High Court of KeralaSingle Judge2023-03-31Writ petition disposed of with directions to re...

Vijayakumar S. v. District Collector, Ernakulam & District Tourism Promotion Council

Case / Petition Number:W.P.(C) No.34094 of 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2023-03-31
Court Decision / Holding: The court, while acknowledging the Ajay Kumar Choudhary principle, declines to revoke the suspension at this stage due to the seriousness of the allegations and the petitioner’s high position. It directs the 2nd respondent to review the order of suspension and take an appropriate decision within one month. If the enquiry is not completed within three months from today, the respondents shall reinstate the petitioner on the expiry of three months.
Final Disposition: Writ petition disposed of with directions to review suspension within one month; if enquiry not completed within three months, reinstate on expiry of three months.

Parties to the Case

Appellants / Petitioners

Vijayakumar S

Respondents

The District Collector, Ernakulam
District Tourism Promotion Council represented by its Secretary

Legal Representation & Advocates

Counsels for Petitioners

• Molty Majeed
• C.A. MaJeed
• K.H. Asif
• P.B. Unnikrishnan Nair
• Ruben George Rock

Counsels for Respondents

• Anima M. GP
• Alexy Augustine
• Latha Susan Cherian
• George A. Cherian

Case Synopsis & Summary

This writ petition challenges the prolonged suspension of Vijayakumar S., who held the post of General Manager (Powers and Administration) at the District Tourism Promotion Council (DTPC), Ernakulam. Suspended from 22.10.2020, he claims the suspension has continued indefinitely without access to the allegations against him or the materials on which they are based, resulting in substantial hardship and prejudice. The petitioner cites the Supreme Court decision Ajay Kumar Choudhary v. Union of India through its Secretary and another, 2015 (7) SCC 291, which held that ordinarily a suspension should not extend beyond three months if no Memorandum of Charges/Charge Sheet is served within that period, and that if a charge sheet is served within the period a reasoned order must be passed for extending beyond three months. The respondents contend that a Preliminary Enquiry Report dated 28.03.2023 reveals serious irregularities, and a Charge Sheet was served on 30.03.2023; they are taking steps for an expeditious enquiry, and due to the gravity of allegations, revocation of suspension is not warranted. The court acknowledges the applicability of the Ajay Kumar principle but notes the petitioner's high position and the seriousness of the case, directing a review of the suspension within one month and, if the enquiry remains incomplete after three months from today, reinstatement on expiry of three months. The writ petition is disposed with these directions to ensure due process while safeguarding administrative integrity.

Legal Doctrines & Maxims

Currency of suspension ordinarily not to exceed three months if charge sheet not served within period (Ajay Kumar Choudhary v. Union of India)
Reasoned order required for extending beyond three months if charge sheet is served

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that suspension since 22.10.2020 is indefinite and unjustified in the absence of timely service of a Memorandum of Charges/Charge Sheet, copies of the allegations, or an opportunity to peruse the materials forming the basis of the charges. He relies on the Ajay Kumar Choudhary principle that suspension should ordinarily not extend beyond three months in the absence of service of charge sheet, and seeks immediate reinstatement or a direction to conclude disciplinary proceedings promptly. He asserts that due process has been denied and that continued suspension has caused significant hardship and stigma to his career and reputation.

