Non Reportable  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No.8427-8428     of 2018 (Arising out of S.L.P. (Civil) No.12112-12113 of 2017)

STATE OF TAMIL NADU REP. BY SECRETARY TO GOVT.  (HOME)

.... Appellant Versus

PROMOD KUMAR IPS & ANR.                             ….Respondents

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted.    

1.  The first Respondent filed O.A. No.165 of 2016 in the

Central Administrative Tribunal, Madras Bench challenging

his  suspension  and the charge memo dated 29.10.2013.

The Tribunal allowed O.A. No.165 of 2016 filed by the first

Respondent  by  revoking  his  suspension.    The  Tribunal

refused  to  set  aside  the  charge  memo.   The  first

Respondent filed Writ Petition No.39989 of 2016 in the High

Court of Madras challenging the judgment of the Tribunal in

O.A. No.165 of 2016 in respect of the refusal to quash the

charges  framed against  him.    The  Appellant  -  State  of

Tamil  Nadu  filed  Writ  Petition  No.38696  of  2016

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assailing  the  judgment  of  the  Tribunal  regarding  the

direction to reinstate the first Respondent by revoking his

suspension.   The  High  Court  by  its  judgment  dated

12.01.2017 upheld the judgment of the Tribunal revoking

the suspension of the first Respondent.   The High Court

further  quashed  the  disciplinary  proceedings  initiated  by

the Appellant against the first Respondent by declaring the

charge  memo  dated  29.10.2013  as  non  est in  law.

Aggrieved  by  the  said  judgment  of  the  High  Court,  the

Appellant  has  approached this  Court  by  filing  the  above

appeal.  2. The first Respondent is a member of the Indian Police

Service and was allotted to the State of Tamil Nadu.  He

was  posted  as  Inspector  General  of  Police,  West  Zone,

Coimbatore  from  10.09.2008  to  19.02.2010.   During  his

tenure  in  the  said  post,  an  FIR  was  registered  against

K.Mohanraj, K. Kathiravan and Kamalavalli Arumugam who

were the Directors of M/s Paazee Forex Trading India Private

Limited (hereinafter referred to as “M/s Paazee Forex”) by

the Central Crime Branch, Tirupur under Section 3 and 4 of

the  Prize  Chits  and Money Circulation  Scheme (Banning)

Act, 1978 and Section 420 of the Indian Penal Code, 1860

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(IPC).   M/s  Paazee Forex was alleged to  have cheated a

large number of depositors to the tune of Rs.1,210 crores.

The  Directors  of  the  company  were  granted  anticipatory

bail on 08.10.2009.   Crime No.3068 of 2009 was registered

under Section 365 IPC on 09.12.2009 pursuant to a written

complaint that one of the Directors of M/s Paazee Forex, Ms.

Kamalavalli Arumugam, was missing since 08.12.2009.  The

missing  Director  Kamalavalli  Arumugam  submitted  a

complaint to the Deputy Superintendent of Police, Tirupur

that she was kidnapped on 08.12.2009. She stated in the

complaint that three police officials and a private individual

extorted Rs. 3 Crores approximately for her release.   The

investigation of Crime No.26 of 2009 registered against M/s

Paazee Forex on 24.09.2009 was transferred to the CB-CID,

Vellore on 23.03.2010. Crime No.3068 of 2009 pertaining to

the  kidnapping  of  Kamalavalli  Arumugam  was  also

transferred to the CB-CID, Vellore.   3. An association of investors of M/s Paazee Forex filed

Criminal O.P. No.5356 of 2011 under Section 482 Cr.P.C. for

a direction to transfer  the investigation to the CBI.  Mr.K.

Loganathan, an investor in M/s Paazee Forex filed Criminal

O.P.  No.2691 of 2011 seeking transfer of  investigation of

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Crime No.26 of 2009 from the State police to the CBI since

he apprehended that the State police was protecting the

Directors of M/s Paazee Forex and delaying the disbursal of

money payable to the depositors.     4. In  the  meanwhile,  the  first  Respondent  was

interrogated in connection with Crime No.3068 of 2009 on

06.04.2011. On investigation, it was found that Respondent

No.1  abused  his  official  position  as  Inspector  General  of

Police and inter alia, was involved in extorting money from

the  Directors  of  M/s  Paazee  Forex  and  the  delay  in  the

repayment of money to the depositors of M/s Paazee Forex.

