SURESHKUMAR G. v. KERALA AGRICULTURAL UNIVERSITY

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 20[TH] DAY OF JUNE 2022 / 30TH JYAISHTA, 1944** **WP(C) NO. 17825 OF 2019** ## **PETITIONER:** **SURESHKUMAR G., S/O. GOVINDAN NAIR K.S, PUTHUPPALLIL HOUSE, KOTTAMPACK P.O., NEEZHOOR, KOTTAYAM - 686612.** ## **BY ADV.DR.GEORGE ABRAHAM** ## **RESPONDENTS:** - **1 KERALA AGRICULTURAL UNIVERSITY, K.A.U. P.O., VELLANIKKARA, THRISSUR, REPRESENTED BY ITS REGISTRAR, PIN - 680654.** - **2 REGISTRAR, KERALA AGRICULTURAL UNIVERSITY, K.A.U. P.O., VELLANIKKARA, THRISSUR, PIN - 680 654.** - **3 ASSOCIATE DIRECTOR, REGIONAL AGRICULTURAL RESEARCH STATION, KERALA AGRICULTURAL UNIVERSITY, KUMARAKOM, KOTTAYAM DISTRICT, PIN - 686563.** - **4 DEPUTY DIRECTOR, KERALA STATE AUDIT DEPARTMENT, KERALA AGRICULTURAL COLLEGE AUDIT OFFICE, VELLAYANI, THIRUVANANTHAPURAM, PIN- 695522.** **BY ADV SRI.SURYA BINOY, SC, KERALA AGRICULTURAL UNIVERSITY SMT. LEKSHMI RANI -SC, SMT. RESMI THOMAS - GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **20.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 17825 OF 2019** **-2-** ## **JUDGMENT** The petitioner, while working as a driver in the services of the 1[st] respondent - University, was placed under suspension between 04.04.2012 and 31.12.2012, since he was implicated as an accused in a criminal case. 2. The petitioner says that, admittedly, he was acquitted by the Criminal Court; resultant to which, the University decided to terminate the disciplinary action against him, without any punishment being imposed. He says that, however, they issued Ext.P2 order, treating the period between 04.04.2012 and 31.12.2012 as Leave Without Allowance (LWA) and further ordered that the same will not be reckoned for the purposes of pension. He says that, to make matters worse, the University has now decided to recover the amount of subsistence allowance paid during the period when he was under suspension. He thus contends that both the above actions are illegal and unlawful. 3. Dr.George Abraham – learned counsel for the ## **WP(C) NO. 17825 OF 2019** **-3-** petitioner, vehemently asserted that, when the University themselves terminated the disciplinary action proposed against his client, consequent to him being acquitted by the Criminal Court, they obtained no jurisdiction to have issued Ext.P2, reckoning the period of suspension as being LWA and further ordering that the subsistence allowance during the said period be recovered. 4. The learned counsel then argued that, when the University themselves withdrew the disciplinary action without any request from the side of his client, it can only be taken that they were fully aware that the allegations against the petitioner were frivolous and untenable; and consequently, that the aforementioned period ought to have been regularized and reckoned for all purposes, including for service and pensionary benefits. He thus prayed that Ext.P2 be set aside and the University be directed to reckon the period when his client was under suspension as service for all benefits and disburse to him all eligible **WP(C) NO. 17825 OF 2019** **==> picture [22 x 9] intentionally omitted <==** amounts, without recovering any sums, as they have now proposed. 5. The learned Standing Counsel for the 1[st] respondent – University, Smt.K.L.Lekshmi Rani, submitted that Ext.P2 cannot be faulted, because the petitioner was placed under suspension preparatory to a disciplinary action against him, since he had been implicated in a criminal case and remanded to judicial custody. She argued that since the petitioner was under such custody for 14 days, the University could have done nothing more than to have suspended him and to initiate disciplinary action against him. She however, conceded, as argued by Dr.George Abraham, that when the petitioner was exonerated by the Criminal Court, the University took a decision to reinstate him in service and terminate the disciplinary action. She submitted that, however, the period of suspension was confirmed and consequently, that his benefits for that period was decided to be withdrawn and to treat the same as being not ## **WP(C) NO. 17825 OF 2019** **-5-** reckonable for the purpose of other benefits, including retiral. She thus prayed that this writ petition be dismissed. 6. I am afraid that I cannot find favour with the afore submissions of the University because, going by Ext.P2 order itself, they say that they had decided to terminate the disciplinary action, on the petitioner having been acquitted by the criminal Court; thus to mean that they were also of the opinion that the imputations against the petitioner were not tenable or proved. 7. Therefore, when the disciplinary action itself was terminated, normally, the period of suspension ought to have been regularized and all benefits granted. However, strangely, even after finding that the petitioner is not guilty and that no disciplinary action requires to be taken against him, the period between 04.04.2012 and 31.12.2012 has been approved to be the period of suspension; and to exacerbate, the University has chosen to recover his ## **WP(C) NO. 17825 OF 2019** **-6-** subsistence allowance paid during that period. 8. There can be no doubt that the afore actions of the University are in conflict with the settled provisions of law, particularly when no detriment could have been imposed upon the petitioner without a proper enquiry, which they themselves chose to terminate, as is evident from Ext.P2. 9. I am persuaded to the afore view also because another learned Judge of this Court has in _**P.Madhusoodanan v. Kerala State Electricity Board**_ [W.P.(C)No.31999 of 2008] dealt with similar issues, particularly as to whether the subsistence allowance paid to an employee can be recovered from Death-cumRetirement Gratuity (DCRG), to find to the negative. Resultantly, I order this writ petition and set aside Ext.P2; with a consequential direction to the competent Authority of the University to disburse the petitioner all eligible amounts as are due to him, including with respect to his retiral benefits, **WP(C) NO. 17825 OF 2019** **-7-** reckoning the period between 04.04.2012 and 31.12.2012 as being eligible for all service benefits. The afore shall be done as expeditiously as is possible, but not later than four months from the date of receipt of a copy of this judgment. **Sd/DEVAN RAMACHANDRAN JUDGE** akv ## **WP(C) NO. 17825 OF 2019** **-8-** ## **APPENDIX OF WP(C) 17825/2019** ## **PETITIONER EXHIBITS** EXHIBIT P1 TRUE COPY OF THE SUSPENSION ORDER ISSUED BY THE UNIVERSITY TO THE PETITIONER DATED 04.05.2012. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 13.08.2018 ISSUED BY THE UNIVERSITY. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 29.01.2019 ISSUED BY THE UNIVERSITY. EXHIBIT P4 TRUE COPY OF THE ORDER ISSUED BY THE SENIOR DY.COMPTROLLER DATED 14.03.2019. - EXHIBIT P5 TRUE COY OF THE ORDER DATED 15.03.2019 ISSUED BY THE UNIVERSITY. - EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 23.11.2018 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT - EXHIBIT P7 TRUE COY OF THE ORDER DATED 02.05.2019 ISSUED BY THE 1ST RESPONDENT UNIVERSITY. ## **RESPONDENT EXHIBITS** EXHIBIT R1(a) TRUE COPY OF THE LETTER DATED 24.11.2017 ISSUED BY THE PETITIONER EXHIBIT R2(b) TRUE COPY OF THE PROCEEDINGS OF THE KERALA STATE AUDIT DEPARTMENT KSA(AGC) V3/293/2018 DATED 27.11.2018 EXHIBIT R3(c) TRUE COPY OF THE LETTER ISSUED BY THE ASSOCIATE DIRECTOR TO THE COMPTROLLER, KAU DATED 01.02.2019.