C. P. Pradeepkumar v. Chairman and Managing Director, Kerala Books and Publications Society

W.A.No.186 of 2019 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY ,THE 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940** **WA.No. 186 of 2019** **AGAINST THE JUDGMENT IN WP(C) 12038/2016 of HIGH COURT OF KERALA DTD 31.10.2018** ## **APPELLANT:** **C.P.PRADEEPKUMAR AGED 60 YEARS S/O.C.V.PRABHAKARAN, PRINTING MACHINE OPERATOR, KERALA BOOKS AND PUBLICATIONS SOCIETY, KAKKANAD, COCHIN-682030.** **BY ADVS. SMT.AYSHA YOUSEFF, MOLLY JACOB SRI.SHOUKATH HUSAIN** ## **RESPONDENTS:** **1 CHAIRMAN AND MANAGING DIRECTOR, KERALA BOOKS AND PUBLICATION SOCIETY, KAKKANAD, COCHIN-682030.** **2 KERALA BOOKS AND PUBLICATION SOCIETY, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, KAKKANAD, COCHIN-682030.** **SMT LATHA ANAND, S.C.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30.1.2019, THE COURT ON 8.3.2019 PASSED THE FOLLOWING:** W.A.No.186 of 2019 2 ## **JUDGMENT** V.G.Arun, J. The unsuccessful writ petitioner is the appellant herein. The appellant had joined the service of the 2[nd] respondent as Printing Helper in the year 1982. Thereafter, he was promoted as Letter Press Printer in 1993. While working in that post, the appellant was placed under suspension for persistent unauthorised absence, vide Ext P3 order dated 18.3.2004. Thereafter, a disciplinary enquiry was conducted, based on which it was proposed to terminate the appellant from service, as evident from Ext P5. Thereupon, the appellant submitted a detailed representation requesting for a lenient view and also undertaking not to repeat his mistakes. On the basis of the appellant's request and on humanitarian grounds, the proposed punishment was reduced to reversion to the lower post of Printing Helper in the scale of pay 3050-5230, with basic pay fixed at Rs.3050/-. In that order (Ext P7), it was also ordered that the appellant would not be entitled for salary for the period during which he was under suspension. As against Ext P7 order dated 15.10.2004, the appellant is alleged to have submitted Exts P9, P10 & P11 representations. Ext P12 reply was given, in W.A.No.186 of 2019 3 answer to Ext P10 representation dated 4.2.2011, submitted before the Minister for Printing and Stationary. In Ext P12 it was stated that the Government had considered the appellant's request in detail and had come to the conclusion that his request is liable to be rejected. In spite of the definite stand of the Government, conveyed through Ext P12, the appellant pursued with his representations and the Government reiterated its stand and conveyed it through Ext P18. Thereupon, the Writ Petition was filed challenging Ext P3, the suspension order dated 18.3.2004, Ext P4, the inquiry report dated 13.9.2004, Ext P6 (sic), the appellant's own representation dated 15.10.2004, Ext P7, the order imposing punishment dated 27.12.2004, Ext P17 letter dated 22.4.2015 and Ext P18 communication dated 1.1.2016. Surprisingly, Ext P12, the first order of rejection has not been challenged. The other prayer in the Writ Petition is to restore the service of the appellant, by placing him in the post and position as on the date of Ext P7 and to grant attendant benefits within a time frame. 2. By the impugned judgment, the learned Single Judge found that there was inordinate delay on the part of the appellant in approaching the court and that the charges against the appellant having been proved, the reduced punishment of W.A.No.186 of 2019 4 demotion to a lower post cannot be seen as disproportionate, when compared with the gravity of the misconduct found against the appellant. Based on the said findings, the learned Single Judge dismissed the Writ Petition, while at the same time making it clear that the punishment imposed vide Ext P7 shall be seen only as demoting/reverting the appellant to the lower post and shall not be seen as depriving the appellant of the benefit of the years of service rendered in the organization prior to the punishment. 3. In this appeal, the challenge against the impugned judgment is mainly on the ground that the dismissal of the Writ Petition on the ground of delay was illegal, inasmuch as the appellant had been diligently pursuing the matter through his representations, as was evident from Exts P9 to P11 and P13 representations and Exts P16 to P18 communications. The other challenge is on the ground that the learned Single Judge committed a mistake in finding that the punishment imposed on the appellant did not warrant interference. The learned counsel for the appellant vehemently contended that in view of the repeated representations submitted by the appellant, the issue raised by the appellant was kept live and therefore, the refusal to consider the issue on merits was illegal. W.A.No.186 of 2019 5 4. In the light of the arguments advanced, it may be relevant to consider the sequence of events that led upto