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. 33565 of 2008(U) --------------------------------------- PETITIONER: ------------------- V.RAJU, S/O. N.VELAYUDHAN, AGED 53 YEARS, KOCHU VEEDU, THATTAMALA, KOLLAM, PIN - 691 020, NOW RESIDING AT SVLRA -24 A, SREEVILAS LANE, KOWDIAR, THIRUVANANTHAPURAM - 695 003, JOINT SECRETARY, STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. BY ADV. MR. M.AJAY. RESPONDENTS: ----------------------- 1. THE STATE OF KERALA (REPRESENTED BY ITS PRINCIPAL SECRETARY ) LOCAL SELF GOVERNMENT DEPARTMENT, THE SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, THE SECRETARIAT, THIRUVANANTHAPURAM. 3. THE STATE ELECTION COMMISSION, (REPRESENTED BY ITS SECRETARY),CORPORATION OFFICE COMPLEX, PALAYAM, THIRUVANANTHAPURAM- 695 033. 4. THE SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, NORTHERN RANGE, KOZHIKODE. 5. THE DEPUTY SUPERINTEDNDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, NORTHERN RANGE, KOZHIKODE. R1, R2, R4 & R5 BY GOVERNMENT PLEADER MR. P. NANDAKUMAR, R3 BY ADV.MR. MURALI PURUSHOTHAMAN, SC,K.S.E.COMMN., THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/01/2009, THE COURT ON 30/01/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.33565/2008-U: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE G.O. (RT).NO.3425/2008/LSGD DTD. 19/09/08. EXT.P.2: COPY OF THE ORDER OF THE DISTRICT COLLECTOR, KOZHIKODE, CS 6511/05 DTD. 01/03/06. EXT.P.3: COPY OF THE COMPLAINT, CRL.M.P.199/07 FILED BY P.C. SACHITHRAN BEFORE THE HON'BLE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM. EXT.P.4: COPY OF THE FIR NO. 2/08 REGISTERED BY THE VACB. EXT.P.5: COPY OF THE ORDER OBTAINED UNDER THE RIGHT TO INFORMATION ACT DTD. 23/04/07. EXT.P.6: COPY OF THE ORDER ISSUED BY THE SECRETARY, FOOD & CIVIL SUPPLIES DEPARTMENT. EXT.P.7: COPY OF THE COMMUNICATION NO. VC2/2008 NRK DTD. 02/06/08 SENT BY THE R.5. TO THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM. EXT.P.8: COPY OF THE G.O. (RT) 1543/08/LSGD DTD. 27/05/08. EXT.P.9: COPY OF THE NOTE FILES NO. 56760/EU/08/LSGD. EXT.P.10: COPY OF THE REPRESENTATION SENT BY THE PETITIONER TO THE R.2. ON 23/09/08. EXT.P.11: COPY OF THE JUDGMENT IN W.P.(C).29317/08 DTD. 13/10/08. EXT.P.12: COPY OF THE COMMUNICATION NO. 56760/EU1/08/LSGD DTD. 16/10/08 SENT BY THE R.2. TO THE PETITIONER. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 33565 of 2008-U - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of January, 2009. JUDGMENT The petitioner is aggrieved by the orders of suspension, Exts.P1 and P12 by which his representation to revoke the suspension was rejected. 2. The petitioner is the Joint Secretary of the State Election Commission on deputation from Urban Affairs Department. During September 2004 to 18.5.2006 he was officiating as Private Secretary to the then Minister for Food and Civil Supplies. In connection with the appointment of Authorised Wholesale Distributors (AWD) at Omasseri in Kozhikode District, a vigilance enquiry was ordered, wherein the allegation is that bribe was demanded for issuing licence from one applicant Mr. N.K. Abdul Rahiman at the Minister's official residence in Thiruvananthapuram and Government Guest House in Kozhikode. On the basis of the said allegation, a vigilance case has been registered against the petitioner. The Director of Vigilance and Anti-corruption Bureau recommended to transfer the petitioner and post him in a non sensitive post far away from mother department/unit. Stating that all the four posts in the cadre of Joint Director in the Urban Affairs Department are sensitive posts and there are WPC 33565/2008 2 no other posts in the said Department far away from Thiruvananthapuram to transfer the petitioner, the Government placed him under suspension pending investigation and disciplinary action. By Ext.P11 judgment, this Court directed the Government to dispose of Ext.P10 representation submitted by him seeking to revoke the order of suspension. The same stands rejected by Ext.P12 order. 3. Heard learned counsel for the petitioner and the learned Govt. Pleader. 4. Learned counsel for the petitioner submitted certain aspects relating to the appointment of AWD which led to the allegations. It is stated that by Ext.P2, the District Collector appointed one Shri K.P. Sameer Navas as the AWD after finding that one of the applicants, Shri N.K. Abdul Rahiman does not satisfy the requirements including residential qualification, in that he is not residing in the Panchayat concerned. It is pointed out that in appeals filed by certain applicants, the matter was directed to be reconsidered by the Civil Supplies Commissioner, pursuant to which the District Collector again passed Ext.P5 order on 23.4.2007 after the General Election held in 2006. The statement of facts relating to the applicant as reiterated in Ext.P5 will show that he is a permanent resident of Karasseri Panchayat, whereas the application is invited in WPC 33565/2008 3 respect of Omasseri Panchayat. But in the operative portion of the said order, the said applicant was benefited by the appointment stating that he is a permanent resident of Omasseri Panchayat. It is also pointed out that this finding was wrong, as in the residential address at the foot of the order the place of the said applicant was corrected as Karassery by the District Collector himself which is evident from the endorsement. This order passed by the District Collector led to various allegations in the Legislative Assembly pursuant to which, Ext.P6 order was passed by the Government, wherein it was directed that the implementation of the order of the District Collector need not be carried out till a final decision in the matter is taken as per rules. So far, no decision has been