer than forty eight hours shall be deemed to have been suspended under this rule."11. The petitioner was not placed under suspension invoking clause 3(e)(2) of the TNPSCC (D & A) Rules. Only the said rule contemplates placing an employee under suspension if he was detained in custody for more than forty eight hours.  Hence, the submission made in this regard by the learned counsel for the petitioner has no substance.12. As per the affidavit filed in support of the writ petition, the petitioner was placed under suspension for his involvement in the criminal case in Crime No.20/13 underSections 294(b),323,427and506(ii)of IPC on the file of Perur Police Station, Coimbatore District.13. It is stated in the suspension order that public interest requires to place the petitioner under suspension.   The petitioner was placed under suspension invoking Rule  3(e)(1)(i)&(ii) of TNPSS (D & A) Rules.  The said Rule contemplates to place an employee under suspension if  complaint against him of any criminal offence is under investigation or he is under trial and if such suspension is necessary in the public interest.14. Further, the petitioner is a Special Sub-Inspector belonging to Uniformed service. A criminal case is registered against him.  The allegation made against him was that he had caused damage to the petty shop of the defacto complainant and caused simple hurt.15. Therefore, I am of the view that there is no infirmity in the impugned order of suspension.  However, the learned counsel for the petitioner vehemently contended by placing reliance on the judgments referred to above.16. The decisions relied on by the petitioner are dealt with hereunder:-i) In theDeputy Inspector General of Police, Coimbatore Range v. S.Govindaraj[2012 (1) CTC 124], the respondent was a Head Constable. He was kept under suspension invoking Rule 3(e)(1)(ii) of TNPSS (D & A) Rules based on the criminal case registered against him underSection 7of Prevention of Corruption Act, 1988.  The charge against him was that he collected bribe from the complainant one Ponnuswamy for return of his vehicle.  He was placed under suspension by order dated 06.09.2006.  In those circumstances, the learned single Judge allowed the writ petition on 27.08.2009 on the ground that the petitioner was under suspension for more than three years.ii) The State filed writ appeal. While admitting the writ appeal, interim stay of the order of the learned single Judge was granted and the same was also made absolute.iii) Taking into account the fact that the delinquent therein was kept under suspension for five years and also the fact that the name of the delinquent therein did not find place in the FIR and that the allegation of demanding bribe was made against the Sub-Inspector of Police, the Division Bench did not interfere with the order of the learned single Judge and dismissed the writ appeal. The Division Bench noted that the respondent therein has been kept under prolonged suspension for a period of nearly 5 years and investigation was already over and charge sheet was also filed and one prosecution witness was examined at that time.17. In the case on hand, the petitioner was placed suspension only on 13.02.2013. The stage of the investigation of the criminal case, wherein, the petitioner was arrayed an accused, is not stated.  Hence, the aforesaid judgment cannot be of any use to the petitioner and the same cannot be applied to the facts of this case.18. In the judgment in R.Gunasekaran, Sub-Inspector of Police v. The Deputy Inspector General of Police, Thanjavur Range, [CDJ 2013 MHC 713], referred to by the learned counsel for the petitioner, the petitioner therein was a Sub-Inspector of Police. While he was on duty at Poraiyar Police Station, on 24.11.2009, one Aruldhas, gave a complaint that the petitioner therein demanded bribe. The Vigilance and Anti Corruption department registered a case in Crime No.12/2009 underSections 7,13(1)(d)read withSection 13(2)of the Prevention of Corruption Act, 1988. He was kept under suspension for three years. In these circumstances, taking into account the fact that the petitioner was kept under suspension for more than three years, the writ petition was disposed of on 28.11.2012 directing the respondent department therein to post the petitioner in a non-sensitive post. Further, the authorities were also directed to reexamine the issue and to place the petitioner therein under suspension if the authorities were of the opinion that his continuance in service would cause hindrance to the proceedings.18 (i) Paragraph 8 of the said judgment is extracted hereunder:-"8.In such circumstances, in view of the earlier orders passed by this Court, cited supra, the impugned proceedings of the respondent, dated 04.12.2009, is set aside and the respondent is directed to post the petitioner in a far away place from the station, in which the occurrence is alleged to have taken place, in a non-sensitive post. It is made it clear that, if for some reason, the authorities concerned are of the opinion that his continuance in service is a hindrance to the proceedings initiated  against him, they could re-examine the issue and they would be at liberty to take appropriate action against the petitioner and to pass orders, as per law."18 (ii) In the last two lines of paragraph 5 of the judgment, this Court has held that the writ petition is liable to be dismissed. The said lines are extracted hereunder:-"As such, the contentions raised on behalf of the petitioner are devoid of merits, and therefore, this Writ Petition is liable to be dismissed."18 (iii) Taking into account the fact that the petitioner therein has been kept under suspension for three years, this Court issued a direction as stated above.19. In my view, the aforesaid judgments were passed taking into account the fact that the delinquents therein were kept under prolonged suspension for 5 years/3 years. In fact those judgments, in my view,  do not lay down a law to the effect that any Police Constable, who is under suspension and facing a criminal case could be restored to duty and posted to a far off place.20. At this juncture, it is relevant to take note of the law laid down by the Apex Court in the following cases:-i) InAllahabad Bank v. Deepak Kumar Bholareported in (1997) 4 SCC 1., the Apex Court had held that if investigation is conducted by the CBI, which resulted in