VIJAYAKUMAR S. v. DISTRICT COLLECTOR, DTPC

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 16[TH] DAY OF JUNE 2023 / 26TH JYAISHTA, 1945** **WA NO. 790 OF 2023** **AGAINST THE JUDGMENT DATED 31.03.2023 IN W.P.(C.)NO.34094/2022 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **VIJAYAKUMAR S., AGED 49 YEARS S/O. LATE SADASIVAN NAIR, WORKING AS GENERAL MANAGER (PROJECTS AND ADMINISTRATION), DISTRICT TOURISM PROMOTION COUNCIL (DTPC), OPPOSITE RAJENDRA MAIDAN, ERNAKULAM-682 011, RESIDING AT KAILAS, ONAMTHURUTH P.O., KOTTAYAM, PIN - 686602** **BY ADVS. MOLTY MAJEED C.A.MAJEED K.H.ASIF P.B.UNNIKRISHNAN NAIR RUBEN GEORGE ROCK** ## **RESPONDENTS/RESPONDENTS:** - **1 THE DISTRICT COLLECTOR, COLLECTORATE, 1ST FLOOR, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN - 682030** **2 DISTRICT TOURISM PROMOTION COUNCIL (DTPC), REPRESENTED BY ITS SECRETARY, OPPOSITE RAJENDRA MAIDAN, ERNAKULAM-682011,** W.A. No. 790 of 2023 - : 2 :- ## **PIN - 682011** **R1 BY SRI.B.UNNIKRISHNA KAIMAL, SENIOR GOVERNMENT PLEADER** **R2 BY SMT.ALEXY AUGUSTINE, STANDING COUNSEL, DTPC BY ADV. GEORGE A.CHERIAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. No. 790 of 2023 - : 3 :- ## **ALEXANDER THOMAS & C. JAYACHANDRAN, JJ.** ================== **W.A.No. 790 of 2023** _(arising out the impugned judgment dated 31.03.2023 in W.P.(C.) No. 34094/2022)_ ================== Dated this the 16[th] day of June, 2023 ## **JUDGMENT** ## Alexander Thomas, J. The instant intra-court appeal filed under Section 5(i) of the Kerala High Court Act, 1958 is directed against the impugned judgment rendered by the learned Single Judge on 31.03.2023 disposing of W.P.(C.) No. 34094/2022. The appellant herein is the petitioner and the respondents herein are the respondents in the writ petition. 2. Heard Smt. Molty Majeed, learned counsel appearing for the sole appellant, Sri. B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for the 1[st] respondent and Smt. Alexy Augustine, learned Standing Counsel for the District Tourism Promotion Council (DTPC), appearing for the 2[nd] respondent. 3. The prayers in the instant W.P.(C.) No. 34094/2022 reads as follows:- - _“(i) Issue a writ of certiorari or any other appropriate writ order or direction, quashing Exhibit P2 and Exhibit P3 as illegal, unjust and arbitrary;_ - _(ii) Issue a writ of mandamus or any other appropriate writ order or direction, directing the 2[nd] and 3[rd] respondent to immediately reinstate the petitioner in service with effect_ W.A. No. 790 of 2023 - : 4 :- _from 25.10.2022;_ - _(iii) Declare that the issuance of Ext.P2 and P3 as illegal, unjust and arbitrary;_ - _(iv) Dispense with the translation of documents in vernacular language which are marked as Exhibits;_ - _v) Pass such other writ, order or direction as prayed for by the petitioner in due course which shall be just and proper; and_ - _vi) award the cost of the petitioner.”_ 4. The specific case of the writ petitioner in the writ petition is that he has never been suspended from service in the manner under law, even though an order in the nature of Ext.P3 dated 20.10.2022, issued by the 1[st] respondent-District Collector, who is the Chairperson of the 2[nd] respondent-DTPC, directing that the petitioner has been ordered to be placed away from work (“ഒഴഴവവകഴ ”) and therefore, there is no suspension from service in the eye of law and that therefore, the petitioner is entitled for reinstatement forthwith. 5. The above said plea has been seriously opposed by the learned Senior Government Pleader and the learned Standing Counsel appearing for the respective two respondents concerned. Ext.P2 is the notice dated 22.10.2022 issued by the Secretary of the 2[nd] respondent-DTPC and Ext.P3 dated 20.10.2022 is the basic decision taken by the 1[st] respondent District Collector, who is the Chairperson of the 2[nd] respondent DTPC, in the matter. W.A. No. 790 of 2023 - : 5 :- ## 6. Ext.P2 dated 22.10.2022 reads as follows:- "ന� _.102/2022_ ഡഴറഴപഴസഴ _/_ ഇക�എ� ത�യതഴ _: 22.10.2022_ നനവട�സ� വഴഷയ� _: -_ ഡഴറഴപഴസഴ _-_ എറണവ��ള� _-_ ശ�� _._ വഴജയ��മവർ എസ� _(GM, Project & Administration)_ കന _-_ നഴലവഴകല എലവ ച�മതല�ളഴൽ നഴന�� ഒഴഴവവകഴ നനവട�സ� നൽ��നത� സ�ബനഴച� സ*ചന _:20.10.2022_ ത�യതഴയഴകല ന� _DCEKM/8407/ 2022-A1_ ശപ�വരമ�ള ജഴലവ �ളക.