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State of Kerala Vs. K.C. George - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1984)ILLJ512Ker
AppellantState of Kerala
RespondentK.C. George
Cases Referred and D.S. Nakara v. Union of India
Excerpt:
.....observe the principles of natural justice, that ext. p1 is an extremely arbitrary and unreasonable action by the government and is clearly violative of the fundamental rights guaranteed under article 14 of the constitution of india, that the government is in the position of the active litigant in arbitration proceedings, that the petitioner had been discharging the functions conscientiously with honesty and integrity and was not amenable to influence, and that there had been no allegation of any misconduct on his part and the order passed without any positive materials in support of allegations of misconduct is invalid and illegal. 'if the disciplinary authority takes note of such allegations and is of opinion after some preliminary enquiries that the circumstances of the case justify..........any positive materials in support of allegations of misconduct is invalid and illegal.5. the state government in the counter affidavit contended that almost all the awards passed by respondent were found to be against acts and law and misconduct was apparent on the face of several of his awards and stated: the respondent was placed under suspension pending enquiry as it was considered necessary to do so in the interest of an impartial enquiry. his continuance in the post which he held or of any other chief engineer in the department would enable him to influence the enquiry and tamper with the evidence which may go against him. this was the prime consideration which compelled the government to place the respondent under suspension immediately. an effective enquiry into the conduct.....
Judgment:

Fathima Beevi, J.

1. The appeal is directed against the judgment in O.P. No. 7200/1983 quashing Ext. P1 order dated 16th August, 1983 by the State Government placing the 1st respondent-petitioner, the Chief Engineer (Arbitration) under suspension, in exercise of the power under Rule 10 of Kerala Civil Services (Classification, Control and Appeal) Rules, 1960.

2. The 1st respondent entered Government service in the Public Works Department on 4th July, 1951 and is to retire in July 1984. He took charge as Chief Engineer (Arbitration) on 4th March, 1983. In his capacity as Chief Engineer (Arbitration), the 1st respondent had to discharge quasi-judicial functions of adjudicating on claims in arbitration cases between the Government and contractors and to pass awards. The aggrieved party could challenge the award where there is misconduct on the part of arbitrator or on the ground that the award has been improperly procured or is otherwise invalid.

3. The 1st respondent in his capacity as Chief Engineer (Arbitration) passed an Award No. 61/82 on 29th April, 1983 for Rs. 2,32,523/-. The Law Officer, PWD, who is also an Additional Secretary to Law Department in furnishing his legal opinion on this award by his letter dated 13th July, 1983 stated that the award is liable to be set aside, enumerating the grounds on which the award could be challenged in court. On perusal of the letter the Secretary to Government, Water and Power Department opined that seldom can an award which is a non-speaking one be successfully challenged; that the excessive award is not passed on justice but other considerations which could include corrupt motives on the part of the arbitrator. He therefore suggested by his note dated 5th August, 1983 that the Chief Engineer (Arbitration) may be immediately shifted before further damages are done and that Vigilance Enquiry may be ordered about the acquisition of assets by the officer also. On 6th August, 1983 the Secretary to Government, PWD., agreed to the action suggested. When the matter was placed before the Chief Secretary on 8th August, 1983, the Chief Secretary felt that unless strong action taken as a deterrent, this kind of reckless administration will continue. He recommended that the arbitrator may be placed under suspension pending detailed investigation and enquiry. The recommendation was accepted and the Government on 16th August, 1983 passed the impugned order of suspension pointing out therein that serious official irregularities and grave misconduct on the part of the 1st respondent had been brought to the notice of the Government, and that the Government considers that there is prima facie case against the officer which calls for a detailed enquiry into the matter, and the officer be placed under suspension with immediate effect.

4. The 1st respondent challenged the proceeding by filing the original petition on 19th August, 1981, urging that the real ground for placing him under suspension is to remove him from the post of Arbitrator and to bring a person of their choice as his successor. It was also urged that Ext. P1 order was passed without any application of mind to the relevant facts and that it is vitiated by a failure to observe the principles of natural justice, that Ext. P1 is an extremely arbitrary and unreasonable action by the Government and is clearly violative of the fundamental rights guaranteed under Article 14 of the Constitution of India, that the Government is in the position of the active litigant in arbitration proceedings, that the petitioner had been discharging the functions conscientiously with honesty and integrity and was not amenable to influence, and that there had been no allegation of any misconduct on his part and the order passed without any positive materials in support of allegations of misconduct is invalid and illegal.

5. The State Government in the counter affidavit contended that almost all the awards passed by respondent were found to be against acts and law and misconduct was apparent on the face of several of his awards and stated: The respondent was placed under suspension pending enquiry as it was considered necessary to do so in the interest of an impartial enquiry. His continuance in the post which he held or of any other Chief Engineer in the Department would enable him to influence the enquiry and tamper with the evidence which may go against him. This was the prime consideration which compelled the Government to place the respondent under suspension immediately. An effective enquiry into the conduct of the respondent as Arbitrator could only be conducted after placing the respondent under suspension. To allow him to continue or to shift him to an equally high and official position in the department would have resulted in vitiating the enquiry as the respondent would have been in a position to try to influence the enquiry or tamper the material evidence relating to the case. It was pointed out that the suspension of the respondent pending enquiry is not a punishment of any sort and it was only a basic step which the Government had to take in the interest of justice in the circumstances of the case.