filing of charge sheet before the Special Court for various offences, that is sufficient for concluding that the Government servant should be suspended and the fact that there was delay of 10 years cannot be a ground for the Government servant to come back to duty unless he was exonerated of charges. The following passages found in paragraphs 10 and 11 may be usefully reproduced below:-10.In our opinion the aforesaid observations correctly spell out the true meaning of the expression moral turpitude. Applying the aforesaid test, if the allegations made against the respondent are proved, it will clearly show that he had committed an offence involving moral turpitude and, therefore, the appellant had the jurisdiction to suspend him under the aforesaid clause 19.3. The High Court observed that there was nothing on record to suggest that the management had formed an opinion objectively on the consideration of all relevant material available against the petitioner that in the circumstances of the case the criminal acts attributed to the petitioner implied depravity and vileness of character and are such as would involve moral turpitude. It did not regard entering into a criminal conspiracy to commit the aforesaid offences as being an offence involving moral turpitude. We are, to say the least, surprised at the conclusion which has been arrived at by the Allahabad High Court. There was material on record before the appellant, in the form of the report of the CBI/SPE, which clearly indicated the acts of commission and omission, amounting to moral turpitude alleged to have been committed by the respondent. Furthermore the respondent has been charged with various offences allegedly committed while he was working in the Bank and punishment for which could extend up to ten years' imprisonment (in case the respondent is convicted underSection 467IPC).11.We are unable to agree with the contention of the learned counsel for the respondent that there has been no application of mind or the objective consideration of the facts by the appellant before it passed the orders of suspension. As already observed, the very fact that the investigation was conducted by the CBI which resulted in the filing of a charge-sheet, alleging various offences having been committed by the respondent, was sufficient for the appellant to conclude that pending prosecution the respondent should be suspended. It would be indeed inconceivable that a bank should allow an employee to continue to remain on duty when he is facing serious charges of corruption and misappropriation of money. Allowing such an employee to remain in the seat would result in giving him further opportunity to indulge in the acts for which he was being prosecuted. Under the circumstances, it was the bounden duty of the appellant to have taken recourse to the provisions of clause 19.3 of the First Bipartite Settlement, 1966. The mere fact that nearly 10 years have elapsed since the charge-sheet was filed, can also be no ground for allowing the respondent to come back to duty on a sensitive post in the Bank, unless he is exonerated of the charge.
									(Emphasis added)ii)  InA.K.K. Nambiar v. Union of Indiareported in (1969) 3 SCC 864, the Apex Court had held that unless malafides are attributed to the Government and established, the Court cannot interdict an order of suspension. The following passages found in paragraphs 7 and 10 may be usefully reproduced below:-7..... The appellant contended that the appellant was not suspended under sub-rule (3) of Rule 7. That is a contention. The facts are that there was an investigation and the trial is awaiting relating to a criminal charge against the appellant. The order of suspension has to be read in the context of the entire case and combination or circumstances. This order indicates that the Government applied its mind to the allegations, the enquiries and the circumstances of the case. The appellant has failed to establish that the Government acted mala fide. There is no allegation against any particular officer of the Government of India about acting mala fide.....10..... We are not concerned with the correctness and the propriety of the report. We have only to examine whether the order of suspension was warranted by the rule and also whether it was in honest exercise of powers.....iii) In D.G. and I.G. of Police v. K. Ratnagiri reported in (1990) 3 SCC 60, the Apex Court  had held that a wrong terminology in the order did not take away the power if it is available otherwise.  In paragraph 7, the Supreme Court held as follows:-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)iv) Taking similar view inUnion of India v. Rajiv Kumarreported in (2003) 6 SCC 516, the Supreme Court held that if suspension is for a long period that by itself cannot make the suspension invalid. In paragraphs 15 and 29, it was observed as follows:-15...... it is clear that the order of suspension does not lose its efficacy and is not automatically terminated the moment the detention comes to an end and the person is set at large. It could be modified and revoked by another order as envisaged under Rule 10(5)(c) and until that order is made, the same continues by the operation of Rule 10(5)(a) and the employee has no right to be reinstated in service. This position was also highlighted inBalvantrai Ratilal Patel v. State of Maharashtra. Indication of the expression pending further order in the order of suspension was the basis for the aforesaid view.29.Another plea raised relates to a suspension for a very long period. It is submitted that the same renders the suspension invalid. The plea is clearly untenable. The period of suspension should not be unnecessarily prolonged but if plausible reasons exist and the authorities feel that the suspension needs to be continued, merely because it is for a long period that does not invalidate the suspension.		
(Emphasis added)21.  In view of the legal pronouncements of the Apex Court, I am not inclined to interfere with the order of suspension. The writ petition fails and accordingly, the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.29.08.2013
Index   : Yes/No
Internet: Yes/No
svki

To1.The Commissioner of Police,
  Coimbatore City,
  Coimbatore.2.The Deputy Commissioner of Police (Traffic)
  Coimbatore City,
  Coimbatore.D.HARIPARANTHAMAN, J.svki










Order inW.P.No.20391 of 201329.08.2013