IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WP(C).No. 13008 of 2008(W) --------------------------------------- PETITIONER: ------------------- DR.K.A.SYED ALAVI, ASSISTANT SURGEON (RETD), TALUK HEADQUARTERS HOSPITAL, PONNANI, MALAPPURAM, RESIDING AT KADAMBOT HOUSE, KODUNGALLUR P.O., PIN-680 664. BY ADVS. MR.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, MR.T.R.SADEESAN. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE (A) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, OFFICE OF THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER SMT. ANU SIVARAMAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/01/2009, THE COURT ON 30/01/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.13008/2008-W: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE G.O. (RT).NO.2873/03/H&FWD DTD. 27/09/03 ISSUED BY THE R.1. EXT.P.2: COPY OF THE JUDGMENT DTD. 11/12/07 IN W.A. NO. 2234/07 OF THIS HON'BLE COURT. EXT.P.3: COPY OF THE G.O. (RT).NO.64/2007/TD DTD. 30/01/07 ISSUED BY THE R.1. EXT.P.4: COPY OF THE G.O. (RT) NO.176/04/TD DTD. 17/03/04 ISSUED BY THE R.1. EXT.P.5: COPY OF THE SHOW CAUSE NOTICE NO. 6216/02/2007/VIG. DTD. 21/08/07 ISSUED BY THE R.1. EXT.P.6: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE PRINCIPAL SECRETARY TO GOVT. OF KERALA DTD. 21/12/2007. EXT.P.7: COPY OF THE COMMUNICATION NO. GE5/D/SIA-5/144 DTD. 18/05/06 OF THE SENIOR ACCOUNTS OFFICER TO THE R.2. EXT.P.8: COPY OF THE G.O. (RT).NO.1158/08/H&FWD DTD. 29/03/08 ISSUED BY THE R.1. EXT.P.9: COPY OF THE G.O. (RT).NO.54/2008/VIG. DTD. 28/02/08 ISSUED BY THE R.1. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 13008 of 2008-W - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of January, 2009. JUDGMENT Aggrieved by the decision of the Government to treat the period of suspension of the petitioner as eligible leave and seeking for a direction to treat the period of suspension between 21.3.1996 to 21.1.2001 as duty for all purposes except for pay and allowances, the petitioner has filed this writ petition. 2. This is the second round of litigation as far as the petitioner is concerned. Earlier, he had approached this court, challenging the punishment imposed against him which has become final as per Ext.P2 judgment in Writ Appeal No.2234/2007. He has retired from service on 31.3.2008. 3. Disciplinary proceedings were initiated against the petitioner while he was working as Asst. Surgeon in General Hospital, Kozhikode. The allegation in the memo of charges was that he was unauthorisedly absent from 4.2.1996 and was doing private practice at Ponnani. He was suspended from service by Govt. Order dated 21.3.1996 and was reinstated as per order dated 2.11.2000 pending the disciplinary action. A punishment WPC 13008/2008 2 of barring two increments with cumulative effect was ordered and this was upheld in appeal, which was disposed of by Ext.P1 order. In the said Govt. Order, after confirming the punishment, it was ordered that the period of suspension from 21.3.1996 till the date of rejoining duty will be treated as eligible leave subject to admissibility. In Writ Petition No.3404/2004 the challenge against the said order was repelled. In the judgment in Writ Appeal No.2234/2007 this court found that the punishment imposed is disproportionate to the gravity of the offence and modified the punishment to barring of two increments only without cumulative effect. Before the Division Bench, the petitioner relied upon Exts.P3 to P5 produced herein to show that other officials have been treated favourably in the matter of counting the period of suspension and treating it as duty for the purpose of pension which has been denied in the case of the petitioner. The petitioner was directed to take up the matter again with the Government as per Ext.P2 judgment. Ext.P6 is the subsequent representation. Ext.P7 will show that the Accountant General reported that the petitioner is not having sufficient leave to regularise his suspension period. The petitioner had also sought further promotions which were due prior to the date of retirement. Ext.P8 is the order passed one day prior to his retirement, rejecting his request for promotion and also refusing to regularise the period of suspension as duty WPC 13008/2008 3 for all purposes. The said order is under challenge in this writ petition. 4. The respondents have filed a counter affidavit justifying the orders passed. 5. Learned counsel for the petitioner submitted that there is no rhyme or reason for singling out the petitioner for a differential treatment while the Government has, in similar circumstances, passed orders by Ext.P3 in respect of an officer of Excise Department whereby the period of suspension and the period of out of service have been regularised as duty for the limited purpose of pension. Ext.P4 is an order passed in respect of an Excise Preventive Officer. Ext.P5 is in respect of another officer. It is pointed out that therein, harsher punishments have been imposed by the Government and even in such cases the period of suspension has been ordered to be reckoned as duty for the limited purpose of pension and at least the petitioner is entitled for a similar treatment. It is also pointed out that the refusal to grant due promotion to the petitioner, cannot be justified. It is also pointed out that in Ext.P2 judgment this court was pleased to find that the punishment imposed is disproportionate to the gravity of the offence. The findings in para 4 of the judgment is referred to show that this court had categorically found that there is no basis in the charge levelled against him that he had indulged in private practice. The punishment WPC 13008/2008 4 imposed is only in respect of other charge, i.e. unauthorised absence from 4.2.1996 without submitting proper leave applications. 