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S. Gopalan Nair Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 157 of 1967
Judge
Reported inAIR1970Ker70; (1970)ILLJ110Ker
ActsKerala Civil Services (Classification, Control and Appeal) Rules, 1960 - Rule 10(1); Constitution of India - Article 309
AppellantS. Gopalan Nair
RespondentState of Kerala
Appellant Advocate T.N. Subramania Iyer, Adv.
Respondent AdvocateGovt. Pleader
DispositionAppeal partly allowed
Cases ReferredBalvantrai Ratilal Patel v. State of Maharashtra
Excerpt:
.....order survived after final termination of criminal proceeding with acquittal of accused - government's refusal to reinstate him in service followed by initiation of disciplinary proceedings amounts to suspension from date on which said cause of action was communicated to him - held, appellant deemed to be under suspension with effect from 29.11.1962 pending disciplinary enquiry. - - and it recommended to the government that the appellant be compulsorily retired from service. disciplinary enquiry was contemplated only after the prosecution failed; it is better that we quote the following passage from the judgment of the supreme court which contains the contention advanced by the appellant in that case and the reasons stated by the court for rejecting the same;.....this order is not part of the records in this case; but it was read over to us by the learned government pleader who appeared for the respondent. it is clear therefrom that the suspenrion was made pending investigation into certain irregularities mentioned in the said order. there is no dispute that the suspension order was passed in exercise of the government's power under r. 10 of the kerala civil services (classification, control and appeal) rules, 1960. sub-rule (1) alone is relevant, and it reads as follows: --10. suspension:-- (1) the appointing authority or any authority to which it is subordinate or any oth.er authority empowered by the government in that behalf may at any time place a government servant under suspension,(a) where a disciplinary proceeding against.....
Judgment:

Isaac, J.

1. This is an appeal by the petitioner in O. P. No. 2505 of 1965 from the judgment of a learned Single Judge of this Court.

2. The appellant, while he was working as a Block Development Officer at Mavelikara, was placed under suspension by an order of the State Government dated 20-11-1957 pending investigation into two cases of misappropriation of money detected in his office. The case was investigated by the police, and the appellant and his Head Clerk were prosecuted for misappropriation of Government money. Both of them were convicted by the Special Judge who tried them; but the appellant's conviction was set aside by this Court in appeal by judgment dated 16-8-1960. Thereafter the appellant moved the Government for reinstating him in service? but the Government did not accede to his request. On the other hand, they started proceeding against the appellant under the Kerala Civil Services (Disciplinary Proceedings Tribunal) Rules, 1960 on charges of misappropriation of money and negligence of duty.

Ext. P-1 dated 29-1-1962 is the memo of charges served on the appellant. The Tribunal in its report, Ext. P-5 dated 18th November 1964, found that the appellant was not guilty of misappropriation; but he was guilty of gross negligence; and it recommended to the Government that the appellant be compulsorily retired from service. The report was duly considered by the Government which accepted the finding of the Tribunal, The Government by their proceedings, Ext. P-9 dated 27th July 1965, ordered that the appellant be compulsorily retired from service with effect from the date on which he was placed under suspension. The Original Petition was filed to quash the aforesaid order of the Government. The appellant also claimed that, in any event, he could be removed from service only from the date of Ext. P-9, and not from 20-11-1957 on which date he was actually placed under suspension. This claim was put forward on the ground that the order of suspension ceased to exist with the termination of the criminal proceeding, which ended in the acquittal of the appellant by the High Court, and that thereafter there was no order suspending the petitioner from service. The learned Single Judge rejected both the contentions and dismissed the Original Petition.

3. The appellant's learned counsel did not contend before us that Ext. P-9 should be quashed as a whole. He only contended that the direction in Ext. P-9 that the removal from service would take place with retrospective effect from the date of the appellant's suspension was illegal and should be quashed. Dealing with this contention, the learned Single Judge stated as follows:--

'I do not think it is possible to accept the contention that there has been no order of suspension. Factually, the order of suspension passed on 20-11-1957 continued to be in force. Whether there was justification for keeping the petitioner under suspension after 15-8-1960 is a matter prima facie for the State Government to decide.'

