IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WP(C).No. 21803 of 2009(U) ------------------------------------- PETITIONER(S): ------------------------- L. DHARMAPALAN, SECRETARY (UNDER SUSPENSION) KAZHAKUTTOM, GRAMA PANCHAYATH, KAZHAKUTTOM, THIRUVANANTHAPURAM 695 582. BY ADVS.MR.B.RAGUNATHAN MR.V.V.MATHEW MR.R.SRINATH MR.G.BAIJU MR.J.VIMAL RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP. BY PRINCIPAL SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -01. 2. DIRECTOR OF PANCHAYATS, PUBLIC OFFICE BUILDINGS, THIRUVANANTHAPURAM -33. 3. KAZHAKUTTOM, GRAMA PANCHAYATH, REPRESENTED BY SECRETARY, KAZHAKUTTOM GRAMA PANCHAYATH, KAZHAKUTTOM, THIRUVANANTHAPURAM -82. BY SR. GOVT. PLEADER P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 21803 OF 2009 -------------------------- Dated this the 5th day of August, 2009 J U D G M E N T Heard Sri. R.Srinath, the learned counsel appearing for the petitioner and Sri. P.Nandakumar the learned Government Pleader appearing for respondents 1 and 2. Since the orders challenged in this writ petition are not orders passed by the third respondent Panchayat and in the nature of the order that I propose to pass, I do not deem it necessary to issue notice to or hear the third respondent. 2. The petitioner, who is the Secretary of the Kazhakuttom Grama Panchayat, was placed under suspension by Ext.P1 order dated 29.9.2008 passed by the Director of Panchayats. Ext.P1 states that the petitioner had issued building permits in violation of the provisions contained in the Kerala Municipality Building Rules, 1999. According to the petitioner, after the building permits were issued based on the reports submitted by the Building Inspector, on a complaint received by the Government, the Government by Ext.P2 letter dated 28.8.2008 directed him to issue orders stopping the WPC No.21803/09 2 construction works and also to cancel the permits. He submits that within one month thereafter, Ext.P1 order was passed placing him under suspension. 3. The petitioner challenged Ext.P1 order in W.P.(C) No.31835 of 2008. When the said writ petition came up for hearing on 30.10.2008, this Court disposed of the same by Ext.P4 judgment holding that an appeal lies from Ext.P1 to the next higher authority namely the Government and as the petitioner has already moved the Government, he should pursue the said remedy. The Government was directed to consider the representation filed by the petitioner as an appeal and pass orders thereon after affording him an opportunity of being heard. Thereafter, the petitioner filed Ext.P5 appeal. The Government heard the petitioner on 19.12.2008 and thereafter sent Ext.P7 letter dated 13.1.2009 stating that as the issue which led to his suspension is still existing, the Government is of the view that there is no need to revoke the decision taken by the Director of Panchayats. 4. Rule 22 of the Kerala Civil Services (Classification, Control and Appeals) Rules 1960, confers on the petitioner the right to file an WPC No.21803/09 3 appeal challenging Ext.P1. Rule 31 of the said rules stipulates that in the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of Rule 10 and having regard to the circumstances of the case, the order of suspension is justified or not. Rule 31 in my opinion confers on the appellate authority the power to decide whether on the facts available and established, the order of suspension is warranted. A reading of Ext.P7 indicates that apart from merely stating that the issues which led to his suspension are still existing, the Government had not considered whether on the facts which led to the issue of the permits, the suspension of the petitioner was warranted. I am therefore persuaded to hold that the Government have failed to exercise the jurisdiction vested in them under Rule 31 of the Rules. In the result, I allow this writ petition, quash Ext.P7 and direct the Government to reconsider Ext.P5 appeal and pass orders thereon after affording the petitioner an opportunity of being heard. Final orders in the matter shall be passed within six weeks from the date on which the petitioner produces a certified copy of this judgment before the Secretary to Government, Local Self WPC No.21803/09 4 Government Department. It will be open to the petitioner to supplement Ext.P5 by filing a written brief. The Government shall hear the third respondent also while passing orders directed as above. The writ petition is disposed of as above. No costs. P.N.RAVINDRAN, JUDGE vps