IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 OP.No. 29207 of 2000(B) ----------------------- PETITIONER(S): --------------- N.S. MUHAMMED BADRUDEEN, S/O. CHELLAPPA RAWTHER, VELLANTHARA, KOLLENCODE P.O., PALAKKAD DIST. BY ADV. SRI.K.MOHANA KANNAN RESPONDENT(S): --------------- DIRECTOR, DIRECTORATE OF ECONOMICS & STATISTICS, TRIVANDRUM. GOVERNMENT PLEADER SRI.M.R. SABU. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/11/2008, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 29207/2000. ----------------------------------------------------------------- EXT.P1 TRUE COPY OF ORDER DT. 25-2-1997. EXT.P2 ORDER DT. 13-6-1997. EXT.P3 ORDER DT. 8-7-1998 EXT.P4 REPRESENTATION DT. 21-8-1998. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 29207 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 7th November, 2008. J U D G M E N T The petitioner, while working as a Statistics Inspector in the Directorate of Economics and Statistics, was suspended from service by Ext. P1 order on 4-3-1997 pending disciplinary proceedings . By Ext. P2 dated 13-6-1997, he was ordered to be reinstated and he was reinstated on 20-7-1997. Subsequently, he retired from service on 31-10-1998. Therefore, disciplinary proceedings were not continued. By Ext. P3 order, the disciplinary authority directed the period of suspension from 4-3-1997 to 20-7-1997 to be treated as duty limiting the pay and allowances to 80%, less the subsistence allowance already drawn. Although the petitioner filed Ext. P4 before the Government, no orders were passed on the same. It is at that juncture the petitioner approached this Court for a direction to the respondent to disburse the balance salary also with interest. 2. Pending the original petition, it appears that the Government considered his appeal and passed Ext. R1 order rejecting the same for the reasons mentioned therein. The petitioner has not chosen to challenge Ext. R1 order. 3. The petitioner now submits that Ext. P2 order is unsustainable in view of the fact that the petitioner has not been found guilty either by the criminal court or by any other authority. That being so, there was no jurisdiction for reducing 20% of his pay and allowances. 4. A counter affidavit has been filed by the respondent justifying the order limiting the pay and allowance to 80% of the salary. They rely on Rule 56B of Part I of the Kerala Service Rules for sustaining the order. 5. I have considered the rival contentions in detail. 6. I have already mentioned that the petitioner has not O.P. No. 29207/2000 -: 2 :- challenged Ext. R1 order. Rule 56B reads thus: “56B. (1) When an officer who has been suspended is reinstated or would have been so reinstated but for his retirement in superannuation while under suspension, or has retired from service on superannuation before the conclusion of the disciplinary proceedings against him the Authority Competent to order reinstatement shall consider and make a specific order. (a) regarding the pay and allowances to be paid to the officer for the period of suspension ending with reinstatement or the date of his retirement on superannuation, as the case may be; and (b) whether or not the said period shall be treated as a period spent on duty. (2) Notwithstanding anything contained in rule 55, where an officer under suspension dies before the disciplinary, or court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid. (3) Where the Authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the officer shall, subject to the provisions of sub-rule (8) be paid the full pay and allowances to which he would have been entitled, had he not been suspended: Provided that where such authority is of the opinion that the termination of the proceedings instituted against the officer had been delayed owing to reasons directly attributable to the officer, it may after giving him an opportunity to make his representation and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the officer shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine. (4) In a case falling under sub-rule (3), the period of suspension shall be treated as a period spent on duty for all purposes. (5) In cases other than those falling under sub-rules (2) and (3), the officer shall subject to the provisions of sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the Competent Authority may determine, after giving notice to the officer of the quantum proposed and after O.P. No. 29207/2000 -: 3 :- considering the representation , if any, submitted by him in that connection within such period as may be specified in the notice. (6) Where suspension is revoked pending finalisation of the disciplinary or court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the officer shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (1) who shall make an order according to the provisions of sub-rule (3) or sub- rule (5) as the case may be. (7) In a case falling under sub-rule (5), the period of suspension shall not be treated as a period spent on duty unless the Competent Authority specifically directs that it shall be so treated for any specified purpose: Provided that if the officer so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the officer. (8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible. (9) The amount (not being the whole) of such pay and allowances determined under the proviso to sub-rule (3) or under sub-rule (5) shall not be less than the subsistence allowance and other allowances admissible under rule 55.” In Ext. R1 order, the Government gives justification for limiting the salary to 80% thus: “Government have examined the appeal petition in detail with reference to the report of the Director of Economics & Statistics and the connected records. As per the Vigilance Enquiry report it was established that the petitioner has manipulated the attendance Register, maintained in the Block Development Office, Kollangode and tour duty simultaneously attending the Judicial 1st Class Magistrate Court, Chittoor in connection with a Private Case filed by his brother. A Crime Case No. Cr.210/94, U/s. 465, 471, 477 I.P.C registered against the petitioner at the Kollangode Police Station is also pending for trial before the Judicial First Class Magistrate Court, Chittoor. It is seen that the Director of Economics & Statistics has issued orders regularising the period of suspension as duty limiting the pay and allowances as 80% less the subsistence allowance already drawn without finalising the disciplinary action initiated against him. Therefore, the proceedings issued by the Director of Economics & Statistics in O.P. No. 29207/2000 -: 4 :- this regard was defective. Even though Shri. Mohammed Badaruddin has already retired from service disciplinary action initiated against him while in service has to be concluded, as if he had continued in service.” Rule 56B confers a discretion on the disciplinary authority in the matter. That discretion has been exercised by the disciplinary authority in this case. From the order of the Government, I am satisfied that the discretion has been properly exercised. That being so, I do not find any merit in the original petition and accordingly the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/