K. Padmakumaran Nair v. Kerala State Film Development Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938** ## **WP(C).No. 3990 of 2008 (Y)** **--------------------------------------** **PETITIONER(S):** **-----------------------** **K. PADMAKUMARAN NAIR, EX.P.A.B.X. OPERATOR, KERALA STATE FILM DEVELOPMENT CORPORATION, THIRUVANANTHAPURAM, NOW RESIDING AT 'THIRUVATHIRA', MARIAPURAM P.O., UDIYANKULANGARA.** ## **BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR** **RESPONDENT(S):** **--------------------------** **1. THE KERALA STATE FILM DEVELOPMENT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, VAZHUTHACAUD, THIRUVANANTHAPURAM.** **2. MANAGING DIRECTOR,** - **KERALA STATE FILM DEVELOPMENT CORPORATION, VAZHUTHACAUD, THIRUVANANTHAPURAM.** **R1-R2 BY ADVS. SRI.JOSE JONES JOSEPH, SC** **SRI.A.SUDHI VASUDEVAN (SR.) SRI.A.ABDUL KHARIM SRI.P.GOPALAKRISHNAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-10-2016 THE COURT ON 26-10-2016, DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 3990 of 2008 (Y)** ## **---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** - **P1: TRUE COPY OF THE PROCEEDINGS NO.100/83/A2/029 DTD.16.5.2001 OF THE MANAGING DIRECTOR** - **P2: TRUE COPY OF THE MEMO OF CHARGE DTD.29.5.2001 ISSUED BY THE MANAGING DIRECTOR.** - **P3: TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER TO THE MEMO OF CHARGES.** - **P4: TRUE COPY OF THE PROCEEDINGS NO.100/83/A2/833, DTD.22.6.2001.** - **P5: TRUE COPY OF THE REPRESENTATION DTD.2.7.2001 SUBMITTED BY THE PETITIONER BEFORE THE MANAGING DIRECTOR.** - **P6: TRUE COPY OF THE LETTER NO.100/83/A2 DTD.5.7.2001 OF THE MANAGING DIRECTOR.** - **P7: TRUE COPY OF THE WITNESS SCHEDULE.** - **P8: TRUE COPY OF THE LETTER DTD.13.9.2001 OF THE ENQUIRY OFFICER.** - **P9: TRUE COPY OF THE PETITION DTD.17.9.2001 SUBMITTED BY THE PETITIONER BEFORE THE ENQUIRY OFFICER.** - **P10: TRUE COPY OF THE COMPLAINT NO.346/2001 FILED BEFORE THE LOK AYUKTA AGAINST THE MANAGING DIRECTOR.** - **P11: TRUE COPY OF THE JUDGMENT IN OP.NO.28555/2001 DTD.30.11.2001.** - **P12: TRUE COPY OF THE PETITION SEEKING THE EXAMINATION OF THE ADMINISTRATIVE OFFICER BEFORE THE ENQUIRY OFFICER.** - **P13: TRUE COPY OF THE ARGUMENT NOTE SUBMITTED ON BEHALF OF THE PETITIONER BEFORE THE ENQUIRY OFFICER.** - **P14: TRUE COPY OF THE LETTER NO.100/83/82/817 DTD.6.9.2002 FROM THE ADMINISTRATIVE OFFICER, FORWARDING A COPY OF THE ENQUIRY REPORT SUBMITTED BY ADV. SRI.S.SAJEEV.** - **P15: TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY ADV. SRI.S.SAJEEV.** **Msv/** **-2-** **-2-** **WP(C).No. 3990 of 2008 (Y) ----------------------------------------** - **P16: TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER TO THE ENQUIRY REPORT.** - **P17: TRUE COPY OF THE SHOW CAUSE NOTICE DTD.4.10.2002.** - **P18: TRUE COPY OF THE REPLY DTD.19.10.2002 SUBMITTED BY THE PETITIONER.** - **P19: TRUE COPY OF THE ORDER DTD.14.3.2003.** - **P20: TRUE COPY OF THE MEMORANDUM OF APPEAL.** - **P21: TRUE COPY OF THE ORDER NO.100/83/A,2/786 DTD.22.7.2003 OF THE MANAGING DIRECTOR.** - **P22: TRUE COPY OF THE JUDGMENT DTD.29.11.2006 OF THIS HON'BLE COURT IN WPC.NO.28727/2003.** - **P23: TRUE COPY OF THE PROCEEDINGS NO.KSFDC/100/83/ADMN. DTD.30.5.2007 ISSUED BY THE MANAGING DIRECTOR.** - **P24: TRUE COPY OF THE REVIEW PETITION DTD.4.8.2007 SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN, KERALA STATE FILM DEVELOPMENT CORPORATION.** - **P25: TRUE COPY OF THE PROCEEDINGS NO.KSFDC/100/83/ADMN./1230 DTD.10.9.2007 ISSUED BY THE 2ND RESPONDENT.** - **P26: TRUE COPY OF THE COMPLAINT NO.896/2016 FILED BY THE RESPONDENT/PETITIONER BEFORE THE HON'BLE KERALA LOK AYUKTA.** **RESPONDENT(S)' EXHIBITS:** **------------------------------------------** **EXT.R1(a): TRUE COPY OF THE MEMO DTD.27.7.1998 ISSUED BY THE STUDIO MANAGER OF THE 1ST RESPONDENT TO THE PETITIONER.