IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 26TH OCTOBER 2009 / 4TH KARTHIKA 1931 WP(C).No. 29481 of 2008(I) ------------------------------------- PETITIONER: ------------------- C.GEETHA, AGED 53 YEARS, W/O. P.CHANDRAN, USHUS, VAIDYARANGADI P.O., 11TH MILES, MALAPPURAM DISTRICT. BY ADVS. MR.BABU KARUKAPADATH, SMT.M.A.VAHEEDA BABU, MR.JAGAN GEORGE, MR.K.A.NOUSHAD, MR.P.G.PRAMOD. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, LOCL SELF GOVERNMENT (EPB) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, THENHIPALAM GRAMA PANCHAYATH, P.O. THENHIPALAM. 3. THE DEPUTY DIRECTOR OF PANCHAYATH, MALAPPURAM. R1 BY GOVERNMENT PLEADER MR. P. NANDAKUMAR, R2 BY ADV. MR.K.P.SUDHEER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.29481/2008-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DTD. 23/09/2008 OF THE R.1. EXT.P.2: COPY OF THE EXTRACT OF THE BUILDING TAX ASSESSMENT REGISTER 1987- 88 TO 1991-92. EXT.P.3: COPY OF THE EXTRACT OF THE BUILDING TAX ASSESSMENT REGISTER 1997- 98 TO 2001-02. EXT.P.4: COPY OF THE NOTICE DTD. 03/03/2004 ISSUED BY THE PETITIONER. EXT.P.5: COPY OF THE EXPLANATION DTD. 15/03/2004 BY MR. P.K. ABDUL SALAM TO THENHIPALAM GRAMA PANCHAYAT. EXT.P.6: COPY OF THE REQUEST DTD. 26/04/2004. EXT.P.7: COPY OF THE JUDGMENT DTD. 06/04/2004 OF THIS HONOURABLE COURT IN W.P.NO.12226/2004. EXT.P.8: COPY OF THE APPLICATION FOR PERMIT/REGULARISATION SUBMITTED BEFORE THE PANCHAYAT. EXT.P.9: COPY OF THE INTIMATION DTD. 04/07/2007 OF THE R.2. BEFORE THE R.1. EXT.P.10: COPY OF THE INTIMATION DTD. 12/08/2007 OF THE R.1. TO THE R.2. EXT.P.11: COPY OF THE REPORT OF THE TOWN PLANNER, MALAPPURAM. EXT.P.12: COPY OF THE INTIMATION DTD. 04/09/2008 OF THE R.2. EXT.P.13: COPY OF THE ORDER DTD. 04/02/2009 OF THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM, DECLARING THE PROBATION OF THE JUNIORS IN THE CADRE OF SENIOR SUPERINTENDENTS. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.29481 OF 2008 (I) -------------------------------------------------- Dated this the 26th day of October, 2009 J U D G M E N T Petitioner was appointed as 2nd Grade Executive Officer. During the period from 2.6.2002 to 2.8.2006, petitioner was working as Secretary of the Thenhipalam Grama Panchayat. In 2004, she ordered regularization of a building constructed by one P.K. Salam. Subsequently, in 2006, the petitioner was transferred to Thanur Grama Pancahayat. She was thereafter promoted and posted in the office of the 3rd respondent, where she is now working. 2. By Ext.P1 order dated 23.9.2008, the first respondent placed the petitioner under suspension for having regularized construction of the building mentioned above. According to the first respondent, such regularization was ordered, despite the fact that the construction was in violation of the various provisions of the Kerala Municipal Building Rules. It is this order which is under challenge in this writ petition. 3. Petitioner submits that, as is evident from Exts.P2 and P3, the Building Tax Assessment Register of the 2nd respondent WPC.No.29481/08 :2 : Panchayat, for the period 1987-88 to 1991-92, the ground floor of the building was already in existence since then and that only the upper floor was constructed. It is stated that during 2004, when the petitioner was working at Thenhipalam Grama Panchayat, she came to know of the unauthorized construction undertaken by the aforesaid Sri.Salam and thereupon she issued Ext.P4 notice requiring him to regularize or demolish the unauthorized construction. Sri. Salam thereupon submitted Ext.P5 explanation admitting the irregularity committed, pleading that it was on account of ignorance the building was constructed without getting the plan approved or obtaining the building permit. 4. It is stated that, thereafter he submitted Ext.P6 representation requesting for regularization of the construction enclosing Ext.P7, judgment of this court in WP(c).No.12226/04 filed by him, directing that if an application for regularization is made, the same shall be considered. It is pointed out that it was further directed that the implementation of Ext.P1 shall be kept in abeyance until orders are passed. It is stated that on receipt of Exts.P6 and P7 she got the building in question inspected by an Overseer who submitted Ext.P8 report recommending to regularize WPC.No.29481/08 :3 : the construction. According to the petitioner, it was on the basis of Exts.P6 to P8 that she ordered regularization of the construction undertaken by Sri. Salam. 5. Petitioner subsequently came to know that the proceedings culminating in Ext.P1 order of suspension originated at the instance of one Bhaskaran who made a complaint to the first respondent. It is stated that on receipt of the complaint, the first respondent had called for a report from the 2nd respondent Panchayat and that the 2nd respondent Panchayat gave Ext.P9, stating that the ground floor of the building was already in existence and that it was in the light of Exts.P6 to P8 that the regularization was ordered. Petitioner also submits that by Ext.P10 Government had ordered cancellation of the proceedings regularizing the construction and that even in Ext.P11 reports submitted by the Chief Town Planner, on the basis of which cancellation was ordered, no mala fide action on her part has been reported. Counsel also made reference to Ext.P12 and submitted that the Panchayat also did not find anything mala fide on her part. 6. Counter affidavit has been filed by the Government and also 2nd respondent Panchayat. In both these counter affidavits the allegation that the petitioner had ordered regularization of the WPC.No.29481/08 :4 : building in violation of the Municipality Building Rules is reiterated. It is stated that in view of the disciplinary action that is contemplated against the petitioner the respondents have decided to place her under suspension. 7. I have considered the submissions made. True a reading of Ext.P1, the order of suspension shows that, according to the respondents regularization has been ordered by the petitioner in violation of the provisions contained under the Municipality Building Rules. Therefore, it may be for the respondents to initiate disciplinary action and there cannot be any quarrel with the competence of the first respondent for initiating such proceedings. 