IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 WP(C).No. 13865 of 2008(A) -------------------------- PETITIONER: ------------ 1. K.PRAMOD, S/O.KORAN, ASST.ENGINEER, WATER RESOURCES DEPARTMENT, BSP SECTION, 3/1, PADINJARETHARA, WAYANADU DISTRICT. 2. K.SOMAN, S/O.KUNHAN, OVERSEAR GR:3, WATER RESOURCES DEPARTMENT, BSP SECTION, 1/1 PADINJARETHARA, WAYANADU DISTRICT. BY ADV. SRI.C.K.ABDUL RAHIM RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDL.CHIEF SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ASST.EXECUTIVE ENGINEER, WATER RESOURCES DEPARTMENT, BSP SUB DIVISION NO.1 PADINJARETHARA, WAYANAD DISTRICT. BY GOVERNMENT PLEADER SRI. NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13865 of 2008 APPENDIX EXHIBITS EXT.P1- COPY OF THE ORDER OF THE EXECUTIVE ENGINEER, DATED 28.12.07 EXT.P2- COPY OF THE NOTE ISSUED BY THE 2ND RESPONDENT, DATED 8.1.08 EXT.P3- COPY OF THE LETTER ISSUED BY THE 1ST PETITIONER TO THE 2ND RESPONDENT, DATED 14.1.08 EXT.P4- COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT TO THE ASST.ENGINEER, BSP SECTION 1/1 DATED 29.1.08 EXT.P5- COPY OF THE FIR EXT.P6- COPY OF THE PRELIMINARY REPORT OF THE SUPERINTENDING ENGINEER ALONG WITH FORWARDING LETTER DATED 28.1.08 EXT.P7- COPY OF THE GOVERNMENT ORDER DATED 28.1.08 EXT.P8- COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 21.4.08 EXT.R1(a)- TRUE PHOTOCOPY OF THE G.O.(RT).114/2008/WRD DATED 28.1.08 (TRUE COPY) P.A TO JUDGE V.GIRI, J ------------------- W.P.(C).13865/2008 -------------------- Dated this the 2nd day of June, 2008 JUDGMENT First and second petitioners are working as Assistant Engineer and IIIrd Grade Overseer respectively, in the Water Resources Department. They are aggrieved by Ext.P8 order passed by the Government suspending them from service, pending enquiry. The order of suspension has been passed by the Government taking note of the recommendations made by the enquiry committee, constituted to enquire into the incident at Padinjarethara in the Banasura Sagar Project. Apparently, there was a landslide mishap which occurred at the site of the said project on 26.1.2008. Taking note of the gravity of the situation, a committee was appointed to look into the same. First petitioner, the Assistant Engineer, was posted in the present place at BSP (Banasura Sagar Project) Section 3/1 at Padinjarethara in Wayanad District, on 1.12.2007. He assumed charge in the said office on 1.12.2007. According to him, the work of “BSP - Pandinjarethara Branch Canal - construction of W.P.(C).13865/2008 2 covered and open Flume from CH 2100 to 2690” was a work being executed under BSP Section 1/1 since February 2007 onwards. But after the first petitioner took charge as Assistant Engineer in BSP Section 3/1, through an order dated 28.12.2007, the Executive Engineer transferred the said work from BSP Section 1/1 to BSP Section 3/1. Specific case of the petitioner is that in spite of the said order, Ext.P1, Assistant Engineer, who was in charge of BSP Section 1/1, did not hand over any records pertaining to the said work, to the first petitioner. By Ext.P2 dated 8.1.2008, the second respondent issued a note to the first petitioner pointing out that the contractor is not executing the work as per the approved profile. First petitioner replied vide Ext.P3 and the same reads as follows:- “As per the reference 1st cited, it is ordered that the above work has been transferred from section 1/1 Padinjarethara to Section 3/1 Padinjarethara. But the connected W.P.(C).13865/2008 3 records such as files, drawings, M.Books, work memorandum etc, are not handed over to me by the Assistant Engineer Section 1/1 Padinjarethara till date. So I cannot follow up the direction issued by the Assistant Executive Engineer BSP Sub division Padinjarethara. This is for your information and necessary action.” 2. It therefore, seems to be the specific case of the first petitioner that though a direction was issued vide Ext.P1, to see that the charge of the project is handed over to the first petitioner namely the Assistant Engineer in Section 3/1, the same was not implemented. Reference is made to Ext.P4 by which the Assistant Executive Engineer issued a specific communication to the Assistant Engineer, Section 1/1, wherein he was directed to transfer the file and all connected documents regarding the subject work to the Assistant Engineer, Section 3/1, Padinjarethara. Ext.P4 would prima facie indicate that Ext.P1 had not really been given effect to, in the sense that the first petitioner did not get charge W.P.(C).13865/2008 4 of the work in question at any point of time prior to 26.1.2008. First petitioner is aggrieved that in spite of the same, he has been put under suspension, as if there was a lapse on his part in relation to the landslide mishap which occurred on 26.1.2008. The order of suspension is therefore, challenged on the ground that the first petitioner has no connection at all to the incident in question and therefore, the Government had committed an error in not ascertaining the concerned incumbents, who were in charge of the work in question on the date of mishap or during the relevant time. 3. Learned senior Government Pleader Mr.Nandakumar had made available a copy of the enquiry report submitted before the Government. I have gone through the same. Paragraph 33 of the said report, no doubt, affirms that the Assistant Engineer and Overseer were responsible for the work in question and it is therefore, that recommendation was made to place both the Assistant Engineer and Overseer under W.P.(C).13865/2008 5 suspension. It seems that the Government had proceeded to place the first petitioner under suspension on the premise that Ext.P1 had taken effect and the first petitioner was in charge well before 26.1.2008. I do not find any material to clearly indicate whether the Government had really gone into the question before passing the order of suspension. In my view, this is an aspect which has to be engaged the serious attention of the Government. 4. In so far the second petitioner is concerned, he also has a contention that though he was an Overseer, Section 1/1, he was in the administrative Office and was not in charge of the site as such. In my view, that is a matter which has to be considered by the appropriate authority, if the second respondent files an application under Rule 10(6) of the Kerala Civil Services (Classification, Control and Appeals) Rules. In the result, writ petition is disposed of in the following terms:- W.P.(C).13865/2008 6 (i). Government shall specifically consider the case of the first petitioner that Ext.P1 had not been give effect to and therefore, the first petitioner had never been put in charge of any operation of the work dealing with BSP, Padinjarethara Branch Canal and construction of covered and open Flume from CH 2100 meters to 2690 meters. (ii). If the first petitioner's contention on the basis of Exts.P1, P3 and P4 are found to be correct, then the suspension of the first petitioner is liable to be revoked and necessary orders shall be passed by the Government in that regard. To enable the Government to do so, first petitioner may file a representation pointing out these aspects and also produce the relevant materials in support of the contention. This shall be done within a period of one week from the date of receipt of a copy of this judgment and the Government shall pass orders on the same within a period of four weeks from the date of receipt of W.P.(C).13865/2008 7 such representation. Ext.P8 order of suspension shall not be given effect to in so far as the first petitioner is concerned, till such fresh orders are passed by the Government. (iii). If the second petitioner files an application for revocation of suspension in so far as he is concerned, in terms of Rule 10(6) of the Kerala Civil Services (Classification, Control and Appeals) Rules, it shall be considered and appropriate decision taken thereon, within a period of four weeks from the date of receipt of such application, along with the copy of the judgment. Both the petitioners shall be heard, if there is a proposal to pass an order adverse to them. V.GIRI, Judge mrcs