IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 WP(C).No. 33941 of 2008(N) ---------------------------------------- PETITIONER(S): ---------------------- K.MADHUSOODANAN, EXECUTIVE ENGINEER (UNDER SUSPENSION) PIP (CADA) DIVISION, CHENGANNUR TC.36/574-1, KRISHNA KRIPA ERA 42, PALKULANGARA JN., THIRUVANANTHAPURAM-8. BY ADV. MR.GEORGE POONTHOTTAM RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP.BY THE ADDITIONAL CHIEF SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION, PUBLIC OFFICE, THIRUVANANTHAPURAM. 3. CHIEF TECHNICAL EXAMINER, FINANCE DEPARTMENT, BANK EMPLOYEES UNION BUILDING, THIRUVANANTHAPURAM.1 GOVERNMENT PLEADER SMT.SUDHADEVI FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.33941/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE REPORT ON INSPECTION CONDUCTED IN THE OFFICE OF THE EXE. ENGINEER, IRRIGATION DIVISION, KOLLAM BY THE FINANCE INSPECTION WING. P2:- COPY OF THE G.O.(RT) NO.926/07/WRD DT. 12.7.07. P3:- COPY OF THE MEMO OF CHARGES DT. 16.11.07 ALONG WITH STATEMENT OF ALLEGATIONS. P4:- COPY OF THE G.O.(RT) NO.210/08/WRD DT. 15.2.08. P5:- COPY OF THE ENQUIRY REPORT NO.6933/FIWPC1/06/FIN DT. 25.11.06. P6:- COPY OF THE REPORT NO.VIG 2/1562/07 DT. 24.1.08. P7:- COPY OF THE JUDGMENT IN WPC. NO.9093/08 DT. 18.3.08. P8:- COPY OF THE RELEVANT PAGES OF THE NOTE FILES OBTAINED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT. P9:- COPY OF THE REMARKS OF THE PRINCIPAL SECRETARY, FINANCE DEPT. NO.31390/FIWPF1/08/FIN. DT. 28.4.08. P10:- COPY OF THE RELEVANT PAGES OF THE NOTE FILES OF THE GOVERNMENT NO.19573/GW2/07/WRD OBTAINED UNDER THE RIGHT TO INFORMATION ACT. P11:- COPY OF THE GO(RT) NO.118/08/WRD DT. 30.4.08. P12:- COPY OF THE G.O.9RT) NO.398/07/WRD DT. 22.3.07. P13:- COPY OF THE G.R.(RT) NO.640/07/WRD DT. 10.5.07. P14:- COPY OF THE REPORT ALONG WITH TE ENCLOSURES OBTAINED UNDER THE RIGHT TO INFORMATION ACT. TRUE COPY P.S. TO JUDGE TSS V.GIRI ---------------------------------------------- W.P.(C)No.33941 of 2008 ----------------------------------------------- Dated this the 6th day of April, 2009. JUDGMENT The petitioner is aggrieved by Ext.P2 order, by which he was suspended from service pending enquiry as also Ext.P11 order passed by the Government declining to revoke his suspension, in spite of a motion made by the petitioner in this regard. 2. The petitioner is an Executive Engineer in the Irrigation Division. He was transferred to the Pamba Irrigation Division (CADA), Chengannur as the Executive Engineer on 23.3.2007 and he was working as the Executive Engineer, Irrigation Division, Kollam from 12.5.2005 to 23.3.2007. The Finance Department (Inspection Wing) had conducted an inspection in the office of the Executive Engineer, regarding the alleged irregularity in the anti sea erosion works that followed the Tsunami attack on 26th December, 2004. A report was submitted by the Inspection Wing. The Executive Engineer (petitioner), Assistant Executive Engineer and an Assistant Engineer were placed under suspension on the basis of Ext.P1 W.P.(C)No.33941 of 2008 :: 2 :: recommendation. The charges levelled against the Assistant Executive Engineer and the Assistant Engineer are identical, viz., that they have removed/tampered the entry in the letter of credit proposal for the anti sea erosion work, the M book and bill to enable a contractor to obtain the amounts at an early date and had, therefore, cheated the Government. 3. Ext.P3 is the memo of charges issued to the petitioner, along with the statement of allegations. Seven charges have been levelled against him. He submitted his detailed reply to the charges. The Government will have to take a final decision as to whether to go on with the enquiry or drop the same. 4. In the meanwhile, as evidenced by Ext.P4 order dated 15.2.2008, the Government not only decided to revoke the suspension of the Assistant Executive Engineer and the Assistant Engineer, who were suspended along with the petitioner as per Ext.P2, but also decided to drop the proceedings against them and close the file with a warning. W.P.