6. The learned Single Judge perused the file and noticed that the letter dated 13th July, 1983 advising the Government on the award was one pointing out legal misconduct for further action in the matter of arbitration and the legal misconduct alleged against the arbitrator does not mean that he is alleged to be guilty of a corrupt motive. The learned Judge considered the scope of Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules, in the light of the decisions reported in N. Subramonian v. State of Kerala 1973-II L.L.J. 156, Veeramani v. State of Kerala 1974 KLT 630, Govt. of India v. Tarak Nath 1971-I L.L.J. 299. In paragraph 13 of the judgment the learned judge summarised the findings on review of the facts thus:

13. Here, it is apparent from the Chief Secretary's note that he was only giving expression to the displeasure felt in respect of the act of the officer concerned in passing the Award and he. thought that the mode of giving such expression should have a deterrent effect on others in service. These are not contemplated and is really a mala fide exercise of power, Mala fide exercise of power does not mean, as has been said by this Court a number of times, any dishonest motive. If the power is exercised not in the circumstances which warrant the exercise of power as per the relevant statute, that might amount to a mala fide exercise of power.... Bona fide cannot simply mean that they are not making a profit out of their office or acting in it from private spite, nor is bona fide a short way of saying that the authority has acted within the ambit of its powers and therefore not contrary to law. It must mean that they are giving their minds to the comprehension and their wills to the discharge of their duty towards the public, whose money and local business they administer. It might be on account of an absolute ignorance of the scope and ambit of Rule 10 that this order of suspension had been passed and not for merely to spite the petitioner. But all the same it will be a mala fide action.

7. The learned judge after referring to a decision in Ramankutty v. State of Kerala 1972-II L.L.J. 509, stated thus:

There may be cases where such suspension may be justified also to avoid misuse of the authority of his office, misuse which may result in obstruction to the proper trial of the charges against him. The situation could be met by the officer being kept under suspension or in some cases merely by transferring the officer away from the scene, the choice necessarily depending upon the exigencies of the situation. I am just referring to this only to show that none of these considerations have been kept in mind by the authorities concerned in suspending the petitioner. I am making it clear that I am not here exonerating the petitioner from charge of misconduct as such. If on the basis of the vigilance enquiry against him there are sufficient materials on which he could be placed under, suspension, he can be placed under suspension. But the power of suspension should not be on the basis of the whims and fancies of any officer, however high placed he might be. In this view I allow the Original Petition and direct the reinstatement of the petitioner forthwith. In the circumstances of the case, I think this is a fit case where the Government should be directed to pay the costs of the petitioner, including Advocate's Fee Rs. 500/-.

8. The judgment of learned judge was rendered on 13th September, 1983. The respondent was thereafter reinstated in service and posted as Chief Engineer on special duty World Bank Assistance and had joined in the said post on 20th September, 1983. The State however being aggrieved by the judgment quashing Ext. P1 order preferred the appeal on 16th November, 1983 and moved a petition in C.M.P.No. 30831/83 dated 17th November, 1983 to restore the suspension order. The C.M.P. was dismissed on 28th November 1983 after, hearing both sides.

9. The main ground urged in the appeal by the State is that the learned single judge had exceeded jurisdiction under Article 226 in interfering with Ext. P1 order of suspension. The learned Advocate General appearing for the State contended that the suspension order was justified from the materials available to the Government and the learned judge had gone beyond his jurisdiction in probing into the sufficiency of material warranting the suspension. According to the learned Advocate General, Ext. P1 order of suspension is a prelude to a detailed enquiry into the misconduct levelled against the respondent. It is stated that the 1st respondent functioning as arbitrator had been consistently allowing imaginary claims, ignoring relevant provisions of the agreement between the parties, awarding fantastic amounts in excess of the probable amounts of contracts and beyond the amounts covered by the contracts and the awards passed by the respondent are all under challenge before appropriate courts, It is maintained that the power of suspension has been exercised by the Government for a legitimate purpose to achieve the legitimate object of an impartial enquiry into the grave misconduct and there is no demonstrable ground to infer mala fides in the action intended to promote public justice and to inspire confidence in the integrity and efficiency of the administration. The Supreme Court in Khem Chand v. Union of India 1963-I L.L.J. 665, has pointed out that suspension of a Government servant pending an enquiry is a necessary part of the procedure for taking disciplinary action against him. In Government of India v. Tarak Nath Gosh (supra) the Supreme Court again said that when serious allegations of misconduct are imputed against a member of a service normally it would not be desirable to allow him to continue in the post where he was functioning. It was observed therein: 'If the disciplinary authority takes note of such allegations and is of opinion after some preliminary enquiries that the circumstances of the case justify further investigation to be made before definite charges can be framed, it would not be improper to remove the officer concerned from the sphere of his activity inasmuch as it may be necessary to find out facts from people working under him or look into papers which are in his custody and it would be embarrassing and inopportune both for the officer concerned as well as to those whose duty it was to make the enquiry to do so while the officer was present at the spot.' Referring to these decisions it was pointed out that the language used in Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules 1960 is not the same as that employed in All India Services (Discipline and Appeal) Rules 1955 or Rule 7(1) of the Kerala Police Departmental Enquiry (Punishment and Appeal) Rules considered in the decisions noticed by the learned judge. It is argued that where a disciplinary proceeding is contemplated against a Government servant, the appointing authority is empowered under Rule 10 to place him under suspension and this power is absolute and judicial review is permissible only if the action is shown to be vitiated by mala fides. In this case the allegation of mala fides is vague and not borne out by records it is said.

