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Home » State of Kerala V. Saseendran, W.A. No. 1267 of 2001 Ker.

State of Kerala V. Saseendran, W.A. No. 1267 of 2001 Ker.

  • March 1, 2002
  • Uncategorized

2009 (2) KLT 482

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Chief Justice B.N.Srikrishna, Justice G.Sivarajan and Justice M.Ramachandran

2002-03-02T00:00:00

W.A. No. 1267 of 2001

State of Kerala v. Saseendran

Advocates appearing for the Parties : Roy Chacko; K.R.B.Kaimal

J U D G M E N T

B.N. Srikrishna, C.J.

 

This appeal has been placed before the Full Bench by an order of reference dated 11th April, 2001 made by the Division Bench of K.S. Radhakrishnan and G Sasidharan, JJ. Strictly speaking, there is no question referred for answer of this Full Bench. It is not a case where the Division Bench had difficulty in agreeing with the view expressed by another Division Bench. However, in para.6 of the reference order it is stated as under:

"We are of the view that the question whether an authority lower than the appointing authority who is not empowered under sub-r. (1) could place a Government servant under suspension under sub-r. (2) of R.10 of the Rules is a question of general importance. We, therefore, adjourn the matter for being heard by a Larger Bench."

2. R.10 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 (hereinafter referred to as "the Rules") is the relevant rule. Part IV of the Rules deals with suspension of Government Servants. Material portions of R. 10(1) and 10(2) read as under:

"10. 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:

Provided that the authority competent to place a member of the Kerala Civil Judicial Service or the Kerala Criminal Judicial Service under suspension shall be the High Court of Judicature.

(2) Where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority, the circumstances in which the order was made."

A reading of R. 10( 1) of the Rules suggests that the suspension order can be passed: (a) by the appointing authority, (b) by any authority to which the appointing authority is subordinate, and (c) by any other authority empowered by the Government in that behalf. Sub-r. (2) of R. 10 prescribes the procedure to be followed when the suspension order emanates from any authority lower than the appointing authority, but specially empowered by the Government. All that sub-r.(2) says is that such authority shall forthwith report the circumstances in which the suspension order was made. We are unable to read sub-r.(2) of R. 10 as granting the power to suspend to anyone. The power of suspension is conferred only on the authorities named in sub-r.(l) of R.10. Sub-r.(2) specifically deals with a situation of a person other than the appointing authority or an authority superior to the appointing authority; in other words, an authority lower than the appointing authority who is specifically empowered to pass the order of suspension. The learned Judges have referred to three judgments in the order of reference. We may now consider them.

3.    In Balakrishna Pillai v. State of Kerala (1993 (1) KLT 625) a learned Single Judge held that, a plain reading of R. 10( 1) shows that either the appointing authority or any authority superior to the appointing authority or any other authority empowered by the Government alone can place a Government servant under suspension. This, in our judgment, is the correct interpretation of the rule.

4.    The second judgment cited is judgment in Hareendranath v. State of Kerala (1998 (1) KLT 68). We do not find in the judgment any discussion as to the source of the power of suspension. This judgment actually turns on the meaning to be given to sub-r.(2) of R. 10, where the order of suspension is made by the authority lower than the appointing authority. The decision turns on the point whether sub-r.( 1) deals with post facto empowerment or requires the empowerment under sub-r.( 1) of R. 10 as a condition precedent.

5.    The third judgment cited is the judgment of the Division Bench in Unnikrishnan Unni v. Travancore Devaswom Board (1999 (3) KLT SN 52 (C.No.54). This judgment, no doubt, suggests that the order of suspension can be passed by any authority lower than the appointing authority and R. 10(2) of the Rules merely provides that where an order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstance in which the order was made. In paragraph4 of the judgment, it is stated that, "Such a provision in the above Rules itself would indicate that suspension can be made by an authority lower in rank to the appointing authority". The only circumstances in which an authority lower than the assessing authority can pass an order of suspension under R. 10 is indicated in sub-r.(l) of R. 10 namely that such authority is specially empowered in that behalf. If the Unnikrishnan Unni's case (supra) takes the view that any authority lower than the appointing authority can pass an order of suspension even without specifically empowered in that behalf, then it is clearly contrary to the intendment of the sub-r.( 1) of R. 10 of the Rules. To that extent, the judgment in Unnikrishnan Unni's case (supra) does not lay down the law correctly.

6. In the result, we approve of the interpretation of sub-r.(l) of R.10 of the Rules given in Balakrishna Pillai's case (supra), that the suspension orders can be passed either by the appointing authority, or by any authority to which the appointing authority is subordinate, or by any other authority which is specifically empowered by the Government in that behalf. Sub-r.(2) of R. 10 is merely procedural, and enjoins upon the authority in the last mentioned case to forthwith report the circumstances under which the suspension order was made to the appointing authority. This, in our considered judgment, is the correct interpretation of Rr.10(1) and 10(2) of the Rules.

       We answer the reference accordingly and direct that the appeal be placed before the concerned Division Bench for disposal in accordance with law.

 

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