(C)No.33941 of 2008 :: 3 :: 5. The Government required the Chief Technical Examiner, to conduct an enquiry, on an objection submitted by another Government contractor alleging irregularities and misuse of the Tsunami relief funds. The ante sea erosion work arranged in the Irrigation Division at Kollam, during 2004-06 also came under scrutiny. The enquiry was particularly directed at the allegation that payments were made for the anti sea erosion work from the Irrigation Division at Kollam irregularly. The Chief Technical Examiner did not agree with the said allegation on the premise that in the case of those works for which agreements were already executed, emergency works were done as an extra item and a supplementary agreement was executed for the same. The quantum of the materials used for core wall work has been taken into account depending upon the then profile of the core wall. The allegation that payment was made without the works being actually done, according to the Chief Technical Examiner, was not established. It is not known whether Ext.P5 report of the W.P.(C)No.33941 of 2008 :: 4 :: Chief Technical Examiner has been finally accepted by the Government. If not, it is up to the Government to take a decision. 6. The Chief Engineer, Irrigation and Administration was called upon to submit his remarks on the charges levelled against the petitioner, taking into account the petitioner's defence in reply to the charges. He submitted a report on 24.1.2008. Ext.P6 report in this regard refers to each one of the charges, the defence taken up by the petitioner and the remarks of the Chief Engineer. The Chief Engineer has proceeded to observe that the explanation offered by the petitioner deserves to be accepted in relation to each one of the charges. The report, therefore, concludes in the following terms: “In such circumstances it is meaningless to make any adverse comment against him in relation to an incomplete work.” 7. Pursuant to a motion made by the petitioner seeking a direction to pass orders on his application for W.P.(C)No.33941 of 2008 :: 5 :: revocation of the suspension, this court directed the 2nd respondent Secretary to Government to consider the application for revocation of the suspension and pass orders within a time frame. A hearing note was also submitted thereafter. Ultimately, the Government, by Ext.P11 order, went on to hold that the gravity of the charges levelled against the petitioner are too high and numerous. Therefore the Government has decided, not to reinstate the petitioner in service till the entire loss sustained by the Government is finalised. Ext.P11 order has been challenged in this writ petition. 8. A counter affidavit has been filed by the Government. 9. I heard Mr.George Poonthottam, learned counsel for the petitioner and Smt.Sudha Devi, learned Senior Government Pleader. 10. Learned counsel for the petitioner submits that the charges levelled against the Assistant Executive Engineer W.P.(C)No.33941 of 2008 :: 6 :: and the Assistant Engineer may not have been the same as those levelled against the petitioner. The charges related to tampering of M book and the relevant records as regards the LC Proposal for ASE works, which enabled the contractor to obtain the amount at an early date and thereby cheated the Government and violated the orders of this court. These charges were practically dropped. No doubt, separate charges were levelled against the petitioner. But, he had replied to each one of the charges and the Chief Engineer, called upon in that regard by the Government, had submitted a report, prima facie accepting the explanation given by the petitioner. May be, the Government is entitled to take a different view. But that would require, in all fairness, further materials indicating a contra position. The same is not available. There are no materials to indicate that the Government has sustained a loss. The report of the Chief Technical Examiner, Ext.P5, rejects the allegation regarding payment having been made without the works having been executed. In fact, Ext.P11 would show that W.P.(C)No.33941 of 2008 :: 7 :: the report of the Chief Technical Examiner, as such, has not been taken note by the Government. There is nothing on record to show that the Government has sustained any serious loss and that the continued suspension of the petitioner is necessary to finalise the said charges. 11. Learned Government Pleader on the other hand supports Ext.P11. 