IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 6458 of 2004(R)
1. ISSAC JOHN,
... Petitioner
Vs
1. KERALA STATE DRUGS AND
... Respondent
2. MANAGING DIRECTOR,
For Petitioner :SRI.P.R.VENKETESH
For Respondent :SRI.B.SAJEEV KUMAR,SC,DRUGS & PHARMACEU
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :02/11/2010
O R D E R
S. SIRI JAGAN, J.
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W.P.(C)Nos. 6458 & 6732 of 2004
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Dated this the 2nd day of November, 2010
J U D G M E N T
The petitioners in these two writ petitions were
employees of the 1st respondent-company which is a
Government company. While they were in service,
disciplinary proceedings were initiated against them, which
resulted in imposition of the punishment of discharge from
service. Petitioners challenged the punishment by filing
two writ petitions namely O.P. Nos.30708 of 2000 & 11158
of 2001. A union of employees also filed W.P. (C)
No.24702/2001 in respect of the same subject matter. All
these cases were considered together by a Division Bench
of this court and Ext.P1 judgment was passed setting aside
the orders of punishment and clarifying that it would be
open to the management to proceed with the disciplinary
proceedings afresh in accordance with law from the stage of
consideration of the respective replies submitted by the
W.P.(C)Nos. 6458 & 6732 of 2004
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petitioners, after the conclusion of the enquiry. Pursuant
thereto, the respondents passed Ext.P2 order in W.P.(C)
No.6732/2004 and Ext.P5 order in the other petition,
whereby the petitioners were reinstated in service without
any backwages or any allowance for the period they were
kept under suspension and discharged. But it was directed
that, the period will be reckoned for counting their service.
In Ext.P2, certain amounts were also directed to be
recovered from the petitioner in W.P. (C ) No.6732/2004.
Petitioners are challenging Exts.P2 & P5 in their respective
writ petitions. According to them, after having reinstated
them without any punishment, they cannot be denied the
monetary benefits of backwages during the period when
they were kept out of service on account of the suspension
and discharge.
2. Counter affidavits have been filed by the
respondents justifying Exts.P2 & P5.
3. Originally the respondents took a contention that
since the company has been declared as a “Relief
W.P.(C)Nos. 6458 & 6732 of 2004
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Undertaking” under the Kerala Relief Undertakings (Special
Provisions) Act, 1961 which continues to be so even today,
the writ petitions cannot be proceeded with during the
currency of the notification declaring the company as a
relief undertaking. That contention is not sustainable in
view of Section 4 read with the Schedule to the said Act
wherein it has been specified that, only the provisions of the
law specified in the Schedule to the Act, which involve any
financial commitment, would be exempted from application
in respect of a relief undertaking. The Schedule prescribes
only four legislations namely the Industrial Disputes Act,
1947, the Minimum Wages Act 1948, the Travancore Cochin
Shops and Establishments Act, 1125 and the Madras Shops
and Establishments Act, 1947. The claims of the petitioners
are not on the basis of any of those four legislations and
therefore the declaration of the 1st respondent as a relief
undertaking under the provisions of the Act will not affect
the claims of the petitioners in this writ petition.
W.P.(C)Nos. 6458 & 6732 of 2004
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4. In Ext.P1 judgment, the ultimate direction is
contained in paragraph 11 of Ext.P1 in W.P. (C)
No.6732/2004 which reads as follows:
“11. In view of the above, both the Writ Petitions are
allowed. The impugned orders are set aside. It is, however,
clarified that it shall be open to the competent authority to
proceed afresh in accordance with law from the stage of the
consideration of the respective replies submitted by the
petitioners after the conclusion of the enquiry proceedings.
Since the order passed by the punishing authority has been
found unsustainable, even the two orders passed by the
Appellate Authority cannot be sustained.”
Ext.P2 in W.P. (C) No.6732 /2004 reads as follows:
“Having considered all aspects of the matter, it has been
decided to reinstate you in service with immediate effect, but
without any back-wages or any allowance for the period you
were kept under suspension and discharge. But that period will
be reckoned for counting your service.
In the letter of then Managing Director dated 3.9.02, it
has been ordered to recover an amount of Rs.49,744.75 and
Rs.21,742.17 and its interest @ 12% with effect from 1.10.97.
The said recovery order stands. You are directed to remit the
said amount, failing which the Company will be compelled to
initiate further necessary action in this regard.”
