Jayamohan B. v. Kerala State Coir Corporation Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 15TH DAY OF OCTOBER 2019 / 23RD ASWINA, 1941** ## **WP(C).No.3446 OF 2019(E)** ## **PETITIONER/S:** **JAYAMOHAN.B., AGED 44 YEARS JAYA NIVAS, NEAR KALAPPURA TEMPLE, KALAPPURA WARD, ARATTUVAZHI PO, ALAPPUZHA - 688 007** **BY ADVS. SRI.P.RAMAKRISHNAN SMT.PREETHI RAMAKRISHNAN (P-212) SRI.T.C.KRISHNA SRI.C.ANIL KUMAR SMT.ASHA K.SHENOY SRI.PRATAP ABRAHAM VARGHESE** ## **RESPONDENT/S:** **1 KERALA STATE COIR CORPORATION LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, PB NO. 191, VAZHICHERRY WARD, ALAPPUZHA - 688 001. 2 PERSONNEL MANAGER, KERALA STATE COIR CORPORATION LIMITED, PB NO. 191, VAZHICHERRY WARD, ALAPPUZHA - 688 001. 3 HANIZ I,SUPERCISOR GRADE I, KERALA STATE COIR CORPORATION LIMITED, PB NO. 191, VAZHICHERRY WARD, ALAPPUZHA - 688 001. R1-2 BY ADV. SRI.B.S.SYAMANTHAK R1-2 BY ADV. SMT.BINDUMOL JOSEPH R1-2 BY ADV. SHRI.SRIVIDYA K R1-2 BY ADV. SHRI.P.C.SASIDHARAN, SC, KERALA STATE COIR CORPORATION LTD.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.3446/2019 ## **JUDGMENT** The petitioner, who is working as Grade II Supervisor in the 1[st] respondent Corporation is aggrieved by the denial of promotion to him as Supervisor Grade I on the ground of pendency of vigilance enquiry and over the promotion granted to the 3[rd] respondent in his place. The petitioner claims that Ext.P3 is the Service Rules applicable to the respondents and that there is no provision enabling the respondents to withhold promotion during the pendency of vigilance enquiry. At the same time petitioner claims that 3[rd] respondent is granted promotion while a criminal case is pending against him. Petitioner claims that he is the senior-most qualified and eligible hand entitled to be promoted as Supervisor Grade I with effect from the date of promotion of 3[rd] respondent. 2. Respondents have filed a counter affidavit stating that the petitioner was imposed a penalty as per Ext.R1(b) order on 11.06.2015 after conducting an W.P.(C) No.3446/2019 **==> picture [19 x 8] intentionally omitted <==** enquiry pursuant to Ext.R1(a) memo of charges and a punishment of recovery from his pay of one-third of the amount of loss to the tune of Rs.81,86,890/- sustained by the Corporation has been awarded to him. It is also stated that a vigilance enquiry is pending against him. 3. The petitioner points out that as per Ext.P1 order dated 25.10.2018 he was denied promotion while granting promotion to the 3[rd] respondent, on the ground that vigilance enquiry was pending against him and the question regarding revision of promotion granted to the 3[rd] respondent would be considered by the management as and when the vigilance enquiry is finalized. The petitioner has also pointed out that Ext.R3(b) order imposing penalty on him is already challenged before this Court in WP(C) No.19777 of 2015 in which the order relating to recovery has already been stayed. Ext.P3 Service Rules only provides for the different categories of staff under general conditions of service. It further provides for the qualification, method of appointment etc for the respective posts. W.P.(C) No.3446/2019 :4: Clause 3 provides that all appointments shall be made on the terms and conditions prescribed in the Rules Ext.P3 and such other decisions as may be taken by the Board subject to the provisions of the Articles and Memorandum of Association and consistent with the rules issued from time to time. 4. Ext.P1 would show that the petitioner was eligible for promotion and he was superseded on the ground of vigilance enquiry. The learned counsel for the petitioner points out that in the absence of any provision in the Service Rules which stands in the way of his promotion, promotion granted to the 3[rd] respondent superseding him is illegal. 