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Kerala High Court · body

2002 DIGILAW 705 (KER)

A. M. Babu Bonaventure v. State of Kerala

2002-10-30

K.THANKAPPAN

body2002
Judgment :- A much talked about incident which was given wide coverage by the media led to the passing of Ext.P9 order by the Government which is under challenge in this Original Petition. 2. The question raised in the Original Petition is regarding the sustainability of Ext.P9 order of suspension. Before answering the question, it is better to survey the circumstances under which the said order was passed, as discernible from the pleadings of the parties as well as the materials placed this Court. 3. The Petitioner was appointed as Divisional Forest Officer, Timber Sales Division, Palakkad in February, 2000 and he took charge as such on 28.2.2000. While so, on 12.9.2002 it was discovered that valuable thondy materials such as ivory, sandlewood, sandlewood oil etc. kept in the strong room of the Forest Range Office, Olavakkod had been stolen after breaking open the door of the strong room using gas Cutter and tampering with the double lock system. In connection with the above theft, the first respondent issued Ext.P9 order to 12 persons including the Petitioner. It is stated in Ext.P9 that the above-mentioned serious case of theft of valuable thondy materials was reported on 13.9.2002 as per the preliminary enquiry report of the Chief Conservator of Forests (Vigilance). The thondy materials were involved in the forest offences registered in the Walayar Forest Range of Palakkad Forest Division and Kollengode Forest Range of Nemmara Forest Division which are pending before the Criminal Courts. The value of the thondy materials is estimated to be more than Rs.30, 00,000/- but less than Rs. One crore. It is further stated in Ext.P9 that in the preliminary report it was found that there was collusion and criminal conspiracy of the insiders with the intruders and that the exact date and time of occurrence of the theft could not be fixed and the materials lost could not be recovered during the preliminary enquiry. It is also stated in Ext.P9 that the enquiry report reveals clear instances of security lapses, dereliction of duty, gross negligence, non-adherence of rules and procedures to transfer of charge and grave misconduct on the part of the forest officers and staff alleged to be involved in the commission of the offence. It is also stated in Ext.P9 that the enquiry report reveals clear instances of security lapses, dereliction of duty, gross negligence, non-adherence of rules and procedures to transfer of charge and grave misconduct on the part of the forest officers and staff alleged to be involved in the commission of the offence. It is further stated in Ext.P9 that the irregularities alleged against the officers and staff in the preliminary enquiry report are of grave nature warranting deterrent disciplinary action against them and that considering the severity of the loss sustained by the Government and seriousness of the case, the retention of the said officers and subordinate staff in the department would be detrimental to the smooth and speedy investigation of the case and therefore they are placed under suspension with immediate effect pending detailed enquiry and disciplinary action against them. The Petitioner, who is the Divisional Forest Officer, Timber Sales Division, Palakkad in-charge of the Divisional Forest Officer, Palakkad (holding additional charge with effect from 27.9.2001 till the date of Ext.P9) is shown as No.1 in the list of officers against whom Ext.P9 order has been passed. 4. Sri. M.K. Damodaran, the learned senior counsel appearing for the petitioner challenges Ext.P9 order on various grounds. Firstly, the learned senior counsel submitted that there are no suspecting materials to connect the petitioner with the commission of the alleged misconduct of dereliction of duty, security lapses, gross negligence of supervisory lapse. According to the learned senior counsel, the petitioner was holding the charge of Palakkad Division with effect from 29.9.2001 till 19.9.2002, the passing of Ext.P9 order. He further submits that the petitioner was not the custodian of the thondy materials, as he had no control over the strong room of the Forest Range Office, Olavakkod. That apart, as per the provisions of the Kerala Forest Code (Vol.I) (Thereinafter referred to as “the Code”) keeping control of or custody of thondy articles or any forest produce is not the duty of a Divisional Forest Officer. As per clause 3.3.6. (i) of the Code, the Divisional Forest Officer is responsible to the Conservator for the general management of the forests in his charge and shall exercise complete and direct control over the forest establishment employed therein. As per clause 3.3.6. (i) of the Code, the Divisional Forest Officer is responsible to the Conservator for the general management of the forests in his charge and shall exercise complete and direct control over the forest establishment employed therein. Clause 3.3.6(ii) provides that the Divisional Forest Officer is the primary Disbursing officer of the Division and is responsible for the correctness of the original records of cash and stores, receipts and expenditure and for the submission of complete vouchers. Sub-clause (iv) of the said clause further says that the Divisional Forest Officer is responsible for keeping the accounts of his division intact