Kerala High Court
K.Vikraman Nair vs State Of Kerala on 5 September, 2008
Author: Thomas P.Joseph
Bench: J.B.Koshy, Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1718 of 2008()
1. K.VIKRAMAN NAIR
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. COMMISSIONER OF EXCISE
3. EXCISE VIGILANCE OFFICER
4. ASSISTANT EXCISE COMMISSIONER
5. CIRCLE INSPECTOR OF EXCISE
For Petitioner :SRI.B.RADHAKRISHNA PILLAI
For Respondent : No Appearance
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :05/09/2008
O R D E R
"C.R."
J.B. KOSHY & THOMAS P.JOSEPH, JJ.
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W.A. No. 1718 of 2008
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Dated this the 5th day of September, 2008
J U D G M E N T
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Thomas P.Joseph, J.
When can the Writ Court, exercising the power of judicial review under Article 226 of the Constitution of India interfere with an administrative order of suspension of an employee pending departmental enquiry is the important question arising for consideration in this appeal.
2. The appellant before us is a Preventive Officer of the Excise Department. According to him, he has a record of meritorious service in that Department and has good service entry and award to his credit but, ultimately he was rewarded with an order of punishment transfer, followed by an order of suspension pending disciplinary proceedings and departmental enquiry. While he was working as Preventive Officer in Karunagappally Excise Circle he was ordered to be transferred to Chathannur Excise Circle which he questioned in this Court in W.P(C) No.12698 of 2008. A learned Single Judge of this Court W.A. No. 1718 of 2008 -: 2 :- vide Exhibit P10, judgment dated 11.4.2008 directed the 4th respondent to consider the representation against his transfer, to be preferred by him. While so, came the order of suspension (Exhibit P12, dated 29.4.2008). The appellant again approached this Court in W.P.(C) No.20619 of 2008 challenging the order of suspension as mala fide and on account of the pressure exerted by what he called 'the Abkari lobby' working against him. The learned Single Judge vide the impugned judgment, refused to exercise the extraordinary jurisdiction of this Court under Article 226 of the Constitution, but observed that it will be open to the appellant to place all available materials before the Government (the first respondent) to show that there was no reason why he should be kept under suspension and that if the appellant files an application under Rule 10(6) of the K.C.S. (C.C. & A) Rules, 1960 within three weeks from the date of the judgment before the Government, it shall treat the matter either as an application for revocation or as an appeal against the order of suspension issued by the second respondent. Aggrieved by, and dissatisfied with the order of the learned Single Judge, the appellant has come up in appeal.
3. We heard learned counsel for the appellant and the learned Government Pleader who took notice for the respondents.
4. As per direction, the learned Government Pleader filed a W.A. No. 1718 of 2008 -: 3 :- detailed statement on behalf of the first respondent explaining the circumstances under which the appellant, according to the first respondent was placed under suspension. Appellant filed a reply statement reiterating his contentions in the Writ Petition and this appeal.
5. Since the power under Article 226 of the Constitution of India is neither appellate nor revisional and is an extraordinary original jurisdiction of the High Court, normally, an appeal would not have been entertained from the exercise of discretion made by the learned Single Judge and particularly if the aggrieved party has an alternative and efficacious remedy available under the relevant Statute. In the facts and circumstances of the case on hand, we are inclined to entertain this appeal since the order of suspension came after a learned Single of Judge of this Court as per Exhibit P10, judgment dated 11.4.2008 had given an opportunity to the appellant to make a representation to the Government (the first respondent) regarding his request for transfer and as it is admitted and revealed by Exhibits P11 and P12 that the second respondent issued the order of suspension under challenge as per the direction or recommendation as the case may be, made by the first respondent-Government. In such situation, we do not think that the appellant will have and W.A. No. 1718 of 2008 -: 4 :- efficacious remedy by filing an appeal or other representation before the Government (the first respondent) as provided under the relevant Rules. We also bear in mind that the existence of an alternative remedy is not an absolute bar for this Court exercising the power of judicial review, but is only a circumstance which in the given facts of a case may dissuade this Court from exercising the discretion.
