IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA, 1930 WP(C).No. 25652 of 2008(D) ---------------------------------------- PETITIONER(S): ------------------------ T. PUSHPARAJ, AGED 46, S/O. THAMPI, DEPUTY COLLECTOR OF SURVEY, PATHANAMTITTA, RESIDING AT VADAKKEVILA VEEDU, KUTHIRAKULAM.P.O, VEMBAYAM, THIRUVANANTHAPURAM. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENT(S): ------------------------- 1. DR.NIVEDITHA P. HARAN, PRINCIPAL SECRETARY TO REVENUE (E) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF SURVEY, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, PATHANAMTHITTA. *ADDL. R4 IS IMPLEADED 4. THE PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. *ADDL. R4 IS IMPLEADED AS PER ORDER IN IA. 11258.08 DT. 23.9.08. GOVERNMENT PLEADER SRI.P.NANDAKUMAR FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/01/2009, THE COURT ON 14/01/2009 DELIVERED THE FOLLOWING: W.P.(C) NO. 25652/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE GOVERNMENT ORDER DT. 3.1.05 ISSUED BY R1. P2:- COPY OF THE LETTER DT. 2.4.07 ADDRESSED TO THE DISTRICT SURVEY SUPERINTENDENT BY THE PETITIONER. P3:- COPY OF THE LETTER DT. 29.9.07 ADDRESSED TO THE DISTRICT SURVEY SUPERINTENDENT BY THE PETITIONER. P4:- COPY OF THE LETTER DT. 3.11.07 ADDRESSED TO THE DISTRICT SURVEY SUPERINTENDENT BY THE PETITIONER. P5:- COPY OF THE LETTER DT. 4.2.08 ADDRESSED TO THE DISTRICT SURVEY SUPERINTENDENT BY THE PETITIONER. P6:- COPY OF THE ORDER DT. 19.3.08 ISSUED BY R1. P7:- COPY OF THE JUDGMENT DT. 3.6.08 IN WPC. NO.9842/08. P8:- COPY OF THE ORDER DT. 25.7.08 ISSUED BY R1. P9:- COPY OF THE RECEIPT OF REPRESENTATION BY THE DIRECTOR OF SURVEY. P10:- COPY OF THE COUNTER SIGNED REPRESENTATION. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 25652 of 2008-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of January, 2009. JUDGMENT The petitioner was placed under suspension as per Ext.P6 order passed by the first respondent. This court by Ext.P7 judgment, directed the Government to consider the question of revocation of his suspension in the light of the various observations contained in the judgment. By Ext.P8, the Government passed a fresh order deciding to retain the petitioner under suspension, until further orders. Exts.P6 and P8 are under challenge in this writ petition. 2. Heard learned Senior Counsel Shri K. Ramakumar appearing for the petitioner and learned Govt. Pleader appearing for the respondents. 3. The petitioner was working as Deputy Director of Survey, Pathanamthitta at the time of suspension. A reading of Ext.P6 shows that in respect of the corruption and dereliction of duty in the Office of the District Survey Superintendent, Pathanamthitta, a preliminary enquiry was conducted by the Joint Director (Survey) and accordingly, apart from the petitioner who is the Deputy Director, four other officers of the District Survey Superintendent's Office were also suspended. The petitioner WPC 25652/2008 2 challenged the same in Writ Petition No.9842/2008 on various grounds. By Ext.P7 judgment the matter was directed to be reconsidered. The petitioner's case is that he was appointed as Deputy Director of Survey and joined at Pathanamthitta on 17.10.2006 and was cautioning the officers by various directions, viz. Exts.P2 to P4, to set right various things in that office and ignoring the same, he was also included among the officers suspended, without any justification. According to him, actually he was functioning as the appellate authority from the orders of District Office and he was not directly connected with any duties connected with survey at all. He contended that, if at all anything was wrong in the office of the District Survey Superintendent, the concerned officials in that office alone could be called upon to explain the same and at any rate, he has not indulged in any misconduct while functioning as Deputy Director of Survey, Pathanamthitta. He is not answerable regarding the allegations of mal- functioning of the Office of the District Survey Superintendent and he being a superior authority, cannot be held personally responsible at all for the same. It is also pointed out that none of the binding observations contained in Ext.P7 was considered while passing Ext.P8. Along with the additional affidavit, the petitioner has produced Exts.P9 and P10 which are copies of despatch register and a copy of another letter issued by him which contains WPC 25652/2008 3 the endorsement that the same has been received in the office of the District Survey Superintendent. 4. Learned counsel for the petitioner reiterated the above contentions and submitted that going by the well accepted principles and in the light of the relevant rules, viz. Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules, the suspension is without any justification. It is also contended that merely because of the allegations of supervisory lapses on his part, he could not have been placed under suspension, and the authorities have actually wanted to punish him for extraneous reasons. It is submitted that as an Appellate Authority functioning in the Office of the Deputy Director, he cannot be called upon to explain the corruption, if any, of the office of the District Superintendent and even going by the terms of Ext.P6, there are no allegations against his office, but they are confined only to the Office of the District Survey Superintendent. It is also submitted that in spite of the direction in Ext.P7, the first respondent has not bestowed attention to any of the points directed to be considered by this court. 5. Learned Govt. Pleader submitted that it has been clearly found in the order Ext.P8 that none of the communications in the nature of Exts.P2 to P4 have been received either in the office of the District Superintendent or in the office of the Director of Survey and Land Records and the petitioner WPC 25652/2008 4 was really sitting idle without taking any action in respect of the several complaints regarding the functioning of the office of the District Survey Superintendent. It is pointed out that being a supervisory officer, he could have immediately taken action in the matter and his failure to intervene and prevent the irregularities in the functioning of the office, amounts to serious supervisory lapses for which an order of suspension was issued and therefore there is nothing wrong in the orders in question. 6. It is evident from Ext.P6 that the allegations regarding corruption and dereliction of duties are related only to the Office of the District Survey Superintendent and not in respect of the office of the petitioner. This position is not disputed by the respondents. A reference to Ext.P7 judgment shows that this aspect was considered by this court at the relevant time. In para 2, after referring to the report of the Joint Director, it was observed that “apparently, the lapses in the District Survey Superintendent's office started in 2004.” In para 3, the learned Judge was pleased to observe further that “it would have been better had the petitioner's case been treated separately from the officials of the District Superintendent's office. After all, if there has been supervisory lapses on the part of the petitioner, the allegations levelled against the officials in the office of the Deputy Superintendent are different. If the suspension of the erring officials was WPC 25652/2008 5 found necessary, the petitioner cannot be treated equally and in the same measure.” 7. I am of the view that the first respondent ought to have considered the question of revocation of suspension in the light of the above aspects pointed in Ext.P7 judgment. Finally, this court was of the view that the attempt on the part of the petitioner by issuing Exts.P2 to P4 communications have not engaged the attention of the Government and specifically these aspects were directed to be considered. 8. In Ext.P8, what is attempted is to show that during the tenure of the petitioner, he did not take proper steps in disposing of the Adalath complaints on priority basis. Further, it is pointed out that he did not review the progress of the work. It is finally observed that the petitioner has not ensured that the target fixed for various works is achieved. It is also recorded that Exts.P2 to P4 communications have not been received in the office of the District Superintendent and the preliminary enquiry conducted by the Joint Director was not triggered by the request or communication issued by the petitioner. It is also stated that his reinstatement into service at this junction will be against public interest. None of the points relevant as directed to be considered by this court, have been considered. Even going by the averments in the counter affidavit, the petitioner is not alleged WPC 25652/2008 6 to have committed any particular misconduct connected with his office except by saying that there has been supervisory lapses on his part. It cannot be said that he is directly involved in the affairs of the office of the District Survey Superintendent. Merely because the said office is situated, as now contended in the counter affidavit, adjoining his office, that cannot put the petitioner in direct charge of the said office. The contention that the petitioner acts as the Appellate Authority as per the orders of the District Survey Superintendent, is also not denied. Going by para 4 of the counter affidavit, more than 3000 applications were pending in the District Survey Superintendent's Office and what is alleged is only that the petitioner has not taken any action to review the progress of the survey work. It cannot be said that such a supervisory lapse is of a serious nature to place him under continued suspension in the absence of any specific allegation in respect of any particular complaint. In para 5 of the counter affidavit, it is stated that as a supervisory officer, the petitioner could not evade from his responsibilities and there are willful latches on his part. None of those things find a place either