റ�ക/ ഉതരവ� _._ _…....................................................._ നമൽ സ*ചന ശപ�വരമ�ള ജഴലവ �ളക.ർ _&_ കചയർനപഴ3ൺ ഡഴറഴപഴസഴ _,_ എറണവ��ളതഴന�കറ ഉതരവഴന� ശപ�വര� ഡഴ/ഴപഴസഴയഴൽ ജനറൽ മവനനജർ _(P&A)_ ആയഴ നജവലഴ കചയ7ഴര�ന ശ�� _._ വഴജയ��മവർ എസ� കന _,_ /ഴയവൻ വഹഴച� ക�വണഴര�ന എലവ ച�മതല�ളഴൽ നഴന�� ഒഴഴവവകഴക�വണ ഇതഴനവൽ ഉതരവവ��ന� _. (emphasis supplied)_ _sd/-_ കസശ�ടറഴ _"_ ## 7. Ext.P3 dated 20.10.2022 reads as follows:- _"_ ഉതരവ� നമർ _:DCEKM/8407/2022-A1_ ത�യതഴ _: #Approved Date#_ വഴഷയ� _:_ എറണവ��ള� ജഴലവ /*റഴസ� കശപവനമവഷൻ �<ൺസഴൽ ജ�വനകവരനവയ ശ�� _._ വഴജയ��മവർ എസ� കന നഴലവഴകല ച�മതല�ളഴൽ നഴന�� ഒഴഴവവകഴ ഉതരവവക�ന� _._ പരവമർ�� _: 1)_ ന�രള സ�സവന ഓഡഴറ� വ��പ� കഡപപ*ടഴ ഡയറക.റ�ക/ _26.03.2022/31.03.2022_ കല _KSATWCA3/99/2022_ നമർ റഴനപവർട� _2)_ എറണവ��ള� ജഴലവ /*റഴസ� കശപവനമവഷൻ �<ൺസഴൽ ജ�വനകവർ _12.08.2022_ ത�യതഴ സമർപഴച പരവതഴ _._ _…................................._ എറണവ��ള� ജഴലവ /*റഴസ� കശപവനമവഷൻ �<ൺസഴൽ കസശ�ടറഴയവയഴര�ന ശ�� _._ വഴജയ��മവർ എസ� അധഴ�വര ദ�ർവഴനഴനയവഗവ�� സവമതഴ� ശ�മനക/�� ന/തഴയഴട�ളതവയഴ പരവമർ�� _(1), (2)_ ശപ�വരമ�ള നരഖ�ൾ പരഴന�വധഴചതഴൽ ശപഥമ ശദഴഷ�/പവ വHകമവയഴട�ളതവണ� _._ ആയതഴനവൽ /ഴയവൻ ഇനപവൾ എറണവ��ള� ജഴലവ /*റഴസ� W.A. No. 790 of 2023 - : 6 :- കശപവനമവഷൻ �<ൺസഴലഴൽ വഹഴച� വര�ന എലവ ച�മതല�ളഴൽ നഴന�� അനനJഷണ വഴനധയമവയഴ ഒഴഴവവകഴക�വണ ഇതഴനവൽ ഉതരവവ��ന� _._ ജഴലവ /*റഴസ� കശപവനമവഷൻ �<ൺസഴൽ കഡപപ*ടഴ ഡയറക.റ�� കസശ�ടറഴയ�� ഉൾകപ/�ന �മഴറഴ ന/ത�ന അനനJഷണ റഴനപവർടഴന�കറ അ/ഴസവനതഴൽ ശ�� _._ വഴജയ��മവർ എസ� ന� എതഴകരയ�ള ത�/ർ ന/പ/ഴ�ൾ സJ��രഴക�നതവണ� _._ കസശ�ടറഴ ജഴലവ /*റഴസ� കശപവനമവഷൻ �<ൺസഴൽ ഈ ഉതരവ� ന/പഴൽ വര�ത�നതഴനവവ�പമവയ അ/ഴയനഴര ന/പ/ഴ�ൾ ക�ക�വനള/തവണ� _.(emphasis supplied)_ _Signed by Dr. Renu Raj IAS Date: 20.10.2022, 22:01:12_ ജഴലവ �ളക.ർ _&_ കചയർനപഴ3ൺ ജഴലവ /*റഴസ� കശപവനമവഷൻ �<ൺസഴൽ _"_ 8. It is the case of the respondents that the basic decision in the matter has been taken by the 1[st] respondent-District Collector, who is the ex-officio Chairperson of the 2[nd] respondent-DTPC and he is the competent authority in the matter for taking decision regarding suspension from service and initiation of disciplinary action etc., for incumbents, like the writ petitioner, who is holding the post of General Manager of the 2[nd] respondent-DTPC and that the decision taken in Ext. P3 was duly communicated to the petitioner by Ext.P2 notice issued by the Secretary of the 2[nd] respondent-DTPC. True that the wording of Exts.P2 and P3, regarding the crucial issue of the matter, is not used in the conventional sense. True that conventional wordings are to be used in such occasions to order the suspension from service. On the other hand, W.A. No. 790 of 2023 - : 7 :- the word used is “എലവ ച�മതല�ളഴൽ നഴന�� അനനJഷണ വഴനധയമവയഴ ഒഴഴവവകഴക�വണ� ഇതഴനവൽ ഉതരവവ��ന� ”, that is, the incumbent concerned is directed to be placed away from work or put off from duty. But from the submissions of both sides and as held by the learned Single Judge, the impact of the decision in Exts.P3 and P2 should be understood in the context and it can only mean that the competent authority has directed that the writ petitioner be suspended from service. 9. Further, from the pleadings of the respondents in the writ petition, it is seen that various grave allegations and irregularities were raised against the writ petitioner. The Learned Single Judge, after a holistic view of the matter, has held, in paragraphs 9 and 10 of the impugned judgment, as follows:- _“9. It is true that the Apex Court has held in the judgment in_ _**Ajay Kumar Choudhary v. Union of India through its Secretary and another (Supra)** that ordinarily the currency of a Suspension Order should not extend beyond three months, if within this period, the Memorandum of Charges/Charge Sheet is not served on the delinquent officer/employee. In the case of the petitioner, the Memorandum of Charge Sheet has not been served on the petitioner within the three months period._ _10. However, by now, the Charge Sheet has been served on the petitioner. The petitioner is holding one of the highest positions in the establishment. The allegations raised against the petitioner are serious in nature. Taking into consideration the position held by the petitioner, the petitioner will be in a position to change the course of the disciplinary proceedings if he is permitted to resume charge. Therefore, I am not inclined to order revocation of suspension of the petitioner at this stage.”