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State of Kerala and Two ors. Vs. K. Kesavan Nair, Security Officer and Vigilance Officer, Kalady Group of Estates, Plantation Corporation of Kerala and the Managing Director, Plantation Corporation Ltd. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1974)IILLJ300Ker
AppellantState of Kerala and Two ors.
RespondentK. Kesavan Nair, Security Officer and Vigilance Officer, Kalady Group of Estates, Plantation Corpora
Cases ReferredOm Prakash Gupta v. State of Uttar Pradesh
Excerpt:
..............the charges, and that beyond that stage, there is no power to order suspension under the above rule. rule 6 opens with the words:6. whenever...it is found necessary to inquire into the conduct of a member of the service.... the inquiry into the conduct can only terminate with the imposition of a punishment or an exoneration of the member in some way. the inquiry, in our opinion, covers the entire gamut of disciplinary proceedings.5. the learned judge referred to rule 17(1)(a) of the rules which reads:after the competent authority has examined the proceedings of inquiry and has recorded his finding under rule 6(ii) he shall come to a conclusion regarding the penalty to be imposed, except in cases where no charges have been made out. and was of the opinion that the rule afforded.....
Judgment:

V. Gopalan Nambiyar, J.

1. The 1st respondent, an Armed Reserve Inspector of Police in the Ernakulam District, on deputation as Security Officer to the Plantation Corporation of Kerala, was placed under suspension pending enquiry, by Ext. P3 order dated 31-7-1973. He filed the writ petition out of which this appeal arises to quash the order of suspension. A learned Judge of this Court allowed the writ petition and quashed the order. The State has preferred this appeal.

2. While serving earlier, as Home Guards Inspector, Alleppey, certain allegations against the 1st respondent were inquired into by the Commandant-General of the Home Guards, who found them not substantiated, but left it to the Government to make, if necessary, a more searching inquiry through the Vigilance Department, The Government directed a de novo inquiry, and passed Ext. PI order of suspension dated 11th May, 1970. A charge memo was served on 10-6-1970, and explanation was called for from the 1st respondent. The matter was referred to the Tribunal for disciplinary proceedings. While proceedings were pending before the Tribunal, on the petitioner's representation dated 23-6-1971, the order of suspension was revoked on 7th August, 1971 without prejudice to the continuance of the disciplinary proceedings. The 1st respondent's posting to the Ernakulam District, his deputation as Security Officer to the Plantation Corporation, and the impugned order of suspension (Ext. P3) followed thereafter.

3. Two grounds appear to have weighed with the learned Judge in quashing Ext. P3 order: First that the power of making the order of suspension under Rule 7 (of the concerned Rules to be noticed presently), cannot be exercised beyond the stage of the inquiry into the charges, and once this stage had been passed, and the question of the imposition of a punishment if any, alone remained for consideration, the powers under Rule 7 cannot be invoked. Second, that it could not be said that the suspension of the petitioner had been ordered in public interest. Rule 7 of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958, (referred to as the ''Police Rules' for short), occurs in part II entitled: 'Inquiries'. That part commences with Rule 6 which lays down the procedure for inquiry. It is a long rule, which provides for a preliminary inquiry, the framing of charge or charges, calling for explanations from the member of the service sought to be proceeded against, an inquiry by the inquiring officer, the submission of a report by him, the consideration of the said report, and recording of finding by the disciplinary authority. Part III deals with 'punishment' and provides the procedure for imposing major and minor penalties. Rule 7 reads:

7. (1) The appointing authority or any authority to which it is subordinate or any other authority empowered by the Government in this behalf, may place a member of a service under suspension, where-

(a) an inquiry into his conduct is contemplated, or is pending, or

(b) a complaint against him of any criminal offence is under investigation or trial,

(2) A member of a service who is detained in custody whether on a criminal charge or otherwise, for a period longer than forty-eight hours shall be deemed to have been suspended by the appointing authority under this rule.

(3) An order of suspension under Sub-rule (1) may be revoked at any time by the authority making the order or by any authority to which it is subordinate.

4. We cannot accept the learned Judge's view that the ''inquiry' referred to in Rule 7 is only the inquiry into the charges, and that beyond that stage, there is no power to order suspension under the above rule. Rule 6 opens with the words:

6. Whenever...it is found necessary to inquire into the conduct of a member of the service....

The inquiry into the conduct can only terminate with the imposition of a punishment or an exoneration of the member in some way. The inquiry, in our opinion, covers the entire gamut of disciplinary proceedings.

