Sudeep K.T. v. Malabar Cancer Centre and others

_**WP(C).21391/21**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943** **WP(C) NO. 21391 OF 2021** ## **PETITIONER/S:** SUDEEP K.T. AGED 44 YEARS S/O. C.V.AMBU MASTER PRATHEEKSHA, ONNAKKUNNU, KARIVELLUR P.O., KANNUR-670 521 WORKING AS HOD (DEPARTMENT OF ENGINEERING & MAINTENANCE) (UNDER SUSPENSION) MALABAR CANCET CENTRE, P.O MOOZHIKKAR,A THALASSERY, KANNUR-670 103. BY ADVS. K.P.PRADEEP HAREESH M.R. RASMI NAIR T. T.T.BIJU T.THASMI M.J.ANOOPA ## **RESPONDENT/S:** 1 MALABAR CANCER CENTRE P.O. MOOZHIKKARA, THALASSERY KANNUR-670 103 REPRESENTED BY ITS DIRECTOR. 2 THE DIRECTOR MALABAR CANCER CENTRE, P.O MOOZHIKKARA, THALASSERY, KANNUR-670 103. 3 ENQUIRY OFFICER FOR DOMESTIC ENQUIRY MALABAR CANCER CENTRE, THALASSERY, KANNUR-670 103. BY ADV P.SREEKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _**WP(C).21391/21**_ 2 ## **V.G.ARUN, J.** ## **----------------------------------------------W.P(C).No. 21391 of 2021 ----------------------------------------------Dated this the 2[nd] day of March, 2022** ## **JUDGMENT** The petitioner, while holding the post of Head of the Department (Department of Engineering and Maintenance) in the Malabar Cancer Centre, was issued with Exhibit P1 memo of charges dated 18.3.2020. The petitioner replied to the memo of charges under Exhibit P2. Thereafter, he was served with Exhibit P3 suspension order dated 28.3.2020. The period of suspension, which was initially for three months, was extended from time to time. Exhibit P3 is one such order extending the suspension period from 27.6.2021 to 26.9.2021. As the petitioner was not communicated with any order before 26.9.2021, extending the period of suspension, he submitted Exhibit P4 request seeking reinstatement in service. Later, the petitioner was served with Exhibit P5 communication dated 25.9.2021, informing him that the period of suspension is extended from 27.9.2021 to 26.12.2021. The specific case of the petitioner is that Exhibit P5 is pre-dated and issued after the period of suspension had elapsed and on receipt of Exhibit _**WP(C).21391/21**_ 3 P4 request for reinstatement. 2. Learned counsel for the petitioner contended that, the period of suspension having elapsed, there cannot be any further extension and the respondents were bound to reinstate the petitioner in service. Even otherwise, the petitioner cannot be placed under suspension indefinitely. In support of this contention, reliance is placed on the decision of the Apex Court in _**Ajay Kumar Choudhary v. Union of India**_ **,** [(2015) 7 SCC 291]. Yet another contention is that, whenever the period of suspension is extended, the disciplinary authority is bound to state reasons for the extension. 3. The learned Standing Counsel for the 1[st] respondent refuted the allegation. Exhibit P5 was pre-dated and issued after the period mentioned in Exhibit P5 had elapsed. In this regard, explanation is made in the statement filed by the 1[st] respondent, the contextually relevant portion of which reads as under; _“8. The petitioner in this writ petition assails Exhibit P5 communication alleging that the same was ante dated and no decision to extend his suspension was taken by the authorities. It is submitted that the said allegation is baseless. The concerned file relating to the extension of suspension of the petitioner was placed before the 2[nd] respondent on 23.9.2021 for his consideration and on the same day the decision to extend the period of suspension for_ _**WP(C).21391/21**_ 4 _a further period of three months. Based on this the draft letter for communication was prepared and placed for approval on 25.9.2021. But there occurred some delay in communicating the letter to the petitioner in the administrative office._ _9. This respondent submits that the reason for the dewlay in communicating Exhibit P5 was sought for from the Administrative Officer. His reply shows that there was a flurry of questions under the Right to Information Act, and each application carried 30 plus questions with 50 plus sub questions. The Administrative Officer being the Public Information Officer, was preoccupied with the above requests. In the meanwhile the person assisting him went on leave since his wife and son tested positive to COVID. In the said circumstances there occurred a delay in communicating Exhibit P5 letter to the petitioner.”_ 4. In reply, learned counsel for the petitioner submitted that the petitioner could not have sought reinstatement immediately after 26.9.2021, he being the Head of a Department and another person having been given charge of that office. Therefore, the petitioner waited for the order of reinstatement for a reasonable period before raising the claim. 