IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 OP.No. 26763 of 1999(J) ----------------------- PETITIONER: ------------------ M.G.CHANDRAMOHAN, DY.SUPERINTENDENT OF POLICE, DISTRICT CRIME RECORDS BUREAU, KOLLAM. BY ADV. SRI.K.P.DANDAPANI RESPONDENTS: ---------------------- 1) THE STATE OF KERALA, REP: BY SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2) THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 3) THE ACCOUNTANT GENERAL (A&E) KERALA, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT.T.B.REMANI. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11.1.2008, THE COURT ON 18.1.2008 DELIVERED THE FOLLOWING: ORDERON CMP.NO.45218 OF 1999 IN OP.NO.26763 O 1999-J. DISMISSED. 18.1.2008. Sd/- T.R.RAMACHANDRAN NAIR, JUDGE. APPENDIX PETITIONER'S EXHIBITS:- P1: Copy of the Government Order No.GO.(Rt.).No.288/94/Home dated 15.2.1994. P2: Copy of the Government Order No.GO(Rt.).No.1909/95/Home dated 28.8.1995. P3: Copy of the Government Order No.GO(Rt.).No.3595/96/Home dated 22.10.1996. P4: Copy of the representation dtd.29.10.1997 submitted by the petitioner to 2nd respondent. P5: Copy of the Show Cause Notice No.19154/H1/98/Home dtd.11.1.1999 issued to the petitioner. P6: Copy of the explanation dtd.8.4.1999 submitted by the petitioner. P7: Copy of the Government Order No.GO.(Rt.).No.3033/99/Home dated 3.6.1999. RESPONDENTS' EXHIBITS:- Nil. ( true copy ) P.A. TO JUDGE. kvs/- T.R.RAMACHANDRAN NAIR, J. = = = = = = = = = = = = = = = O.P.No.26763 OF 1999-J. = = = = = = = = = = = = = = = Dated this the 18th day of January, 2008. J U D G M E N T The sole issue which arises in this case is, whether the petitioner is entitled to be paid the entire pay and allowances during the period of suspension after treating the period as duty for all purposes. 2. The petitioner while working as Deputy Superintendent of Police was suspended from service as per Ext.P1 order dated 15.2.1994. This order of suspension was passed pending the departmental oral enquiry under Rule 8(iii) of Kerala Police Departmental Inquiry Punishment and Appeal Rules, 1958. By a subsequent order dated 28.8.1995 (Ext.P2) he was reinstated in service without prejudice to the disciplinary action pending against him. After conducting due enquiry as per Ext.P3 order he was exonerated from the charges. The details of the charges and other findings thereon are not necessary to be stated herein for the purpose of considering the above issue. 3. Ext.P5 is a show cause notice served on him pursuant to the O.P.No.26763 OF 1999-J. 2 provisional decision taken by the Government to regularise the period of suspension namely, from 15.2.1994 to 9.10.1995 as duty for all purposes other than pay and allowances and to limit the pay and allowances to the subsistence allowance paid. Ext.P6 is the explanation submitted by the petitioner to the said show cause notice. In the elaborate explanation thus submitted he has pointed out that as he has been exonerated from the charges the proposal put forth as per the show cause notice cannot be sustained. Relying upon Rule 56(2) of KSR he pleaded to regularise the period of suspension by sanctioning the full pay and allowances. This was not accepted by the Government and by Ext.P7 order the provisional decision was confirmed. The petitioner has raised various grounds challenging Ext.P7. 4. The learned counsel for the petitioner submitted that as the petitioner has been fully exonerated from the charges he is entitled to be paid full pay and allowances during the period covered by the suspension less the subsistence allowance already paid. Relying upon Rule 56(2) the learned counsel submitted that as the petitioner has been fully exonerated he has to be paid the full pay and allowances and the O.P.No.26763 OF 1999-J. 3 approach made by the Government is totally against the provisions of the rules. 5. The first respondent has filed a counter-affidavit justifying the order impugned. It is averred in the counter-affidavit that since the suspension is fully justified the period of suspension has been regularised as duty for all purposes other than pay and other allowances which is limited to the subsistence allowance already paid. Reference has been made to the facts revealed in the enquiry also further reiterating that the Government took a lenient view towards him after accepting his explanation in toto. 6. The relevant rule that has to be considered is Rule 56B and not Rule 56(2). Rule 56(2) obviously applies in a case where an officer who had been dismissed, removed or compulsorily retired has been reinstated as a result of appeal or review. To give the benefit of full pay and allowances to him, the authority should form an opinion that the officer had been fully exonerated. This is a case where the petitioner was reinstated in service pending the disciplinary proceedings and the disciplinary proceedings were finalised after exonerating him from the O.P.No.26763 OF 1999-J. 4 charges. Therefore, the only rule applicable is Rule 56B. The relevant provision is Rule 56B(3) which reads as follows: “(3) Where the authority competent to order re- instatement is of the opinion that the suspension was wholly unjustified, the officer shall subject to the provisions of sub- rule (8) be paid the full pay and allowances to which he would have been entitled, had he not been suspended.” Therefore, the sole question is whether the authority had found that the suspension was wholly unjustified while passing the impugned orders. The legal position as regards the entitlement of a person who was exonerated from the charges to claim full pay and allowances was explained by a Division Bench of this Court in the decision reported in Messiah Das v. State of Kerala (1978 KLT 160). Their Lordships were of their view that, “It is not an absolute rule that even if an officer is fully exonerated after the conclusion of the disciplinary enquiry, he is automatically entitled for a declaration that his suspension was wholly unjustified.' Their Lordships on an analysis of the provision held as follows: “On a careful reading of sub-rule (2) of rule 56 it is seen that a clear distinction is maintained in this respect between the reinstatement of a person from suspension and the reinstatement of a person who was dismissed or removed O.P.No.26763 OF 1999-J. 5 from service. While in the case of the latter it is specifically enjoined by the rule that what has to be considered by the competent