He was arraigned as an accused in Crime No. 26 of 2009 by

the Special Judge, CBI, Coimbatore on 28.02.2012. 5. By an order dated 19.04.2011, the High Court directed

the transfer of Crime No.3 of 2010 (originally Crime No.26

of  2009)  registered  against  M/s  Paazee Forex  and Crime

No.3068  of  2009  originating  from  the  kidnapping  of

Kamalavalli Arumugam to the CBI. 6. The first Respondent filed an application for bail which

was rejected by the High Court on 20.04.2012.  Thereafter,

he was arrested on 02.05.2012.  The Principal Secretary to

Government of Tamil Nadu by an order dated 10.05.2012

placed the first Respondent under suspension with effect

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from 02.04.2012 in terms of Sub-Rule 2 of Rule 3 of the All

India  Service  (Discipline  and  Appeal)  Rules,  1969  until

further orders.  It was mentioned in the said order that the

first  Respondent  was  arrested  on  02.05.2012  and  was

detained in custody for a period exceeding 48 hours. It is

relevant to note that the first Respondent was released on

bail on 28.06.2012. 7. Writ Petition No.21801 of 2012 was filed by the first

Respondent  in  the  High  Court  of  Madras  praying  for  a

direction  “forbearing  the  Respondents  (CBI  and  others)

from  proceeding  further  with  conducting  enquiry  or

investigating offences alleged to have been committed by

the  Petitioner  (first  Respondent)  in  connection  with  the

case  registered  in  FIR  in  RC  No.

13(E)/2011/CBI/EOW/Chennai and pending on the file of the

5th Respondent (CBI)”.   The Writ Petition was dismissed by

a learned Single Judge of the High Court of Madras by a

judgment  dated   05.12.2012  which  was  upheld  by  a

Division  Bench  on  29.04.2013.   In  the  meanwhile,  the

decision  to  initiate  a  disciplinary  proceeding  against  the

first Respondent was approved by the Disciplinary Authority

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on  05.04.2013.   Pursuant  thereto,  a  charge  memo  was

issued to the first Respondent on 29.10.2013. 8. The  judgment  of  the  High  Court  of  Madras  dated

19.04.2011 in Criminal O.P. No.2691 of 2011 and Criminal

O.P. No. 5356 of 2011 by which Crime No.26 of 2009 and

Crime No.3068 of  2009 were  transferred to  the  CBI  was

challenged in this Court.  The judgment dated 29.04.2013

of the Division Bench of the High Court of Madras in Writ

Appeal No.12 of 2013 pertaining to the investigation by the

CBI against the involvement of Respondent No.1 in Crime

No.3068 of 2009 was assailed by the first Respondent in

this  Court.    This  Court  by  an  order  dated  17.03.2015

disposed of the SLPs with the following observations:    

“Without getting into the intricacies of  the merits  of  the issues canvassed, we consider it just and appropriate, to remand the matter back to the High Court, requiring the High Court  to  adjudicate upon Writ  Petition No.21801 of 2012  afresh,  by  impleading  the  appellant(s)  in  Criminal Original  Petition  Nos.2691  and  5356  of  2011,  and  by affording an opportunity to the appellant before this Court. In disposing of the aforesaid writ Petition, the jurisdiction exercised by the High Court, would be under Article 226 of the Constitution of India.  

In  the  above  view  of  the  matter,  the  order  dated 5.12.2012 passed by the High Court while disposing of the above writ Petition is hereby set aside. Parties are directed to appear before the High Court on 13.04.2015. We hope and  trust,  that  the  High  Court  shall  dispose  of  the

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controversy at the earliest. Since, the appellant herein was not heard when the order dated 19.4.2011 was passed by the High Court while disposing of Criminal Original Petition Nos.2691  and  5356  of  2011,  we  consider  it  just  and appropriate to further clarify, that the above order dated 19.4.2011,  will  not  stand  in  the  way  of  the  appellant herein,  when  the  High  Court  disposes  of  the  matter afresh.”

