K.A. SANTHOSH KUMAR v. THE STATE OF KERALA & OTHERS

**WP(C).No.23372 OF 2019(V)** 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 07TH DAY OF JANUARY 2020 / 17TH POUSHA, 1941** ## **WP(C).No.23372 OF 2019(V)** ## **PETITIONER/S:** **K.A.SANTHOSH KUMAR AGED 53 YEARS S/O SHRI K.AMBUJAKSHAN,MYNAKAM, 36B,VAIDYASALA NAGAR,ASHRAMAM, KOLLAM DISTRICT.** **BY ADVS. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.P.M.MAZNA MANSOOR** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.** - **2 THE STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY,INDUSTRIES AND COMMERCE,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.** - * **3 ADDL.3 KERALA INDUSTRIAL INFRASTRUCTURE DEVELOPMENT CORPORATION(KINFRA) SASTHAMANGALAM, THIRUVANANTHAPURAM-695 010. REPRESENTED BY ITS MANAGING DIRECTOR.** - * **4 ADDL.R4. SANTHOSH KOSHY THOMAS, AGED 52 YEARS, S/O.T.P.THOMAS, MANAGING DIRECTOR, KERALA INDUSTRIAL INFRASTRUCTURE DEVELOPMENT CORPORATION(KINFRA), SASTHAMANGALAM, THIRUVANANTHAPURAM, RESIDING AT 'VNRA 11,TC 3/458(1), OPP.KAIRALI NAGAR, T.K.DIVAKARAN ROAD, MUTTADA.P.O, KOWDIAR VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT, KERALA STATE, PIN-695 025.** ## **ADDL.R3 AND R4 IMPLEADED AS PER ORDER DATED** **WP(C).No.23372 OF 2019(V)** 2 ## **25.10.2019 IN IA NO.1/19 IN W.P.(C) 23372/19.** **R1-2 BY GOVERNMENT PLEADER R3 BY ADV. P.U.SHAILAJAN R4 BY ADV. SRI.P.U.SHAILAJAN** ## **OTHER PRESENT:** ## **SPL GP TO AG,SMT.M.R.SREELATHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.12.2019, THE COURT ON 07.01.2020 DELIVERED THE FOLLOWING:** W.P.(C) No.23372/2019 ## **P.V.ASHA, J.** **-------------------------W.P.(C) No.23372 of 2019 --------------------------Dated this the 7[th] day of January, 2020** ## **JUDGMENT** The petitioner, who was the Managing Director of KINFRA- the addl.3[rd] respondent- is aggrieved by Ext.P10 order by which his services were terminated giving full additional charge of KINFRA to the addl. 4[th] respondent. 2. Government had as per Ext.P2 notification invited online applications for appointment as Managing Directors in the sectors Chemical, General Engineering, Electrical Equipment, Textiles, Electronics, Ceramics&Refractories, Mineral Exploration, Wood Based, Development&Infrastructure and Traditional & Welfare in Public Sector Undertakings. The qualification prescribed were as follows: _1. The candidate should have graduation in Engineering/Equivalent or Post Graduation n Business Administration with good academic record from a recongnised University/Institution 2. He/She should have at least 15 years post qualification experience of which 5 years has to be at senior levels with independent charge of a reputed organisation or a division of a large company. 3. Applicants familiar with Finance, Marketing and production functions of companies in the respective_ W.P.(C) No.23372/2019 **==> picture [19 x 8] intentionally omitted <==** _sectors will have an added advantage._ 3. Petitioner submits that being a Post Graduate in Engineering from IIT, Bombay with MBA and 22 years of service in the Indian Air Force in the Engineering branch and 7 years of corporate experience in HCL Infosystems as Project Director and as Senior Vice President in the Maharashtra Border Check Post Network Ltd., he submitted application. On being successful in the interview held on 27.08.2016, he was ranked 2 in Ext.P3 select list in the sector 'Development and Infrastructure'. The additional 4[th] respondent was ranked 2 in the sector TRACO Cable Company Limited. Petitioner was appointed as Managing Director of KINFRA as per Ext.P4 order dated 04.10.2016. He points out that the appointment of Managing Directors were made from Ext.P3 select list, in various sectors as per Ext.P5 list. Petitioner was appointed as Managing Director of KINFRA, as per Ext.P4 order, under section 6 of Chapter III of Act 3 of 1993-the Kerala Industrial Infrastructure Development Corporation Act. W.P.(C) No.23372/2019 **==> picture [19 x 8] intentionally omitted <==** It was ordered that his continuance in the post would be subject to the clearance from the Director of Vigilance and Anti Corruption Bureau and that the terms and conditions of the appointment would be fixed later. Petitioner points out that as per Ext.P6(a) letter dated 08.10.2016 he had requested the Government to fix the terms and conditions of his appointment, in order to enable him to resign from the organisation where he was working. It was stated that he was allowed to join duty only on 03.04.2017. It is stated that after his repeated requests to fix the terms and conditions of service, Government issued Ext.P8 order on 01.08.2018, according sanction to fix his pay at Rs.1.75 lakhs per month as consolidated remuneration along with perks. The petitioner submits that he joined the post under the bonafide impression and legitimate expectation that he would be able to continue at least for a period of 3 years, in the light of Ext.P7 letter dated 07.10.2006. But by Ext.P10 order the 1[st] respondent without any reason terminated his appointment on 25.07.2019. According to him he is made a scapegoat since he worked ## W.P.