and in case any arrears or confusion arise which cannot be cleared without the assistance of the Accountant General, he should at once apply for such assistance. Sub-clause (2) of 3.3.10 of the Code broadly summarises the duties of Range Officers. Clause 3.3.10(ii)(e) of the Code categorically states that the Range Officer is the custodian of all Government properties in his range and should see that the condition of such properties is properly maintained. According to the learned senior counsel, from the above provisions, it can be seen that the petitioner is not in charge of the thondy materials or any forest produce involving forest offences or otherwise kept in the Range Offices. The Divisional Forest Officer has no direct or indirect control over any of the properties so kept in a Range Office or a Divisional Office. That apart, the learned counsel relies on Ext.P3 report of transfer of charge, Ext.P4 statement showing cash balance and three cheque books and Ext.P5 communication addressed to the petitioner which, according to him, would prove that the petitioner took temporary charge of the Divisional Forest Office, Palakkad and he was not given any verified records of the thondy materials or the records connected with the strong room in question. 5. The learned Additional Advocate General Sri.V.K.Beeran appearing for and on behalf of the respondents submitted that the petitioner was holding additional charge of the division from 27.9.2001 and hence it was his duty to take care of the division under his control. According to the learned Additional Advocate General, the petitioner being a high official of the Forest Division, he ought to have known that Palakkad and Nenmara Divisions of the Kerala Forest are important sensitive divisions with regard to offences in connection with forest produce. According to the learned Additional Advocate General, the petitioner being a high official of the Forest Division, he ought to have known that Palakkad and Nenmara Divisions of the Kerala Forest are important sensitive divisions with regard to offences in connection with forest produce. He further submitted that it was imperative for the petitioner to take all necessary steps and security measures to protect the valuable thondy materials kept in the Ranges under his control. The learned Additional Advocate General also submitted that as per the provisions of the Code, the Divisional Forest Officer is duty bound to examine any lapse on the part of his subordinates. Instead of putting the blame on his subordinates, the petitioner should have instructed them to verify the stock in the strong room and should have made arrangements to inspect the physical condition of the thondy materials from time to time. 6. On considering the points raised before this Court, it is to be noted that the petitioner took charge of the Palakkad Division with effect from 27.9.2001 fully aware of his duties as Divisional Forest Officer. As per the provisions of the Code, every Divisional Forest Officer has got the primary duty to have control over the Ranges under his Division and to give instructions to his subordinate officers regarding thondy materials or other forest produce brought to the Range Office. Hence, this Court holds that the Petitioner has the duty to look after the Ranges coming under his control. But whether the Petitioner has got control or custody of the forest produce or thondy materials would depend on further evidence to be collected in the enquiry now contemplated by the Government. 7. Secondly, the learned senior counsel submitted that there is no material to show that there was dereliction of duty or supervisory lapse on the part of the petitioner as alleged in Ext.P9. Learned counsel relies on Ext.P6 communication addressed by the petitioner to the Forest Range Officer, Olavakkod informing him about the deployment of a Sub Inspector and certain subordinates under the overall control of Range Officer, Olavakkod in order to have easy mobility and for tackling emergency situations and requesting to provide accommodation for housing the office of the protection force. Learned counsel relies on Ext.P6 communication addressed by the petitioner to the Forest Range Officer, Olavakkod informing him about the deployment of a Sub Inspector and certain subordinates under the overall control of Range Officer, Olavakkod in order to have easy mobility and for tackling emergency situations and requesting to provide accommodation for housing the office of the protection force. This, according to the learned senior counsel would clearly indicate that the petitioner has not committed dereliction of duty and that there was no supervisory lapse on his part. That apart, it is submitted that the petitioner himself had requested the higher officials on several occasions to post a full time Divisional Forest Officer for the control of Palakkad Division as he had only additional charge of that Division. The Petitioner had full charge only with respect to the Timber Division, Palakkad. Learned counsel also relied on Ext.P7 letter addressed by the Petitioner to the Range Officer, Olavakkod calling upon the Reserve Sub Inspector, Forest Protection Force and Section Forster, Town Section to give their explanation regarding the theft of valuable thondy materials. Hence, there is no supervisory lapse or derelection of duty on the part of the petitioner. 