I. Mohammed Sulaiman v. State of Kerala and Malabar Cements Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933** **WP(C).No. 2567 of 2006(E)** **------------------------------------** ## **PETITIONER(S):** **-----------------------** **I.MOHAMMED SULAIMAN, PERSONNEL OFFICER, MALABAR CEMENTS LTD., WALAYAR, PALAKKAD.** **BY SRI.KRB.KAIMAL, SENIOR ADVOCATE BY ADV. SRI.B.UNNIKRISHNA KAIMAL** ## **RESPONDENT(S):** **-------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR & REHABILITATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE MALABAR CEMENTS LTD., REPRESENTED BY ITS MANAGING DIRECTOR, WALAYAR, PALAKKAD.** **R2 BY SRI.B.S.KRISHNAN, SENIOR ADVOCATE R2 BY ADVS.SRI.K.ANAND (A.201), SMT.LATHA KRISHNAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.2567/2006** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **P1:- COPY OF THE CERTIFICATE DTD. 27.11.1987 ISSUED BY THE UNIVERSITY OF CALICUT TO THE PETITIONER.** **P2:- COPY OF THE CERTIFICATE DTD. 31.5.1989 ISSUED BY THE UNIVERSITY OF CALICUT TO THE PETITIONER.** **P3:- COPY OF THE CERTIFICATE DTD. 15.1.1991 ISSUED BY THE BHARATIYA VIDYA BHAVAN BOMBAY TO THE PETITIONER.** ## **P4:- COPY OF THE NOTIFICATION DATED 4.11.1988 ISSUED BY THE GOVT. OF INDIA.** **P5:- COPY OF THE NOTICE NO.PD/366/009/93 DTD. 25.1.1993 ISSUED BY THE 2ND REPRESENTED.** **P6:- COPY OF THE OFFICE NOTE NO.PD/968/93 DTD. 26.5.199 ISSUED BY THE 2ND RESPONDENT.** **P7:- COPY OF THE ORDER NO.PD/1140/93 DTD. 25.6.1993 ISSUED BY THE MANAGER (P&A) OF THE 2ND RESPONDENT.** **P8:- COPY OF THE ORDER NO.PD/1037/94 DTD. 25.6.1994 ISSUED BY THE 2ND RESPONDENT.** **P9:- COPY OF THE ORDER NO.PD/1798/94 DTD. 1.10.1994 ISSUED BY THE 2ND RESPONDENT.** **P10:- COPY OF THE ORDER NO.PD/63/95 DTD. 24.4.1995 ISSUED BY THE 2ND RESPONDENT.** **P11:- COPY OF THE ORDER NO.PA/204/95 DTD. 28.11.1995 ISSUED BY THE 2ND RESPONDENT.** **P12:- COPY OF THE GOVT. ORDER G.O.(RT) NO.2720/93/LBR & REH PUBLISHED AS SRO, NO.1683/93 IN KERALA GAZETTE DTD. 28.10.1993.** **P13:- COPY OF THE REPRESENTATION DTD. 10.11.1995 SUBMITTED BY THE PETITIONER TO THE IST RESPONDENT.** **P14:- COPY OF THE ORDER NO.PA/PF/1263/2003 DTD. 22.10.2003 ISSUED BY THE 2ND RESPONDENT.** **P15:- COPY OF THE ORDER NO.MPA//182/2004 DTD. 19.5.04 ISSUED BY THE 2ND RESPONDENT.** **P16:- COPY OF THE ORDER NO.PA/602/2005 DTD. 4.7.2005 ISSUED BY THE 2ND RESPONDENT.** ## **W.P.(C) NO. 2567/2006** **P17:- COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT IN OP. NO.7043/1997 BEFORE THIS HONOURABLE COURT DTD. 28.7.2005 (WITHOUT EXHIBITS)** **P18:- COPY OF THE JUDGMENT OF THIS HONOURABLE CORT IN OP. 7043/1997 DTD. 22.8.2005.** **P19:- COPY OF THE GOVT. ORDER G.O.(RT) NO.104/2006/LBR DTD. 12.1.2006.** **P20:- COPY OF THE SHOW CAUSE NOTICE NO.DGMPA/021/2006/794 DATED. 21.1.2006 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** **P21:- COPY OF THE ORDER NO.PA-2/PF-492/2007 DTD. 11.6.2007 ISSUED BY THE 2ND RESPONDENT.** **P22:- COPY OF THE ORDER NO.PA.2/PF/492/2007 DTD. 25.6.2007 ISSUED BY THE 2ND RESPONDENT.** **P23:- COPY OF THE ORDER G.O.(RT) NO.18/2008/ID DTD. 7.1.2008 ISSUED BY THE IST RESPONDENT.** **P24:- COPY OF THE ORDER NO.PA-2/PF-492/2008 DTD. 14.1.2008 ISSUED BY THE 2ND RESPONDENT.** **P25:- COPY OF THE ORDER NO.MD/158/2008 DTD. 27.9.2008 ISSUED BY THE 2ND RESPONDENT.** **P26:- COPY OF THE APPLICATION DTD. 25.6.2009 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.** ## **RESPONDENT'S EXHIBITS** **NIL:-** **TRUE COPY** **P.A. TO JUDGE** **tss** ## **S. SIRI JAGAN, J.** ------------------------------------------- ## W.P.(C) No.2567 OF 2006 ---------------------------------------------Dated this the 12[th] day of July, 2011 ## **JUDGMENT** The petitioner entered service of the 2[nd] respondent Company, which is a Government Company, as Mazdoor on 2.7.1984. Subsequently he was promoted as Machinery Attendant. While he was working so, by Ext.P5, the Company invited applications from in-service candidates for appointment to the post of Welfare Officer (Trainee). After a selection process, by Ext.P7 dated 26.5.1993, the petitioner was selected as a Welfare Officer (Trainee). After the training period, by Ext.P8 order dated 25.6.1994, the petitioner was appointed as a Welfare Officer in the Mines. By Ext.P9 order dated 1.10.1994, the petitioner’s probation was declared to have been satisfactorily completed with effect from 25.6.1994 and confirmed in that post. Subsequently, the petitioner was transferred in the post of Welfare Officer from Mines and to Plant and vice versa also. Later on, by Ext.P15 order, the petitioner was further promoted W.P.