Abdul Jabbar.K.M v. The Managing Director KSFE Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 29[TH] DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA, 1943** **WP(C) NO. 19470 OF 2019** ## **PETITIONER:** ABDUL JABBAR.K.M(2930) MANAGER GRADE III, KSFE, PULIMOOTTIL SHOPPING ARCADE, MUVATTUPUZHA ROAD, P.B.NO.14, THODUPUZHA, IDUKKI-685 583. BY ADVS. P.ALI SRI.A.MUHAMMED HASHIM ## **RESPONDENTS:** 1 THE MANAGING DIRECTOR, KSFE LTD., CORPORATE OFFICE, BHADRATHA, THRISSUR-680 020. 2 THE MANAGER, KSFE LTD., KATTAPPANA BRANCH, ELEVANTHICKAL SHOPPING COMPLEX, P.B.NO.11, KATTAPPANA P.O., IDUKKI-685 508. 3 THE MANAGER, KSFE LTD., CHANDRA NAGAR BRANCH, CHANDRA NAGAR, NIRMALA CHAMBERS BUILDING, COIMBATORE ROAD, PALAKKAD-678 007. 4 THE MANAGER, KSFE LTD., THODUPUZHA BRANCH, PULIMOOTTIL SHOPPING ARCADE, MUVATTUPUZHA ROAD, P.B.NO.14, THODUPUZHA, IDUKKI-685 583. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.11.2021, THE COURT ON 29/11/2021 DELIVERED THE FOLLOWING: W.P.(C)NO.19470/2019 2 ## **JUDGMENT** The writ petitioner was the Manager Grade III Officer in the Kerala State Financial Enterprises(KSFE Ltd.). The first respondent is the Managing Director of the KSFE Ltd.and the remaining respondents are other Managers of the KSFE Ltd. While the petitioner was the manger of Kattapana Branch, he was placed under suspension by Ext.P1 notice dated 6/9/2018, on an allegation that he has committed several misconducts. Ext.P2 is the charge memo dated 17/1/2019 . To the above, the petitioner submitted objections as Ext.P4. However, on the basis of Ext.P2 charge memo and Ext.P4 reply, by Ext.P5 communication the petitioner was reinstated in service, however with a strong warning that severe action will be taken against him in case such or similar other misconducts are committed by him in future. It was further provided that the period of suspension would be treated as such and would not be counted for any other benefits like grade promotion, increment and other related matters. He was transferred and posted to Chandra Nagar Branch. 2. Aggrieved by Ext.P5, the petitioner has preferred this writ petition. Heard the learned counsel for the petitioner and the learned counsel for the KSFE. Examined the records. 3. The relief sought is to quash Ext.P1, P2 and P5 and P6. Ext.P5 is the final order dated 1/3/2019 by which warning was issued to the petitioner. W.P.(C)NO.19470/2019 3 Ext.P6, dated 20/6/2019 is the list of transfer of managers by which the writ petitioner was transferred to Thodupuzha . 4. Assailing Ext.P5 order imposing punishment on the writ petitioner, the learned counsel for the petitioner contended that, pursuant to Exts.P1 and P2, Ext.P4 reply was given by the petitioner. In spite of the specific contentions set up in Ext.P2, neither an enquiry officer was appointed nor any opportunity given to the petitioner to defend the allegations set up against him. Without conducting a domestic enquiry and arriving at a conclusion regarding the guilt on the basis of the evidence gathered in an enquiry, no punishment can be imposed on the petitioner, it was contended. 5. The stand taken by the respondents was that petitioner in Ext.P4 reply substantially accepted all the allegations and there was no scope for any enquiry. There was no disputed facts involved and hence the management did not deem it fit and essential to conduct an enquiry. In Ext.P2 memo of charges, there is allegation of negligence of duty, serious misconduct and willful insubordination. There was further allegation that the petitioner was habitually absenting himself from duty unauthorisedly and he had availed leave without obtaining permission from the competent authority. It was further pointed out that in the month of July 2018, he was present in the office only for 13 days. It was also found that the petitioner logged in the system software of the branch only in the afternoon during most of the days, evidencing that the petitioner attended the office only in the afternoon, in violation of the Rules and regulation of the company. It was alleged that it was against the code of conduct of the W.P.(C)NO.19470/2019 4 employees and grave misconduct under clause 31 of the standing orders of the company. It was further alleged in the memo that the petitioner created untoward incidents in the regional meeting of the managers held on 2/8/2018 and went to the extent of disrupting the smooth conduct of the meeting. 