IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 WP(C).No. 23806 of 2009(S) -------------------------- OA.12/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- K.SURESH KUMAR IAS (KL-89),S/O. SRI.K.V.KUMARAN, AGED 50 YEARS, MANAGING DIRECTOR (UNDER ORDERS OF SUSPENSION) ON DEPUTATION,KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELO- PMENT BANK, OPPOSITE TO GOVERNMENT SECRETARIAT, TVM.,R/AT NO.16, M.G.NAGAR,PEROORKADA, TVM-695005. BY ADV. SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE SRI.D.ANIL KUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCE AND PENSIONS, DEPARTMENT OF PERSONNEL AND TRAINING, NEW DELHI-110 001. 3. ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001. 4. CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, REPRESENTED BY ITS REGISTRAR, KALOOR, ERNAKULAM. SRI.K.K.RAVEENDRANATH, ADDITIONAL DIRECTOR GENERAL OF PROSECUTIONS SRI.T.P.M.IBRAHIM KHAN,ASST.SOLICITOR FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-11-2009 THE COURT ON 26/11/2009, DELIVERED THE FOLLOWING: W.P(C)No.23806/2009 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. PHOTOCOPY OF THE O.A.NO.12/2009 ALONG WITH THE ANNEXURES DATED 7-1-2009 EXT.P2. PHOTOCOPY OF THE REPLY STATEMENT FILED ON BEHALF OF 1ST RESPONDENT DATED 12-2-2009 EXT.P3. PHOTOCOPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE 1ST RESPONDENT DATED 21-3-2009 EXT.P4. PHOTOCOPY OF THE REJOINDER FILED BY THE PETITIONER DATED 23-2-2009 EXT.P5. PHOTOCOPY OF THE ORDER DATED 2-6-2009 IN O.A.NO.12 OF 2009 OF THE 4TH RESPONDENT. EXT.P6. PHOTOCOPY OF THE ARTICLE OF CHARGES NO.90080/SPL.A2/ 2008/GAD DATED 13-3-2009 OF THE 1ST RESPONDENT EXT.P7. PHOTOCOPY OF THE NEWS ITEM PUBLISHED IN MATHRUBHOOMI DAILY DATED 24-7-2009 EXT.P8. TRUE COPY OF THE ORDER NO.G.O.(RT)NO.6344/2009/GAD DATED 5-9-2009 RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF G.O(RT)NO.6344/2009/GAD DATED 5-9-2009 / TRUE COPY / P.S.TO JUDGE KURIAN JOSEPH & C.T.RAVIKUMAR, JJ. ----------------------------------------- W.P(C)No.23806 of 2009 ----------------------------------------- Dated this the 26th day of November, 2009 JUDGMENT Kurian Joseph, J. Discipline decides the destiny of life and destination in service. Discipline is the core and cornerstone of service. However, discipline as understood in common parlance is different from the discipline as defined in the service rules though the latter has the trappings of the former. As far as the government servant is concerned, disciplinary action can be initiated only in case the officer concerned is liable to be proceeded against for his indisciplined conduct. Suspension from service is a prelude to the disciplinary action. But suspension is not a precondition or unavoidable accompaniment for a disciplinary action. It is required, nay warranted, only if as W.P(C)No.23806 of 2009 -:2:- part of the action and in overall public interest the officer is to be temporarily kept out of service for a free and fair enquiry. No doubt, suspension is not a punishment, unless of course prescribed as such in the relevant Rules. But merely because suspension is not a punishment, the employer cannot take a casual approach and after a few days or months reinstate the officer, even with backwages. The stigma cannot be washed away or wiped out, though in the legal parlance it is possible. For an honest officer, a baseless or motivated action is certainly painful. That is why the law and procedure on suspension call for strict interpretation. Of course, justification for suspension is different from validity of suspension. This introduction would help us as a prologue in analysing the question of law raised in this writ petition. 2. Short facts. The writ petition is filed by the applicant (hereinafter referred to as the petitioner) before the Central Administrative Tribunal, Kochi, in O.A.No.12/2009. The said W.P(C)No.23806 of 2009 -:3:- application was filed challenging order dated 11-12-2008 of the Government of Kerala whereby the petitioner was suspended from service. The impugned order Annexure A7 (Ext.P1) reads as follows:- “It has come to the notice of the Government that Shri.K.Suresh Kumar, IAS (KL: 1989) on deputation as Managing Director, Kerala State Co-operative Agricultural Rural Development Bank has appeared before the press and media channels from 6-12-2008 onwards and adversely criticised the office of the Hon'ble Chief Minister of Kerala, making allegations like piling up of files, absence of support system and ignorance of Government procedures in the Chief Minister's office and thereby violated the All India Service (Conduct) Rules which caused embarrassment to the Government. 