IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 WP(C).No. 37374 of 2008(Y) ------------------------------------- PETITIONER(S): ------------------------ IVAN RATHINAM S/O.RATHINAM PILLAI, ARASAR KADAVIL HOUSE VADAKKAL P.O., ALAPPUZHA. BY ADV. MR.DINESH R.SHENOY RESPONDENT(S): -------------------------- * 1. ASHA LAWRENCE,D/O. M.M.LAWRENCE 702, GARDEN GATES APARTMENTS, GANDHI NAGAR, COCHIN-20. (DELETED) *DELETED FROM THE PARTY ARRAY AS PER ORDER DT. 22.1.09 IN IA. 685/09. 2. STATE OF KERALA, REP. BY ITS SECRETARY DEPARTMENT OF HOME, TRIVANDRUM. 3. DIRECTOR GENERAL OF POLICE, TRIVANDRUM. 4. SUPERINTENDENT OF POLICE SB CID ERNAKULAM. GOVERNMENT PLEADER MR. ANTONY MUKKATH FOR R2 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.37374/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE MEMO OF CHARGES DT. 26.8.08 TOGETHER WITH THE ANNEXURES SERED ON THE PETITIONER. P2:- COPY OF THE COMPLAINT DT. 26.2.2007 FILED BY THE IST RESPONDENT BEFORE THE 3RD RESPONDENT. P3:- COPY OF THE REPORT SUBMITTED BY THE DIG OF POLICE, ERNAKULAM RANGE DT. 27.6.07. P4:- COPY OF THE COMPLAINT DT. 5.9.07 SUBMITTED BY THE IST RESPONDENT BEFORE THE KERALA STATE ANITHA COMMISSION. P5:- COPY OF THE REPORT NO.G3(A) 53984/07 A DT. 10/07 ISSUED BY THE SUPERINTENDENT OF POLICE , ALAPPUZHA. P6:- COPY OF THE COMPLAINT IN C.C. NO.677/08, JUDICIAL FIRST CLASS MAGISTRATE COURT, AMBALAPPUZHA. P7:- COPY OF THE BIRTH CERTIFICATE ISSUED BY THE CORPORATION OF COCHIN DT. 6.11.07. P8:- COPY OF THE ORDER DT. 3.5.08 PASSED BY THE DISTRICT POLICE COMPLAINT AUTHORITY, ALAPPUZHA. P9:- COPY OF THE JUDGMENT DT. 1.9.08 IN WP(C) NO.21868/08. P10:- COPY OF THE COMMON JUDGMENT DT. 12.11.08 IN WP(C) NO.29616/08 AND RP NO.994/08 IN WP(C) NO.21868/08, HIGH COURT OF KERALA. P11:- COPY OF THE G.O.(RT) 3850/08/HOME DT. 16.12.08. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE PETITION DT. 8.8.07. R3(b):- COPY OF THE REPORT OF INSPECTOR GENERAL OF POLICE NO.144/CAMP/07 DT. 16.11.07. R3(c):- COPY OF THE LETTER T2/31902/07 DT. 10.12.07 OF DIRECTOR GENERAL OF POLICE. R3(d):- COPY OF THE GOVERNMENT ORDER G.O.(RT) 1201/08/HOME DT. 15.4.08. R3(e):- COPY OF THE ORDER DT. 3.5.08 OF THE DISTRICT POLICE COMPLAINTS AUTHORITY. /TRUE COPY/ P.A. TO JUDGE tss T.R.RAMACHANDRAN NAIR,J. ------------------------- W.P ( C) No.37374 of 2008 -------------------------- Dated this the 13th February,2009 J U D G M E N T The petitioner, a Police Officer in the cadre of Assistant Commandant of Police, is aggrieved by the order of suspension passed against him, which is produced as Exhibit-P11. The order of suspension is passed on two grounds. Firstly, an enquiry is pending against him into certain allegations of moral turpitude. Secondly, it is pointed out that the Director General of Police has recommended his case for suspension. 2. Petitioner has got a case that the order of suspension has been passed in violation of the mandate of the rules as well as in violation of the principles stated by this Court in various decisions of this Court that the suspension of an officer is not an administrative routine. The petitioner was issued with memo of charges Exhibit- P1 dated 26.8.2008. The main allegation in the memo of charges relates to the alleged illegitimate relationship with a married woman, who is the complainant in Exhibit- P2 herein. W.P ( C) No.37374 of 2008 2 3. A reading of Exhibit-P1 shows that proceedings were initiated pursuant to her complaint before the Director General of Police who forwarded it to the I.G of Police, Ernakulam Range for a preliminary report pursuant to which his report was forwarded back and ultimately reached the Government and thereafter the Government Ordered to conduct an oral enquiry as per order dated 15.4.2008. The petitioner submits that four out of five witnesses cited by the party concerned have been examined and she was also being examined at the time of filing of the writ petition. Exhibit-P2 is the copy of the complaint filed by her before the Director General of Police. Petitioner has produced Exhibit-P3, a report submitted by the D.I.G of Police, Ernakulam Range after enquiring into the complaint. It is pointed out that the findings therein are to the effect that allegations against the petitioner are without any basis. Petitioner states that thereafter she had moved the Kerala State Vanitha Commission as per Exhibit- P4. The Superintendent of Police had submitted Exhibit- P5 report before the I.G. of Police, Ernakulam. In all these W.P ( C) No.37374 of 2008 3 complaints, the alleged extra marital relationship between the petitioner and complainant is referred to and an allegation of assault committed on 14.2.2007 also forms part of them. According to the petitioner, the said allegations have no merit and he has disputed the allegations raised against him. It appears that subsequently she filed a complaint before the District Police Complaint Authority, Alappuzha and there is a private complaint filed as C.C No.677/2008 pending before the Judicial First Class Magistrate Court, Ambalapuzha. A copy of the complaint is produced and marked as Exhibit- P6. Apart from that she has filed O.S. No.425/2007 before the Munsiff's Court, Ernakulam seeking for a declaration that the petitioner is the father of her son, Milan. The petitioner has filed a detailed written statement therein contesting this claim. The petitioner is relying upon a Birth Certificate Exhibit-P7 issued by the Corporation of Kochi which is already produced in the Civil Court to show that the child is the son of Raju Kurian, the husband of the said complainant. Exhibit-P8 is the order W.P ( C) No.37374 of 2008 4 (recommendations) of the District Police Complaint Authority. Apart from that one petition is pending before the Family Court, Alappuzha as MC 224/2007. 