Kerala High Court
S.Gireesh Kumar vs The Kerala State Financial Enterprises ... on 20 March, 2013
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
WEDNESDAY, THE 2ND DAY OF JULY 2014/11TH ASHADHA, 1936
WP(C).No. 4812 of 2014 (B)
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PETITIONER(S):
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1. S.GIREESH KUMAR
(EMPLOYEE CODE NO.1301) SENIOR MANAGER (UNDER SUSPENSION)
M/S.KERALA STATE FINANCIALENTERPRISES LTD
MARANALLORE, THIRUVANANTHAPURAM.
2. M.PADMAKUMAR
(EMPLOYEE CODE NO.2919)
ASSISTANT MANAGER(UNDER SUSPENSION)
M/S.KERALA STATE FINANCIALENTERPRISES LTD.
PALODE BRANCH, THIRUVANANTHAPURAMDISTRICT.
BY ADVS.SRI.ELVIN PETER P.J.
SRI.T.G.SUNIL (PRANAVAM)
SRI.K.R.GANESH
RESPONDENT(S):
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1. THE KERALA STATE FINANCIAL ENTERPRISES LTD.
REP. BY ITS MANAGING DIRECTOR
"BHADRATHA" MUSEUM ROAD, P.B.NO.172
THRISSUR - 680 001.
2. THE MANAGING DIRECTOR
M/S.KERALA STATE FINANCIAL ENTERPRISES LTD
"BHADRATHA", MUSEUM ROAD, P.B.NO.172
THRISSUR - 680 001.
BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH
SRI.P.BENNY THOMAS
SRI.K.JOHN MATHAI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 4812 of 2014 (B)
APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P-1: TRUE COPY OF THE AUDIT REPORT DATED 20.3.2013 FOR THE YEAR
2009-2010 OF THE KERALA STATE FINANCIAL ENTERPRISES STAFF
CO-OPERATIVE SOCIETY.
EXT.P-2: TRUE COPY OF THE COMPLAINT DATED 9.4.2013 FILED BY THE
KERALA STATE FINANCIAL ENTERPRISES LTD STAFF CO-OPERATIVE
SOCIETY BEFORE THE ADDITIONAL DIRECTOR GENERAL OF POLICE,
SOUTH ZONE, TRIVANDRUM.
EXT.P-3: TRUE COPY OF F.I.R NO.617/2013 OF VANCHIYOOR POLICE STATION.
EXT.P-4: TRUE COPY OF THE UNDERTAKING GIVEN BY SRI.RAVI SANKAR TO
THE KERALA STATE FINANCIAL ENTERPRISES STAFF CO-OPERATIVE
SOCIETY.
EXT.P-5: TRUE COPY OF THE ORDER DATED 17.4.2013 ISSUED THE JOINT
REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), TRIVANDRUM.
EXT.P-6: TRUE COPY OF THE ORDER DATED 15.7.2013 ISSUED BY THE 2ND
RESPONDENT SUSPENDING THE 1ST PETITIONER.
EXT.P-7: TRUE COPY OF THE ORDER DATED 15.7.2013 ISSUED BY THE 2ND
RESPONDENT SUSPENDING THE 2ND PETITIONER.
EXT.P-8: TRUE COPY OF THE REPRESENTATION DATED 14.8.2013 SUBMITTED
BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT.
EXT.P-9: TRUE COPY OF THE REPRESENTATION DATED 10.1.2014 SUBMITTED
BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT.
EXT.P-10: TRUE COPY OF THE REPRESENTATION DATED 7.2.2014 SUBMITTED
BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT.
EXT.P-11: TRUE COPY OF THE REPRESENTATION DATED 14.8.2013 SUBMITTED
BY THE 2ND RESPONDENT.
EXT.P-12: TRUE COPY OF THE REPRESENTATION DATED 7.2.2014 SUBMITTED
BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT.
RESPONDENT(S)' EXHIBITS
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EXT.R1(a): TRUE COPY OF THE SHOW CAUSE NOTICE DATED 24.2.2014 ISSUED
BY THE 1ST RESPONDENT TO THE 1ST RESPONDENT.
EXT.R1(b): TRUE COPY OF THE SHOW CAUSE NOTICE DATED 24.2.2014 ISSUED
BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT.