(C)No.2567/06 2 to the post of Personnel Officer on 19.5.2004 with effect from 1.6.2004. 2. In the meanwhile, the Government amended the Kerala Factories (Welfare Officers) Rules 1957 by Ext.P12 order, wherein it was stipulated that the scale of pay, D.A and other allowances and the grade and the status of a Welfare Officer shall be equivalent to those of a Head of the Department in the factory. The petitioner submitted an application for parity in scale of pay and status with that of the Head of a Department in the factory. The petitioner approached this Court by filing O.P.No.7043/1997 for implementation of the rules in which by Ext.P18 judgment, this Court directed the Government to consider and pass orders on Ext.P13 representation of the petitioner. While considering the same, by Ext.P19 order, the Government entered a finding that since the petitioner’s appointment was not notified to the Chief Inspector of Factories, the petitioner’s appointment as Welfare Officer is ab initio void and therefore, the request of the petitioner in Ext.P13 is rejected. On receipt of Ext.P19, by Ext.P20, the 2[nd] respondent directed the petitioner to show cause why the petitioner should not be reverted to the original 3 W.P.(C)No.2567/06 post of Machinery Attendant Gr.II. The petitioner is challenging Exts.P19 and P20. 3. The petitioner’s contention is that at no point of time, before Ext.P19, anybody had any case that the petitioner’s appointment was not in accordance with the rules. He points out that in Ext.P17 counter affidavit filed by the 2[nd] respondent in O.P.No.7043/1997, the contention of the 2[nd] respondent themselves was that the petitioner is not a Welfare Officer appointed as per the Kerala Factories (Welfare Officers) Rules. According to them, the rules are applicable only if the Company was having more than 500 employees whereas only about 300 employees are employed by the 2[nd] respondent. As such, he was not a Welfare Officer as per the Kerala Factories (Welfare Officers) Rules, was the contention raised in Ext.P17 counter affidavit. Therefore, according to the petitioner, it is too late in the day for either the Government or the 2[nd] respondent to take the stand that the petitioner’s appointment was in any way bad. It is further submitted that if at all anybody has made any mistake, it is only the Company and the petitioner is not in any way responsible for the mistake in the matter of not notifying the appointment to the Chief W.P.(C)No.2567/06 4 Factory Inspector as found in Ext.P19. It is further contended that this Court has repeatedly held that after more than seven years or ten years, even if the appointment is irregular, a person cannot be denied the benefit of such promotion. 4. The State has not filed any counter affidavit. But, the 2[nd] respondent has filed a counter affidavit, wherein they would support the impugned proceedings. The Government Pleader would contend that Ext.P19 is only a decision rejecting Ext.P13 application of the petitioner for benefit of the Kerala Factories (Welfare Officers) Rules and it does not in any way amount to a direction that the petitioner’s appointment has to be cancelled. According to him, the finding is only for the purpose of rejecting the petitioner's claim in Ext.P13. The 2[nd] respondent would contend that Ext.P20 is a show cause notice and the petitioner could have very well raised all his contentions in reply to the show cause notice. It is also contended before me that the petitioner was guilty of very serious misconduct in the matter of obtaining LLB degree without taking leave as a full time student. It is also contended that insofar as the appointment of the petitioner was in violation of the Kerala Factories (Welfare Officers) Rules 5 W.P.(C)No.2567/06 1957, the petitioner’s appointment has to be cancelled and the petitioner has to be reverted to the original post. 5. I have considered the rival contentions in detail. At the outset I note that in the decisions of _**Rajalekshmi**_ v. _**State of Kerala**_ [1992(1) KLT 458 and _**Pradeepkumar**_ v. _**Mohanan**_ [1998(1)KLT 414], a Single Bench and a Division Bench of this Court have categorically held that, even if the appointment of any person is irregular, for want of the prescribed qualifications or otherwise, such appointments cannot be cancelled after seven and ten years respectively. In this case, the petitioner was appointed as a Welfare Officer as early as in 25.6.1994 and he was further promoted as Personnel Officer on 19.5.2004. Therefore, I have no hesitation to hold that the action of the respondents in taking action to cancel the petitioner’s appointment after 12 years is totally arbitrary and unsustainable. 