Salini S.R vs Kerala Agricultural University
2021 Latest Caselaw 14407 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
           THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
     TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
                     WP(C) NO. 1917 OF 2021
PETITIONER :-

          SALINI S.R.,
          SECTION OFFICER (HIGHER GRADE),
          COLLEGE OF AGRICULTURE, VELLAYANI,
          THIRUVANANTHAPURAM, PIN-695 022.

          BY ADVS.
          SRI.S.P.ARAVINDAKSHAN PILLAY
          SMT.N.SANTHA
          SRI.S.P.BALAKRISHNA PILLAY
          SRI.V.VARGHESE
          SRI.PETER JOSE CHRISTO
          SRI.S.A.ANAND
          SMT.K.N.REMYA
          SMT.L.ANNAPOORNA
          SRI.VISHNU V.K.
          KUM.ABHIRAMI K. UDAY
          SRI.KURUVILLA SABU CHRISTY
          SMT.ANJANA KRISHNAN.M


RESPONDENTS :-

    1     KERALA AGRICULTURAL UNIVERSITY
          REPRESENTED BY ITS REGISTRAR,
          VELLANIKKARA MAIN CAMPUS, K.A.U P.O.,
          VELLANIKKARA, THRISSUR, PIN-680 656.

    2     REGISTRAR,
          KERALA AGRICULTURAL UNIVERSITY,
          VELLANIKKARA MAIN CAMPUS, K.A.U P.O.,
          VELLANIKKARA, THRISSUR, PIN-680 656.

          BY ADV.
          SRI.ROBSON PAUL, SC, KERALA AGRICULTURAL UNIVERSITY


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 1917 OF 2021

                                   -: 2 :-


                              JUDGMENT

Dated this the 13th day of July, 2021

This writ petition is filed seeking the following reliefs :-

"i. Call for the records leading to Exts.P6, P9 and P11 and quash them to the extent the suspension period of the petitioner is treated as having commenced from 19.06.2017, instead of 20.06.2017 and the suspension period of the petitioner is not treated as duty for all purposes, by the issuance of a writ of certiorari or any other appropriate writ, order or direction.

ii. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to treat the period of suspension of the petitioner as commencing from 20.06.2017 instead of 19.06.2017 and treat her suspension period as duty for all purposes, with all consequential service and monetary benefits."

2. Heard the learned counsel for the petitioner and the

learned Standing Counsel appearing for the respondent,

University.

3. It is submitted by the learned counsel for the petitioner

that the petitioner was placed under suspension by Ext.P1 order

dated 17.6.2017. The petitioner had been relieved from the post of

Assistant Section Officer on promotion and had assumed charge as

Section Officer on 19.6.2017 forenoon and she worked in that post WP(C) NO. 1917 OF 2021

for the entire day. It is submitted that it was only on 20.6.2017

forenoon that Ext.P1 was served on the petitioner. Later, memo of

charges was issued and a disciplinary commission was constituted.

An enquiry report was also submitted. But the University by

Ext.P6 proceedings dated 29.8.2019 decided not to proceed with

further enquiry proceedings. The specific words used are as

follows :-

     "ഡ      .ബ ബ        മത ,        പ     ഫസര        (അഡ    ണമ ),
          .എന
            ‍ .എല
                ‍ . ‍ വക മ ര,      സന യര          അഡമ ന സഡ റവ
     ഓഫ‍ സര,         മത .ഷകല ജ ഡവദ, അഡമ ന സഡ റവ ഓഫസര
     ഡ ഡ        I,     മത .   ല ന .എസ.ആര,
                                       ‍     പസകന           ഓഫസര
     എനവരപകത പ+യ ള അച ക ന                    അവസ ന പ കന ."

Thereafter, a further decision appears to have been taken that the

suspension period would be treated as eligible leave. The

incumbents were required to submit leave applications.

4. The petitioner has challenged that part of Ext.P6 order

by which the period of suspension was treated as eligible leave.

The learned counsel for the petitioner submits that the petitioner

had actually been promoted and posted as Section Officer on

19.6.2017. It is the specific case of the petitioner that Ext.P1

suspension order was served on her only on 20.6.2017 and WP(C) NO. 1917 OF 2021

therefore, treating the period from 19.6.2017 onwards as period

spent under suspension is illegal. Further, it is contended that

after having dropped the proceedings, the University was not

authorised to proceed to treat the period as eligible leave and to

require the petitioner to submit a leave application. It is,

therefore, contended that the period of suspension which is

actually from 20.6.2017 to 10.8.2017 is to be treated as duty for all

purposes since apparently the suspension was unjustified.

