T.B. Pradeep v. Kollam Municipal Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 27TH DAY OF JUNE 2016/6TH ASHADHA, 1938** **OP(KAT).No. 50 of 2016 (Z)** **---------------------------** **AGAINST THE ORDER IN OA(EKM)No. 1224/2015 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM (CAMP SITTING AT ERNAKULAM) DATED 10.3.2016** ## **PETITIONER(S)/APPLICANT IN OA :** **------------------------------------------------** **T.B.PRADEEP CHAIRMAN (UNDER SUSPENSION), ZONAL OFFICE, ERAVIPURAM, KOLLAM CORPORATION, KOLLAM-691 011. RESIDING AT NARASIMHA VILAS, TRA 49, THEVALLY P.O., KOLLAM DISTRICT-691 009.** **BY ADVS.SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN** ## **RESPONDENT(S)/RESPONDENTS IN O.A.:** **----------------------------------------------------------** **1. KOLLAM MUNICIPAL CORPORATION MUNICIPAL CORPORATION OFFICE, KOLLAM, PIN-691 001, REPRESENTED BY ITS SECRETARY.** **2. THE SECRETARY KOLLAM MUNICIPAL CORPORATION, MUNICIPAL CORPORATION OFFICE, KOLLAM-691 001.** **3. THE MAYOR KOLLAM MUNICIPAL CORPORATION, MUNICIPAL CORPORATION OFFICE, KOLLAM-691 001.** **4. DIRECTOR OF URABAN AFFAIRS DIRECTORATE OF URBAN AFFAIRS, PUBLIC OFFICE BUILDING, MUSEUM P.O., THIRUVANANTHAPURAM-695 033.** ## **R1&2 BY ADV. SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM MUNICIPAL CORPORATION** ## **R4 BY GOVERNMENT PLEADER (SR) SRI K.C.VINCENT** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 27-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT).No. 50 of 2016 (Z) ------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------------------EXT.P1 TRUE COPY OF THE MEMORANDUM OF O.A(EKM)NO.1224/2015 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM(CAMP SITTING AT ERNAKULAM). EXT.P2 TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 2ND RESPONDENT IN O.A(EKM)NO.1224/2015 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. (CAMP SITTING AT ERNAKULAM) EXT.P3 TRUE COPY OF THE REJOINDER FILED ON BEHALF OF THE APPLICANT IN O.A(EKM)NO.1224/2015 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. (CAMP SITTING AT ERNAKULAM). EXT.P4 TRUE COPY OF THE ORDER DTD.10.3.2016 IN O.A(EKM)NO.1224/2015 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. (CAMP SITTING AT ERNAKULAM).** ## **RESPONDENT(S)' EXHIBITS** **----------------------------------------** ## **NIL** ## **//True Copy//** **P.A. To Judge** **Bb** ## **P.R. RAMACHANDRA MENON & ANIL K. ARENDRAN, JJ. ------------------------------------------------------O.P.(KAT)No.50 of 2016 ------------------------------------------------------Dated this the 27[th] June, 2016** ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner is the applicant in O.A.(EKM)No.1224/2015 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram. The petitioner, while working as Chainman in the Zonal Office of Kollam Corporation at Eravipuram was placed under suspension with effect from 03.09.2015 alleging misbehavior, dereliction of duty and insubordination, vide Annexure A1 order dated 03.09.2015. Aggrieved by the order of suspension, the petitioner has approached the Tribunal in O.A.(EKM)No.1224/2015 seeking a declaration that Annexure A1 order issued by the 2[nd] respondent is illegal and without authority of law and it is against the dictum laid down by this Court in Annexure A2 judgment. He has also sought for an order to set aside Annexure A1 order and further direction to the 2[nd] respondent to reinstate him in service from the date of suspension, i.e., with effect from 03/09/2015 and to pay him salary and other service benefits during the period of suspension, treating the said period as duty for all purpose. O.P.(KAT) No.50 of 2016 : 2 : 2. The Tribunal by Ext.P4 order dated 10.03.2016, dismissed the original application, declining interference on Annexure A1 order, however with a direction that the disciplinary proceedings as against the petitioner will be completed by the respondents as expeditiously as possible, at any rate within a period of 'three months' from the date of receipt of the certified copy of the order, with a further direction to disburse the subsistence allowance due to the petitioner from time to time including arrears, if any. Feeling aggrieved by Ext.P4 order passed by the Tribunal, the petitioner is before this Court in this original petition. 3. We heard the arguments of the learned counsel for the petitioner, the learned Standing Counsel for the Kollam Municipal Corporation, representing respondents 1 to 3 and also the learned Senior Government Pleader appearing for the 4[th] respondent. 4. The pleadings and materials on record would show that while the petitioner was working as Chainman in the Zonal Office of Kollam Corporation at Eravipuram, he was placed under suspension by Annexure A1 order. Challenging Annexure A1 order, the petitioner has approached the Tribunal in O.A. O.P.(KAT) No.50 of 2016 : 3 : (EKM)No.1224/2015, contending that the 2[nd] respondent, the Secretary of Kollam Municipal Corporation has no power or authority to place him under suspension. In support of the said contention, the petitioner has relied on the judgment of this Court in **Pramod Kumar v. State of Kerala (2005 (4) KLT 396)** in which it was held that the scheme of the Municipalities Act, 1994 does not confer on the Secretary of a Municipality the power to place the employees of the Municipality under suspension. 5. In Pramod Kumar's case (supra), after referring to the relevant provisions of the Municipalities Act this Court held that the Secretary, who is empowered to take disciplinary action, shall intimate the same to the Chairperson before he acts and the Chairperson on getting knowledge of that fact from the Secretary will be at liberty to decide as to what action he shall have to take. The Chairperson is free to decide whether suspension of the employee is necessary by invoking the power conferred on him under Section 15(6) of the Act. The scheme of the Act also shows that no suspension order can remain in force unless the Council, which is the democratically elected body competent to take binding O.P.