IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 WP(C).No. 26336 of 2008(I) ---------------------------------------- PETITIONER(S): ------------------------ ASHOK KUMAR THEKKAN, AGED 46 YEARS, S/O RAGHAVAN, PRINCIPAL AGRICULTURAL OFFICER, WAYANAD (UNDER SUSPENSION) RESIDING AT “SOPANAM”, NILA NAGAR, OLAVAKODE, PALAKKAD DISTRICT. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SMT.SEEJA VIJAYARAGHAVAN RESPONDENT(S): --------------------------- 1. THE SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICUTLURE (ESTT.A), DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE DIRECTOR , VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM. By GOVERNMENT PLEADER SMT. ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.26336/2008 I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.G.O.(RT) NO.1790/AD DTD. 26/09/2007 ISSUED BY R1. EXT.P2: COPY OF THE PETITION DTD. 10/10/2007 SUBMITTED BY THE PETITIONER. EXT.P3: COPY OF THE PETITION DTD. 16/01/2008 SUBMITTED BY THE PETITIONER. EXT.P4: COPY OF JUDGMENT DTD. 31/03/2008 IN OP.NO.10701 OF 2008. EXT.P5: COPY OF ORDER NO.1624/2008/AD DTD. 20/08/2008 ISSUED BY R1. EXT.P6: COPY OF THE RELEVANT EXTRACTS FROM AGENDA AND NOTES OF THE 33RD BOARD MEETING OF THE VFPCK FROM PAGES 7 TO 11. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.26336 of 2008 ------------------------------- Dated this the 13th November, 2008. J U D G M E N T Heard Sri.K.Ramakumar, the learned Senior Advocate appearing for the petitioner and Smt.Anu Sivaraman, the learned Government Pleader appearing for the respondents. 2. The petitioner, while he was working as Principal Agricultural Officer, Wayanad, was placed under suspension by Ext.P1 Government Order dated 26.9.2007. The order of suspension was passed on the ground that in the agenda notes presented for the 33rd meeting of the Board of Directors of the Vegetable and Fruit Promotion Council Keralam, hereinafter referred to as the 'Council' for short, there were allegations about activities of the Council, especially the export activities undertaken by the petitioner who was formerly its Chief Executive Officer. The order of suspension proceeds to state that an enquiry is proposed “against the serious allegations in the Council” when the petitioner was its Chief Executive Officer and W.P.(C) No.26336 of 2008 2 that his continuance in Government service will influence the impartial enquiry. The petitioner thereafter moved the Government in Ext.P2 representation dated 10.10.2007 and Ext.P3 representation dated 16.1.2008 seeking a review of the Order of Suspension. When those requests were not attended to, he filed W.P.(C) No.10701 of 2008 in this Court. By Ext.P4 judgment delivered on 31.3.2008, this Court disposed of the said Writ Petition with a direction to the Government to consider Exts.P2 and P3 and pass orders thereon, within four weeks from the date of receipt of a copy of the judgment. The Government thereafter passed Ext.P5 order dated 20.8.2008 rejecting the petitioner's request for revocation of the order placing him under suspension. Hence this writ petition challenging Exts.P1 and P8. 3. Ext.P6 produced along with I.A.No.14523 of 2008 is a copy of the agenda note referred to in Ext.P1, together with the report submitted by the Auditors of the Council for the financial years 2005-2006 and 2006-2007. The learned Senior Advocate appearing for the petitioner submits that the Auditors W.P.(C) No.26336 of 2008 3 have not found the petitioner guilty of any misconduct or laches and that even in the absence of any material, an agenda note was prepared and placed before the Board levelling allegations against the petitioner. The learned Senior Advocate further submits that the decision taken by the Board at the 33rd meeting in which Ext.P6 agenda note was considered has not been placed on record and that the respondents do not have a case that the Board had held that the petitioner was guilty of misconduct in the discharge of his duties as the Chief Executive Officer of the Council. 4. The respondents have filed a counter affidavit. Paragraph 2 thereof, which is relevant, reads as follows:- “2. It is respectfully submitted that the petitioner was suspended from service, pending enquiry against him by Ext.P1 Order. He was suspended on the basis of the agenda notes presented for the 33rd Board Meeting of the Vegitable & Fruit Promotion Council Keralam (VFPCK) based on the audit report. In the audit report, serious allegations were mentioned against the activities of the Council especially the export activities undertaken W.P.