9. A Petition filed by one of the accused for the return of

certain  seized  documents  was  dismissed  by  a  Special

Judge, CBI on 15.07.2014.  A Revision Petition was filed by

one Pratap Singh Nagar to set aside the order of the Special

Judge,  CBI,  Coimbatore  and  to  direct  return  of  the

documents.  A Single Judge of the High Court disposed off

the Revision Petition on 13.08.2015 by observing that the

CBI  cannot proceed with the investigation in  view of the

order passed by this Court on 17.03.2015.  Thereafter, the

Special Court, CBI by an order dated 19.10.2015 ordered as

follows: “In the result in view of the orders passed by the Hon’ble Supreme Court of India in Civil Appeal No.3062/15 and by the  Hon’ble  Madras  High  Court  in  Crl.  R.C.  No.838/14 subject to the orders to be passed by the Hon’ble Madras High Court in W.P. 21801/12 and Crl. O.P.2691 and 5356/11 for the present this case in CC 2/13 is closed.”  

10. The  first  Respondent  filed  O.A.  165  of  2016  in  the

Central Administrative Tribunal, Madras Bench for quashing

of  the  order  of  suspension  dated  10.05.2013  and  the

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charge  memo  dated  29.10.2013.  He  also  sought  for

reinstatement with all consequential benefits.  It is relevant

to mention that the order of suspension dated 10.05.2012

was periodically extended after expiry of 180 days and the

last extension was on 06.07.2016. 11. The  Central  Administrative  Tribunal,  Madras  Bench

refused to interfere with the charge memo by holding that

the first  Respondent  had not  exhausted his  remedies  by

filing his objections or statement of defence.  Liberty was

given to the first Respondent to raise all the points before

the appropriate authority.  However, the Tribunal directed

revocation  of  suspension  by  holding  that  there  was  no

material  to  indicate  that  first  Respondent  had  tampered

with the evidence or influenced the witnesses.  Therefore,

the Tribunal held that a public servant cannot be continued

under suspension for a prolonged period.  Aggrieved by the

direction issued by the Central  Administrative Tribunal  to

reinstate the first Respondent, the Appellant, State of Tamil

Nadu, filed a Writ Petition in the High Court.   The judgment

of  the Tribunal  to the extent that charge memo was not

quashed was assailed by the first Respondent in another

Writ Petition.   By a judgment dated 12.01.2017, the High

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Court  upheld  the  judgment  of  the  Tribunal  pertaining  to

revocation of suspension.  Further, the High Court  quashed

the disciplinary proceedings on the ground that the charge

memo  was  not  approved  by  the  disciplinary  authority.

Hence, this appeal by the State of Tamil Nadu.    12. We  have  heard  Mr.  V.  Giri,  learned  Senior  Counsel

appearing  for  the  Appellant  and  Mr.  P.  Chidambaram,

learned Senior Counsel appearing for the first Respondent.

Mr.Giri contended that the first Respondent is involved in a

serious crime which is  pending trial.   He stated that the

initial  suspension  was  under  Rule  3(2)  of  the  All  India

Service  (Discipline  and  Appeal)  Rules,  1969  for  being

detained in custody for a period of more than 48 hours.  He

submitted that periodical reviews were being conducted to

consider the continuance of the suspension of Respondent

No.1.    He  placed  before  us  the  proceedings  of  Review

Committees  and  the  orders  passed  pursuant  to  the

recommendations,  extending  the  period  of  suspension.

Reinstatement  of  the  first  Respondent  would  not  be  in

public interest and would also have an adverse effect on

the  ongoing  trial,  according  to  Mr.Giri.   He  further

contended  that  the  High  Court  committed  an  error  in

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quashing the charge memo on the ground that it was not

approved by the disciplinary authority.  He submitted that a

plain reading of Rule 8 of the All India Service (Discipline

and Appeal)  Rules,  1969 would indicate that  initiation of

disciplinary proceedings and issuance of  a  charge memo

are  at  the  same  stage.    In  other  words,  the  stage  of

initiation is not different from the stage of issuance of the

charge memo.    Mr.Giri submitted that Union of India v.

