K. Unnikrishnan Nair v. Kerala State Road Transport Corporation

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 10TH DAY OF JUNE 2019 / 20TH JYAISHTA, 1941** ## **WA.No. 1404 of 2015** **AGAINST THE ORDER/JUDGMENT IN WPC 27612/2007 of HIGH COURT OF KERALA DATED 08-10-2013** ## **APPELLANT/PETITIONER:** **K.UNNIKRISHNAN NAIR ASSISTANT DEPOT ENGINEER (UNDER SUSPENSION), KERALA STATE ROAD TRANASPORT CORPORATION, KALLARICKAL THAZHATHU HOUSE, KADAPPATTOOR PO, PALAI, KOTTAYAM DIST.** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SRI.C.DINESH SRI.G.RENJITH SMT.ASHA BABU SMT.JINNU SARA GEORGE** ## **RESPONDENTS/RESPONDENTS:** - **1 THE KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHPURAM - 695 001, REPRESENTED BY ITS MANAGING DIRECTOR.** **2 THE ASSISTANT TRANSPORT OFFICER, THE KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM - 695 001.** ## **OTHER PRESENT:** **SRI.T.P.SAJAN-SC** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03.06.2019, THE COURT ON 10.06.2019 PASSED THE FOLLOWING:** _W.A. No.1404 of 2015_ 2 ## **JUDGMENT** ## Ashok Menon, J. The petitioner in W.P.(C) 27612/2007 aggrieved by the dismissal of the Writ Petition vide impugned judgment dated 08.10.2013 of the learned single Judge, is before us in appeal. 2. The facts in brief are thus: The appellant was working as Assistant Depot Engineer in the service of the 1[st] respondent-KSRTC. Disciplinary proceedings were initiated against him twice, for unauthorised absence, first on 05.05.1991 when he failed to attend an important discussion on 06.05.1991, for which he was deputed. That unauthorised absence resulted in his suspension, followed by disciplinary action which ended in barring of increment for a period of six months with cumulative effect vide Ext.P5. He was reinstated and directed to join duty. 3. The appellant failed to join duty and absented himself from 09.10.1991 to 17.12.1991. Consequent to that, a second disciplinary action was initiated, culminating in dismissal from service as per Ext.P8. _W.A. No.1404 of 2015_ 3 4. The appellant immediately challenged the order in appeal and also filed a claim petition before the Labour Court, Kollam for subsistence allowance. He also approached this Court by filing W.P.(C) No.4854/2007, which was disposed of by this Court directing Ext.P9 appeal filed by him to be considered within a time frame. 5. The appellate authority confirmed the order finding the appellant guilty of the charges framed against him, but the punishment of removal from service was modified as compulsory retirement with effect from 09.10.1991 vide Ext.P12 order. That was challenged by the petitioner in the Writ Petition, which ended dismissal of the writ vide the impugned Judgment. 6. The first ground on which the petitioner challenged the impugned Ext.P12 order of compulsory retirement was that the reinstatement order directing him to join service at Mavelikkara on 09.10.1991 was never served on him, and hence, he was not aware of such order. The next ground raised by the petitioner was that the Executive Director did not have the power to impose the punishment and that the Chairman and _W.A. No.1404 of 2015_ 4 Managing Director alone has the power to impose the punishment of either removal from service or compulsory retirement. 7. We heard the learned Senior Counsel Sri.K.Ramakumar for the petitioner and the Standing Counsel for the KSRTC. 8. The proceedings indicate that the petitioner was earlier posted at Kottayam, and he had requested for a modification of the order vide a representation made by him on 16.09.1991, seeking a posting at either Pala or Erattupetta instead of Kottayam. It was in consideration of his request that the order was modified by giving him a posting at Erattupetta, which was again modified to Mavelikkara. It is also seen that the order of reinstatement was served on the petitioner under certificate of posting, and it was consequent to which that he had made the representation. He cannot, therefore, pretend to be ignorant of the order of reinstatement. That apart, the petitioner had also collected the subsistence allowance personally during the months of May to July 1991. Apparently, he did not thereafter approach for _W.A. No.1404 of 2015_ 5 subsistence allowance, because of the reinstatement. Ext.P5 order imposing the punishment of barring of increment was served on the petitioner while he was absent from duty. 9. It is taking into consideration all these facts that the learned Single Judge arrived at the conclusion that the petitioner was duly served with the order of reinstatement and could not have refrained from duty pretending to be ignorant of the reinstatement order. The Labour Court too concluded that the petitioner was in receipt of the order of reinstatement and had made a request for change in the place of posting. There is also an admission made in the proceedings before the Labour Court about the petitioner being aware of the order of reinstatement and posting at Kottayam. 10. On due consideration of all these facts and circumstances, we are in agreement with the finding of the learned Single Judge that the petitioner had, despite being aware of his reinstatement, failed to join duty at Mavelikkara and was guilty of unauthorised absence. _W.A. No.1404 of 2015_ 6 11. The challenge of the authority of the Executive Director (Vigilance) is also not sustainable in view of the fact that Executive Director is the disciplinary authority as well as appointing authority vested with powers under Rule 11 of the Kerala Civil Services Rules, with respect to all officials in the KSRTC, other than higher division officers. We do not find any merit in the contention raised by the appellant in this regard. 12. The learned Senior Counsel appearing for the petitioner points out that the punishment imposed on the appellant is grossly disproportionate to his misconduct, and therefore, the doctrine of proportionality has to be invoked by interfering with the findings of the appellate authority. In _**Coimbatore**_ ## _**District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Association and another, (2007) 4 SCC 669**_ , it is held as thus:- ## _“DOCTRINE OF PROPORTIONALITY_ _17. So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived at in our legal system but has come to stay. With the rapid growth of Administrative Law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by Courts. If an action taken by any authority is contrary to law, improper, unreasonable,_ _W.A. No.1404 of 2015_ 7 _irrational or otherwise unreasonable, a Court of Law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the 'doctrine of proportionality'._ _18. 'Proportionality' is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise - the elaboration of a rule of permissible priorities.”_ ## In _**State of Madhya Pradesh v. Hazarilal, (2008) 3 SCC**_ ## _**273**_ , it is held as thus: _“8. An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly. Respondent occupied the lowest rank of the cadre. He was merely a contingency peon. Continuation of his service in the department would not bring a bad name to the State. He was not convicted for any act involving moral turpitude. He was not punished for any heinous offence.”_ 13. The learned Senior Counsel appearing for the appellant also relies on the decision of the Honourable Supreme Court in _**S.Sreesanth v. Board of Control for**_ _**Cricket in India, (2019) 4 SCC 667**_ , wherein, considering the scope of judicial review it was held that constitutional court in exercise of jurisdiction of judicial review of disciplinary proceedings conducted in the Code of Conduct framed by the BCCI will interfere only when the conclusion of the disciplinary proceedings is perverse and based on no evidence. _W.A. No.1404 of 2015_ 8 14. Considering the facts and circumstances in this case, we find that punishment of compulsory retirement was not commensurate with the misdemeanor of unauthorised absence by the appellant, though repeatedly. The order of the appellate authority at Ext.P12 therefore needs to be interfered with. Considering the nature of the default committed by the appellant, we are of the considered view that barring of two increments with cumulative effect for a period of one year would suffice. The appeal is allowed to that extent. No costs. ## **Sd/-** ## **V.CHITAMBARESH** ## **JUDGE** ## **Sd/-** ## **ASHOK MENON** _dkr_ **JUDGE**