Abdul Kareem. K. v. State of Kerala represented by its Secretary, Department of General Administration (Minority Welfare), Kerala State Minorities Development Finance Corporation Ltd, and General Manager, KSMDFC Ltd

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` MONDAY, THE 13[TH] DAY OF FEBRUARY 2023 / 24TH MAGHA, 1944 WP(C) NO. 39574 OF 2022 ``` ## **`PETITIONER:`** ``` ABDUL KAREEM. K, AGED 47 YEARS KAVATHONDIYIL HOUSE, PERASSANNUR.P.O, KUTTIPURAM, MALAPPURAM., PIN – 679571 ``` ``` BY ADV SAYED MANSOOR BAFAKHY THANGAL ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL ADMINISTRATION (MINORITY WELFARE), 2ND FLOOR, NORTH BLOCK, SECRETARIAT, STATUE, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 KERALA STATE MINORITIES DEVELOPMENT FINANCE CORPORATION LTD FIRST FLOOR, KURDFC BUILDING, CHAKKORATHKULAM, WEST HILL. P.O, KOZHIKODE DISTRICT. REPRESENTED BY ITS MANAGING DIRECTOR., PIN - 673005`** - **`3 GENERAL MANAGER, KERALA STATE MINORITIES DEVELOPMENT FINANCE CORPORATION LTD FIRST FLOOR, KURDFC BUILDING, CHAKKORATHKULAM, WEST HILL. P.O, KOZHIKODE DISTRICT., PIN – 673005`** ``` BY ADVS. KALEESWARAM RAJ THULASI K. RAJ(K/000814/2015) SMT.ANIMA M GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) No.39574 of 2022 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 13[th] day of February, 2023 The petitioner was engaged as a contract employee in the 2[nd] respondent-Kerala State Minorities Development Finance Corporation Limited. The petitioner was originally appointed as Peon in the year 2018. His service was for one year, which was extended from time to time. 2. The petitioner states that respondents 2 and 3 found the petitioner’s service satisfactory and recommended to the 1[st] respondent to give further extension to the petitioner along with other contract employees. Taking into consideration the recommendations of respondents 2 and 3, the Additional Secretary to the Government of Kerala issued Ext.P2 order finding that the service of 14 contract employees named therein are satisfactory and permitting respondents 2 and 3 to extend the service of those contract employees ``` WP(C) No.39574 of 2022 ``` ``` 3 ``` including the petitioner for a period of one year. 3. The petitioner states that as a bolt from the blue, on 14.09.2022, the petitioner’s service was terminated as per Ext.P3 Office Order holding that the petitioner’s service is unsatisfactory. The petitioner challenges Ext.P3 Office Order. The petitioner submitted a representation dated 26.10.2022 seeking to reinstate him in service. Ext.P4 hearing notice was issued to the petitioner scheduling a hearing on 07.11.2022. However, the petitioner has not been reinstated in service. 4. The petitioner states that Ext.P3 Office Order issued by the 3[rd ] respondent is liable to be set aside. Ext.P3 has been passed overlooking Ext.P2 Government Order. The petitioner’s service was extended finding his service satisfactory, for a period of one year with effect from 07.02.2022. The 3[rd] respondent has no authority to pass Ext.P3 Office Order overriding Ext.P2 Government Order. Ext.P3 is therefore liable to be quashed, contended the ``` WP(C) No.39574 of 2022 ``` ``` 4 ``` counsel for the petitioner. 5. Standing Counsel entered appearance on behalf of respondents 2 and 3 and contested the writ petition. On behalf of respondents 2 and 3, it is submitted that the petitioner was being issued with charge memos on a regular basis even before the present issue arose. There was allegation against the petitioner that he had unauthorisedly recorded attendance in the Attendance Register when the column was already marked as absent. The petitioner had left from duty early without informing the superior officer or without seeking any permission. Though the petitioner was issued with a Showcause notice in the year 2019, no satisfactory explanation was given. 6. It is further alleged by respondents 2 and 3 that the petitioner took unauthorised leave from 10.05.2021 to 16.06.2021. Yet another charge sheet dated 17.06.2021 was issued to the petitioner. The petitioner, instead of replying to ``` WP(C) No.39574 of 2022 ``` ``` 5 ``` the charge sheet, sought full salary for the said period. The writ petition has been filed suppressing all these material facts. 7. Respondents 2 and 3 submitted that after 02.04.2022, the petitioner has committed an act of clear insubordination and talked violently and threatened the superior officers in Malappuram Regional Office. The video clippings regarding the same were examined by the Board Members and the Board Members had arrived at a conclusion that the petitioner’s conduct was purely an unpardonable misconduct. 