2. Government after having examined the matter in detail considers it necessary to place Shri.K.Suresh Kumar, IAS, Managing Director, Kerala State Co-operative Agricultural Rural Development Bank under W.P(C)No.23806 of 2009 -:4:- suspension as per Rule 3 of All India Service (Discipline & Appeal) Rules, 1969 with immediate effect pending further enquiry. 3. Shri.K.Suresh Kumar, IAS, will be eligible for subsistence allowance under Rule 4 of All India Service (Discipline & Appeal) Rules 1969. 4. Shri.K.Suresh Kumar, IAS will hand over charge to Shri.T.Thankappan, IAS (KL: 1989), Secretary, Co-operation Department.” Before the Central Administrative Tribunal the following reliefs were sought:- “i. to call for the records leading to Annexure A-7 GO(Rt) No.9528/2008/GAD dated 11-12-08 and Annexure A-11 GO dated 11-03- 2009 and to set aside the same; ii. to declare that Annexure A-7 Order of suspension ceased to be valid and operative by reason of not initiating disciplinary proceedings before the expiry of the period of 90 days from the date of suspension and in the absence of permission from the Central W.P(C)No.23806 of 2009 -:5:- Government as contemplated by the 2nd proviso to Rule 3(1) of the All India Servgice (Discipline and Appeal) Rules, 1969; iii. to issue appropriate direction or order directing the respondents to allow the applicant to continue in the post of Managing Director, Kerala State Co- operative Agricultural and Rural Development Bank without regard to Annexure A7 GO dated 11-12-2008; iv. to issue appropriate direction or order directing the respondents to pass appropriate order treating the period of suspension as duty for all purposes and to grant him full service benefits including arrears of pay and allowances for the period he has been kept under suspension unlawfully; v. to grant such other reliefs which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.” 3. The Tribunal dismissed the application. Hence the W.P(C)No.23806 of 2009 -:6:- writ petition. 4. At the outset we make it clear that we are not embarking upon an enquiry on the merits of the cases, on the justification for the suspension; our enquiry is to the limited area of challenge on the validity of the suspension order, in view of the non-compliance with the requirement prescribed under the Rules. The main contention, which alone we propose to deal with in this case and since that would render consideration of other questions unnecessary, is that the suspension has become invalid since before the expiry of the period of 90 days from the date of suspension, disciplinary proceedings are not initiated. There is no dispute on two facts: (1) disciplinary proceedings have not been initiated against the applicant before the expiry of the 90 days from the date of suspension; and (2) the Central Government has not allowed the continuance of the suspension beyond the period of 90 days. W.P(C)No.23806 of 2009 -:7:- 5. In order to appreciate the contention on the validity of suspension order it is necessary to refer to the Rules. Rule 3 of the All India Service (Discipline and Appeal) Rules 1969 deals with suspension and the procedure to be followed thereon. The Rule reads as follows:- “3. Suspension.-- (1) If, having regard to the circumstances in any case and where articles of charge have been drawn up, the nature of the charges, the Government of a State or the Central Government, as the case may be, is satisfied that it is necessary or desirable to place under suspension a member of the service, against whom disciplinary proceedings are contemplated or are pending, that Government may, -- (a) if the member of the service is serving under that Government, pass an order placing him under suspension, or (b) if the member of the service is serving under another Government, request that W.P(C)No.23806 of 2009 -:8:- Government to place him under suspension, pending the conclusion of the disciplinary proceedings and the passing of the final order in the case: Provided that, in cases, where there is a difference of opinion, -- (i) between two State Governments, the matter shall be referred to Central Government for its decision; (ii) between a State Government and the Central Government, the opinion of the Central Government shall prevail; Provided further that, where a member of the service against whom disciplinary proceedings are contemplated is suspended, such suspension shall not be valid, unless before the expiry of a period of ninety days from the date from which the member was suspended, disciplinary proceedings are initiated against him; Provided also that the Central Government may, at any time before