K. Surendran v. Government of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY** **&** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930** **WA.No. 1367 of 2008** **----------------------------AGAINST THE JUDGEMENT IN W.P.(C).NO.11769/2008 DATED 09/04/2008** **....................** ## **APPELLANT/ PETITIONER:** **--------------------------------------** **K.SURENDRAN, S/O.ANANTHAN, GALAXY, THOTTADA.P.O., KANNUR, WORKING AS SENIOR INSPECTOR/ LECTURER IN CO-OPERATIVE TRAINING CENTRE, PALAKKAD.** **BY ADV. SRI.P.VIJAYA BHANU, ADV. SRI.M.GEORGE THOMAS.** ## **RESPONDENTS/ RESPONDENTS:** **------------------------------------------------** **1. GOVT. OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, THIRUVANANTHAPURAM.** **2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM.** **3. THE CHAIRMAN, STATE CO-OPERATIVE UNION, KERALA, SAMSTHANA SAHAKARANA BHAVAN, OOTTUKUZHY, THIRUVANANTHAPURAM.** **4. THE JOINT REGISTRAR (GENERAL), PALAKKAD.** **5. THE DEPUTY REGISTRAR/PRINCIPAL CO-OPERATIVE TRAINING CENTRE, PALAKKAD.** **6. THE ADDITIONAL REGISTRAR (AUDIT), OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM.** **7. A.K.G.MEMORIAL CO-OPERATIVE HOSPITAL, KANNUR, REPRESENTED BY ITS MANAGING DIRECTOR, A.K.G.MEMORIAL CO-OPERATIVE HOSPITAL, KANNUR.** **BY GOVT. PLEADER SMT. A.G. ANEETHA.** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.R.** ## **J.B.Koshy & P.N.Ravindran, JJ. ===================== W.A.No.1367 of 2008 =====================** ## **Dated this the 9[th] day of July, 2008.** ## **JUDGMENT** ## **Koshy,J.** The appellant, a Senior Inspector in the Co-operation Department now working as Lecturer in Co-operative Training Centre at Palakkad, was suspended pending enquiry into acts of misconduct, alleged to have committed in the year 1999, about a decade back. The order of suspension is under challenge in these proceedings. He was on deputation to A.K.G. Memorial Cooperative Hospital, Kannur from 24.2.1997 to 5.6.1999. But on 6.6.1999 he came back to the parent department and was again sent on deputation to Co-operative Training Centre, Palakkad. According to the allegations, while he was working on deputation as the Chief Executive of A.K.G. Memorial Co-operative Hospital, Kannur, he had unauthorisedly given a cheque in the name of a consultancy by name M/s Surgi Tech India in connection with the service charges of the hospital equipment, in the year 1999. WA 1367/08 -: 2 :- 2. The appellant denied the allegations. According to the appellant, he has not done anything wrong. A registered lawyer notice was sent by the Society on 17.9.1999 to the appellant and M/s Surgi Tech India pointing out the irregularities in the issuance of the cheque. The allegation in that notice was denied by the appellant. M/s Surgi Tech India not only denied the allegation but also repaid the cheque amount and threatened to sue the Society. Then Ext.P2 lawyer notice was issued on behalf of the Hospital Society to the appellant and M/s Surgi Tech India. Ext.P2 shows that he was informed that the amount was repaid by M/s Surgi Tech India as early as on 2.11.1999. It also shows that no loss was caused to the Society. It further shows that the matter was closed. It reads as follows: "The said allegations are denied by my client. Any way, No.2 of you have repaid the said sum of Rs.20,000/- (Rupees twenty thousand only) by way of Cheque No.66571 dated 2.11.1999 drawn on Federal Bank, Kannur Branch, to my client. As such, the Board of Directors of my client have taken a lenient view in this matter against both of you and have decided to accept the said amount and not to proceed further in the matter. So, it is informed to WA 1367/08 -: 3 :- you that my client has closed the said file as aforementioned." 3. According to the appellant, years after the file was closed, due to political reasons, with ulterior motives and malafide reasons, the matter was reopened. By Ext3, it was reported in a news paper that the Hon'ble Minister stated that action will be taken against the persons who gave political auditing by making a false complaint against RUBCO. It is the case of the appellant that he had pointed out certain irregularities and defects in the working of the RUBCO during the audit conducted by him in the course of his duty and the affairs of the RUBCO is now being enquired into under Section 66 of the Kerala Co-operative Societies Act. It is only because he pointed out certain irregularities in the working of RUBCO that for victimising him the closed matter was re-opened. This statement of the Hon'ble Minister was followed by Ext.P4 notice directing him to appear before the Enquiry Officer without framing a charge memo or without specifying any allegations. As can be seen from Ext.P4 he was informed that an enquiry is being conducted on the basis of a complaint given by the Chairman of the State Co- WA 1367/08 -: 4 :- operative Union through the Hon'ble Minister on 27.11.2007. The complainant is the Chairman of RUBCO. During the audit conducted by the appellant in his official capacity as Senior Inspector he had