SNDP SAKHA VAVAKKAD Vs. SREEDHARAN

JUDGEMENT

(1.) First respondent was employed under the petitioner as Head Clerk. On the allegation that he misappropriated funds and misconducted himself, he was placed under suspension on 27-2-1976 pending enquiry. A domestic enquiry was held into the alleged misconduct. Enquiry Officer found him guilty of 4 charges out of 5. That report was accepted by the petitioner. Consequently, first respondent was dismissed from service. He then moved the second respondent, the appellate authority, under the Kerala Shops & Commercial Establishments Act, 1960, in S. A. 108/1978. Before the second respondent, petitioner could not produce the records of the domestic enquiry. But, permission was sought to substantiate the charges levelled against the first respondent by adducing evidence before the second respondent. Permission was granted by the second respondent. Petitioner as well as first respondent adduced evidence in support of their respective claims. After a proper appreciation of the evidence, second respondent came to the conclusion that first respondent committed misconduct of a very grave nature and he does not deserve any sympathy. But, second respondent took the view that the order of dismissal will take effect only from the date of his order and first respondent must be deemed to have been under suspension from 27-2-1976 till the date of the order, namely 30-1-1988. In this view, second respondent directed the petitioner to pay subsistence allowance under the Kerala Payment of Subsistence Allowance Act, 1972 to the first respondent. This direction is under challenge.

(2.) Though notice of this petition was served on the first respondent way back in 1988, no counter affidavit has been filed. I heard Sri. M. Ramachandran, learned counsel representing the petitioner; and Sri. Sunny Joseph, learned counsel representing the first respondent.

(3.) The short question that arises for consideration in this Original Petition is whether second respondent was justified in directing the petitioner to pay Subsistence Allowance to first respondent for the period from 27-2-1976 to 30-1-1988. First respondent was placed under suspension on account of alleged misconduct The misconduct alleged against him has been substantiated. Thereupon he is dismissed from service. Should the order of dismissal must relate back to the date of suspension