(C) No.23372/2019 :6: for the implementation of various mega projects that were of prime interest to the Government. He has pointed out 17 projects in which he was involved. He points out that his performance for 2017-18 was appreciated in Ext.P9 minutes of the meeting of the Board of KINFRA held on 31.05.2018 comparing it to the revenue generated in the previous year, referring to the execution of projects worth Rs.80.95 crores during the year 2017-18 as against Rs.45.53 crores for the year 2016-17, taking note of the improvement in the activities of KINFRA with respect to the Projects, Land Allotment, revenue generation, etc. It was also pointed out that foundation stones laid for various projects during 2017 were nearing completion and commissioning. It was stated that Mega Food Park at Palakkad, Defence Park at Ottapalam, Standard Design Factory at KINFRA Film and Video Park at Thiruvananthapuram and Kinfra Standard Design Factory at Koratty Park were some of the projects which were ready for commissioning. Apart from that he stated that about 5600 acres of land at different locations could be acquired and the W.P.(C) No.23372/2019 **==> picture [19 x 8] intentionally omitted <==** proceedings for acquisition were at different stages. He pointed out that the claim towards acquisition of 77.78 acres of land at Ramanattukara, was referred for mediation; but none of the officials who were dealing with the matter informed him the fact that the Senior Government Pleader who represented the Government in the acquisition matters and the counsel who appeared for the claimants were husband and wife. It is stated that on coming to know about this he had issued memo dated 14.03.2019 directing the officials to show cause why they concealed information regarding the conflict of interest. He pointed out that the concerned official in the office of the KINFRA who concealed the aspect from him is very influential and that the order of termination is issued at that stage under his political influence. 4. The petitioner pointed out that as per Rule 3 of the Kerala Industrial Infrastructure Rules, 2008 ('the Rules' for short) Government has to fix the terms of office of the Managing Director of the Corporation and it has to be stated in the order of appointment. It ## W.P.(C) No.23372/2019 **==> picture [19 x 8] intentionally omitted <==** is also his case that three months' notice is an implied condition for termination as in the case of resignation from the post and therefore his services were not liable to be terminated except after giving three months' notice, in accordance with Rule 8; contrary to the rules, Ext.P10 order was issued fixing his term of appointment upto 25.07.2019, the date of the order Ext.P10, simultaneously terminating his appointment, without any reason and in gross violation of the principles of natural justice. Pointing out Ext.P11 news item appeared in Times of India, regarding his termination, petitioner points out the serious damage caused to his reputation, giving way to speculations by the media that he is involved in illicit activities. According to him he was not liable to be sent out unceremoniously. 5. In the counter affidavit, respondents 1 and 2 stated that there is no specific tenure fixed for a Managing Director of KINFRA and that as per Section 6 of the Kerala Industrial Infrastructure Development Act, 1993 ('the Act' for short) which deals with the W.P.(C) No.23372/2019 :9: term of office of Managing Directors and conditions of services of nominated Director, the Managing Director of the Corporation shall hold office for such term as the Government may specify in this behalf. The Directors shall be entitled to draw allowances as prescribed under the Rules made under the Act. Under Rule 3 of the Kerala Industrial Infrastructure Development Rules, 2008 the Directors nominated by the Government under sub section 2 of Section 5 shall ordinarily hold office for a term of 2 years. However, the Government shall have the power to remove such Directors before the expiry of the said term, if found necessary. The term of office of the Managing Director of the Corporation shall be as fixed by the Government in the order of appointment. However, the Government may, at any time terminate the services of such Managing Director without assigning any reason. Therefore, it is stated that it was upto the Government to fix the term and even if term is fixed, to order termination even before its expiry, as per the rules as well as Ext.R1(c) order issued by the Government on W.P.