5. The learned judge referred to Rule 17(1)(a) of the Rules which reads:

After the competent authority has examined the proceedings of inquiry and has recorded his finding under Rule 6(ii) he shall come to a conclusion regarding the penalty to be imposed, except in cases where no charges have been made out.

and was of the opinion that the rule afforded further indication that the inquiry was complete with the submission of report and what remained to be done thereafter was only a consideration of the report and finalisation of the disciplinary proceedings. We have sketched the periphery of the ''inquiry', and we cannot agree that the stage contemplated by Rule 17(1) falls outside the same.

6. We venture to think that if the question is put to a member of the service: 'Is the inquiry into your conduct over ?', he would not answer : 'It is; but the question of clearing or condemning my conduct is engaging attention'. That, we should think, should afford an indication of the gamut of the term 'inquiry into conduct', in service-terminology-, if we may use that coinage.

7. The learned Judge observed that there was no provision in the Police Rules similar to Rule 10(c) of the Civil Services (Classification, Control and Appeal) Rules 1960, and that the Government itself was conscious of this differences, as, in Ext. P3, they breathed and echoed the language of Rule 10(c) of the latter, rather than of Rule 7 of the former. We do not think this makes any difference. If the power to take action is there, it is well-settled that the mere fact that the power is traced - whether expressly or impliedly - to the wrong source, would not vitiate the exercise of the power. Rules 10(a) and (c) of the Classification, Control and Appeal Rules read:

10. Suspension (1)-The appointing Authority or any authority to which is subordinate or any other 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 ;

* * * *

(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:Provided that the authority competent to place a member of the Kerala Judicial Service or the Kerala Subordinate Magisterial Service under suspension shall be the High Court of Judicature.

We think the power under Clause (c) is comprehended in Clause (a); but the exercise of it at the late stage, is subject to the further fetter imposed by that clause, and no more.

8. The learned Government Pleader pointed out that Rule 12 of the Kerala Civil Services (Classification, Control and Appeal) Rules 1957, which was replaced by the 1960 Rules, did not contain any provision corresponding to Rule J0(c) of the 1960 Rules, and this pattern was followed in the 'Police Rules' of 1958. This is a matter of legislative history, and seems to make no difference.

9. Judicial decisions seem to lend support to the view that we take. Mohammed Ghouse's case : [1957]1SCR414 , was concerned with a suspension under the provisions of the Madras Civil Services (Classification, Control and Appeal) Rules. Rule 17(c) of the said Rules authorised a suspension pending enquiry into grave charges, where such suspension was necessary in public interest. Despite the limitation of 'Public interest', the circumference of the power is still hedged in by the words 'pending enquiry', Mohammed Ghouse was a Sub Judge, against whom serious charges of corruption were elaborately enquired into by Balakrisna Iyer, J., of the Madras High Court, who submitted his report. The same was debated by the Judges of the High Court who decided that the appropriate punishment on charge I (bribery) would be dismissal from service, and on charge II (which we need not notice), removal from service. Afterwards Mohammed Ghouse was placed on suspension under Rule 17(c). The order of suspension (among other proceedings) was attacked, but was sustained by the Supreme Court 8s follows:

'It was also argued that the High Court had no authority under the rules to suspend a judicial officer pending final orders of the Government. But under Rule 13 of the Madras Civil Services (Classification, Control and Appeal Rules, it is the High Court of Judicature at Madras that is constituted as the authority which may impose suspension pending enquiry into grave charges under Rule 17(c) against the Members of the State Judicial Service, The order in question, therefore, falls within this rule, and is perfectly infra vires.

Counsel for the respondent is right that there was no specific plea that there was no power to suspend after the enquiry by Balakrishna Iyer. J., but it appears, to be not without significance that there was none.

10. The nature of disciplinary proceedings was generally explained by the Supreme Court in Suchhittar Singh v. State of Punjab A.I.R. 1962 S.C. 395. The Court observed:

7. Before we deal with the grounds we may state that High Court was of the opinion that the proceedings taken against the appellant were made up of two parts: (a) the enquiry (which involved a decision of the question whether the allegations made against the appellant were true or not), and (b) taking action, i.e., in case the allegations were found to be true, whether the appellant should be punished or not and if so in what manner). According to the High Court the first point involved a decision on the evidence and may it in its nature be described as judicial, while the latter was purely an administrative decision and that in so far as this was concerned there was no reason why the State Government was incompetent to change its decision 'if it thought administratively advisable to do so'. We cannot accept the view taken by the High Court regarding the nature of what it calls the second part of the proceedings, Department proceedings taken against a Government servant are not divisible in the sense in which the High Court understands them to be. There is just one continuous proceeding though there are two stages in it. The first is coming to a conclusion on the evidence as to whether the charges alleged against the Government servant are established or not and the second is reached only if it is found that they are so established.

