P.K. NAIR Vs. STATE OF KERALA
HIGH COURT OF KERALA
STATE OF KERALA
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T.K.JOSEPH, J. -
(1.) THIS appeal is from an order dismissing a petition under Article 226 of the Constitution.The petitioner is the appellant.
(2.) DISCIPLINARY proceedings were started by the State Government against the petitioner who was the Joint Registrar of Co -operative Societies,and he was placed under suspension by order Ex.P -l,dated 20th November 1959.Eight charges were framed against him and the Tribunal for Disciplinary Proceedings who conducted the enquiry found him guilty of misconduct.The Tribunal held that he was unfit to be head of a department and recommended that his salary should be reduced by three stages in the scale applicable to him.Ex.P -4 is the report of the Tribunal.The Government served a notice Ex.P -5,dated 14th June 1961 asking him to show cause why the punishment recommended by the Tribunal should not be imposed.He furnished his explanation Ex.P -6 on 18th July 1961 and,after obtaining the opinion of the Public Service Commission,the State Government considered the whole matter and passed the order Ex.P -7 on 21st July 1962 which stated:
(i)that Shri P.K.Nair,formerly Joint Director of Industries(Coir)be debarred from occupying the post of a Head of the Department;
(ii)that the pay of Shri Nair be reduced by three stages in the scale applicable to him; and
(iii)that Shri Nair will be restored to duty forthwith cancelling his suspension and that he will not be eligible for any salary or remuneration during the period of his suspension.
We may observe this stage that the recommendation of the Public Service Commission was that the appellant should be compulsorily retired from service but the Government took a more lenient view.
The Accountant -General raised certain points for clarification and the Government passed a further order Ex.P -9 dated 29th December 1962 clarifying the earlier order thus:
(i)The period of the Officer's absence from duty while under suspension will not count for leave,pension,increment,etc.
(ii)As the Officer has not been made eligible for any salary or remuneration in respect of the period spent by him under suspension,the amount of subsistence allowance already drawn by him is not refundable or adjusted to any extent(vide Note 1 to Rule 56 K.S.R .,Part I ).
(iii)The remaining points raised by the Accountant -General are under consideration and final orders thereon will issue soon."
Accordingly the petitioner was restored to duty.The learned Single Judge dismissed the petition.
By the time this appeal came before us the appellant had retired from service,so that the only point pressed before us related to the validity of the direction that he will not be eligible for salary or remuneration during the period of suspension.
The argument advanced on behalf of the appellant is that the deprivation of his salary during the period of suspension amounts to a punishment and that principles of natural justice were violated in awarding such a punishment.According to Shri Krishna Iyer,counsel for the appellant,the appellant should have been given an opportunity to show cause why his salary during the period of suspension should not be withheld.
It is useful to extract Rule 56,Part I,of the Kerala Service Rules here,under which the impugned part of the order was made.
"56.( 1)When an officer who has been dismissed,removed or suspended is reinstated,the authority competent to order the reinstatement shall consider and make a specific order "
(a) regarding the pay and allowances to be paid to the officer for the period of his absence from duty;and (b)whether or not the said period shall be treated as a period spent on duty.
(2)Where such competent authority holds that the officer has been fully exonerated or,in the case of suspension,that it was wholly unjustified,the officer shall be given the full pay to which he would have been entitled had he not been dismissed,removed or suspended,as the case may be,together with any allowances of which he was in receipt prior to his dismissal,removal or suspension.
(3)In other cases,the officer shall be given such proportion of such pay and allowance as such competent authority may prescribe:
Provided that the payment of allowances under clause(2)or clause(3)shall be subject to all other conditions under which such allowances are admissible.
(4) In a case falling under clause(2)the period of absence from duty shall be treated as a period spent on duty for all purposes.
(5) In a case failing under clause(3)the period of absence from duty shall not be treated as a period spent on duty,unless such competent authority specifically directs that it shall be so treated for any special purposes."
