IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.04.2009 CORAM THE HON'BLE JUSTICE Mr.N.PAUL VASATHAKUMAR and THE HON'BLE JUSTICE Mr.N.KIRUBAKARAN W.P.No.5388 of 2009 and M.P.No.1 of 2009 M.Rajambal .. Petitioner vs The Principal District Judge, Salem District, Salem 636 007 .. Respondent Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari by calling for the records relating to the order dated 27.8.2008 made in Roc.No.5457/A/2004 on the file of the respondent herein and quash the same.
For Petitioner : Mr.T.Murugamanickam For Respondents : Mr.P.Subramanian, Additional Government Pleader O R D E R (The order of the court was made by N.PAUL VASATHAKUMAR,J.) The prayer in the writ petition is to quash the order of suspension dated 27.8.2008.
2. The case of the petitioner is that the petitioner joined as a Copyist in the Judicial Ministerial Service on 20.3.1985 and she was posted as Serishtadar Assistant in the Sub-Court, Sankari, on 14.11.2000 and served in the said post till 20.6.2005. On 23.7.2004, the learned Subordinate Judge, Sankari, received an information from the Typist of the Sub-Court, Salem, that the Court fees stamp papers are missing from the case bundle, in which she was typing the decree. The learned Sub-Judge, on instruction from the Principal District Judge, Salem, inquired into the matter and found that the Court fees stamp papers to the value of Rs.3,27,782.25ps were found missing from various case bundles of that Court. The learned Judge, thereafter, issued a show cause notice to ten staff members of that Court. Proceedings were initiated under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, against the then Serishtadar and others. The learned Sub Judge, on 8.2.2006, initiated proceedings against the petitioner under Rule 17(b) of the said Rules. The charge alleged against the petitioner reads as follows:
"You, Tmt.M.Rajambal, while working as Serishtadar Assistant, in Sub Court, Sankari, on receipt of the court fee stamp papers filed along with the plaint for registering the same in Register No.19 after initialing on the same by Serishtadar, you failed to count and calculate the value of the court fee stamp and record the same in the register. Thus, you failed to perform your duty. This act of you amounts an offence under Rule 17(b) of Tamil Nadu Civil Servants (Conduct and Appeal) Rules."
The petitioner submitted explanation for the said charge memo on 26.4.2006 and denied the charge.
3. The learned Subordinate Judge, Sankari, sent a report to the Principal District Judge, Salem. As per the directions given by the Registry of this Court, the learned Principal District Judge addressed a letter to the Superintendent of Police to investigate the matter and take action against the culprits involved and to recover the stamp papers.
4. The Superintendent of Police, Salem, directed registration of First Information Report, pursuant to which Crime No.38/2004 was registered by the District Crime Branch, Salem. After investigation, the Deputy Superintendent of Police, District Crime Branch, Salem, gave a report on 25.8.2008 wherein the petitioner's involvement was prima facie found. The petitioner was placed under suspension by order dated 27.8.2008. The petitioner apprehending arrest, filed an anticipatory bail petition in Crl.O.P.No.21936 of 2008 before this Court and this Court on 10.9.2008 granted anticipatory bail to the petitioner on condition to report before the respondent Police daily. The said condition was relaxed on 28.10.2008.
5. The said order of suspension is challenged in this writ petition on the ground that the petitioner's name was not mentioned in the First Information Report registered in crime No.38 of 2004 and the learned counsel for the petitioner submitted that the petitioner's name is not stated by the Deputy Superintendent of Police in his report dated 25.8.2008 about her involvement and prayed for setting aside of the suspension order.
6. We have considered the facts pleaded as well as the submissions of the learned counsel for the petitioner, in the light of the order passed by the respondent.
