IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 WP(C).No. 16470 of 2007(I) ------------------------------------- PETITIONER: ------------------- K.VASUDEVAN NAIR, BLOCK DEVELOPMENT OFFICER (RETIRED), KRISHNAVILASOM, THAZHATHUVADAKKU P.O., (VIA)ENATHU- 691526. BY ADV. SRI.M.V.BOSE, SRI.VINOD MADHAVAN, SMT.NISHA BOSE. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, VIGILANCE (D) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PANCHAYAT, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER SRI. P. NANDAKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/12/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.16470/2007-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DTD. 16/05/2001 (G.O.(RT)NO.143/2001/VIG. DTD. 16/05/2001). EXT.P.2: COPY OF THE SHOW CAUSE NOTICE DTD. 10/01/2007 ISSUED BY R.1. EXT.P.3: COPY OF THE REPRESENTATION DTD. 18/01/2007 FROM THE PETITIONER TO R.1. EXT.P.4: COPY OF THE ORDER DTD. 11/04/2007 (G.O.(RT).NO.83/07 DTD. 11/04/07). RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No. 16470 of 2007 ------------------------------- Dated this the 1st December, 2008. J U D G M E N T Heard Sri.M.V.Bose, the learned counsel appearing for the petitioner and Sri.P.Nandakumar, the learned Government Pleader appearing for the respondents. 2. While the petitioner was working as Special Grade Secretary in the Vadasserikkara Grama Panchayat, he was placed under suspension by order dated 20.12.2000 by the State Government. The order of suspension was passed pursuant to the registration of a vigilance case against him. Later, by Ext.P1 order dated 16.5.2001, the Government ordered the petitioner's reinstatement in service and he re-joined duty on 20.5.2001. The petitioner retired from service long thereafter on 30.4.2005. 3. After the petitioner retired from service, the investigating officer of the Vigilance and Anti Corruption Bureau completed the investigation and filed a report before the Director W.P.(C) No.16470 of 2007 2 of the Vigilance & Anti Corruption Bureau. The investigating officer recommended prosecution of the petitioner. The Director, after scrutiny of the records, over ruled the recommendation of the investigating officer and decided that the petitioner cannot be successfully prosecuted for want of evidence. The recommendation of the Director was also accepted by the Government. The Government thereafter issued Ext.P2 show cause notice dated 10.1.2007 calling upon the petitioner to show cause why the period from 21.12.2000 to 15.5.2001 during which he was placed under suspension, shall not be treated as duty for all purposes, except for pay and allowances which shall be limited to the subsistence allowance already drawn by him. The petitioner submitted Ext.P3 reply claiming full salary and allowances for the period during which he was placed under suspension. The reply submitted by the petitioner was not acceptable to the Government. The Government thereafter issued Ext.P4 order dated 11.4.2007 directing that the period during which the petitioner was placed under suspension shall be treated as duty for all purposes, except for payment of salary and W.P.(C) No.16470 of 2007 3 allowances. It was also ordered that the period of suspension will not be reckoned for accrual of earned leave also. Ext.P4 is under challenge in this writ petition. 4. The learned counsel appearing for the petitioner contends that as no disciplinary action was initiated against the petitioner following his suspension and as he was also not prosecuted, Rule 56 B of Part I of the K.S.R. cannot be invoked to deny him salary and allowances for the period of suspension. The learned counsel further contends that as the Director of the Vigilance & Anti Corruption Bureau has recommended that the petitioner need not be prosecuted, in retrospect, it would indicate that the petitioner's suspension was 'wholly unjustified'. Per contra, the learned Government Pleader submits that though the complicity of the petitioner in the commission of the offence alleged against him was suspected, he could not be prosecuted for want of acceptable evidence. The learned Government Pleader further submits that the petitioner could not be proceeded against under the provisions of the Kerala Civil W.P.(C) No.16470 of 2007 4 Services (Classification, Control and Appeal) Rules, since a vigilance enquiry was in progress and that the Director of Vigilance & Anti Corruption Bureau did not exonerate the petitioner, but only opined that for want of evidence, the petitioner cannot be successfully prosecuted. The learned Government Pleader submits that merely based on the subsequent events, it cannot be said that the petitioner's suspension was wholly unjustified. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The counter affidavit filed on behalf of the first respondent discloses that the investigating officer had reached the conclusion that the petitioner was guilty. However, the Director of the Vigilance & Anti Corruption Bureau overruled the investigating officer for the reason that there was no evidence which could lead to the successful prosecution of the petitioner. The factual report in the vigilance case was received by the Director of the Vigilance & Anti Corruption Bureau only after the petitioner retired from service. W.P.(C) No.16470 of 2007 5 Therefore, in view of G.O.(P) No.65/92/Vig. dated 12.5.1992, departmental action could not be initiated against the petitioner. The counter affidavit also discloses that for these reasons no action was taken against the petitioner, either by prosecuting him or by taking disciplinary action. 6. From the fact situation obtaining in the case on hand, it cannot therefore be said that the decision taken by the Government to place the petitioner under suspension was wholly unjustified. On the date on which the order of suspension was passed, a vigilance case has been registered against the petitioner and on the materials available before it, the Government decided to place him under suspension. It cannot therefore be said that the decision to place the petitioner under suspension was not in the exigencies of service or for administrative reasons. Therefore, the mere fact that five years after the vigilance case was registered, the Director of the Vigilance & Anti Corruption Bureau, decided not to prosecute the petitioner, for want of evidence, cannot be a reason to hold that W.P.(C) No.16470 of 2007 6 the decision taken by the Government on 20.12.2000 to place the petitioner under suspension was wholly unjustified. Such being the situation, I find no merit in the Writ Petition. The Writ Petition fails and is accordingly dismissed. P.N.RAVINDRAN, JUDGE nj.