This is a case in which the officer who has been suspended has been reinstated and the Government is bound to pass an order under clause(1 )(a)regarding the pay and allowances of the officer during the period of suspension and under clause(1 )(b)as to whether the period of absence from duty is to be treated as period spent on duty.Clauses(2)and(4)do not apply as the officer has not been fully exonerated.Clauses(3)and(5)contain the provisions applicable to this case.Though Ex.P -7 stated that the officer would not be eligible for pay during the period of suspension,the Government failed to state whether the period of absence from duty was to be treated as on duty;and when the Accountant -General pointed out the omission,an order Ex.P -9 was passed stating that the period will not count for leave,pension,increment etc.
We are unable to accept the argument that the withholding of pay and allowances during the period of suspension amounts to a punishment.No doubt,it means a substantial loss to the officer concerned but that will not make it a penalty for misconduct.Suspension as such is not one of the penalties prescribed under the rules.
We will now consider the question whether that part of the order which is objected to should have been passed after notice to the appellant.Counsel for the appellant relied on the decision of the Bombay High Court in Vasant Raghunath Gokhale v. State of Maharashtra 1963(1)L.L.J.449 in support of his argument.The facts in that case were entirely different.Disciplinary proceedings were taken against an officer and it was found by the officer who conducted the enquiry that the charges were not proved conclusively.The Government accepted this report and passed an order that the officer would be reinstated.Nevertheless it was ordered that the period between the dates of suspension and reinstatement would be treated as leave due and admissible followed by extraordinary leave without pay.This order was challenged before the High Court on the ground that it was passed in violation of principles of natural justice as the officer was not given a copy of the findings on the charges or an opportunity to show that he was entitled to be fully exonerated and that he was entitled to his salary and allowances during the whole period of suspension.The position taken by the State was that suspension was not a punishment and that the officer not having been fully exonerated,the order was valid and justified under rule 152 of the Bombay Civil Service Rules which substantially corresponds to Rule 56 of the Kerala Service Rules.It was held that before making an adverse order under rule 152 regarding pay and allowances during the period of suspension,the State Government was bound to consider whether the officer was entitled to salary and allowances during the period and whether the period was to be treated as a period during which he was on duty or not. As the officer was not given a copy of the report of the enquiry officer or an opportunity to show that he was to be fully exonerated entitling him to an order under rule 152(2 ), the order was quashed.We do not think that this decision is applicable to the facts of the case before us.
The appellant was found guilty and was punished.He was supplied with a detailed summary of the findings of the Tribunal and given an opportunity to show cause against the punishment proposed.Accordingly he submitted his explanation and it was after considering the same that the order Ex.P -7 was passed.The affidavit sworn to by the Chief Secretary to the Government shows that the question of the nature of the order under rule 56 was considered by the Council of Ministers;and it was after such consideration that the order was passed.In the case relied on by the appellant the officer was not given an opportunity of placing his case before the Government before passing the impugned order.The decision,in our opinion,does not hold that in every case of disciplinary proceedings in which an adverse order under rule 56 is passed,he should be given a third opportunity to show cause against the same.This is clear from the following passage in the judgment:
"In the view of the interpretation which we feel must be put on the requirement for the due compliance with provisions of rule 152 of the Bombay Civil Service Rules,it follows as a matter of course that the decision whether the Government servant concerned is or is not fully exonerated or whether the suspension order is justified or unjustified in whole or part is a matter of serious consequence to the Government servant concerned.If the matter is to be decided after due consideration one of the parties who must be given an opportunity to have his say in the matter will undoubtedly be the Government servant concerned.As the facts in this case disclose,the petitioner was not even given a copy of the report of the enquiry officer before the order was passed."
Counsel for the appellant invited our attention to an unreported decision in O.P No.520 of 1962 of this Court.That was a case in which the punishment awarded for misconduct was withholding of increment for one year with cumulative effect.There was a subsequent order passed under rule 56 of the Kerala Service Rules stating that the major part of the period of suspension must be treated as extraordinary leave.It was held that there was no proper consideration under rule 56,and the order was quashed.Such is not the case here.The averments in the Chief Secretary's affidavit have been accepted by the learned Single Judge in this case,and we do not see any reason to take a different view.We are not prepared to hold that the matter was not properly considered in the light of rule 56.
In the result,we confirm the order of the learned Single Judge and dismiss the appeal.In the circumstances we make no order as to costs. ;
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