IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 WP(C).No. 15109 of 2008(W) ---------------------------------------- PETITIONER: ------------------- P.V.THAMPAN, 'SREEDEVI', HEAD CLERK, (RTD) DRDA, P.O.MANIYATU (VIA) THRIKKARIPUR, KASARAGOD DISTRICT. BY ADV. SRI.P.RAVINDRAN (SR.), SRI.ANIL SIVARAMAN, SRI.HARIKRISHNAN RAVINDRAN. RESPONDENTS: ----------------------- 1. THE COMMISSIONER FOR RURAL DEVELOPMENT, THIRUVANANTHAPURAM. 2. GOVERNMENT OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT. T.B. REMANI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.15109/2008-W: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DTD. 05/07/2006 KEEPING THE PETITIONER UNDER SUSPENSION. EXT.P.2: COPY OF THE JUDGMENT IN W.P.NO.19073/06 DTD. 21/12/06. EXT.P.3: COPY OF THE ORDER ISSUED BY THE R1. DTD. 11/08/06. EXT.P.4: COPY OF THE NOTICE ISSUED BY THE ENQUIRY OFFICER. EXT.P.5: COPY OF THE ORDER ISSUED BY THE R.1. DTD. 20/12/06. EXT.P.6: COPY OF THE ORDER ISSUED BY THE R.1. POSTING THE PETITIONER AS HEAD CLERK AT WAYANAD DTD. 20/12/2006. EXT.P.7: COPY OF THE MEMO OF CHARGES ISSUED BY THE R.1. DT. 02/06/07. EXT.P.8: COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE R.1. DTD. 27/06/2007. EXT.P.9: COPY OF THE PROCEEDINGS OF THE R.1. DTD. 13/08/08. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. P.N.RAVINDRAN, J. ------------------------- W.P.(C.) No.15109 of 2008 --------------------------------- Dated, this the 12th day of November, 2008 J U D G M E N T The petitioner, who retired from service on 31/12/2007 on attaining the age of superannuation, has filed this writ petition aggrieved by the delay in disbursement of the retirement benefits. The brief facts of the case are as follows :- While the petitioner was working as Head Clerk in the Block Development Office at Sultan Bathery, the Commissioner for Rural Development placed him under suspension by Ext.P1 order dated 05/07/2006, pending detailed enquiry. The petitioner challenged the order of suspension in WP(C) No.19073 of 2006. While the said writ petition was pending, an enquiry into the grounds of suspension was held by the Joint Development Commissioner, pursuant to the directions issued by the Commissioner for Rural Development in Ext.P3. The enquiry WP(C) No.15109/2008 -2- officer gave notice to the petitioner, conducted an enquiry and submitted his report on 25/08/2006 to the Commissioner for Rural Development. The Commissioner for Rural Development considered the report of enquiry and decided to revoke the order of suspension. He, thereupon, passed Ext.P6 order dated 20/12/2006 reinstating the petitioner in service without prejudice to the continuance of the disciplinary action initiated against him. The petitioner was also posted in Wayanad district. A day after Ext.P6 order was issued, WP(C) No.19073 of 2006 was heard and allowed by Ext.P2 judgment. This Court called for the files and also the report of enquiry submitted by the Joint Development Commissioner and held that the action of the respondents in placing the petitioner under suspension is patently unjust and an abuse of the statutory and administrative power vested in them. The order placing the petitioner under suspension was declared to be arbitrary, was quashed and the respondents were directed to WP(C) No.15109/2008 -3- regularize the period during which the petitioner was kept out of service in accordance with law. Ext.P2 judgment has become final. 2. Thereafter, Ext.P7 memo of charges dated 02/06/2007 was served on the petitioner. He submitted Ext.P8 reply dated 27/06/2007 and shortly thereafter, retired from service on 31/12/2007 on attaining the age of superannuation. Before the petitioner retired from service, the disciplinary action initiated against him was not finalized. It is aggrieved by the delay in finalization of the disciplinary proceedings and non-payment of pensionary benefits, that the petitioner filed this writ petition. 3. The respondents have filed a counter affidavit resisting the writ petition and contending, inter alia that terminal benefits can be sanctioned and disbursed to the petitioner only after the disciplinary proceedings are finalized. The petitioner has along with I.A.No.13508 of 2008 produced Ext.P9 order dated 13/08/2008 issued by the WP(C) No.15109/2008 -4- Senior Administrative Officer of the Commissionerate of Rural Development, whereby the disciplinary action initiated against the petitioner was finalized by directing recovery of an amount equal to one increment without cumulative effect from the DCRG of the petitioner. Ext.P9 further directs that orders regularizing the period of suspension will be issued separately. 4. When the writ petition came up for hearing today, Shri.P.Ravindran, learned senior counsel appearing for the petitioner submitted that the petitioner does not wish to challenge Ext.P9 and that as the disciplinary proceedings initiated against the petitioner have been finalized, the respondents may be directed to sanction and disburse the terminal benefits payable to him. Per contra, Smt.T.B.Remani, the learned Government Pleader submitted that terminal benefits can be sanctioned and disbursed to the petitioner only after the period of suspension is regularized. It was submitted that since a minor WP(C) No.15109/2008 -5- punishment of barring of one increment without cumulative effect was imposed on the petitioner, the petitioner cannot claim that he is exonerated of the charges and therefore, the disciplinary authority can regularize the period of suspension on terms, which it thinks fit to impose. The learned Government Pleader submitted that so long as orders regularizing the period of suspension have not been issued, the petitioner cannot claim payment of terminal benefits. 