(C) No.23372/2019 **==> picture [25 x 8] intentionally omitted <==** 20.05.2009. Therefore, according to the respondents, the petitioner who joined as Managing Director after accepting the terms and conditions, cannot be heard to raise any contention relating to completion of any term or about any requirement of notice before termination. According to Government, Ext.P7 order issued in the year 2006 does not have any force or relevance in respect of any term of appointment. It is stated that the term of appointment of petitioner was fixed in Ext.P10 order upto 25.07.2019 and his services were terminated on that day. According to them there is no deviation from the practice in KINFRA and the manner of appointment was the same in the case of Sri.Gopala Pillai who was relieved on 07.06.2006 as per Ext.R1(f) order. It is stated that being the Managing Director the petitioner was aware of the negotiations going on with respect to the LAA cases of Ramanattukara and he himself had authorised the officials to attend the mediation. It is stated that the Vigilance Department of the Government has as per Ext.R1(i) letter dated 06.08.2019, already directed a vigilance W.P.(C) No.23372/2019 **==> picture [25 x 8] intentionally omitted <==** enquiry into the loss caused to KINFRA due to lapses in conducting the case against Zoom Developers Pvt. Ltd., in respect of resumption of land leased to it. It is stated that orders of termination are effected in other PSUs also, as done in Ext.R1(j) order dated 18.02.2019. According to them, the termination is effected in accordance with Section 6 of the Act and Managing Director of a PSU has to hold office at the pleasure of Government and the Government shall have the right to remove him at any time. It is stated that the additional 4[th] respondent is fully qualified to be appointed as the Managing Director. 6. In the reply affidavit petitioner has produced a series of documents stating that the term of appointment of Sri.Gopala Pillai was for a period of 3 years initially on 13.4.1994; it was extended for another 3 years in 1997 and another 3 years in 2000 and thereafter in 2003 and he was relieved at his request w.e.f 04.07.2005 as per Ext.P12 series and Ext.P13. He has also produced Ext.P15 order relating to the appointment of another M.D in the year 2011 and his W.P.(C) No.23372/2019 **==> picture [25 x 8] intentionally omitted <==** extension in 2014 pointing out that the tenure of those appointments were for 3 years and that there is no reason for adopting a different yardstick in his case. According to him after illegally terminating his appointment, the respondents have given full additional charge to additional 4[th] respondent who does not have any qualification for the same, that too after the select list was cancelled. According to the petitioner if at all he was to be replaced appointment ought to have been made as ordered in Ext.P18. 7. In the additional counter affidavit, respondents 1 and 2 stated that the term fixed in the case of others in 1994, 1997, etc as the Managing Director cannot be treated as a precedent, because of the advancement in the sector of industrial and infrastructure in tune with the global developments in various aspects like economy, population, etc. It is further stated that the additional 4[th] respondent who was appointed in his place is having all the requisite qualifications and he had submitted Ext.R1(i) application for the sectors Development&Infrastructural Agencies, Engineering and Electrical Equipment and Electronics. At the same time it is stated that in Ext.R1(k) application W.P.(C) No.23372/2019 **==> picture [25 x 8] intentionally omitted <==** submitted by the petitioner his preference was only for the sectors of Engineering, and Electrical Equipment and Electronics. Relying on Ext.R1(m) attendance sheet for the interview held on 07.09.2016, it is stated that the petitioner had not applied for the industrial sector whereas Mr.Santhosh Koshy Thomas had applied for it. According to the respondents a selection process as per Ext.P18 G.O on 26.05.2018 was not necessary when qualified hands were available for appointments. It is further stated that there is a practice of appointing Managing Director of one PSU as the Managing Director of another PSU as the selection was on the basis of a single process and the additional 4[th] respondent was found eligible and competent to be the Managing Director of PSU. According to them petitioner deviated from his duty as Managing Director in dealing with the case pending before the Madhyapradesh High Court in respect of resumption of land from M/s.Zoom Developers and he failed to safeguard the interest of KINFRA. 8. Additional respondent nos.3 and 4 have filed separate counter affidavits stating that petitioner did not even submit application for appointment in the sector Development&Infrastructure whereas the 4[th] respondent had W.P.(C) No.23372/2019 **==> picture [25 x 8] intentionally omitted <==** applied for the same. According to them it is not necessary to assign reasons or issue notice before termination of the appointment of petitioner. According to them the works which the petitioner claimed to have completed or were nearing completion, were already completed even before he took charge. It is stated that the litigation before the MadhyaPradesh High Court against M/s.Zoom Developers started during the tenure of petitioner and it resulted in adverse orders against KINFRA since petitioner did not take any steps to safeguard its interest. 