IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20899 of 2010(J)
1. MR.ZANU ZACHARIAS, IYRAMANA,
... Petitioner
Vs
1. THE PRINCIPAL SECRETARY TO GOVERNMENT
... Respondent
2. THE ADDITIOAL CHIEF SECRETARY
3. THE MANAGING DIRECTOR
For Petitioner :SRI.JOSEPH KODIANTHARA (SR.)
For Respondent :SRI.M.K.CHANDRA MOHANDAS
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :13/07/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C.) No.20899 of 2010 (J)
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Dated, this the 13th day of July, 2010
J U D G M E N T
The petitioner is working as a General Manager under the 3rd
respondent. In this writ petition he is challenging Ext.P7 order
issued by the 3rd respondent on 01/07/2010 placing him under
suspension.
2. Facts of the case show that in regard to a loan that was
sanctioned to M/s.Five Star Rubber Industries Private Ltd., Edayar,
the application was processed by the petitioner and the loan was
sanctioned and disbursed to the loanee. It is alleged that collateral
security offered by the loanee was over valued by the petitioner
resulting in grant and disbursement of a loan of Rs.1,50,00,000/-
to the loanee. According to the Corporation, ultimately it resulted in
a financial loss of Rs.8,85,94,621/-.
3. Vigilance enquiry was caused into the aforesaid issue.
The Vigilance and Anti Corruption Bureau submitted its report to the
Government. The Government considered the report and issued
Ext.P5 to the 3rd respondent enclosing an extract of the allegations
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and the findings of the VACB. The extract of the allegations and the
findings of the VACB as enclosed in Ext.P5 shows that the VACB
recommended to suspend the petitioner with immediate effect till
the completion of investigation, as according to them, there is every
possibility of the petitioner using his official position to impair the
fair investigation of the case.
4. Accepting the said recommendation of the Vigilance, the
2nd respondent issued Ext.P5 to the 3rd respondent directing to take
immediate action on the recommendations of the VACB and to
intimate the action taken thereon. On receipt of Ext.P5, the 3rd
respondent issued Ext.P7 order, which reads as under :-
“The Vigilance and Anti-Corruption Bureau which conducted an enquiry
into the allegations against officials of Kerala Financial Corporation in
sanctioning loan to M/s.Five Star Rubber Industries Private Ltd., Edayar
during 1995-96 has submitted a report along with recommendations to
the Vigilance Department in Government. The Vigilance Department, after
examining the matter in detail has accepted the recommendations and
has requested Government to initiate steps to suspend Sri.Zanu Zacharias,
General Manager-I, KFC with immediate effect. Government vide letter
No.19972/PU-A1/2010/Fin. Dated 25/06/2010 has directed to take
immediate action on the recommendations of the report accepted by
Government.
In the above circumstances, Sri.Zanu Zacharias, General Manager-I,
Kerala Financial Corporation, Head Office is placed under suspension with
immediate effect. He will be eligible for subsistence allowance as per
rules.
An extract of the allegations and findings of the Vigilance and
Anti-Corruption Bureau received is enclosed.”
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It is this order which is under challenge.
5. Main contention raised by the learned Senior counsel for
the petitioner is that the recommendation of the VACB was accepted
by the Government and the Government issued Ext.P5 requiring the
Corporation to implement the directions. According to the
petitioner, acting upon Ext.P5 without any application of mind, the
Corporation issued Ext.P7 placing the petitioner under suspension,
and for that reason, Ext.P7 is illegal. The learned Senior counsel for
the petitioner placed considerable reliance on Ext.P8 judgment
dated 10/02/2003 rendered by this Court in O.P.No.988/2003.
6. A statement has been filed on behalf of the 3rd
respondent. The main thrust of the averments in the statement is
that the past history of the petitioner is not free from blame. It is
also stated therein that the findings of the VACB as disclosed in
Ext.P5 shows that grave misconducts were committed by the
petitioner. It is stated that it was because of the gravity of the
misconducts, the Government issued Ext.P5 recommendation and
ordered its implementation which was accepted by the 3rd
respondent. It is contended that it was thereafter that by Ext.P7, the
petitioner was ordered to be placed under suspension. Learned
Government Pleader supported Ext.P5 issued by the Government.
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7. In this writ petition, this Court is not concerned with the
gravity of the offences alleged against the petitioner. This is a
matter for the disciplinary authority to enquire and finalise the
proceedings. All that this Court is concerned is whether Ext.P7
order placing the petitioner under suspension is justified or not.
8. A reading of Ext.P7 order shows that the VACB
conducted enquiry and submitted report to the Government with its
recommendations to place the petitioner under suspension. The
Government accepted the recommendations and by Ext.P5, directed
the 3rd respondent to take immediate action on the
recommendations of the VACB. In pursuance thereof, and without
anything more, Ext.P7 order has been issued placing the petitioner
under suspension.
9. Although, the disciplinary authority of the petitioner is
entitled to take disciplinary action against the petitioner and also to
place the petitioner under suspension in an appropriate case, it is
for the disciplinary authority to apply its mind to the facts of the
case and to decide as to whether in the circumstances, as disclosed
from the materials, it is necessary or desirable to place the
delinquent under suspension. For this, independent application of
mind is inevitable and should be reflected in the order placing the
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delinquent under suspension or at least in the files. In this writ
petition, neither the statement filed on behalf of the 3rd respondent
nor Ext.P7 discloses such application of mind. Therefore, Ext.P7
order cannot be sustained and is accordingly quashed.
10. It is clarified that this judgment will not stand in the way
of the 3rd respondent in passing fresh orders in the matter, if on
examination of the facts of the case, the 3rd respondent is satisfied
that the petitioner should be placed under suspension pending
disciplinary action against him.
At this stage, learned Senior counsel for the petitioner submits
that the petitioner is due to retire from service on 31/07/2010 and
in order to avoid the stigma of having retired while on suspension,
he is willing to go on leave. Whether the petitioner should be placed
under suspension or should be allowed to go on leave pending
retirement, are matters for the Corporation to decide and this Court
cannot issue any directions in this behalf.
This writ petition is disposed of as above.
(ANTONY DOMINIC, JUDGE)
jg