_ 10. The learned Single Judge has ordered that the 2[nd] respondent- W.A. No. 790 of 2023 - : 8 :- DTPC shall review the order of suspension imposed on the writ petitioner and take an appropriate decision thereon within one month and irrespective of the said decision, as above, if the enquiry is not completed within three months, then the respondents in the writ petition shall reinstate the writ petitioner on the expiry of three months. Now, the subsisting grievance of the appellant/petitioner is that even the review process, directed to be conducted as against the suspension order, has not been completed by the respondents. Further that, the respondents have not completed the disciplinary proceedings in question within the stipulated period of three months as ordered by the learned Single Judge. To the said plea, the learned Senior Government Pleader appearing for the 1[st] respondent and the learned Standing Counsel appearing for the 2[nd] respondent – DTPC would submit, on the basis of instructions, that a Committee consisting of three members has been constituted to examine the reply submitted by the petitioner to the memo of charges and then further decision will be taken on the plea of the petitioner as to whether or not the suspension order of Ext.P3 is to be recalled or not and the review proceedings be completed, pursuant to the meeting of the Committee, now scheduled to be held on 24.06.2023. Thereafter, it will be ensured that expeditious steps are taken to complete the enquiry process, without any further delay. Taking note of these aspects, it is ordered that the W.A. No. 790 of 2023 - : 9 :- respondents will ensure that the review process of the suspension matter shall be duly completed and appropriate decision taken thereon, without any further delay, at any rate, before the end of June 2023. Further, the time limit of three months, fixed by the learned Single Judge in the writ petition, for the completion of the disciplinary proceedings, should be completed within three months from the date of receipt of a copy of this judgment. 11. It is further made clear that if, for any reason, the disciplinary enquiry proceedings is not completed within three months, as above, then the respondent shall necessarily reinstate the writ petitioner in service. However, this will be without prejudice to continuing and completing the disciplinary and enquiry proceedings, in the manner known to law. In such contingency of reinstatement, as above, the respondents will be at liberty to ensure that the writ petitioner is posted in a non-sensitive position. The impugned orders and directions of the learned Single Judge will stand modified to the limited extent as above. 12. Smt. Molty Majeed, learned counsel appearing for the appellant, would submit that the petitioner/appellant has been paid subsistence allowance only at the meager amount of 50% of the remuneration, even though the suspension period has now outlasted more than 7 and ½ months and that, in cases where the employees concerned W.A. No. 790 of 2023 - : 10 :- are covered by either the Kerala Payment of Subsistence Allowance Act, 1972 (hereinafter referred to as the 'Act') or the provisions as per Part I of the Kerala Service Rules then, ordinarily, after the expiry of six months, they will be entitled to get subsistence allowance at the rate of atleast 75% of the wages and that the 50% of the wages, now paid to the appellant, is meager and he finds it extremely