taken. These are referred to, to show that even after the change of Government the present Government also stayed the grant in favour of the applicant. Ext.P7 is the letter dated 2.6.2008 of the investigating officer who investigated the matter, addressed to the Director of Vigilance and Anti-corruption Bureau, wherein what is recommended is that the petitioner may be transferred and posted to a non sensitive post which is far away from the mother department/unit, after observing that there is every chance to tamper the evidence and to influence the officials concerned in Secretariat and spoil the case. It is pointed out that by the learned counsel as the relevant files concerned regarding the WPC 33565/2008 4 appointment of AWD is only that of the District Collector, even the reference therein about the possibility of tampering the evidence and to influence the officials concerned in the Secretariat, is not correct. But it is pointed out that the only recommendation was to transfer him out. Already he is working in the State Election Commission, outside the Secretariat and therefore the suspension is without any justification. It is pointed out that the post in the Election Commission wherein the petitioner was accommodated, is sanctioned as per Ext.P8 which is still available. 5. Ext.P9 has been produced by the petitioner after getting details under the Right to Information Act. The same is the Note file leading to Ext.P1 order of suspension. It is pointed out by referring to the details therein, that suspension has been ordered without applying mind to the relevant aspects. Ext.P10 is the representation submitted seeking revocation of the order of suspension. He moved this court by filing Writ Petition No.29317/2008 which was disposed of by this court as per Ext.P11 judgment dated 13.10.2008, wherein this court directed the Government to consider Ext.P10 representation and pass orders thereon after affording the petitioner an opportunity of being heard within a period of one month from the date on which the petitioner produces a certified copy of the judgment. It is pointed out that this direction was issued after hearing the learned Govt. WPC 33565/2008 5 Pleader also who submitted that Ext.P10 representation has been received by the second respondent and that the second respondent will take a decision on the same expeditiously. But without considering any of the contentions raised by the petitioner and without affording an opportunity of hearing, Ext.P12 order has been passed hastily. 6. Learned counsel for the petitioner relied upon various decisions wherein relevant principles have been laid down by this court in regard to the scope of the power under Rule 10 of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960. The decisions of this court in Sreekumar v. Kerala Water Authority (1996 (1) KLT 209) which was upheld by a Division Bench of this court in Sasikumar v. Travancore Devaswom Board (2001 (2) KLT 226) and a recent decision of a Division Bench of this court in Vikraman Nair K. v. State of Kerala and others (2008 (4) KHC 412 (DB)) were relied upon. It is argued that an order of suspension is not automatic or a matter of administrative routine and the discretion has to be exercised fairly and reasonably and going by the facts of this case, it amounts to victimisation and abuse of the power warranting interference by this court in this proceedings. 7. The respondents have filed a counter affidavit justifying Exts.P1 WPC 33565/2008 6 and P12 orders passed. It is pointed out that even though the recommendation was to transfer the petitioner and to post him in a non sensitive post far away from the mother department/unit, as there are only four posts in the cadre of Joint Director in Urban Affairs Department and as all of them are sensitive posts and as there are no other posts in the cadre of Joint Director in Urban Affairs Department far away from Thiruvananthapuram to transfer him, the Government issued orders suspending him. The details regarding registration of the criminal case based on a complaint by a third party before the Enquiry Commissioner and Special Judge, Thiruvananthapuram are also stated in paragraphs 4 to 6 of the counter affidavit. It is stated that the certified copy of the judgment, ie. Ext.P11 has not been produced by the petitioner and the action to consider his representation was taken even before the judgment was rendered. It is contended that there are no violation of the rules. 8. While admitting the writ petition, this court passed an interim order directing that the post of Joint Secretary (M) in the Office of the State Election Commission, which the petitioner was holding on the date of suspension, shall not be filled up on a regular basis. 9. In this case, the criminal case was registered based on a complaint filed by a third party as per Ext.P3 before the Enquiry Commissioner and WPC 33565/2008 7 Special Judge, Thiruvananthapuram. Ext.P4 is the First Information Report therein. It is stated that the further investigation of the vigilance case is pending and no charge has been laid. It is seen from Ext.P2 that the applicant from whom bribe was allegedly sought, was not benefited by the grant of licence, even though after remand, the District Collector passed an order as per Ext.P5. Going by Ext.P6 order passed by the Government, the same has been directed to be kept in abeyance. 