pointed out some irregularities in the working of RUBCO and malafides are writ large. It is also contended that the complainant is in no way connected with the affairs and functions of the A.K.G. Memorial Hospital Society in any capacity. He does not have any right to examine and investigate the records and files of the said Co-operative Society. The complaint is regarding the issuance of the cheque while the appellant was the Chief Executive of A.K.G. Memorial Co-operative Hospital in 1999. The complaint itself is dated 22.11.2007. According to the appellant, the long delay, the nature of the complaint, previous closure of the file, etc. prima facie show that it is a clear case of victimisation. The incident occurred in 1999 and the amount covered by the cheque was also returned in the year 1999 itself and the matter was closed by the Board of Directors of the Society in 1999 itself. 3. It was argued that the reopening of a closed matter itself is illegal and the long delay in issuing a show cause notice itself WA 1367/08 -: 5 :- vitiates the disciplinary proceedings. All these matters can be raised by the appellant if finally disciplinary action is taken. But the question is whether he should be suspended pending enquiry. It is well settled law that for every allegation of misconduct an employee need not be suspended pending enquiry. It is true that usually this Court will not interfere with an order suspending an employee pending enquiry. The power to suspend an employee should be exercised with caution and care as an order of suspension pending enquiry may put the employee into shame and humiliation. Of course, if the continuance of the employee in the same place affects the disciplinary proceedings, the employer can suspend the employee. Whether an employee should be suspended pending enquiry will depend upon various circumstances. Suspension pending enquiry though cannot be considered as a punishment, it cannot be disputed that it causes real hardship to an employee. The stigma attached cannot be ignored. The object in placing an employee under suspension pending enquiry is to enable the administration to conduct the proceedings smoothly so as to establish the allegations or the charge against the employee. If he is allowed to continue on WA 1367/08 -: 6 :- duty, there may be occasion for tampering with the evidence so that the investigation cannot be successfully conducted. The power to suspend is discretionary. There should be material to justify the suspension. The order should be free from the taint of malafides, arbitrariness and extraneous considerations. Subjective satisfaction regarding suspension should be based on objective considerations and relevant circumstances. The suspension order should be sparingly passed in compelling circumstances. It is true that commission of grave misconduct may be a ground for suspending an employee, but the need for suspending an employee would not necessarily depend upon the gravity of the charges alone. The disciplinary authority should consider whether it is necessary to keep the employee away from the post. A person who is alleged to have embezzled public funds can be suspended immediately to prevent him from committing further embezzlement or doing something to cover up the fraud, but, it is not proper to suspend an employee posted elsewhere for an alleged irregularity committed nine years back, the file of which was closed. In **N.Prabhakar Murthy** v. **Tirumala Tirupathi Devasthanams** - 1992 (1) SLR 555, it was held that WA 1367/08 -: 7 :- the action taken by the authorities by suspending an employee on the ground of the charges issued after a long lapse of six years is illegal and arbitrary and calls for interference by the High Court. If there is no possibility of tampering with the evidence, suspension need not be made. Since the appellant was transferred back to the parent department in 1999 and is now working in Palakkad (another district) in a totally different department, continuation of his service will not affect the enquiry. His suspension pending enquiry, nine years after the commission of alleged misconduct based on a matter which was closed clearly establishes that there is no reason for suspending the appellant pending enquiry. Victimisation can be inferred on the facts and circumstances of this case. It is arbitrary and illegal and warrants interference. 3. In the above circumstances, we are of the view that Ext.P1 order of suspension has been issued without application of mind and therefore, we set aside the order of suspension pending enquiry. The appellant is declared to have been in continuous in service as if he is not suspended. The respondents are directed to reinstate the appellant forthwith. However, if the respondents WA 1367/08 -: 8 :- are so advised, the enquiry can be conducted in accordance with law complying with the principles of natural justice and the appellant can put forth all his defences in the enquiry before the disciplinary authority. The Writ Appeal is allowed. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 19/7