IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23806 of 2009(S)
1. K.SURESH KUMAR IAS (KL-89),S/O.
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY ITS
... Respondent
2. UNION OF INDIA, REPRESENTED BY ITS
3. ADDITIONAL CHIEF SECRETARY TO
4. CENTRAL ADMINISTRATIVE TRIBUNAL,
For Petitioner :SRI.O.V.RADHAKRISHNAN (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :26/11/2009
O R D E R
KURIAN JOSEPH & C.T.RAVIKUMAR, JJ.
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W.P(C)No.23806 of 2009
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Dated this the 26th day of November, 2009
JUDGMENT
Kurian Joseph, J.
Discipline decides the destiny of life and
destination in service. Discipline is the core and cornerstone
of service. However, discipline as understood in common
parlance is different from the discipline as defined in the
service rules though the latter has the trappings of the
former. As far as the government servant is concerned,
disciplinary action can be initiated only in case the officer
concerned is liable to be proceeded against for his
indisciplined conduct. Suspension from service is a prelude
to the disciplinary action. But suspension is not a
precondition or unavoidable accompaniment for a
disciplinary action. It is required, nay warranted, only if as
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part of the action and in overall public interest the officer is to
be temporarily kept out of service for a free and fair enquiry.
No doubt, suspension is not a punishment, unless of course
prescribed as such in the relevant Rules. But merely because
suspension is not a punishment, the employer cannot take a
casual approach and after a few days or months reinstate the
officer, even with backwages. The stigma cannot be washed
away or wiped out, though in the legal parlance it is possible.
For an honest officer, a baseless or motivated action is
certainly painful. That is why the law and procedure on
suspension call for strict interpretation. Of course,
justification for suspension is different from validity of
suspension. This introduction would help us as a prologue in
analysing the question of law raised in this writ petition.
2. Short facts. The writ petition is filed by the applicant
(hereinafter referred to as the petitioner) before the Central
Administrative Tribunal, Kochi, in O.A.No.12/2009. The said
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application was filed challenging order dated 11-12-2008 of
the Government of Kerala whereby the petitioner was
suspended from service. The impugned order Annexure A7
(Ext.P1) reads as follows:-
“It has come to the notice of the
Government that Shri.K.Suresh Kumar, IAS
(KL: 1989) on deputation as Managing
Director, Kerala State Co-operative
Agricultural Rural Development Bank has
appeared before the press and media channels
from 6-12-2008 onwards and adversely
criticised the office of the Hon’ble Chief
Minister of Kerala, making allegations like
piling up of files, absence of support system
and ignorance of Government procedures in
the Chief Minister’s office and thereby violated
the All India Service (Conduct) Rules which
caused embarrassment to the Government.
2. Government after having examined
the matter in detail considers it necessary to
place Shri.K.Suresh Kumar, IAS, Managing
Director, Kerala State Co-operative
Agricultural Rural Development Bank under
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suspension as per Rule 3 of All India Service
(Discipline & Appeal) Rules, 1969 with
immediate effect pending further enquiry.
3. Shri.K.Suresh Kumar, IAS, will be
eligible for subsistence allowance under Rule 4
of All India Service (Discipline & Appeal) Rules
1969.
4. Shri.K.Suresh Kumar, IAS will hand
over charge to Shri.T.Thankappan, IAS (KL:
1989), Secretary, Co-operation Department.”
Before the Central Administrative Tribunal the following reliefs
were sought:-
“i. to call for the records leading to
Annexure A-7 GO(Rt)
No.9528/2008/GAD dated 11-12-08
and Annexure A-11 GO dated 11-03-
2009 and to set aside the same;
ii. to declare that Annexure A-7 Order of
suspension ceased to be valid and
operative by reason of not initiating
disciplinary proceedings before the
expiry of the period of 90 days from the
date of suspension and in the absence of
permission from the Central
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Government as contemplated by the 2nd
proviso to Rule 3(1) of the All India
Servgice (Discipline and Appeal) Rules,
1969;
iii. to issue appropriate direction or order
directing the respondents to allow the
applicant to continue in the post of
Managing Director, Kerala State Co-
operative Agricultural and Rural
Development Bank without regard to
Annexure A7 GO dated 11-12-2008;
iv. to issue appropriate direction or order
directing the respondents to pass
appropriate order treating the period of
suspension as duty for all purposes and
to grant him full service benefits
including arrears of pay and allowances
for the period he has been kept under
suspension unlawfully;
v. to grant such other reliefs which this
Hon’ble Tribunal may deem fit and
proper in the circumstances of the
case.”
3. The Tribunal dismissed the application. Hence the
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writ petition.
