IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 WP(C).No. 20552 of 2010(T) -------------------------- PETITIONER(S): --------------------- C.M.JAMES,DELMA QUARTERS, ROOM NO.3, NEAR COLLECTOR'S BANGLOW, MUTTATHODY P.O., KASARAGOD. BY ADV. SRI.B.MANIMOHAN RESPONDENT(S): ------------------------- 1. KERALA STATE HOUSING BOARD, REP.BY ITS SECRETARY,THIRUVANANTHAPURAM-695001. 2. THE SECRETARY, KERALA STATE HOUSING BOARD,THIRUVANANTHAPURAM-695001. ADDITIONAL RESPONDENT NO.3 3. THE CHAIRMAN, KERALA STATE HOUSING BOARD, THIRUVANANTHAPURAM-695001 (IMPLEADED AS ADDITIONAL RESPONDENT 3 VIDE ORDER DATED 10.8.2010 IN I.A.10961/2010) SRI.A.JAYASANKAR, SC, KSHB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 20552 OF 2010 (T) ===================== Dated this the 19th day of August, 2010 J U D G M E N T Petitioner is a 1st Grade Draftsman in the Kerala State Housing Board. He was working in the Waynad Divisional Office. From there, he was transferred and was posted to Kasargod Divisional Office, where he joined immediately thereafter. 2. While working at Kasargod, by Ext.P7 order dated 3/5/2010, the Secretary of the Housing Board placed the petitioner under suspension on the basis that Vigilance and Anti Corruption Bureau have registered a case against the petitioner on 2/11/2009 and that the Director of VACB has recommended that the petitioner be placed under suspension till completion of investigation of the vigilance case. 3. Thereupon, petitioner submitted Ext.P8 appeal before the Chairman of the Housing Board invoking his appellate power under Rule 31 of the KCS (CCA) Rules. By Ext.P9 communication issued by the Deputy Secretary, Confidential Wing, petitioner has been informed that the Chairman has directed him to inform the petitioner that since he has been placed under suspension based WPC No. 20552/10 :2 : on the report of the Director of VACB and the recommendation of the Government, reinstatement can be ordered only with the concurrence of the Vigilance Department. It is in these circumstances, the writ petition has been filed challenging Exts.P7 and P9. 4. When the matter was taken up for hearing, learned counsel for the petitioner confined his submissions about the invalidity of Ext.P9. Counsel contended that Ext.P9 does not show appreciation of his case in terms of the provisions contained in Rule 31 of the KCS (CCA) Rules. 5. On the other hand, counsel appearing for the respondent Board placed considerable reliance on GO(P) No.65/92/Vig. dated 12/5/92, as modified by GO(P) No.17/94/Vig. dated 9/5/94. According to the learned counsel, since suspension was based on the recommendation of the Vigilance and Anti Corruption Bureau, the Chairman has no power to revoke the suspension as sought for by the petitioner. 6. Para 15 of the Government Order dated 12/5/92 was deleted and substituted by GO(P) No.17/94/Vig. dated 9/5/94 and this paragraph reads as under; WPC No. 20552/10 :3 : “15. Suspension or Transfer of Government/Public Servants against whom Proceedings are taken: Whenever a case falling under any category enumerated in Para 6 above is registered or an enquiry is contemplated or initiated against any Government/Public Servant, and if Government feel it necessary in the interest of a fair investigation or enquiry, the Government Servant concerned may either be placed under suspension by the Vigilance Department or, as the case may be the Vigilance Department may request the concerned Department to suspend or transfer him. The Head of Department/Office/Government Undertakings concerned shall, without fail and with the least delay, comply with such direction ordering the suspension/transfer of the official concerned, and report compliance to Government in the Vigilance Department under intimation to the Director of Vigilance Investigation. The reinstatement of the Public/Government servant and/or his reposting in the same place from where he was suspended/transferred shall be ordered only with the concurrence of Government in the Vigilance Department. In cases where orders of suspension were issued by Government in the Vigilance Department reinstatement will be ordered only by the Vigilance Department, in consultation with the Director of Vigilance Investigation”. 7. A reading of this paragraph shows that when request is made by the Vigilance Department to the Head of the Department or Government undertakings, to place an officer under suspension, that order is liable to be implemented without any further delay. The order further provides that reinstatement WPC No. 20552/10 :4 : shall be ordered only with the concurrence of the Government in the Vigilance Department. 8. Rule 31 of the KCS (CCA) Rules provide that when an appeal against an order of suspension is filed, the appellate authority shall consider whether in the light of the provisions contained under Rule 10 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order. 9. In my view, when on the recommendation, an employee is placed under suspension, it is open to the employee to invoke the appellate remedy available under Rule 31 and the appellate authority is bound to consider the appeal in the light of the provisions contained in Rule 10 of the Rules, and having regard to the circumstances of the case, and come to a conclusion as to whether suspension is justified or not. If the appellate authority's conclusion is that suspension is not justified, appellate authority cannot straight away order reinstatement of the delinquent. On the other hand, under the Government order referred to above, appellate authority has necessarily to seek concurrence of the Government in the Vigilance Department, and WPC No. 20552/10 :5 : if concurrence is not obtained, there cannot be any reinstatement. Therefore, it is not as though the appellate authority does not have any power, but the appellate authority has the power subject to the limitations as indicated above. 10. In that view of the matter, if Ext.P9 communication issued to the petitioner is appreciated, it can be seen that there has not been proper consideration of Ext.P8 appeal in the light of Rule 31 referred to above. Therefore, I quash Ext.P9 and direct the 3rd respondent to reconsider Ext.P8 appeal of the petitioner with notice to him and as expeditiously as possible, at any rate within 6 weeks of production of a copy of this judgment. 11. Petitioner shall produce a copy of this judgment before the 3rd respondent for compliance. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp