Rajendran P.K. and Rekha P.R. v. Chief Law Officer in charge of Executive Director (Vigilance), KSRTC, Transport Bhavan, Thiruvananthapuram, and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941** ## **WP(C).No. 39675 of 2016** ## **PETITIONERS:** **1 RAJENDRAN P.K., AGED 49 YEARS (ASSISTANT, K.S.R.T.C., CHERTHALA - UNDER SUSPENSION), PULITHARA VEEDU, VALAMANGALAM SOUTH P.O., THURAVOOR, CHERTHALA, ALAPPUZHA DISTRICT - 688 532.** **2 SMT.REKHA.P.R.,(SUPERINTENDENT, K.S.R.T.C., CHERTHALA - UNDER SUSPENSION),PATTAPARAMBIL HOUSE, MARARIKKULAM NORTH P.O.,ALAPPUZHA DISTRICT, PIN 688 549.** **BY ADVS.** **SMT.AYSHA YOUSEFF SMT.M.KABANI DINESH SMT.MOLLY JACOB SMT.PRIYANKA SEBASTIAN SMT.RABIA BEEGOM T.K. SRI.C.M.EBRAHIM SRI.JOBI.A.THAMPI SRI.SHOUKATH HUSAIN** ## **RESPONDENTS:** **1 THE CHIEF LAW OFFICER IN CHARGE OF EXECUTIVE DIRECTOR (VIGILANCE), KERALA STATE ROAD TRANSPORT CORPORATION,TRANSPORT BHAVAN, THIRUVANANTHAPURAM,PIN 695023.** - **2 THE ASSISTANT TRANSPORT OFFICER, OFFICE OF THE DISTRICT TRANSPORT OFFICER,KERALA STATE ROAD TRANSPORT CORPORATION,CHERTHALA, PIN 688524.** - **3 KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN, THIRUVANANTHAPURAM,PIN 695023.** ## **SRI T.P.SAJAN- STANDING COUNSEL- KERALA STATE ROAD TRANSPORT CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 39675 of 2016** **2** ## **JUDGMENT** The petitioners were placed under suspension by Exts.P5 and P6 orders, while they were working as Assistant and Superintendent respectively in Cherthala Depot of KSRTC. They have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Exts.P5 and P6 orders of suspension. They have also sought for a declaration that Exts.P5 and P6 orders of suspension are illegal and void. The further relief sought for is a writ of mandamus commanding the respondents to release the pay and allowances due to them for period from 01.10.2016 onwards, as if they were in service. 2. On 20.12.2016, when this writ petition came up for consideration , this Court passed the following order: “Admit. The learned Standing Counsel takes notice for the respondents. 2. Exts.P5 and P6 orders, by which the petitioners are placed under suspension with retrospective effect from 01.10.2016, are under challenge in this writ petition. 3. It is seen, prima facie, that the retrospective suspension of the petitioners with effect from 01.10.2016 is unsustainable. In the circumstances, the Corporation is directed to disburse the pay and allowances due to the petitioners for the period upto 23.11.2016. It is, however, made clear that such **WP(C).No. 39675 of 2016** **3** payments will be subject to the outcome of the writ petition.” ## 3. A statement has been filed by the respondents. Paragraph 2 and also the last paragraph of the said statement read as follows: “2. It submitted that the petitioners were suspended from service on 1.10.2016 as per Ext.P1 and Ext.P2 orders, which were quashed by the Hon'ble Court as per Ext.P3 Judgment making it clear that the said judgment will not preclude the authorities concerned from passing fresh orders in accordance with law. Pursuant to that the petitioners were reinstated in to duty and thereafter since there was allegation of misconduct they were suspended from service contemplating disciplinary proceedings. Pursuant to that Memo of charges were issued as per Ext.P10 and Ext.P11. As the writ petition challenging Ext.P5 and Ext.P6 is pending, further proceedings in the Disciplinary action has not been completed. It is also submitted that the petitioners had a statutory remedy of Appeal under Rule 22 of the KCS & CCA Rules, which the petitioners has not availed. In the said circumstance the challenge of the petitioners against Ext.P5 and p6 is without merit. It is respectfully submitted that the disciplinary proceedings against the petitioners will be completed immediately on disposal of the Writ Petition. In such circumstance, the writ petition may be disposed of accordingly”. 4. Heard the learned counsel for the petitioners and also the learned Standing Counsel for KSRTC, representing the **WP(C).No. 39675 of 2016** **4** respondents. 5. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Exts.P5 and P6 orders of suspension. The power of the concerned authority in issuing Exts.P5 and P6 orders of suspension is not in dispute. The grievance of the petitioner is mainly with respect to the retrospective effect of suspension, i.e. with effect from 01.10.2016. 6. As discernible from Ext.P3 judgment in W.P.(C) No.34061 of 2016, in which the earlier orders of suspension issued against the petitioners were under challenge, this Court, while setting aside the orders of suspension, made it clear that the said judgment will not preclude the authorities concerned from passing fresh orders. It is thereafter that Exts.P5 and P6 orders of suspension were issued with retrospective effect. 