11. Again, in the recent decision in P.R. Nayak v. Union of India 1972-I L.L.J. 535, the question considered was the validity of the suspension of Sri P.R. Nayak, a member of the Indian Civil Service, under Rule 3 of the All India Services (Discipline and Appeal) Rules, which, allowed a suspension only after the proceedings had been 'started', and not while they were in contemplation. The majority Judges took the view, on the facts and circumstances of the case, that the disciplinary proceedings had not been 'started' and, therefore, the order of suspension was not proper or valid. The dissenting Judges were of the view that such proceeding had 'started'. The cleavage of judicial opinion centred around this narrow point. In the judgment delivered by Ray, J., (as he then was) on behalf of the dissenting Judges, there occurs the following:

68. ...The entire gamut of disciplinary proceedings will, therefore, embrace the preliminary inquiry into allegations, a prima facie opinion of the Government as a result thereof and the formal enquiry giving the Government servant full opportunity to defend against the articles of charge. Secondly, disciplinary proceedings cover the entire range of proceedings from the preliminary investigation into complaints against the honesty and conduct of a Government servant to the final order of punishment after inquiry under Rule 8.

No contra-opinion in regard to the range of disciplinary proceedings is found in the majority judgment.

12. The learned Government Pleader placed reliance on the decision of the Supreme Court in Om Prakash Gupta v. State of Uttar Pradesh : (1956)ILLJ1SC , and in particular on the observations at page 603 that suspension pending enquiry was certainly not a penalty imposed after enquiry, that it lapsed with the order of dismissal passed after enquiry, and ceased to exist when the order of dismissal replaced it. The question now debated did not pointedly or specifically arise for consideration in the above decision, and the conclusion which the Government Pleader wished to draw, would be only inferential, But we think, the other two decisions of the Supreme Court which we have noticed, indicate the range of disciplinary proceedings; and the same, we think, is the amplitude of 'Inquiry into conduct' under Rule 6 of the Police Rules,

13. We do not think, the learned Judge was justified in his view that no public interest was served by the impugned order of suspension. This is not a requirement of the Rule; and were in a circumstance to he adverted to-de hors the Rule,-as to which we say nothing-the Government have adverted to it, and we see no scope for interference. The Tribunal for disciplinary proceedings had submitted its report, finding the first respondent guilty of charges 1, 5 and 6, which related to the misappropriation, interpolation in the Contingent Bill, and obtaining receipts from parties and blank 'C' form receipts from Homeguard volunteers without full address, with a view to fabricate them later for selfish purposes The Government provisionally accepted the findings, and tentatively decided to impose the punishment of compulsory retirement, and having regard to the charges found and the need to maintain the morale and discipline in a highly disciplined force where the 1st respondent was serving, felt that it was necessary in public interest to order suspension. These are stated in the counter-affidavit. They should suffice to place the order outside the pale of attack.

14. At the same time, we should point out the extreme unfairness of prolonging the suspension, keeping the Damocles sword of the disciplinary proceeding dangling over the petitioner indefinitely. Instruction 15(2)(c) in the Manual for Disciplinary Proceedings has sufficiently brought out the force of this evil as follows:

Instances arc not rare where suspension of the officer concerned was not really necessary and also where the proceedings against a suspended officer have not been conducted with the expedition that is really necessary. Suspension should be resorted to only when it is really justified with reference to the gravity of the offence, the necessity to remove the officer from the discharge of his duties immediately and the penalty that is likely to be imposed in case the charge is proved. In other cases suspension will not be really necessary. It is also imperative that the disciplinary proceedings against an officer placed under suspension is finalised with the minimum possible delay. The tendency to suspend public servants and then let the proceedings drift in a leisurely manner must be strongly deprecated and checked by all authorities.

Although this is not a statutory rule, it embodies a sound policy. Even while the appeal was being argued, we asked the Government Pleader why this academic legal battle should not be brought to a close by completing the disciplinary proceedings. We were assured that the delay is only in processing the matter through the usual channels of consultation with the Public Service Commission and the like, and that final orders will be passed within about two weeks. We trust that this whould be done.

15. We allow this appeal, set aside the order of the learned Judge and direct that O.P. No. 2618 of 1973 will stand dismissed. There will be no order as to costs.


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