8. In this context, the counter affidavit filed for and on behalf of the first respondent would show that the petitioner failed to ensure physical verification of the thondy materials in time and that in fact no physical verification was done till the occurrence of the incident. According to the learned Additional Advocate General, the action of the petitioner in not verifying the thondy articles or other forest produce brought to the Range Office or kept in the strong room within a period of one year of taking charge of the Division is a serious supervisory lapse and gross negligence on his part. The petitioner cannot say that he is only the controlling officer and put the blame on his subordinate officers. The learned Additional Advocate General further submitted that the petitioner ought to have conducted a personal inspection and review of security measures of the strong room in particular and the complex in general. According to him, the date and time of theft cannot be fixed because there was no proper verification and inspection by any of the officers attached to the division. According to him, the date and time of theft cannot be fixed because there was no proper verification and inspection by any of the officers attached to the division. He further submitted that as Divisional Forest officer it was important for him to call the meeting of the related officers and to make a request to the higher officers to develop a system of management of the strong room. Having not made any such request, the petitioner was totally negligent in discharging his duties. 9. Only on the basis of the pleadings and the materials placed before this Court, this Court is not in a position to find out at this stage whether the petitioner has committed any dereliction of duty or whether there has been any supervisory lapse on his part. This can be revealed only after collection of further materials. Hence, this Court is neither accepting nor rejecting the arguments of counsel on either side. 10. The next contention raised by the learned senior counsel appearing for the petitioner is that Ext.P9 is not sustainable in law on the ground that it is malafide and arbitrary. This point is based on the fact that the petitioner’s office was not the only office situated near the scene of occurrence. According to the learned senior counsel, Ext.P2 would give a clear picture of the location of the strong room. The strong room is constructed behind the Range Office, Olavakkod and the space between the Range Office and the strong room is less than one metre. The Forest Protection Police Office, Flying Squad Divisional Office, Arannya Bhavan and Abhayaranyya are situated within the same complex. The Office of the conservator of Forests, Olavakkod is also in the same complex. In all these offices there were forest officials having different ranks, but none of these officers were made parties to the intended enquiry. Hence, according to the learned counsel, the inclusion of the name of the petitioner in Ext.P9 is mala fide and, therefore, Ext.P9 requires interference by this Court. 11. The question whether the petitioner alone is responsible for the theft of thondy materials, which caused great loss to the Government, is a question to be finalized after completing the enquiry. 12. Hence, according to the learned counsel, the inclusion of the name of the petitioner in Ext.P9 is mala fide and, therefore, Ext.P9 requires interference by this Court. 11. The question whether the petitioner alone is responsible for the theft of thondy materials, which caused great loss to the Government, is a question to be finalized after completing the enquiry. 12. The last contention taken up by the learned senior counsel for the petitioner is that there is no material before the Government to suspend the petitioner as the preliminary enquiry stated to have been conducted by the Chief Conservator of Forests and the materials collected do not suggest any liability on the part of the petitioner to face an enquiry. For answering this question, it will be advantageous to find out whether an employee can be suspended before collecting all the materials against him. In this context, it may be noted that the word “suspension” literally means a temporary debarring of an employee from his official duties and restraining him from the privilege of execution of any official duty or from enjoyment of any income from any office. In other words, it means a temporary deprivation of one’s office or position. Suspension is not a punishment. Every employed has got the right to suspend an employee or debar him from discharging any official function during the period of suspension. It is a well-settled law that the appointing authority can exercise the right to suspend an employee at any time. Rule 10 of the Kerala Civil Services (Classification, control and Appeal) Rules, 1960 (hereinafter referred to as “the Rules”) which deals with suspension of a Government employee reads thus: “Suspension –(1) The appointing authority or any authority to which it is subordinate or any other authority empowered by the Government in that behalf may at any time place a Government Servant under suspension. a) Where a disciplinary proceeding against him is contemplated or is pending; or b) Where a case against him in respect of any criminal offence is under investigation or trial; or c) Where final orders are pending in the disciplinary proceeding, if the appropriate authority considers that in the then prevailing circumstances it is necessary, in public interest, that the Government servant should be suspended from service”. As per the said rules, an employee can be suspended when disciplinary proceeding against him is contemplated or pending or when a case against him in respect of a criminal offence is under investigation or trial. The rule also permits suspension of an employee where final orders are pending in disciplinary proceedings under the prevailing circumstances or in public interest. These grounds are not exhaustive. There are a number of judicial pronouncements of the Supreme Court narrating various grounds on the basis of which an employee can be suspended. 