T.K.Gopalakrishnan vs Unnayi Warrier Smaraka … on 11 August, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 2952 of 2007()


1. T.K.GOPALAKRISHNAN, SENIOR GRADE
                      ...  Petitioner

                        Vs



1. UNNAYI WARRIER SMARAKA KALANILAYAM
                       ...       Respondent

2. THE MANAGING COMMITTEE OF THE

                For Petitioner  :SRI.K.RAMAKUMAR (SR.)

                For Respondent  : No Appearance

The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR

 Dated :11/08/2009

 O R D E R
      K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ.

                  ------------------------------
                     W.A.No.2952 of 2007
                  ------------------------------

            Dated this, the 11th day of August, 2009

                          JUDGMENT

Balakrishnan Nair, J.

The appellant was the writ petitioner. He was a

teacher working under the respondents. He was removed

from service by the decision of the second respondent with

effect from 25.9.2003, by resolution dated 5.12.2002. By the

order of the second respondent, the secretary of the first

respondent has communicated the same to the appellant by

Ext.P12 dated 8.12.2002. Challenging Ext.P12, the writ

petition was filed. The learned Single Judge took the view that,

since the appellant has a right of appeal to the General Council

under Rule 51 of the Unnayi Warrier Smaraka Kalanilayam

Service Rules, the appellant has to invoke that remedy. As

per the judgment under appeal, it was ordered that if the

appellant invokes the alternative remedy within one month

from the date of that judgment, the appeal shall be

entertained and dealt with as filed in time. But the appellant,

W.A.No.2952 of 2007:

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instead of invoking the said appellate remedy filed the writ

appeal.

2. We heard the learned counsel for the appellant.

The learned counsel tried to canvass that Ext.P12 has been

issued by the Secretary who is not the competent authority.

So, Ext.P12 is issued without jurisdiction and, therefore, this

Court should have quashed the impugned order, instead of

turning him away to invoke the appellate remedy. We notice

that, the decision in Ext.P12 has been taken by the Managing

Committee, which has been communicated by the Secretary

of the first respondent. At every stage of the disciplinary

proceedings, as will be evident from Ext.P12, the decision was

taken by the Managing Committee. The Secretary being the

executing authority, was communicating the decision. So, the

said contention of the appellant cannot be accepted. Once the

learned Single Judge dismisses the writ petition on the

ground of availability of alternative remedy, an appeal under

Section 5 of the Kerala High Court Act is not maintainable,

unless it is shown that the exercise of discretion by the

W.A.No.2952 of 2007:

– 3 –

learned Single Judge is perverse. Going by the facts of the

case, it cannot be held that, the decision of the learned Single

Judge is perverse.

In the result, the Writ Appeal is dismissed, without

prejudice to the contentions of the appellant. If the appellant

prefers the appeal before the General Council as directed by

the learned Single Judge, the period this writ appeal was

pending before this Court shall be excluded while computing

the period fixed by the learned Single Judge for filing the

appeal.

Sd/-

K. Balakrishnan Nair,
Judge.

Sd/-

C.T. Ravikumar,
Judge.

DK.

(True copy)