the expiry of the said period of ninety days and after considering the special circumstances for not initiating disciplinary proceeding, to W.P(C)No.23806 of 2009 -:9:- be recorded in writing allow continuance of the suspension order beyond the period of ninety days without the disciplinary proceedings being initiated. (1-A) If the Government of a State or the Central Government, as the case may be, is of the opinion that a member of the Service has engaged himself in activities prejudicial to the interests of the security of the State, that Government may -- (a) if the member of the Service is serving under that Government, pass an order placing him under suspension, or (b) if the member of the Service is serving under another Government request, that Government to place him under suspension, till the passing of the final order in the case : Provided that, in cases, where there is a difference of opinion -- (i) between two State Governments, the matter shall be referred to the Central Government for its decision; W.P(C)No.23806 of 2009 -:10:- (ii) between a State Government and the Central Government, the opinion of the Central Government shall prevail. (2) A member of the Service, who is detained in official custody whether on a criminal charge or otherwise for a period longer than forty-eight house, shall be deemed to have been suspended by the Government concerned under this rule. (3) A member of the Service in respect of, or against, whom an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Government be placed under suspension until the termination of all proceedings relating to that charge, if the charge is connected with his position as a member of the service or is likely to embarrass him in the discharge of his duties or involves moral turpitude. (4) A member of the Service shall be deemed to have been placed under suspension by the Government concerned with effect from the date of conviction, of, in the event of conviction for a criminal offence, W.P(C)No.23806 of 2009 -:11:- he is not forthwith dismissed or removed or compulsorily retired consequent on such conviction provided that the conviction carries a sentence of imprisonment exceeding fortyeight hours. Explanation.-- The period of forty- eight hours referred to in sub-rule (4) shall be commuted from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account. (5) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a member of the Service under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. (6) Where a penalty of dismissal, W.P(C)No.23806 of 2009 -:12:- removal or compulsory retirement from service imposed upon a member of the Service is set aside or declared or rendered void in consequence of or by a decision of a Court of Law, and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the member of the Service shall be deemed to have been placed under suspension by the Central Government from the date of original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders: Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case. (6-A) Where an order of suspension is made, or deemed to have been made, by the Government of a State under this rule, detailed report of the case shall be forwarded W.P(C)No.23806 of 2009 -:13:- to the Central Government ordinarily within a period of fifteen days of the date on which the member of the Service is suspended or is deemed to have been suspended, as the case may be. (7)(a) An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so. (b) Where a member of the Service is suspended or is deemed to have been suspended, whether in connection with any disciplinary proceeding or otherwise, and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the member of the Service shall continue to be under suspension subject to sub-rule (8); W.P(C)No.23806 of 2009 -:14:- (c) An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order. (8)(a) An order of suspension made under this rule which has not been extended shall be valid for a period not exceeding ninety days and an order of suspension which has been extended shall remain valid for a further period not exceeding one hundred eighty days at a time, unless revoked earlier. (b) An order of suspension made or deemed to have been made or continued, shall be reviewed by the competent authority on the recommendations of the concerned Review Committee. (c) The composition and functions of the Review Committees and the procedure to be followed by them shall be as specified in the Schedule annexed to these rules. (d) The period of suspension under sub-rule (1) may, on the recommendations of the concerned Review Committee, be W.P(C)No.23806 of 