IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 WP(C).No. 6871 of 2007(R) --------------------------------------- PETITIONER: --------------------- ROY FELIX, ASSISTANT CONTROLLER OF LEGAL METROLOGY (UNDER SUSPENSION), THRISSUR, CHARUVILAKATH HOUSE, VAYALAR P.O., CHERTHALA, PIN-688 536. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND RESPONDENT: ----------------------- STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY SR. GOVERNMENT PLEADER SRI. NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.6871/2007 R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE G.O.(RT) NO.568/07/RD DTD. 8/02/2007. EXT.P2: COPY OF THE G.O.(RT) NO.3313/04/RD DTD. 7/09/2004. EXT.P3: COPY OF THE COUNTER AFFIDAVIT IN WP(C) NO. 18181/04-M. EXT.P4: COPY OF THE JUDGMENT IN WP(C) 18181/04M DTD. 23/08/2005 OF THIS HON'BLE COURT. EXT.P5: COPY OF THE JUDGMENT IN W.A.2233/2005 OF THIS HON'BLE COURT. EXT.P6: COPY OF THE REPRESENTATION DTD. 13/02/2007 SUBMITTED BY THE PETITIONER TO GOVERNMENT. EXT.P7: COPY OF THE G.O.(RT) NO.438/07/CAD DTD. 25/09/2007. EXT.P8: COPY OF THE LETTER NO.CA 519/07 DTD. 7/02/2007 FROM THE CONTROLLER OF LEGAL METROLOGY. EXT.P9: COPY OF THE DEPOSITION DTD. 22/03/2007 OF THE CONTROLLER OF LEGAL METROLOGY. 1ST RESPONDENT'S EXHIBIT: EXT.R1(A): COPY OF LETTER NO.E8(SC-64/05/TSR)43013/2005 DTD. 21/12/2006. /TRUE COPY/ P.A.TO JUDGE Kss V.GIRI,J. ------------------------- W.P ( C) No. 6871 of 2007 -------------------------- Dated this the 7th March, 2008 J U D G M E N T The writ petition was originally filed challenging Exhibit P1 order of suspension which relates to the petitioner and three other persons. The relevant portion of Exhibit P1 reads as follows: “In the WP(C) read as 1st paper above, Government have been informed of certain serious allegations against officers in the Legal Metrology Department. In the counter affidavit read as 2nd paper above, the Vigilance and Anti Corruption Bureau, Special Cell Ernakulam has submitted before Hon'ble High Court that serious irregularities were found within Legal Metrology Department. According to the Counter Affidavit filed by the Officer on behalf of V&ACB it is seen that the enquiry revealed prima facie case on the following charges: 1) Irregularities were found within the Department of Legal Metrology, especially regarding issuing certificate of calibration without collecting charges thereby causing loss to Government. 2) Nepotism was detected in the Department entrusting the re-calibration work to a company owned and operated by family members of three Assistant Controllers from the Department.” W.P ( C) No. 6871 of 2007 2 2. Petitioner was working as the Assistant Controller of Legal Metrology, Thrissur at the time of issuance of Exhibit P1. The principal grounds of challenge raised by the petitioner against Exhibit P1 was that there is total non application of mind on the part of the Government in issuing Exhibit P1. The charges which are mentioned in Exhibit P1, for the purpose of suspension have nothing to do with the petitioner. They may, if at all, relate to four other persons who were suspended along with the petitioner under Exhibit P1. Reference was made to Rule 10 of Kerala Civil Services (classification, control and appeal) Rules, 1960 and also the necessity on the part of the Government to consider whether the suspension of the employee is warranted pending enquiry. 3. Pending writ petition, petitioner had sought for revocation of suspension under Exhibit P6. He pointed out that he was posted as Assistant Controller of Legal Metrology, Thrissur only on 15.9.2004. Apparently, the allegations which are referred to in Exhibit P1 are relatable to the period prior to 15.9.2004, it was contended. It was further pointed out that the W.P ( C) No. 6871 of 2007 3 second charge mentioned in Exhibit P1 related to the entrusting of the re-calibration work to a Company owned and operated by family members of three Assistant Controllers of the Department. This does not involve the petitioner in any manner. 4. The plea for revocation of suspension was considered by the Government and rejected under Exhibit P7. The operative portion of the said order reads as follows: “In the letter read as 5th paper above, the Director, Vigilance and Anti Corruption Bureau has recommended departmental action against Shri.Roy Felix since he is found guilty in a case in connection with certain other irregularities detected in an enquiry in a wholesale Kerosene Depot that resulted shortage of Kerosene supplied from that depot. A detailed examination in the matter has to be done accordingly.” 5. The writ petition was later amended challenging Exhibit P1. 6. The 1st respondent has filed a counter affidavit. It is contended that in so far as the 2nd charge mentioned in Exhibit P1 is concerned, the petitioner is not related to the irregularities detected in the re-calibration work entrusted to a company owned and operated by the family members of the three W.P ( C) No. 6871 of 2007 4 Assistant Controllers of Legal Metrology Department. But apparently he was found guilty of causing delay in issuing certificate of calibration to one M/s.Super Star Distilleries, Pampady, Thrissur and this was reported by the Controller, Legal Metrology Department. Reference is also made to another incident emanating from the report of the Director of Vigilance and Anti Corruption Bureau recommending departmental action against the petitioner in connection with certain irregularities detected in an inquiry in a wholesale Kerosene Depot. Produced along with the counter affidavit was Exhibit R1 (a) which is the report of the Director of Vigilance and Anti Corruption Bureau dated 21.12.2006. 