13. The question whether Ext.P9 contemplates a situation where the Government is conceiving to conduct disciplinary enquiry against the petitioner can be answered on surveying the materials placed before this Court. The term “contemplated” used in Rule 10 of the Rules means that the Government is thinking of initiating disciplinary enquiry against the employee. Ext.P9 contains pre-collected materials for initiating disciplinary proceedings against the petitioner. In such circumstances, suspension of the petitioner is possible as per the rules. The purpose of suspending an employee is only to keep him away from the official position in order to avoid interference with the collection of materials against him and tampering with the evidence either oral or documentary, connected with the enquiry contemplated. The preliminary enquiry now conducted by the Chief conservator of Forests is only in the nature of a fact-finding exercise and an informal one and it was conducted to ascertain the veracity of the allegation leveled against the petitioner. The Government is empowered to suspend the petitioner in such circumstances. This view is fortified by the decision of the Allahabad High Court reported in Tej Pal Singh V. Dy. Inspector General of Police, P.A.C., Agra, 1999 (82) FLR 262 wherein it is stated that the preliminary enquiry is only a step in aid to achieve ultimate result of investigation or trial or enquiry. The same view was taken by the Supreme Court in the decision reported in State of Orissa through its Principal Secretary, Home Dept. V. Bimal Kumar Mohanty, 1995(1) LLJ 568. This position was considered by the Supreme court in the decision reported in Govt. The same view was taken by the Supreme Court in the decision reported in State of Orissa through its Principal Secretary, Home Dept. V. Bimal Kumar Mohanty, 1995(1) LLJ 568. This position was considered by the Supreme court in the decision reported in Govt. of India V. Tarak Nath, AIR 1971 SC 823 in which it is held as follows: “When serious allegations of misconduct are imputed against a member of a Service normally it would not be desirable to allow him to continue in the post where he was functioning. If the disciplinary authority takes note of such allegations and is of opinion after some preliminary enquiries that the circumstances of the case justify further investigation to be made before definite charges can be framed, it would not be improper to remove the officer concerned from the sphere of this activity in as much as it may be necessary to find out facts from people working under him or look into papers which are in his custody and it would be embarrassing and inopportune both for the officer concerned as well as to those whose duty it was to make the enquiry to do so while the officer was present at the spot. Such a situation can be avoided either by transferring the officer to some other place or by temporarily putting him out of action by making an order of suspension. Government may rightly take the view that an officer against whom serious imputations are made should not be allowed to function anywhere before the matter has been finally set at rest after proper scrutiny and holding of departmental proceeding. Rule 7 is aimed at taking the latter course of conduct. Ordinarily when serious imputations are made against the conduct of an officer the disciplinary authority cannot immediately draw up the charges: It may be that the imputations are false or concocted or gross exaggerations of trivial irregularities. A considerable time any elapse between the receipt of imputations against an officer and a definite conclusion by a superior authority that the circumstances are such that definite charges can be leveled against the officer. Whether it is necessary or desirable to place the officer under suspension even before definite charges have been framed would depend upon the circumstances of the case and the view which is taken by the Government concerned”. 14. Whether it is necessary or desirable to place the officer under suspension even before definite charges have been framed would depend upon the circumstances of the case and the view which is taken by the Government concerned”. 14. Hence the question whether the petitioner should be kept under suspension or not would depend upon the material now collected against him. Even in the decision reported in Partap Singh V. State of Punjab, AIR 1964 SC 72, the Supreme Court has taken the view that an order of suspension can be passed on getting a complaint of misconduct and it is not necessary to wait till the collection of all the materials against the delinquent officer. So the Government is empowered to pass Ext.P6 order. Even though there is a contention that the preliminary enquiry said to have been conducted by the Chief Conservator of Forests does not reveal all the materials and circumstances against the petitioner, it is not proper for this court to consider this aspect at this stage as the jurisdiction of this Court under Article 226 of the Constitution of India is limited. 