8. Under the circumstances, the 70[th] Board Meeting held on 27.10.2022 decided to constitute a Sub Committee to consider the request of the petitioner to reconsider his termination. The Sub Committee gave a detailed report. The petitioner was also heard. Taking into consideration the report of the Sub Committee, the Board Meeting held on 30.11.2022 ``` WP(C) No.39574 of 2022 ``` ``` 6 ``` decided to dispense with the service of the petitioner and to confirm the decision taken as per Ext.P3. 9. The Standing Counsel for respondents 2 and 3 submitted that the writ petition itself is not maintainable. Ext.R2(h) decision of the Board taken on 30.12.2022 is not under challenge in this writ petition. Unless the said order is challenged, the writ petition is not maintainable. 10. Standing Counsel for respondents 2 and 3 relied on the judgment of this Court in _**Pavithran v. State of Kerala** [2009 (4) KLT 20 (FB)],_ wherein it was held that whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum within the prescribed time limit, the order will become final and the person, affected by it, will also be bound by it. A Full Bench of this Court held that it is well settled principle in administrative law that there are no void orders in absolute sense in administrative matters. There are only voidable orders. Unless a person aggrieved ``` WP(C) No.39574 of 2022 ``` ``` 7 ``` takes recourse to the appropriate remedy at the appropriate time, even an illegal order will be treated as valid and binding. In view of the Full Bench judgment of this Court in _**Pavithran**_ _**v. State of Kerala**_ (supra), the writ petition is not maintainable. The Standing Counsel for respondents 2 and 3 submitted that there was clear insubordination on the part of the petitioner on 30.07.2022. It is based on his insubordination that respondents 2 and 3 found that the service of the petitioner is unsatisfactory and decided to terminate his services. 11. The Standing Counsel for respondents 2 and 3 further pointed out that the contract period of the petitioner would have come to an end by 06.02.2023, on expiry of the period of one year from Ext.P2 Government Order. Therefore, any orders passed by this Court would amount to issuance of futile writs. ``` WP(C) No.39574 of 2022 ``` ``` 8 ``` 12. The Standing Counsel for respondents 2 and 3 relied on the judgment of the Apex Court in _**K.N. Guruswamy v. State of Mysore and others** [AIR 1954 SC 592]_ and _**Purushothaman v. Registrar of Co-operative Societies** [1996 (3) L.L.N.262]_ and contended that in view of the said judgments of the Apex Court and this Court, no orders can be passed in the writ petition. 13. The Standing Counsel for respondents 2 and 3 further urged that insubordination shown by the petitioner is beyond tolerable limits. The petitioner was subjected to issuance of charge memos during his earlier period of service also. Taking into consideration the overall interest of the institution, it was decided not to retain the petitioner in service. The petitioner is only a contract employee. The services of a contract employee can be terminated at any point of time for unsatisfactory service. No notice need be issued to such employee. No disciplinary proceeding is also warranted when ``` WP(C) No.39574 of 2022 ``` ``` 9 ``` service is being terminated as unsatisfactory. The petitioner is therefore not entitled to any relief and the writ petition is liable to be dismissed, urged the Standing Counsel for respondents 2 and 3. 14. I have heard the learned counsel for the petitioner, the learned Government Pleader representing the 1[st] respondent and the learned Standing Counsel representing respondents 2 and 3. 15. The petitioner was appointed as a Peon on contract basis in the year 2018 for a period of one year. The services were extended from time to time. It is evident from Ext.P2 Government Order that respondents 2 and 3 have addressed letters to the Government of Kerala indicating that the service of the petitioner is satisfactory. Respondents 2 and 3, in fact, recommended that the service of the petitioner be extended. It is based on Ext.P2 that the petitioner’s service was extended from 07.02.2022 upto a period of one year i.e., upto ``` WP(C) No.39574 of 2022 ``` ``` 10 ``` 06.02.2023. After about five months of such extension, the petitioner was terminated from service as per Ext.P3 Office Order. Ext.P3 Office Order indicated that the service of the petitioner is being terminated as his service is found unsatisfactory. 