(C) No.26336 of 2008 4 by the Chief Executive Officer. Besides this,in the petition received against him, it was alleged – (i) that he had undertaken 20 unauthorised air journeys abroad in 2 years time, (ii) that he had unnecessarily rented a private building which was owned by the wife of the Managing Director of the warehousing Corporation at a monthly rent of Rs.20,000/= and the same was kept unused, (iii) that he had rented buildings at high rates for his accommodation which caused additional expenditure to the Council though VFPCK had provided him with official residence in Ernakulam, and (iv) that he transferred and degraded employees who questioned his corrupt practices.” 5. It is seen from the counter affidavit that the order placing the petitioner under suspension was passed based on Ext.P6 agenda notes. It is also stated that in the audit report submitted by the Auditors, serious allegations were levelled against the activities of the Council, especially the export activities undertaken by the petitioner, its former Chief Executive Officer. It is also stated that besides these allegations, a complaint has been filed against the petitioner alleging W.P.(C) No.26336 of 2008 5 unauthorised air journeys abroad and causing unnecessary expenditure to the Council by taking buildings on rent. 6. I have gone through Ext.P6 agenda notes and also the audit report accompanying it. Though the Auditors have pointed out that the guidelines issued by the Reserve Bank of India have not been followed by the Council, the Auditor has not held the Chief Executive Officer responsible. In the agenda notes, however, an attempt is made to put the blame on the petitioner. What was the decision taken by the Board after receipt of the report from the Auditor at its 33rd meeting is not disclosed. There is no cogent material before me to establish that the views expressed by the officer who prepared Ext.P6 agenda notes found acceptance at the hands of the Board. In other words, there was no material on the basis of which the Government could have come to the conclusion that what was stated in the agenda notes represents the truth. The order of suspension founded on the agenda notes cannot, therefore, in my opinion be sustained. W.P.(C) No.26336 of 2008 6 7. The respondents however attempt to sustain Ext.P1 order of suspension, referring an anonymous complaint wherein it is alleged that the petitioner had undertaken unnecessary air journeys abroad and had taken on rent buildings causing loss to the Council. The learned Government Pleader also made available to me a copy of the said complaint along with relevant files. The files disclose that an anonymous complaint was received by the Honourable Minister for Agriculture, some time during the year 2006. On the said complaint, though the Honourable Minister for Agriculture directed the Director of Agriculture to enquire and submit a report, the files do not disclose whether such an enquiry was held and report submitted. In such circumstances, there is no merit in the stand taken by the respondents in paragraph 2 of the counter affidavit that the said complaint also warranted suspension of the petitioner. 8. Ext.P1 order of suspension discloses that it was passed based solely on the agenda notes of the 33rd meeting of W.P.(C) No.26336 of 2008 7 the Board of the Council. However, the attempt now made is to sustain the order of suspension with reference to the above said anonymous complaint. Apart from the fact that the said complaint was not enquired into and a report obtained, there is also the further fact that the Government cannot sustain Ext.P1, on grounds other than those mentioned therein. The Apex Court has in Mohinder Singh Gill and another v. The Chief Election Commissioner (AIR 1978 SC 851) held that when the validity of an order is challenged, the author of the order cannot sustain the order on grounds which are not mentioned therein by supplying the reasons in the form of an affidavit. Even if such a right were to be conceded to the author of the order, on the materials on record, it is evident that no enquiry into the anonymous complaint was held. The files also do not disclose that after any such enquiry, a report was obtained by the Government. In the files, though a copy of the anonymous complaint of the year 2006 is seen, there is no material to come to the conclusion that the allegations levelled against the petitioner therein have been enquired into and found to be true W.P.(C) No.26336 of 2008 8 or tenable. Such being the situation, the respondents cannot rely on the anonymous complaint to sustain the order of suspension. In the result, the Writ Petition is allowed, Ext.P1 order of suspension is quashed and the respondents are directed to reinstate the petitioner in service forthwith. P.N.RAVINDRAN, JUDGE nj.