15. As per the provisions of Rule 10 of the Rules, the Government has got the right to suspend a Government employee in contemplation of a disciplinary enquiry or pending disciplinary enquiry. In the decision reported in Bhup Narayan Jha V. State of Bihar, 1984(2)SLR 572, a Full Bench of the Patna High Court held that where an exhaustive departmental enquiry is contemplated, the court is not expected to enter the thicket of facts at the preliminary stage. The Supreme Court in the decision reported in A.K.K. Nambiar V. Union of India and Another, AIR 1970 SC 652 observed that the allegations contained in the complaint may be true, but it is not safe for the court to act on such affidavit evidence. 16. There is no contention raised on behalf of the petitioner that Ext.P9 order is not in accordance with Rule 10 of the Rules. This Court is not in a position to find out the truth or falsity of the allegations leveled against the petitioner. On this ground also, Ext.P9 calls for no interference. 17. 16. There is no contention raised on behalf of the petitioner that Ext.P9 order is not in accordance with Rule 10 of the Rules. This Court is not in a position to find out the truth or falsity of the allegations leveled against the petitioner. On this ground also, Ext.P9 calls for no interference. 17. The learned Additional Advocate General appearing for the respondents has invited the attention of this Court to the allegations contained in Ext.P9 and argued that even if this Court finds that the materials now placed before this Court are not sufficient enough to prove the allegations leveled against the petitioner, it is not safe and proper to interfere with Ext.P9 at this stage on account of the public interest involved in the matter. 18. The preliminary enquiry conducted by the Chief Conservator of Forests revealed that thondy materials worth Rs. 30,00,000/- have been stolen from the strong room of the Range Office, Olavakkod after tampering with 13 locks. The door of the strong room was cut open by using gas cutter. It is not possible for a single person to commit such an offence without the knowledge and connivance of the officers and employees of the Forest Department. As per Ext.P9 only 12 persons are placed under suspension in contemplation of the disciplinary proceedings. It is also revealed that Crime No.186 of 2002 is registered by the Hemambika Nagar Police in connection with the theft of the thondy materials and investigation of the crime is in progress. 19. Forest officials like other Government officials have the duty to protect Government properties, which come under their control or custody. Persons who are expected to maintain law and save public property are becoming lawbreakers and destructors of public property. There are other instances like the present one where officials who are entrusted with public property either become agents or silent spectators of destruction of the said property. This is a period of mafia and forest mafia is only one of that kinds. Valuable trees worth lakhs of rupees are being felled, removed and transported illegally. The consorted act of removing thondy articles from the strong room of the Range Office, Olavakkod has to be viewed seriously. It is the duty of the State to find out the real culprits behind the commission of the offence. This is a matter involving great public interest. The consorted act of removing thondy articles from the strong room of the Range Office, Olavakkod has to be viewed seriously. It is the duty of the State to find out the real culprits behind the commission of the offence. This is a matter involving great public interest. As per Rule 10 of the Rules, the Government is empowered to suspend an employee taking into consideration the public interest involved in the matter. This view has been accepted by the Supreme Court as well as this Court in a number of decisions. As such interference by courts in orders of suspension is restricted. The public interest involved in issuing an order of suspension or compulsory retirement of an employee would depend on the facts and circumstances of the case: see the decision reported in Shambhudayal Sharma V. State of M.P., 1985 LAB I.C. 1709. Public interest has to be construed in the light of the subject matter in issue. In a given context, the term “public interest” does not mean any personal, political or other extraneous interest. It means the interest of the public as a whole and protection of public property. It has to be borne in mind that the thondy materials now stolen from the strong room is national property. State officials should not be instrumental to the destruction of public property. The State being the custodian of national property, it is the duty of the State to find out the real culprits behind such nefarious activity. Hence, Ext.P9 order cannot be interfered with at this stage. 20. The contention raised in the reply affidavit filed on behalf of the petitioner with regard to the drawbacks in the construction of the strong room does not require any consideration by this court for deciding the issue in question. From the discussions made above, the Original Petition is devoid of merits and it is accordingly dismissed.