B Kesavadas v. Travancore Devaswom Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** ## **MONDAY, THE 22[ND] DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA, 1943** ## **WP(C) NO. 16138 OF 2021** ## **PETITIONER:** B KESAVADAS, AGED 55 YEARS S/O.K. BHARGAVAN, CHIEF ENGINEER, TRAVANCORE DEVASWOM BOARD, RESIDING AT MUTTATHU KAILAS, PRAYAR SOUTH, OCHIRA, KOLLAM 690 547. BY ADV M.P.PRAKASH ## **RESPONDENTS:** 1 TRAVANCORE DEVASWOM BOARD , REPRESENTED BY ITS SECRETARY, TRAVANCORE DEVASWOM BOARD HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM 695 003. 2 SECRETARY, TRAVANCORE DEVASWOM BOARD, TRAVANCORE BOARD HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM 695 003. BY ADV SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2021, THE COURT ON 15/11/2021 DELIVERED THE FOLLOWING: W.P.(C) No.16138/2021 2 ## **JUDGMENT** The writ petitioner is at present the Chief Engineer of the 1[st] respondent Travancore Devaswom Board. He joined the service of the Board on 13/3/1992 as an Assistant Engineer. After 20 years of service, he is due for retirement on 30/4/2022. According to the petitioner, he is suffering from various cardiac issues and intra vertebral disc prolapse evidenced by Ext.P1 scan report, and Ext.P2 medical certificate. Claiming that due to physical inability, he is unable to continue to work, the petitioner submitted Ext.P3 request for voluntary retirement on 23/6/2021. He sought for voluntary retirement with effect from 31/7/2021. Exts.P1 and P2 were enclosed along with the application. On 29/6/2021, the petitioner also submitted Ext.P4 request, seeking leave from 1/7/2021 to 31/7/2021. Ext.P4 was allowed by Ext.P5 order. However, Ext.P3 request for voluntary requirement was rejected by Ext.P6 proceedings dated 21/7/2021. It was stated therein that, while the writ petitioner was working as the executive engineer at Mavelikara during the period 2018 – 2019,in relation to the irregularities allegedly found in several works, he was issued with Ext.P8 show cause notice dated 15/3/2021. For detailed enquiry, the matter was entrusted with the Vigilance Department of the Devaswom. Considering these facts, it was decided to reject his application for voluntary retirement. Aggrieved by the above order, the writ petitioner has approached this court. 2. Assailing the impugned order, the learned counsel for the petitioner contended that, in case an employee is ill and is not willing to continue in W.P.(C) No.16138/2021 3 service, it was highly arbitrary and unreasonable on the part of the employer to insist that the employee must continue in service. Insistence on the part of the employer that the employee must continue in service was clearly against the right guaranteed under Articles 14, 16 and 21 of the Constitution of India. It was further contended that, Rule 56(v) of Part III of Kerala Service Rules(KSR) provides that an application for voluntary retirement can be rejected only in the cases mentioned therein and the grounds mentioned therein are not made out in the present case. It was contended that, it was arbitrary and unreasonable on the part of the respondents, who accepted the application for leave relying on Ext.P2, in rejecting the application for voluntary retirement based on the same medical certificate. 3. A counter affidavit was filed by the State, wherein it was contended that there were serious allegations of financial irregularities in the maramath works done at various places during 2018-2019, while the petitioner was the executive engineer of Mavelikkara Division. A complaint was received, which was enquired through the vigilance wing of the Travancore Devaswom Board. The complaint, together with the enquiry report of the Vigilance was produced by the learned Ombudsman before the High Court in TDB report No.48/2020. It was stated that prima facie, the report revealed gross official misconduct, falsification of records and financial misconduct on the part of the officials. The role of the petitioner was conspicuously mentioned in the report. The report suggested a detailed enquiry with the help of technically qualified persons. Show cause notice was issued by the Board to the petitioner and other W.P.(C) No.16138/2021 4 responsible officers regarding the grave financial indiscipline and detailed probe is continuing. The copy of the proceedings of the Board dated 15/3/2021, is produced as Annexure R1(a). 4. A detailed reply affidavit was filed denying the various allegations and asserting that, even the show cause notice at the most discloses only supervisory lapses on the part of the petitioner and it does not disclose a situation as warranted under Rule 56(v) of Part III of KSR. Ext.P8 show cause notice and Ext.P9 reply given by the petitioner were also brought on record. 5. Heard the learned counsel for the petitioner and the learned standing counsel for the Devaswom Board. 