5. From the pleadings and the materials on the record, it is evident that the disciplinary proceedings initiated against the petitioner have been finalised with the passing of Ext.P9 order. Though after 31/12/2007, the disciplinary authority could not have imposed any punishment, the petitioner has fairly and graciously conceded that he does not propose to challenge Ext.P9. The only prayer made by the petitioner is that accepting Ext.P9, the terminal benefits, which he is entitled to, may be WP(C) No.15109/2008 -6- sanctioned and disbursed after recovering the monetary value of one increment without cumulative effect. The stand taken by the respondents is that terminal benefits can be sanctioned and disbursed only after orders regularizing the period of suspension are passed. The respondents further contend that the disciplinary authority has got wide discretion in the matter of regularizing the period of suspension and the quantum of terminal benefit, which the petitioner is entitled to would depend on the nature of the order to be passed by the disciplinary authority regularizing the period of suspension. In other words, the stand taken by the respondents is that notwithstanding the findings of this Court in Ext.P2 judgment, they have the absolute discretion in the matter of regularizing the period of suspension. 6. Though the petitioner was suspended by Ext.P1 order dated 05/07/2006, this Court after calling for and perusing the records, entered a finding against the WP(C) No.15109/2008 -7- respondents and in favour of the petitioner that the order of suspension was wholly unwarranted and was uncalled for. Ext.P2 judgment has become final. The operative portion of Ext.P2 judgment reads as follows :- “16. The respondents have not denied or controverted the averments in the writ petition. Nothing has been stated in answer to the apparently discriminatory and arbitrary action of the respondents in singling out the petitioner alone for hostile treatment. I have no hesitation to hold that the action of the respondents is patently unjust and is tantamount to abuse of the statutory and administrative power vested in them. The impugned action offends Article 14 of the Constitution of India, being ex facie arbitrary. 17. Ext.P1 is liable to be quashed for reasons stated above. It is essential in the interest of justice to direct respondents 1 & 3 by the issuance of a writ of mandamus to reinstate the petitioner forthwith. I do so. The period during, which the petitioner was kept out of service shall be regularised in accordance with law.” 7. In the light of the findings in Ext.P2 judgment, which has become final, the respondents cannot contend that they have any discretion in the matter of regularizing the period during which the petitioner was under WP(C) No.15109/2008 -8- suspension. In the light of the findings in Ext.P2 judgment, the disciplinary authority cannot take the stand that the order placing the petitioner under suspension was warranted or called for. This Court has in categorical terms held in Ext.P2 judgment that the action of the respondents in placing the petitioner under suspension is an abuse of the statutory and administrative power vested in them. Such being the situation, the respondents have no other alternative but to consider the period during which the petitioner was placed under suspension “as duty” for all purposes including salary and allowances and payment of terminal benefits. 8. Ext.P2 judgment was delivered on 21/12/2006. Though no time limit was fixed therein for passing orders regarding regularization of the period of suspension, the disciplinary authority ought to have considered the same at least when it passed Ext.P9 order on 13/08/2008. In the light of the findings in Ext.P2 judgment, the respondents WP(C) No.15109/2008 -9- were not entitled to take further time to pass orders regarding regularization of the period of suspension. They ought to have taking note of the fact that the petitioner is not in service and had retired about seven months back complied with the directions in Ext.P2 judgment, simultaneous with the passing of Ext.P9. 9. For the reasons stated above, I hold that petitioner is entitled to payment of terminal benefits by treating the period during which he was placed under suspension by Ext.P1 order “as duty” for all purposes including payment of salary and allowances and payment of terminal benefits. The respondents shall within two months from the date of receipt of a copy of this judgment compute the terminal benefits payable to the petitioner on that basis, and disburse the same to him within a period of two months thereafter. The respondents shall also compute and pay the arrears of salary, which petitioner was entitled to during the period when he was under suspension. Payment of arrears WP(C) No.15109/2008 -10- of salary shall also be made within the said period. 10. It is clarified that if the above directions are not complied with and the terminal benefits are not paid to the petitioner within the aforesaid period of four months, the petitioner will be entitled to interest at the rate of 7.5% per annum from 01/09/2008 till the date of payment. It will be open to the Government to recover the interest portion from the officers responsible for the delay in complying with the directions issued herein. (P.N.RAVINDRAN, JUDGE) jg