difficult to pull on. Further that, the appellant has already submitted representations in that regard before the respondents, more particularly to the 1[st] respondent-District Collector. The learned Standing Counsel for the 2[nd] respondent-DTPC submits that the representation/request so submitted by the appellant is now pending consideration before the 1[st] respondent-District Collector, who is the Chairperson of the 2[nd] respondent-DTPC and that appropriate decision thereon will be taken in accordance with law. 13. The learned counsel for the appellant submits that in paragraph 3 of the statement dated 15.06.2023 filed in the present writ appeal, the 2[nd] respondent-DTPC has clearly admitted that there is no separate order of Regulation in the DTPC regarding conditions of service of employees of the Council and that since the District Collector is the Exofficio Chairman of the Council, the said authority is the disciplinary authority and any action against the employee is taken only by the Chairman. Hence, on this basis, it is submitted by the learned counsel for W.A. No. 790 of 2023 - : 11 :- the appellant that it is well settled that if there are no provisions or Rules or norms covering the aspects regarding suspension from service, then it is well settled that an employer/master may have the freedom to suspend or keep away an employee from service. But in such a scenario, if there are no norms governing suspension or payment of subsistence allowance etc., then the inexorable legal consequence is that the employer is then bound to pay 100% of the wages. 14. Further, in that regard, it is submitted that the Constitution Bench of the Apex Court in **R.P. Kapur v. Union of India [AIR 1964 SC 787]** , has held that “but what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension.” 15. Hence, it is argued by learned counsel for the appellant that, as there is no provision of law or Rule or Norm governing the service conditions of appellant on suspension matters, the appellant is entitled to secure full salary for the period from 22.10.2022 (from the date of issuance of Ext.P2), till the period of his reinstatement. It is also pointed out that the provisions of the Kerala Payment of Subsistence Allowance W.A. No. 790 of 2023 - : 12 :- Act, 1972 will not be applicable in the instant case, as the appellant is holding an executive post of General Manager. 16. Per contra, Smt. Alexy Augustine, learned Standing Counsel for the 2[nd] respondent – DTPC, would submit that, in view of the post held by the appellant, he cannot be said to be a person, who is employed mainly in a Managerial or an Administrative capacity and therefore, the appellant will not come within the exception of Section 2(a) of the Kerala Payment of Subsistence Allowance Act, 1972 and therefore, he is covered by the provisions under the Act and hence, he is entitled for subsistence allowance only at the rate prescribed as per the Act. 17. This is totally disputed by Smt. Molty Majeed, learned counsel appearing for the appellant, submitting that the post of the General Manager of the 2[nd] respondent-DTPC is certainly one which is held in a Managerial or Administrative capacity and therefore, the appellant would come within the exception of Section 2(a) of the Act and so the Payment of Wages Act will not apply, in which case general law would apply and since no other norm is applicable, including the Kerala Service Rules, which is applicable only for Government servants and it is not adopted by the 2[nd] respondent-DTPC, KTDC etc., then the appellant would be fully entitled for full wages, in view of the general law declared by the Apex Court in **K.R. Kapur** ’s case (cited supra). W.A. No. 790 of 2023 - : 13 :- 18. Whereas, the specific contention of Smt. Alexy Augustine, learned Standing Counsel for the 2[nd] respondent-DTPC, is that it has been held by the Apex Court in **T. Prem Sagar v. S.V. Oil Company Madras and others** , reported in **[AIR 1965 SC 111]** that