Contentions of Respondents

The respondents contend that a Preliminary Enquiry Report dated 28.03.2023 discloses serious irregularities and that a Charge Sheet was served on 30.03.2023. They emphasize the need for an expeditious enquiry and argue that, given the gravity of the allegations against a person holding a high position, there cannot be revocation of suspension at this stage. They contend that maintaining suspension is essential to preserve integrity and ensure a fair and thorough disciplinary process, and seek to continue the suspension until completion of the enquiry, with appropriate action thereafter.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ajay Kumar Choudhary v. Union of India through its Secretary and another	2015 (7) SCC 291	Positive	Cited to support the rule that suspension should ordinarily expire within three months if no charge sheet is served within that period; the court applies this principle but allows for exceptions when a charge sheet has been served and considers the seriousness of the case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 31[ST] DAY OF MARCH 2023 / 10TH CHAITHRA, 1945 WP(C) NO. 34094 OF 2022** ## **PETITIONER:** **VIJAYAKUMAR S AGED 49 YEARS S/O. LATE SADASIVAN NAIR, WORKING AS GENRAL MANAGER (P) ROJECTS & ADMINISTRATION), DISTRICT TOURISM PROMOTION COUNCIL (DTPC), OPP 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:** **1 THE DISTRICT COLLECTOR COLLECTORATE, 1ST FLOOR, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN – 682030.** **2 DISTRICT TOURISM PROMOTION COUNCIL REPRESENTED BY ITS SECRETARY, OPPOSITE RAJENDRA MAIDAN, ERNAKULAM, PIN – 682011.** **BY ADVS. ANIMA M.GP, ALEXY AUGUSTINE LATHA SUSAN CHERIAN GEORGE A.CHERIAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C) No.34094 of 2023** 2 ## **J U D G M E N T** Dated this the 31[st] day of March, 2023 The petitioner has filed this writ petition aggrieved by the prolonged suspension imposed on the petitioner by the respondents. The petitioner seeks to direct the respondents to immediately reinstate the petitioner in service with effect from 25.10.2022. 2. The petitioner, while working as General Manager, was not permitted to attend his duty from 25.10.2022. The petitioner states that the suspension of the petitioner continues indefinitely. 3. The petitioner contends that the Apex Court, in the judgment in **Ajay Kumar Choudhary v. Union of India through its Secretary and another** [2015 (7) SCC 291], has held that the currency of a Suspension Order should not extend beyond three 3 **W.P.(C) No.34094 of 2023** months if within this period, the Memorandum of Charges/Charge Sheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Charge Sheet has been served, a reasoned order must be passed for extending the period of suspension beyond three months. 4. The petitioner had no chance to peruse what are the nature of the allegations against him or was given copies of the documents based on which the allegations are raised against him. In the circumstances, unless this Court interferes in the matter and direct the respondents to immediately reinstate the petitioner in service, the petitioner will be put to untold hardship and loss, contended the petitioner. 5. The 2[nd] respondent filed a memo producing a Preliminary Enquiry Report dated 28.03.2023. Standing Counsel for the 2[nd] respondent submitted that since the Preliminary Enquiry Report divulges the irregularities committed by the petitioner, there is no question of revoking the suspension at this stage. The **W.P.(C) No.34094 of 2023** 4 petitioner has already been issued with a Charge Sheet dated 30.03.2023. The respondents are taking all steps for expeditious completion of the enquiry, which will depend upon cooperation by the petitioner. There cannot be revocation of suspension of the petitioner pending disciplinary proceedings, in view of the graveness of the allegations made in the Charge Sheet. 