6. The short facts necessary for consideration of this appeal are: On 25.2.2006 at or about 6.15 p.m. at a time when the appellant was working as Preventive Officer in Karunagappally Excise Circle, the Excise party of that Circle consisting of Preventive Officer, Shri S. Vasudeva Kurup and some Excise Guards allegedly arrested one Prakash for possessing illicit arrack. The Excise party prepared a mahazar (Exhibit P3) and allegedly seized the contraband. A case was registered against Prakash as Crime No.45/2006 of Karunagappally Excise Range Office. Exhibit P3(a) is the Crime and Occurrence report. Along with a remand report (Exhibit P3(b), Prakash was produced before the Judicial First Class Magistrate, Karunagappally on 26.2.2006. Prakash was remanded to judicial custody. He remained in judicial custody for 76 days. According to the appellant, at the instance of the liquor lobby who were enmical to him as he had either detected or assisted in the detection of the highest number of cases W.A. No. 1718 of 2008 -: 5 :- under the Abkari Act in Karunagappally Excise Circle during 1996- 2006, the said Prakash filed complaint against him before various authorities alleging that Crime No.45/2006 was registered at the instance of the appellant and that Prakash was falsely implicated, the alleged motive for the same being that Prakash refused to oblige the demand of the appellant to give him puppies. The 5th respondent conducted a detailed enquiry, questioning about 13 witnesses including the said Prakash and submitted Exhibit P4, report dated 20.2.2008 exonerating the appellant. That report said that the appellant was not in anyway involved in the detection or registration of Crime No.45 of 2006 against Prakash. The report further said that Crime No.45 of 2006 is not a false case. On 23.1.2008 the Excise Party (including the appellant) headed by the Circle Inspector seized 7770 litres of spirit from two fishing boats and arrested 4 persons in connection with that. A case was registered against the said persons. Exhibit P5 is the copy of the mahazar prepared by the Circle Inspector for that seizure. Reports concerning the detection of that case and the seizure of the contraband appeared in the vernacular dailies, the copy of which are Exhibits P6 and P6(a). While so, the third respondent (Excise Vigilance Officer, Thiruvananthapuram) submitted Exhibit P7, report dated 11.3.2008 stating that the enquiry conducted W.A. No. 1718 of 2008 -: 6 :- by him revealed that Crime No.45 of 2006 (registered against Prakash) is a false case registered at the instance of the appellant to wreck vengeance on Prakash as Prakash had refused to oblige the request of the appellant to give him puppies. It was also stated in the report that it is learned that the appellant is in the habit of pestering the customers of a Bar at Kunnathur by threatening to register false cases against them and collecting money from them. The third respondent therefore recommended disciplinary action against the appellant keeping him away from Karunagappally Excise Circle and the adjoining Excise Circle. It is based on that report that the appellant was transferred to Chathannur Excise Circle. Exhibit P8 is the order of transfer, dated 4.4.2008. That order was challenged in Writ Petition No.12698 of 2008 which resulted in Exhibit P10 judgment dated 11.4.2008 which has already been adverted to. It is while so, that the first respondent directed or recommended to the second respondent vide Exhibit P11, dated 18.4.2008 to place the appellant under suspension contemplating disciplinary proceedings and departmental enquiry. The relevant portion in Exhibit P11 when translated reads thus: "....Your attention is drawn to the reference. The copy of the report of enquiry conducted by the Excise Vigilance Officer as per reference No.3 against Shri Vikraman Nair, Preventive Officer of Kollam W.A. No. 1718 of 2008 -: 7 :- Excise Division, is enclosed herewith. In the circumstances that very serious misconducts are reported against Shri Vikaraman Nair in the said report, it is requested to suspend him from service immediately pending disciplinary and departmental enquiry. It is also requested not to re-instate him in service without the prior sanction of the Government and to report to the Government the details of the departmental actions taken against him as and when the departmental action is over. Moreover, it is also informed to conduct re-investigation of Crime No.45 of 2006 registered in Karunagappally Excise Range office through the Excise Intelligence or the Deputy Excise Commissioner, Investigation Bureau..". The second respondent obliged the recommendation or direction of the first respondent by Exhibit P12, order dated 29.4.2008 and placed the appellant under suspension.
7. Learned counsel for the appellant submitted that the appellant was not in any way connected with the detection of the offence or registration of Crime No.45 of 2006. Enquiry conducted by the 5th respondent had revealed that the appellant was not in any way involved or connected with in the detection or registration of that case. Counsel further submitted that it was without application of mind and merely obliging the recommendation or direction of the first W.A. No. 1718 of 2008 -: 8 :- respondent as per Exhibit P11 that the second respondent issued the order of suspension. According to the learned counsel, suspension of the appellant was not expedient in public interest. If at all respondents 1 and 2 thought that the appellant might interfere with the disciplinary proceedings or departmental enquiry his transfer to Chathannur Circle as per Exhibit P8 (which itself according to the learned counsel was not fair) would have been sufficient. Counsel therefore requested this Court to exercise the extraordinary original jurisdiction under Article 226 of the Constitution. Learned Government Pleader per contra, submitted that it was not on account of any extraneous considerations that the appellant was placed under suspension. The order of suspension was purely based on Exhibit P7 dated 11.3.2008 submitted by the third respondent after conducting a detailed enquiry into the allegations. Serious allegations are levelled against the appellant and the enquiry conducted by the third respondent revealed prima facie that the allegations are true. It was in the above circumstances that the appellant was placed under suspension. The learned Government Pleader also reminded this Court that while exercising the extraordinary original jurisdiction under Article 226 of the Constitution this Court is not exercising appellate or revisional jurisdiction over the administrative order of the second W.A. No. 1718 of 2008 -: 9 :- respondent.