5. A detailed counter affidavit has been placed on record by

respondents 1 and 2. It is submitted that Ext.P1 suspension order

was issued on 17.6.2017. It is stated that it was served on

19.6.2017 after the petitioner joined duty as Section Officer. It is

further submitted that since the suspension order was

communicated to the office in which the petitioner joined duty as

Section Officer on 19.6.2017, it should be deemed to have taken

effect on that day itself. It is submitted that based on rule 16(24)

of the Manual of Disciplinary Proceedings, the suspension order

should be deemed to have been served on 19.6.2017 itself. It is

further submitted that the 578th meeting of the Executive

Committee of the Kerala Agricultural University held on 3.6.2019 WP(C) NO. 1917 OF 2021

had decided that disciplinary action need not be continued against

the petitioner and three others. It was further decided to

regularise their suspension period granting eligible leave. It is

stated that the 579th meeting of the Executive Committee held on

13.7.2019 had amended its earlier decision to the effect that

disciplinary action is not required and the suspension period would

be regularised as eligible leave. The learned Standing Counsel

appearing for the respondent University would contend that a

reading of Ext.P6 itself would show that the decisions were not to

continue with the disciplinary proceedings and to treat the period

of suspension as eligible leave.

6. The learned counsel appearing for the petitioner would

place reliance on Rule 56 of Part I KSR. It is submitted that Rules

56(1)(b) and 56(2) applies to the situation at hand. The learned

Standing Counsel appearing for the University would, on the other

hand, submit that it is only in cases where an officer is completely

exonerated of the charges against him that treating the period of

suspension as duty would arise. In the instant case, it is contended

that though the disciplinary proceedings were decided not to be

proceeded with, the petitioner was not fully exonerated of the WP(C) NO. 1917 OF 2021

charges against him and therefore, the decision taken to treat the

period of suspension as eligible leave was fully justified.

7. Having considered the contentions advanced, I find that

the petitioner has specifically raised a contention that the order of

suspension had been served on her only on 20.6.2017. Admittedly

the petitioner had joined duty as Section Officer on 19.6.2017. It is

clear from the documents placed on record that the petitioner had

been admitted to duty as Section Officer on 19.6.2017 forenoon. It

is submitted that Ext.P9 order of the University itself would show

that the order had, as a matter of fact, been sent to the e-mail of

the Heads of Departments at 3.46 p.m. on 19.6.2017. Therefore,

the contention raised by the petitioner that the order of suspension

had not been served on her on 19.6.2017 and that it was served

only on the next day, that is, 20.6.2017 appears to be well justified.

8. The further contention is with regard to the treating of

the period of suspension. Even going by the contentions raised by

the respondents, the penalties which can be imposed on a

University employee are provided in Statute 23 of the Statutes

Prescribing the Conditions of Service Relating to the Officers,

Teachers and Other Employees of the Kerala Agricultural WP(C) NO. 1917 OF 2021

University, 1972. The penalties which can be so imposed are

'censure, fine, withholding of increments or promotion, reduction

to a lower rank in the seniority list or to a lower grade or post or

time-scale or to a lower stage in a time-scale, compulsory

retirement, removal from University service, dismissal from

University service and reduction of pension. Statute 4 of the

Statutes also provide that subject to the provisions of the Act,

Statutes and Ordinances, the conditions of service applicable to

Government Servants contained in the Kerala Service Rules and

the Kerala State and Subordinate Services Rules shall, mutatis

mutandis be applicable to the University employees until such time

when the University adopts its own service rules.

9. Rule 56(1)(b) of Part I KSR reads as follows :-

"56. (1) When an officer who has been dismissed, removed or compulsorily retired, including an officer who has been compulsorily retired under Rule 60A, is reinstated as a result of appeal or review or would have been so re-instated, but for his retirement on superannuation while under suspension or not, the authority competent to order reinstatement shall consider and make a specific order-

(b) whether or not the said period shall be treated as a period spent on duty"

WP(C) NO. 1917 OF 2021

Rule 56(2) reads as follows :-

"56(2) Where the authority competent to order reinstatement is of opinion that the officer who had been dismissed, removed or compulsorily retired, has been fully exonerated, the officer shall, subject to the provisions of sub-rule (6) be paid the full pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be :

Provided that where such authority is of opinion that the termination of the proceedings instituted against the officer had been delayed for reasons directly attributable to the officer, it may, after giving him an opportunity to make his representation and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the officer shall subject to the provisions of sub-rule (7), be paid for the period of such delay, only such amount (not being the whole) of such pay and allowances as it may determine."

