K.SURESH KUMAR IAS (KL-89) v. STATE OF KERALA

W.P(C)No.23806 of 2009-:2:-part of the action and in overall public interest the officer is tobe temporarily kept out of service for a free and fair enquiry.No doubt, suspension is not a punishment, unless of courseprescribed as such in the relevant Rules. But merely becausesuspension is not a punishment, the employer cannot take acasual approach and after a few days or months reinstate theofficer, even with backwages. The stigma cannot be washedaway or wiped out, though in the legal parlance it is possible.For an honest officer, a baseless or motivated action iscertainly painful. That is why the law and procedure onsuspension call for strict interpretation. Of course,justification for suspension is different from validity ofsuspension. This introduction would help us as a prologue inanalysing the question of law raised in this writ petition.2. Short facts. The writ petition is filed by the applicant(hereinafter referred to as the petitioner) before the CentralAdministrative Tribunal, Kochi, in O.A.No.12/2009. The said W.P(C)No.23806 of 2009-:3:-application was filed challenging order dated 11-12-2008 ofthe Government of Kerala whereby the petitioner wassuspended from service. The impugned order Annexure A7(Ext.P1) reads as follows:-“It has come to the notice of theGovernment that Shri.K.Suresh Kumar, IAS(KL: 1989) on deputation as ManagingDirector, Kerala State Co-operativeAgricultural Rural Development Bank hasappeared before the press and media channelsfrom 6-12-2008 onwards and adverselycriticised the office of the Hon'ble ChiefMinister of Kerala, making allegations likepiling up of files, absence of support systemand ignorance of Government procedures inthe Chief Minister's office and thereby violatedthe All India Service (Conduct) Rules whichcaused embarrassment to the Government.2. Government after having examinedthe matter in detail considers it necessary toplace Shri.K.Suresh Kumar, IAS, ManagingDirector, Kerala State Co-operativeAgricultural Rural Development Bank under W.P(C)No.23806 of 2009-:4:-suspension as per Rule 3 of All India Service(Discipline & Appeal) Rules, 1969 withimmediate effect pending further enquiry.3. Shri.K.Suresh Kumar, IAS, will beeligible for subsistence allowance under Rule 4of All India Service (Discipline & Appeal) Rules1969.4. Shri.K.Suresh Kumar, IAS will handover charge to Shri.T.Thankappan, IAS (KL:1989), Secretary, Co-operation Department.”Before the Central Administrative Tribunal the following reliefswere sought:-“i.to call for the records leading toAnnexure A-7 GO(Rt)No.9528/2008/GAD dated 11-12-08and Annexure A-11 GO dated 11-03-2009 and to set aside the same;ii.to declare that Annexure A-7 Order ofsuspension ceased to be valid andoperative by reason of not initiatingdisciplinary proceedings before theexpiry of the period of 90 days from thedate of suspension and in the absence ofpermission from the Central W.P(C)No.23806 of 2009-:5:-Government as contemplated by the 2ndproviso to Rule 3(1) of the All IndiaServgice (Discipline and Appeal) Rules,1969;iii.to issue appropriate direction or orderdirecting the respondents to allow theapplicant to continue in the post ofManaging Director, Kerala State Co-operative Agricultural and RuralDevelopment Bank without regard toAnnexure A7 GO dated 11-12-2008;iv.to issue appropriate direction or orderdirecting the respondents to passappropriate order treating the period ofsuspension as duty for all purposes andto grant him full service benefitsincluding arrears of pay and allowancesfor the period he has been kept undersuspension unlawfully;v.to grant such other reliefs which thisHon'ble Tribunal may deem fit andproper in the circumstances of thecase.”3. The Tribunal dismissed the application. Hence the W.P(C)No.23806 of 2009-:6:-writ petition.4. At the outset we make it clear that we are notembarking upon an enquiry on the merits of the cases, on thejustification for the suspension; our enquiry is to the limitedarea of challenge on the validity of the suspension order, inview of the non-compliance with the requirement prescribedunder the Rules. The main contention, which alone wepropose to deal with in this case and since that would renderconsideration of other questions unnecessary, is that thesuspension has become invalid since before the expiry of theperiod of 90 days from the date of suspension, disciplinaryproceedings are not initiated. There is no dispute on twofacts: (1) disciplinary proceedings have not been initiatedagainst the applicant before the expiry of the 90 days fromthe date of suspension; and (2) the Central Government hasnot allowed the continuance of the suspension beyond theperiod of 90 days. W.P(C)No.23806 of 2009-:7:-5. In order to appreciate the contention on the validityof suspension order it is necessary to refer to the Rules.Rule 3 of the All India Service (Discipline and Appeal) Rules1969 deals with suspension and the procedure to be followedthereon. The Rule reads as follows:-“3. Suspension.