** **EXT.R1(b): TRUE COPY OF THE MEMO DTD.18.12.1998 ISSUED BY THE STUDIO MANAGER OF THE 1ST RESPONDENT TO THE PETITIONER.** **EXT.R1(c): TRUE COPY OF THE PROCEEDINGS DTD.31.12.1988 ISSUED BY THE 2ND RESPONDENT AND THE CHAIRMAN OF THE 1ST RESPONDENT TO THE PETITIONER.** **Msv/** **-3-** **-3-** **WP(C).No. 3990 of 2008 (Y) ----------------------------------------** **EXT.R1(d): TRUE COPY OF THE MEMO DTD.21.8.2013 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.R1(e): TRUE COPY OF THE RELEVANT PAGE OF THE DISPATCH REGISTER MAINTAINED AT THE OFFICE OF THE 1ST RESPONDENT CONTAINING ENTRY NO. 697 RELATING TO THE ACKNOWLEDGMENT EVIDENCING RECEIPT OF EXT.P23. EXT.R1(f): TRUE COPY OF THE PROCEEDINGS DTD.21.5.2001 ISSUED BY THEN MANAGING DIRECTOR OF 1ST RESPONDENT.** **//TRUE COPY// P.S.TO JUDGE** ## **Msv/** ## **ANU SIVARAMAN, J.** = = = = = = = = = = = = = = = = = = = = = = = = = = **W.P.(C).No.3990 of 2008** = = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 26[th] day of October, 2016 ## JUDGMENT ## 1. The writ petition is filed seeking the following reliefs:- - i. issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P19, Ext.P23 to the extent holding the petitioner guilty and denying him all service benefits from 16.5.2001 and Ext.P25 and quash them. - ii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to reinstate the petitioner in service from 16.05.2001 with all consequential service benefits. - iii. declare that the whole disciplinary proceedings initiated against the petitioner is illegal, void and will not stand legal scrutiny.” 2.The petitioner who was working as EPABX Operator under the respondents was placed under suspension by Exhibit P1 proceedings of the 2[nd] respondent. Memo of charges were issued to which the petitioner submitted a reply. An advocate was appointed as Enquiry Officer. Since the petitioner objected the identity of the said advocate, the Enquiry Officer was changed. Thereafter, disregarding the petitioner's objection as regards the conduct of the enquiry, the enquiry was completed and an enquiry report was submitted finding W.P.(C).No.3990/08 2 the petitioner guilty, as charged. Though the petitioner had objected to the conduct of the Managing Director in acting as Prosecution Witness and disciplinary authority by preferring a writ petition before this Court, since the particular person had been transferred, the writ petition was closed by Exhibit P11 leaving open all the petitioner's contentions. The disciplinary proceedings culminated in Exhibit P19 order of dismissal against which Exhibit P20 appeal was filed, the appeal was rejected by the Board of Directors by Exhibit P21. Exhibits 19 and 21 were challenged by the petitioner before this Court again. By Exhibit P22, judgment of this Court, Exhibit P21 order in appeal was set aside and the Board of Directors was directed to consider Exhibit P20 appeal with notice to and after hearing the petitioner. Pursuant thereto, the petitioner was heard and Exhibit P23 order, confirming the finding of guilt against the petitioner but reinstating him in service, was issued on 30.05.2007. The period from 14.01.2003 to 30.05.2007 was treated as Leave Without Allowances. This is challenged in this writ petition. W.P.(C).No.3990/08 3 - 3.Heard Sri.Pirappancode V.S.Sudheer, learned counsel for the petitioner and Sri.Sudhi Vasudevan. A, the learned Senior Counsel appearing for the respondent Corporation. 