10. There is no controversy that Ext. P1 order of suspension was gassed by the Government in exercise of the statutory power conferred under Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. This Rule states that the appointing authority may at any time place a Government servant under suspension where a disciplinary proceeding against him is contemplated. It is fairly settled that the executive has no absolute power in administrative matters. The constitution enshrines and guarantees the rule of law and Article 226 is designed to ensure that each and every authority in the State including the Government acts bona fide and within the limits of its power. The primary purpose of administrative law is the imposition of the checks on the powers of Government or its officers, so that they may not either abuse their powers or go out of their legal bounds. Article 14 strikes at arbitrariness in state action and requires that the State action must be based on valid and relevant principles applicable alike to all similarly situated and it must not be guided on extraneous or irrelevant considerations because an action that is arbitrary must involve negation of equality. This position appears to be settled by the decisions of Supreme Court in Partap Singh v. State of Punjab : (1966)ILLJ458SC , E.P. Royappa v. State of Tamil Nadu 1974-I L.L.J. 172, Maneka Gandhi v. Union of India : [1978]2SCR621 , Ramanna v. I.A. Authority of India 1979-II L.L.J. 217, Air India v. Nergesh Meera 1981-II L.L.J. 314 and D.S. Nakara v. Union of India 1983-I L.L.J. 104.

11. It is the exigency of the conditions of service which requires or calls for an order of suspension and there can be no difference in regard to this matter as between a member of the Indian Administrative Service or State Service. The Government is entitled to place an officer under suspension even before definite charges have been communicated, after preliminary investigation has been made into the conduct of the officer concerned following allegations of corruption or malpractices levelled against him. Rule 10 empowers the appointing authority to place a member of the service under suspension when disciplinary action is under contemplation. This rule read with Rule 15 makes it clear that disciplinary proceedings is contemplated only when the authority concerned is satisfied that there is prima facie case for taking action. It is on the basis of complaint received or on consideration of the report of investigation or for other reasons the authority 1s to satisfy that prima facie case exists. Therefore either there should be a complaint alleging misconduct or report of investigation or other material for exercising the power of suspension in contemplation of the disciplinary proceedings. As rightly pointed out by the learned judge the only basis for the action against the 1st respondent in this case is the legal opinion furnished by the law officer on the particular award in one case and the inference thereon drawn by the Secretary to Government. The facts and materials on the file when the impugned order was passed are the only relevant considerations in judging the necessity of the suspension. The letter of the law officer did not contain imputation of improper motive or misconduct in the sense it is understood in disciplinary proceedings. No reference is made in the file regarding other awards passed by the respondent nor is there any allegation of corrupt practices. The inference of improper motive by the Secretary is a mere conjecture and even then the Secretary has only suggested the shifting of the respondent from the post of Chief Engineer (Arbitration) in the interest of the administration. The Chief Secretary however thought it fit to place the respondent under suspension as the deterrent step and to order a vigilance enquiry. There can be no doubt that the proposed action was on extraneous considerations and not as a prelude to any contemplated disciplinary action after preliminary investigation into the conduct of the officer following allegations of corruption or of malpractice levelled against him. Since the only step taken by the Government was to order vigilance investigation, in the absence of any serious allegations of misconduct or other materials for prima facie satisfaction of the authority, the power under Rule 10 could not have been exercised before receipt of the report of the investigation. It is not correct to say that the Chief Secretary while recommending the action of suspending the 1st respondent had taken into consideration the nature and number of awards passed by the respondent or the necessity or desirability of placing the respondent under suspension to facilitate an impartial enquiry. The qualitative and quantitative assessment of the work and conduct of the arbitrator with reference to the other awards appear to have been thought of only in the course of these proceedings before court. The only consideration that weighed with the Chief Secretary in proposing the suspension was that the action should be deterrent in administrative matters. As rightly pointed out by the learned judge the stage has not reached for punishment and the proposed action was on extraneous considerations. The mala fides of the action lies in the absence of valid considerations. The learned judge has rightly quashed the impugned order of suspension with the reservations for future action, if found necessary. We find no ground for interference.

The appeal is accordingly dismissed, in the circumstances without costs.


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