(Judgment of the Court was delivered by HULUVADI G.RAMESH,J.)
1. This Writ Appeal is filed challenging the order dated 02.12.2016, passed in W.P.No.19396 of 2016, whereby, the learned single Judge confirmed the order of suspension, thereby dismissed the Writ Petition.
2. The facts in brief are as follows:
The appellant was working as a Joint Secretary in the Tamil Nadu Legislative Assembly Secretariat (in short, TNLAS). It is seen that while the appellant was acting as the Committee Officer, an FIR came to be registered by the 2nd respondent herein against the appellant for an alleged offence under Sections 420, 477-A, 409, 511 read with Section 409 IPC read with Section 13(2) read with Section 13(1)(d) and Section 15 of the Prevention of Corruption Act in Crime No.02/AC/2012/CC-IV dated 2.7.2012. The allegation against the appellant was that while he was working as Under Secretary (Buildings), he approved purchase of some furnitures to the TNLAS. However, no disciplinary proceedings were initiated against the appellant. Thereafter, the appellant was given further promotions. However, when the appellant was due to retire on superannuation, on 31.5.2016, he was served with an order of deemed suspension stating that a criminal case has been registered by the DVAC against him. Thereafter, he was not permitted to retire from service.
3. Aggrieved by the order of suspension, the appellant filed W.P.No.19366 of 2016 before this Court on the ground that without getting orders from the Governor, who is the appointing authority, the order of suspension was illegal.
4. This Court, by order dated 02.12.2016, dismissed the Writ Petition, thereby confirmed the order of suspension.
5. Aggrieved by the same, the appellant has preferred the instant appeal.
6. Learned counsel appearing for the appellant submitted that even though FIR was registered against the appellant in the year 2012, no charge sheet has been filed as also no disciplinary proceedings were initiated. He also submitted that when the appellant was holding the post of Joint Secretary, only the Governor, who is the appointing authority, has powers to place him under suspension. The first respondent, without getting orders from the Governor has placed the appellant under suspension. He further submitted that the note approved by the appellant for purchase of furniture had been cancelled subsequently, by the Government. Hence, there is no loss to the exchequer. The learned Single Judge without appreciating these facts, has confirmed the order of suspension. Hence, the impugned order may be set aside.
7. Per contra, learned Special Government Pleader appearing for the respondents tried to justify the order of the learned Single Judge. She submitted that files have been sent to the Government for post- facto approval. She further submitted that even if the authority, who passed the suspension order, has no authority, when once orders have been obtained from the Governor ratifying the said action, the same is valid. Hence, the learned Single Judge has correctly appreciated stand taken by the respondents.
8. Heard the learned counsel appearing for the appellant and the learned Special Government Pleader appearing for the respondents and perused the materials placed before this Court.
9. It appears that the appellant while working as a Joint Secretary, at the relevant point in time, had been suspended by the Secretary on the allegation that an attempt was made to purchase some furnitures to the TNLAS, thereby caused loss to the exchequer. It is seen that an FIR has been filed, way back in the year 2012. However, till date neither charge sheet has been filed nor any disciplinary proceedings have been initiated against the appellant.
10. At this juncture, learned Special Government Pleader submitted that a charge sheet has been filed but it has been returned for some clarification.
11. It is not disputed by the learned Special Government Pleader that the order to purchase furniture, approved by the appellant, has been cancelled subsequently. Therefore, there is no loss to the exchequer.
12. Since, the attempt to misappropriate, as argued by the learned Special Government Pleader, has not taken place and no charge sheet has been filed as yet and further no enquiry is pending against the appellant, we are of the view that the order of suspension is illegal. Further, there is an inordinate delay in the process of even initiating a domestic enquiry, apart from the alleged criminal charge, on which, charge sheet has not been filed.
13. Having regard to the fact that since neither charge sheet has been filed nor any disciplinary proceedings have been initiated, at this point of time, even criminal proceedings has not yet completed, though four years have lapsed, we are of the view that the impugned order has to be set aside.
14. Accordingly, the impugned order is set aside and the Writ Appeal is allowed. However, there will be no order as to costs. The respondents are directed to settle the terminal benefits due to the appellant within a period of three months from the date of receipt of a copy of the order.
15. However, with regard to the criminal proceedings, if any to be initiated, that would have an independent consequence.
Index : Yes/No (H.G.R.,J) (G.J.,J) Speaking order/Non-speaking order 27.07.2017 sl HULUVADI G.RAMESH,J.
AND Dr.G.JAYACHANDRAN,J.
sl W.A.No.121 of 2017 27.07.2017