IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 25051 of 1998(G)
1. S.K.THAHIR
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.N.RAGHURAJ
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :21/07/2010
O R D E R
ANTONY DOMINIC, J.
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O.P. No.25051 of 1998 (G)
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Dated, this the 21st day of July, 2010
J U D G M E N T
According to the petitioner, on the basis of Ext.P13 minutes of
the executive committee meeting of the 1st respondent held on
06/08/1994, the then Secretary issued Ext.P2 order appointing him
as the Assistant Manager with effect from 01/09/1994. It is stated
that after the 4th respondent assumed charge as the Secretary,
proceedings were initiated against the petitioner culminating in
Ext.P4 memo, where allegations of misconducts were levelled
against the petitioner. The petitioner submits that he filed Ext.P5
reply denying the allegations. However, by Ext.P6 order dated
04/07/1998, describing the designation of the petitioner as
Accountant (Office), the petitioner was placed under suspension. To
Ext.P6, the petitioner submitted Ext.P7. The petitioner submits that
without any opportunity or other proceedings, he was issued Ext.P8
memo dated 24/08/1998 calling upon him to show cause why
penalty of severe warning shall not be imposed. To Ext.P8, he
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submitted Ext.P9 explanation. Finally, Ext.P11 proceedings was
issued imposing warning as proposed in Ext.P8 and directing the
petitioner to work as Accountant (Office). The petitioner declined to
resume duty as Accountant and made representation in the matter.
These did not result in any order allowing him to work as Assistant
Manager as claimed by him.
2. In the meanwhile, on identical allegations, he was also
called upon to appear before the District Planning Officer as per
Ext.P14, to which he submitted Ext.P15 explanation. It is thereafter
that this original petition was filed challenging Exts.P6, P8, P11 &
P14 and also for a direction to the respondents to permit him to
rejoin duty as Assistant Manager.
3. In this original petition, this Court passed interim order
dated 16/03/1999 in CMP No.6910/1999 directing that he will be
reinstated as Assistant Manager. Against that order, the 4th
respondent filed W.A.No.857/1999, which was disposed of by
judgment dated 06/04/1999. By this judgment, the petitioner was
directed to report for duty and the issue as to whether he was
appointed as Assistant Manager as claimed by him or as Accountant
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as claimed by the respondents was left open to be decided in the
original petition. According to the petitioner, though he resumed
duty again, he was again placed under suspension by Ext.R1(A)
order dated 04/06/1999.
4. Insofar as this original petition is concerned, all that this
Court is concerned, is the validity of Exts.P8, P11 & P14 and the
question as to whether the petitioner was appointed as Assistant
Manager as claimed by him.
5. As far as the disciplinary action which culminated in
Ext.P8 and P11 orders are concerned, in my view, the punishment
has been imposed in violation of the principles of natural justice.
This is for the reason that a perusal of Ext.P8 shows that an enquiry
was conducted by the District Planning Officer and that the District
Planning Officer reported that the charges levelled against the
petitioner in Ext.P6 were proved beyond doubt. The respondents
have no case that the enquiry, report of which is relied on in Ext.P8,
was with notice to the petitioner or with opportunity to him. Even
the report of enquiry was not furnished to the petitioner. It is relying
on the report and other undisclosed materials that punishment of
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warning was proposed and confirmed against the petitioner.
Therefore, Exts.P8 & P11 cannot be sustained and are accordingly
quashed.
6. Insofar as the challenge against Ext.P14 is concerned,
that proceedings did not result in any order against the petitioner,
nor have the respondents communicated any order to the petitioner.
Therefore, as far as the petitioner is concerned, no prejudicial action
has been taken on the basis of Ext.P14 and therefore, the challenge
against Ext.P14 is unnecessary, at least at this stage.
7. Now what remains is whether the petitioner was an
Assistant Manager as claimed by him or Accountant (Office) as
claimed by the respondents. The petitioner claims this status
relying on Ext.P2 order of appointment, Ext.P3 allocation of duties,
Ext.P10 letter allegedly issued by the Secretary and Ext.P13 minutes
of the Executive Committee of the 1st respondent.
On the other hand, respondents submit that these documents
cannot be relied on. According to the respondents, out of these
documents, Exts.P2 and original of Ext.P13 were fabricated by the
petitioner to suit his convenience. Insofar as Exts.P3 & P10 are
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concerned, it is stated that the Secretary issued the same without
realising the consequences. The respondents also relied on Exts.P4,
P6 & P11 in support of the contention that the petitioner was only
an Accountant. It is also their case that they have set criminal law
in motion against the petitioner on these allegations. From these, it
is obvious that the question whether the petitioner was appointed as
an Assistant Manager or as an Accountant is a question of fact,
which is seriously disputed by the parties. Such a disputed question
of fact, cannot be decided in a proceedings under Article 226 of the
Constitution of India. Therefore, I refrain from considering this
question and leave it open to the parties to be agitated in
appropriate proceedings.
This original petition is disposed of as above.
(ANTONY DOMINIC, JUDGE)
jg