Ext.P5 in the other writ petition reads as follows:
“Please refer to our letter No.KSDP/MD/F. 197/2003 dated
9.10.03 whereby you were granted personal hearing on the
basis of the direction of the Hon’ble High Court of Kerala in
O.P. 30708/2000. The personal hearing was conducted on
20.10.03 wherein you have fully participated and submitted
your written representation as well.
I have considered the said representation and have also gone
through the entire file leading to the filing of the O.P. by you.
I also happened to see a letter No.KSDP/MD/F. 197/2002 dated
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3.09.02 issued by the then Managing Director, wherein he has
imposed certain punishment on you. I have considered the
same also.
Having regard to the entire aspects and attendant
circumstances of the case and also based on the representation
at the time of personal hearing, it has now been decided to
reinstate you in service with immediate effect, but without any
back-wages or any allowance for the period you were kept
under suspension and discharge. But that period will be
reckoned for counting your service.”
I don’t have to think twice to hold that, Exts.P2 & P5 in the
two writ petitions are prima facie not in accordance with
the directions in Ext.P1 judgment. In Ext.P1 judgment, the
management had been permitted to proceed afresh in
accordance with law from the stage of consideration of the
respective replies submitted by the petitioners after the
conclusion of the enquiry. That would essentially mean
that, after considering the replies of the petitioners, the
disciplinary authority has to enter a finding as to whether
he agrees with the findings of the enquiry officer in the
enquiry and as to whether the petitioners are guilty of the
misconducts alleged against them. Thereupon, there should
be a decision on the punishment to be imposed on the
petitioners. In Exts.P2 and P5 there is no specific finding
W.P.(C)Nos. 6458 & 6732 of 2004
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that, the petitioners are guilty and that the disciplinary
authority has decided to impose on them any punishment or
not to impose a punishment. If I am to find that in Exts.P2
and P5 the disciplinary authority has not entered any
finding as to the guilt of the petitioners, I have to
necessarily quash the orders and direct the disciplinary
authority to pass fresh orders. But I am of opinion that, the
tenor of those orders are to the effect that although the
petitioners are guilty the disciplinary authority had decided
to reinstate them in service without any monetary benefits
for the period during which they were kept out of service.
But even then I am of opinion that, the respondents cannot
simply deny the petitioners subsistence allowance due to
them which is admittedly payable as per the service
conditions of the petitioners. When their discharge from
service was set aside by this court directing to pass fresh
orders in the disciplinary proceedings, they must be
deemed to be continuing under suspension since the
disciplinary proceedings culminated in Exts.P2 & P5 orders.
W.P.(C)Nos. 6458 & 6732 of 2004
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When this was pointed out, the learned counsel for the
petitioners took time to ascertain from the clients as to
whether they would be satisfied with a direction for
payment of subsistence allowance and they now confine
their relief for payment of subsistence allowance during the
period when they were under suspension. In view of my
finding that, the petitioners cannot be denied subsistence
allowance during the period they were kept out of service,
the respondents cannot take a stand that they will not pay
subsistence allowance and with that condition only they had
been reinstated in service. Exts.P2 & P5 are not orders
pursuant to a settlement with the petitioners but a
unilateral order. The respondents cannot make that
unilateral order binding on the petitioners although they
have been reinstated with that condition, especially when
the petitioners have challenged the conditions in Exts.P2
and P5 within a reasonable time. That being so, the
respondents are bound to pay subsistence allowance due to
the petitioners from the date of suspension till they were
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reinstated in service. The petitioners in the two writ
petitions namely W.P. (C) Nos.6732/2004 and 6458/2004
were under suspension from 15.07.2000 to 01.11.2003 and
15.4.2000 to 30.10.2003 respectively. It is declared that,
the petitioners are entitled to be paid subsistence allowance
during that period in accordance with the rules of the
company. Accordingly these writ petitions are disposed of
with a direction to the respondents to pay to the petitioners
subsistence allowance due to them for the above said period
as expeditiously as possible, at any rate within a period of
three months from the date of receipt of a copy of this
judgment.
The contention of the petitioner in W.P.(C) No.
6732/2004 on the question of recovery of the amounts
mentioned in Ext.P2 is left open to be agitated by the
petitioner appropriately.
S. SIRI JAGAN
JUDGE
shg/