5. Answering the contention that the suspension cannot be extended indefinitely, it is submitted that the petitioner was suspended only after issuing him with memo of charges and seeking his explanation. According to the learned Standing Counsel, the delay in completing the enquiry is not attributable to the _**WP(C).21391/21**_ 5 employer. It is assured that all efforts would be taken to complete the enquiry within three months. 6. I find merit in the contention of the learned counsel for the petitioner that there cannot be an indefinite suspension. In this regard, the following observations of the Honourable Supreme Court in _**Ajay Kumar Choudhary's case**_ (supra) assume relevance; _“11. Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the memorandum of charges, and eventually culminate after even longer delay._ _**12.** Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is, to determine his innocence or iniquity._ _**WP(C).21391/21**_ 6 _Much too often this has now become an accompaniment to retirement. Indubitably, the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the accused. But we must remember that both these factors are legal ground norms, are inextricable tenets of Common Law Jurisprudence, antedating even the Magna Carta of 1215, which assures that — “We will sell to no man, we will not deny or defer to any man either justice or right.” In similar vein the Sixth Amendment to the Constitution of the United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial.”_ 7. In order to answer the contention that the period of suspension had lapsed on 26.9.2021, the allegation of Exhibit P5 having been pre-dated and issued, will have to be considered, as against the explanation offered by the 1[st] respondent. 8. It is contended that the petitioner was well aware that the period of suspension had been extended before expiry and that is the reason for issuing Exhibit P4 seeking reinstatement only on 4.10.2021. Otherwise, he would have raised the claim immediately after 26.9.2021. 9. This Court is not expected to resolve such factual disputes in a writ petition filed under Article 226 of the Constitution of India. In my considered opinion, it would be more appropriate to take into _**WP(C).21391/21**_ 7 consideration the submission of the learned counsel for the 1[st] respondent that the enquiry can be completed within three months and the submission of the learned counsel for the petitioner that the petitioner has been and will continue to co-operate with the enquiry and direct the enquiry to be completed within three months. In the result, the writ petition is disposed of recording the submission made on behalf of the 1[st] respondent that the enquiry initiated with the issuance of Exhibit P1 will be completed within a period of three months. **Sd/-** **V.G.ARUN, JUDGE** _vgs_ _**WP(C).21391/21**_ 8 ## **APPENDIX OF WP(C) 21391/2021** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF THE MEMO OF CHARGES DATED 18.3.2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. - Exhibit P2 TRUE COPY OF PETITIONER'S REPLY TO THE MEMO OF CHARGES DATED 24.3.2020. - Exhibit P3 TRUE COPY OF THE ORDER OF SUSPENSION NO.010/20/MCC DATED 28.3.2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. - Exhibit P3(A) TRUE COPY OF THE ORDER NO.MCC/Q6/20/MCC FOR EXTENSION OF SUSPENSION DATED 15.6.2021 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. - Exhibit P4 TRUE COPY OF THE APPLICATION DATED 4.10.2021 SUBMITTED BY THE PETITIONER. - Exhibit P5 TRUE COPY OF THE ORDER MCC/Q-6/20/MCC DATED 25.9.2021 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. - Exhibit P6 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 23.11.2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. - Exhibit P7 TRUE COPY OF THE REPLY DATED 4.12.2019 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. - Exhibit P8 TRUE COPY OF THE OFFICE ORDER NO.Q3/AO/19/MCC DATED 19.11.2019 ISSUED BY THE 2ND RESPONDENT. - Exhibit P9 TRUE COPY OF THE REQUEST DATED 12.11.2020 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. - Exhibit P10 TRUE COPY OF THE ORDER NO.179-ADMIN- _**WP(C).21391/21**_ 9 09/MCC/2020/1739 DATED 25.7.2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. Exhibit P11 TRUE COPY OF THE COUNTER STATEMENT DATED 6.10.2020 FILED BY THE PETITIONER IN ENQUIRY PROCEEDING NO.1/2020. Exhibit P12 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 2ND RESPONDENT IN ENQUIRY PROCEEDING NO.1/2020.