B.V.Gopinath, (2014)  1  SCC  351 was  not  correctly

decided.   According  to  him,  approval  of  the  disciplinary

authority at the initial stage and the stage of initiation of

the  disciplinary  proceedings  is  sufficient  and  there  is  no

need  for  an  approval  of  the  charge  memo  by  the

disciplinary authority as held in the above judgment.  He

also placed before us the Tamil Nadu Government Business

Rules, 1978 in support of his submissions.    13. On  behalf  of  Respondent  No.1,  Mr.P.Chidambaram

submitted  that  there  is  no  need  for  the  continuation  of

suspension  of  Respondent  No.1,  especially,  when  no

material was brought to the notice of the Court about any

attempt made by him to tamper with the evidence.   He

submitted  that  mere  apprehension  of  Respondent  No.1

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influencing the witnesses, in case he is reinstated, is not a

sufficient ground to deprive him the relief of reinstatement.

He  also  submitted  that  the  criminal  case  against  him is

dormant  at  present  in  view  of  the  order  passed  by  the

Special  Court closing the criminal case subject to further

directions of the High Court in Writ Petition No. 21801 of

2012 after hearing the first Respondent.   He pointed out

that the High Court has given liberty to the Appellant to

appoint  the  first  Respondent  in  a  non-sensitive  post.

Mr.Chidambaram relied upon the judgment of this Court in

B.V.  Gopinath (supra)  and  submitted  that  the  issue

pertaining to the approval of the disciplinary authority at

the stage of issuance of a charge memo is no more  res

integra.   He  submitted  that  Rule  14  of  the  Central  Civil

Services  (Classification,  Control  and  Appeal)  Rules,  1965

and Rule 8 of the All India Service (Discipline and Appeal)

Rules, 1969 are  in  pari materia.      14. There are two issues which arise for consideration in

this case.  One pertains to the validity of the charge memo

and  the  other  relates  to  the  continuance  of  Respondent

No.1 under suspension.  As the two issues are distinct and

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not connected to each other, we proceed to deal with them

separately.    Validity of the Charge-Memo 15. Rule 8 of the All India Service (Discipline and Appeal)

Rules,  1969  prescribes  a  procedure  for  imposing  major

penalties.  A major penalty specified in Rule 6 cannot be

imposed  except  after  holding  an  enquiry  in  the  manner

prescribed  in  Rule  8.  Where  it  is  proposed  to  hold  an

enquiry against a member of the service under Rule 8, the

disciplinary authority shall “draw up or caused to be drawn

up” the  substance  of  the  imputation  of  misconduct  or

misbehavior into definite and distinct article of charge.  The

Rule further provides for an opportunity to be given to the

delinquent to submit his explanation, the appointment of

an inquiring authority and the procedure to be followed for

imposition of a penalty with which we are not concerned in

this case.  The disciplinary authority as defined in Rule 2 (b)

is the authority competent to impose on a member of the

service any of  the penalties  specified in  Rule  6.   Rule  7

provides that the authority to institute proceedings and to

impose penalty  on  a  member  of  All  India  Service  is  the

State Government, if he is serving in connection with the

affairs of the State.  There is no doubt that the Government

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of Tamil Nadu is the disciplinary authority.   The authority to

act on behalf of the State Government as per the Business

Rules is the Minister for Home Department.   There is no

dispute that the Hon’ble Chief Minister was holding the said

department  during  the  relevant  period  (2011-2016).

