Jaya P.K v. Cashew Export Promotion Council of India

W.P.(C).No.13738 of 2022 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 21[ST] DAY OF DECEMBER 2022 / 30TH AGRAHAYANA, 1944** ## **WP(C) NO. 13738 OF 2022** ## **PETITIONER:** JAYA P.K AGED 58 YEARS W/O. T. SREEKUMAR, 30/275, UTHRAM, PKRA 83, NEAR PAVANKULANGARA TEMPLE, THEKKUMBHAGAM, THRIPUNITHURA, KERALA 682 301 BY ADVS. SANTHOSH MATHEW ARUN THOMAS VEENA RAVEENDRAN KARTHIKA MARIA ANIL SEBASTIAN PULICKEL JAISY ELZA JOE ABI BENNY AREECKAL LEAH RACHEL NINAN SANITA SABU VARGHESE ## **RESPONDENTS:** 1 CASHEW EXPORT PROMOTION COUNCIL OF INDIA CASHEW BHAVAN, MUNDAKKAL WEST, KOLLAM, KERALA 691 001 REPRESENTED BY ITS CHAIRMAN 2 THE CHAIRMAN CASHEW EXPORT PROMOTION COUNCIL OF INDIA, CASHEW BHAVAN, MUNDAKKAL WEST, KOLLAM, KERALA 691 001 W.P.(C).No.13738 of 2022 2 3 THE EXECUTIVE DIRECTOR AND SECRETARY CASHEW EXPORT PROMOTION COUNCIL OF INDIA, CASHEW BHAVAN, MUNDAKKAL WEST, KOLLAM, KERALA 691 001 4 THE JOINT DIRECTOR CASHEW EXPORT PROMOTION COUNCIL OF INDIA, CASHEW BHAVAN, MUNDAKKAL WEST, KOLLAM, KERALA 691 001 5 THE DEPUTY DIRECTOR CASHEW EXPORT PROMOTION COUNCIL OF INDIA, CASHEW BHAVAN, MUNDAKKAL WEST, KOLLAM, KERALA 691 001 BY ADVS. ANIL D. NAIR TELMA RAJU EDATHARA VINEETA KRISHNAN P.K.BIJU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 7.11.2022, THE COURT ON 21.12.2022 DELIVERED THE FOLLOWING: W.P.(C).No.13738 of 2022 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(c).No.13738 of 2022** **= = = = = = = = = = = = = = = = Dated this the 21[st] day of December, 2022** ## **JUDGMENT** - 1.This writ petition is filed challenging Ext.P7 proceedings and seeking directions to the respondents to permit the petitioner to continue in service in light of Ext.P6 withdrawal of the application for voluntary retirement. 2. It is submitted that the petitioner was initially appointed as Clerk Grade II under the 1[st] respondent Council and was subsequently promoted as Senior Clerk and Accounts Officer. It is submitted that on 30/1/2021, the petitioner was issued with two show-cause notices alleging that the petitioner had caused financial loss to the respondents amounting to Rs.79,336/- through improper disbursal of terminal benefits to a retired employee and that there was undue delay on the part of the petitioner in presenting the accounts for audit. However, on 22/2/2021 she was issued with a memo of W.P.(C).No.13738 of 2022 4 charges and was informed that a domestic enquiry would be conducted against her. Another notice was also received on 7.7.2021 alleging that she had failed to act on a letter issued by the Internal Audit Wing of the Government of India to the 1[st] respondent. The petitioner submitted her explanations. On 13.8.2021 the petitioner was informed that the enquiry officer has found her guilty of all charges and her comments on the enquiry report were invited. On 16.8.2022, the petitioner submitted her response to the enquiry report. On the same day, she also submitted Ext.P1 request for voluntary retirement with effect from 30/11/2021. It is submitted that pursuant to an enquiry, a notice was issued to the petitioner proposing the punishment of dismissal from service and requiring her to show cause why the proposed punishment should not be imposed. A reply was submitted to the same. Thereafter, further memo was issued on 16/10/2021 and a detailed reply was submitted. By Ext.P2 letter dated 28/10/2021 the petitioner reiterated her request to relieve her from service. Thereafter, it appears that the entire matter was considered and Ext.P3 letter dated 15.11.2021 was issued to W.P.(C).No.13738 of 2022 5 the petitioner informing her that the disciplinary proceedings stood finalised, inflicting the punishment of demotion to the post of Senior Clerk with prospective effect. It is submitted that the petitioner made enquires about her application for voluntary retirement and Ext.P4 communication was received by her stating that the resignation letter submitted by the petitioner will be placed before the forthcoming meeting of the COA (Committee of Administrators) for decision and the petitioner will be informed. The petitioner, therefore, submitted Ext.P5 request dated 20/1/2022. Since no decision had been taken on her request for voluntary requirement, the petitioner continued in service, thereafter on 29/1/2022 she submitted Ext P6 request to the chairman withdrawing the resignation dated 16/8/2021 and the later communication dated 20/1/2022. However, by Ext.P7 proceedings dated 31/1/2022, the petitioner was informed that her resignation was placed before the 716[th] meeting of the Committee of Administrators held on 9[th] December 2021 and the Committee had decided to accept the resignation. It is stated that the said decision was informed to the petitioner by communication W.P.