-- (1) If, havingregard to the circumstances in any case andwhere articles of charge have been drawnup, the nature of the charges, theGovernment of a State or the CentralGovernment, as the case may be, is satisfiedthat it is necessary or desirable to placeunder suspension a member of the service,against whom disciplinary proceedings arecontemplated or are pending, thatGovernment may, --(a)if the member of the service isserving under that Government,pass an order placing him undersuspension, or(b)if the member of the service isserving under anotherGovernment, request that W.P(C)No.23806 of 2009-:8:-Government to place him undersuspension,pending the conclusion of the disciplinaryproceedings and the passing of the finalorder in the case:Provided that, in cases, where there isa difference of opinion, --(i)between two State Governments, thematter shall be referred to CentralGovernment for its decision;(ii)between a State Government and theCentral Government, the opinion of theCentral Government shall prevail;Provided further that, where a memberof the service against whom disciplinaryproceedings are contemplated is suspended,such suspension shall not be valid, unlessbefore the expiry of a period of ninety daysfrom the date from which the member wassuspended, disciplinary proceedings areinitiated against him;Provided also that the CentralGovernment may, at any time before theexpiry of the said period of ninety days andafter considering the special circumstancesfor not initiating disciplinary proceeding, to W.P(C)No.23806 of 2009-:9:-be recorded in writing allow continuance ofthe suspension order beyond the period ofninety days without the disciplinaryproceedings being initiated.(1-A) If the Government of a State orthe Central Government, as the case maybe, is of the opinion that a member of theService has engaged himself in activitiesprejudicial to the interests of the security ofthe State, that Government may --(a)if the member of the Serviceis serving under thatGovernment, pass an orderplacing him undersuspension, or(b)if the member of the Serviceis serving under anotherGovernment request, thatGovernment to place himunder suspension,till the passing of the final order in the case :Provided that, in cases, where there isa difference of opinion --(i)between two State Governments, thematter shall be referred to the CentralGovernment for its decision; W.P(C)No.23806 of 2009-:10:-(ii)between a State Government and theCentral Government, the opinion of theCentral Government shall prevail.(2)A member of the Service, who isdetained in official custody whether on acriminal charge or otherwise for a periodlonger than forty-eight house, shall bedeemed to have been suspended by theGovernment concerned under this rule.(3) A member of the Service inrespect of, or against, whom aninvestigation, inquiry or trial relating to acriminal charge is pending may, at thediscretion of the Government be placedunder suspension until the termination of allproceedings relating to that charge, if thecharge is connected with his position as amember of the service or is likely toembarrass him in the discharge of his dutiesor involves moral turpitude.(4) A member of the Service shall bedeemed to have been placed undersuspension by the Government concernedwith effect from the date of conviction, of, inthe event of conviction for a criminal offence, W.P(C)No.23806 of 2009-:11:-he is not forthwith dismissed or removed orcompulsorily retired consequent on suchconviction provided that the convictioncarries a sentence of imprisonmentexceeding fortyeight hours.Explanation.-- The period of forty-eight hours referred to in sub-rule (4) shallbe commuted from the commencement ofthe imprisonment after the conviction and forthis purpose, intermittent periods ofimprisonment, if any, shall be taken intoaccount.(5) Where a penalty of dismissal,removal or compulsory retirement fromservice imposed upon a member of theService under suspension is set aside inappeal or on review under these rules andthe case is remitted for further inquiry oraction or with any other directions, the orderof his suspension shall be deemed to havecontinued in force on and from the date ofthe original order of dismissal, removal orcompulsory retirement and shall remain inforce until further orders.(6) Where a penalty of dismissal, W.P(C)No.23806 of 2009-:12:-removal or compulsory retirement fromservice imposed upon a member of theService is set aside or declared or renderedvoid in consequence of or by a decision of aCourt of Law, and the disciplinary authority,on a consideration of the circumstances ofthe case, decides to hold further inquiryagainst him on the allegations on which thepenalty of dismissal, removal or compulsoryretirement was originally imposed, themember of the Service shall be deemed tohave been placed under suspension by theCentral Government from the date of originalorder of dismissal, removal or compulsoryretirement and shall continue to remainunder suspension until further orders:Provided that no such further inquiryshall be ordered unless it is intended to meeta situation where the Court has passed anorder purely on technical grounds withoutgoing into the merits of the case.(6-A) Where an order of suspension ismade, or deemed to have been made, by theGovernment of a State under this rule,detailed report of the case shall be forwarded W.P(C)No.23806 of 2009-:13:-to the Central Government ordinarily within aperiod of fifteen days of the date on whichthe member of the Service is suspended or isdeemed to have been suspended, as thecase may be.(7)(a) An order of suspension made ordeemed to have been made under this ruleshall continue to remain in force until it ismodified or revoked by the authoritycompetent to do so.