9. The additional respondent No.4 in his counter affidavit, explaining his qualifications, stated that he is fully qualified to be appointed as the Managing Director of KINFRA. He was given additional charge of the KINFRA while terminating the appointment of the petitioner and that appointment was to a sector for which he had submitted application whereas there was no application from the petitioner for appointment in that sector. He was initially appointed as the Managing Director of TRACO Cables Company under the Electrical Equipment category. It is stated that he worked in senior management level as Director, Executive Director etc. during the last 20 years before his appointment as Managing Director. W.P.(C) No.23372/2019 **==> picture [25 x 8] intentionally omitted <==** 10. The petitioner filed reply affidavits to the counter affidavits of all the respondents. He stated that even if no reason is to be assigned while terminating the services, reasons should be available in the files leading to the termination. He stated that the notes furnished along with Ext.P20 letter dated 17.09.2019 of the State Public Information Officer do not reveal any reason for termination of his service; on the other hand it would appear that there was no reason at all as evident from the noting of the Principal Secretary that due process for removal was not followed as per the principles of natural justice. According to the petitioner he was relieved at the instance of the Private Secretary to the Minister of Industries Department. It was also pointed out that the information relating to the appearance of the concerned Government Pleader in the land acquisition cases who represented the state when his wife was the Counsel appearing for the claimants, was not brought to his notice by the official of KINFRA who was dealing with the matter; it is stated that he had already issued memos to that official for not furnishing the relevant information. He also stated that the lease of land to M/s.Zoom Developers and its resumption in 2016 took place prior to his joining W.P.(C) No.23372/2019 **==> picture [25 x 8] intentionally omitted <==** as the Managing Director. It was also stated that he acted on the advice of the standing counsel of KINFRA. Petitioner also produced Exts.P21 to P24 pointing out that his appointment as the Managing Director in KINFRA was on the basis of his performance in the interview whereas the application of the 4[th] respondent in the Development&Infrastructure sector was rejected and no other person was selected for KINFRA. He also pointed out that Government have appointed Managing Directors in various Public Sector Undertakings from the select list prepared by the Public Enterprises Selection Board and the method of selection has been modified in 2019 and therefore the 4[th] respondent is not a person who is selected in accordance with rules for appointment as the Managing Director of KINFRA. 11. Heard Sri. Vinod Madhavan, the learned Counsel for the petitioner, Mrs. M.R.Sreeletha, the learned Special Government Pleader for respondents 1 and 2 and Sri.Shylajan for the additional respondents 3 and 4. 12. The main contention of the petitioner is that he was entitled to continue as the Managing Director for a period of three years, in the light of Ext.P7 order and that termination of his appointment before he completed his W.P.(C) No.23372/2019 :17: tenure is unsustainable. But a perusal of the order of his appointment would show that no tenure is provided in it. Under Section 6 of the KINFRA Act (Ext.R1(a))the Managing Director of the Corporation shall be appointed by the Government and he shall hold office for such term as the Government may specify. Even though the petitioner had requested to fix the terms and conditions of his appointment as per Ext.P6 and Ext.P6(a) letters on 07.10.2016 and 08.10.2016, it was only as per Ext.P8 order that the Government responded to that, that too according sanction only for fixing his monthly remuneration at Rs.1.75 lakhs. Nothing was stated regarding the term of appointment till Ext.P10 order was issued on 25.07.2019, fixing the term of his appointment upto 25.07.2019 and consequently terminating his appointment as Director from the Board of Directors, under section 6(2) of the Act. Rule 4 deals with the appointment and term of office of Managing Director and conditions of service of the nominated directors. Though the qualification, experience etc required for appointment are provided therein nothing is provided in the rules also regarding the term of the Managing Director. Therefore, there is no basis for the contention that petitioner is entitled to continue as W.P.