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1975 DIGILAW 244 (KER)

GEORGE v. STATE OF KERALA

1975-09-25

V.BALAKRISHNA ERADI

body1975
Judgment :- 1. The writ petitioner was holding the post of Chief Conservator of Forests in the Forest Department of the Kerala Government from 16th October 1958 onwards. But he was placed under suspension on 28th March 1967 pending enquiry into certain charges of misconduct levelled against him. It is unnecessary for the purpose of this case to narrate in detail the nature of the charges levelled against the petitioner, the defence put forward by him and the fairly long drawn out enquiries held into those charges. Suffice it to say that the charges formed the subject-matter of two separate enquiries conducted by a Tribunal specially appointed for that purpose and based on the reports submitted by the Tribunal the Government ultimately passed final orders on 17th April 1972 finding the petitioner guilty of several of the charges framed against him in agreement with the recommendation of the Public Service Commission and directing that an amount of Rs. 25 per mensem be reduced from the pension of the petitioner who had by that time retired from service on superannuation with effect from 25th January 1970 while he was under suspension. In the wake of the final order so passed in the disciplinary enquiry it naturally became necessary for the Government to take up the question as to how the period during which the petitioner was under suspension should be treated under R.56 of Part I of the Kerala Service Rules. As a preliminary measure for taking a decision in regard to the said matter the Government issued to the petitioner the memo Ext. P-6 dated 24th November 1972 intimating the petitioner that it was provisionally proposed to treat the period of suspension of the petitioner from 28th March 1967 to 25th January 1970 as period spent out of duty for all purposes except for pay and allowances which would be limited to the subsistence allowance already drawn by him during the said period. It was mentioned in Ext P-6 that since some of the serious charges had been proved against the petitioner Government considered that the petitioner's suspension for the whole of the aforesaid period was justified. The petitioner was directed to show cause. within 15 days of the receipt of Ext. P-6 why the proposal mentioned therein should not be implemented by the Government. The petitioner was directed to show cause. within 15 days of the receipt of Ext. P-6 why the proposal mentioned therein should not be implemented by the Government. In reply to the said memo the petitioner put in a fairly detailed representation as per Ext. P-7 dated 15th December 1972. Thereafter the Government passed final orders in the said matter on 6th March 1973 confirming the proposal formulated in Ext. P-6. Ext. P-8 is a copy of the said order and the prayer in this writ petition is that Ext P 8 should be quashed. 2. Although the petitioner has put forward a contention that the order Ext. P-8 is violative of Art.14 and 19 of the Constitution, the learned advocate appearing for the petitioner stated that he is not pressing the said contention particularly in view of the Presidential Order made under Art.359 of the Constitution. 3. The only point that is urged before me by the learned advocate for the petitioner is that there has not been a proper discharge by the State Government of the function under R.56 of Part I of the Kerala Service Rules inasmuch as the Government has omitted to "consider" the matters referred to in the said rule with due application of its mind. According to the learned advocate what the Government have done under Ext. P-8 is merely to recite the factum of their having passed an order of suspension against the petitioner and thereafter straight away to direct that the period of petitioner's suspension should be treated "as out of duty for all purposes except for pay and allowances which will be limited to the subsistence allowance already drawn" without any advertence to the aspects required to be referred to by the terms of R.56. I am unable to accept this contention. The Government bad indicated in the memo Ext. I am unable to accept this contention. The Government bad indicated in the memo Ext. P-6 that in view of the fact that some of the serious charges levelled against the petitioner in the disciplinary enquiry had been found to be proved, the petitioner's suspension for the period from 28th March 1967 to 25th January 1970 was justified and it was on that basis that the petitioner was informed about the tentative proposal to: treat the said period of his suspension as period spent out of duty for all purposes except for pay and allowances which would be limited to the subsistence allowance already drawn by him. The petitioner was given an opportunity to make his representations against the said proposal. On a consideration of the representation filed by the petitioner the Government found that he had not made out any satisfactory ground for modifying the proposal contained in Ext. P-6. It was in the light of the said conclusion that the Government proceeded to pass the order Ext. P-8 confirming the proposal incorporated in Ext. P-6. 4. The main question that fell to be considered under R.56 was whether the suspension of the Government servant in question was wholly unjustified. I do not find it possible to say in this case that the Government have failed to apply its mind to the said question. It is unnecessary for the Government to reiterate in an order passed under R.56 all the details regarding the various findings entered against the officer in the disciplinary proceedings and the evidence which was relied on in support of those find ings. A proceeding under R.56 is a sequel to the final order already passed in the main disciplinary proceedings and both the concerned officer as well as. the authority passing the order under R.56 can be reasonably assumed to be fully conversant with the findings entered in the disciplinary proceedings and the evidence relied on in support of those findings. A proceeding under R.56 is a sequel to the final order already passed in the main disciplinary proceedings and both the concerned officer as well as. the authority passing the order under R.56 can be reasonably assumed to be fully conversant with the findings entered in the disciplinary proceedings and the evidence relied on in support of those findings. All that the authority passing the order under R.56 is enjoined to do is to apply its mind to the limited question whether in the light of the findings arrived at in the disciplinary proceedings it can be said that the suspension was wholly unjustified and if its conclusion was that it was not wholly unjustified, the authority has to further consider and decide as to what proportion of the pay and allowances the officer must be given for the period during which he was under suspension. It is specifically laid down in clause (5) of R.56 that in cases where the competent authority finds that the suspension was not wholly unjustified, the period of absence from duty shall not be treated as period spent by the concerned Government servant on duty unless the authority specifically directs that it shall be so treated for any specified purpose. 5. In the present case the Government had expressed its view in Ext. P-6 that the charges proved against the petitioner were of a serious nature' and that hence the suspension for the period from 28th March 1967 to 25th January 1970 was justified. After adverting to the points raised by the petitioner in the representation filed by him, the Government expressed its conclusion in Ext. P-8 that the explanation of the petitioner was not satisfactory and that hence there were no grounds for modifying the proposals contained in Ext. P-6. Such being the conclusion reached by the Government it was unnecessary for the Government to reiterate in Ext. P-8 what they had already mentioned in Ext. P-6, namely, that the charges proved against the petitioner were serious. I see no substance at all in the contention. From a perusal of the final order dated 17th April 1972 passed by the Government in the disciplinary proceedings, it is seen that the charges that were held to have been established against the petitioner were of a very serious nature. I see no substance at all in the contention. From a perusal of the final order dated 17th April 1972 passed by the Government in the disciplinary proceedings, it is seen that the charges that were held to have been established against the petitioner were of a very serious nature. In O. P. No. 2756 of 1972 which the present writ petitioner had filed before this Court challenging the order dated 17th April 1972 a Division Bench of this Court while dealing with a contention raised by the present writ petitioner that the punishment imposed on him was wholly disproportionate to the gravity of the charges had also occasion to observe about the seriousness of the charges proved against the petitioner. It cannot therefore be said that the view taken by the Government in Exts. P-6 and P-8 that the charges proved against the petitioner were serious in nature and that hence the suspension of the petitioner could not be regarded as wholly unjustifiable is in any sense unreasonable or perverse. 6. Inasmuch as the only contention put forward by the petitioner, namely, that there has not been any application of the mind of the Government to the relevant aspects required to be considered in a proceeding under the provisions of R.56 of the Kerala Service Rules in passing the impugned order Ext. P-8 is found to be untenable, this writ petition has to tail. It is accordingly dismissed, but in the circumstances without any order as to costs. Dismissed.