4. At the outset we make it clear that we are not
embarking upon an enquiry on the merits of the cases, on the
justification for the suspension; our enquiry is to the limited
area of challenge on the validity of the suspension order, in
view of the non-compliance with the requirement prescribed
under the Rules. The main contention, which alone we
propose to deal with in this case and since that would render
consideration of other questions unnecessary, is that the
suspension has become invalid since before the expiry of the
period of 90 days from the date of suspension, disciplinary
proceedings are not initiated. There is no dispute on two
facts: (1) disciplinary proceedings have not been initiated
against the applicant before the expiry of the 90 days from
the date of suspension; and (2) the Central Government has
not allowed the continuance of the suspension beyond the
period of 90 days.
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5. In order to appreciate the contention on the validity
of suspension order it is necessary to refer to the Rules.
Rule 3 of the All India Service (Discipline and Appeal) Rules
1969 deals with suspension and the procedure to be followed
thereon. The Rule reads as follows:-
“3. Suspension.– (1) If, having
regard to the circumstances in any case and
where articles of charge have been drawn
up, the nature of the charges, the
Government of a State or the Central
Government, as the case may be, is satisfied
that it is necessary or desirable to place
under suspension a member of the service,
against whom disciplinary proceedings are
contemplated or are pending, that
Government may, —
(a) if the member of the service is
serving under that Government,
pass an order placing him under
suspension, or
(b) if the member of the service is
serving under another
Government, request that
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Government to place him under
suspension,
pending the conclusion of the disciplinary
proceedings and the passing of the final
order in the case:
Provided that, in cases, where there is
a difference of opinion, —
(i) between two State Governments, the
matter shall be referred to Central
Government for its decision;
(ii) between a State Government and the
Central Government, the opinion of the
Central Government shall prevail;
Provided further that, where a member
of the service against whom disciplinary
proceedings are contemplated is suspended,
such suspension shall not be valid, unless
before the expiry of a period of ninety days
from the date from which the member was
suspended, disciplinary proceedings are
initiated against him;
Provided also that the Central
Government may, at any time before the
expiry of the said period of ninety days and
after considering the special circumstances
for not initiating disciplinary proceeding, to
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be recorded in writing allow continuance of
the suspension order beyond the period of
ninety days without the disciplinary
proceedings being initiated.
(1-A) If the Government of a State or
the Central Government, as the case may
be, is of the opinion that a member of the
Service has engaged himself in activities
prejudicial to the interests of the security of
the State, that Government may —
(a) if the member of the Service
is serving under that
Government, pass an order
placing him under
suspension, or
(b) if the member of the Service
is serving under another
Government request, that
Government to place him
under suspension,
till the passing of the final order in the case :
Provided that, in cases, where there is
a difference of opinion —
(i) between two State Governments, the
matter shall be referred to the Central
Government for its decision;
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(ii) between a State Government and the
Central Government, the opinion of the
Central Government shall prevail.
(2) A member of the Service, who is
detained in official custody whether on a
criminal charge or otherwise for a period
longer than forty-eight house, shall be
deemed to have been suspended by the
Government concerned under this rule.
(3) A member of the Service in
respect of, or against, whom an
investigation, inquiry or trial relating to a
criminal charge is pending may, at the
discretion of the Government be placed
under suspension until the termination of all
proceedings relating to that charge, if the
charge is connected with his position as a
member of the service or is likely to
embarrass him in the discharge of his duties
or involves moral turpitude.
(4) A member of the Service shall be
deemed to have been placed under
suspension by the Government concerned
with effect from the date of conviction, of, in
the event of conviction for a criminal offence,
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he is not forthwith dismissed or removed or
compulsorily retired consequent on such
conviction provided that the conviction
carries a sentence of imprisonment
exceeding fortyeight hours.
Explanation.– The period of forty-
eight hours referred to in sub-rule (4) shall
be commuted from the commencement of
the imprisonment after the conviction and for
this purpose, intermittent periods of
imprisonment, if any, shall be taken into
account.
(5) Where a penalty of dismissal,
removal or compulsory retirement from
service imposed upon a member of the
Service under suspension is set aside in
appeal or on review under these rules and
the case is remitted for further inquiry or
action or with any other directions, the order
of his suspension shall be deemed to have
continued in force on and from the date of
the original order of dismissal, removal or
compulsory retirement and shall remain in
force until further orders.
(6) Where a penalty of dismissal,
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removal or compulsory retirement from
service imposed upon a member of the
Service is set aside or declared or rendered
void in consequence of or by a decision of a
Court of Law, and the disciplinary authority,
on a consideration of the circumstances of
the case, decides to hold further inquiry
against him on the allegations on which the
penalty of dismissal, removal or compulsory
retirement was originally imposed, the
member of the Service shall be deemed to
have been placed under suspension by the
Central Government from the date of original
order of dismissal, removal or compulsory
retirement and shall continue to remain
under suspension until further orders:
Provided that no such further inquiry
shall be ordered unless it is intended to meet
a situation where the Court has passed an
order purely on technical grounds without
going into the merits of the case.