in order to determine whether a person is in a position of management or not, the factors to be considered are whether the person had power to operate on the Bank account, whether he could make payments to third parties and enter into agreements with them on behalf of the employer, whether he was entitled to represent the employer to the world at large in regard to the dealings of the employer with strangers, whether he had authority to supervise the work of the clerks employed in the establishment, whether he had control and charge of the correspondence, whether he could make commitments on behalf of the employer, whether he could grant leave to the members of the staff and hold disciplinary proceedings against them and whether he had the power to appoint members of the staff or punish them. It is also held that the salary drawn by an employee may have no significance and may not be material though it may be treated theoretically as a relevant factor. 19. Hence it is urged by the learned counsel for the 2[nd] respondent-DTPC that in the facts and circumstances of the case, the petitioner, cannot be said to be an employee in a Managerial or an W.A. No. 790 of 2023 - : 14 :- Administrative capacity as understood above and hence, he would come within the ambit of Section 2(a) of the Act. In view of these rival pleas, there is no necessity for us to decide these issues, as these issues have not been raised and decided by the learned Single Judge. 20. Hence, it is ordered that the appellant will be at liberty to submit further representation before the 1[st] respondent in the matter delineating the nature of duties and responsibilities and to raise any contentions as to the applicability or otherwise of Section 2(a) of the Act and advance his contentions. 21. Sri. B. Unnikrishna Kaimal, learned Senior Government Pleader, submits that the 1[st] respondent will be instructed immediately to secure legal opinion from the learned Additional Advocate General and after examining the factual and legal aspects of the matter, the respondents, more particularly, the 1[st] respondent, will immediately seek legal opinion in that regard, by giving a detailed factual note regarding the nature of the duties and responsibilities entrusted to the appellant and as to whether the position now held by him is of a Managerial or Administrative capacity, as understood in the exceptional clause of Section 2(a) of the Act and decide on the issue as noted above. 22. After obtaining such legal advice, the 1[st] respondent will immediately take a decision on the pleas of the appellant for full wages, as W.A. No. 790 of 2023 - : 15 :- above and should take a decision as to the payments to be made during the suspension period. Since the respondents have now a case that the Kerala Payment of Subsistence Allowance Act, is applicable, then the respondents should ensure that the subsistence allowance will be paid to the appellant, for the entire suspension period, at the rate prescribed, as per the above said Act and arrears in that regard, if any, should be disbursed to the appellant, at the rate prescribed thereunder, within two weeks. The other issue as to whether the appellant is entitled for full wages or not, may be decided, after getting legal opinion of the learned Additional Advocate General. No other orders and directions are called for. With the above observations, the writ appeal stands disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- ## **C. JAYACHANDRAN, JUDGE** DCS W.A. No. 790 of 2023 - : 16 :- ## **APPENDIX** **PETITIONER ANNEXURES ANNEXURE.A-1 CERTIFIED COPY OF THE JUDGMENT DATED 31/03/2023 IN WP(C) NO.34094 OF 2022 ANNEXURE.A-2 A TRUE COPY OF THE NEWSPAPER ARTICLE PUBLISHED IN 'MANGALAM' DAILY DATED 28/10/2022** ## **RESPONDENT ANNEXURES** |**ANNEXURE A1**|**COPY OF THE GOVERNMENT ORDER AND THE**| |---|---| ||**MEMORANDUM OF ASSOCIATION OF THE COUNCIL**| |**ANNEXURE A2**|**THE MINUTES OF THE EXECUTIVE COMMITEE HELD**| ||**ON 10.5.23**|