Matters  pertaining  to  disciplinary  action  against  IPS,  IAS

and IFS officers had to be dealt with by the Chief Minister

as per Standing Order No.2 dated 09.01.1992 issued by the

Chief  Minister  of  Tamil  Nadu  under  Rule  35  (4)  of  the

Business Rules which reads as follows “Paragraph 18.  Disciplinary Action:- Files relating to disciplinary action against I.A.S./I.P.S./I.F.S. Officers in the senior-grade and above at the stage of issue of charge memo/show cause notice to the above officers alone should be circulated to the Chief Minister. In the case of Secretaries to Government where action is contemplated  under  Rule  17  (a)  or  17  (b)  of  the  Tamil Naidu  Civil  Services  (CC  &A)  Rules  such  files  should  be circulated to the Chief Minister.  In the case of Heads of Department files where action is contemplated under Rule 17  (b)  of  the  T.N.C.S.  (CC  &A)  Rules,  alone  should  be circulated to the Chief Minister.   In the case of District Revenue Officers, the files should be circulated  to  the  Chief  Minister  only  at  the  stage  of imposition of penalty after obtaining the explanation of the officers. In  the  case  of  Joint  Secretary  Deputy  Secretary  where action is contemplated under Rule 17(b) of the T.N.C.S. (CC &A) Rules  such cases should  be  circulated by the Chief Secretary to the Chief Minister.   In respect of all other officers files should be circulated to the Chief Minister as per Business Rules.”   

16. By an order dated 19.04.2018, we directed the Chief

Secretary, State of Tamil Nadu to file an affidavit explaining

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the  position  pertaining  to  the  Business  Rules  and  the

standing orders.  The affidavit filed by the Chief Secretary,

Government of Tamil Nadu dated 14.05.2018 discloses that

the first Respondent was arrested on 02.05.2012.  He was

placed under suspension on 10.05.2012 under Rule 3 (2) of

the  All  India  Service  (Discipline  and Appeal)  Rules,  1969

after obtaining the approval of the Hon’ble Chief Minister on

the note for circulation dated 09.05.2012.  It was further

stated in the affidavit that regular departmental action for a

major penalty was initiated against Respondent No.1 under

the All India Service (Discipline and Appeal) Rules, 1969 on

05.04.2013  after  obtaining  the  approval  of  the  Hon’ble

Chief Minister. 17. It  is  clear  that  the  approval  of  the  disciplinary

authority  was  taken  for  initiation  of  the  disciplinary

proceedings.   It  is  also  clear  from  the  affidavit  that  no

approval was sought from the disciplinary authority at the

time when the charge memo was issued to the delinquent

officer.  The submission made on behalf of the Appellant is

that approval of the disciplinary authority for initiation of

disciplinary  proceedings  was  sufficient  and there  was  no

need for  another  approval  for  issuance of  charge memo.

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The  basis  for  such  submission  is  that  initiation  of

disciplinary proceedings and issuance of charge memo are

at  the  same  stage.   We  are  unable  to  agree  with  the

submission in view of the judgment of this Court in  B.V.

Gopinath (supra).  In that case the charge memo issued to

Mr. Gopinath under Rule 14(3) of the Central Civil Service

(Classification,  Control  and  Appeal)  Rules,  1965  was

quashed  by  the  Central  Administrative  Tribunal  on  the

ground that the Finance Minister did not approve it.  The

judgment of the Tribunal was affirmed by the High Court.

The Union of India, the Appellant therein submitted before

this  Court  that  the  approval  for  initiation  of  the

departmental  proceedings  includes  the  approval  of  the

charge memo.  Such submission was not accepted by this

Court on an interpretation of Rule 14(3) which provides that

the  disciplinary  authority  shall  “draw up or  cause  to  be

drawn  up” the  charge  memo.   It  was  held  that  if  any

authority other than the disciplinary authority is permitted

to  draw  the  charge  memo,  the  same  would  result  in

destroying  the  underlying  protection  guaranteed  under

Article 311 (2) of the Constitution of India.   

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18. Rule  8  (4)  of  the  All  India  Service  (Discipline  and

Appeal)  Rules,  1969  also  mandates  that  the  disciplinary

authority  shall  “draw  up  or  cause  to  be  drawn  up” the

charge memo.  We see no reason to take a view different

from the one taken by this Court in B.V.Gopinath (supra).