(C).No.13738 of 2022 6 dated 14/12/2021 and therefore the petitioner stands relieved from the services of the 1[st] respondent with effect from 31/1/2022. The petitioner accepted the said order, but endorsed that she had withdrawn the resignation and may be permitted to continue in service. An email dated 31/1/2022 was also sent by the petitioner. Several requests to accept the withdrawal of her resignation and to permit her to continue in service were submitted thereafter also, as evidenced by Exts.P9 and P10, but no steps were taken thereon. It is contended by the learned counsel for the petitioner that since the resignation letter submitted by the petitioner stood withdrawn before the Committee considered the request, the petitioner is entitled to be permitted to withdraw the resignation and to continue in service. 3. A detailed counter affidavit has been placed on record by respondents 1 and 3 . The initial contention is that the 1[st] respondent is only a company registered under the Companies Act and that it is not amenable to writ jurisdiction under Article 226 of the Constitution of India. On merits it is contented that after Ext.P4 communication dated 27/11/2021 W.P.(C).No.13738 of 2022 7 the petitioner's request for voluntary relinquishment of service had been placed before the Committee of Administrators on 9/12/2021 and the Committee had accepted the resignation. It is specifically stated that the petitioner was informed vide Exhibit R3(h) letter of the decision of the Committee. It is stated at paragraph 7 of the counter affidavit as under:- “The petitioner was informed vide letter dated 14.12.2021 that the meeting held on 9.12.2021 has decided to relieve her from the service of the Council w.ef. 31.1.2022. True copy of letter dated 14.12.2021 is produced herewith and marked as Exhibit R3 (h) for identification. The Petitioner was called to the cabin of the Executive Director to serve a copy of the letter dated 14.12.2021 on the petitioner informing her that the Council has decided to relieve her from service w.e.f 31.1.2022. She accepted the same, read it and refused to acknowledge receipt of the same. A copy of the letter was also put up in the Notice Board. The Petitioner vide letter dated 20.1.2022 further requested the 1[st] respondent to relieve her from the duties at the earliest. True copy of letter dated 20.1.2022 is produced herewith and marked as Exhibit R3 (i) for identification. It is pertinent to note that she has been feigning ignorance of Exhibit R3 (h) which was accepted by her but not acknowledged. In Exhibit R3 (i) letter also the person to whom which was served, had noted the decision of the CoA, to relieve the petitioner w.e.f. 31.01.2022.” W.P.(C).No.13738 of 2022 8 - 4.It is submitted that it was only thereafter that the request to withdraw the resignation was submitted by the petitioner. It is, therefore, contented that the petitioner was fully aware that she stood relieved on the acceptance of the resignation by the 716[th] meeting of the CoA on 9/12/2021 with effect from 31/1/2022 and that the entire writ petition is only an experimentary exercise. 5.A reply affidavit has also been placed on record. It is contended that the petitioner had never been issued with any communication of acceptance of her voluntary resignation. It is submitted that the 1[st] respondent had claimed that the acceptance was communicated to her through a letter dated 14/12/2021. The petitioner denies receipt of the same. It is submitted that Exhibit R3(h) produced along with the counter affidavit is a concocted document and that the petitioner was never shown the same, nor was it ever put up on the notice board. It is submitted that in regard to all other documents served on the petitioner, the respondent has used verifiable means of communication and that in the case of Exhibit R3(h) alone, there is absolutely no means to verify whether it had W.P.