It appears to us that the question that actually arises for consideration was not properly placed before the learned Judge. The question for decision is not whether there is any justification to continue the order of suspension after the acquittal of the appellant, but whether it survived after the final termination of the criminal proceeding with the acquittal of the accused. This depends to a large extent in what context the suspension was made, and what the order of suspension actually said. Unfortunately, this order is not part of the records in this case; but it was read over to us by the learned Government Pleader who appeared for the respondent. It is clear therefrom that the suspenrion was made pending investigation into certain irregularities mentioned in the said order. There is no dispute that the suspension order was passed in exercise of the Government's power under R. 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. Sub-rule (1) alone is relevant, and it reads as follows: --

10. Suspension:-- (1) The appointing authority or any authority to which it is subordinate or any oth.er authority empowered by the Government in that behalf may at any time place a Government servant under suspension,

(a) where a disciplinary proceeding against him is contemplated or is pending: or

(b) where a case against him in respect of any criminal offence is under investigation or trial; or

(c) where final orders are pending in the disciplinary proceeding, 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.'

A Government servant can be suspend-. ed only under any one or all of the three circumstances mentioned in the above Sub-rule. The suspension of the appellant does not admittedly fall under Clause (c) of Rule 10(1). Suspension under Clause (a) is in contemplation of a disciplinary proceeding, or pending a disciplinary proceeding. It would cease to exist, when, the contemplated proceeding is abandoned, or when the proceeding is completed, as the case may be. Suspension under Clause (b) is when a case against a Government servant in respect of a criminal offence is under investigation or trial. In such a case, the suspension would cease to exist, when the investigation is finally abandoned or the criminal proceeding is concluded. Suspension is an interlocutory action in a penal proceeding pending against a Government servant; and an order of suspension either ceases to exist or merges with the final order in that proceeding.

If the appellant's suspension was made under Clause (a) of Rule 10(1), it would remain in force until the disciplinary proceeding against him was finally disposed of. In this case it was finally disposed of by Ext. P-9 dated 27-7-1965. But if the appellant's suspension was under Clause (b), it would remain in force until the final disposal of the criminal prosecution against him; and it was finally disposed by the acquittal of the appellant on 16-8-1960. If the suspension was both under Clause (a) and Clause (b), it would remain in force until both the proceedings, namely, the disciplinary proceeding and the criminal proceeding are finally terminated. We have, therefore, to consider whether the suspension was under Clause (a) or Clause (b) or under both the Clauses. The order of suspension does not say that it was being made in contemplation, of any disciplinary proceeding against the appellant. The X-Branch of the Police started investigating a crime against the appellant for misappropriation of Government money, either immediately before his suspension or immediately after that; and as already stated, the police instituted a prosecution against him before the Special Judge as a result of that investigation. If the prosecution ended finally in the conviction of the appellant, there would have been no question of initiating any disciplinary proceeding against him. The necessary disciplinary punishment would have been awarded to him on the basis of the finding of the court in the criminal proceeding. It is not, therefore possible to say that the suspension of the appellant was in contemplation of any disciplinary enquiry. Disciplinary enquiry was contemplated only after the prosecution failed; and it was more than four years after the appellant was suspended. The order of suspension does not, therefore, fall under Clause (a) of Rule 10(1); and it falls only under Clause (b). Hence it would end with the conclusion of the criminal prosecution instituted against the appellant., The result is that the appellant's suspension ceases to exist on 16-8-1960, when this court acquitted him of the offences for which he was tried.