(6-A) Where an order of suspension is
made, or deemed to have been made, by the
Government of a State under this rule,
detailed report of the case shall be forwarded
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to the Central Government ordinarily within a
period of fifteen days of the date on which
the member of the Service is suspended or is
deemed to have been suspended, as the
case may be.
(7)(a) An order of suspension made or
deemed to have been made under this rule
shall continue to remain in force until it is
modified or revoked by the authority
competent to do so.
(b) Where a member of the Service is
suspended or is deemed to have been
suspended, whether in connection with any
disciplinary proceeding or otherwise, and any
other disciplinary proceeding is commenced
against him during the continuance of that
suspension, the authority competent to place
him under suspension may, for reasons to be
recorded by him in writing, direct that the
member of the Service shall continue to be
under suspension subject to sub-rule (8);
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(c) An order of suspension made or
deemed to have been made under this rule
may at any time be modified or revoked by
the authority which made or is deemed to
have made the order.
(8)(a) An order of suspension made
under this rule which has not been extended
shall be valid for a period not exceeding
ninety days and an order of suspension
which has been extended shall remain valid
for a further period not exceeding one
hundred eighty days at a time, unless
revoked earlier.
(b) An order of suspension made or
deemed to have been made or continued,
shall be reviewed by the competent authority
on the recommendations of the concerned
Review Committee.
(c) The composition and functions of
the Review Committees and the procedure to
be followed by them shall be as specified in
the Schedule annexed to these rules.
(d) The period of suspension under
sub-rule (1) may, on the recommendations
of the concerned Review Committee, be
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extended for a further period not exceeding
one hundred and eighty days at a time:
Provided that where no order has been
passed under this clause, the order of
suspension shall stand revoked with effect
from the date of expiry of the order being
reviewed.
(9) Every order of suspension and
every order of revocation shall be made, as
nearly as practicable, in the appropriate
standard form appended to these rules.”
It may be seen that sub-rule (1) of Rule 3 has three provisos:
(1) dealing with the conflicting stands likely to be taken by the
State Government and the Central Government; (2) dealing
with the mandatory requirement of initiation of disciplinary
action before the expiry of 90 days from the date of
suspension; and (3) dealing with a provision enabling the
Central Government to extend the period of suspension
beyond 90 days even without initiating the disciplinary
proceedings.
6. Disciplinary proceedings can be said to be initiated
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only with the service of memo of charges. That is a well
settled principle and there is no serious dispute on that. In
the instant case the memo of charges has not been served on
the petitioner within 90 days and hence it is the undisputed
factual and legal position that disciplinary proceedings have
not been initiated against the petitioner within 90 days of the
suspension.
7. Learned Additional Director General of Prosecution
Sri.Raveendranath contends that the rule enables the
Government to suspend an employee having regard to the
circumstances of any case and it is not necessary that
suspension can be made only having regard to the nature of
the charges. There is no quarrel with that position,
suspension pending enquiry, suspension in contemplation of
disciplinary proceedings and suspension having regard to the
circumstances of any case is permissible under the rules.
Only thing is that the authority suspending the member of the
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service should be satisfied that it is either necessary or
desirable to place the member under suspension. Needless to
say that the satisfaction must have regard to the nature and
gravity of the indiscipline or misconduct alleged against the
member of the service. The contention of the State is that
when a member of the service is suspended having regard to
the circumstances of any case it is not necessary that the
memo of charges is served initiating the disciplinary
proceedings before the expiry of the 90 days and the
suspension can be continued provided the suspension is
reviewed in exercise of the power under sub-rule (8)(b) read
with sub-rule 8(d) and based on the recommendation of the
Review Committee the suspension can be continued. Yet
another vehement contention is that in any case a suspension
made having regard to the circumstances of a case is valid for
a period of 90 days in view of the provision under sub-rule (8)
(a).
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8. We are afraid both the contentions cannot be
appreciated. While interpreting the All India Services
(Discipline and Appeal) Rules, 1969 it has to be borne in mind
that the rule applies only to members of the All India Service
as defined in Section 2 of the All India Services Act, 1951.
