K. Balagopal v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933** **WP(C).No. 37741 of 2010(P)** **--------------------------------------** **PETITIONER:** - **-------------------** **K.BALAGOPAL, ASSISTANT ENGINEER, TRIVANDRUM CORPORATION, (UNDER SUSPENSION) S/O.R.K.NAIR, AGED 54 YEARS, RESIDING AT: ANASWARA VAZHAVILA, OOKKODU P.O., TRIVANDRUM ? 20.** **BY ADVS. SRI.T.RAMPRASAD UNNI, SRI.J.R.PREM NAVAZ.** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO DEPARTMENT OF LOCAL SELF GOVERNMENT, ANNEXE BUILDING., SECRETARIAT, TRIVANDRUM ? 695 001.** **2. THE SECRETARY, TRIVANDRUM CORPORATION, MUSEUM JUNCTION, TRIVANDRUM ? 695 033.** **3. THE CHIEF ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT., PUBLIC OFFICE, TRIVANDRUM -695 033.** **R1 & R3 BY SR. GOVERNMENT PLEADER SRI. T.T. MUHAMOOD, R2 BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE, ADV.SRI.P.K.MANOJKUMAR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2011,THE COURT ON 23/05/2011 DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.37741/2010-P:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE ORDER DTD. 29/11/2010 IN CRL.M.C. NO. 1536/10 PASSED BY THE COURT SESSIONS, TRIVANDRUM.** **EXT.P.2: COPY OF THE COMPLAINT DTD. 26/08/10 SUBMITTED BY THE PETITIONER'S DAUGHTER BEFORE THE NEMOM POLICE STATION.** **EXT.P.3: COPY OF THE ORDER OF SUSPENSION DTD. 19/11/2010 ISSUED BY THE SECRETARY, TRIVANDRUM CORPORATION.** **EXT.P.4: COPY OF THE REPRESENTATION DTD. 30/11/10 SUBMITTED BY THE PETITIONER TO THE R.2.** **EXT.P.5: COPY OF THE REPRESENTATION DTD. 25/12/10 SUBMITTED BY THE PETITIONER TO THE CHIEF ENGINEER, LOCAL SELF GOVERNMENT, THE R.3. HEREIN.** **EXT.P.6: COPY OF THE REMINDER DTD. 17/12/10 SUBMITTED BY THE PETITIONER TO THE SECRETARY OF THE TRIVANDRUM CORPN.,** ## **EXT.P.7: COPY OF THE ORDER DTD. 27/12/2010 ISSUED BY THE SECRETARY, TRIVANDRUM CORPORATION.** **EXT.P.8: COPY OF THE ORDER DTD. 12/01/2011 ISSUED BY THE SECRETARY, TRIVANDRUM CORPORATION.** **EXT.P.9: COPY OF THE ORDER G.O.(RT).456/2011/LSGD DTD. 11/02/2011 ISSUED BY R.1.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE.** **Prv.** ## **T.R. RAMACHANDRAN NAIR, J.** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~** ## **W.P.(C). No.37741/2010-P** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 23[rd] day of May, 2011** ## **J U D G M E N T** The short question that arises for consideration in this writ petition is the validity of order suspending the petitioner from service. 2. The narration of the facts in the writ petition show the following:- The petitioner has been working as Assistant Engineer in the Thiruvananthapuram Corporation. In paragraphs 1 and 2, the petitioner has narrated certain instances involving a neighbour. According to him, the said issue was settled between the parties. But the police arrested him later, on the basis of which the second respondent-Secretary of the Corporation made Ext.P3 order suspending him from service. The order is dated 19/11/2010. It is purportedly issued on the basis that he was arrested by the police and was remanded to custody by the Criminal Court. 3. The petitioner thereafter filed a representation seeking reinstatement and was waiting for appropriate action. Challenging the order of suspension, he approached this Court by filing this writ petition and one of the main points raised is regarding the jurisdiction of the Secretary of the W.P.(C). No.37741/2010 **==> picture [40 x 9] intentionally omitted <==** Corporation to place him under suspension. This Court passed an interim order dated 20/12/2010 staying the order Ext.P3 making it clear that this will not stand in the way of the Corporation passing orders in accordance with law. Thereafter, the petitioner was reinstated back in service on 27/12/2010 as per Ext.P7 order. He was assigned with certain duties as evident from Ext.P8 order also. But, by Ext.P9 order dated 11/02/2011, the Government placed him under suspension under Rule 10(3) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 with effect from 18/11/2010, the date on which he was arrested and detained. 4. The learned Senior Counsel for the petitioner Shri K.Ramakumar submitted that an order like Ext.P9 which retrospectively places the petitioner under suspension cannot be supported and it is void _ab initio_ . It is pointed out that pursuant to the interim order passed by this Court staying Ext.P3, he was reinstated in service and he was drawing salary also. In that view of the matter, the question of placing him under suspension with retrospective date cannot be supported. 5. The learned Senior Counsel, Shri N.Nandakumara Menon appearing for the Corporation submitted that going by Rule 10(3) of the relevant rules, there will be a deemed suspension and therefore, the order is not bad. Further it is pointed out that even if the petitioner's plea that W.P.(C). No.37741/2010 ## -:3:- retrospective suspension cannot be made, is accepted by this Court that will not make the order bad in the light of the decision of the Apex Court in **R.Jeevaratnam v. State of Madras [AIR 1966 SC 951]** . It will be evident from the principles laid down therein that the order will be effective from the date of the order. 