7. It is seen from the suspension order that a complaint has been lodged by the Principal District Judge, Salem, to the Superintendent of Police, Salem, on 9.11.2004 as directed by this Court in the Official Memorandum, for investigation of the theft of Court fees stamp papers in the Sub-Court, Sankari, to the tune of Rs.3,27,782.25ps, which was registered by the District Crime Branch, Salem, on 10.11.2004 in Crime No.38/2004 under
Section 409 and
380 I.P.C. and the same is pending investigation. The Deputy Superintendent of Police, District Crime Branch, Salem, in his report dated 25.8.2008 stated that the investigation so far conducted reveals a prima facie case, in connection with the theft of the court fees stamp papers, on file of the Sub-Court, Sankari, is made out against Tmt.M.Rajambal, formerly Assistant, Sub-Court, Sankari, now Head Clerk, Judicial Magistrate Court No.2, Salem. Taking note of the said prima facie material, the respondent issued suspension order under Rule 17(e) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules.
8. Rule 17(e) clearly states that a member of a service may be placed under suspension from service, where an enquiry into grave charges against him/her is contemplated, or is pending, or a complaint against him/her of any criminal offence is under investigation or trial and if such suspension is necessary in the public interest. For proper appreciation, Rule 17(e)(1) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules is extracted hereunder:
Rule 17(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 or any criminal offence is under investigation or trial and if such suspension is necessary in the public interest.
9. The respondent is empowered to place the petitioner under suspension either pending enquiry into grave charge or on contemplation of charge or if any criminal offence is under investigation or trial on his satisfaction that public interest warrants. As stated supra, against the petitioner, not only 17(b) charges framed under the Tamil Nadu Civil Services (Discipline and Appeal) Rules, is pending, which is punishable with major penalties, but also the criminal investigation reveals the involvement of the petitioner in the theft of court fee stamps to the tune of Rs.3,27,782.25 ps. The respondent thought fit to place the petitioner under suspension until further orders. There is no perversity in the said order.
10. The contention of the learned counsel for the petitioner that the investigation report is not pointing out any proof against the petitioner is unsustainable as the respondent specifically stated in the order that the Deputy Superintendent of Police, Salem, in his report dated 25.8.2008, found that there are prima facie materials available against the petitioner and the said report is cited as reference number 16 in the impugned order. A court staff, proceeded for the theft of stamp papers, both under the service rules viz., under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, and under the criminal law, where after investigation by the police, prima facie proof is made out against him/her, is not entitled to challenge the order of suspension, passed on public interest during pendency of charge and pending completion of the investigation.
11. The power of the department to place an officer under suspension, on public interest, pending enquiry into the disciplinary proceeding/criminal investigation/trial, is well settled.
(a) The Supreme Court in the decision reported in AIR 1959 Supreme Court 1342 (Hotel Imperial Vs. Hotel Workers' Union) in paragraph 10 held thus, 10. The first question therefore that falls for consideration is the extent of the power of the employer to suspend an employee under the ordinary law of master and servant. It is now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the so-called period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. These principles of the ordinary law of master and servant are well settled and have not been disputed before us by either party. Reference in this connection may be made to Hanley v. Pease and Partners Ltd., 1915-1 KB 698, Wallwork v. Fielding, 1922-2 KB 66, Secretary of State v. Surendra Nath, ILR (1939) 1 Cal 46: (AIR 1938 Cal 759) and Rura Ram v. Divisional Superintendent, N.W.Railway, ILR 1954-7 Punj 415: (AIR 1954 Punj 298).
(b) Again in the decision reported in AIR 1964 SC 787 (R.P.Kapur v. Union of India), the Supreme Court held that the authority entitled to appoint a public servant would be entitled to suspend him pending departmental enquiry into his conduct or pending criminal proceeding, which may eventually result in departmental enquiry against him.
12. In view of the above findings and in the light of the decisions of the Honourable Supreme Court, we find no error in the impugned order of suspension, warranting interference. There is no merits in the writ petition and the writ petition is dismissed in limine. However, we made it clear that the dismissal of this writ petition will not preclude the petitioner from approaching the respondent for revocation of the order of suspension on any valid ground. If any representation to that effect is made by the petitioner, it is for the respondent to consider the same and pass orders on merits and in accordance with law. No costs. Connected M.P.No.1 of 2009 is closed.
(N.P.V.J.) (N.K.K.J.) 06.04.2009 Index:Yes/No Websit:Yes/No vr/vsi To The Principal District Judge, Salem District, Salem 636 007 N.PAUL VASATHAKUMAR J, and N.KIRUBAKARAN,J.
vr W.P.No.5388 of 2006 6.4.2009