District Nirmithi Kendra, Idukki v. Paul Jacob & Others (W.A. No.1217 of 2021)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943** **WA NO. 1217 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 1967/2020 DATED 29-07-2021 OF** ## **HIGH COURT OF KERALA, ERNAKULAM.** ## **APPELLANTS/RESPONDENTS 2 & 5 :** - **1 DISTRICT NIRMITHI KENDRA, IDUKKI, PAINAVU.P.O., KUYILIMA, IDUKKI-685 603,REPRESENTED BY ITS MEMBER SECRETARY. (DEPUTY COLLECTOR (LA), IDUKKI)** - **2 BIJU S, PROJECT ENGINEER (IN-CHARGE), DISTRICT NIRMITHI KENDRA, IDUKKI, PAINAVU.P.O., KUYILIMA, IDUKKI-685 603.** - **BY ADVS.SRI.C.RAJENDRAN** - **& SRI.B.K.GOPALAKRISHNAN.** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1, 3 & 4 :** - **1 PAUL JACOB, AGED 51 YEARS, S/O.VARGHESE CHACKO, PROJECT ENGINEER (UNDER SUSPENSION), NIRMITHI KENDRA, IDUKKI, PAINAVU.P.O., KUYILIMA, IDUKKI-685603, RESIDING AT KALLUMKAL HOUSE, VAZHAKKULAM.P.O., MUVATTUPUZHA, ERNAKULAM, PIN-686 670.** - **2 THE DISTRICT COLLECTOR, IDUKKI, PAINAVU.P.O., KUYILIMALA, IDUKKI DISTRICT PIN-685 603.** - **3 THE ADDITIONAL CHIEF SECRETARY, HOUSING (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** W.A No.1217 of 2021 **2** - **4 THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, KOTTAYAM UNIT, KOTTAYAM PIN-686 002.** **R1 BY SRI.P.NANDAKUMAR, R2 TO R4 BY SRI.SAIGI JACOB PALATTY,** **SR.GOVT.PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A No.1217 of 2021 **3** ## **ALEXANDER THOMAS & A.BADHARUDEEN, JJ. ------------------------------------------------** ## **W.A No.1217 of 2021** _(Arising out of judgment in W.P(C) No.1967 of 2020 dated 29-07-2021 of this Court.)_ ## **---------------------------------------------------Dated this the 24[th] day of September, 2021** ## **J U D G M E N T** ## **ALEXANDER THOMAS, J.** The 1[st] respondent herein had filed the instant WP(C) No.1967 of 2020 before this Court seeking the following reliefs { _See page 47 of_ _the paper book of this O.P_ } - _“(a) Call for the records leading to the above case;_ - _(b) Issue a writ of certiorari or any other appropriate writ, order or direction, quashing Exhibit P10;_ - _(c) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondent No.2 to reinstate the petitioner into the service as Project Engineer, atleast till the outcome of the final report in Exhibit P5 FIR;_ - _(d) Issue any other appropriate writ, order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case;_ - _(e) Award the costs of the petitioner in these proceedings.”_ 2. The learned Single Judge after hearing both sides has rendered the impugned judgment dated 29-07-2020 disposing of W.P(C) No.1967 of 2020 by holding that there are no provisions in the Service Rules for regulating grant of subsistence allowance to the writ petitioner, who has been suspended from service and that then the general law contained in the Payment of Subsistence W.A No.1217 of 2021 **4** Allowance Act will apply and so it has been held that the employer Nirmithi Kendra shall pay subsistence allowance to the writ petitioner as per the provisions contained in the Payment of Subsistence Allowance Act, 1972. Further the learned Single Judge has also directed that the disciplinary proceedings contemplated/initiated against the petitioner shall be completed within a reasonable time atleast within three months from the date of receipt of a copy of the judgment in the W.P(C). Further, the learned Single judge has also directed that the salary of the writ petitioner during the first period of suspension, which has been quashed by this Court as per Ext.P6 judgment should also be paid to the writ petitioner if not paid within one month. 3. Aggrieved by the abovesaid judgment dated 29-07-2021 disposing of WP(C) No.1967 of 2020 as above, the District Nirmithi Kendra, Idukki and its Project Engineer has filed the present intra court appeal under Section 5(1) of the Kerala High Court Act. 4. Heard Sri.C.Rajedran, the learned counsel appearing for the appellants in the W.A/ respondents 2 & 5 in the WP(C), Sri.P.Nandakumar, the learned counsel appearing for R1 in the W.A No.1217 of 2021 **5** WA/writ petitioner and Sri.Saigi Jacob Palatty, the learned Senior Government Pleader appearing for official respondents 2 to 4. 