(C) No.23372/2019 :18: Managing Director either for a period of 3 years or for any particular period. The contention that 3 months' notice is necessary for any termination as in the case of resignation, which is governed by Rule 8 is also baseless. 13. Ext.R1(c) Government order issued on 20.05.2009 provides for the pay structure as well as the general conditions of appointment of Chief Executive officers of the PSUs. Clause 3 thereof provides that “appointment as MD/CEO of a Company/PSU shall be at the pleasure of the Government. Government shall have the right to remove him from the post at any time (although the order of appointment will indicate a fixed term for such appointment). If a person who holds the lien as employee in a company is appointed as CEO of a company and is later removed from the post of CEO he shall go back to the post where he holds such lien (unless he has crossed the age of superannuation in the parent company). A person who does not have any lien in any company shall not have any right to continue in any of the PSUs. Annexure to this Government order classifies the PSUs under various categories. KINFRA – Kerala Industrial Infrastructure Development Corporation is included in Annexure-II at serial no.5 of schedule A. Therefore the petitioner was to hold office at the pleasure W.P.(C) No.23372/2019 **==> picture [25 x 8] intentionally omitted <==** of Government. As long as the provisions in the Act or Rules or even Ext.R1(c) order does not fix any fixed term for a Managing Director, the contention of the petitioner in the light of the tenure of the former Managing Directors that he is entitled to continue at least for a period of three years, is without any basis. Even where a tenure is provided in the orders of appointment it is specifically stated in the Government order Ext.R1(c) that the Government shall have the right to remove the MD/CEO and his appointment shall be at the pleasure of the Government. Therefore even if the order appointing the petitioner provided for a particular period like 3 years or more on his appointment, it was always open to the Government to terminate his appointment before expiry of the said period. Therefore the orders Exts.P12 to P16 would not be of any help to the petitioner. The fact that appointments were used to be made to the post of MD in the KINFRA for three years each or that further extensions were granted to those appointments would not be sufficient to hold that there is a minimum tenure for the appointment. 14. The next question is whether the Government should have stated any reason while terminating the appointment of the petitioner or at any rate the reasons should have been W.P.(C) No.23372/2019 **==> picture [25 x 8] intentionally omitted <==** stated in the files. When no term is fixed for the appointment, the question of reason in support of termination does not arise. 15. The learned counsel for the petitioner relied on the judgment of the Division Bench in _**Ashok v. Chancellor, Kerala Veterinary and Animal Sciences University : 2012 (3)**_ _**KLT 829**_ and the judgment of the Apex Court in _**Union of India and others vs. Major S.P.Sharma and others : (2014) 6**_ _**SCC 351**_ in support of his contention that the termination was illegal, in the absence of availability of any reasons at least in the files, even when the petitioner held his appointment at the pleasure of Government. In the judgment in _**Ashok's**_ case the Division Bench was considering the validity of the termination of services of the Vice Chancellor of Kerala Veterinary and Animal Sciences University, before the expiry of 5 years of his appointment, in contravention of section 12(7) of the KVASU Act, according to which the Vice Chancellor shall hold the office for a period of 5 years subject to the pleasure of the Chancellor and the provisions of sub section 6. Referring to the judgments of the apex court with respect to the doctrine of pleasure in _**B.P. Singhal v. Union of**_ W.P.(C) No.23372/2019 :21: _**India: 2010 (6) SCC 331,**_ this court held that the doctrine of pleasure does not mean a licence to act arbitrarily, capriciously or whimsically. It was held therein that the discretionary powers conferred on public authority would be exercised reasonably and for public good. It was found that the revocation of appointment of the Vice Chancellor was not for any administrative reason as it was found that the action was initiated on the basis of an article he had written and published in the Indian Express Newspaper. The State Government was not able to explain the reason for recalling him from the post of Vice Chancellor and it was found that there was no bonafide administrative reason and in the absence of the same, recalling the appellant from the post of Vice Chancellor was an arbitrary and malafide action contrary to public interest and it was directed to restore him to the post of Vice Chancellor. But in the present case no term was fixed and it cannot be said that there was a premature termination. 