8. However, the question is whether with regard to an incident of 2004, the petitioner who was subsequently transferred, promoted and posted in the office of the 3rd respondent where she is presently working should be kept under suspension. In several cases, this court had occasion to consider the circumstances under which an employee can be justifiably placed under suspension. In N. Subramanian V. State of Kerala (1973 KLJ 31), Division Bench of this court held as follows; WPC.No.29481/08 :5 : “Despite the apparent wide wording employed in the rule, it is now well- settled that the object underlying the conferment of the said power is to enable the appointing authority to remove an officer to whom serious allegations of misconduct are imputed, from the sphere of his activity if: (a) the allegations against him are such that in the interests of the maintenance of the purity and probity of the administration or the upkeep of proper standards of discipline and morale in the service it will not be desirable to allow the officer to continue in service until he is cleared of the charges; or (b) where the position occupied by the officer is such that his continuance in service would render the conduct of the investigation against him difficult or embrassing. If the appointing authority after taking into account the facts and circumstances which are available before it, at that stage, forms the opinion that the Government servant against whom serious imputations are made should not be allowed to function any where before the matter has been finally set at rest after holding a thorough enquiry, a suspension of the officer from service would be perfectly warranted see The Government of India V Tarak Nath Ghoh (AIR 1971 SC 823) and Abdulsalam V. State of Kerala (ILR 1972(1) Kerala 296. It is, however, mandatory that before an officer can be validity placed under suspension under Rule 10, the authority passing the order must address its mind to the relevant aspects and come to the bona fide conclusions that for either of the two reasons mentioned above or both the officer cannot be allowed to function in any post in the service until the enquiry against him is concluded.” WPC.No.29481/08 :6 : 9. Proceeding further in paragraph 9 of the judgment the Division Bench had also pointed out that, the suspension although not a punishment, the reality cannot be ignored that an order of suspension brings to bear on the Government Servant consequences far more serious in nature than several of the penalties mentioned in the Rule and that it has a disastrous impact on the fair name and good reputation that may have been earned or built by the Government Servant in the course of many years of service. 10. Again in Vikraman Nair V. State of Kerala (2008(4) KLT SN 63) it has been held that; “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 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 WPC.No.29481/08 :7 : placed under suspension.” 11. Similarly in Surendran V. Govt. of Kerala & ors.(2008(3) KLJ 258), it has been held as follows; “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 an employee under suspension pending enquiry is to enable the administration to conduct the proceedings smoothly so as to establish the allegations or the charge against the employee. If he is allowed to continue on duty, there may be occasion for tampering 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 bases on objective considerations and relevant circumstances. The suspension order should be sparingly passed in compelling circumstances. It is true that commission of grave misconduct may be a ground for suspending an employee, but the need for suspending an employee would not necessarily depend upon the gravity of the charges alone. The disciplinary authority should consider whether it is necessary to keep the employee away from the post. A person who is alleged to have embezzled public funds can be suspended immediately to prevent him from committing further WPC.No.29481/08 :8 : embezzlement or doing something to cover up the fraud, but, it is not proper to suspend an employee posted elsewhere for an alleged irregularity committed mine years back, the file of which was closed. “ 12. It is therefore evident that, before a delinquent employee is placed under suspension, the disciplinary authority should consider whether having regard to the factors pointed out by this court, is it desirable to allow the officer to continue in service and whether his continuance render investigation impossible. If on such consideration it is found that suspension is the right course to be adopted, it is always open to the disciplinary authority to place employee under suspension. In this case none of these considerations have weighed with the authorities and in any case, such considerations are not reflected either in Ext.P1 or in the counter affidavit. If that be so, it is a case where there is total non application of mind. Added to this is the fact that the misconduct in question had happened when the petitioner was working at Thenhipalam and she is no longer connected with that office. If so there is no reason why her continuance in service should stand in the way of the authorities in continuing disciplinary action. WPC.No.29481/08 :9 : 13. I also notice that when this case came up for admission before this court on 7.10.2008, this court stayed operation of Ext.P1 order of suspension, giving liberty to the respondents to move for variation of the order, after counter affidavit is filed. Though counter affidavit has been filed, no effort was taken for getting the stay vacated. Therefore, the petitioner has been continuing in service. In view of all the above reasons, I see no reason to sustain Ext.P1 and it is set aside, clarifying that respondents are free to continue the disciplinary action against the petitioner. Writ petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/