## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN**
**&**
**THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR**
**WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945**
**WA NO.900 OF 2022**
**JUDGMENT DATED 16.9.2021 IN WP(C) NO.33322 OF 2017 OF HIGH COURT OF KERALA**
**-------------------**
## **- APPELLANTS/RESPONDENTS :**
**1 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, DEVASWOM HEAD QUARTERS, KOWDIAR, NANDANCODE, THIRUVANANTHAPURAM – 695 034.**
- **2 DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, KOWDIAR, NANDANCODE, THIRUVANANTHAPURAM – 695 034.**
- **3 DEVASWOM ACCOUNTS OFFICER, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, KOWDIAR, NANDANCODE, THIRUVANANTHAPURAM – 695 034.**
**BY ADV C.K.PAVITHRAN**
## **- RESPONDENT/PETITIONER :**
**PREMACHANDRAN NAIR, AGED 64, S/O.KRISHNAN NAIR, SRUTHI HOUSE, SUBRAMANIA IYER ROAD, THIRUNAKKARA, KOTTAYAM.**
**BY ADV C.S.MANILAL**
**THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON**
**27.02.2024, THE COURT ON 13.03.2024 DELIVERED THE FOLLOWING:**
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## **ANU SIVARAMAN, J. & C. PRATHEEP KUMAR, J.**
= **= = = = = = = = = = = = = = = = = = W.A. No.900 of 2022**
**= = = = = = = = = = = = = = = = = = = Dated this the 13th day of March, 2024**
## **JUDGMENT**
## **Anu Sivaraman J.**
1. Heard the learned counsel for the appellants and the learned counsel appearing for the respondent.
2. The contention of the appellants in this writ appeal is that the learned single Judge went wrong in considering the writ petition, which was filed in the year 2017 with regard to regularisation of period of suspension of the petitioner from 10.8.1994 to 19.3.1996 and 3.7.1997 to 8.4.1998. The writ petition was filed by the respondent, who joined service of the Travancore Devaswom Board as Panchavadyam artist on 5.10.1988. He was thereafter posted as Watcher and retired from service on 31.5.2013.
3. It was his specific contention that by Exhibits P1 and P2 orders he was reinstated after the 1[st] spell of suspension on 19.3.1996 and after the 2[nd] spell on 8.4.1998. It is stated that no
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disciplinary proceedings had been conducted against the respondent. Though Exhibit P3 memo of charges was issued on 29.12.2000, nothing further was done. The respondent, therefore, submitted Exhibit P4 request on 23.8.2003 as well as Exhibit P8 request dated 2.7.2013 seeking regularisation of the period of suspension, since no disciplinary proceedings had been conducted or completed. It is stated that Exhibit P10 reply was issued on 29.8.2017 stating that the periods of suspension had already been regularised as Leave Without Allowances (LWA) and therefore he is not entitled to the benefits sought for by him. The writ petition had been filed challenging the said order.
4. No counter affidavit was filed by the appellants, who were respondents before the learned single Judge. However, it was contended that the writ petition filed in the year 2017 was highly belated in view of the fact that the orders adverse to the petitioner's interest were passed much earlier and that the said orders were not under challenge.
5. The learned single Judge considered the contentions and found that there were no records available with the appellant employer
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with regard to the suspension of the petitioner, the disciplinary proceedings or the regularisation of the suspension. Considering the provisions of Rule 56B of Part I KSR, the learned single Judge held that an order regularising the period of suspension as Leave Without Allowance could have been passed only taking note of the necessity for keeping the employee under suspension and after notice and hearing the respondent. It was found that in view of the fact that there were no disciplinary proceedings which were continued or concluded against the employee, it can only be considered that the suspension was completely without any justification. In the above circumstances, the learned single Judge quashed Exhibit P10 and directed the 2[nd] respondent to pass orders treating the period of suspension as duty and to grant him all consequential benefits.
6. Along with the appeal filed challenging the judgment, Annexure A service book of the respondent was produced and it was contended that the fact of regularising the suspension as LWA had been noted at page 23 thereof. It is contended that since the fact of regularising the suspension as LWA is noted in the service book, the respondent was very well aware of the fact and he
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ought to have challenged the said orders well in time. It is contended that the writ petition was filed belatedly and ought to have been dismissed.
7. A counter affidavit has been filed by the respondent pointing out that the endorsement made in the service book was without following the mandatory provisions of the KSR with regard to notice and hearing before an order regularising the period of suspension is passed. It is stated that there was no order passed and that the orders referred to in the service book are general orders dated 15.10.1990, which are produced as Exhibit R1(a). It is contended that it was against the wrong recording in the service book that the writ petitioner had filed representations which were ultimately rejected only in 2017. It is submitted that since there were no legal orders passed regularising the period of suspension as LWA, the conclusion reached by the learned single Judge was only just and proper.
8. We have considered the contentions advanced. It is evident from Exhibits P1 and P2 produced along with the writ petition that the writ petitioner had been suspended from service and later
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reinstated on the dates as claimed by him. However, no orders are forthcoming to show how the period of suspension was treated by the respondents. It is evident from Exhibit P10 that the contention of the respondent was that the files had been lost and that there is no documentary evidence to defend the case. Exhibit R1(a) produced by the respondent in this writ appeal would show that the numbers of the orders which are referred in the noting in the service book correspond to a general order issued on 15.10.1990 which is endorsed by the Assistant Commissioner on 7.11.1990. Exhibit R1(a) is the order which is referred to in the noting in the service book. The noting cannot be sustained as there is no order as contemplated under Rule 56B of Part I KSR regularising the period of suspension with notice to the employee. Further, the appellant has no case that any disciplinary proceedings had been taken against the respondent which would justify the conclusion that the period of suspension was to be treated as LWA. In the absence of anything to suggest that there were any disciplinary proceedings initiated or concluded against the respondent, we are of the opinion that the contention of the respondent that the suspension was wholly unjustified and the finding of the learned single Judge that the
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period of suspension has to be treated as duty is completely justified. The respondent had been submitting representations from the year 2003 onwards, which were finally answered only by Exhibit P10, which was challenged soon thereafter before this Court. We are unable to accept the contention of the learned counsel appearing for the appellant that the writ petition was hopelessly belated and ought to have been dismissed.
9. The learned counsel brought to our notice a decision of the Apex Court in **Delhi Development Authority v. Hello Home Education Society** [2024 KHC 6027] to contend that a litigant, who is not diligent cannot invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India. However, the same decision is authority on the point that it is only when a decision is taken and duly communicated on the party that a right to challenge the order arose. In the instant case, no such order of regularisation of the period of suspension is on record. We are of the opinion that in the instant case, the delay was on the part of the respondent in answering the representations preferred by the petitioner contending that the period of suspension is liable to be treated as duty. In the above
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view of the matter, we are of the opinion that this is not a fit case for interference with the judgement of the learned single Judge exercising the discretionary jurisdiction under Article 226 of the Constitution of India.
10.The writ appeal fails and the same is accordingly dismissed.
**Sd/Anu Sivaraman, Judge**
**Sd/C. Pratheep Kumar, Judge**
sj29/2