/TRUE COPY/
P.A.TO JUDGE
VPV
P.N.RAVINDRAN, J.
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W.P.(C)No.4812 of 2014
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Dated this the 2nd day of July, 2014
JUDGMENT
The petitioners are employees of the Kerala State Financial Enterprises Limited. The first petitioner entered service as Junior Assistant in the year 1989. He was promoted to the category of Assistant Manager in the year 1998; to the category of Manager in the year 2004 and to the category of Senior Manager in the year 2010. The second petitioner entered service as Junior Assistant in the year 1997. He was promoted to the category of Assistant Manager in the year 2008. As employees of the Kerala State Financial Enterprises Limited, they are also members of the Kerala State Financial Enterprises Staff Co-operative Society Ltd. T-777, hereinafter referred to as "the society" for short. The first petitioner was elected as the President and the second petitioner was elected as the Honorary Secretary of the society and they served in that capacity during the period from 17.6.2007 to 16.6.2012.
2. After the petitioners ceased to be office bearers of the society, the successor in office of the second petitioner filed Ext.P2 W.P.(C)No.4812 of 2014 2 complaint dated 9.4.2013 before the Additional Director General of Police, South Zone, Thiruvananthapuram alleging that S.Ravisankar, Clerk-cum-Manager of the society has defalcated large sums of money from the society. The Additional Director General of Police forwarded the said complaint to the Station House Officer, Vanchiyoor Police Station through the District Police Chief. Thereupon, the Station House Officer, Vanchiyoor Police Station registered Crime No.617/2013 on 16.4.2013 against S.Ravisankar, Clerk-cum-Manager of the society for offences punishable under sections 468, 471, 420, 481 and 409 IPC. In connection with the investigation of the said crime, the petitioners were arrested on 9.7.2013 and produced before the Additional Chief Judicial Magistrate, Thiruvananthapuram, who remanded them to judicial custody. The petitioners were later enlarged on bail pursuant to the order passed by this Court on 5.8.2013 on B.A.No.5203 of 2013. The operative portion of the order passed by this Court on 5.8.2013 on B.A.No.5203 of 2013, directing release of the petitioners on bail is extracted below:-
"5. After hearing the submissions made by counsel on both sides and perusing the report filed by investigating officer, I find, whatever apprehension expressed by investigating agency W.P.(C)No.4812 of 2014 3 can be taken care of imposing adequate conditions while ordering release of petitioners on bail. Their continued detention, it seems, is not required for smooth completion of investigation of crime. Obstruction or interference of investigation by petitioners can be checked and prevented imposing stringent conditions. Apprehension expressed that they are likely to flee away from justice can also be taken care of imposing of conditions preventing them from leaving the country.
Petitioners are directed to be released on bail subject to the following conditions:
(i) Petitioners, both of them, shall execute bond for Rupees one lakh each with two solvent sureties, for the like sum, by each of them, to the satisfaction of the Additional Chief Judicial Magistrate, Thiruvananthapuram.
(ii) Petitioners shall report before investigating officer once in a week, on every Monday, at a time between 10.00 a.m. and 11.00 a.m., for a period of six weeks or till completion of investigation of crime, whichever is earlier. Irrespective of the period fixed as above, if their presence is demanded, so long as the investigation continues, they have to report before investigating officer and co- operate with the investigation.
(iii) Petitioners shall surrender their passports, if any, before the Magistrate, within a period of one week from the date of their release, and, if any one of them does not possess passport, he shall file an affidavit stating so within the above period.
(iv) Petitioners shall not leave the State so long as the investigation continues without getting prior permission from the investigating officer in writing.
(v) Petitioners shall not intimidate, terrorize or influence any person acquainted with the facts of the case so W.P.(C)No.4812 of 2014 4 as to dissuade him from disclosing such facts before the police or court, as the case may be, and nor shall they do any act or make any attempt to obliterate or tamper the evidence of crime.
Petition allowed."
This Court held after hearing learned counsel on both sides and after perusing the report filed by the Investigating Officer that the continued detention of the petitioners is not required, for the smooth completion of the investigation.