authority is whether the accused officer has been fully exonerated or not, what is required by the rule to be considered in cases of reinstatement from suspension is whether the suspension “was wholly unjustified”. In our opinion the relevant point of time with reference to which the question whether or not suspension of an officer was wholly unjustified has to be determined is the time when he was placed under suspension and the question will therefore be whether on the facts and circumstances available on record at that time the suspension was wholly unjustified. There may however be rare cases where an officer has been kept under suspension for an unduly long time ignoring relevant developments which had taken place in the meantime such as the receipt of a report from the enquiry authority finding him not guilty of the charges or some other material change in circumstances which rendered the further continuance of the suspension unnecessary. In such cases the period of suspension may have to be split up into different stages and the justification of the continuance of the suspension beyond the stage of the receipt of the enquiry report etc, will have to be examined by the competent authority functioning under rule 56(1) with reference to the relevant facts and circumstances that were obtaining at that point of time. It cannot therefore be said as an absolute rule that whenever an officer who was placed under suspension is subsequently found at the conclusion of the disciplinary enquiry to be not guilty of the charges levelled against him, he is automatically entitled to a declaration by the competent authority under rule 56 that his suspension was wholly unjustified.” 7. In the light of the above binding decision of this Court, the argument of the learned counsel for the petitioner that since the O.P.No.26763 OF 1999-J. 6 petitioner was exonerated he was entitled for a declaration that he is eligible for the entire pay and allowances and that the said order is automatic cannot be accepted. That provision under Rule 56(2) does not apply here. The learned counsel for the petitioner relied upon the decisions of this Court in George v. State of Kerala (1976 KLT 309) and Susamma v. State of Kerala (2002(1) KLT (SN 5) 45) in support of his proposition. In George v. State of Kerala (1976 KLT 309) it was explained that the main question that falls for consideration under Rule 56 is whether the suspension of the Government servant in question is wholly unjustified. It was laid down in para.4 as follows: “All that the authority passing the order under rule 56 is enjoined to do is to apply its mind to the limited question whether in the light of the findings arrived at in the disciplinary proceedings it can be said that the suspension was wholly unjustified and if its conclusion is that it was not wholly unjustified, the authority has to further consider and decide as to what proportion of the pay and allowances the officer must be given for the period during which he was under suspension. It is specifically laid down in clause (5) rule 56 that in cases where the competent authority finds that the suspension was not wholly unjustified, the period of absence from duty shall not be treated as period spent by the concerned government servant on duty unless the authority specifically directs that it shall be so treated for any specified purpose.” O.P.No.26763 OF 1999-J. 7 Going by the above dictum, I am of the view that unless the authority enters a finding that the suspension of the Government servant is wholly unjustified then alone the other consequences will follow. In Susamma v. State of Kerala (2002(1) KLT (SN 5) 45) the learned Single Judge was pleased to hold that, “when the suspension was found to be wholly unjustified, the officer shall be paid full pay and allowances to which he would have been entitled, had he not been suspended.” That was the case where the Government found that the suspension was unnecessary and there was no scope for suspension. The facts herein are different and the said decision is not one in support of the argument of the petitioner. 8. A reading of Ext.P7 will show that no finding has been rendered therein as to the question whether the suspension was wholly unjustified or not. The authority which is competent to order reinstatement has to arrive at such a conclusion as enjoined by the rule. In Ext.P5 show cause notice also that aspect has not been stated while arriving at the provisional decision. Apart from that in Ext.P7 the issue has not been considered in the light of the contentions raised by the O.P.No.26763 OF 1999-J. 8 petitioner. After referring to the explanation offered by him the only finding rendered is that, “there is no ground in his explanation to review the earlier decision of Government. The provisional decision to regularise the suspension period in respect of Shri.M.G.Chandramohan, Deputy Superintendent of Police from 15.2.1994 to 9.10.1995 as duty for all purposes other than pay and allowance, limited to the subsistence allowance if any drawn by him is hereby confirmed.” Definitely, the same falls short of the statutory requirement. None of the points raised in the explanation have been considered and there is no proper application of mind also to the contentions raised by the petitioner. As already held under sub rule 3, the authority has to come to a definite finding whether the suspension was wholly unjustified or not. Only by entering such a finding alone the authority can decide on the question whether the officer is to be paid full pay and allowances during the period of suspension. That aspect has escaped the notice of the competent authority. The order is not a reasoned order also. For all these reasons I quash Ext.P7. 9. The first respondent is directed to pass fresh orders in the O.P.No.26763 OF 1999-J. 9 matter after considering the explanation of the petitioner on merits in accordance with the relevant rules and the principles laid down by this Court in the decisions referred to above. If the petitioner wishes to have a personal hearing in the matter, he should be afforded the same. The petitioner will be free to file additional explanation, if any, if he so chooses. The final orders in the matter shall be passed within a period of five months from the date of receipt of a copy of this judgment. Original Petition is disposed of as above. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. kvs/