S. SURESH BABU S/O. SUKUMARAN v. STATE OF KERALA, THE KERALA KHADI & VILLAGE INDUSTRIES BOARD, K.S. PRADEEP KUMAR

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 30TH DAY OF AUGUST 2017/8TH BHADRA, 1939** **WP(C).No. 27206 of 2017 (A)** **----------------------------** ## **PETITIONER :** - **----------** **S. SURESH BABU S/O. SUKUMARAN, EENAM, AN-C 6, ARCHANA NAGAR, PONGUMMOODU, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-11.** **BY ADVS.SRI.M.R.ANISON SMT.K.P.GEETHA MANI SMT.P.A.RINUSA SMT.V.P.SEEMANDINI (SR.)** ## **RESPONDENTS :** - **-----------** **1. STATE OF KERALA** **REP. BY ITS SECRETARY TO GOVT., INDUSTRIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE KERALA KHADI & VILLAGE INDUSTRIES BOARD, VANCHIYOOR, THIRUVANANTHAPURAM-695035, REPRESENTED BY ITS SECRETARY.** **3. K.S.PRADEEP KUMAR, DIRECTOR (ADMINISTRATION), THE KERALA KHADI & VILLAGE INDUSTRIES BOARD, VANCHIYOOR, THIRUVANANTHAPURAM-695035, RESIDING AT HARIMANDIRAM, THATTARUKONAM, KILIKOLLUR P.O., KOLLAM.** **R1 BY SENIOR GOVERNMENT PLEADER SMT. NISHA BOSE R2 & R3 BY SRI.K.GOPALAKRISHNA KURUP SENIOR ADVOCATE BY SRI.M.SHARAFUDHEEN, SC,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/8/2017, THE COURT ON 30-08-2017 DELIVERED THE FOLLOWING:** **bp** ## **WP(C).No. 27206 of 2017 (A)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1: A TRUE COPY OF THE COMMON JUDGMENT DATED 31.05.2016 IN W.P.(C) NO.32318/2014 AND W.P.(C) 5074/2015. EXHIBIT P2: A TRUE COPY OF JUDGMENT DATED 27.02.2017 IN W.A.NO.2465/2016. EXHIBIT P3: A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 07.02.2017 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4: A TRUE COPY OF REPLY DATED 20.02.2017 SUBMITTED BY THE PETITIONER. EXHIBIT P5: A TRUE COPY OF LETTER GIVEN TO THE PETITIONER ON 01.06.2017. EXHIBIT P6: TRUE COPY OF LETTER DATED 1.08.2017. EXHIBIT P7: TRUE COPY OF RELEVANT PAGES OF THE NOTE FILE. EXHIBIT P8: TRUE COPY OF THE STAFF STATEMENT DATED 31.05.2005. EXHIBIT P9: TRUE COPY OF THE STAFF STATEMENT DATED 30.09.2009. EXHIBIT P10: TRUE COPY OF THE STAFF STATEMENT DATED 30.06.2010. EXHIBIT P11: TRUE COPY OF THE GOVERNMENT ORDER DATED 31.03.2012. EXHIBIT P12: TRUE COPY OF THE GOVERNMENT ORDER DATED 01.11.2016. EXHIBIT P13: TRUE COPY OF EXPLANATION SUBMITTED BY THE PETITIONER TO EXT.P6 MEMO OF CHARGES DATED 14.08.2017.** ## **WP(C).No. 27206 of 2017 (A)** **----------------------------** |**EXHIBIT P14:**|**TRUE COPY OF**<br>**RELEVANT PAGES OF THE STAFF**| |---|---| ||**REGULATION 2006 DT 31/3/2006 ISSUED BY**| ||**THE GOVERNMENT.**| |**EXHIBIT P15:**|**TRUE COPY OF THE PROCEEDINGS BEARING NO.**| ||**KB.6412/07/E1(B) DT 23/6/2007 ISSUED BY**| ||**THE R2.**| |**RESPONDENT(S)'**|**ANNEXURES**<br>**:**| |**-----------------------**|| |**ANNEXURE A:**|**COPY OF THE COUNTER AFFIDAVIT FILED IN WPC**| ||**NO.32318/2014 OF BEHALF OF THE R2.**| |**ANNEXURE B:**|**COPY OF THE COUNTER AFFIDAVIT FILED IN WPC**| ||**NO. 5074/2015 ON BEHALF OF THE R2 BY THE**| ||**PROJECT OFFICER, DISTRICT KHADI AND**| ||**VILLAGE INDUSTRIES OFFICE, ERNAKULAM.**| |**ANNEXURE C:**|**COPY OF THE ORDE OF THE GOVERNMENT DT**| ||**7/7/1999 ISSUED BY THE GOVERNMENT.**| |**ANNEXURE D:**|**COPY OF THE LETTER DT 14/10/2015 SIGNED BY**| ||**THE PETITIONER ON BEHALF OF THE SECRETARY**| ||**OF THE R2 AND SENT TO THE STANDING**| ||**COUNSEL.**| |**ANNEXURE E:**|**COPY OF THE LETTER DT 3/8/2015 ISSUED BY**| ||**THE SECRETARY TO GOVERNMENT, DEPARTMENT OF**| ||**INDUSTRIES TO THE SECRETARY OF THE R2.**| |**ANNEXURE F:**|**COPY OF THE LETTER DT 18/5/2017 SUBMITTED**| ||**BY THE VICE CHAIRMAN BEFORE THE CHAIRMAN.**| |**ANNEXURE G:**|**COPY OF THE ORDER DT 16/8/2017 FROM THE**| ||**OFFICER OF THE MINISTERY FOR INDUSTRIES.