We also see no substance in the submission made by the

Senior Counsel for the State that the said judgment needs

reconsideration.    Assuming  that  Mr.Giri  is  right  in  his

submission  that  the  initiation  of  disciplinary  proceedings

and issuance of charge memo are at the same stage, the

mandatory requirement  of  Rule  8 which provides for  the

charge  memo  to  be  drawn  by  the  disciplinary  authority

cannot be ignored.  We reject the submission on behalf of

the Appellant that Gopinath’s case can be distinguished on

facts.  We are not in agreement with the contention of the

Appellant that the business rules and standing orders of the

State  of  Tamil  Nadu  are  quite  different  from  the  office

orders and circulars issued by Union of India which formed

the  basis  of  the  judgment  in  Gopinath’s  case.   A  close

reading of the said judgment would disclose that reliance

on the office note was only in addition to the interpretation

of the Rule.  

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19. It is also settled law that if the rule requires something

to be done in a particular manner it should be done either

in the same manner or not at all- Taylor v. Taylor (1875) 1

Ch.D. 426, 431.   In view of the mandatory requirement of

Rule 8 (4) and the charge memo being drawn up or cause

to be drawn up by the disciplinary authority is not complied

with,  we  are  of  the  considered  opinion  that  there  is  no

reason to interfere with the judgment of the High Court on

this issue. The only addition we would like to make is to

give liberty to the disciplinary authority to issue a charge

memo afresh  after  taking  approval  from the  disciplinary

authority.   Suspension 20. The  first  Respondent  was  placed  under  deemed

suspension under Rule 3(2) of the All India Services Rules

for being in custody for a period of more than 48 hours.

Periodic reviews were conducted for his continuance under

suspension.   The  recommendations  of  the  Review

Committees did not favour his reinstatement due to which

he is still  under suspension.  Mr.P. Chidambaram, learned

Senior  Counsel  appearing  for  the  first  Respondent  fairly

submitted  that  we  can  proceed  on  the  basis  that  the

criminal  trial  is  pending.   There  cannot  be  any  dispute

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regarding the power or jurisdiction of the State Government

for  continuing  the  first  Respondent  under  suspension

pending  criminal  trial.   There  is  no  doubt  that  the

allegations made against the first Respondent are serious in

nature.  However,  the  point  is  whether  the  continued

suspension of the first Respondent for a prolonged period is

justified.  21.  The first Respondent has been under suspension for

more than six years.  While releasing the first Respondent

on bail,  liberty was given to  the investigating agency to

approach the Court in case he indulged in tampering with

the evidence.  Admittedly, no complaint is made by the CBI

in that regard.  Even now the Appellant has no case that

there is any specific instance of  any attempt by the first

Respondent to tamper with evidence.   22. In the minutes of the Review Committee meeting held

on 27.06.2016, it was mentioned that the first Respondent

is capable of exerting pressure and influencing witnesses

and  there  is  every  likelihood  of  the  first  Respondent

misusing office if he is reinstated as Inspector General of

Police.  Only  on  the  basis  of  the  minutes  of  the  Review

Committee  meeting,  the  Principal  Secretary,  Home  (SC)

Department ordered extension of the period of suspension

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for a further period of 180 days beyond 09.07.2016 vide

order dated 06.07.2016.  23. This Court in  Ajay Kumar Choudhary v. Union of

India, (2015) 7 SCC 291 has frowned upon the practice of

protracted  suspension  and  held  that  suspension  must

necessarily be for  a short duration.   On the basis of the

material  on  record,  we  are  convinced  that  no  useful

purpose  would  be  served  by  continuing  the  first

Respondent  under  suspension  any  longer  and  that  his

reinstatement  would  not  be  a  threat  to  a  fair  trial.   We

reiterate  the  observation  of  the  High  Court  that  the

Appellant  State  has  the  liberty  to  appoint  the  first

Respondent in a non sensitive post.  24. With  the  aforesaid  observation,  the  appeals  are

disposed of.    

                                      ...................................J.

                                                                     [S.A. BOBDE]             

               ..................................J.               [L. NAGESWARA RAO]

New Delhi, August  21, 2018.

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