7. Since the counter affidavit made a reference to Exhibit R1 (a) and report from the Controller of Legal Metrology, petitioner sought for a copy of the said order and the same has been subsequently produced as Exhibit P8, which is dated 7.2.2007. Apparently, a major portion of Exhibit P8 is devoted to the allegations in relation to the calibration of storage tanks of M/s.Appollo Tyres, Perambra and M/s.Saj Technographics and W.P ( C) No. 6871 of 2007 5 the alleged delay incurred by Smt.R.Reena Gopal, Assistant Controller, Sri.Shylesh Kumar, Assistant Controller,Sri.C.V.Babu, Assistant Controller and Sri.V.N.Pushpakaran, Assistant Controller. But the last portion of the report also makes a reference to an enquiry conducted in M/s.Krishna Agencies, Thrissur, Wholesale dealer in Kerosene. Exhibits R1 (a) and Exhibit P8 are referred to in Exhibit P7 order passed by the Government declining to revoke the suspension. 8. I heard learned counsel for the petitioner Sri.Aravindakahshan Pillay and the learned Senior Government Pleader Sri.Nandakumar. Learned counsel for the petitioner submits that it is clear from the counter affidavit filed by the Government that the charges which are mentioned in Exhibit P1 have nothing to do with the suspension of the petitioner. The petitioner is an unfortunate victim of circumstances, where his case has been considered along with the case of four other Assistant Controllers, against whom the charges mentioned in Exhibit P1 have some relevance, it is contended. Therefore there is total non application of mind on the part of the Government W.P ( C) No. 6871 of 2007 6 and this therefore violates Rules 10 of the Kerala Civil Services (classification, control and appeal)Rules. 9. Sri.Nandakumar contends that an order of suspension cannot be read and treated as memo of charges. Government has fairly conceded in the counter affidavit that the second charge mentioned in Exhibit P1 has nothing to do with the petitioner. But in so far as the 1st charge is concerned, there are allegations against the petitioner in the matter of issuing certificate of calibration. It is therefore, on the basis of Exhibit R1 (a) followed by Exhibit P8 that suspension was effected. The grounds of interference with an order of suspension are very limited, he points out. 10. I agree with the submission made by the learned counsel for the petitioner that the petitioner’s case ought to have been considered separately from the case of four other persons suspended along with the petitioner. I say so because admittedly the second charge mentioned in Exhibit P1 is not in any manner related to the petitioner. Even in so far the 1st charge is concerned, apparently, the allegations against the petitioner W.P ( C) No. 6871 of 2007 7 seems to be different. This is evident from both Exhibit P8 and Exhibit R1 (a). A composite order of suspension seems to have worked out detriment to the petitioner. 11. Had the position remained so, an interference with the order of suspension might have been called for. But I take note of the fact that Exhibit P8 and Exhibit R1 (a) are materials before the Government which in given circumstances might constitute adequate material to initiate disciplinary action against the petitioner. That is a matter which will have to be considered by the Government. The operative portion of Exhibit P7 reveals that Government was only referring to the report of the Director of Vigilance and Anti Corruption Bureau, which is Exhibit R1 (a). Apparently, even though report of the Controller does not seem to be a specific reference, Exhibit P7 would further shows that the allegation in so far as the petitioner is concerned which according to the Government merits a detailed examination are not the allegations which are referred to in Exhibit P1. The allegations mentioned in Exhibit P7 would emanate only from Exhibit R1 (a) read with Exhibit P8. The W.P ( C) No. 6871 of 2007 8 Government was therefore bound to consider whether those allegations and the recommendations made by the Controller of Metrology as also the Director of Vigilance and Anti Corruption Bureau, actually merits the suspension as such. The Government is obliged to do so under Rule 10 of the Kerala Civil Services (classification, control and appeal) Rules,1960. In the result, the writ petition is disposed of in the following terms: i) Exhibit P7 is quashed. Government shall reconsider the question as to whether the petitioner is required to be kept under suspension pending disciplinary enquiry in the light of the observations made above. ii) The disciplinary action, if any, against the petitioner should be taken and proceeded with separately from the other officers who are suspended under Exhibit P1. Since the petitioner was suspended from service as early as on 8.2.2007 it is imperative that the Government takes a decision as directed in paragraph W.P ( C) No. 6871 of 2007 9 (i) above, at the earliest, at any rate, within a period of one month from the date of receipt of a copy of this judgment. iii) Government shall also take a decision as to whether disciplinary action should be taken against the petitioner, on the basis of the recommendations contained in Exhibit R1 (a) and Exhibit P8. This shall be done, within a period of two months from the date of receipt of a copy of this judgment. (V.GIRI, JUDGE) ma W.P ( C) No. 6871 of 2007 10 K.THANKAPPAN,J CRL.A. NO.92 OF 1999 ORDER W.P ( C) No. 6871 of 2007 11 25th May, 2007