in the order of suspension or in Ext.P8. The term “willful” denote a particular state of mind and without any supporting facts leading to the conclusion of willful latches on the part of an officer, such a contention raised in the counter affidavit cannot be justified at all. Even WPC 25652/2008 7 though in Ext.P8 it is stated that none of the communications referred to as Exts.P2 to P4 have been received in the office of the District Survey Superintendent, in para 6 of the counter affidavit, it is stated that “during the tenure of 15 months of his charge as Deputy Director of Survey and Land Records, to fulfill the above said duties all he has done is to send 3 letters to the District Survey Superintendent and one letter to Director.” This amounts to a tacit admission that Exts.P2 to P5 have reached the concerned offices. This really goes against the finding in Ext.P8. Going by Ext.P9 copy of the despatch register maintained by the Office of the District Survey Superintendent it is clear that the letter addressed to the Director of Survey has been despatched on 4.2.2008. Ext.P10 is a letter addressed to the District Survey Superintendent and it is clear from the endorsement on the lower portion of the said document that the same has been received by them. The veracity of these documents have not been disputed by filing any additional counter affidavit also. Coupled with the averment in para 6 of the counter affidavit, it can be seen that the authorities concerned have received these letters. Therefore, the assumption that there are willful latches on his part cannot hold good, at least prima facie. 9. As is clear from the findings in Ext.P7 judgment, the allegations against the office of the Deputy Director and the office of the District WPC 25652/2008 8 Survey Superintendent are different and the petitioner could not have been treated equally and with the same measure with the officers of the District Survey Superintendent. Admittedly lapses were there in the office of the District Survey Superintendent from 2004 and as the petitioner joined the office of the Deputy Director at Pathanamthitta only on 17.10.2006, these facts could have been considered by the first respondent in the correct perspective as observed by this court in Ext.P7 judgment. There is total non-application of mind into the aspects directed to be considered by this court. 10. The question is whether the authority was right in exercising the power under Rule 10 of the Kerala Civil Services (Classification, Control & Appeal) Rules, in such circumstances. The legal principles as far as the said issue has been laid down by this court in various decisions, viz. N. Subramonian v. State of Kerala (1973 KLJ 31), State of Kerala v. K.C. George (1984 KLT 315 (DB)), Sreekumar v. Kerala Water Authority (1996 (1) KLT 209) and Muhammed v. State of Kerala (1997 (2) KLT 394). In Subramonian's case (1973 KLJ 31) while examining the question regarding the exercise of power under Rule 10 of the Rules, it was held in para 7 as follows: WPC 25652/2008 9 “Despite the apparent wide wording employed in Rule 10 it is now well-settled that the object underlying the conferment of the power of suspension where a disciplinary proceeding is contemplated or is pending against a Government servant is to enable the appointing authority to remove an officer to whom serious allegations of misconduct are imputed, from the sphere of his activity if: (a) the allegations against him are such that in the interests of the maintenance of the purity and probity of the administration or the upkeep of proper standards of discipline and morale in the service it will not be desirable to allow the officer to continue in service until he is cleared of the charges; or (b) where the position occupied by the officer is such that his continuance in service would render the conduct of the investigation against him difficult or embarassing. If the appointing authority, after taking into account the facts and circumstances which are available before it, at that stage, forms the opinion that the Government servant against whom serious imputations are made should not be allowed to function anywhere before the matter has been finally set at rest after holding a thorough enquiry, a suspension of the officer from service would be perfectly warranted. It is, however, mandatory that before an officer can be validly placed under suspension under Rule 10, the authority passing the order must address its WPC 25652/2008 10 mind to the relevant aspects and come to the bona fide conclusion that for either of the two reasons mentioned above or both, the officer cannot be allowed to function in any post in the service until the enquiry against him is concluded.” Again, in para 9 it was held as follows: “Although suspension is not one of the punishments enumerated in Rule 11 of the Kerala Civil Services (Classification, Control and Appeal) Rules, an order of suspension is not to be lightly passed against a government servant, for