3. After the petitioners were arrested in connection with Crime No.617/2013 of Vachiyoor Police Station and remanded to judicial custody, the Managing Director of the Kerala State Financial Enterprises Limited issued Exts.P6 and P7 memos dated 15.7.2013 placing them under suspension with effect from 9.7.2013, the date on which they were arrested by the Police. The order of suspension was issued invoking clause 36 of the Standing Orders of Kerala State Financial Enterprises Limited. A month after the order of suspension was passed, the first petitioner submitted Ext.P8 representation dated 14.8.2013 requesting the Managing Director of the Kerala State Financial Enterprises Limited to reinstate him in service. He had by then been enlarged by this Court on bail. W.P.(C)No.4812 of 2014 5 Likewise, the second petitioner submitted Ext.P11 representation dated 14.8.2013 before the Managing Director of Kerala State Financial Enterprises Limited. Later, when no action was taken on the said representations, the first petitioner submitted Ext.P9 representation dated 10.1.2014 followed by Ext.P10 representation dated 7.2.2014 and the second petitioner submitted Ext.P12 representation dated 7.2.2014, wherein, they requested the Managing Director to revoke the order of suspension and to reinstate them in service. The instant writ petition was thereafter filed on 17.2.2014 seeking the following reliefs:-
"(i) To issue a Writ of Mandamus or any other appropriate writ, order or direction, directing the 2nd respondent to consider and pass orders on Exts.P-
10 and P-12 representations filed by the Petitioners forthwith.
(ii) To issue a Writ of Mandamus or any other appropriate writ, order or direction, directing the 2nd respondent to revoke the suspension of the petitioners under Clause 36 (v) of the Standing Orders of the Kerala State Financial Enterprises Ltd., and reinstate the petitioners in service.
(iii) Declare that the continued suspension of the petitioners is arbitrary and violative of Article 14 of the Constitution of India."
4. The main contention raised in the instant writ petition is W.P.(C)No.4812 of 2014 6 that the petitioners are not being prosecuted in connection with any act done by them in their capacity as employees of the Kerala State Financial Enterprises Limited, that this Court has in the order granting bail held that their continued detention is not required for the smooth completion of the investigation of the crime, that they are no longer office bearers of the co-operative society from which money is alleged to have been defalcated, that they have no access to records of the society and therefore, there is no need to continue the suspension of the petitioners.
5. A counter affidavit dated 2.5.2014 has been filed on behalf of the respondents. In paragraph 3 it is stated that the petitioners were elected as the President and Secretary of the society which is run by employees of the Kerala State Financial Enterprises Limited and that only employees of the Kerala State Financial Enterprises Limited can become members of the society. In paragraph 4 it is stated that during April 2013 large scale misappropriation in the society was detected and the matter was reported to the Police, that the Police thereupon registered Ext.P3 F.I.R. and after investigation, arrested the petitioners and others and they were remanded to judicial custody. The counter affidavit proceeds to state that as the W.P.(C)No.4812 of 2014 7 petitioners functioned as the President and Secretary of the society only because they are employees of the Kerala State Financial Enterprises Limited and a crime was registered against them, the management initiated disciplinary action against them and as part of disciplinary action issued show cause notices to the petitioners calling upon them to show cause why they should not continue to be under suspension pending the disciplinary action. Copies of the show cause notices issued to the petitioners are produced as Exts.R1(a) and R1(b). In paragraph 7 it is contended that as the petitioners are involved in a serious misconduct, the management is justified in initiating disciplinary action against them. In paragraph 10 it is contended that the management initiated action against the petitioners and ordered continuance of the suspension in view of the disciplinary action against them.