5. At the same time, the learned Standing Counsel Sri.P.C.Sasidharan submits that the petitioner does not have any fundamental right for promotion, especially when he is facing a vigilance enquiry and suffering a punishment of recovery of a very huge amount. The learned Standing Counsel also relied on the judgment of the apex court in _**C.O.Arumugham and others vs. State of**_ W.P.(C) No.3446/2019 :5: _**Tamil Nadu and others : 1991 Supp (2) SCC 199**_ in which the claim for promotion of a person who was facing disciplinary proceedings was considered and it was held that in order to avoid arbitrariness it would be better to follow certain uniform principles. 6. However in that case the apex court was considering the impact of rule 39(d) of Tamilnadu State and Subordinate Service Rules which provides that temporary promotion contemplated in rule 39(d) is to be made in public interest and promoting officers against whom a prima facie case of misconduct is made out will not be in public interest. No such provision is available in Ext.P1 service rules. No decision taken by the Board is also pointed out in the counter affidavit which prohibits appointment of those facing vigilance enquiry even though it is stated that in view of the vigilance enquiry the Board decided to supersede him. 7. In the absence of any general decision taken not to grant promotion to those who are facing disciplinary proceedings or any vigilance enquiry or investigation W.P.(C) No.3446/2019 :6: or undergoing punishment, I am of the view that the petitioner was entitled to be considered and promoted in preference to the 3[rd] respondent. The only ground for denying promotion to the petitioner stated in Ext.P1 is the pendency of vigilance enquiry. According to the petitioner even the investigation has not reached anywhere in that case and the said proceedings were initiated on the basis of private complaint. The respondents have chosen to grant promotion to the 3[rd] respondent who is an accused in a criminal case. 8. The respondents are not justified in adopting different yardsticks against each of its employees. At any rate it is admitted that even the provisions contained in KS&SSR are not applicable to the employees under the Corporation. Ext.P3 Special Rules do not prohibit promotions either during the pendency of vigilance enquiry or while undergoing punishment. Petitioner who is governed by Ext.P3 rules is entitled to be considered for promotion in preference to any qualified hand junior to him. Denial of consideration W.P.(C) No.3446/2019 **==> picture [19 x 8] intentionally omitted <==** for promotion to a qualified hand in the feeder category, while granting promotion to a person junior to him would be in gross violation of the fundamental rights of petitioner guaranteed under Article 14 and 16 of the Constitution of India. Therefore Ext.P1 order, which denies promotion to the petitioner on the ground of pendency of vigilance enquiry and granting promotion to the 3[rd] respondent are illegal and hence set aside. Respondents shall take appropriate action to consider the petitioner for promotion in preference to the 3[rd] respondent within a period of one month from the date of receipt of a copy of the judgment and to pass orders on promotion with effect from the date on which the 3[rd] respondent was promoted. The Writ Petition is disposed of accordingly. ## **Sd/-** ## **P.V.ASHA** ## **JUDGE** rkc ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF ORDER DATED 25/10/2018 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P2** **TRUE COPY OF ORDER DT.1/7/2015 IN WP(C) NO.19777/2015.** **EXHIBIT P3** **TRUE COPY OF SERVICE RULES OF THE 1ST RESPONDENT KERALA STATE COIR CORPORATION LIMITED.** **EXHIBIT P4 TRUE COPY OF FIR DATED 8/7/2016 LODGED AGAINST THE 3RD RESPONDENT.** **EXHIBIT P5** **TRUE COPY OF REPRESENTATION DATED 5/11/2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** RESPONDENTS' EXHIBITS EXT.R1A: TRUE COPY OF THE CHARGE MEMO DT.24.6.13 EXT.R1B: TRUE COPY OF THE PUNISHMENT ORDER DT.11.6.15 EXT.R1C: TRUE COPY OF THE DECISION OF THE BOARD OF DIRECTORS DT.22.12.18