6. In Ext.P4 reply, the stand taken by the writ petitioner was that , his mother was seriously laid up and he had to report to the office situated about 120 kms and hence he was unable to attend the office on various days. He had to take leave on several occasions. This was informed to the regional office and as directed, from 3/8/2018 till 12/10/2018 he had submitted leave on loss of pay. The charge was handed over to the Assistant Manager. The Regional Office had issued orders accordingly. On few days on which he had attended, he had to go for property valuation nearby the branch and since the valuer was available only in the morning, most of the days he used to attend the work and reach the branch office only in the afternoon. Hence he could login the system only in the afternoon. He admitted that on 2/8/2018 in the regional meeting, he had to raise certain objections, regarding his issues. When it was specifically informed by the Regional Manager that only issues relating to the functioning of business need to be discussed, the petitioner admittedly replied that the business depends on the satisfaction of the employees also. He has never stated that he will not do the business. Regarding the further allegation that he had caused default in the loan transaction, he had stated that due to his unfortunate transfer to Kasaragod and the ailment of his mother, his financial balance was lost and he could not make regular repayment. In the meanwhile, W.P.(C)NO.19470/2019 5 he had to conduct the marriage of his daughter. Now he has almost cleared all the liabilities. It was also mentioned that he had performed well while officiating in other branches and only after his mother fell ill, he could not regularly attend the office. 7. Relying on clause 37 and clause 38 of the standing order, the learned counsel contended that he was imposed with a penalty of censure coupled with penalty affecting his various terminal benefits including gratuity. Learned counsel pointed out that under clause 38, any penalty other than penalty censure warning, or fine or withholding of increment shall be passed except after a formal enquiry. According to him, by Ext.P5, it was directed that the suspension period will not counted for any service benefits like grade promotion, increment and other related matters, which amounted to a major penalty and conduct of an enquiry was essential. Without conducting such an enquiry,he was imposed with major penalty. 8. It is evident from the reply that all the allegations set up by the management in Exts.P1 and P2 stand admitted by the petitioner. It is true that he has set up his own reasons to explain it. However, in the light of the admission of the various facts, there was no scope for any further enquiry. Further, the contention of the learned counsel for the petitioner that he was imposed with major penalty of censure coupled with the direction that the suspension period will not counted for any service benefits like grade promotion, increments and other related, it does find any substance. 9. In the light of the above facts, I feel that the allegations against the W.P.(C)NO.19470/2019 6 petitioners stand established essentially by way of his own admissions. Having considered this as well as the past conduct of the petitioner, it seems that the management has taken lenient view by imposing a strict warning. I find no reason to interfere with that. 10. However, the learned counsel for the petitioner specifically contended that, in fact, the petitioner was imposed with major penalty by restricting service benefits like grade promotion, increment and other related matters. The petitioner has a further grievance along with that he was transferred to Chandra Nagar, which amounted to triple penalty. It seems that the petitioner was imposed with a strong warning, which evidently is a minor penalty, as clear from the distinction made in clause 38 of the standing orders. However, it was further provided that the period of suspension will be treated as such and will not be counted for any service benefits like grade promotion, increment and other related matters. It was pointed out by learned counsel for the respondents that it did not involve yet another penalty. In the light of penalty imposed on the petitioner by way of strong warning, his suspension period was not regularised. In other words, the period of suspension was treated as such. Since suspension is not a penalty and in the absence of regularization of that penalty, the natural consequences will have to follow. Even though it is stated that it will not be counted for any service benefits, like grade promotion, increment and other related matters, it should only be considered as those eventualities naturally flowing from non regularisation of the suspension period. The wording that “the period of suspension will be W.P.