6. Ext.P19 is arbitrary and violative of the principles of natural justice. At no point of time the petitioner was put on notice that his appointment was illegal. The 2[nd] respondent themselves had no case. In Ext.P13, the petitioner's claim was only for benefits of the Rules. The Government could not have W.P.(C)No.2567/06 6 validly held that the petitioner's appointment was bad for want of compliance with the Rules without first putting the petitioner on notice. Perhaps the maximum the Government could have done was to hold that the petitioner's appointment was not as a Welfare Officer as per rules, as contended by the 2[nd] respondent in Ext.P17 counter affidavit. It is also not known how the Government had entered that categoric finding that the petitioner's appointment was ab initio void without any evidence in that regard. If at all anybody was at fault in not notifying the petitioner's appointment to the Chief Inspector under the Mines Act, it is the 2[nd] respondent Company and not the petitioner. In a dispute between the petitioner and the Company, the Company's mistake could not have been relied on to hold against the petitioner. Therefore, the finding in Ext.P19 is clearly unsustainable. 7. Apart from that it is interesting to note that at no point of time, till Ext.P19 order was passed by the Government, the Company had any case that the petitioner’s appointment is in violation of the Rules. In fact, in Ext.P17 counter affidavit filed by the 2[nd] respondent, their case against the claim for scale of pay applicable to Head of the Department 7 W.P.(C)No.2567/06 was that the petitioner was not a Welfare Officer as contemplated under the Kerala Factories (Welfare Officers) Rules. If that be so, one fails to understand how the petitioner can be said to be appointed in violation of the Kerala Factories (Welfare Officers) Rules. Strangely, the 2[nd] respondent has taken a stand that the petitioner’s appointment was under the Kerala Factories (Welfare Officers) Rules and therefore since the appointment was not notified to the Chief Inspector of Factories, the same is bad. The 2[nd] respondent cannot blow hot and cold. At the same time that is exactly what they have done in this case. Further they cannot take advantage of their own mistake, since it suits them now. Earlier, in Ext.P17, they took a definite stand that the petitioner’s appointment was not under the Kerala Factories (Welfare Officers) Rules and now in order to justify Ext.P20 show cause notice they take the stand that the petitioner’s appointment was under the Rules. The 2[nd] respondent, a Government Company, cannot adopt such double standards. Of course, Ext.P20 is a show cause notice. But, still I am inclined to interfere with it since in Ext.P19 there is no direction by the Government to initiate proceedings for cancellation of the petitioner’s appointment. Further such 8 W.P.(C)No.2567/06 action is clearly arbitrary, unjust and unreasonable. The 2[nd] respondent was more loyal than the king and initiated proceedings to cancel the appointment of the petitioner. More interestingly the 2[nd] respondent now takes the stand that the petitioner is also guilty of misconduct in obtaining a degree as a regular student while in service without taking leave. It is interesting because, by Ext.P14, the petitioner was imposed with the punishment of barring of increments specifically for that misconduct. As such, the 2[nd] respondent cannot seek to support Ext.P20 on the ground that he is guilty of that misconduct. In any event, I cannot countenance the proceedings for cancellation of the petitioner’s appointment, after a period of 12 years especially when the petitioner has not in any way contributed to the alleged mistake in such appointment, if there was such mistake as claimed now. Therefore, Exts.P19 and P20 are clearly arbitrary and unsustainable and accordingly, they are quashed. The writ petition is allowed as above. ## **S. SIRI JAGAN, JUDGE** acd W.P.(C)No.2567/06 9 W.P.(C)No.2567/06 10