IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 9TH NOVEMBER 2009 / 18TH KARTHIKA 1931 WP(C).No. 30844 of 2009(A) -------------------------- PETITIONER(S): --------------- T.CHANDRASEKHARAN, APPELLATE ASSISTANT COMMISSIONER, COMMERCIAL TAXES DEPARTMENT, PALAKKAD. BY ADV. SRI.N.SUGATHAN SMT.VARSHA BHASKAR SRI.S.PRASANTH (AYYAPPANKAVU) RESPONDENT(S): --------------- 1. THE STATSE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. THE SECRETARY TO GOVERNMENT, VIGILANCE (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. THE DIRECTOR, VIGILANCE AND ANTI-CORRUPTION BUREAU, THIRUVANANTHAPURAM. 5. THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREA ERNAKULAM. BY GOVT. PLEADER SMT. ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Ext.P1. True copy of the GO(Rt).No.413/2006/TD dated 6.7.2006 declaring probation as Asst. Commissioner. Ext.P2. True photocopy of Memo No.12149/D1/2008/TD dated 19.6.2008 issued by Ist respondent. Ext.P3. True copy of the objection dated 5.8.2008 submitted by the petitioner. Ext.P4. True copy of the Notification published in G.O.(P) No.81/08/TD dated 17.4.2008 - select list. Ext.P5. True copy of the report dated 5.10.2005 submitted by K.A. Althaf, Deputy Commissioner (AA) , CT, Thiruvananthapuram. Ext.P6. True copy of the letter dated 23.2.2004 of STO II Circle, Perumbavoor to IAC, Muvattupuzha. Ext.P7. True copy of Note written in the Inspection Register on 6.8.2004 by the petitioner. Ext.P8. True copy of\ the letter dated 24.8.2004 of STO, II Circle Perumbavoor to the I.A.C Muvattupuzha. Ext.P9. True copy of letter dated 4.5.2007 of the CTO Perumbavoor to the SI of Police, Perumbavoor. Ext.P10. True copy of FIR No.603/2007 dated 12.5.2007 filed before the JFMC, Perumbavoor. Ext.P11. True copy of the Order dated 3.4.2009 in I.A. No.3037/09 in WP(c).No.34498/08. Ext.P12. True copy of the order dated 19.6.2009 in I.A. No. 7287/09 in WP(c).NO.34498/08 Ext.P13. True copy of I.A.No.9996/09 in WP(c).No.34498/08 for extension of time. Ext.P14. True copy of G.O.(Rt)No.927/09/TD dated 16.10.2009 suspending petitioner. Ext.P15. True copy of GO(Rt) No.933/2009/TD dated 19.102009 promotion junior as Dy. Commissioner. Ext.P16. True copy of letter No.5033/A2/2009/Vig. dated 8.6.2009. Ext.P17. True copy of U.O Note dated 27.7.2009. // true copy // P.A to Judge. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.30844 OF 2009 (A) -------------------------------------------------- Dated this the 9th day of November, 2009 J U D G M E N T Challenge in this writ petition is against Ext.P14 order placing the petitioner under suspension and a direction to the respondents to reinstate him in service is also sought for. 2. In 1983, petitioner joined service in 1983 as Assistant Sales Tax Officer, earned promotions as Sales Tax Officer and Assistant Commissioner. He was posted as Inspecting Assistant Commissioner at Muvattupuzha where he continued till 8.5.2005. Thereafter he was transferred to Ernakulam from where he was transferred and posted at Palakkad. 3. According to the petitioner, although he was qualified and eligible for inclusion in the select list Post of Deputy Commissioner for the year 2008, in Ext.P4 select list, published pursuant to the DPC held on 26.3.2008 and approved by the Government, he was excluded and several of his juniors were included and promoted. WPC.No.30844 /09 :2 : 4. Subsequently, on 19.6.2008, petitioner was issued Ext.P2 memo informing him that in the DPC held on 26.3.2008 it was decided to supersede him for the reason that a Vigilance case was pending against him vide A7-59266/05 in File No.C2 (VC7/07/Ernakulam)27087/07 in CCT's Office. Petitioner was called upon to file his objections and accordingly he filed Ext.P3 objection. Ext.P5 is an inspection note dated 5.10.2005, containing certain observations about the petitioner's performance during his tenure at Muvattupuzha. Petitioner submits that pursuant to Ext.P5 inspection report referred to above, by Ext.P9, a criminal case was ordered to be registered against the dealer involved and that pursuant to Ext.P9, Ext.P10 FIR was registered on 12.5.2007 against the dealer and four officers including him. It is stated that based on Ext.P10, on 20.9.2007, the Vigilance and Anti Corruption Bureau registered a case as VC7/07/EKM which is the case referred to in Ext.P2. 5. On receipt of Ext.P2, after filing his objections, petitioner approached this court by filing W.P(c)No.3449/08 praying for directing to convene an adhoc DPC and for his inclusion in the select list. When that writ petition was heard on 3.4.2009, this court passed Ext.P11 order, holding that the petitioner is entitled to an order directing the respondents 1 to 3 therein to convene an WPC.No.30844 /09 :3 : adhoc DPC within two months and to consider his claim for promotion to the cadre of Deputy Commissioner. It was ordered in Ext.P11 that on convening the adhoc DPC as directed, Ext.P5 select list will be revised suitably. 6. It is stated that, without complying with Ext.P11 order, respondents filed I.A. No.7287/2009 and got the time specified for compliance with the order extended by two months as per Ext.P12 order, in paragraph 11 of the writ petition, the petitioner has stated that in the meanwhile, on 4.6.2009, ad hoc DPC was convened and the DPC recommended his inclusion in Ext.P4 select list. It is stated that the recommendation was forwarded to the Government for approval and that while the recommendation made by the DPC was pending with the Government, again by Ext.P13, I.A.No.9996/09 respondents applied for further extension of time by another 3 months for complying with Ext.P11 order. It is stated that the I.A. came up for hearing before this court on 23.9.2009 and was adjourned by 2 weeks for reporting compliance with Ext.P11 order. Again the matter came up on 9.10.2009 and was adjourned and posted to 19.10.2009. 