7. In support of the challenge made against Exts.P5 and P6 orders of suspension to the extent of the retrospective effect, the learned counsel for the petitioners places reliance on the judgment of this Court in _**Sadasivan Pillai v. State of Kerala**_ **(1976 KLT 323)** . Paragraphs 6 and 9 of the said judgment **WP(C).No. 39675 of 2016** **5** ## read as follows: 6. There is certainly substance in the contention of the petitioner that retrospective operation of an order of suspension is not contemplated by any statutory provision. R.10 of the Kerala Civil Senses (Classification Control & 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 normal duties attached to his office. By its very nature such a direction can only operate in the present and the future and not in the past. Hence there cannot be any retrospective operation for an order of suspension. 7. The same view has been indicated in the decisions in Venkiteswaran v. State of Kerala 1963 KLT 1097), Mohd. Azam v. State of Hyderabad (AIR 1968 AP 619) and Dukhooran V. Coop. Agrl. Asson. Kawardha (AIR 1961 MP 289). 8. The order Ext.P1 is therefore bad to the extent it purports to act retrospectively from 17.07.1973. 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 **WP(C).No. 39675 of 2016** **6** 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 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 canceling 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 17.07.1973. The difference is material, for, if the petitioner is to be considered as under suspension only from the date of Ext.P1 order there is justification for him to claim that he was in service during the period from 17.07.1973 to Ext.P1 date and this may entitle him to the salary till the date of order of suspension. 9. Learned counsel further contended that in the absence of a plea on the part of the State Government that the order is severable to the extent it has prospective operation such a plea is not to be considered. Such a case need not **WP(C).No. 39675 of 2016** **7** necessarily be particularly pleaded when the order is under attack and the whole order is sought to be salvaged. If the court finds that the whole order could not be saved it is for the court to mould the relief to be granted. 8. Having considered the submissions made by the learned on both sides, this Court finds that no interference is warranted on Exts.P5 and P6 orders of suspension, except to the extent of the retrospective effect given in those orders from 01.10.2016. The direction contained in Ext.P3 judgment, whereby the respondents were given liberty to pass fresh orders in accordance with law, will not entitle them to pass fresh order of suspension with retrospective effect. Therefore Exts.P5 and P6 orders to that extent is set aside. 9. As seen from the statement filed by the respondents, the disciplinary proceedings initiated against the petitioners after the orders of suspension, are not complete on account of the pendency of this writ petition. The learned Counsel for the petitioners would submit that the petitioners have already been reinstated in service and that, the respondents may be directed to finalise the disciplinary proceedings initiated after Exts.P5 and P6, orders of suspension within a reasonable time. **WP(C).No. 39675 of 2016** **8** 10. The learned Standing Counsel for KSRTC would submit that Ext.P10 Memo of charges has already been issued to the petitioners and the petitioners have submitted their written statements. The 1[st] respondent, who is the disciplinary authority, shall finalise the disciplinary proceedings initiated pursuant to Ext.P10, after affording the petitioners a reasonable opportunity to substantiate their contentions. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of, by setting aside Exts.P5 and P6 orders of suspension to the extent indicated hereinbefore and by directing the 1[st] respondent to finalise the disciplinary proceedings initiated against the petitioners, based on Ext.P10 Memo of charges, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a certified copy of this judgment. **Sd/-** **ANIL K.NARENDRAN** **JUDGE** mpm **WP(C).No. 39675 of 2016** **9** ## **APPENDIX** ## **PETITIONERS'EXHIBITS:** **EXHIBIT-P1: PHOTO COPY OF THE ORDER NO.D1/3724/16/CTL DATED 1.10.2016 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER. EXHIBIT-P2: PHOTO COPY OF THE ORDER NO.D1/3741/16/CTL DATED 3.10.2016 ISSUED BY THE 2ND RESPONDENT TO THE 2ND PETITIONER. EXHIBIT-P3: PHOTO COPY OF THE JUDGMENT DATED 26.10.2016 IN WPC 34061/2016 OF THE HON'BLE HIGH COURT. EXHIBIT-P4: PHOTO COPY OF THE REQUEST FROM THE 1ST PETITIONER DATED 18.11.2016 ADDRESSED TO THE 1ST RESPONDENT. EXHIBIT-P5: PHOTO COPY OF THE SUSPENSION ORDER NO.VLC1-027692/16 DTD.23.11.2016 ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER. EXHIBIT-P6: PHOTO COPY OF THE SUSPENSION ORDER NO.VLC1-027692/16 DTD.23.11.2016 ISSUED BY THE 1ST RESPONDENT TO THE 2ND PETITIONER. EXHIBIT-P7: PHOTO COPY OF THE REPRESENTATION OF THE 1ST PETITIONER DATED 30.11.2016 TO THE 3RD RESPONDENT. EXHIBIT-P8: PHOTO COPY OF THE REPRESENTATION OF THE 2ND PETITIONER DATED 30.11.2016 TO THE 3RD RESPONDENT. EXHIBIT P9 COPY OF THE NOTE FILE IN RESPECT OF VLC1-027692/16 IN THE OFFICE OF THE 3RD RESPONDENT.** **WP(C).No. 39675 of 2016** **10** **EXHIBIT P10 COPY OF CHARGE SHEET NO.VLC1-027692/16 DATED 14-12-2016 ISSUED TO THE PETITIONERS. EXHIBIT P11 COPY OF LETTER UNDER RTI ACT NO.P.I.O.4699/16/ CHERTHALA DATED 3-1-2016 FROM THE OFFICE OF THE 2ND RESPONDENT.** // TRUE COPY // P.A. TO JUDGE