5. We have heard the parties in extenso. The specific stand taken by the employer Nirmithi Kendra was to the effect that there are no provisions in the rules governing the field to regulate the grant of subsistence allowance to an employee like the writ petitioner who has been suspended from service. However, the learned Single Judge has held that if that be so, then the general provisions contained in the Payment of Subsistence Allowance Act, 1972, will govern the field. In a similar situation, regarding suspension of Reserve Conductors working in the KSRTC, a plea was taken by the employer therein (KSRTC) that the provisions contained in the Kerala Service Rules which govern the regular employees of the KSRTC are not applicable to Reserve Conductors and therefore, the provision contained in the KSR for grant of subsistence allowance cannot be pressed into service. In _**Rajesh v. Kerala State Road Transport Corporation**_ [2021(5) KLT 326], as per judgment dated 28-07-2021 in WA No.879 of 2021, we have held that if in the case of reserve conductors of the KSRTC, if the provisions contained in the KSR does not apply to them, then W.A No.1217 of 2021 **6** the general provisions of the Payment of Subsistence Allowance Act, 1972 will govern the field and that the employer is thus bound to pay subsistence allowance to the suspended employee as mandated in the said Act. (See 2021(5) KLT 326). In the light of these aspects, we are of the view that the learned Single Judge has not erred in taking the view about the applicability of payment of Subsistence Allowance Act in this case. 6. As regards the 2[nd] direction, we cannot find fault with the learned Single Judge for having laid down a time line for completing the disciplinary proceedings, which has been stipulated as three months from the date of receipt of a copy of the judgment. It is by now well established that not only criminal proceedings but even disciplinary proceedings will have to be expeditiously conducted and if disciplinary proceedings are not completed within a reasonable time frame, then the same might be unreasonable and unfair. Hence, we are not inclined to interfere with the latter direction issued by the learned Single Judge in this case. 7. The last direction issued by the learned Single Judge is that in case salary has not been paid to the petitioner during the period of his suspension order which has already been quashed by W.A No.1217 of 2021 **7** this Court by Ext.P6 judgment, then the salary in that regard should be paid to him within one month. Since the first suspension order has already been quashed by this Court by Ext.P6 judgment and said judgment has become final and conclusive, the learned Single Judge cannot be find fault with having issued the 3[rd] direction. In the light of these aspects, no interdiction is called for in the well considered verdict of the learned Single Judge in this case. However, taking note of the pendency of the appeal it is ordered that the time limit for compliance of the directions of the learned Single Judge in the W.P(C) will start running from the date of receipt of a copy of this judgment. The writ petitioner may forward copies of the judgment to the competent authority of the appellants, for necessary information and immediate compliance. With these observations and directions, the above writ appeal will stand dismissed. **Sd/-** **ALEXANDER THOMAS, JUDGE** **Sd/-** **A.BADHARUDEEN, JUDGE** amk W.A No.1217 of 2021 **8** **APPENDIX OF WA 1217/2021** ## **PETITIONERS' ANNEXURE :** **Annexure A1 A TRUE PHOTOCOPY OF THE GOVERNMENT ORDER DATED 28/04/2021.** ## **RESPONDENTS' EXHIBITS :** **EXHIBIT R5(a) : A TRUE PHOTOCOPY OF THE NOTICE DATED 25-01-2021 EXHIBIT R5(b) : A TRUE PHOTOCOPY OF THE ATTENDANCE REGISTER DATED 25-01-2021.**