(KAT) No.50 of 2016 : 4 : decisions relating to the functions and all other affairs of the Municipality, ratifies the suspension. 6. The Tribunal, after perusing the original resolution, repelled the contention of the petitioner that it is the Secretary of the Municipality who has suspended him. The Tribunal concluded that Annexure A1 order is only a dependent and consequential order issued by the Secretary of the Municipality after the Mayor took the decision. Accordingly, the Tribunal by Ext.P4 order declined interference on Annexure A1 order of suspension. Paras.8 to 10 of Ext.P4 order read as follows; “8. We find from Annexure R2(a) that the Secretary after referring to the basic aspects including the complaint, etc. has recommended to suspend him. The name of an enquiry officer has also been stated and it was submitted to the Mayor for approval. The Mayor has approved the same obviously under his signature. For taking further action, permission was sought, which was also granted by the Mayor under his signature. Annexure R2(b) will show that the Council in its meeting held on 18.9.2015 ratified the same. 9. Even though it is vehemently contended by the learned counsel for the applicant that it is the Secretary who has suspended the applicant, we cannot agree. As rightly pointed out by the learned counsel for the Corporation, the Secretary has put a note before the Mayor which was necessary in the light of the legal O.P.(KAT) No.50 of 2016 : 5 : provisions and initiation of disciplinary action was the prerogative of the Secretary and the Mayor had to take a decision to suspend the employee. It is submitted that merely because it is on the basis of a note submitted by the Secretary, since it is ordered by the Mayor under his signature there is no violation of the provisions of the Act or the Rules. It is submitted that the order of suspension was issued only after the Mayor approved the same. Therefore, there is no illegality in the suspension order. 10. We find much force in the submission of the learned counsel for the Corporation. Only after the Mayor put his signature in the original of Annexure R2(a), the order of suspension has been issued and the file note will show that after the Mayor singed the same the file was returned to the section for further action. Therefore, it cannot be stated that the Secretary without the junction of the Mayor has suspended the applicant. Even if Annexure A1, definitely is the consequential proceedings issued under the signature of the Secretary, the same is only a dependent and consequential order issued after the Mayor took the decision. It was open for the Mayor to disagree with the note and direct not to place the applicant under suspension, but it was not done. Therefore, the final decision rested with the Mayor and it was not the sole decision of the Secretary as contended by the learned counsel for the applicant. Therefore, we find no reason to interfere with the order of suspension.” 7. By order dated 24.06.2016 this Court has directed the Standing Counsel for the Kollam Municipal Corporation to O.P.(KAT) No.50 of 2016 : 6 : produce the files leading to Annexure A1 order. We have perused the said file. 8. During the course of argument, it was brought to our notice that, subsequent to Ext.P4 order passed by the Tribunal, the disciplinary enquiry against the petitioner has already been completed and the matter is now pending consideration before the Government. We notice that, though the Tribunal by Ext.P4 order declined interference on Annexure A1 order of suspension, the respondents were directed to complete the disciplinary proceedings against the petitioner as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of the order. The Tribunal has also directed the respondents to disburse the subsistence allowance due to the petitioner from time to time, including arrears, if any. In spite of the said direction in Ext.P4 order, the disciplinary proceedings initiated against the petitioner is yet to be completed. In such circumstances, we find absolutely no justification on the part of the part of the respondents in not reinstating the petitioner in service, without prejudice to the pending proceedings. We also find that, an adjudication as to the legality or otherwise of O.P.(KAT) No.50 of 2016 : 7 : Annexure A1 order of suspension is not warranted at this point of time, and the said issue can be left open to be raised by the petitioner at the time of consideration of the question of regularisation of his period of suspension, based on the outcome of the disciplinary proceedings pending against him. Therefore, leaving open all the contentions raised by the petitioner against Annexure A1 order of suspension, the petitioner can be directed to be reinstated in service, without prejudice to further proceedings, if any, to be pursued against him, based on the findings in the disciplinary enquiry. In the result, this original petition is disposed of directing respondents 1 to 3 to reinstate the petitioner in service, without prejudice to further proceedings, if any, to be pursued against him, based on the findings in the disciplinary enquiry. Necessary orders in this regard shall be issued and the petitioner shall be reinstated in service within a period of 'two weeks' from the date of receipt of a certified copy of this judgment. The disciplinary proceedings pending against the petitioner shall be finalised as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. The petitioner shall also be O.P.(KAT) No.50 of 2016 : 8 : disbursed with the arrears of subsistence allowance, if any, as on the date of reinstatement, within the said period of one month. The original files leading to Annexure A1 order is returned to the Standing Counsel for Kollam Corporation. Sd/- **P.R. RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** Bb True copy P.A. to Judge