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Appukuttan Nair vs State Of Kerala on 27 November, 2001

Kerala High Court
Appukuttan Nair vs State Of Kerala on 27 November, 2001
Equivalent citations: 2002 (94) FLR 269
Author: K A Gafoor
Bench: K A Gafoor


JUDGMENT

K.A. Abdul Gafoor, J.

1. Ext. P1 is the order placing the petitioner under suspension. The petitioner is a
Tribal Extension Officer. A case is registered against him under Section 13(1)(c) and (d)
read with Section 13(2) of the Prevention of Corruption act and Section 409 and 429 of the
Indian Penal Code i the Vigilance Police Station at Wayanad. The allegation in the
criminal case is that he, by abusing his official position, misappropriated Government
money to the extent of Rs. 98,120/- meant for the execution work relating to the
construction of eleven Adivasi Houses at Thavinhal Panchayat and cheated the
Government and poor Adivasi beneficiaries. He also thus enriched himself causing
corresponding loss to the Government. Government felt that it was not desirable to
allow him to continue in office as he committed a grave offence. It was in the above
circumstances the Government issued Ext. P1 order of suspension.

2. Competence of the government of place him under suspension is not disputed
before me as Government is superior to his appointing authority. But assailing
Ext. P1, it is submitted that Esxt. P1 order has been passed by the Government in
Vigilance Department. He is an employee in Tribal Extension Department. Therefore,
only the Government i Tribal Extension Department alone can place him under
suspension. His appointing authority is in that department. As per Rule 10(1) of the
Kerala Civil Services (Classification, Control and Appeals) Rules, 1960, only the
appointing authority or any authority higher than the appointing authority or any authority
empowered by Government in that behalf alone can place him under suspension.
These are, according to him, his appointing authority in the Tribal Department or any
superior authority in the Tribal Department or the Government in Tribal Department.
The Government in Vigilance Department does not come within that.

3. It is further contended that suspension is enabled as per Rule 10 of Kerala Civil
Services (Classification, Control and Appeals) Rules. Those rules are framed under
the proviso to Article 309 of the Constitution of India. The Secretary in Vigilance
Department has passed Ext. P1 order of suspension exercising the powers vested in
him in terms of Rules of Business issued by the Governor of Kerala under Article 166 of
the Constitution of India regulating the conduct of the government business. Therefore,
there is conflict between the two sets of rules issued by the government under
Article 166 of the Constitution of India and also under the proviso to Article 309 of the
Constitution of India. The latter is special Rule governing only Government employees
whereas the former is the general rule regulating Government business. The latter
shall prevail and therefore, any order os suspension passed by the Government in
Vigilance Department is illegal and without authority.

4. When the petitioner does not dispute the power of the government to place
him under suspension, and when the matter is viewed in that angle, there arise no
conflict between the rules. First of all, Kerala Civil Services (Classification, Control and Appeals) Rules, 1960 though issued initially in terms of the proviso under Article 309,
consequent on enactment of Public Services Act, 1968 that rule has to be deemed as
the rules framed under that Act as per the provisions in Section 3 thereof. As held in Danie
v. Board of Revenue (ILR 1975 (1) Kerala) the legal fiction embodied in Section 3 of the
Act enables the Act to be treated as having been in force when the Kerala Civil
Services (Classification, Control and Appeals) Rules were promulgated under the
proviso to Article 309. The Kerala Civil Services (Classification, Control and Appeals)
Rule, 1960 becomes the statutory rules framed under the Kerala Public Services Act.
The rules framed under that statute are the general rules governing the service
conditions of all the Government employees in the State; whereas the rules framed by
the Governor under Article 166 relating to the conduct of Government business become
more special in nature. Even if there is thus nay conflict, the rules framed under
Article 166 shall therefore prevail.

5. Really, there is no conflict at all. Admittedly by the petitioner, the Government
is duly empowered to place him under suspension. There is only one Government in
the State, Government of Kerala. The conduct of Government business of a State,
thereby meaning of executive action of the Government of a State, shall be expressed
to be taken in the name of the governor going by Article 166 of the Constitution of India.
Such orders shall be authenticated in the manner as may be specified in the rules to be
made by the governor. The Rules of Business of a Government are the rules so
framed. Those rules are as Article 166(3) provides meant “for the more convenient
transaction of the business of the Government of the State”. The rules enable different
departments in Government to function in a co-ordinated manner. Whether it is in
department A or B function is discharged by the Government, so whether it is
Government in Vigilance Department or Government in Tribal Extension Department,
it is Government. Petitioner has been placed under suspension by the Government as
per Ext. P1. When that is an executive action expressed to be taken in the name of
the Governor as provided in Article 166(1) and is authenticate in terms of Article 116(2) in
terms of the Rules of Business framed by Governor of Kerala, that can be termed
only as the executive action of the Government. Rules of business enable the Secretary
in Vigilance Department in Government to discharge the function of the Government
to place an officer under suspension when a Vigilance case is pending against him,
irrespective whether he belongs to one or the other different department of the
Government. So the Government the superior authority to the appointing authority
referred to in Rule 10 of the Kerala Civil Services (Classification, Control and Appeals)
Rules, 1960 is the government of Kerala. Viewed in that angle, there arise no conflict
between the rules enacted under the proviso to Article 309 of the Constitution of India or
the rules deemed to be the rules issued under the Kerala Public Services Act on the
one hand or the rules framed by the Governor under Article 166(3) of the Constitution of
India.