4. The learned Government Pleader contended that the order of suspension continued in force until the disciplinary enquiry is concluded, unless the suspension is cancelled earlier. In support of that contention, he relied on a decision of the Supreme Court in Balvantrai Ratilal Patel v. State of Maharashtra, (1968) 2 Lab LJ 700 = (AIR 1968 SC 800). In that case the appellant who was a medical officer in the service of the State of Bombay was 'suspended pending further orders', at a time when an investigation by the Anti-corruption Branch of the Police into an offence of receiving illegal gratification was pending against him. The police instituted a prosecution; but it finally ended in the acquittal of the appellant. Then a disciplinary enquiry was started against him, as a result of which he was dismissed from service. No fresh order of suspension was passed against the appellant after the acquittal of the criminal charge. It was contended that the order of suspension came to an end with the acquittal of the appellant, and that the appellant should be deemed to be on duty until he was dismissed from service. This contention was repelled by the Supreme Court. the learned Government Pleader submitted that the case before us is exactly similar to one decided by the Supreme Court, and that the contention of the appellant's learned counsel in this case that the appellant's suspension came to an end with his acquittal cannot be sustained. It is better that we quote the following passage from the judgment of the Supreme Court which contains the contention advanced by the appellant in that case and the reasons stated by the Court for rejecting the same;

'It was contended on behalf of the appellant that he was suspended pending an inquiry into the charge for the criminal offence alleged to have been committed by him and as the proceedings in connexion with that charge ended with the acquittal of the appellant by the High Court on 15 February 1952, the order of suspension must be deemed to have automatically come to an end on that date. We see no justification for accepting this argument. The order of suspension dated 13 February 1950 recites that the appellant should be suspended with immediate effect 'pending further order'. It is clear-therefore that the order of suspension could not be automatically terminated but it could have only been terminated by another order of the Government. Until therefore a further order of the State Government was made terminating the suspension; the appellant had no right to be reinstated to service.'

This passage shows that the suspension, would automatically come to an end with the termination of the criminal proceeding, in the absence of a provision to the contrary in the order of suspension. In the case before the Supreme Court, the-suspension was 'pending further orders', and the Supreme Court held that the suspension did not terminate until the Government passed further orders. The above decision does not, therefore, help the learned Government Pleader. It only lends support to what we have already stated.

5. The next question for consideration is whether on the facts and in the circumstances of the case, the appellant is to be deemed to be on duty from 16-8-1960. It is admitted that the Government did not thereafter pass any order suspending the appellant from service. But after the appellant was acquitted by this Court he applied to the Government for reinstatement in service. The Government refused to do so; but they instituted the disciplinary proceeding against him as per Ext. P-1 dated 29-11-1962. The learned counsel for the appellant contended that as there was no fresh order of suspension the appellant should be deemed to be on duty, as he was willing to work and it was not due to any fault on his part 'that work was not allotted to him. We are unable to accede to this contention. We agree with the learned counsel that the Government was bound to reinstate the appellant in service when his suspension ended with his acquittal by this Court, unless they again suspended him on some valid ground. But in our opinion the Government's refusal to reinstate him in service followed by initiation of disciplinary proceeding amounts to suspension' from the date on which the said cause of action was communicated to him. There is nothing to show when the appellant was informed that his request for reinstatement could not be allowed and that a disciplinary enquiry was contemplated against him. The disciplinary enquiry was started against him as per Ext. P-1 on 29-11-1962, and this gives the appellant notice of the Government's refusal to reinstate him in service pending the disciplinary enquiry, though he was acquitted in the criminal prosecution. We, therefore, hold that the appellant would be deemed to be under suspension with effect from 29-11-1962 pending the disciplinary enquiry.

6. In the result, we hold that the appellant would stand removed from service as per Ext. P-9 with effect from 29-11-1962, or from the date of his retirement on superannuation, if earlier. The judgment appealed from is modified to the above extent; and the appeal is dismissed in other respects. In the circumstances of the case, we make no order as to costs. Appeal partly allowed.


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