A Full Bench (comprising three judges) of the Madras High Court on Tuesday ruled that the Supreme Court did not lay down any absolute proposition of law that a government servant’s suspension order cannot be continued beyond three months if a charge memo had not been issued by then.
Chief Justice Munishwar Nath Bhandari and Justices V. Bharathidasan and D. Bharatha Chakravarthy gave the ruling while answering a reference made by a single judge due to conflicting verdicts by different courts on the issue of prolonged suspension of government servants.
The Full Bench also held that the 2015 verdict by a two-judge Bench of the Supreme Court in Ajay Kumar Choudhary versus Union of India does not lay down a law that a reasoned order must necessarily be passed for extending the suspension even after issuing the charge memo within three months.
Authoring the verdict for the Full Bench, the Chief Justice said, stray sentences in a judgement could not be read like a statute for the purpose of determining the law laid down in those verdicts and that a judgement must be understood holistically in the context of the facts in which it was rendered.
He pointed out that Ajay Kumar Choudhary’s case had drawn an analogy of three months from Section 167(2) of the Code of Criminal Procedure which provides for granting statutory bail even for those accused of grave offences if the police fail to file a chargesheet within 90 days.
“It needs to be clarified that the provisions of the Code of Criminal Procedure, 1973 would have no application to service jurisprudence,” the Chief Justice said and pointed out the two-judge Bench in Ajay Kumar Choudhary’s case had failed to consider Constitution Bench (comprising five judges) judgements on the issue of suspension.
Further, the Full Bench rendered as per incuriam (a verdict delivered through lack of care) an August 27, 2021 judgement passed by the High Court’s Division Bench which had ordered reinstatement of a suspended employee in a non sensitive post instead of paying subsistence allowance without extracting work.
The Full Bench pointed out the Division Bench judgement, delivered on the basis of the Supreme Court’s verdict in Ajay Kumar Choudhary’s case, had no reference to previous verdicts delivered by similar Division Benches of co-equal strength which had ruled against issuing such reinstatement orders.
“The issue of challenge to the order of suspension should be analysed on the facts of each case, considering the gravity of the charges and the rules applicable. Revocation of suspension with a direction to the employer to post the delinquent in a non-sensitive post cannot be endorsed or directed as a matter of course,” the Full Bench said.
It went on to clarify that a decision to reinstate a government servant in a non sensitive post or otherwise had to be made purely on the basis of the facts of each case and after noticing the reason for the delay in serving the memorandum of charges/chargesheet.
“In our considered view, a direction to reinstate may have serious 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 chargesheet 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. Thus, the court should analyse each case on its facts when a challenge to the order of suspension has been made,” the Full Bench concluded.