16. In the judgment in _**Union of India v. S.P.Sharma**_ [(2014) 6 SCC 351], the Apex Court was considering a case where the termination of services of 2 Army personnel after court martial proceedings were defended in the light W.P.(C) No.23372/2019 **==> picture [25 x 8] intentionally omitted <==** of Section 18 of the Army Act read with Article 310 of the Constitution, namely, exercise of doctrine of pleasure. The Army Personnel alleged violation of Article 311 (2) of the Constitution of India. It was held that while exercising judicial review the court cannot substitute its own conclusions on the basis of materials on record, especially in a case where the safety and security of the nation was involved and the tenure of services of such army personnel are at the pleasure of the President and officers can be removed by the authority on whose pleasure he holds office without assigning any reason. However it approved the constitution Bench judgment in _**B.P Singhal v. Union of India**_ [(2010) 6 SCC 331]. In B.P. Singhal's case he apex court while considering the question of removal of Governors held that the doctrine of pleasure does not mean a licence to act arbitrarily, capriciously or whimsically and that it is presumed that discretionary powers conferred on any public authority will necessarily be exercised reasonably and for the public good. It was held that though no notice need be issued or reasons be assigned, there should be some valid cause for withdrawal of the pleasure and that it cannot be at the sweet will, whim and fancy of the authority. It was also held that the controlling factor W.P.(C) No.23372/2019 **==> picture [25 x 8] intentionally omitted <==** in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-matter. It was also held that the extent or scope of judicial review for one will be different from the scope of judicial review for the other. It is pertinent to note that the order of appointment of petitioner did not contain any assurance to retain him for any particular period. ## 17. In the judgment in _**Retd. Armed Forces Medical**_ _**Association & Ors. v. Union of India & Ors:**_ (2006) 11 SCC 731, relied on by the learned Government Pleader, the Apex Court was considering the validity of appointment of the Chief Engineer of the establishment as its Managing Director without fixing any tenure. The Apex Court held that when the Act and the Rules have not prescribed any definite term or any particular mode, the appointing authority has absolute discretion in the matter. It was a case where a writ of quo-warranto was sought against the appellant therein. The contention was that Section 6(1) of the Karnataka Urban Water Supply and Drainage Board Act 1973 which provided that the Managing Director shall hold office during the pleasure of the Government would not mean to have conferred any arbitrary or unfettered right to Government to retain him, misusing its discretionary power W.P.(C) No.23372/2019 :24: to extend his tenure. In para.44 of the said judgment the Apex Court found as follows: _“44. In the instant case, the power to appoint the Managing Director of the Board is vested in the Board under Section 4(2) of the Act. Neither the Act nor the Rules prescribed any mode of appointment or tenure of appointment. When the mode of appointment, tenure of appointment have been left to the discretion of the Government by the Act and the Rules, and the Act makes it clear that the Managing Director shall hold office at the pleasure of the Government, the High Court could not have fettered the discretion of the Government by holding that Section 4(2) of the Act does not expressly give the power to the State Government to make ad hoc or contractual appointment. When the Act and the statutory Rules have not prescribed any definite term and any particular mode, the High Court could not have read into the statute a restriction or prohibition that is not expressly prohibited by the Act and the Rules. It is well settled that when the statute does not lay down the method of appointment or term of appointment and when the Act specifies that the appointment is one of sure tenure, the appointing authority who has the power to appoint has absolute discretion in the matter and it cannot be said that discretion to appoint does not include the power to appoint on contract basis. An appointment which is temporary remains temporary and does not become permanent with the passage of time. The finding recorded by the learned Single Judge that the appointment is bad for the reason that the appointment which was made on temporary basis has continued for nearly 2 years is wholly contrary to law particularly when the Act and the Rules do not stipulate maximum period of appointment. The High Court, in our view, gravely erred in issuing a writ of quo warranto when there is no clear violation of law in the appointment of the appellant.”