7. It is the complaint of the petitioner that in the meanwhile several of his juniors were promoted. It is stated that at that stage, WPC.No.30844 /09 :4 : on 16.10.2009 Ext.P14 order was passed, placing the petitioner under suspension. Immediately, on 19.10.2009, by Ext.P15 another junior of the petitioner was promoted. It is in these circumstances the writ petition has been filed with the prayers mentioned above. 8. Counsel for the petitioner contended that in view of Ext.P11 order in WP(c).No.34498/08, petitioner ought to have been included in the select list and promoted to the higher post of Deputy Commissioner. It is stated that, it was only to defeat his claim for promotion, that Ext.P14 order has now been issued suspending him from service. According to counsel, when the DPC met on 26.3.2008, the only reason stated for his supercession was the pendency of vigilance case. It is stated that since then there has not been any progress in the vigilance case and therefore there is no change of circumstances warranting an order placing him under suspension. In so far as the alleged disciplinary action is concerned, counsel submits that, so far no memo or notice has been issued to the petitioner. It is therefore submitted that there was absolutely no necessity or public interest, justifying his suspension. It is also his case that contrary to what is stated in the impugned order, there was no recommendation of the vigilance department to place the him under suspension. WPC.No.30844 /09 :5 : 9. I heard the learned Government Pleader who attempted to justify Ext.P14 order suspending the petitioner. 10. Ext.P14 is the order placing the petitioner under suspension. In this order all that is stated is that for want of documents the Government had decided to keep disciplinary action against the petitioner and another officer in abeyance and that after reconsidering the whole issue, in the light of recommendation made by the Vigilance and Anti Corruption Bureau, Government found no reason for not implementing the decision to initiate disciplinary action against the petitioner and the other officer. It is also stated that the other officer has since retired from service, and proceeding further, the petitioner is ordered to be placed under suspension under Rule 10 of the KCS(CC&A) Rules,1960 (here in after referred to as the Rules for short) with immediate effect. It is the validity of this order which is called in question in this writ petition. 11. Power of suspension is conferred under Rule 10 of the Rules. Rule provides that, the appointing authority or any authority to which he is subordinate or any other empowered authority may place a Government servant under suspension, where any WPC.No.30844 /09 :6 : disciplinary action is contemplated or is pending or where a case against him in respect of any criminal offence is under investigation or trial or where final orders are pending in the disciplinary proceedings. Such exercise of power is subject to the further condition that the appropriate authority should consider that in the then prevailing circumstances, it is necessary that in the public interest the Government Servant should be suspended from service. 12. The limits of the power to place an employee under suspension has been considered by this court on several occasions. One such case is Sreekumar V. Kerala Water Authority(1996(1) KLT 209). In that judgment, after referring to Rule 10, this court held that a Government servant can be placed under suspension, if the competent authority considers that in the prevailing circumstances it is necessary in the public interest that the Government servant should be suspended from service. It was further held that suspension is not automatic and the appropriate authority has to apply his mind to the question as to whether the Government servant should be placed under suspension or not. Thereafter, referring to the Apex Court judgment in State of Orissa V. Bimal Kumar Mohanty (1994(4)SCC 126), it was also held that the order of suspension would be passed after taking into consideration the WPC.No.30844 /09 :7 : gravity of the misconduct sought to be inquired into or investigated and the nature of evidence placed before the appointing authority. It was also held that the authority should consider the above aspects and decide whether, in the prevailing circumstances, it is expedient to keep an employee under suspension, pending further action against him and that it is not an administrative routine or an automatic order to suspend an employee. 