8. No doubt, this Court while exercising jurisdiction under Article 226 of the Constitution is not sitting as a court of appeal or revision so that this Court can substitute the order challenged with its own decision. But it is also the settled position of law that this Court can certainly interfere when, among other things, it is revealed that the authority concerned which took the impugned decision has reached an unreasonable decision or has abused its powers. It is also the position of law that this Court can review and evaluate question of fact for the limited purpose of scrutinising the decision making process. While examining and scrutinising the decision making process it may become inevitable for this Court to appreciate the facts of a given case even though for the limited purpose of ascertaining among other things, whether the authority concerned has reached an unreasonable decision or has abused its powers. Reminding ourselves about this legal position we shall consider whether interference is required with Exhibits P11 and P12, dated 18.4.2008 and 29.4.2008, respectively.
9. Regarding the complaint preferred by Prakash pertaining to the detection of the offence and registration of Crime No.45 of 2006 is concerned, the 5th respondent conducted detailed enquiry as W.A. No. 1718 of 2008 -: 10 :- revealed from Exhibit P4, report dated 20.2.2008, recorded statement of 13 witnesses and questioned two others. The 5th respondent reached the conclusion that the allegations implicating the appellant with the detection of the offence and registration of Crime No.45 of 2006 are not true. The appellant was not in any way involved or connected with the detention of the case or registration of Crime No.45/2006 at any stage. Regarding the allegation that he appellant had demanded puppies from Prakash, there was no material to support that, except the version of Prakash himself. The 5th respondent also came to the conclusion that it is incorrect to say that Crime No.45 of 2006 is a false case. It is thereafter that the third respondent came with Exhibit P7, report dated 11.3.2008 concluding that the appellant was responsible for the registration of Crime No.45 of 2006 to vindicate his personal grievance against Prakash. We were taken through Exhibit P7. It would appear that Prakash, the accused in Crime No.45 of 2006 had even raised allegations that the appellant had procured the job with forged documents but the third respondent found that the said allegations are false. It is pertinent to note that of the witnesses questioned by the third respondent, only Prakash had stated about the alleged involvement of the appellant in the detection and registration of Crime No.45 of 2006. A further fact stated in W.A. No. 1718 of 2008 -: 11 :- Exhibit P7 is that it is learned by the third respondent that the appellant is threatening to foist case against the customers of a Bar at Kunnathur and collecting money from them. On going through Exhibit P7 it would appear that the said information is what the third respondent had 'learnt' in a discreet enquiry. We however, make it clear that we are not required to nor are we going into the truth or otherwise of the allegations against the appellant or the correctness of what is stated by the third respondent in Exhibit P7. For the purpose of deciding the issue involved in this appeal we need only point out that the allegation about the appellant foisting the case against Prakash and causing his judicial custody for 76 days was enquired by the 5th respondent and found against, before the third respondent conducted the enquiry. Whether the allegations against the appellant will be established in the departmental enquiry is a different matter and we leave that matter to the authority concerned.
10. The appellant claimed, and it is stated in Exhibit P4 that the appellant has to his credit meritorious service in the Excise Department. The appellant was given a good service entry. Either as detecting officer or as the second witness assisting the detecting officer, he was involved in the detection of the highest number of Abkari cases during the relevant period. This is revealed by Exhibit P2. W.A. No. 1718 of 2008 -: 12 :- The Excise Staff Association honoured the appellant with an Award, as seen from Exhibit P1. Among the Preventive Officers of Kollam District, appellant detected the highest number of Abkari cases during 1996-2006.
11. Suspension of an employee pending disciplinary proceedings and departmental enquiry is not automatic, but is discretionary. One of us (J.B. Koshy, J.), speaking for the Division Bench in Surendran v. Government of Kerala (2008 (3) KHC
738) pointed out that the object of placing an employee under suspension pending enquiry is to enable the administration to conduct the proceedings smoothly so as to establish the allegations or charge against that employee. If victimisation is discernible from the facts of the case or, suspension is arbitrary or illegal, interference in exercise of the power under Article 226 of the Constitution is justified and warranted.
12. The appointing authority or the disciplinary authority while considering whether an employee should be placed under suspension pending disciplinary proceedings and departmental enquiry should certainly consider the seriousness of the misconduct sought to be enquired into or investigated and the nature of the materials place before such authority. It must be on proper application of mind that W.A. No. 1718 of 2008 -: 13 :- the disciplinary authority should decided on the question of suspension. The order of suspension cannot be issued merely as an administrative routine or as automatic following the decision to initiate disciplinary proceedings. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. Public interest of the impact of the delinquent's continuance in office while facing departmental enquiry is also a matter which the authority concerned should bear in mind while deciding whether the delinquent employee must be placed under suspension (See State of Orissa v. Bimal Kumar Mohanty (1994) 4 SCC 126).