4. Earlier, both the parties had approached this Court by filing various writ petitions. The complainant had filed a writ petition as WPC No.21868 of 2008 seeking for a direction to expedite the departmental enquiry initiated against the petitioner and complete it within a time limit, which was disposed of by Exhibit-P9 judgment, wherein, the statement filed on behalf of the 1st respondent that the enquiry will be completed within three months from the date on which the the memo of charges is served on the petitioner was recorded and accordingly it was disposed of. Exhibit-P10 is the judgment in WPC No.29216 of 2008 filed by the petitioner herein and R.P No.994 of 2008 filed against Exhibit-P9 judgment. The petitioner had raised a contention that the departmental enquiry cannot be sustained as the inter se disputes are pending before the Civil and Criminal Courts. This Court refused to stall the departmental proceedings and directed that the time W.P ( C) No.37374 of 2008 5 granted for completion of enquiry will stand extended by a further period of two months from 02/12/2008. Thereafter, Exhibit-P11 order has been passed on 16.12.2008 by placing him under suspension. 5. Third respondent has filed a statement. A counter affidavit has been filed by the second respondent also in the matter. The details regarding the initiation of proceedings against the petitioner have been explained in paragraphs 2 and 3. 6. It is stated that as part of the departmental enquiry, a memo of charges was issued and the Government is only acting in accordance with the existing rules. The reasons for suspension are explained in para 4. It is stated that the petitioner is a Government employee and should possess certain discipline and moral values. An extra marital relation of the petitioner became disputed and a criminal case was filed against him. It is stated that the observations of the Police Complaints Authority are very serious Finally, it is stated that the acts of the petitioner is violative of Rules 3, Conduct Rules, 1960 as W.P ( C) No.37374 of 2008 6 he failed to maintain absolute integrity in his service. 7. Learned counsel for the petitioner submitted that by order dated 24.5.2008, he was transferred to AR Malappuram from Alappuzha and the enquiry is being held at Ernakulam by the enquiry officer. It is contended that there is no allegation of any attempt to tamper with the records or evidence in the matter or to influence the witnesses. It is therefore submitted that his suspension is without any justification and amounts to victimisation. It was also alleged that there are malafides in the matter of passing the suspension order. 8. Learned Government Pleader placed before me for persual a letter dated 12.12.2008 which is forwarded by the Director General of Police to the Additional Chief Secretary to Government, Home Department, wherein it has been recommended to place him under suspension. This is referred to in Exhibit-P11. It reiterates the details regarding the enquiry proceedings against him. Ultimately, in paragraph 9 it is stated as follows: “The observations and findings made by the PCA against Shri.Ivan Rathinam, AC AR W.P ( C) No.37374 of 2008 7 Malappuram are grave in nature. In these circumstances the continuance of the Officer in service is undesirable and hence he may be placed under suspension forthwith.” 9. The question is whether the order of suspension passed at the final stage of enquiry proceedings, wherein, he has disputed all the allegations against him including the allegations of mortal turpitude is justified or not. The order of suspension has been passed by invoking Rule 7 of the Kerala Police Departmental (Inquiries, Punishment and Appeal) Rules, 1958. Rule 7 (1) states that the appointing authority or any authority to which to it is subordinate or any other authority empowered by the Government in this behalf may place a member of a service under suspension where- (a) an inquiry into his conduct is contemplated, or is pending, or (b) a complaint against him of any criminal offence is under investigation or trial. 