Decided on February 19,2003



- (1.) An interesting but short question which arises for decision in this case, is whether the Secretary of a Municipality is competent to suspend a Municipal employee working under him, notwithstanding the objection raised by the Chairperson of the Municipality against the suspension. The brief facts necessary for the disposal of this case are the following:
(2.) The petitioner is a Public Works Overseer Grade I / Draftsman Grade I working under the first respondent Municipality. She was placed under suspension by the Secretary of the Municipality by Ext. P13 order dated 8.11.2002. The allegation against her was that while she was in charge of the store of the Municipality, 18 sodium vapour lamps were stolen from the store. Though they were subsequently recovered from the , premises of the Municipal office, she was negligent in the performance of her duty as the custodian of the property, it was alleged in the suspension order. The petitioner challenged the said suspension order before this Court by filing O.P. No. 33286/02 on the ground that the suspension has been made in violation of S.49(1)(k) of the Kerala Municipality Act (hereinafter referred to as the Act) in as much as the suspension was made without the knowledge of the Chairperson. This Court found that the suspension was made without the knowledge of the Chairperson and, therefore, quashed it by Ext. P14 Judgment with liberty to proceed afresh in accordance with law. Thereafter, the Secretary of the Municipality issued Ext. P15 letter dated 14.1.2003, informing the Chairperson of the Municipality that he has decided to suspend the petitioner, and that the said letter is being submitted for her knowledge. On the very same letter on the very same day, the Chairperson of the Municipality wrote her opinion, which reads as follows: "To the Secretary, On going through the Judgment of the High Court, it is understood that the Court has held that you have no power to take a decision unilaterally; especially in view of your personal animosity towards Smt. Maheswari. It is understood that the Driver of the Municipality is the accused in the case. If it is found that Smt. Maheswari is guilty, action can be taken against her. You are informed that otherwise there is no necessity for any disciplinary action. Therefore, respecting the judgment of the High Court, Smt. Maheswari should be permitted to continue in service. Chairperson Sd/-14.1.2003"
(3.) But, ignoring the direction issued by the Chairperson, the Secretary has suspended the petitioner from service by Ext. P16 order dated 15.1.2003. The petitioner challenges Ext. P16 on various grounds. The petitioner submits that the provision regarding knowledge contained in S.49(1)(k) is not an empty formality and, therefore, in the light of the opposition of the Chairperson, the Secretary should not have suspended her. It is also submitted that the order is vitiated by malafides from the part of the Secretary of the Municipality who is impleaded as eo - nominc party in this Original Petition. The petitioner attacks Ext. P16 as one issued without jurisdiction. According to the learned counsel for the petitioner, in view of the provisions contained in the Kerala Municipality Act, 1994, the Secretary has no jurisdiction to suspend the petitioner, when the said course of action is opposed by the Chairperson.;

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