6. The learned Government Pleader Shri T.T.Muhamood supported the order passed by the Government by placing reliance on the decision of the Apex Court in **Union of India v. Rajiv Kumar [(2003) 6 SCC 516]** . 7. The relevant rule is Rule 10(3) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. It reads thus:- “A Government servant who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours shall be deemed to have been suspended with effect from the date of detention, by an order of Appointing Authority or in the case of members of the Kerala Civil Judicial Service or the Kerala Criminal Judicial Service by an order of the High Court of Judicature and shall remain under suspension until further orders”. Sub rule (6) of Rule 10 provides that:- W.P.(C). No.37741/2010 -:4:- “An order of suspension made or deemed to have been made under this rule may at any time be revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate”. 8. Therefore, going by sub-rule 3, detention in custody for a period exceeding 48 hours will result in a deemed suspension. The effect of a deeming clause is well known. A similar rule was interpreted by the Apex Court in **Union of India v. Rajiv Kumar [(2003) 6 SCC 516]** . There, Rule 10(2) of the Central Civil Services (Classification, Control and Appeal) Rules came up for interpretation before the Apex Court. The Apex Court in paragraph (14) held as follows:- “Rule 10(2) is a deemed provision and creates legal fiction. A bare reading of the provision shows that an actual order is not required to be passed. That is deemed to have been passed by operation of the legal fiction. It has as much efficacy, force and operation as an order otherwise specifically passed under other provisions. It does not speak of any period of its effectiveness.” 9. Therefore, there cannot be any doubt that a legal fiction has been created by sub-rule 3 of Rule 10 of the Kerala Civil Services W.P.(C). No.37741/2010 -:5:- (Classification, Control and Appeal) Rules, 1960, in respect of a person who remained in custody for a period exceeding 48 hours that he will be deemed to have been suspended with effect from the date of detention. 10. Therefore, there is no embargo in passing an order of suspension in the light of the deeming clause. 11. But, herein Shri K.Ramakumar, learned Senior Counsel appearing for the petitioner, submitted that by Ext.P3 order initially he was placed under suspension by the Secretary of the Corporation and the order is dated 19/11/2010. This was initially challenged in the writ petition and the interim order passed by this Court is dated 20/12/2010 whereby the order has been stayed. Thereafter, he was reinstated in service as evident from Ext.P7 order dated 27/12/2010 and he has been performing his duties thereafter and has been paid salary also. Hence it is submitted that the legal fiction cannot save the invalidity of the order. 12. In this case the only question is whether the reliance placed on Rule 10(3) of the relevant rules by the Government while passing Ext.P9 is correct or not. Evidently, Ext.P9 places the petitioner under suspension with retrospective effect and the order is dated 11/02/2011 and the suspension is with effect from 18/12/2010. Normally, in a case where the legal fiction is in operation, there cannot be any bar in passing an order like W.P.(C). No.37741/2010 **==> picture [40 x 9] intentionally omitted <==** Ext.P9. But in this case there is a difference in the light of the interim order passed by this Court staying Ext.P3 order and the consequential reinstatement in service of the petitioner. 13. The question whether a person can be placed under suspension retrospectively and the order is liable to be quashed on that ground itself was considered by this Court in **Sadasivan Pillai v. State of Kerala [1976 KLT 323]** . Therein, the order of suspension is dated 24/01/1974 and it was made retrospectively from 17/07/1973. While considering the question in paragraph (6) it was held thus:- “Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1968 confers power on the Government to place a Government servant under suspension. The rule does not, in terms, empower any retrospective suspension. Suspension is by its very nature one that cannot be retrospective in character. During the period of suspension the relationship between the employer and the employee continues. The status continues to be what it was. The tie is not broken until the services are terminated. By suspending an employee he is only kept off from the regular duties of his office. He is told not to exercise himself in the matter of performing the W.P.(C). No.37741/2010 -:7:- normal duties attached to his office. By its very nature such a direction can only operate in the present and future and not in the past. Hence there cannot be any retrospective operation for an order of suspension.” Reliance was placed on earlier decisions in **Venkiteswaran v. State of Kerala [1963 KLT 1097], Mohd.Azam v. State of Hyderabad [AIR 1958 A.P 619]** and **Dukhooran v. Co-op. Agricultural Association Kawardha [AIR 1961 M.P 289].