10. In fact, while considering the validity of the order of suspension, Ext.P1, this court need not go into the validity or otherwise of those orders in this proceedings. The main aspect that is pointed out by the learned counsel for the petitioner is that, while issuing Ext.P5 order, there was a mistake committed by the District Collector in entering a finding that the said applicant is a resident of Omasseri Panchayat and the place of his residence is seen corrected by the District Collector himself at the foot of the order by changing it as Karasseri. It is therefore pointed out that the applicant never had the necessary residential qualification, and therefore the allegations have no basis. 11. The recommendation by the Vigilance Department, going by Ext.P7, is only to transfer him and post him to a non sensitive post far away from the mother department/unit. The mother department of the petitioner WPC 33565/2008 8 is Urban Affairs Department wherein he was working as a Joint Director. When Ext.P1 order was passed, he was admittedly working on deputation as Joint Secretary of the State Election Commission. Therefore, actually the recommendation in Ext.P7 that the petitioner should be posted to a post far away from the mother department, has already been satisfied, since he was not working as Joint Director in the Urban Affairs Department, but was working as Joint Secretary in the State Election Commission. In Ext.P7, his transfer was sought on the ground that there is every chance to tamper the evidence and influence the officials concerned in Secretariat. Since he is working with the State Election Commission, it cannot be said that he is having access with the records concerned and any likelihood of tampering with the evidence. Going by the terms of Ext.P7 there is no request to transfer him out of Thiruvananthapuram, as the request is only to post him to a non sensitive post which is far away from the mother department. But the Government has considered it as a request to transfer him far away from Thiruvananthapuram itself and accordingly took the view that since the existing posts in the Urban Affairs Department are sensitive posts, the only option is to suspend him from service to comply with the request contained in Ext.P7. Actually, the above aspects show that the Government did not keep in mind the fact that he is not working in the Urban Affairs WPC 33565/2008 9 Department as on the date of suspension and is working in the State Election Commission and the duties in the Election Commission do not have anything to do with the activities of the Urban Affairs Department. 12. Further, in this case as pointed out by the learned counsel for the petitioner, the two orders regarding appointment of AWD have been passed only at the level of the District Collector and they have not reached the Government at that time. Only now the Government have passed an order staying Ext.P5, by Ext.P6. Therefore, prima facie there is force in the submission that no action has been initiated from the Secretariat at the Government level in regard to the appointment of AWD at the relevant point of time and the counter affidavit also does not refer to any of those files, if any. Therefore, the request by the Vigilance Department to keep the petitioner away from the Secretariat to avoid any chance of tampering with the evidence and to influence the officials concerned in the Secretariat, has already been satisfied, since he was working in the State Election Commission only. Therefore, there is no basis to conclude that the recommendation was to transfer him to a far away place from Thiruvananthapuram itself. It is therefore clear that there is total non application of mind while passing the order of suspension and while rejecting the application for revocation of suspension. The question is WPC 33565/2008 10 whether there is abuse of the power and there is victimisation of the officer concerned. 13. The facts considered by this court in Sreekumar's case (1996 (1) KLT 209) show that therein the suspension was ordered pending a vigilance enquiry for various offences under the Prevention of Corruption Act, 1947. After registering the case, the Director of Vigilance Investigation addressed the Government to transfer the petitioner out of Ernakulam District for a fair investigation of the case. The Government ordered the petitioner therein to be placed under suspension since a crime is registered against him. The question considered was whether the suspension was justified in view of the fact that the vigilance only wanted a transfer of the petitioner from the present place. It was held in para 6 as follows: “It is evident from the said documents that the Vigilance Department only recommended transfer of the petitioner out of Ernakulam District for a fair investigation. In other words, the Vigilance Department never wanted the petitioner to be kept under suspension for the purpose of investigation. 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 authorises the appointing authority or any other authority to which it is subordinate or any WPC 33565/2008 11 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 offence 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. In the instant case, the Vigilance Department wanted the petitioner to be transferred out of Ernakulam District and not to be suspended. The Government as well as Kerala Water Authority have not applied their mind whether the petitioner should be kept under suspension in public interest or to facilitate the investigation.” This court followed the dictum laid down by the Apex Court in State of Orissa v. Bimal Kumar Mohanty {(1994) 4 SCC 126} that it would not be an administrative routine or an automatic order to suspend an employee. The above judgment was affirmed by a Division Bench in Sasikumar's case (2001 (2) KLT 226). Therein, reliance was also placed on the decisions of the Apex Court in State of Orissa's case {(1994) 4 SCC 126} and in M. Paul Anthony v. Bharat Gold Mines Ltd. {(1999) 3 SCC 679}. 