10. The learned counsel submitted that the important aspect to be considered in this case is that the W.P ( C) No.37374 of 2008 8 memo of charges is dated 26.8.2008 issued by the enquiry officer who is conducting it at Ernakulam. All the parties were heard by this Court in the earlier writ petitions resulting in Exhibits P9 and P10 judgments. This Court had issued directions to complete the enquiry within a time limit of two months from 2.12.2008. The recommendation of the District Police Complaint Authority produced as Exhibit-P8 is dated 3.5.2008. Therefore, it is submitted that long prior to the issuance of memo of charges by Exhibit P8 the District Police Complaints Authority recommended to the appointing authority/Disciplinary Authority/Government of Kerala to initiate departmental proceedings against the petitioner on the basis of the allegation that he had sexual intercourse with the complainant during subsistence of her marriage. In all other respect the complaint is dismissed. It is therefore submitted that the suspension of the petitioner was never in contemplation either when the enquiry was ordered or during its continuance, but it is ordered at the fag end to victimise him. W.P ( C) No.37374 of 2008 9 11. One fact to be noticed is that apart from alleging illicit relationship, she had been complaining about various acts like abuse,manhandling etc against the petitioner. But the same stands un-substantiated as could be seen from the report Exhibit-P3 and also by the findings of the District Police Complaints Authority. Therefore, Exhibit -P8 is a report which was available before the memo of charges were issued. There is no reference about the said recommendation in the memo of charges. 12. Therefore, the question is whether as to what were the circumstances which existed as on the date of Exhibit-P11 to pass an order of suspension against the petitioner. Admittedly there were no further materials on record. Letter dated 12.2.2008 of the Director General of Police only reiterates what is contained in Exhibit-P8 report submitted by the District Police Complaint Authority. It is not disputed that the major part of the evidence was also over. Nothing adverse to the petitioner as revealed at any later point of time is mentioned. Justification sought in the counter affidavit is that he failed to maintain integrity in W.P ( C) No.37374 of 2008 10 service. This is a matter which is yet to be proved in the enquiry. There is a civil suit between parties apart from a criminal complaint filed by the complainant before the Magistrate's Court. 13. Therefore the question is whether the Government has considered various relevant aspects for placing him under suspension. The legal position as far as the said issue is covered by various decisions of this Court. Learned counsel for the petitioner relies upon the principles evolved in various decisions of this Court in support of the plea that the order of suspension is passed without any justification and it amounts to abuse of the power and victimisation. 14. The scope of the rules namely Rules 7 (1) r/w Rule 6 (10) was considered by a Division Bench of this Court in A.K. Veeramani Vs. State of Kerala [1974 KLT 630]. It was held thus: “ All that R. 7 (1) (a) states is that a member of a service can be placed under suspension if any enquiry into his conduct is contemplated or is pending. Notwithstanding this rather general and in a sense vague, statement in the rule, it W.P ( C) No.37374 of 2008 11 has been accepted on all hands at the time of argument of the case that before an order is passed under Rule 7 of the Rules, placing a member of a service under suspension, the nature of the charges levelled against a servant and the circumstances of the case and the necessity or desirability of placing the member of the service under suspension should be considered by the State Government or the authority competent to place a servant under suspension. If the rule is interpreted with reference to its wording and read with Rule 6 (1) and the general principles that should govern the matter the conclusion is obvious that before a government servant is placed under suspension there must be serious allegations of misconduct against the servant and there should be a prima facie satisfaction that the allegations are true.” 15. It is further held that an order of suspension should be passed only if it is necessary or desirable. Such necessity or desirability will arise when the charges against a servant are of a serious nature and keeping him in service will not be conducive to discipline or maintaining of the efficiency or the honesty of the administration. 16. The above decision was followed in Thomas Vs. State of Kerala [1994 (2) KLT 162] by a learned Single W.P ( C) No.37374 of 2008 12 Judge of this Court. In the light of Rules 6 and 7 of the Police Departmental (Inquiries, Punishment and Appeal) Rules, 1958, this Court held thus: “This is no doubt a case of mere suspension and not termination of service. But suspension is no less injurious than termination of service especially when the employee is accused of misbehaviour with women. Suspension of an employee on such a serious ground, if made without regard to the employees' case is repugnant to the principles of natural justice and fair play. The executive has no absolute power in any administrative matters. Before a police officer is suspended under Rule 7 read with Rule 6 of the Rules, “the nature of the charges levelled against a servant and the circumstances of the case and the necessity or desirability of placing a member of the service under suspension”, should be considered by the concerned authority. In all cases where disciplinary proceedings are contemplated or pending, suspension