2009 -:15:- extended for a further period not exceeding one hundred and eighty days at a time: Provided that where no order has been passed under this clause, the order of suspension shall stand revoked with effect from the date of expiry of the order being reviewed. (9) Every order of suspension and every order of revocation shall be made, as nearly as practicable, in the appropriate standard form appended to these rules.” It may be seen that sub-rule (1) of Rule 3 has three provisos: (1) dealing with the conflicting stands likely to be taken by the State Government and the Central Government; (2) dealing with the mandatory requirement of initiation of disciplinary action before the expiry of 90 days from the date of suspension; and (3) dealing with a provision enabling the Central Government to extend the period of suspension beyond 90 days even without initiating the disciplinary proceedings. 6. Disciplinary proceedings can be said to be initiated W.P(C)No.23806 of 2009 -:16:- only with the service of memo of charges. That is a well settled principle and there is no serious dispute on that. In the instant case the memo of charges has not been served on the petitioner within 90 days and hence it is the undisputed factual and legal position that disciplinary proceedings have not been initiated against the petitioner within 90 days of the suspension. 7. Learned Additional Director General of Prosecution Sri.Raveendranath contends that the rule enables the Government to suspend an employee having regard to the circumstances of any case and it is not necessary that suspension can be made only having regard to the nature of the charges. There is no quarrel with that position, suspension pending enquiry, suspension in contemplation of disciplinary proceedings and suspension having regard to the circumstances of any case is permissible under the rules. Only thing is that the authority suspending the member of the W.P(C)No.23806 of 2009 -:17:- service should be satisfied that it is either necessary or desirable to place the member under suspension. Needless to say that the satisfaction must have regard to the nature and gravity of the indiscipline or misconduct alleged against the member of the service. The contention of the State is that when a member of the service is suspended having regard to the circumstances of any case it is not necessary that the memo of charges is served initiating the disciplinary proceedings before the expiry of the 90 days and the suspension can be continued provided the suspension is reviewed in exercise of the power under sub-rule (8)(b) read with sub-rule 8(d) and based on the recommendation of the Review Committee the suspension can be continued. Yet another vehement contention is that in any case a suspension made having regard to the circumstances of a case is valid for a period of 90 days in view of the provision under sub-rule (8) (a). W.P(C)No.23806 of 2009 -:18:- 8. We are afraid both the contentions cannot be appreciated. While interpreting the All India Services (Discipline and Appeal) Rules, 1969 it has to be borne in mind that the rule applies only to members of the All India Service as defined in Section 2 of the All India Services Act, 1951. All India Services originally conceived of only Indian Administrative Service and Indian Police Service. Thereafter by amendment introduced in the year 1963 certain other All India Services were also included. Suffice to specially note that the officers dealt with under the rules are not ordinary government servants, but members of All India Service, entrusted with highly responsible offices. Suspension of such officers should be resorted to only in situations warranting such grave action. That is why the Rule has provided for detailed procedure, both in the matter of suspension for the initial period of 90 days and continuance thereof, with sufficient safeguards in order to avoid arbitrariness. The W.P(C)No.23806 of 2009 -:19:- second proviso to Rule 3(1) of the Rules makes it mandatory that a member of service suspended in contemplation of disciplinary proceedings has to be served with memo of charges, initiating disciplinary proceedings before the expiry of the period of 90 days from the date of the suspension. The requirement is not directory as contended by the learned Additional Director General of Prosecution. Since the consequence of the requirement is provided in the Rule itself, the compliance is mandatory. A provision in a rule, no doubt, can be directory in nature; however, when the grave consequence of non-compliance is prescribed in the rule itself, the procedure becomes mandatory. Thus in the instant case the second proviso to Rule 3(1) mandates that unless the disciplinary proceedings are initiated within 90 days of the date of suspension, the suspension becomes invalid. The other contention is that the said rule is subject to the operation of sub-rule 8(a) of Rule 3(1). That contention also W.P(C)No.23806 of 2009 -:20:- cannot be appreciated. The very opening words of sub-rule 8 (a) would give a definite indication otherwise. It states that “an order of suspension made under this rule which has not been extended shall be valid for a period not exceeding ninety days ...”