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1999 DIGILAW 135 (KER)

Abdul Azeez v. State Of Kerala

1999-03-09

K.A.ABDUL GAFOOR

body1999
Judgment :- K. A. Abdul Gafoor, J 1. The petitioner has approached this Court challenging Exts. P1, P2 and P4 and seeking a direction to disburse the salary of the petitioner for the period from 1.6.1996 to 17.7.1996 and to pay the arrears of subsistence allowance due to him, and for other incidental reliefs. 2. Ext. P1 is the order placing the petitioner under suspension. Ext. P2 is a show cause notice, directing the petitioner to refund an amount of Rs. 11,094/- towards the excess pay and subsistence allowance received by him. Ext. P4 is a communication addressed to the petitioner, declining his request for grant of bonus for the year 1995-96. 3. The reason for suspension is discernible from Ext. P1 itself. The petitioner, a Peon in the Administrative Secretariat of Kerala, forged the signature of an Under Secretary in the Labour Department in a Salary Certificate to be produced in a Co-op. Bank to obtain loan. That was detected by the Vigilance Police and a crime was registered. The petitioner was arrested on 25.3.1996 and was remanded until 8.4.1996. Without disclosing this fact, the petitioner applied for leave during the said period and got it sanctioned. Later, this was detected on the basis of the report from the Sub-inspector. As per the rule, a person who is in custody of the police for more than 48 hours will be deemed to be under suspension from the date of taking into such custody. It was in the above circumstances, the petitioner was placed under suspension. 4. The petitioner relies on the decisions in Hemanta Kumar Battacharjee, Appellant v. S. N. Mukherjee, Respondent 1954 AIR(Cal) 340 and Narayan Prasad Rewany v. State of Orissa & Anr. 1957 AIR(Ori) 51, to contend that on release from custody he cannot be placed under suspension.5. Rule 57 Part I Kerala Service Rules provides that an officer detained in custody for the period exceeding forty eight hours or is undergoing imprisonment shall be deemed to be under suspension. He shall not draw pay and allowances except the subsistence allowance, "until he is reinstated in service". The petitioner was admittedly detained in custody for more than forty eight hours. So, by reason of the deeming provision he shall be considered as kept under suspension and will continue to be under suspension "until he is reinstated in service". He shall not draw pay and allowances except the subsistence allowance, "until he is reinstated in service". The petitioner was admittedly detained in custody for more than forty eight hours. So, by reason of the deeming provision he shall be considered as kept under suspension and will continue to be under suspension "until he is reinstated in service". So there is no merit in the contention of the petitioner that he cannot be placed under suspension after he had been released. Here an order like Ext. P1 became necessary as the petitioner did not inform about his detention and as he applied for leave for the period during which he was in custody. This was found out when the police made a report. On the basis of the factum of his detention beyond forty eight hours, by operation of the rule itself he is deemed as placed under suspension. Moreover, inspite of the prohibition in the said, rule that he shall not draw anything in excess of the subsistence allowance, the petitioner had drawn leave salary and other benefits. 6. Thus there is sufficient reason for continuance of suspension. Not only that, the conduct of the petitioner which led to the crime and also the subsequent conduct of the petitioner in obtaining leave without disclosing real facts to the authorities, are sufficient to conclude that if the petitioner is allowed to be in service, he will not desist from doing further more mischieves. So, there is absolutely no illegality in Ext. P1. 7. As already mentioned above, Ext. P2 is a show cause notice, why an amount made mention of therein shall not be recovered from him. The petitioner has submitted his reply. There is no reason, at this stage to assail a show cause notice. Therefore, challenge against Ext. P2 also fails. The petitioner is free to agitate, if an adverse order is passed in that proceedings.8. Entitlement of bonus is on the basis of the orders issued by the Government. One should have atleast six months service in year concerned to receive bonus. It is clear from Ext. P4 that the petitioner did not serve the department for the minimum period due to deemed suspension. He was thus under suspension and therefore, he was out of eligibility for bonus for the year 1995- 96. The Original Petition therefore, fails. Dismissed. No costs.