13. Again a Division Bench of this court had occasion to consider the power of suspension in the judgment in Surendran.K V. Government of Kerala and Ors. (ILR 2008(3) Kerala 587, where it has been held thus. “The power to suspend an employee should be exercised with caution and care as an order of suspension pending enquiry may put the employee into shame and humiliation. Of course, if the continuance of the employee in the same place affects the disciplinary proceedings, the employer can suspend the employee. Whether an employee should be suspended pending enquiry will depend upon various circumstances. Suspension pending enquiry though cannot be considered as a punishment, it cannot be disputed that it causes real hardship to an employee. The stigma attached cannot be ignored. The object in placing a employee under suspension pending enquiry is to enable the administration to conduct the proceedings smoothly so as to establish the allegations or the charges against the employee. If he is allowed to continue on WPC.No.30844 /09 :8 : duty, there may be occasion for tempering with the evidence so that the investigation cannot be successfully conducted. The power to suspend is discretionary. There should be material to justify the suspension. The order should be free from the taint of mala fides, arbitrariness and extraneous considerations. Subjective satisfaction regarding suspension should be based on objective considerations and relevant circumstances. The suspension order should be sparingly passed in compelling circumstances.” 14. Yet another judgment on the same issue is Vikraman Nair K. V. State of Kerala & Ors.(ILR 2008(4) Kerala 395), where it has been held thus; “Suspension of an employee pending disciplinary proceedings and departmental enquiry is not automatic, but is discretionary. One of us(J.B.Koshy,J) speaking for the Division Bench in Surendran V. Government of Kerala pointed out that the object of placing an employee under suspension pending enquiry is to enable the administration to conduct the proceedings smoothly so as to establish the allegations or charge against that employee. If victimization is discernible from the facts of the case or, suspension is arbitrary or illegal, interference in exercise of the power under Article 226 of the Constitution is justified and warranted. The appointing authority or the disciplinary authority while considering whether an employee should be placed under suspension pending disciplinary proceedings and departmental enquiry should certainly consider the seriousness of the misconduct sought to be enquired into or investigated and the nature of WPC.No.30844 /09 :9 : the materials placed before such authority. It must be on proper application of mind that the disciplinary authority should decide on the question of suspension. The order of suspension cannot be issued merely as an administrative routine or as automatic following the decision to initiate disciplinary proceedings. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. Public interest of the impact of the delinquent's continuance in office while facing departmental enquiry is also a matter which the authority concerned should bear in mind while deciding whether the delinquent employee must be placed under suspension.” 15. Bearing in mind the aforesaid principles, I shall now examine the validity of the order of suspension. In this case, the justification offered for the belated suspension of the petitioner is that the matter was reconsidered by the Government and that it was decided to revive the disciplinary action against the petitioner. Learned Government Pleader further contended that it was based on the recommendation of the vigilance department that the petitioner was placed under suspension. However, it should be stated that the two orders referred to in Ext.P14, which have been produced by the petitioner as Exts.P16 and P17, do not contain any recommendation for the suspension of the petitioner from the service. It should also be stated that though the Government is always at liberty to revive and continue the disciplinary action WPC.No.30844 /09 :10 : against a delinquent, when it seeks to invoke its power of suspension, the exercise of power should be within the contours indicated by this Court in the aforesaid judgments. 16. In the aforesaid judgments, this court has indicated the circumstances in which a Government employee can be placed under suspension. None of the requirements indicated in the judgment are reflected in Ext.P14 order and from the facts of this case it is evident that the circumstances justifying suspension of a Government servant are absent. The misconduct alleged against the petitioner has occurred in 2005 and the petitioner is ordered to be placed under suspension in 2009. Not even a statement is made in Ext.P14 that his continuance in service will prejudicially affect the disciplinary action in any manner. While the misconduct is allegedly committed during his tenure at Muvattupuzha, petitioner is now posted at Palakkad. There is no statement in Ext.P14, that evidence is likely to be tampered with or that witnesses are likely to be influenced or that the gravity of misconducts deserves the suspension of the petitioner or that in the prevailing circumstances public interest demands his suspension. Further, there is no case for the respondents that there is any progress in the vigilance case. In such circumstances, it is not known how the disciplinary action WPC.No.30844 /09 :11 : can be parallely continued, as the Government itself have issued order preventing the same. The fact that it has been decided to revive the disciplinary action, to say the least is irrelevant and immaterial. These circumstances show that, in this case, the power of suspension has been exercised in a most arbitrary manner, and without any application of mind. For these reasons, without prejudice to the right of the respondents, to proceed with the disciplinary action, I quash Ext.P14 order and direct the respondents to reinstate the petitioner in service forthwith. Writ petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/