(b) Where a member of the Service issuspended or is deemed to have beensuspended, whether in connection with anydisciplinary proceeding or otherwise, and anyother disciplinary proceeding is commencedagainst him during the continuance of thatsuspension, the authority competent to placehim under suspension may, for reasons to berecorded by him in writing, direct that themember of the Service shall continue to beunder suspension subject to sub-rule (8); W.P(C)No.23806 of 2009-:14:-(c) An order of suspension made ordeemed to have been made under this rulemay at any time be modified or revoked bythe authority which made or is deemed tohave made the order.(8)(a) An order of suspension madeunder this rule which has not been extendedshall be valid for a period not exceedingninety days and an order of suspensionwhich has been extended shall remain validfor a further period not exceeding onehundred eighty days at a time, unlessrevoked earlier.(b) An order of suspension made ordeemed to have been made or continued,shall be reviewed by the competent authorityon the recommendations of the concernedReview Committee.(c) The composition and functions ofthe Review Committees and the procedure tobe followed by them shall be as specified inthe Schedule annexed to these rules.(d) The period of suspension undersub-rule (1) may, on the recommendationsof the concerned Review Committee, be W.P(C)No.23806 of 2009-:15:-extended for a further period not exceedingone hundred and eighty days at a time:Provided that where no order has beenpassed under this clause, the order ofsuspension shall stand revoked with effectfrom the date of expiry of the order beingreviewed.(9) Every order of suspension andevery order of revocation shall be made, asnearly as practicable, in the appropriatestandard form appended to these rules.”It may be seen that sub-rule (1) of Rule 3 has three provisos:(1) dealing with the conflicting stands likely to be taken by theState Government and the Central Government; (2) dealingwith the mandatory requirement of initiation of disciplinaryaction before the expiry of 90 days from the date ofsuspension; and (3) dealing with a provision enabling theCentral Government to extend the period of suspensionbeyond 90 days even without initiating the disciplinaryproceedings. 6. Disciplinary proceedings can be said to be initiated W.P(C)No.23806 of 2009-:16:-only with the service of memo of charges. That is a wellsettled principle and there is no serious dispute on that. Inthe instant case the memo of charges has not been served onthe petitioner within 90 days and hence it is the undisputedfactual and legal position that disciplinary proceedings havenot been initiated against the petitioner within 90 days of thesuspension.7. Learned Additional Director General of ProsecutionSri.Raveendranath contends that the rule enables theGovernment to suspend an employee having regard to thecircumstances of any case and it is not necessary thatsuspension can be made only having regard to the nature ofthe charges. There is no quarrel with that position,suspension pending enquiry, suspension in contemplation ofdisciplinary proceedings and suspension having regard to thecircumstances of any case is permissible under the rules.Only thing is that the authority suspending the member of the W.P(C)No.23806 of 2009-:17:-service should be satisfied that it is either necessary ordesirable to place the member under suspension. Needless tosay that the satisfaction must have regard to the nature andgravity of the indiscipline or misconduct alleged against themember of the service. The contention of the State is thatwhen a member of the service is suspended having regard tothe circumstances of any case it is not necessary that thememo of charges is served initiating the disciplinaryproceedings before the expiry of the 90 days and thesuspension can be continued provided the suspension isreviewed in exercise of the power under sub-rule (8)(b) readwith sub-rule 8(d) and based on the recommendation of theReview Committee the suspension can be continued. Yetanother vehement contention is that in any case a suspensionmade having regard to the circumstances of a case is valid fora period of 90 days in view of the provision under sub-rule (8)(a). W.P(C)No.23806 of 2009-:18:-8. We are afraid both the contentions cannot beappreciated. While interpreting the All India Services(Discipline and Appeal) Rules, 1969 it has to be borne in mindthat the rule applies only to members of the All India Serviceas defined in Section 2 of the All India Services Act, 1951.All India Services originally conceived of only IndianAdministrative Service and Indian Police Service. Thereafterby amendment introduced in the year 1963 certain other AllIndia Services were also included. Suffice to specially notethat the officers dealt with under the rules are not ordinarygovernment servants, but members of All India Service,entrusted with highly responsible offices. Suspension of suchofficers should be resorted to only in situations warrantingsuch grave action. That is why the Rule has provided fordetailed procedure, both in the matter of suspension for theinitial period of 90 days and continuance thereof, withsufficient safeguards in order to avoid arbitrariness. The W.P(C)No.23806 of 2009-:19:-second proviso to Rule 3(1) of the Rules makes it mandatorythat a member of service suspended in contemplation ofdisciplinary