(C)NO.19470/2019 7 treated as such and will not counted for any service benefits like grade promotion, increment and other related matters” cannot have any more implication nor explanation than what is mentioned above. Hence, it is clarified that no separate penalty is imposed, other than the strong warning on the writ petitioner and since the suspension is not regularised, it will have its natural effect only and the stipulations in Ext.P5 that period of suspension will be treated as such and will not be counted for any service benefits like grade promotion, increment and other related matters, can only have the effect as mentioned above and not as any other separate penalty. Definitely, the transfer issued along with Ext.P5 being an incident of service, cannot be treated as a punishment. 11. The learned counsel for the respondents vehemently supporting Ext.P5 to the extent of clarifying that period of suspension will remain as such and will not be considered for the purpose of service benefits, relied on the decision reported in **V** _**ijay Kumar Agarwal v. Union of India and Another(2015) 17 Supreme Court Cases 625). At**_ para 22 it was held that when the order of suspension is revoked and the suspended employee is asked to join the duty, he is required to do so. How the period of suspension is to be treated is another aspect. At the most, such an employee would be entitled to full salary during the suspension period if no order is passed as to how the suspension period would be governed. That would not mean that the order revoking suspension itself becomes bad in law. To support his contention, the learned counsel further referred to an earlier decision in to _**State of Punjab**_ W.P.(C)NO.19470/2019 8 _**v. Jaswant Sing Kanwar (2014) 13 Supreme Court Cases 622).**_ At paragraph 11, answering the question whether an officer placed under suspension by the disciplinary authority is entitled to grant of increment during the period of suspension, it was held that by the reason of suspension, the powers, functions and privileges are kept in abeyance but one continues to the subjected to the same disciplines and penalties and to the same authorities. The above definition makes it clear that during the period of suspension, all the privileges and benefits attached to the office rare temporarily suspended, unless the period of suspension is considered as the period spent on duty. 12. The learned counsel for the petitioner assailed Exts.P5 and P6 on the ground that the petitioner who was transferred to Chandra Nagar, Palakkad and within three months, again to Thoudpuzha by Ext.P6 order. Since the present posting of the petitioner is not available and after lapse of three year period, I do not propose to consider the prayer to interfere in Ext.P6 at this length of time. Having considered this, I find no ground to quash Exts.P1, P2 P5 and P6. The writ petition is without any merit and is liable to be dismissed. The writ petition is accordingly dismissed, however with the above clarification. Sd/- ## **SUNIL THOMAS** ## **Judge** dpk W.P.(C)NO.19470/2019 9 ## **APPENDIX OF WP(C) 19470/2019** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF SUSPENSION ORDER DATED 06.09.2018 OF 1ST RESPONDENT. EXHIBIT P2 TRUE COPY OF MEMO OF CHARGE 1ST RESPONDENT DATED 17.01.2019. - EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR GENERAL/COMPASSIONATE TRANSFER DATED 13.08.2018. - EXHIBIT P4 TRUE COPY OF THE REPLY DATED 01.02.2019. - EXHIBIT P5 TRUE COPY OF THE FINAL ORDER DATED 01.03.2019. EXHIBIT P6 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT SHOWING THE LIST OF TRANSFER OF MANAGERS DATED 20.06.2019. - EXHIBIT P7 TRUE COPY OF THE REPRESENTATION INDICATING HIS REQUEST FOR TRANSFER AND OTHER GRIEVANCES SUBMITTED ON 02.08.2018. EXHIBIT P8 TRUE COPY OF NORMS OF TRANSFER. EXT.P9: COPY OF THE RELEVANT PORTIONS OF CLAUSE 37 AND 38 OF THE STANDING ORDERS, KSFE RESPONDENTS EXHIBITS: ANNEXURE A1: COPY OF THE STANDING ORDERS OF KSFE EXHIBIT R1 (A): COPY OF THE STANDING ORDERS APPLICABEL TO KSFE DATED 21/3/1974 W.P.(C)NO.19470/2019 10