All India Services originally conceived of only Indian
Administrative Service and Indian Police Service. Thereafter
by amendment introduced in the year 1963 certain other All
India Services were also included. Suffice to specially note
that the officers dealt with under the rules are not ordinary
government servants, but members of All India Service,
entrusted with highly responsible offices. Suspension of such
officers should be resorted to only in situations warranting
such grave action. That is why the Rule has provided for
detailed procedure, both in the matter of suspension for the
initial period of 90 days and continuance thereof, with
sufficient safeguards in order to avoid arbitrariness. The
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second proviso to Rule 3(1) of the Rules makes it mandatory
that a member of service suspended in contemplation of
disciplinary proceedings has to be served with memo of
charges, initiating disciplinary proceedings before the expiry
of the period of 90 days from the date of the suspension. The
requirement is not directory as contended by the learned
Additional Director General of Prosecution. Since the
consequence of the requirement is provided in the Rule itself,
the compliance is mandatory. A provision in a rule, no doubt,
can be directory in nature; however, when the grave
consequence of non-compliance is prescribed in the rule itself,
the procedure becomes mandatory. Thus in the instant case
the second proviso to Rule 3(1) mandates that unless the
disciplinary proceedings are initiated within 90 days of the
date of suspension, the suspension becomes invalid. The
other contention is that the said rule is subject to the
operation of sub-rule 8(a) of Rule 3(1). That contention also
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cannot be appreciated. The very opening words of sub-rule 8
(a) would give a definite indication otherwise. It states that
“an order of suspension made under this rule which has not
been extended shall be valid for a period not exceeding ninety
days …”. ‘Suspension under this rule’ is suspension under
Rule 3. Suspension in contemplation of disciplinary
proceedings under Rule 3(1) becomes invalid unless
disciplinary proceedings are initiated by serving memo of
charges within 90 days of the date of suspension or unless the
Central Government after considering special circumstances
recorded in writing allows the continuance of suspension
beyond the period of 90 days without initiating disciplinary
proceedings. In the statement filed by the learned Assistant
Solicitor General it is stated that the Central Government has
not allowed the continuance of the suspension beyond 90
days. The operation of sub-rule (8) is subject to the validity
of the order of suspension in terms of the second or third
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proviso to sub-rule (1) of Rule 3. A suspension which has
been rendered invalid on the operation of the second proviso
of Rule 3(1) cannot be sustained or resurrected under sub-
rule (8). That would certainly lead to a casual, and if not
abusive, exercise of power whereby without any safeguards
an officer belonging to an All India Service can be placed
under suspension for 90 days. Law does not even dream of
such a dis-honourable treatment to a member belonging to All
India Service.
9. The third contention of the learned Additional
Director General of Prosecutions is that in any case the
suspension under Rule 3(1) in contemplation of the
proceedings can be continued under sub-rule 8(b) read with
sub-rule 8(d) in case the Review Committee recommends the
continuation of the suspension and the said recommendation
is accepted by the State Government and orders are passed
on the recommendation. That contention also cannot be
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appreciated. No doubt, under sub-rule 8(b) the order of
suspension is liable to be reviewed by the competent authority
on the recommendation of the concerned Review Committee
and the suspension can thus be extended for a further period
not exceeding 180 days at a time. But it has to be specifically
noted that the suspension that can be extended on the basis
of recommendation is the suspension made under sub-rule (1)
of Rule 3. Sub-rule (8)(d) of Rule 3 makes it unambiguously
clear – “the period of suspension under sub-rule (1) may, on
the recommendations of the concerned Review Committee, be
extended for a further period not exceeding one hundred and
eighty days at a time”. The suspension under sub-rule (1) in
contemplation of disciplinary proceedings becomes invalid
after the expiry of 90 days in case disciplinary proceedings are
not initiated within 90 days from the date of suspension and if
not extended by the Central Government under third proviso
to sub-rule (1) of Rule 3. Sub-rule (7)(b) and sub-rule (8)(d)
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of Rule 3 are subject to the operation of the second and third
provisos of sub-rule (1) of Rule 3. A suspension which has
otherwise become invalid by the operation of the second
proviso to Rule 3(1) cannot be reviewed since there remains
nothing to be reviewed, since the suspension has become
invalid. Therefore, there is no basis for the contention on
plurality of authorities.
10. Learned Senior Counsel for the writ petitioner
submits that since the suspension has become invalid the
petitioner is entitled to reinstatement in service in the same
post. We are afraid that contention has absolutely no basis.
Reinstatement is to the service and not to the post. It is for
the Government to deploy a member of All India Service in
any post. We are informed that the writ petitioner has
already been reinstated in service.
In the above circumstances the writ petition is allowed
declaring that Annexure 7 (Ext.P1) order of suspension is
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invalid and therefore, it has no effect or impact on the
petitioner in the eye of law. Petitioner is entitled to continuity
of service for all purposes with effect from the date of
suspension to the date of reinstatement. In that view of the
matter it is not necessary to consider various other
contentions raised by the counsel on both sides and hence the
rest of the contentions are left open.
(KURIAN JOSEPH, JUDGE)
(C.T.RAVIKUMAR, JUDGE)
ahg.
KURIAN JOSEPH &
C.T.RAVIKUMAR, JJ.
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W.P(C)No.23806 of 2009
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JUDGMENT
26th November, 2009