6. Assailing the impugned order, the learned counsel for the petitioner vehemently contended that, the petitioner has an indefeasible right to resign from his job, if he unable to pursue the job and the employer is not entitled to deny that, unless the Rule permits so. The learned counsel specifically relied on the decision reported in _**Venugopal v. State of Kerala & Others (2019(2) KHC) 89)**_ as well as the decision of the Hon'ble Supreme Court in _**Sanjay Jain v. National Aviation Co.of India Ltd.(2019 KHC 2247).**_ In Venugopal's case, it was held by the Division Bench that, unless the authority which is competent to make appointment to the post, refuses to grant permission for retirement before the date on which the employee wishes to retire as specified in the notice under clause(i) of Rule 56(iv) of KSR, the retirement shall become effective from the date specified in the notice. 7. The Law laid down in Venugopal's case, I am afraid, will not help the W.P.(C) No.16138/2021 5 petitioner in supplementing his contentions in the present case. In Venugopal's case, the question that arose was the date when the application for voluntary retirement comes into effect. The court considered the question in the light of Rule 56(iv) and the proviso to the above provisions therein. Rule 56(iv) of the KSR provides that voluntary retirement of an employee shall come into effect on the grant of permission to retire by the authority competent to make appointment to the post. However, the proviso stated that where the authority competent to make appointment to the post does not refuse to grant permission for retirement before the date on which the employee wishes to retire specified in the notice , the retirement shall come into effect from the date specified in the notice. Rule 56 (iv) is neither applicable in this case, nor any other question arising in this case was a subject matter of the Division Bench decision. Hence, that decision cannot come in aid to the petitioner. 8. On the other hand, in Sanjay Jain case(Supra), the Supreme Court had held that, to resign is a right of employee who cannot be forced to serve in case he is not willing, until and unless there is some stipulation in the Rules or in the terms of appointment or disciplinary proceedings is pending or contemplated, which is sought to be avoided by resigning from the services. Though the learned counsel for the petitioner pressed into service the above observation that to resign is a right of the employee, the above decision is an authority on the proposition that though the right to resign is a right of the concerned employee, who cannot be forced to serve in case he is not willing , unless and until there is stipulation in the Rules or in the terms of appointment or W.P.(C) No.16138/2021 6 disciplinary proceedings is pending or contemplated, which is sought to be avoided by resigning from the service. This clearly shows that this right is not absolute and subject to restrictions. 9. In this regard, Rule 56(v) of KSR requires to be considered. Rule 56(v) of Part III of KSR read as follows; “Permission to retire shall be given in all cases except those in which disciplinary proceedings are pending for imposition of a major penalty or the disciplinary authority, having regard to the circumstances of the cases is of the view that the imposition of the penalty of removal or dismissal from service would be warranted or in which the prosecution is contemplated or may have been launched in a Court of Law against the officer.” 10. The above Rule empowers the authority to grant permission except in situation contemplated therein. While reading Sanjay Jain's case i(supra0n the background of Rule 56(v), it is evident that Rule applicable to the parties provides rejection of an application in certain cases contemplated under Rule 56(v). 11. Assailing the order, the learned counsel contended that the impugned order does not disclose the conditions contemplated under Rule 56(v) to decline permission was neither considered nor made out in the order. It was also contended that the facts do not disclose any situation warranting rejection as contemplated under Rule 56(v). The contention of the learned counsel for the petitioner was that Ext.P8 show cause memo evidences that only supervisory lapses were attributed to the petitioner. Further, the disciplinary proceedings could not be stated to have been contemplated or initiated in the facts of the W.P.(C) No.16138/2021 7 case. 12. The learned counsel for the petitioner relying on Ext.P8, and Annexure R1(a) produced by the Board, contended that, it only discloses that being the supervisory officer, there was supervisory lapses on the part of the writ petitioner. It was contended that the petitioner has given a reply evidenced by Ext.P9 supported by the letters of the concerned officers during the relevant time, who had mentioned that the mistakes that has occurred was due to their default, which happened due to pressure of work. It seems that about 47 specific allegations were raised, most of which alleged that in the bill and vouchers, based on which payments were made, the concerned contractors and some of the officers have not signed. There was an allegation that in some instances, amounts were released without works being done by the contractor. The question whether the allegation was supervisory laches alone, or attributable to the petitioner, is beyond the scope of the present proceedings. Suffice to hold that, an enquiry proceeding is pending and proceedings have been initiated. 