is not a compulsory step. The authority has the duty to consider whether keeping an employee in service will not be conducive to W.P ( C) No.37374 of 2008 13 discipline or the maintaining of the efficiency or the honesty of the administration.” It was further held that “consideration of the necessity of the suspension must take into account the delinquent officers contention, where it is made that he has been falsely implicated. “ 17. In fact, the matters to be considered while passing an order of suspension was considered by a Division Bench of this Court in Mathew Vs. State of Kerala [2000 (1) KLT 245]. It was laid down that in passing an order of suspension, the authority is required to take into consideration the gravity of misconduct sought to be enquired into or investigated and the nature of offence placed before the authority. There should be an application of mind. It should not be an administrative routine or an automatic order to suspend an employee. 18. Recently, the scope under Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 are considered by the two Division Benches in Surendran K. Vs. Government of Kerala & Others [ILR W.P ( C) No.37374 of 2008 14 2008 (3) Ker. 587] and Vikraman Nair Vs. State of Kerala [ 2008 (4) KLT SN 63]. 19. The principles noted above have been reiterated in Surendran's Case. This Court was of the view that “ the power to suspend an employee should be exercised with caution and care and an order of suspension pending enquiry may put the employee into shame and humiliation. 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”. It was further held that if there is no possibility of tampering with evidence suspension need not be made. 20. Again in Vikraman Nair Vs. State of Kerala [ 2008 (4) KLT SN 63], it was 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. W.P ( C) No.37374 of 2008 15 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.” 21. The petitioner has been contesting all the cases instituted against him apart from the oral inquiry ordered against him. The complainant had been moving various authorities in the matter and different enquiries have been conducted. It is true that by Exhibit-P8 the Police Complaints Authority has filed a report recommending action against him. Enquiry is at the final stage and many of the witnesses have been examined already. Even when the writ petitions were considered by this Court there was no case that there is an attempt on the part of the petitioner to prolong the enquiry or to influence witnesses or tamper with the evidence. Even now in Exhibit-P11, no such circumstances have been pointed out. Going by the W.P ( C) No.37374 of 2008 16 decisions of this Court, the Government was bound to consider all relevant aspects including the pleas raised by the petitioner against the allegations raised against him. There is nothing in Exhibit-P11 to show that there was any consideration of the pleas raised by him before passing the order of suspension. The report made by the Police Complaints Authority was not at all a new material and the recommendation of the Director General of Police was only reiterating what is contained in the report of the District Police Complaint Authority. It was contended that the said recommendation is only prima facie in nature and no conclusive findings have been made therein. learned counsel also submitted that the said authority was not at all competent to go into the allegations of this nature. Be that as it may the matter required more circumspection and attention at the hands of the Government. As held by this Court in various decisions, the suspension of an officer is not an administrative routine and it cannot be ordered by the Government at its whims and fancies in the midst of enquiry as now done here. This Court in Vikraman Nair's W.P ( C) No.37374 of 2008 17 Case (supra) held that the suspension must be a step in aid to the ultimate result of the investigation or enquiry. There is nothing in Exhibit-P11 to show that the enquiry also could not be proceeded without placing him under suspension. It is clear from the facts pleaded that the petitioner has already been transferred to Malappuram District and he was working there. The enquiry is being held at Ernakulam. Presently all the witnesses have been examined. Petitioner's evidence is also stated to be over. 22. Therefore, I am of the view that order of suspension has been passed only to victimise the petitioner and it amounts to abuse of the power vested in the Government. The enquiry will have to be completed within the time allowed by this Court in Exhibit-P10. At any rate, as on the date of passing of Exhibit-P11, there was no administrative necessity evidently to place him under suspension. 23. In that view of the matter, Exhibit-P11 is quashed. First respondent will pass appropriate orders reinstating the petitioner in service within a period of three W.P ( C) No.37374 of 2008 18 weeks from the date of receipt of a copy of this judgment. This will be without prejudice to the enquiry that is being conducted against him. The writ petition is allowed as above. (T.R.RAMACHANDRAN NAIR, JUDGE) ma W.P ( C) No.37374 of 2008 19 W.P ( C) No.37374 of 2008 20