'No Absolute Proposition By SC That Suspension Of Employee Can't Continue Beyond 3 Months Without Filing Chargesheet': Madras High Court (FB)

Madras High Court has held that Supreme Court has not laid down any absolute proposition of law that suspension of an employee cannot continue beyond three months in the absence of serving the charge sheet within that time, or if the charge-sheet is served without reasoned order of extension. 

The full bench of Chief Justice Munishwar Nath Bhandari, Justice D. Bharatha Chakravarthy and Justice V. Bharathidasan concluded that the apex court case relied on by the suspended employee, Ajay Kumar Choudhary v. Union of India (2015), would not apply and the order of suspension should be analysed based on the facts of each case, rules applicable and the gravity of charges etc.

"Paragraph (21) of the judgment in Ajay Kumar Choudhary... rules that currency of the suspension order should not be extended beyond three months if within that period memorandum of charges/charge-sheet is not served on the delinquent officer and even if it is served, the reasoned order must be passed for extension of the suspension. In the next paragraph, i.e., paragraph (22), it was ruled that looking to the facts of the case, the appellant having been served with the charge sheet, though much beyond the period of three months, the directions given in paragraph (21) were held to be not relevant..."

By pointing out this aspect in para (22) that has not been paid attention to, the court observed that the case has been applied even in cases where charge sheet was served before the challenge to the suspension order or during the pendency of the writ petition, even though charge sheet can be served well after a period of three months.

The bench was answering a reference made by the single judge bench in light of the conflicting Madras High Court judgments in Director General of Police & Anr. v. T.Kamarajan (2019) and Chairman-cum-Managing Director, TANGEDCO & Ors. v. R.Balaji (2021). While Ajay Kumar Choudhary was construed as laying down an absolute proposition of law on suspension in the latter, the former judgment concluded that the order of suspension need not be interfered with on the basis of  Ajay Kumar Choudhary.

"...Thus, the direction in paragraph (21) of the judgment in the case of Ajay Kumar Choudhary, supra, should have been applied after taking note of the facts of that case, where even the interference with the suspension order was not made, though by the time the judgment of the Apex Court was rendered, more than a period of four years already passed from the date of suspension. Yet, the Apex Court refused to cause interference with the order of suspension..."

Taking note of the above, the full bench concluded that the decision rendered in R. Balaji has been without reference to earlier Division Bench and Supreme Court judgments, thereby deeming it as per incuriam.

Court's Observations

After hearing both parties in the reference, the full bench made elaborate observations with regards to the applicability of Ajay Kumar Choudhary as an absolute proposition of law. Firstly, the court observed that the two-judge bench in Ajay Kumar Chaudhary has not taken into account the previous constitution bench and larger bench judgments taking a contrary stand, which will be squarely applicable to the High Courts too, as laid down in Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005). The contrary judgments referred by the full bench included the five-judge bench judgment in Khem Chand v. Union of India (1962) and R.P.Kapur v. Union of India (1963) where the court held that the purpose of suspension pending a departmental enquiry/ pending a criminal proceeding is a disciplinary proceeding.

In Ajay Kumar Chaudhary, the judgment was driven by Section 167(2) of the Code of Criminal Procedure, 1973 which provides the period for submission of charge-sheet, but it is only for the purpose of the period of remand and does not provide the limitation for submission of charge-sheet in general, the court noted. The analogy of three months' time was drawn from Section 167(2) in the said judgment. 

"It needs to be clarified that the provisions of the Code of Criminal Procedure, 1973 would have no application to service jurisprudence and, accordingly, the judgment of the Apex Court in Ajay Kumar Choudhary, supra, needs to be considered for its application. In such context, the Division Bench of this court in Arignar Anna Sugar Mills Ltd, supra [Arignar Anna Sugar Mills Ltd v. R.Vengatasamy & Ors (2017)], held that the law laid down by the Apex Court in the case of Ajay Kumar Choudhary, supra, does not lay down an absolute proposition that order of suspension can never be extended beyond three months", the court clarified.

"The decision of the Supreme Court in Ajay Kumar Choudhary (supra) enunciates the proposition that principles of criminal law should be applied to departmental proceedings. Even criminal law permits incarceration beyond three months in serious and grave cases pending trial", the bench in Arignar Mills had noted in reference to the suspension that exceeds three months.

The full bench also referred to a slew of High Court judgments to establish that in cases relating to the order of suspension involving grave charges leading to a criminal trial, interference with the suspension order on the basis that the suspension period exceeded three months is not justifiable.

Pertinently, the court also answered another question in the reference to revocation of suspension by posting the delinquent employee in a non-sensitive post. The court noted that it cannot be endorsed or directed as a matter of court and it will depend upon the facts of each case and after ascertaining the reason for the delay in serving the memorandum of charge-sheet. The court also emphasised the need to address the issue in every case challenging the suspension based on its repercussions.

"For instance, when an employee makes an allegation of rape against a co-employee, followed by registration of criminal case, then merely for the reason that charge-sheet could not be submitted within three months if the order of suspension is revoked with a direction to post the employee in a non-sensitive post, it may have serious repercussions."

The court then went on to refer to Quinn v. Leathem, 1901 AC 495 to underscore that Ajay Kumar Choudhary must be analysed by taking note of the peculiar facts of the case and by reading paragraphs (21) and (22) together.  In Arignar Anna Sugar Mills too, the Division Bench of Madras High Court had observed that Ajay Choudhary must be understood in the context of its facts and rules applicable ( Rules 17(e) and 3(e) of Tamil Nadu Civil Services (Discipline and Appeal) Rules,1955 in the current case).

"At this stage, we would like to refer to the judgment of the Apex Court in the case of Deepak Bajaj v. State of Maharashtra, AIR 2009 SC 628, wherein the Apex Court held that the judgment of a court is not to be read mechanically as a Euclid's Theorem nor as if it was a statute, rather the ratio of the decision has to be understood in the background of the facts of that case.", the bench added.