the reality cannot be ignored that an order of suspension brings to bear on the government servant consequences far more serious in nature than several of the penalties made mention of in Rule 11. It has a disastrous impact on the fair name and good reputation that may have been earned and built up by a government servant in the course of many years of service. The damage suffered by the Government servant is largely irreversible because the denigration and disgrace visited on him by the order of suspension is seldom wiped out by his being subsequently exonerated from blame and reinstated in service. Hence, it is imperative that the utmost caution and circumspection should be exercised in passing orders of suspension under Rule 10 resulting in such grave consequences to WPC 25652/2008 11 the government servant concerned. It is also necessary to remember that the power of suspension is to be sparingly exercised and that is not meant to be used as a mode of giving expression to any displeasure felt by the appointing authority or the Government in respect of any commission or omission on the part of the officer.” In State of Kerala's case (1984 KLT 315 DB ), a Division Bench of this court held that “Rule 10 read with Rule 15 makes it clear that disciplinary proceedings is contemplated only when the authority concerned is satisfied that there is prima facie case for taking action. It is on the basis of complaint received or on consideration of the report of investigation or for other reasons the authority is to satisfy that prima facie case exists. Therefore either there should be a complaint alleging misconduct or report of investigation or other material for exercising the power of suspension in contemplation of the disciplinary proceedings.” 11. In Sreekumar's case (1996 (1) KLT 209), while considering the exercise of power under Rule 10, it was held that suspension is not automatic. The dictum laid down in para 5 is to the following effect: “It is not as if in every case the moment a case is registered against a government servant, he should be placed under suspension. Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules WPC 25652/2008 12 authorises the appointing authority or any authority to which it is subordinate or any other authority empowered by the Government in that behalf to place a Government servant under suspension, where a case against him in respect of any criminal offences is under investigation or trial or if the appropriate authority considers that in the then prevailing circumstances it is necessary in public interest that the Government servant should be suspended from service. It is therefore evident that the suspension is not automatic. The appropriate authority has to apply his mind as to whether a Government servant should be placed under suspension or not taking into consideration the then prevailing circumstances and also public interest.” The said legal position was reiterated in Muhammed's case (1997 (2) KLT 394). Thus, it is clear from the above principles that it will not be an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. One of the main considerations should be whether if the public servant is allowed to continue, there will be an occasion of tampering with the evidence. Judged in the light of the above, it cannot be said that in the present case the above tests have been satisfied. What is alleged against the petitioner is only WPC 25652/2008 13 supervisory lapses, and no particular misconduct personal to him is alleged. The petitioner is not directly involved in the matter of survey work or the disposal of complaints in regard to the same. He is functioning as an Appellate Authority from the orders of the District Survey Superintendent. The allegations of corruption and other matters are against the office of the District Survey Superintendent. Thus, his case had to be separately considered as ordered in Ext.P7 judgment itself. As observed by this court, it is clear from the communications that he had been taking action in the matter. If the petitioner had to be kept away during the enquiry, he could have been transferred out. I am, therefore, of the view that the continued suspension of the petitioner is not warranted in the circumstances of the case. In that view of the matter, I am not considering the allegation of mala fides raised in the writ petition. 12. Thus, Exts.P6 and P8 cannot be sustained. Hence, the writ petition is allowed. Exts.P6 and P8 are quashed. There will be a direction to the first respondent to reinstate the petitioner in service without prejudice to the continuance of disciplinary enquiry against him. If the competent authority is of the view that the petitioner cannot be continued at Pathanamthitta during the enquiry, appropriate orders can be passed to post him at a suitable station. Orders as above shall be passed within a period of WPC 25652/2008 14 three weeks from the date of receipt of a copy of the judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/