4.The learned counsel for the petitioner took me through the entire factual aspects of the case and contended that the disciplinary proceedings were vitiated in toto by the action of the Managing Director in acting as disciplinary authority, witness and the person against whom the offence was alleged. The learned counsel placed reliance on the decisions of the Apex Court in **A.K.Kraipak v.Union of India** [AIR 1970 SC 150], **Arjun Chaubey v.Union of India** [(1984) 2 SCC 578] as well as **Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant** [(2001) 1 SCC 182] and **Mohd.Yunus Khan v. State of Uttar Pradesh** [(2010) 10 SCC 539]. It is contended that the Managing Director himself, who was alleged to have been abused by the petitioner had issued the memo of charges, considered the reply submitted by the petitioner and W.P.(C).No.3990/08 4 had appointed a person of his choice of Enquiry Officer ignoring the contention of the petitioner that only an officer of the Corporation could be appointed as Enquiry Officer in terms of the rules in force. It is further contended that, in the facts and circumstances of the case, the appeal preferred by the petitioner against the order of dismissal on various grounds referable to violation of principles of natural justice ought to have been considered on merits by the Board of Directors. By simply stating that the petitioner had been reinstated pursuant to his request and therefore, no further consideration is necessary, is violative of the directions contained in Exhibit P22 judgment, it is contended. The learned counsel would further contend that the dismissal ought to have been set aside and the petitioner should have been granted all the benefits of continuation with effect from the date of suspension. - 5.Per contra, it is contended by the learned Senior Counsel appearing for the respondents that the petitioner had W.P.(C).No.3990/08 5 challenged the disciplinary proceedings initiated against him pursuant to Exhibit P2 memo of charges, before this Court. The specific allegation therein was to the effect that the disciplinary proceedings initiated at the instance of the Managing Director was vitiated since the allegation was of assault against the Managing Director. It was therefore contended that the continuance of the proceedings by the Managing Director as disciplinary authority was vitiated. However, since there was change in incumbency in the post of Managing Director, the contentions against the disciplinary proceedings was given up by the petitioner, it is contended. Though contentions of the petitioner were left open by Exhibit P11 judgment, that could relate only to contentions regarding the allegations and findings in the enquiry and not with regard to the validity of the enquiry itself, it is urged. - 6.It is further contended that Exhibit P22, wherein Exhibit P19 order of termination and Exhibit P20 order in appeal were under challenge, was disposed of directing the consideration W.P.(C).No.3990/08 6 only of the appeal, on merits. It is therefore contended that all that survives for consideration before this Court at this distance of time is with regard to the legality or otherwise of Exhibit P23 order passed by the Board. With regard to Exhibit P23, it is contended that an extremely lenient view of the matter was taken by the Board in the light of the request made by the petitioner for reinstatement on the ground of terminal illness of his wife. It is contended that since the finding of guilt as against the petitioner was confirmed by the Board and reinstatement was ordered only as a measure of compassion, the order directing that the period of dismissal will be treated as Leave Without Allowance is perfectly justified. It is further stated that the petitioner having accepted the reinstatement in terms of Exhibit P23 cannot turn around and contend that the latter part of the order treating the period of dismissal as eligible leave is illegal. It is further contended that the discretion available to the authority was exercised by it and this Court can interfere in such exercise of power only if it is found be perverse, arbitrary or unreasonable. It is further W.P.