6. I have heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents. 7. The petitioner was working as General Manager (Powers and Administration). The petitioner was put under suspension from 22.10.2020. The grievance of the petitioner is that the respondents are not taking any action to reinstate the petitioner in service. Disciplinary action against the petitioner is not proceeded with. 8. Standing Counsel for the 2[nd] respondent would submit that a Charge Sheet has already been served on the petitioner on 30.03.2023. I have perused the Preliminary Enquiry Report 5 **W.P.(C) No.34094 of 2023** produced by the counsel for the 2[nd] respondent. The Preliminary Enquiry Report reveals serious allegations against the petitioner, who was holding the charge of General Manager. 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 **W.P.(C) No.34094 of 2023** 6 permitted to resume charge. Therefore, I am not inclined to order revocation of suspension of the petitioner at this stage. The writ petition is, however, disposed of directing the 2[nd] respondent to review the order of suspension imposed on the petitioner and take appropriate decision within a period of one month. Irrespective of the decision being taken as directed above, if the enquiry is not completed within a period of three months from today, the respondents shall reinstate the petitioner on the expiry of three months. Sd/- **N. NAGARESH JUDGE** ams **W.P.(C) No.34094 of 2023** 7 ## **APPENDIX OF WP(C) 34094/2022** |**PETITIONER'S**|**EXHIBITS**| |---|---| |**EXHIBIT.P-1**|**A TRUE COPY OF THE ORDER NO.**| ||**692/08/DTPC/EKM DATED 20/07/2022**| |**EXHIBIT.P-2**|**A TRUE COPY OF THE NOTICE NO.**| ||**102/2022/DTPC/EKM DATED 22/10/2022**| |**EXHIBIT.P-3**|**A TRUE COPY OF THE ORDER NO.**| ||**DCEKM/8407/2022-A1 DATED 20/10/2022**| |**EXHIBIT.P-4**|**A TRUE COPY OF THE EMAIL COMMUNICATIONS**| ||**BETWEEN THE PETITIONER AND THE SECRETARY**| ||**OF THE 2ND RESPONDENT**| |**EXHIBIT.P-5**|**A TRUE COPY OF THE RELEVANT EXTRACT OF**| ||**THE NOTE FILE DATED 02/06/2022**| |**EXHIBIT.P-6**|**A TRUE COPY OF THE REPLY DATED 14/11/2022**| ||**SUBMITTED BY THE PETITIONER BEFORE THE**| ||**ENQUIRY COMMITTEE**| |**EXHIBIT.P-7**|**A TRUE COPY OF THE RELEVANT EXTRACT OF**| ||**THE MINUTES OF THE MEETING DATED**| ||**27/08/2019 OF THE EXECUTIVE COMMITTEE**| |**EXHIBIT.P-8**|**A TRUE COPY OF THE RELEVANT EXTRACT OF**| ||**THE MINUTES OF THE MEETING DATED**| ||**17/02/2021 OF THE EXECUTIVE COMMITTEE**| |**EXHIBIT.P-9**|**A TRUE COPY OF THE RELEVANT EXTRACTS OF**| ||**THE AUDITED BALANCE SHEETS AS ON**| ||**31/03/2020**| |**EXHIBIT.P-10**|**A TRUE COPY OF THE RELEVANT EXTRACTS OF**| ||**THE AUDITED BALANCE SHEETS AS ON**| ||**31/03/2021**| |**EXHIBIT.P-11**|**A TRUE COPY OF ORDER NO. 652/19/DTPC/EKM**| ||**DATED 06/01/2020**| |**EXHIBIT.P-12**|**ORDER NO. 1173/19/DTPC/EKM/2019 DATED**| 8 ## **W.P.(C) No.34094 of 2023** ## **29/11/2019 OF THE 1ST RESPONDENT** **EXHIBIT.P-13 A TRUE COPY OF THE ORDER NO. 1173/19/DTPC/EKM/2019 DATED 14/01/2020 EXHIBIT.P-14 A TRUE COPY OF THE ORDER NO. 1173/19/DTPC/EKM/2019 DATED 14/01/2020 EXHIBIT.P-15 A TRUE COPY OF THE LETTER NO. DCEKM/1577/2021-A1 DATED 09/11/2022 RESPONDENT'S EXHIBITS EXHIBIT R2(A) TRUE COPY OF THE FINAL AUDIT REPORT DATED 26.03.2022 SUBMITTED BY THE AUDIT OFFICERS. EXHIBIT R2(B) TRUE COPY OF THE LETTER DATED 5.5.2022. EXHIBIT R2(C) TRUE COPY OF THE LETTER DATED 3.11.2022 SUBMITTED BY THE PETITIONER TO THE ENQUIRY OFFICER. EXHIBIT R2(D) TRUE COPY OF THE INTERIM REPORT TO THE DISTRICT COLLECTOR DATED 2.11.2022. EXHIBIT R2(E) TRUE COPY OF ORDER NO: DCEKM/8407/2022-A1 DATED 06.12.2022 ISSUED BY DISTRICT COLLECTOR**