STATE OF KERALA Vs. GOPALAN

JUDGEMENT

(1.) This appeal is by the State which has been seriously aggrieved by that part of the judgment of the learned Judge in O. P. No. 4594 of 1976 which stated that an order of dismissal cannot take effect from the anterior date of suspension of the employee which was directed pending enquiry into the disciplinary proceedings The respondent was placed under suspension on 14-8-1963 for certain irregularities and misconduct which were the subject matter of enquiry and disciplinary proceedings against him. These resulted in finding the respondent guilty. An order of dismissal was passed on 8-6-1976 to take effect from 14-8-1963, the date on which the respondent was placed under suspension. The learned Judge held that this was not permissible, and was indeed illegal, on the only ground that being an executive order, the order of dismissal cannot take effect from a date anterior to the one on which it was made. The learned Judge's attention was called to two decisions of this Court in Venkiteswaran v. State of Kerala (1963 KLT 1097) and Narayana Murthi v. State of Kerala (1964 KLT 180). Referring to these decisions, the learned Judge stated that this Court was moved mainly by two considerations, namely, that an order of dismissal deprives the employee of the past as well as the future benefits, and an order of reinstatement restores those benefits to him. Further these cases noticed that in the show cause notice the petitioners in those cases had been expressly told that the dismissal was to take effect from the date of suspension and had not raised any objection. While these considerations are undoubtedly noticed in the two decisions, we are afraid that the learned Judge has missed the principle and the ratio behind the decisions. The decisions themselves and indeed many other cases too have recognised that in cases of disciplinary proceedings taken against an employee, the contract of service can be put an end to by a suspension pending enquiry. It has been well recognised that the suspension pending enquiry is part of a disciplinary power possessed by the employer against the employee (vide R. P. Kapur v. Union of India (AIR 1964 SC 787) and B R. Patel v. State of Maharashtra (AIR 1968 SC 800). That being so, there is no retrospective effect in the proper sense of the term in ordering a dismissal with effect from the anterior date on which the suspension was ordered. The two decisions of this Court in Narayana Murthi v. State of Kerala (1964 KLT 180) and Venkiteswaran v. State of Kerala (1963 KLT 1097) are directly in point and the learned Judge should have followed those decisions.

(2.) As it is, the Judgment of the learned Judge has given rise to an anomalous position. The learned Judge held that the order of dismissal could not take effect from the date of suspension; but, nevertheless added, that the writ petitioner who had remained under suspension till the date of dismissal on 08/06/1976 is not entitled to claim during the period of suspension anything other than what was allowed under the relevant Rules. This part of the learned Judge's conclusion conflicts directly with the earlier finding that a dismissal cannot be with retrospective effect, from the date of suspension. If it cannot be done, the learned Judge certainly was not justified in denying as emoluments to the petitioner anything other than what could be allowed under the relevant Rules. However, the matter seems to be purely academic. The learned Additional Advocate General assured us that the writ petitioner would be paid the full emoluments to which he is entitled even during the period of suspension The Additional Advocate General contended before us that the appeal has been filed only to settle and clarify the question of law involved in the case, namely, whether an order of dismissal cannot in law take effect from the anterior date of the suspension pending enquiry ordered in contemplation of disciplinary proceedings or after the commencement of the same. We are of the opinion that it is quite lawful and permissible for an order of dismissal to be so passed or made, and that the learned Judge's reasoning and conclusion to the contrary, cannot be sustained. We allow this appeal and set aside the judgment of the learned Judge in so far as it directed and held that the dismissal with effect from the anterior date of suspension of the petitioner was bad in law. There will be no order as to costs.