. 'Suspension under this rule' is suspension under Rule 3. Suspension in contemplation of disciplinary proceedings under Rule 3(1) becomes invalid unless disciplinary proceedings are initiated by serving memo of charges within 90 days of the date of suspension or unless the Central Government after considering special circumstances recorded in writing allows the continuance of suspension beyond the period of 90 days without initiating disciplinary proceedings. In the statement filed by the learned Assistant Solicitor General it is stated that the Central Government has not allowed the continuance of the suspension beyond 90 days. The operation of sub-rule (8) is subject to the validity of the order of suspension in terms of the second or third W.P(C)No.23806 of 2009 -:21:- proviso to sub-rule (1) of Rule 3. A suspension which has been rendered invalid on the operation of the second proviso of Rule 3(1) cannot be sustained or resurrected under sub- rule (8). That would certainly lead to a casual, and if not abusive, exercise of power whereby without any safeguards an officer belonging to an All India Service can be placed under suspension for 90 days. Law does not even dream of such a dis-honourable treatment to a member belonging to All India Service. 9. The third contention of the learned Additional Director General of Prosecutions is that in any case the suspension under Rule 3(1) in contemplation of the proceedings can be continued under sub-rule 8(b) read with sub-rule 8(d) in case the Review Committee recommends the continuation of the suspension and the said recommendation is accepted by the State Government and orders are passed on the recommendation. That contention also cannot be W.P(C)No.23806 of 2009 -:22:- appreciated. No doubt, under sub-rule 8(b) the order of suspension is liable to be reviewed by the competent authority on the recommendation of the concerned Review Committee and the suspension can thus be extended for a further period not exceeding 180 days at a time. But it has to be specifically noted that the suspension that can be extended on the basis of recommendation is the suspension made under sub-rule (1) of Rule 3. Sub-rule (8)(d) of Rule 3 makes it unambiguously clear - “the period of suspension under sub-rule (1) may, on the recommendations of the concerned Review Committee, be extended for a further period not exceeding one hundred and eighty days at a time”. The suspension under sub-rule (1) in contemplation of disciplinary proceedings becomes invalid after the expiry of 90 days in case disciplinary proceedings are not initiated within 90 days from the date of suspension and if not extended by the Central Government under third proviso to sub-rule (1) of Rule 3. Sub-rule (7)(b) and sub-rule (8)(d) W.P(C)No.23806 of 2009 -:23:- of Rule 3 are subject to the operation of the second and third provisos of sub-rule (1) of Rule 3. A suspension which has otherwise become invalid by the operation of the second proviso to Rule 3(1) cannot be reviewed since there remains nothing to be reviewed, since the suspension has become invalid. Therefore, there is no basis for the contention on plurality of authorities. 10. Learned Senior Counsel for the writ petitioner submits that since the suspension has become invalid the petitioner is entitled to reinstatement in service in the same post. We are afraid that contention has absolutely no basis. Reinstatement is to the service and not to the post. It is for the Government to deploy a member of All India Service in any post. We are informed that the writ petitioner has already been reinstated in service. In the above circumstances the writ petition is allowed declaring that Annexure 7 (Ext.P1) order of suspension is W.P(C)No.23806 of 2009 -:24:- invalid and therefore, it has no effect or impact on the petitioner in the eye of law. Petitioner is entitled to continuity of service for all purposes with effect from the date of suspension to the date of reinstatement. In that view of the matter it is not necessary to consider various other contentions