proceedings has to be served with memo ofcharges, initiating disciplinary proceedings before the expiryof the period of 90 days from the date of the suspension. Therequirement is not directory as contended by the learnedAdditional Director General of Prosecution. Since theconsequence of the requirement is provided in the Rule itself,the compliance is mandatory. A provision in a rule, no doubt,can be directory in nature; however, when the graveconsequence of non-compliance is prescribed in the rule itself,the procedure becomes mandatory. Thus in the instant casethe second proviso to Rule 3(1) mandates that unless thedisciplinary proceedings are initiated within 90 days of thedate of suspension, the suspension becomes invalid. Theother contention is that the said rule is subject to theoperation of sub-rule 8(a) of Rule 3(1). That contention also W.P(C)No.23806 of 2009-:20:-cannot be appreciated. The very opening words of sub-rule 8(a) would give a definite indication otherwise. It states that“an order of suspension made under this rule which has notbeen extended shall be valid for a period not exceeding ninetydays ...”. 'Suspension under this rule' is suspension underRule 3. Suspension in contemplation of disciplinaryproceedings under Rule 3(1) becomes invalid unlessdisciplinary proceedings are initiated by serving memo ofcharges within 90 days of the date of suspension or unless theCentral Government after considering special circumstancesrecorded in writing allows the continuance of suspensionbeyond the period of 90 days without initiating disciplinaryproceedings. In the statement filed by the learned AssistantSolicitor General it is stated that the Central Government hasnot allowed the continuance of the suspension beyond 90days. The operation of sub-rule (8) is subject to the validityof the order of suspension in terms of the second or third W.P(C)No.23806 of 2009-:21:-proviso to sub-rule (1) of Rule 3. A suspension which hasbeen rendered invalid on the operation of the second provisoof Rule 3(1) cannot be sustained or resurrected under sub-rule (8). That would certainly lead to a casual, and if notabusive, exercise of power whereby without any safeguardsan officer belonging to an All India Service can be placedunder suspension for 90 days. Law does not even dream ofsuch a dis-honourable treatment to a member belonging to AllIndia Service.9. The third contention of the learned AdditionalDirector General of Prosecutions is that in any case thesuspension under Rule 3(1) in contemplation of theproceedings can be continued under sub-rule 8(b) read withsub-rule 8(d) in case the Review Committee recommends thecontinuation of the suspension and the said recommendationis accepted by the State Government and orders are passedon the recommendation. That contention also cannot be W.P(C)No.23806 of 2009-:22:-appreciated. No doubt, under sub-rule 8(b) the order ofsuspension is liable to be reviewed by the competent authorityon the recommendation of the concerned Review Committeeand the suspension can thus be extended for a further periodnot exceeding 180 days at a time. But it has to be specificallynoted that the suspension that can be extended on the basisof recommendation is the suspension made under sub-rule (1)of Rule 3. Sub-rule (8)(d) of Rule 3 makes it unambiguouslyclear - “the period of suspension under sub-rule (1) may, onthe recommendations of the concerned Review Committee, beextended for a further period not exceeding one hundred andeighty days at a time”. The suspension under sub-rule (1) incontemplation of disciplinary proceedings becomes invalidafter the expiry of 90 days in case disciplinary proceedings arenot initiated within 90 days from the date of suspension and ifnot extended by the Central Government under third provisoto sub-rule (1) of Rule 3. Sub-rule (7)(b) and sub-rule (8)(d) W.P(C)No.23806 of 2009-:23:-of Rule 3 are subject to the operation of the second and thirdprovisos of sub-rule (1) of Rule 3. A suspension which hasotherwise become invalid by the operation of the secondproviso to Rule 3(1) cannot be reviewed since there remainsnothing to be reviewed, since the suspension has becomeinvalid. Therefore, there is no basis for the contention onplurality of authorities.10. Learned Senior Counsel for the writ petitionersubmits that since the suspension has become invalid thepetitioner is entitled to reinstatement in service in the samepost. We are afraid that contention has absolutely no basis.Reinstatement is to the service and not to the post. It is forthe Government to deploy a member of All India Service inany post. We are informed that the writ petitioner hasalready been reinstated in service. In the above circumstances the writ petition is alloweddeclaring that Annexure 7 (Ext.P1) order of suspension is W.P(C)No.23806 of 2009-:24:-invalid and therefore, it has no effect or impact on thepetitioner in the eye of law. Petitioner is entitled to continuityof service for all purposes with effect from the date ofsuspension to the date of reinstatement. In that view of thematter it is not necessary to consider various othercontentions raised by the counsel on both sides and hence therest of the contentions are left open.(KURIAN JOSEPH, JUDGE) (C.T.RAVIKUMAR, JUDGE)ahg. KURIAN JOSEPH & C.T.RAVIKUMAR, JJ.---------------------------W.P(C)No.23806 of 2009----------------------------JUDGMENT26th November, 2009