6. It has been held by this Court in Nithyananthan v. State of Kerala (1995 (2)
KLT 250) cited by the petitioner that

“…..the rule of business evidenced by Ext. R(a) is not in conflict with any other statute or
statutory rules”.

Moreover, this aspect is covered by a decision rendered by myself reported in
Velayudhan v. state of Kerala (1996 (2) KLT 502). That was in respect of an
incumbent working in Civil Supplies Department, who had been placed under suspension
pending investigation of a vigilance case by the Government in Vigilance Department.
The Contention therein also as quoted in para 2 of the report was that:

“The Vigilance Department is not empowered duly to place on suspension employees of
other department like the petitioner who are employees of Civil Supplies Department.”

The contention now advanced is almost similar, except with regard to the conflict
of rules which has been considered hereinabove. Considering this aspect, I have
taken the view that:

The petitioners’ contention that only the Government in Civil Supplies Department alone
can place them under suspension is not correct. The Secretary to Government, Civil Supplies
Department can authenticate an order of Government only in accordance with the provisions
under Article 166 and the Rule made thereunder. Then alone it will become a Government Order.
The Rules of Business provide the manner of issuing an order by Government and its
authentication by the Secretaries. As per the Gazette Notification dated 23.4.1994 notifying G.O.
(MS) No. 169/94/GAD dated 23.4.1994 published in SRO.No. 482/94 the Rules Business of
Government of Kerala had been amended. The counsel for the petitioner has produced a copy
of the said notification for my perusal. As per the said amendment, orders sanctioning
prosecution of a public servant under the Code of Criminal Procedure or Prevention of Corruption
Act, placing them under suspension and finalising the disciplinary proceedings against him
under the relevant rules and orders in pursuance of a Vigilance Enquiry contemplated or initiated
can be issued by Government in Vigilance Secretary has authenticated Ext. P1 Government Order.
That is perfectly within his competence in terms of the said amendment to the Rules of Business
of Government of Kerala. It is not an executive order but a statutory Rule indicating the conduct
of Government business as provided under Article 166 of the Constitution of India. It will not run
contrary to Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules. Rule 10
only mentions about Government or higher authority than the appointing authority who is also
Government. The conduct of Government business is regulated by the said amendment.
Therefore, the contention of the petitioners that “the issuance of an executive order, assuming
without conceding that any order has been issued, will not do duty for the empowerment
specifically mentioned under Rule 10″ does not hold good”.

Thus as per Ext. P1 herein the Secretary to the Vigilance Department had passed the
order of the Government of Kerala. The Secretary was only authenticating the order
in the manner provided in Article 166(2). The other decisions relied on the petitioner
does not have nay relevance on the issue at all.

7. The petitioner has not demonstrated any instance of discrimination, though
alleged. Moreover suspension is always based on the fact situation relevant to each
case. Merely because, some other persons involved in a case is not placed under
suspension, the petitioner cannot plead discrimination when suspension in his case is
justified. The petitioner is involved in misappropriation of huge amount. Charges
under the Prevention of Corruption Act are also alleged. Hence, his suspension cannot
be stated to be unjustified.

8. Reading of Ext. P1 clearly shows that government has applied its mind to the
fact situation, before passing it. So, it cannot be contended that Ext. P1 was issued in
a mechanical manner. Considering the seriousness and gravity of the allegations, if
the Government feels it necessary in public interest to place him under suspension,
such view cannot be stated to be faulty to invite interference. The Supreme Court in
State of Orissa v. Bima Kumar Mohanthy (1994 (4) SCC 126) held as follows:

“Suspension is not a punishment but is only one of forbidding or disabling an employee
to discharge the duties of office or post held by him. In other words ti is to refrain him to avail
further opportunity to perpetrate the alleged misconduct or to remove the impression among the
members of service that dereliction of duty would pay fruits and the offending employees could
get away even pending enquiry without any impediment or to prevent an opportunity to
delinquent officer to settle the enquiry or investigation or to win over the witnesses or the
delinquent having had an opportunity in office to impede the progress of the investigation or
enquiry etc….”.

9. Thus on any count there is no reason for interference. Original Petition fails;
dismissed.

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