(C).No.13738 of 2022 9 been served or not. It is submitted that the attempt of the respondents is only to cook up a false story of communication of the decision of the CoA on the petitioner, while it was actually never served. - 6.The learned counsel for the petitioner places reliance on a decision of a Division Bench of the Calcutta High Court in **Sunirmal Kumar Roy v. Union of India and others** [(2007) - 5 SLR 186 (DB)] wherein it was held that the Engineering Export Promotion Council constituted by the Government of India would answer the definition of “State” under Article 12 of the Constitution of India. It is submitted that though the matter was taken in appeal before the Apex court and was settled, the finding that the Engineering Expert Promotion Council is “State” stands confirmed. - 7.The learned counsel for the respondents on the other hand rely on the decision of the Delhi High Court in **Jitarani Udgata v. Union of India** [MANU/DE/1227/2021] to contend that the Gem and Jewellery Export Promotion Council itself, which was a subject matter of the judgment relied on by the W.P.(C).No.13738 of 2022 10 petitioner has now been held to be not “State” under Article 12 in view of the lack of State control in its affairs. 8.The learned counsel for the 1[st] respondent also places reliance on the decisions of the Apex court in **Binny Ltd. & others vs V Sadasivan & Ors** [(2005) 6 SCC 657], **Anandi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanthi Mahotsav Samarak Trust and Ors v. V.R.Rudani and othres** [AIR 1989 SC 1607], **Sohanlal v. Union of India** [AIR 1957 SC 529], **Federal Bank Ltd v. Sagar Thomas and others** [AIR 2003 SC 4325], **The Praga Tools Corporation v. C.A.Immanuel and others** [AIR 1969 SC 1306], **St.Marys Education Society and others v.Rajendra Prasad Bhargava and others** [2022 SCC Online SC 109], **K.K.Saksena v. International Commission on Irrigation and Drainage** (20150 45 SCC 670], **Mathew Ignitious C v.The Catholic Syrian Bank Limited and others** [2019 (4) KLT 1597] to contend that the prayers as sought for in the writ petition are not liable to be granted to the petitioner. - 9.I have considered the contentions advanced. The contention raised by the learned counsel for the respondents that the 1[st] W.P.(C).No.13738 of 2022 11 respondent is not amenable to the writ jurisdiction of this Court does not appear to be supported by the contentions raised in the writ petition. I am of the opinion that the said question does not require to be considered in the instant case for the simple reason that the specific contention of the petitioner is to the effect that the petitioner had withdrawn her resignation before its acceptance. The resignation letter was admittedly dated 16/8/2021 and voluntary retirement was sought with effect from 30/11/2021. The withdrawal of resignation, according to the petitioner, was on 29/1/2022, Ext.P5 letter of the petitioner to the Chairman dated 20/1/2022 admits that the petitioner had been orally directed by the chairman to hand over all files connected to the accounts section to the newly appointed Accounts Officer. It is stated that the new Accounts Officer had also resigned on 15/1/2022, the petitioner, therefore, requested the Chairman to advice her as to whom she has to hand over the files to. This, according to me, mitigates against the contention of the petitioner that she was not communicated with the decision taken by the Committee of Administrators on 9/12/2021 to W.P.(C).No.13738 of 2022 12 accept her resignation. Even if the petitioner contends that Ext.R1(h) was not served on her as alleged, Ext P5 would go to show that the petitioner was perfectly aware of the fact that her resignation stood accepted and she was to handover the files to the newly appointed Accounts Officer. In Ext.P6 letter dated 29/1/2022, the petitioner seeks the withdrawal of not only her resignation, but also Ext.P5 dated 20/1/2022. Therefore, it is evident that Ext.P5 is understood by the petitioner herself as having some significance. In view of the fact that Ext.P3 order demoting the petitioner to the post of Senior Clerk was rendered as early as on 15/11/2021 and was to be effective from that date onwards, Ext P5 dated 20/1/2022 cannot be a consequence of Ext.P3, but has to be on some further information. 