** 14. In paragraph (8) this Court considered the question whether even if the order is bad to the extent of retrospectivity, it could make the order wholly unsupportable. It was held thus:- “The question then is, should the order be quashed for that reason or would it be proper to declare that order as inoperative to the extent of its retrospectively. An order of suspension, as I said earlier, is intended to operate in the future and would be competent in that respect. If that order purports to act retrospectively alone, then possibly the order would be unsustainable. But if it purports to operate retrospectively and prospectively I see no reason to strike down that order in its entirety. Counsel for the petitioner urges that an order of W.P.(C). No.37741/2010 -:8:- suspension would be impossible in this case even prospectively. This is on the ground that at the time the petitioner is said to have been suspended he was not in service. What is meant is that though this Court quashed the earlier suspension in Ext. P2 judgment the petitioner was not allowed to join duty. That of course is so. He was not actually on duty. It was not as if he was reinstated and again suspended. The question would be one of the effect of Ext. P2 judgment. It is true that an order of reinstatement would normally follow a decision cancelling the suspension. But even if it does not follow suspension would not continue in force. The suspension order was effaced by the judgment of this Court. The petitioner was also entitled to his salary and he was also entitled to claim that he should be given work. If the petitioner was in service and he had a right to work it was open to the Government to pass an order of suspension to operate prospectively if that order was otherwise justified. Therefore I uphold the order of suspension to the extent it operates as suspension from the date of the order. The order is bad to the extent it operates from 17/7/1973.” W.P.(C). No.37741/2010 -:9:- Therefore, it can be seen that this Court was of the view that the retrospectivity of the order alone was bad in law. Finally, in paragraph 10 it was held that the order is sustained for the period subsequent to the date of Ext.P1 order. 15. The learned Senior Counsel for the Corporation Shri N.Nandakumara Menon relied upon the decision of the Apex Court in **R.Jeevaratnam v. State of Madras [AIR 1966 SC 951].** It was a case where an order of dismissal was issued with retrospective effect. The Apex Court considered the question whether the order is severable and if the valid part of the order can be given effect to. After elaborately considering the matter, it was held thus in paragraph (4) & (5):- “An order of dismissal with retrospective effect is in substance an order of dismissal as from the date of the order with the super - added direction that the order should operate retrospectively as from an anterior date. The two parts of the order are clearly severable. Assuming the second part of the order mentioning that dismissal would operate retrospectively is invalid, there is no reason why the first part of the order starting that the appellant is dismissed, should not be given the W.P.(C). No.37741/2010 -:10:- fullest effect. The Court cannot pass a new order of dismissal but surely it can give effect to the valid part of the order.” 16. Herein it can be seen that the petitioner was arrested on 18/11/2010 and he was granted bail by Ext.P1 order dated 29/11/2010 by the Sessions Court, Thiruvananthapuram. Ext.P3 order of suspension is dated 19/11/2010. The interim order passed by this court staying the same is dated 20/12/2010. Consequently, he was reinstated in service as per Ext.P7 order dated 27/12/2010 and the present order of suspension is only dated 11/02/2011 (Ext.P9). Therefore, by operation of the interim order passed by this Court, the petitioner was reinstated in service. In that view of the matter, the retrospective suspension from 18/11/2010 cannot survive. Evidently, the reinstatement is a consequence of the interim order passed by this Court and he has drawn salary and allowances also. But the same will not make Ext.P9 order wholly bad in law in the light of the principles stated by the Apex Court in Jeevaratnam's case ( _supra_ ) and by this Court in Sadasivan Pillai's case ( _supra_ ). The order of suspension will be effective from the date of Ext.P9. 17. No other questions have arisen for consideration. The order Ext.P9 to the extent to which the suspension is ordered with effect from 18/11/2010 alone is quashed. But it is made clear that the order will survive W.P.(C). No.37741/2010 **==> picture [48 x 9] intentionally omitted <==** as far as the suspension of the petitioner from 11/02/2011 onwards, that is the date of the order Ext.P9. Since Ext.P3 order is superceded by Ext.P9 order, it has become unnecessary to decide the validity of Ext.P3. 18. This writ petition is, therefore, partly allowed. Ext.P9 is upheld in part. It is made clear that the same will be without prejudice to the right of the petitioner to approach the Government, if he is so advised, by way of a representation to modify the order of suspension on other grounds if any. ## **(T.R. Ramachandran Nair, Judge.)** ms