6. In the counter affidavit filed by the second respondent, justification is sought in taking the disciplinary action. It is pointed out that as the punishment has been imposed, the period of unauthorised absence would generally be treated as eligible leave and this practice was followed. It is pointed out that as per Ext.P3, the period of suspension of that officer has been regularised as duty for the limited purpose of pension only which is the same order in Ext.P4 also. It is pointed out that the said officers were punished for different charges. It is also pointed out that it is not possible to release the pay and allowances to a delinquent officer who was engaged in acquiring wealth by engaging in private practice and by remaining in unauthorised absence. It is also submitted by the deponent of the counter affidavit that “compared to the punishment awarded in the precedent quoted, the petitioner has received only a minor punishment.” The refusal to grant the claim for promotion has also been justified. 7. The question to be considered is whether the period of suspension could be treated as duty for the limited purpose of granting pension. As contended by the learned counsel for the petitioner, in Ext.P3 the person concerned was given a more harsher punishment, i.e. a major punishment of WPC 13008/2008 5 reduction in rank by 20 positions in the seniority list of Circle Inspector of Excise. Still, the period of suspension was regularised as duty for the limited purpose of pension. In Ext.P4, the punishment meted out was reduction in rank by 20 positions. That was modified to the extent that his two increments are withheld without cumulative effect. The period of suspension of the officer was treated as duty for the purpose of drawing pension. 7. In this case, the petitioner admittedly, was inflicted with a lesser punishment, in the light of the findings rendered by this court in Ext.P2 judgment. In Ext.P2 judgment, there is a clear finding that the charge that he had indulged in private practice, is not correct. But, surprisingly, in the counter affidavit filed here, again that allegation is made as a justification for passing Ext.P8 order, which cannot be supported. That shows that there is total non application of mind. The respondents are bound by the findings rendered by this court in Ext.P2 judgment. Even though the respondents explained that Ext.P5 is only a show cause notice, the petitioner has produced the final order as Ext.P9, along with the reply affidavit. Therein, an officer of the Ground Water Department was proceeded under the Prevention of Corruption Act, 1988 and he was acquitted in the said criminal case. The period of suspension has been treated as duty for all WPC 13008/2008 6 purposes including pay and allowances. 8. It is well settled that the authorities cannot act according to their whims and fancies, and that they are obliged to maintain standards and norms while exercising power. Even though it is argued that it is purely the discretion of the Government as to how the period of suspension will be reckoned, a decision on such aspects after exercising due discretion, should be in a fair and reasonable manner. It cannot be at the ipse dixit of the officer and at the whims and fancies of the officer concerned. Exts.P3 and P4 will show that more harsher punishments have been imposed on the officers concerned than the one imposed on the petitioner. But they were given the benefit of reckoning the period of suspension for the purpose of pension. In this case, a lesser punishment has been imposed on the petitioner. But still he is denied such a benefit, according to me, without conforming to any reasonable standard. In Ext.P8 in para 11 it is clearly stated that “compared to the punishment awarded in the precedents quoted, the petitioner was received only a minor punishment. In the case of petitioner, his period of suspension was ordered to be treated as eligible leave. Hence, this period is eligible to be counted as duty for all purposes whereas in the cases of precedents quoted their services were ordered to be treated as duty for the limited purpose of pension only.” It is also stated WPC 13008/2008 7 that the said orders cannot be treated as precedents. Learned counsel for the petitioner submitted that going by Ext.P7, it can be seen that there is no eligible leave to his credit for regularisation in the absence of service. Therefore, he will not get any benefit from Ext.P8 as the said period will not get regularised at all. Therefore, the petitioner will suffer another punishment at the hands of the respondents. These facts are not disputed in the counter affidavit. 9. In the light of the above facts pointed out, I am of the view that the authorities should have at least granted the relief of counting the period of suspension as duty for the limited purpose of pension and by limiting the pay and allowances during the period of suspension to subsistence allowance already drawn. Regarding the claim for promotion, I am not satisfied that the petitioner is entitled to get any relief. He has already retired from service. The rejection of his claim for promotion as per Ext.P8 does not call for any interference. . 10. Therefore, Ext.P8 is quashed in so far as it relates to the rejection of his request for treating the period of suspension as duty for all purposes. It is declared that the petitioner is entitled to count the period of suspension as duty for the limited purpose of pension and by limiting the pay and allowances to the subsistence allowance paid. The Government will pass WPC 13008/2008 8 fresh orders in the matter by sanctioning regularisation of the period of suspension as duty for the limited purpose of pension. Appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment and due benefits will be granted to the petitioner as enjoined by law. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/