13. The learned counsel for the petitioner contended that, the impugned order does not disclose that an enquiry was contemplated. Another contention of the learned counsel for the petitioner was that departmental enquiry commences only after the charge sheet was drawn up and served on the delinquent. In the case at hand, only a show cause notice was issued. Hence, it could not be held that the enquiry proceedings were contemplated as visualized under Rule 56(v). To substantiate it, the learned counsel relied on W.P.(C) No.16138/2021 8 the decision reported in _**Managing Director, Uttar Pradesh Warehousing Corporation and Another v. Vijay Narayan Vajpayee [(1980) 3 Supreme Court Cases 459].**_ In paragraph 14 of the above case, the Hon'ble Supreme Court had held that the regular departmental enquiry takes place only after the charge sheet is drawn up and served upon the delinquent and the latter's explanation is obtained. In the above case,the issue that arose before the court was not as to the time at which the disciplinary proceedings commenced. It seems to be a passing observation made by the Supreme Court that the regular departmental enquiry takes place only after the charge sheet is drawn up. At the most, that observation only indicates that an enquiry starts after the chargesheet is drawn up, which is factually correct also. On the other hand, that does not answer the question whether an enquiry proceedings is contemplated or not. Hence, the contention of the learned counsel for the petitioner that an enquiry can be stated to be contemplated or pending only when memo of charges is issued, has no basis . 14. Having appreciated the above defences set up by the learned counsel for the petitioner, I find unable to subscribe to the contentions set up by the learned counsel for the petitioner and the challenge made to Ext.P8 on the above ground. However, the impugned order has to be appreciated from another angle. Under Rule 56 (v) of KSR, the authority, is competent to reject the application only if disciplinary proceedings are pending for imposition of major penalty or the disciplinary authority, having regard to the circumstances of the cases, is of the view that imposition of penalty for removal or dismissal from W.P.(C) No.16138/2021 9 service would be warranted, in which prosecution is contemplated or may have been launched in a court of law against the officer. Apart from merely referring that, disciplinary proceedings were initiated and show cause notice was issued ,whether the grounds for rejecting the application arise, does not find its place in the impugned order. The impugned order also does not disclose that the authority has applied its mind as to whether the specific grounds mentioned in Rule 56(v) have been made out or not. Having appreciated this, I feel that the impugned order cannot be sustained on that ground alone. It is for the authority to consider the application in the perspective of the stipulations provided in Rule 56 (v). On that ground alone, I am inclined to set aside the impugned order and direct the authority to consider afresh, Ext.P3 application of the writ petitioner. 15. In the result, Ext.P6 is set aside. The first respondent Board is directed to consider Ext.P3 application of the petitioner, in the light of the observations made above and the stipulations in Rule 56(v). The authority, shall apply its mind carefully in the facts of the case and pass an appropriate order afresh, within a period of one month from the date of receipt of a copy of this judgment, after giving a reasonable opportunity of being beard to the petitioner personally, or online. The writ petition is allowed accordingly. Sd/- **SUNIL THOMAS Judge** dpk W.P.(C) No.16138/2021 10 ## **APPENDIX OF WP(C) 16138/2021** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE SCAN REPORT OF THE PETITIONER. Exhibit P2 A TRUE COPY OF THE MEDICAL CERTIFICATE ISEUD TO THE PETITIONER. Exhibit P3 A TRUE COPY OF THE APPLICATION DATED 23.06.201 OF THE PETITIONER SEEKING VOLUNTARY RETIREMENT. Exhibit P4 A TRUE COPY OF THE LEAVE APPLICATION DATED 29.06.2021 OF THE PETITIONER. - Exhibit P5 A TRUE COPY OF THE PROCEEDINGS DATED 16.07.2021 OF THE IST RESPONDENT GRANTING LEAVE. Exhibit P6 A TRUE COPY OF THE PROCEEDINGS DATED 21.07.2021 OF THE IST RESPONDENT REJECTING EXT. P3. Exhibit P7 A TRUE COPY OF THE ORDER DATED 24.02.2021 IN DBP NO. 59/2020 OF THIS HONBLE COURT. RESPONDENTS EXHIBITS: COPY OF THE PROCEEDINGS OF THE BOARD, ROC1540/21/VIG(II) DATED 15/3/2021