IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 WA.No. 315 of 2011 -------------------- AGAINST THE JUDGEMENT IN WPC.29738/2007 Dated 28/09/2010 .................... APPELLANTS/RESPONDENTS 1 AND 2 IN W.P.(C): ------------------------------------------------------ 1. STATE OF KERALA REP.BY THE SECRETARY, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE DIRECTOR, DIRECTORATE OF TREASURIES, THIRUVANANTHAPURAM-1, PIN 695001. BY SENIOR GOVERNMENT PLEADER, SRI.BENNY GERVACIS RESPONDENT/PETITIONER IN WP(C): ----------------------------------------- K.V.VASANTHY, ASSISTANT TREASURY OFFICER, DISTRICT TREASURY OFFICE, KOZHIKODE, PIN 673020. BY DR. K.P. SATHEESAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & Antony Dominic, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 315 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of March, 2011 JUDGMENT J.Chelameswar, C.J. Aggrieved by a judgment dated 28.09.2010 in W.P. (C) No.29738 of 2010, the respondent State preferred the appeal. 2. The respondent herein was initially recruited into the service of the State of Kerala as a Junior Superintendent, a post borne in the Kerala Treasury Subordinate Service. She was posted to the Sub Treasury, Kozhikode. Subsequently, she was kept under suspension in connection with some allegations of defalcation of public money. A Vigilance case No.VC2/05 is registered against the respondent in this regard. No final report, it appears, has yet been filed in the said case. In view of the long pendency of the vigilance case, the respondent approached this Court on more than one occasion. The further details may not be necessary for the present purpose. The net result of all the process is that the respondent, is not only reinstated into WA No. 315 of 2011 -:2:- service but also subsequently promoted to the next higher post, i.e., the Sub Treasury Officer with effect from 04.06.2005. The respondent's probation in the said post is not yet declared in view of the pendency of the abovementioned vigilance case. Therefore, the instant writ petition, in substance praying for a direction to the appellant herein to declare the probation of the respondent and also conclude the disciplinary proceedings against the respondent as expeditiously as possible etc. 3. By the judgment under appeal a learned Judge of this Court disposed of the writ petition holding as follows: “3. Insofar as the memo of charges was issued on 4.11.2005, I do not think that there is any justification for the respondents to prolong the disciplinary proceedings. Therefore, there would be a direction to the respondents to complete the disciplinary proceedings initiated by issuing Ext.P7 as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. If the disciplinary proceedings are not completed within the said time, the petitioner's probation shall be declared subject to the disciplinary proceedings and she shall also be given all service benefits provisionally subject to the result of the disciplinary proceedings.” Hence the appeal by the State. 4. The only submission made by the learned WA No. 315 of 2011 -:3:- Government Pleader appearing for the appellant is that the direction such as the one given in the judgment under appeal is contrary to the existing G.O.(P) No.65/92/Vig. dated 12.05.1992. At paragraph 13(1) of the said Government Order it was laid down as follows: “13.Departmental Action.-(1) When an investigation/enquiry against a Government Servant is pending in the Directorate of Vigilance Investigation, the Head of Department/Office concerned shall not initiate a parallel departmental enquiry on the same allegations but shall wait for the completion of the investigation/enquiry by the Director of Vigilance Investigation.” 5. Therefore the appellants are barred from conducting the departmental enquiry during the pendency of the vigilance case. As already noticed, the abovementioned Government Order was issued in the year 1992, at which point of time the law with regard to the legality of the departmental proceedings against a government servant during the pendency of a criminal case on the basis of the same set of facts was uncertain. However, subsequently the Supreme Court clarified the legal position in Capt.M.Paul Antony v. Bharat Gold Mines Ltd. and another [(1999) 3 SCC 679] stating that the pendency WA No. 315 of 2011 -:4:- of a criminal case is not a bar for a departmental enquiry, barring some exceptional cases. 6. In the circumstances, the State, in our opinion, is not justified in preferring this appeal. Obviously, the appeal is preferred in ignorance of the legal position of the subject. We see no merit in the writ appeal and the same is dismissed. However, the learned Government Pleader prayed that in view of the judgment, some reasonable time be granted for concluding the departmental enquiry against the respondent. Heard Dr.K.P.Satheesan, the learned counsel appearing for the respondent. In the circumstances, we are of the opinion that the departmental enquiry against the respondent be concluded within three months from today. J.Chelameswar, Chief Justice. Antony Dominic, Judge. ttb WA No. 315 of 2011 -:5:-