10. In the instant case, it is clear from a reading of Ext.P6

that the University had taken an informed decision that the

disciplinary proceedings against the delinquent officers need not

be continued. All that can be understood from Ext.P6 order is that

there was a dropping of the disciplinary proceedings as against the

employees concerned. It is also clear that treating of the period of

suspension as eligible leave is not one among the penalties which

could have been imposed on the petitioner. In the above view of WP(C) NO. 1917 OF 2021

the matter, once the University decides to drop the proceedings

against the officers, the further contention that the petitioner is

not wholly exonerated of the proceedings and that she is liable to

be proceeded against to the limited extent of treating the period of

suspension as eligible leave, according to me, cannot be accepted.

This is not a case where any authority had found that the petitioner

was guilty after conduct of a due disciplinary proceedings. It is

stated that Ext.P15 enquiry report had been generated. The

findings rendered therein was that the mistake had occurred due

to oversight and that there was no untoward intention on the part

of the petitioner in having given the advice memo to a wrong

person. It was on the basis of the said finding that the University

had decided that no further steps need be taken against the

petitioner. Construing the decision taken by the University as a

decision to drop the proceedings against the petitioner, I am of the

opinion that no further steps could have been taken to treat the

period of suspension as eligible leave. The only conclusion

therefore, which can be drawn up from the order of the University,

is that there was no justification for continuing the disciplinary

proceedings against the petitioner. Therefore, the suspension WP(C) NO. 1917 OF 2021

would have to be considered as having been fully unjustifiable.

11. In the above view of the matter, going by Rule 56(1)(b)

and 56(2) of Part I KSR, the only course open to the respondents is

to treat the period spent by the petitioner under suspension as

duty for all purposes.

In the above view of the matter, I am of the opinion that

the petitioner is liable to succeed in the writ petition. The period

spent by the petitioner from the date of communication of the

order of suspension to the date of reinstatement shall be reckoning

as duty for all purposes. Appropriate steps shall be taken within a

period of two months from the date of receipt of a copy of this

judgment.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/19.7.2021 WP(C) NO. 1917 OF 2021

APPENDIX OF WP(C) 1917/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE ORDER NO G/A/F2/9053/2017 DATED 17.6.2017 OF THE 2ND RESPONDENT

EXHIBIT P2 TRUE COPY OF THE ORDER NO GA/A3/5915/17 DATED 8.6.2017 OF THE JOINT REGISTRAR (ADMN 1) OF THE UNIVERSITY

EXHIBIT P3 TRUE COPY OF THE MEMO OF CHARGES NO GA/L3/9053/2017(IV) DATED 23.6.2017 OF THE 2ND RESPONDENT

EXHIBIT P4 TRUE COPY OF THE DETAILED EXPLANATION DATED 27.6.2017 SUBMITTED BY THE PETITIONER TO THE MEMO OF CHARGES

EXHIBIT P5 TRUE COPY OF THE ORDER NO GA/L3/9053/2017 DATED 5.7.2017 OF THE 2ND RESPONDENT

EXHIBIT P6 TRUE COPY OF THE ORDER NO GA/L3/903/2017 DATED 29.8.2019 OF THE 2ND RESPONDENT

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 5.9.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

EXHIBIT P8 TRUE COPY OF THE LETTER NO GA/L3/9053/2017(I) DATED 1.2.2020 OF THE 2ND RESPONDENT

EXHIBIT P9 TRUE COPY OF THE ORDER NO GA/L3/9053/2017 DATED 19.5.2020 OF THE 2ND RESPONDENT

EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 10.6.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT WITHOUT ITS ENCLOSURES

EXHIBIT P11 TRUE COPY OF THE LETTER NO GA/A3/4092/2020 DATED 14.10.2020 OF THE 2ND RESPONDENT WP(C) NO. 1917 OF 2021

EXHIBIT P12 TRUE COPY OF THE UNIVERSITY ORDER NO A3-6870/19 DATED 27.2.2020

EXHIBIT P13 TRUE COPY OF THE ORDER NO CBM/E1/117/2017 DATED 20.6.2017 OF THE ASSOCIATE DEAN, COLLEGE OF CO- OPERATION, BANKING & MANAGEMENT UNDER THE UNIVERSITY

EXHIBIT P14 TRUE COPY OF THE ORDER NO FS/2251/2016 DATED 17.6.2017 OF THE ADMINISTRATIVE OFFICER GR.11(HG) OF THE INSTRUCTIONAL FARM, VELLAYANI

EXHIBIT P15 TRUE COPY OF THE REPORT ALONG WITH LETTR NO.GA/9053/17 DATED 5.8.2017 OF DR.C.GEROGE THOMAS, CHAIRMAN, INQUIRY COMMISSION

RESPONDENT EXHIBITS

EXHIBIT R2(a) TRUE COPY OF THE RELEVANT PAGE OF MANUAL OF DISCIPLINARY PROCEEDINGS.

EXHIBIT R2(b) TRUE COPY OF THE CIRCULAR NO.65/94/FIN DATED 26.11.1994