6. I heard Sri.K.R.Ganesh, learned counsel appearing for the petitioners and Sri.M.Gopikrishnan Nambiar, learned counsel appearing for the respondents. I have also gone through the pleadings and the materials on record. Exts.P6 and P7 orders of suspension disclose that the petitioners were placed under suspension on account of their detention in custody on a criminal W.P.(C)No.4812 of 2014 8 charge for a period exceeding 48 hours. In other words, they were placed under suspension on the ground that they were arrested by the Circle Inspector of Police, CBCID, Kollam on 9.7.2013 in connection with Crime No.617/2013 of Vanchiyoor Police Station and on production before the criminal court, remanded to judicial custody. Ext.P2 complaint and Ext.P3 F.I.R. disclose that the said crime was registered in connection with the affairs of the society of which the petitioners were the President and Secretary during the period from 17.6.2007 to 16.6.2012. The petitioners are not named in Ext.P2 complaint or in Ext.P3 F.I.R. However in the course of investigation of the crime, they were arrested and produced before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram on 9.7.2013 and on that day, they were remanded to judicial custody. It was a week thereafter that the orders of suspension were issued. Later, the petitioners were enlarged on bail by this Court by order passed on 5.8.2013 on B.A.No.5203 of 2013 after entering a finding that their continued detention is not required for the smooth and complete investigation of the crime. This Court also imposed conditions so as to prevent interference with the investigation by the petitioners. They were also directed to W.P.(C)No.4812 of 2014 9 surrender their passports, to furnish cash security to the tune of Rs.1,00,000/- (Rupees One Lakh Only) with two solvent sureties each for the like sum and to report before the investigating officer once a week on every Monday until the investigation is completed. The pleadings and the materials on record also disclose that apart from the investigation by the Police, an inspection under section 66 of the Kerala Co-operative Societies Act, 1968 is also being conducted pursuant to Ext.P5 order dated 17.4.2013 issued by the Joint Registrar of Co-operative Societies (General), Thiruvananthapuram.
7. As stated earlier, the petitioners are no longer office bearers of the society. They ceased to be the office bearers on 16.6.2012. More than two years have passed thereafter. The records maintained in the co-operative society are either with the investigating agency or with the officer conducting the inspection. Ordinarily, an employee is kept under suspension so as to prevent him from having access to records and to deny him further opportunity to repeat the alleged act of misconduct. In the instant case, the petitioners were placed under suspension not on account of any act of misconduct committed by them as employees of the W.P.(C)No.4812 of 2014 10 Kerala State Financial Enterprises Limited but on the ground that they were arrested in connection with the investigation of a crime registered against the Clerk-cum-Manager of the society of which they were formerly office bearers and remanded to judicial custody by the Court of the Additional Chief Judicial Magistrate, Thiruvananthapuram.
8. It is evident from the order of suspension that it was for that reason alone that they were placed under suspension. It is evident from the Standing Orders of Kerala State Financial Enterprises Limited that suspension is not a punishment but only a means to disable an employee from discharging the duties of office or the post held by him. In other words, it is to prevent further opportunity to the employee to repeat the alleged act of misconduct or from interfering with the enquiry in progress or from having access to records that suspension is contemplated. The suspension of the petitioners has nothing to do with the discharge of their duties and functions as employees of Kerala State Financial Enterprises Limited. They were suspended only because of their arrest in connection with a criminal case relating to the affairs of a society of which they were formerly office bearers. The orders of W.P.(C)No.4812 of 2014 11 suspension do no disclose that they were suspended pending disciplinary action against them. The disciplinary action contemplated against them is not set out in Ext.R1(a) and Ext.R1
(b). The petitioners can be proceeded against by the employer only if they are found guilty by the criminal court and sentenced to undergo imprisonment. No disciplinary action can in my opinion be taken against them merely for the reason that their conduct as office bearers of the society is under scrutiny. This Court has in the order passed on 5.8.2013 on Bail Application No.5203 of 2013 held that their continued detention is not required for the smooth investigation of the crime. In such circumstances, as the petitioners have been enlarged on bail by this Court and as stated earlier, they are not being prosecuted for any act or omission on their part in connection with their work as employees of the Kerala State Financial Enterprises Limited, I am of the opinion that the continued suspension of the petitioners, who have been kept under suspension for the past 11= months, is not warranted. I am therefore of the considered opinion that the petitioners are entitled to be reinstated in service without prejudice to the right of the management to initiate disciplinary action against them, if they are convicted by the W.P.(C)No.4812 of 2014 12 criminal court and sentenced to undergo imprisonment or to pay fine.
I accordingly allow the writ petition and direct the respondents to forthwith reinstate the petitioners in service, without prejudice to their right to take disciplinary action against them in the event of the petitioners being convicted by the criminal court and sentenced to undergo imprisonment or to pay fine. No costs.
Sd/-
P.N.RAVINDRAN JUDGE vpv/vps