**| ||**//TRUE COPY//**| **P.S. TO JUDGE** **bp** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.27206 of 2017-A ------------------------------------------- _Dated this the 30[th] day of August, 2017_ ## _**J U D G M E N T**_ Petitioner who is a law officer under the respondent Khadi Board is facing disciplinary action on the basis of the judgments Exts.P1 and P2, in which a Weaving Instructor was found eligible for being considered for appointment to the post of Lower Division Typist from among low paid employees of the Board. The respondents have produced Annexure G order of the Government directing the 2[nd] respondent to place the petitioner under suspension. 2. The respondent Board found that the reason for conclusion in those judgments is the statement made in one of the counter affidavits and the Law Officer is responsible for incorporation of such a statement. Claims raised by Smt. Retnakumari, who is a Weaving/Spinning Instructor in one writ petition and the claim raised by an office Attendant for appointment by transfer against the 5% quota in the post of Lower Division Typist were considered in the common judgment Ext.P1 where both the petitioners were found eligible. The Writ Appeal filed by Sri. George John and thereafter the 2 W.P(C) No.27206 of 2017-A Review Petition filed by him against the judgment in Writ Appeal were dismissed. 3. According to the respondents, the statements in paragraphs 7 and 8 of the counter affidavit Annexure B is contradictory to the counter affidavit Annexure A, which was already filed in Retnakumari's case and the petitioner is responsible for incorporating such contradictory statement in Annexure B, regarding the inclusion of the post of Spinning and Weaving Inspector in the cadre of 2006 Special Rules viz. Classification and Conditions of recruitment of Staff Regulation; such statement is contrary to Annexure C letter of the Government and the statement is in tune with the query in Annexure D letter sent to Standing Counsel requesting for the comments on the Government's letter Annexure E, which was signed by the petitioner. They have produced Annexure F letter of the Vice Chairman based on which the Government issued Annexure G order directing to place the petitioner under suspension, alleging serious dereliction of duty. 4. Petitioner's case is that disciplinary action was set in motion on receipt of a complaint from the Secretary of Khadi Board Employees Association in which Sri. George John and the 3[rd] respondent – the Director (Administration) of the Khadi Board are members. The petitioner was an 3 W.P(C) No.27206 of 2017-A office bearer of their rival organisation - Kerala Khadi Board Employees Union. The complaint was preferred after the dismissal of the writ appeal and the 3[rd] respondent initiated the proceedings against the petitioner. Pursuant to that, Ext.P3 show cause notice was issued to the petitioner on 07.02.2017 alleging that the petitioner deliberately filed the counter affidavit incorporating contradictory statements without the permission or approval of the superior authorities of the Board. He was directed to show cause why action should not be initiated under the Kerala Khadi and Village Industries Board Service (Punishment and Appeal) Regulations, 1967. The petitioner thereupon submitted his explanation Ext.P4 denying the allegations and stating that the counter affidavit in George John's W.P.(C) No.5074 of 2015 was prepared by the Standing Counsel and pointing out the procedure followed in such cases. On 1.6.2017 the Board issued Ext.P5 charge memo on the very same issue alleging that the petitioner should have taken appropriate steps as a responsible law officer to see that the counter affidavits were not submitted with incorrect facts which are contradictory and therefore, the action of the petitioner who is expected to protect the interest of the Board amounted to serious dereliction of duty and indiscipline. Therefore, again he was asked to show cause why disciplinary W.P(C) No.27206 of 2017-A 4 action should not be taken. He was also requested to inform whether personal hearing was required. The statement of allegations annexed to the memo of charges contained 12 charges all relating to the filing of the counter affidavit and the factual aspects involved therein. The petitioner submitted Ext.P13 explanation. The petitioner challenges the action as being vitiated by political malafides. 