_ It was held that there was no disqualification for the Managing Director to continue and that the court cannot sit in judgment over the wisdom of the Government. It was a case where appointment was challenged whereas in this case the termination is under challenge. W.P.(C) No.23372/2019 :25: 18. It is relevant to note the judgment in WP(C) No.29558/2017, relied on by the learned Government Pleader where the petitioner sought re-appointment as a Managing Director stating that he was only relieved from the post and there was no termination. He was initially appointed as Managing Director of Quilon Cooperative Spinning Mills on 25.06.2013; on 21.05.2014 he was appointed as the Managing Director of another Public Sector Undertaking; on 03.06.2015 he was appointed as the Managing Director of yet another Public Sector Undertaking; on 15.10.2015 he was appointed as the Executive Director of yet another Public Sector Undertaking; he was relieved on 18.06.2016 while giving additional charge to another person. He claimed further appointments pointing out that he was only relieved. Government stated that vigilance cases were going on and it was not prudent to entrust him to run any organization. He pointed out that there was no allegation against him in the FIR. The writ petition was dismissed as there is no provision of law which provides that once a person is appointed as Managing Director he is liable to be retained as Managing Director of one or other Public Sector Undertakings or that he can continue for a particular tenure. W.P.(C) No.23372/2019 **==> picture [25 x 8] intentionally omitted <==** 19. In this case respondents have produced Ext.R1(i) directing Vigilance enquiry into the loss caused to KINFRA on account of lapses in conducting the case before Madhyapradesh High Court for failure to take steps to protect its interest of KINFRA. Therefore the decision of the respondents to terminate the appointment does not require any interference. In the absence of any rules prescribing any fixed term for the Managing Director of KINFRA, it cannot be said that petitioner is entitled to continue for any fixed period or that the termination can be effected only after issuing notice. 20. However the case of the petitioner that the respondents want to save the real culprits behind the issue which arose in respect of the land acquisition at Ramanattukara, as the termination is effected immediately after he issued show cause notice to the official who was dealing with those matters and his contention about the intention of the respondents to save M/s.Zoom Developers and to save the real culprits behind all these, deserves serious consideration. Though the respondents have stated that vigilance proceedings are initiated as per Government letter No.Vig-B1/335/19-Vig dated 25.10.2019, no steps are seen taken to expedite the same and to book the real W.P.(C) No.23372/2019 **==> picture [25 x 8] intentionally omitted <==** culprits. Therefore the respondents shall see that the Vigilance enquiry in these matters are expedited and appropriate action is taken in accordance with law. The writ petition is dismissed with the above observation. ## **Sd/-** **P.V.ASHA** rkc/rtr **JUDGE** **WP(C).No.23372 OF 2019(V)** 28 ## **APPENDIX** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE COMMUNICATION NO:INDH1/190/2016-IND DATED 30/06/2016 ISSUED BY THE GOVERNMENT OF KERALA TO THE SECRETARY,RIAB EXHIBIT P2 TRUE COPY OF THE NOTIFICATION INVITING APPLICATIONS FOR THE POST OF MANAGING DIRECTOR OF VARIOUS PUBLIC SECTOR UNDERTAKINGS EXHIBIT P3 TRUE COPY OF THE LIST OF CANDIDATES RECOMMENDED TO THE RIAB FOR VARIOUS PUBLIC SECTOR UNDERTAKINGS UNDER VARIOUS SECTORS. EXHIBIT P4 TRUE COPY OF THE G.O(RT)NO.1050/2016/ID DT.04/10/2016 ISSUED BY THE GOVERNMENT APPOINTING THE PETITIONER HEREIN AS MANAGING DIRECTOR OF KINFRA EXHIBIT P5 TRUE COPY OF THE LIST OF CANDIDATES APPOINTED AS MANAGING DIRECTORS OF VARIOUIS PUBLIC SECTOR UNDERTAKINGS EXHIBIT P6 TRUE COPY OF THE LETTER DT.07/10/2016 ISSUED BY THE PETITIONER TO THE SECRETARY,PUBLIC SECTOR RESTRUCTURING & INTERNAL ADUIT BOARD,ACKNOWLEDGING THE RECEIPT OF EXHIBIT P4. EXHIBIT P6 A TRUE COPY OF THE LETTER DT.08/10/2016 ISSUED BY THE PETITIONER TO THE ADDL.CHIEF SECRETARY (INDUSTRIES AND COMMERCE) ACKNOWLEDGING THE RECEIPT OF EXHIBIT P4 EXHIBIT P7 TRUE COPY OF THE RELEVANT PAGE OF THE G.O(MS)NO.100/2006/IND,DATED 07/10/2006 EXHIBIT P8 TRUE COPY OF THE G.O(RT)NO.906/2018/ID,DATED 01/08/2018. EXHIBIT P9 TRUE COPY OF THE EXTRACT OF MINUTES OF THE 76TH BOARD MEETING,DATED 31/5/2018 EXHIBIT P10 TRUE COPY OF THE G.O.(RT) NO.692/2019/ID, DATED 25.07.2019.** 29 ## **WP(C).No.23372 OF 2019(V)** **EXHIBIT P11** - **TRUE COPY OF THE NEWS PUBLISHED IN THE TIMES OF INDIA DAILY DATED 01.08.2019.** **EXHIBIT P12** **TRUE COPY OF THE ORDER NO.G.O.(RT) NO.111/93 DATED 01.02.1993 ISSUED BY THE GOVERNMENT OF KERALA.** - **EXHIBIT P12 A TRUE COPY OF THE ORDER NO.G.O.(RT) NO.461/2000/ID DATED 13.04.2000 ISSUED BY THE GOVERNMENT OF KERALA.