IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 OP.No. 5689 of 2003(B) ---------------------------------- PETITIONER: -------------------- RAGHAVAN. K.M., S/O. LATE C.VELUKUTTY NAIR, AGED 55, DISTRICT REGISTRAR (AUDIT) RETIRED, REGISTRATION DEPARTMENT, MALAPPURAM. RESIDING AT VADAKKEYIL HOUSE, KAKKAD P.O., TIRURANGADI, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.DANDAPANI RESPONDENTS: -------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE INSPECTOR GENERAL OF REGISTRATION, O/O. INSPECTOR GENERAL OF REGISTRATION, KERALA, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL (A & E), O/O. ACCOUNTANT GENERAL, KERALA, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. M.P.SREEKRISHNAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/02/2008 ALONG QWITH WPC.NO.12208 OF 2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.9889/2003 IN O.P.NO.5689/2003 B DISMISSED 1/02/2008 SD/- K.M.JOSEPH, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF SUSPENSION ORDER DTD. 3/07/1998 ISSUED BY THE REGISTRATION INSPECTOR GENERAL, KERALA. EXT.P2: COPY OF JUDGMENT DTD. 17/08/1998 IN O.P.NO.13344/1998 OF THIS HONOURABLE COURT. EXT.P3: COPY OF ORDER DTD. 22/10/1998 ISSUED BY THE REGISTRATION INSPECTOR GENERAL, KERALA. EXT.P4: COPY OF SHOW CAUSE NOTICE DTD. 31/12/98 ISSUED BY THE REGISTRATION INSPECTOR GENERAL, KERALA. EXT.P5: COPY OF EXPLANATION DTD. 13/01/1989 SUBMITTED BY THE PETITIONER TO THE REGISTRATION INSPECTOR GENERAL, KERALA. EXT.P6: COPY OF ORDER DTD. 4/11/99 ISSUED BY THE REGISTRATION INSPECTOR GENERAL, KERALA. EXT.P7: COPY OF APPEAL DTD. 20/01/2000 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P8: COPY OF REPLY DTD.2/09/2002 ISSUED BY THE REGISTRATION INSPECTOR GENERAL, KERALA. EXT.P9: COPY OF COMMUNICATION DTD. 6/09/2002 RECEIVED BY THE PETITIONER FROM THE SR.ACCOUNTS OFFICER. EXT.P10: COPY OF ORDER DTD. 1/10/2002 ISSUED BY THE REGISTRATION INSPECTOR GENERAL, KERALA. EXT.P11: COPY OF ORDER DTD. 2/01/03 ISSUED BY THE ACCOUNTANT GENERAL (A&E), KERALA. /TRUE COPY/ P.S.TO JUDGE Kss K. M. JOSEPH, J. ------------------------------------ O.P NO. 5689 OF 2003 B ------------------------------------- Dated this the 1st February, 2008 JUDGMENT The prayers in the Original Petition are as follows: "i) Call for the records leading to Ext.P6 and issue a writ of certiorari or any other appropriate writ, order or direction, quashing the same. ii) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to regularise the period of suspension from 9.7. 1998 to 28.10.1998 as duty and grant all consequential benefits, forthwith. iii) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding t4he respondents to disburse the DCRG amount of Rs.1, 74,191/= and earned leave surrender value, together with interest at the rate of 18% per annum, forthwith." 2. Briefly put, the case of the petitioner is as follows: Petitioner was placed under suspension pending enquiry. OP 5689/03 B 2 Petitioner challenged the same and vide Ext.P2 Judgment, this Court repelled the challenge. Thereafter the petitioner was reinstated. Petitioner was kept under suspension from 9.7.1998 to 28.10.1998. By Ext.P6, the period of suspension was regularised as leave without allowance. A Counter Affidavit is filed by the second respondent. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. Learned counsel for petitioner would contend that even though the petitioner was placed under suspension, he came to be reinstated. Though there was an enquiry, the enquiry did not culminate in the imposition of any penalty on the petitioner. He would submit when a disciplinary enquiry has been held and no penalty has been imposed, the petitioner is entitled to have the period during which he was placed under suspension, as on duty for all purposes and the monetary benefits should have been paid. He would submit further that there is no justification for treating the period of suspension as leave without allowance. OP 5689/03 B 3 He has a case that the petitioner was not heard. Petitioner was not given an opportunity before Ext.P6 was issued, he contends. 5. On the other hand, learned Government Pleader would contend that it is not correct to say that the petitioner was not given an opportunity of hearing before Ext.P6 was issued. Referring to the Counter Affidavit, it is submitted that the petitioner was indeed given an opportunity. Further, the learned Government Pleader would contend that having regard to Ext.P3 dated 22.10.1998, it is clear that it was after taking a lenient view that the petitioner was reinstated. 6. A Division Bench of this Court in Writ Appeal No.457 of 1986 had taken the view that the order passed under Section 56(B) of Part I of KSR must be preceded by application of mind. In order to appreciate the issue raised, it is necessary to understand the charge which was raised against the petitioner. As evident by Ext.P2 Judgment of this Court, the charge apparently against the petitioner was that acting in disregard to the instructions issued by the Superior Officers, the petitioner OP 5689/03 B 4 corresponded in English language, when the orders provide that the petitioner must communicate in Malayalam. A perusal of Ext.P2 Judgment, in fact, would show that the petitioner has defended the action in corresponding in English language. It is also clear that though no penalty was imposed on the petitioner, it is only taking a lenient view that the disciplinary proceedings did not reach the logical culmination. Apparently, the proceedings came to die, a premature death, consequent upon the plea for leniency advanced by the petitioner which apparently proved successful as the Authorities decided to accept the plea of leniency. Rule 56B of Part I KSR imposes a duty on the Authority to apply his mind in the matter of deciding as to what is to be done with regard to the period an employee was placed under suspension. As pointed out correctly by the Government Pleader, this is a case where the petitioner was heard. The disciplinary proceedings in turn show the circumstances in which the matter did not attain the normal culmination. Petitioner does not have a legal right to have the OP 5689/03 B 5 period of suspension regularised as one on duty. In such circumstances, when the petitioner himself pleaded for leniency and the petitioner was also heard in the matter, I would decline my discretionary jurisdiction under Article 226 of the Constitution of India, to the petitioner in the matter of interfering with Ext.P6. Accordingly, the said prayer is rejected. 7. Petitioner has a complaint that DCRG in a sum of Rs.1,74,191/= was not paid. Government Pleader submits that liability was fixed in a sum of Rs.3,576/= and it was scaled down from Rs.26,402/=. In such circumstances, there will be a direction to the second respondent to communicate the decision to impose liability in a sum of Rs.3,576/= to the petitioner within a period of one month from the date of receipt of a copy of this Judgment. I leave it open to the petitioner, if he is so advised, to ventilate his grievance against the said fixation, in the appropriate forum. It is the case of the respondents that all the benefits have been paid. In case the petitioner has any complaint regarding the non-receipt of the amount due as earned OP 5689/03 B 6 leave surrender, it is left to the petitioner to approach the appropriate forum. The Writ Petition is disposed of as above. K. M. JOSEPH, JUDGE kbk. K. M. JOSEPH, J. O.P NO. 5689 OF 2003 B JUDGMENT 1st February, 2008.