12. No doubt, it is the right of the Government to place an employee under suspension, if such suspension is warranted. But a suspension should not transform itself as a punishment. It should only be a measure to facilitate an enquiry. Further, when there is an application for revocation and grounds are made out in support of the same, though not with technical exactitude, the Government should consider such grounds for revocation in a fairly objective manner. That does not seem to have been done in the present case. 13. May be, the charges levelled against the Assistant Executive Engineer and the Assistant Engineer were not the W.P.(C)No.33941 of 2008 :: 8 :: same as those contained in Ext.P3. The charges by themselves did not give an impression of being frivolous or vexatious or extremely minor. Nevertheless, the Government has thought it appropriate not only to revoke the suspension of those persons, but also to close the disciplinary proceedings against them, with a flea bite punishment viz., warning. The wisdom behind the decision taken in Ext.P4 is not subjected to judicial review by this Court. But, nevertheless, I take note of this. 14. Ext.P5 report of the Chief Technical Engineer, though referred to in Ext.P11, does not seem to have merited a serious consideration. Ext.P6 report of the Chief Engineer giving a point by point appraisal of the charges levelled against the petitioner forwarded to the Government Secretary has not been referred to. I agree with the learned Government Pleader that it is not binding on the Government. Though it is open to the Government, as the disciplinary authority, to take a different view, after all, there must be some material gathered and available to discard the effect of Ext.P6. It is W.P.(C)No.33941 of 2008 :: 9 :: open to the Government to call for such materials. That is a matter, which will be relevant at the stage of enquiry. Ext.P6 ought not to have been eschewed from consideration. 15. The decision to keep the petitioner under suspension virtually interminably; i.e., until the loss sustained by the Government is finalised, does not reflect a correct approach, nor is there any justification for the same. There must be some certainty in these matters. 16. For all these reasons, I am of the view that the Government's refusal to revoke the petitioner's suspension, in these circumstances, is not resultant upon a proper exercise of power under Rule 22 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. 17. That suspension should be resorted to where it is necessary and need not be adopted as a norm, in all cases, has been spoken to by the Supreme Court and by a Bench of this court on more than one occasion. Reference could be made in this regard to the decision in Surendran K. v. Government of W.P.(C)No.33941 of 2008 :: 10 :: Kerala and others {2008(3) ILR Kerala 587}. If the suspension is neither necessary, nor otherwise justified, it will be appropriate that the Government servant be reinstated in service, and his services availed of in a suitable manner without the Government being compelled to dole out subsistence allowance for an interminably long time. In the result, the writ petition is allowed. Ext.P11 is set aside. The Government is directed to pass fresh orders on the application filed by the petitioner for revocation of the suspension order within one month from the date of receipt of a copy of this judgment. For the reasons mentioned above, the Government shall pass orders revoking the petitioner's suspension with effect from the date on which such fresh orders are passed. I make it clear that the observations made by me above are relevant in the context of considering an application for revocation of the suspension and the Government shall take a decision in the matter of continuance of the disciplinary action untrammelled by the observations made by me in this W.P.(C)No.33941 of 2008 :: 11 :: judgment. The Government shall proceed to conduct such enquiry as is deemed fit and the same shall be completed within one year from the date on which it is ordered. The mode of treatment of the period during which the petitioner was kept under suspension shall also be considered by the Government, after finalisation of the disciplinary proceedings. Sd/- (V.GIRI) JUDGE sk/- //true copy//