** - **EXHIBIT P12 B TRUE COPY OF THE ORDER DATED 15.5.2003 EXTENDING THE TENURE OF DR.G.C.GOPALA PILLAI AS MANAGING DIRECTOR OF KINFRA BY THE GOVERNMENT.** - **EXHIBIT P13 TRUE COPY OF THE G.O(RT) NO.606/2005/ID DATED 30.06.2005 ISSUED BY THE GOVERNMENT CONFERRING FULL ADDITIONAL CHARGE OF THE M.D OF THE KINFRA TO SRI.A.S.SURESH BABU, UNTIL FURTHER ORDERS.** - **EXHIBIT P14 TRUE COPY OF THE G.O.(RT) NO.7/2006/ID DATED 4.1.2006 APPOINTING SRI SURESH BABU AS MANAGING DIRECTOR OF THE KINFRA BY THE GOVERNMENT.** - **EXHIBIT P15 TRUE COPY OF THE G.O(RT) NO.332/2011/ID DATED 28.02.2011.** - **EXHIBIT P16 TRUE COPY OF THE G.O.(RT) NO.1020/2014/ID DATED 18.09.2014.** - **EXHIBIT P17 TRUE COPY OF THE G.O(RT) NO.1525/2017/ID DATED 03.11.2017 ISSUED BY THE GOVERNMENT OF KERALA CANCELLING THE SELECTION LIST.** - **EXHIBIT P18 TRUE COPY OF THE G.O(MS) NO.16/2018/P&EA DATED 26.05.2018 ISSUED BY THE GOVERNMENT OF KERALA RECONSTRUCTING THE PUBLIC ENTERPRISES SELECTION BOARD.** - **EXHIBIT P19 TRUE COPY OF THE COMMUNICATION NO.E636453/2016/INDUS DATED 01.02.2017 ISSUED BY THE DIRECTORATE OF VIGILANCE AND ANTI CORRUPTION BUREAU TO THE PETITIONER.** **EXHIBIT P20** **TRUE COPY OF THE INFORMATION NO.G1/2019/IND. DATED 17.9.2019 ISSUED BY** 30 ## **WP(C).No.23372 OF 2019(V)** **THE STATE PUBLIC INFORMATION OFFICER GOVERNMENT OF KERALA UNDER THE RIGHT TO INFORMATION ACT** **EXHIBIT P21 TRUE COPY OF THE RELEVANT PAGE OF THE PROCEEDINGS OF THE SELECTION COMMITTEE (RIAB)** **EXHIBIT P22 TRUE COPY OF THE GO(MS) NO.29/2018/P&EA, DATED 22.10.2018** **EXHIBIT P23 TRUE COPY OF THE INFORMATION NO:PLGEABPE3/149/2019-PLGEA, DT.15.10.19 OBTAINED UNDER THE RIGHT TO INFORMATION ACT** **EXHIBIT P24 TRUE COPY OF THE INFORMATION OBTAINED FROM THE WEBSITE OF THE KERALA LEGISLATIVE ASSEMBLY** ## **RESPONDENTS' EXHIBITS** **EXT.R1A TRUE COPY OF THE RELEVANT EXTRACTS OF THE KERALA INDUSTRIAL INFRASTRUCTURE DEVELOPMENT ACT 1993** **EXT.R1B TRUE COPY OF THE RELEVANT EXTRACTS OF THE KERALA INDUSTRIAL INFRASTRUCTURE DEVELOPMENT RULES 2008** **EXT.R1C TRUE COPY OF THE GO(MS) NO.19/2009/PLG. DT.20.05.09 SANCTIONING ENHANCEMENT OF PAY SCALE TO THE CHIEF EXECUTIVES OF THE STATE AND THE PUBLC SECTOR UNDERTAKINGS (PSU) EXT.R1D TRUE COPY OF THE GO(P) NO.45/16/PLG. DT 15.10.16 EXT.R1E TRUE COPY OF GO (RT) NO.1106/2014/ID DT.30.09.14, THE APPOINTMENT ORDER OF DR.G.C.GOPALA PILLAI AS DIRECTOR AND MANAGING DIRECTOR OF KINFRA** **EXT.R1F TRUE COPY OF GO(RT) NO.505/2016/ID DT.7.6.16 RELEIVING HIM FROM THE POST OF MANAGING DIRECTOR, KINFRA** **EXT.R1G TRUE COPY OF LETTER NO.KIN/ATP/LAR/2018/244 DT.2.6.18 ADDRESSED TO THE MANAGING DIRECTOR, KINFRA BY THE ASSISTANT MANAGER (TECHNICAL) ON MEDIATION OF LAA CASES** **WP(C).No.23372 OF 2019(V)** 31 **PERTAINING TO ADVANCED TECHNOLOGY PARK, RAMANATTUKARA.** **EXT.R1H** **TRUE COPY OF THE AUTHORISATION LETTER NO.KIN/VII-47/2018-19 DT.4.6.18 AUTHORISING SHRI.P.MURALEEDHARAN, MANAGER (TECHNICAL), ZONAL HEAD, NORTHERN REGION, KINFRA TO ATTEND MEDIATION** **EXT.R1(I) TRUE COPY OF LETTER NO.VG-B1/335/2019/VIG. DATED 6.8.19** **EXT.R1J TRUE COPY OF GO(RT) NO.171/2019/IND. DT.18.2.19** **EXT.R1K TRUE COPIES OF APPLICATION FORMS SUBMITTED BY THE PETITIONER** **EXT.R1L TRUE COPIES OF APPLICATION FORMS SUBMITTED BY THE 4TH RESPONDENT** - **EXT.R1M TRUE COPY OF THE ATTENDANCE MARKING PREFERENCES OF THE PETITIONER AND THE 4TH RESPONDENT** **EXT.R3A TRUE COPY OF THE LETTER DT.11.10.19 ISSUED BY THE MINISTRY OF FOOD PROCESSING INDUSTRIES, GOVERNMENT OF INDIA TO THE KINFRA** - **EXT.R3B TRUE COPY OF THE EXTRACT OF THE MINUTES OF THE BOARD MEETING OF THE KINFRA REGARDING THE SELECTION OF MARKETING CONSULTANT FOR DEFENCE PARK, OTTAPALAM DT.23.5.19** **EXT.R3C** **TRUE COPY OF THE LETTER SENT BY THE PETITIONER TO THE PRINCIPAL SECRETARY (INDUSTRIES, COMMERCE& NORKA), GOVERNMENT OF KERALA DT.8.7.19** - **EXT.R4 TRUE COPY OF THE APPLICATION FOR APPOINTMENT OF MANAGING DIRECTOR IN PUBLIC SECTOR UNDERTAKINGS UNDER THE INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA SUBMITTED BY THE ADDL.4TH RESPONDENT UNDER THE CATEGORY DEVELOPMENT & INFRASTRUCTURAL AGENCIES ON 5.7.16** **EXT.R4A** **TRUE COPY OF THE APPLICATION FOR APPOINTMENT OF MANAGING DIRECTOR IN PUBLIC** **WP(C).No.23372 OF 2019(V)** 32 **SECTOR UNDERTAKINGS UNDER THE INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA SUBMITTED BY THE ADDL.4TH RESPONDENT UNDER THE CATEGORY ENGINEERING 5.7.16** **EXT.R4B** **EXT.R4C** **EXT.R4D** **TRUE COPY OF THE APPLICATION FOR APPOINTMENT OF MANAGING DIRECTOR IN PUBLIC SECTOR UNDERTAKINGS UNDER THE INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA SUBMITTED BY THE ADDL.4TH RESPONDENT UNDER THE CATEGORY ELECTRICAL EQUIPMENT ON 5.7.16** **TRUE COPY OF THE APPLICATION FOR APPOINTMENT OF MANAGING DIRECTOR IN PUBLIC SECTOR UNDERTAKINGS UNDER THE INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA SUBMITTED BY THE ADDL.4TH RESPONDENT UNDER THE CATEGORY ELECTRONICS ON 5.7.16** **TRUE COPY OF THE ORDER DT.7.9.19 OF THE GOVERNMENT OF KERALA**