10.In the above factual situation, I am of the opinion that the contention raised by the petitioner that that she was never communicated the decision taken on her resignation on 9/12/2021 cannot be accepted. The respondents have produced Ext.R3(h) and contended that the same was communicated in person to the petitioner who refused to W.P.(C).No.13738 of 2022 13 accept it. Ext.R3(i) produced by the respondents would also show that there is an endorsement made on Ext P5 request of the petitioner to handover all records to the D/D before relieving. It is thereafter that Ext.P6 dated 29/1/2022 has been preferred by the petitioner. 11.In the above view of the matter, I am of the opinion that the prayers sought for in the writ petition are not liable to be granted, the same is accordingly dismissed. The question with regard to maintainability of a writ petition against the 1[st] respondent is left open to be decided in appropriate proceedings. **==> picture [25 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.13738 of 2022 14 ## **APPENDIX OF WP(C) 13738/2022** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER SEEKING VOLUNTARY RETIREMENT DATED 16-08-2021 - Exhibit P2 TRUE COPY OF THE LETTER DATED 28-10-2021 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. - Exhibit P3 TRUE COPY OF THE LETTER DATED 15-11-2021 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. - Exhibit P4 TRUE COPY OF THE LETTER DATED 27-11-2021 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. - Exhibit P5 TRUE COPY OF THE LETTER DATED 20-01-2022 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT - Exhibit P6 TRUE COPY OF THE LETTER DATED 29-01-2022 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT - Exhibit P7 TRUE COPY OF THE LETTER DATED 31-01-2022 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER - Exhibit P8 TRUE COPY OF THE EMAIL SENT BY THE PETITIONER TO THE 2ND RESPONDENT ON 3101-2022 Exhibit P9 TRUE COPY OF THE LETTER DATED 01-02-2022 SUBMITTED BY THE PETITIONER. W.P.(C).No.13738 of 2022 15 Exhibit P10 TRUE COPY OF THE EMAIL SENT ON 01-022022 BY THE PETITIONER TO THE 2ND RESPONDENT Exhibit P11 TRUE COPY OF THE EMAIL DATED 01-02-2022 SENT BY THE 2ND RESPONDENT TO THE PETITIONER Exhibit P12 TRUE COPY OF THE EMAIL DATED 01-02-2022 SENT BY THE PETITIONER IN REPLY TO EXT P11 RESPONDENT EXHIBITS Exhibit R3(A) TRUE COPY OF THE LETTER DATED 28-09-2021 SUBMITTED BY THE PETITIONER. Exhibit R3(B) TRUE COPY OF THE LETTER DATED 30-09-2021 SUBMITTED BY THE PETITIONER. Exhibit R3(C) TRUE COPY OF MEMO DATED 14-10-2021 ISSUED BY THE 4TH RESPONDENT. Exhibit R3(D) TRUE COPY OF THE LETTER DATED 21-10-2021 SUBMITTED BY THE PETITIONER. Exhibit R3(E) TRUE COPY OF THE LETTER DATED 28-10-2021 SUBMITTED BY THE PETITIONER. Exhibit R3(F) TRUE COPY OF THE LETTER DATED 15-11-2021 ISSUED BY THE 1ST RESPONDENT. Exhibit R3(G) TRUE COPY OF THE LETTER DATED 27-11-2021 ISSUED BY THE 4TH RESPONDENT. Exhibit R3(H) TRUE COPY OF THE LETTER DATED 14-12-2021 ISSUED BY THE 4TH RESPONDENT. W.P.(C).No.13738 of 2022 16 Exhibit R3(I) TRUE COPY OF THE LETTER DATED 20-1-2022 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. Exhibit R3(J) TRUE COPY OF THE LETTER DATED 29-01-2022 SUBMITTED BY THE PETITIONER. Exhibit R3(K) TRUE COPY OF THE LETTER DATED 31-1-2022 ISSUED BY THE 5TH RESPONDENT. RESPONDENT EXHIBITS Exhibit R3(L) TRUE COPY OF THE LETTER DATED 1-2-2022 SUBMITTED BY THE PETITIONER. RESPONDENT EXHIBITS Exhibit R3(M) TRUE COPY OF THE LETTER DATED 15-2-2022 SUBMITTED BY THE PETITIONER. PETITIONER EXHIBITS Exhibit P13 TRUE COPY OF THE SCREENSHOT OF THE WEBSITE OF THE FIRST RESPONDENT Exhibit P14 TRUE COPY OF THE RELEVANT PAGES OF THE MEMORANDUM OF ASSOCIATION OF THE 1ST RESPONDENT Exhibit P15 TRUE COPY OF THE RELEVANT PAGES OF THE ARTICLES OF ASSOCIATION OF THE 1ST RESPONDENT AS AMENDED UP TO 12/12/2017 Exhibit P16 TRUE COPY OF THE LETTER DATED 05/06/2020 ISSUED BY THE MINISTRY OF COMMERCE TO THE CHAIRMAN OF THE 1ST RESPONDENT 17 ## W.P.(C).No.13738 of 2022 Exhibit P17 TRUE COPY OF THE MEMORANDUM DATED 28/07/2011 ISSUED BY THE 1ST RESPONDENT AS PER WHICH THE 6TH PAY COMMISSION PAY SCALE WAS MADE APPLICABLE TO ITS PERMANENT EMPLOYEES Exhibit P18 TRUE COPY OF THE RELEVANT PAGES OF THE SERVICE MANUAL OF THE 1ST RESPONDENT True copy PS to Judge