13. In the case on hand, a written complaint against the appellant came only from Prakash, the accused in Crime No.45 of 2006 against whom the case is pending trial and one Sivadasan of Chavara. What is recommend by the third respondent in Exhibit P7 report dated 11.3.2008 and the first respondent in Exhibit P11 dated 18.4.2008 concerning crime No.45 of 2006 is only a re-investigation of that case. That means, as against the records of Crime No.45 of 2006 and Exhibit P4 report suggesting that crime No.45 of 2006 is not a false case and that at any rate the appellant is not involved or connected with that case, the first respondent is yet to learn the truth of the allegations in the re-investigation that is yet to happen. As against the complaint W.A. No. 1718 of 2008 -: 14 :- made by Prakash and Sivadasan, the appellant has to his credit meritorious service leading to good service entry from the department and an award from the Association of the Excise staff. He, it is not disputed, and Exhibit P2 shows had detected the highest number of Abkari cases (among Preventive Officers) in Kollam District during 1996-2006. Neither Exhibit P11 nor Exhibit P12 show that before deciding to place the appellant under suspension the first or the second respondent had considered the relevant considerations which we have sated above. We do not also find anything in Exhibits P11 and P12 to the effect that it is expedient in public interest to place the appellant under suspension. Nor is there anything to show even prima facie that the continuance of the appellant in service would in any way hamper the disciplinary proceedings or the departmental enquiry that is to be initiated against the appellant, especially in spite of the fact that the appellant had already been transferred out of Karunagappally Excise Circle. It is pertinent to note that the recommendation or direction to place the appellant under suspension from the first respondent (Exhibit P11 dated 18.4.2008) came just 7 days after a learned Single Judge of this Court while considering the challenge against the order of transfer directed the 4th respondent vide Exhibit P10, dated 11.4.2008 to consider the representation to be W.A. No. 1718 of 2008 -: 15 :- filed by the appellant regarding his transfer. Though, the third respondent had as per Exhibit P7 dated 11.3.2008 only recommended the transfer of the appellant beyond Karunagappally and Kunnathur Excise Circles pending departmental enquiry and that recommendation was accepted by transferring the appellant to Chathannur Excise Circle as per order dated 4.4.2008 (Exhibit P8) first respondent recommended or directed the second respondent to place the appellant under suspension as per Exhibit P11 dated 18.4.2008. It is not made out, what persuaded and prompted the first respondent to direct or recommend suspension while the third respondent had only recommended his transfer and that recommendation had already been accepted. It is interesting to note that in Exhibit P11, there is no reference at all to Exhibit P4 report dated 20.2.2008 which persuades us to think that the first respondent and for that matter, even the second respondent did not consider Exhibit P4 report which was favourable to the appellant. The second respondent after referring to the complaints against the appellant and the conclusions reached by the third respondent (vide Exhibit P7) said that the first respondent has vide Exhibit P11 directed that the appellant be placed under suspension forthwith and then proceeded to suspend the appellant.
14. The circumstances indicate that the recommendation or W.A. No. 1718 of 2008 -: 16 :- direction and the consequent order of suspension smacks mala fides and victimisation. It would appear that respondents 1 and 2 hastely and that too, after Exhibit P10, judgment of this Court dated 11.4.2008, decided to place the appellant under suspension without considering the relevant factors. We are not inclined to accept the contention of the learned Government Pleader on behalf of the respondents and we are also not satisfied that the suspension of the appellant was expedient in public interest. Facts and circumstances persuade us to invoke the power of this Court under Article 226 of the Constitution and interfere with Exhibit P11 dated 18.4.2008 and Exhibit P12 dated 29.4.2008. We however, make it clear that we have not pronounced verdict on the merits of the allegations raised against the appellant which of course is to be established in the disciplinary proceedings and departmental enquiry that is contemplated and may follows.
15. We therefore, allow this appeal and the Writ Petition in the following lines:
(a) The impugned order of the learned Single Judge is set aside.
(b) Exhibit P11 dated 18.4.2008 and Exhibit P12 dated 29.4.2008 are quashed.
W.A. No. 1718 of 2008 -: 17 :-
(c) Respondents 1 and 2 are directed to reinstate the appellant with immediate effect as Preventive Officer in Chathannur Excise Circle.
It is made clear that the direction contained in Exhibit P10 judgment will come into operation on such re-instatement.
J.B. KOSHY, JUDGE.
THOMAS P.JOSEPH, JUDGE.
vsv