14. All the aspects concerning the exercise of power under Rule 10 WPC 33565/2008 12 of the Rules was considered in a recent decision of a Division Bench of this court in Vikraman Nair's case (2008 (4) KHC 412). The power of this court under Article 226 of the Constitution of India by way of judicial review of such orders, was also considered. In para 11 it was held thus: “Suspension of an employee pending disciplinary proceedings and departmental enquiry is not automatic, but is discretionary. One of us (J.B. Koshy, J.), speaking for the Division Bench in Surendran v. Government of Kerala, 2008 (3) KHC 738 pointed out that the object of placing an employee under suspension pending enquiry is to enable the administration to conduct the proceedings smoothly so as to establish the allegations or charge against that employee. If victimisation is discernible from the facts of the case or, suspension is arbitrary or illegal, interference in exercise of the power under Article 226 of the Constitution is justified and warranted.” The legal position was further explained in para 12 in the following terms: “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 place before such authority. 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 WPC 33565/2008 13 initiate disciplinary proceedings. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. Public interest of the impact of the delinquent's continuance in office while facing departmental enquiry is also a matter which the authority concerned should bear in mind while deciding whether the delinquent employee must be placed under suspension.” Ultimately it was held that the order of suspension passed without applying mind, smacks malafides and victimisation. 15. Going by the facts of this case, allegations were raised against the petitioner in a complaint, Ext.P3 by a third party. Investigation therein is pending. The request in Ext.P7 is only to transfer him to a non sensitive post away from the mother department/unit. It is obvious that the said recommendation by the Vigilance Department cannot be understood as one requesting the Government to bring him back to the Urban Affairs Department and to post him in a non sensitive post. Presently, going by the averments in the counter affidavit and the order passed by the Government, the reason that emerges is that there are only four posts in the cadre of Joint Director in the Urban Affairs Department and therefore he could not be given a posting. The fact that he was already working in the Election Commission ought to have been noticed by the Government while considering the impact of the recommendation made by the Vigilance WPC 33565/2008 14 Department. That he is not working in any of the sensitive posts in the mother department or in the Secretariat, has been overlooked while passing Exts.P1 and P12. In the representation submitted by the petitioner, he had clearly pointed out that the order happened to be passed on an erroneous assumption that he is posted in a sensitive post in his parent department and that the allegation against him has nothing to do with his mother department and is confined only to his term as Private Secretary to the then Minister for Food and Civil Supplies Department. He had clearly pointed out that all that the Vigilance Department wanted was to shift him from the sensitive post and this was already done when he was deputed to the State Election Commission which is entirely a different department from his mother department/unit. He has clearly stated that the State Election Commission is an independent and autonomous body and hence he was not working in his mother department/unit, let alone a sensitive post wherefrom he was recommended to be transferred. 16. Learned counsel for the petitioner is therefore right in submitting that extraneous reasons and non-application of mind have clearly resulted in passing the order of suspension and it amounts to victimisation and abuse of the power. As held by this court and the Apex Court in the decisions referred to above, an order of suspension is not automatic and is not an WPC 33565/2008 15 administrative routine. It will have to be passed only based on the gravity of the allegations and the circumstances requiring the officer concerned to be placed under suspension. The question is whether the continuance of the person concerned in the post in question will in any way affect the smooth conduct of the proceedings against him for establishing the charges. As held by the Division Bench in Vikraman Nair's case (2008 (4) KHC 412), the suspension must be a step in aid to the ultimate result of the investigation or enquiry. There should be proper application of mind with regard to the requirement to pass the order of suspension. Merely because of the pendency of the investigation, the suspension cannot be an automatic follow up action. Even the vigilance department only wanted him to be transferred out of the parent department. In the facts and circumstances of this case, the request in Ext.P7 would only mean that after the period of deputation to the State Election Commission is over and if he is brought back to the mother department, he may not be posted in a sensitive post. Otherwise, the said recommendation will not have any meaning at all. The Government, without looking into the various aspects, jumped into the conclusion that the only alternative is to place him under suspension, since the actual recommendation has the effect of recalling him from the State Election Commission and to give a posting in a non sensitive post away WPC 33565/2008 16 from the mother department. Such cannot be the result of the recommendation, 17. In the light of the above, it is clear that the order of suspension amounts to abuse of