16. The defence of respondents 2 and 3 is that the petitioner has resorted to some misconduct to the superior officers as well as the customers. The Exhibits produced by respondents 2 and 3 do not indicate any such misconduct with clarity. It is not shown as to on which date the petitioner has misbehaved to his superiors or with the customers. Even the name of the superior officers towards whom the petitioner has allegedly misbehaved has not been disclosed in the Exhibits or in the counter affidavit. 17. In view of the afore facts, I am of the opinion that the termination of services of the petitioner for unsatisfactory service as per Ext.P3, is not justified. ``` WP(C) No.39574 of 2022 ``` ``` 11 ``` 18. The Standing Counsel for respondents 2 and 3 urged that subsequent to Ext.P3, Ext.R2(h) has been issued by the General Manager in charge. The petitioner has not challenged Ext.R2(h). Therefore, the writ petition is not maintainable. 19. A reading of Ext.R2(h) would show that the petitioner, subsequent to his termination of service, had requested to reinstate him in service. It is in response to such application that Ext.R2(h) was issued. Ext.R2(h) itself is not an order of termination. The original order of termination is Ext.P3, which is impugned in the writ petition. Therefore, omission, if any, of the petitioner to challenge Ext.R2(h) can have no consequences. 20. The Standing Counsel for respondents 2 and 3 submitted that the petitioner has not worked for the period from 14.09.2022 till 06.02.2023. Therefore, the petitioner cannot be paid wages during that period. I find that the ``` WP(C) No.39574 of 2022 ``` ``` 12 ``` petitioner was not permitted to work during the period from 14.09.2022 to 06.02.2023, in view of Ext.P3 order of termination, which has already been found by me as unjustifiable. Therefore, this period should be treated as a period during which the petitioner has been kept out of service illegally. The petitioner is therefore entitled to get the arrears of wages during that period. 21. The counsel for the petitioner submitted that taking into consideration the facts of the case, there should be an order of reinstatement of the petitioner in service. I find that service of the petitioner was extended pursuant to Ext.P2 Government Order for a period of one year from 07.02.2022. The appointment of the petitioner is admittedly a contract appointment. Therefore, the petitioner as of right cannot seek to continue in service beyond the period of contract. In view of the findings made by me as above, the writ petition is disposed of rejecting the prayer of the petitioner for ``` WP(C) No.39574 of 2022 ``` ``` 13 ``` reinstatement in service. At the same time, the petitioner will be entitled to payment of wages for the period from 14.09.2022 to 06.02.2023, during which period he was kept out of service. There will be a consequential direction to respondents 2 and 3 to pay the arrears of salary due to the petitioner for the period from 14.09.2022 to 06.02.2023, within a period of two months. Ext.P3 will stand quashed. **Sd/-** **N.NAGARESH JUDGE** spk ``` WP(C) No.39574 of 2022 ``` ## **`14`** ## **`APPENDIX OF WP(C) 39574/2022`** ``` PETITIONER EXHIBITS Exhibit P1THE TRUE PHOTOSTAT COPY OF EMPLOYMENT AGREEMENT DATED 01-02-2018 ENTERED BETWEEN THE PETITIONER AND THE 2ND RESPONDENT ``` ``` Exhibit P2THE TRUE PHOTOSTAT COPY OF GOVERNMENT ORDERG.O(ORDINARY)NO.1403/2022/GAD DATED 02-04-2022 PASSED BY THE 1ST RESPONDENT ``` ``` Exhibit P3THE TRUE PHOTOSTAT COPY OF THE OFFICE ORDER DATED 14-09-2022 ISSUED BY THE 3RD RESPONDENT ``` ``` Exhibit P4THE TRUE PHOTOSTAT COPY OF HEARING NOTICE DATED 31-10-2022 ``` ``` RESPONDENT EXHIBITS EXHIBIT R2(A)TRUE COPY OF THE CHARGE MEMO DATED 19.09.2019 EXHIBIT R2(B)TRUE COPY OF THE CHARGE MEMO DATED 17.06.2021 ``` ``` EXHIBIT R2(C)TRUE COPY OF THE SCREENSHOT OF THE PETITIONER CONDUCT. ``` ``` EXHIBIT R2(D)TRUE COPY OF THE PROCEEDINGS OF THE SUB COMMITTEE BASED ON THE MEETING DATED 07.11.2022 ``` ``` EXHIBIT R2(E)TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER ON 07.11.2022 EXHIBIT R2(F)TRUE COPY OF THE EXTRACT OF THE MINUTES OF 69TH MEETING OF THE BOARD OF DIRECTORS HELD ON 13.09.2022 EXHIBIT R2(G)TRUE COPY OF THE EXTRACT OF MINUTES OF 71ST MEETING OF THE BOARD OF DIRECTOR WHICH WAS HELD ON 30.11.2022 ``` ``` EXHIBIT R2(H) ``` ``` TRUE COPY OF THE ORDER DATED 13.12.2022 ISSUED BY THE GENERAL MANAGER ```