(C).No.3990/08 7 contended that no review was filed against Exhibit P23 within the time prescribed by the Rules in force and this defeats the challenge against Exhibit P23. The learned counsel also relied on Exhibit R1(a) to R1(d) proceedings of the respondents to point out the antecedents of the petitioner did not justify the exercise of discretion in his favour. 7.The learned counsel for the petitioner brought to me **Mohd.Yunus Khan** (supra) in support of his contention that antecedents or prior conduct of an officer could not be relied upon in disciplinary proceedings into specific charges raised against him. 8.I have considered the contentions advanced on either side at considerable length. I am of the opinion that the only question that survives for consideration in this case is with regard to the order treating the period of dismissal of the petitioner as Leave Without Allowance. I notice that the Board had, by Exhibit P21 proceedings, dismissed Exhibit P20 appeal W.P.(C).No.3990/08 8 preferred by the petitioner against Exhibit P19 order of dismissal . The said order in appeal was set aside by this Court by Exhibit P22 judgment as having been passed in violation of the principles of natural justice. The Board of Directors was, therefore, directed to consider the appeal on merits. In Exhibit P22 appeal, the petitioner had clearly raised contentions with regard to the validity of the proceedings taken against him by the very person who had raised the allegations against him. His clear contention is as to the irregularity in the appointment of the Enquiry Officer, the lack of proper opportunity to defend himself and the nonconsideration of his contentions with specific reference to the findings in the enquiry report etc. were raised by him in the appeal. However, it appears from Exhibit P23 that by the time the appeal was taken up for hearing, the petitioner sought reinstatement on grounds of terminal illness of his wife. This was accepted and he was reinstated. However, this did not absolve the Board of its liability to consider Exhibit P20 appeal on its merits as directed by this Court in Exhibit P22 W.P.(C).No.3990/08 9 judgment. The legality or otherwise of the imposition of the ultimate penalty of dismissal on the petitioner should have been examined by the Board in the light of the specific pleas raised by the petitioner in Exhibit P20 appeal. Such an exercise was never undertaken. In that view of the matter, the exercise of discretion by the Board in the matter of treating the period of dismissal of the petitioner was informed by practically no reason at all. Unless the legality of the order of dismissal is considered by the Board, the Board could not have exercised its informed discretion in the matter of treating of the period of dismissal. I am satisfied that Exhibit P23 proceedings, to the extent it proceeds on the basis that the petitioner is guilty as charged without considering his appeal on merits is bad in law, since it goes against the specific directions contained in Exhibit P22 judgment. 9.In the result, Exhibits P23 and P25 are set aside. The Board of Directors of the respondent company is directed to take Exhibit P20 appeal and to pass orders thereon on merits in W.P.(C).No.3990/08 10 accordance with law. This will be without prejudice to the reinstatement already ordered by the Board on compassionate grounds. After examination of the appeal on merits, the question of treating the period of dismissal of the petitioner shall also be taken up and orders passed thereon along with the order on the appeal. Orders as directed above shall be issued within a period of two months from the date of receipt of a copy of this judgment. This writ petition is disposed of as above. sd/- **Anu Sivaraman, Judge** sj