5. While respondents assert that the petitioner is responsible for making contradictory statements in the counter affidavit, the petitioner submits that the counter affidavit in George John's case was prepared by the Standing Counsel and not by him, the respondents take the stand that it was for him to get appropriate corrections and it was done by him deliberately against the interest of the Board. Petitioner claims that what is stated in the counter affidavit is factually correct, producing Exts.P8 to P10 staff lists, Ext.P14 rules and Ext.P15 modified staff pattern. 6. The learned Senior Counsel for the petitioner argues that the entire action is vitiated by political malice and a Law Officer cannot be allowed to be proceeded against for expressing his views. At the same time, the learned Senior Counsel for the respondents argues that the Board is fully competent to proceed against any employee and if necessary to place them 5 W.P(C) No.27206 of 2017-A under suspension and both are permissible under the Regulations governing the employees and this Court will not be justified in interfering with those powers of the Board. 7. The allegations centre round the issue as to whether the post of Spinning/Weaving Inspector can be treated as one among the low paid employees eligible for consideration under the 5% quota for appointment as L.D Typist. Towards this the statement in a counter affidavit in George John's case is alleged to be the sole reason for the conclusion in the judgments Ext.P1 and P2, according to the respondents. Therefore, I am not explaining those factual issues or contentions on either side, which the petitioner has explained in the writ petition and the reply affidavit and the respondents in their statements. While the petitioner claims that the statement incorporated is borne out by the records and there is an amendment file pending, the respondents' version is that the statement is factually incorrect and not borne out by records and records will reveal only its non-existence. 8. As the disciplinary action as well as the decision to place him under suspension are under challenge, I will examine the provisions which provide for suspension. W.P(C) No.27206 of 2017-A 6 9. The Kerala Khadi and Village Industries Board Service (Punishment and Appeal) Regulations, 1967, framed under Section 34 of the Kerala Khadi and Village Industries Board Act, 1957, provides for suspension of its employees. Regulation 4 provides that the Chairman may at any time place an employee of the Board under suspension: (a) when disciplinary proceedings for grave charges is contemplated or is pending against him or (b) where a case against him in respect of any criminal offence is under investigation or trial (c) where final orders are pending in the disciplinary proceedings if the appropriate authority considers that in the then prevailing circumstances it is necessary, in the public interest that he should be suspended from service. A memo of charge is already issued in this case, which is under challenge in this writ petition. The statement filed by the respondent Board would show that the Chairman of the Board issued direction to place the petitioner under suspension on the basis of Annexure F letter of the Vice Chairman. The condition precedent for placing an employee under suspension, when he is facing disciplinary action is that the charges should be grave. The charges levelled against the petitioner in Ext. P5 memo of charge are that he acted in violation of Sections 30 and 34 of the Kerala Khadi Board Act and Rules by deliberately incorporating W.P(C) No.27206 of 2017-A 7 factually incorrect statements, contradictory to the contentions in the counter affidavit of the Board filed in another writ petition, resulting in the judgments Exts.P1 and P2, in which it is concluded that that post is one liable to be treated among low paid categories. Respondents take the stand that they have proceeded against the petitioner in accordance with rules. 