STATE OF KERALA Vs. BEEVI KANNU

JUDGEMENT

(1.) This Full Bench has been constituted to answer the reference made by a Division Bench dated 24/09/2014. The Division Bench while hearing the writ appeal against an interim order passed by learned Single Judge dated 01/09/2014 as modified by order dated 19/09/2014 referred following two questions to be answered by Larger Bench:

(2.) Sri. P.I. Davis, learned Senior Government Pleader, in support of the reference order contended that it is not mandatory in each and every case that opportunity be given before ordering suspension. He submits that the second part of sub-clause (8) of Clause 45 begins with non-obstante clause "notwithstanding anything mentioned in sub-clause (1) which clearly indicate that without there being an opportunity, suspension can be issued. He further submits that in the second part of sub-clause (8) the last sentence i.e., "If considered necessary he may suspend the appointment of the authorised retail distributor temporarily pending enquiry." makes the clear intention of Legislature that power of temporary suspension has been granted pending enquiry. He submits that meaning and purpose have to be given to the above provision which make it clear that suspension can be ordered without opportunity on a temporary basis. He submits that the Division Bench judgment which has been relied on by learned counsel for the petitioner in Kumaranellur Cooperative M. Society v. V.B.K. Menon,1985 KHC 420, does not lay down the correct law. He submits that the Division Bench did not advert to the last sentence as quoted above contained in second part of sub-clause (8). He submits that the use of non-obstante clause in second part of sub-clause (8) clearly overrides the mandatory requirement of giving notice in the main proviso to sub-clause (8) of Clause 45. He submits that the power of temporary suspension has been conferred on the authorities with a design and purpose. The power has been given with an object and the Statute has to be interpreted in a manner to advance the object of provision.

(3.) Learned Senior Counsel Sri. Jaju Babu appearing for the writ petitioner submitted that Clause 45(8) requires order of suspension to be passed after opportunity of hearing, hence no exception can be made in ordering a suspension without notice. Opportunity of hearing is a must. He submits that the Division Bench judgment in Kumaranellur Cooperative M. Society's , lays down the correct law. He further submits that the second part of Clause 45(8) beginning with non-obstante clause confines to the powers given to the authorities additionally as compared to sub-clause (8) second part which cannot be read in any manner to exclude the opportunity. He submits that Clause 45(8) does not contain any specific provision excluding notice in a case of suspension. Hence giving of notice before suspension is a must. Learned counsel for the parties have placed reliance on various judgments of Apex Court and this Court, which shall be referred to while considering the submissions in detail.