Ext P18. The appellant was placed under suspension as per Ext P3 dated 18.3.2004. He was issued with Ext P5 show cause notice dated 23.9.2004, proposing to impose the punishment of termination from service. The proposed punishment was reduced to demotion to the lower post, as per Ext P7 order dated 27.12.2004. Even though the appellant claims that Ext P9 representation dated 9.1.2005 had been submitted, that date is not reflected in Ext P9 and there is no proof regarding submission of the representation. Therefore, the first dated representation submitted by the appellant and produced in the Writ Petition is Ext P10, which is dated 4.2.2011, almost 7 years after the imposition of punishment. Moreover, Exts P10 & P11 which were addressed to the Minister for Printing and Stationary directly, cannot be termed as representations submitted through proper channel. In spite of that inherent defect, the representation was considered and rejected by the Government on 17.3.2012, vide Ext P12. Hence, it is evident that the representations submitted by the appellant, raising his grievance against imposition of punishment, had been considered at the highest level and rejected as per Ext P12. The appellant, instead W.A.No.186 of 2019 6 of challenging Ext P12, continued to submit representations, which ultimately resulted in Ext P18, under which the Government reiterated its stand in Ext P12 and rejected the subsequent representations. The contention that the Writ Petition was filed within time cannot be countenanced for the reason that the cause of action, if any, for filing the Writ Petition had arisen on the basis of Ext P12, the first order of rejection. Moreover, even in the instant Writ Petition, the appellant had not cared to challenge Ext P12. 5.The question as to whether repeated representations would instil life to a stale cause of action has time and again been considered and answered in the negative by the Hon'ble Supreme Court. In **Naresh Kumar v Department of Atomic Energy & others (2010)7 SCC 525** , the Apex Court considered a similar question and held that if an employee keeps making representation after representation which are consistently rejected then he cannot claim any relief on that ground. It was further observed the representation of the appellant therein was rejected long back and for reasons best known to the appellant he did not challenge the same before the court of competent jurisdiction. Therefore, the legal position is that if the appropriate authority had considered the representation and rejected it once, W.A.No.186 of 2019 7 a subsequent consideration and rejection based on the repeated representations submitted by the employee would not give rise to a fresh cause of action. Therefore, the subsequent rejection of the appellant's representations vide Ext P18, does not give rise to a fresh cause of action and resultantly, the delay from the date of receipt of Ext P12, upto the filing of the Writ Petition remains unexplained. Therefore, the learned Single Judge was fully justified in finding that the appellant could not be seen as a person who was vigilant in pursuing the matter against the respondent society. 6. As has been rightly held in the impugned judgment, though the proposal was to impose the punishment of termination from service on the appellant, it was later reduced to demotion to a lower rank, based on the representation submitted by the appellant and on humanitarian consideration. The documents produced along with the Writ Petition contain ample proof of the continued absence of the appellant from duty. In the counter affidavit filed by the first respondent, the details regarding the absence of the appellant during his period of service as Letter Press Printer has been stated _in extenso_ . These facts are not refuted by the appellant in his reply statement. The domestic inquiry report, Ext P4, also bears testimony to the W.A.No.186 of 2019 8 instances of indiscipline on the part of the appellant. From the totality of the facts and evidence, as revealed from the pleadings and documents on record, it cannot be held that the punishment imposed on the appellant was disproportionate. Moreover, the learned Single Judge has granted some solace to the appellant by making it clear that the punishment imposed vide Ext P7 shall be seen only as demoting/reverting the appellant to the lower post and shall not be seen as depriving the appellant of the benefit of the years of service rendered in the organisation prior to the punishment. In such circumstances, the finding in the impugned judgment with respect to the punishment imposed on the appellant does not warrant interference. Hence, both the grounds urged in the appeal are liable to be rejected. Resultantly, we find no merit in the appeal and the Writ Appeal is dismissed. Sd/- ## **C.T.RAVIKUMAR , JUDGE** Sd/- **V.G.ARUN, JUDGE** cms /True copy/ P.S.to Judge W.A.No.186 of 2019 9