10. The case of the petitioner has been that the counter affidavit filed in George John's case was prepared by the then Standing Counsel and even those statements are according to him factually correct. He asserts that there is an amendment file, which would show the correctness of the statements. 11. Contention of the petitioner that proceedings are set in motion at the instance of an employees' organisation, can be seen from Ext.P7(a) note file which contains the remarks of the 3[rd] respondent. Annexure F note is from the Vice Chairman based on which the Chairman is stated to have directed to place the petitioner under suspension. 12. The question whether a suspension could be interfered with by Courts has been considered by the Apex Court in several judgments. In _**U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan, 1993 Supp (3) SCC 483**_ **,** the Apex Court held that whether the employees should 8 W.P(C) No.27206 of 2017-A or should not continue in their office during the period of inquiry is a matter to be assessed by the authority concerned and ordinarily, the Court should not interfere with the orders of suspension unless they are passed mala fide and without there being even a prima facie evidence on record connecting the employees with the misconduct in question. ## 13. In _**State of Orissa v. Bimal Kumar Mohanty, (1994) 4 SCC**_ ## _**126**_ **,** the Apex Court held as follows: “13. It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent’s continuance in office while facing departmental inquiry or trial of a criminal charge.” W.P(C) No.27206 of 2017-A 9 14. Annexure G order or the statement filed by the respondents do not indicate any consideration by the respondents as to the necessity to keep the petitioner away from office, on the basis of evidence or as to whether his presence in office will in any way affect the disciplinary action. It would appear that the respondents have not looked into any of those questions as they are of the view that they can place any employee under suspension when there is a charge against him and according to them it is grave and suspension is therefore automatic, as an administrative routine. 15. The petitioner has challenged the disciplinary action initiated against him by way of Ext.P3 show cause notice and P5 memo of charge. The petitioner has already submitted his explanation. The petitioner would be able to defend himself as and when the enquiry is conducted, which can be held only in accordance with rules consistent with the principles of natural justice giving adequate opportunity to adduce evidence and to establish his case, including those which he has claimed in this writ petition on the basis of the note file. Therefore, I do not find any reason for interfering with the disciplinary action, even assuming that the disciplinary proceedings are initiated on the basis of the complaint received from an employees' organisation. 10 W.P(C) No.27206 of 2017-A 16. However, the decision to place the petitioner under suspension is taken as an administrative routine. The question whether the suspension of the petitioner, is warranted at all at this stage in a case of this nature when allegations are all relating to the statements in the counter affidavit and the judgments Exts.P1 and P2, and whether a Law officer should be placed under suspension if at all the judgment came out against the respondent Board, etc. are not at all seen considered by the respondents while issuing Annexure G order. Annexure G order is therefore unsustainable. 17. In these circumstances, I am of the considered view that there is no basis for placing the petitioner under suspension, at this stage. Therefore, there shall be a direction to allow the petitioner to continue in service, without prejudice to the disciplinary action. The writ petition is disposed of accordingly. Sd/- **(** _**P.V.ASHA, JUDGE**_ **)** rtr/