High Court of KeralaSingle Judge2018-09-11Writ petition dismissed as not maintainable; is...

Kasargode Municipality Council v. Chief Engineer, Local Self Government Department, Secretariat, Trivandrum; Ajitha C.S.; Padmanabha P.

Case / Petition Number:WP(C).No. 21075 of 2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Shaji P. Chaly
Judgment Date: 2018-09-11
Court Decision / Holding: Writ petition dismissed as not maintainable; the issues are left open to be agitated before the Kerala Administrative Tribunal.
Final Disposition: Writ petition dismissed as not maintainable; issues to be adjudicated by the Kerala Administrative Tribunal.

Parties to the Case

Appellants / Petitioners

Kasargode Municipality Council

Respondents

The Chief Engineer, Office of the Chief Engineer, Local Self Government Department, Secretariat, Trivandrum-695001
Smt. Ajitha C.S., Overseer, Grade-III, Kasargode Municipality, Kasargode District, Pin-671121
Padmanabha P., S/O. Krishnan, Krishnanilayam, Bhoopass Compound, Kasargode District, Pin-671123

Legal Representation & Advocates

Counsels for Petitioners

• SRI.K.N.ABHILASH
• SRI.SUNIL NAIR PALAKKAT

Counsels for Respondents

• SRI. PAUL ABRAHAM VAKKANAL, GOVERNMENT PLEADER
• SRI.BABU S. NAIR

Case Synopsis & Summary

The Kasargode Municipality Council filed a writ petition challenging Ext.P6, an order of the Chief Engineer directing reinstatement of the 2nd respondent in a matter arising from a financial assistance scheme for construction of a house. The Council had earlier sanctioned Rs. 1,50,000 to Padmanabha P based on an adverse report by the 2nd respondent, an Overseer. After the Council sought explanations (Ext.P1, Ext.P2) and received the 2nd respondent’s reply (Ext.P3), it suspended the 2nd respondent in Ext.P4 and commenced an enquiry. The 1st respondent later communicated Ext.P5 and Ext.P7, with the Chief Engineer allegedly setting aside Ext.P7 suspension in respect of the 2nd respondent without a valid reason. The petitioner argued that the Chief Engineer had no jurisdiction to interfere with the Municipality’s enquiry and that the suspension was a matter within municipal competence. The 2nd respondent contended that, for Panchayat/Municipal Common Service employees, service disputes fall under the Kerala Administrative Tribunal, highlighting a Division Bench decision (Santhosh Kumar v. Director of Panchayats). After hearing both sides, the High Court held the matter to be a service dispute and dismissed the writ petition as not maintainable, leaving all factual and legal questions to be agitated before the Administrative Tribunal.

Provisions of Law Cited

Kerala Municipality (Control over the Employees) Rules, 2011

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that Ext.P6 is ultravires and without jurisdiction; the Chief Engineer cannot interfere with the internal, democratically elected Municipality’s enquiry; suspension and revocation actions are internal administrative matters andExt.P6 cannot be forced upon the Council. The writ petition seeks quashing Ext.P6 and asserts that the petitioner has locus standi; reliance is placed on the natural course of governance and due process in service matters. The petitioner argues maintainability under Article 226 but contends that disputes arising in municipal service lie within the competent authority and should be resolved by the Kerala Administrative Tribunal (KAT).

Contentions of Respondents

The 2nd respondent contends that service disputes of Panchayat/Municipal Common Service employees are within the purview of KAT and cites the Division Bench decision in Santhosh Kumar v. Director of Panchayats. It is argued that Ext.P7 is not a unilateral act and that there was a dissent by a ward councillor; the 1st respondent’s actions were within his jurisdiction as appointing authority and the matter involves the official duties of the 2nd respondent. The respondents assert that the writ petition is not maintainable before this Court and that the proper remedy lies before KAT.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Santhosh Kumar v. Director of Panchayats	2013 (2) KLT 548	Mentioned Only	Cited by the 2nd respondent’s counsel; the court references it but does not rely on its holding to dispose of the present writ petition, instead noting maintainability questions.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY,THE 11TH DAY OF SEPTEMBER 2018 / 20TH BHADRA, 1940** ## **WP(C).No. 21075 of 2018** ## **PETITIONER/S:** **THE KASARGODE MUNICIPALITY COUNCIL, REP. BY ITS CHAIRPERSON BEEFATHIMA IBRAHIM, AGED 55 YEARS, W/O. IBRAHIM, KASARGODE MUNICIPALITY, KASARGODE DISTRICT, PIN-671 121.** **BY ADVS. SRI.K.N.ABHILASH SRI.SUNIL NAIR PALAKKAT** ## **RESPONDENT/S:** - **1 THE CHIEF ENGINEER, OFFICE OF THE CHIEF ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001.** - **2 SMT. AJITHA C.S., OVERSEER, GRADE -III, KASARGODE MUNICIPALITY, KASARGODE DISTRICT, PIN-671 121.** - **3 PADMANABHA P., S/O. KRISHNAN, KRISHNANILAYAM, BHOOPASS COMPOUND, KASARGOD DISTRICT, PIN-671 123.** **BY ADVS. R1 BY SRI. PAUL ABRAHAM VAKKANAL, GOVERNMENT PLEADER R2 BY SRI.BABU S. NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.21075 of 2018 2 ## **JUDGMENT** This writ petition is filed by the petitioner Municipality, seeking to quash Ext.P6 order passed by the Chief Engineer, Local Self Government Department dated 22.06.2018, directing the petitioner Municipality to reinstate 2[nd] respondent, since it was understood that the decision taken by the Secretary to suspend her from service was unilateral in nature. Brief material facts for the disposal of the writ petition are as follows: 2. The petitioner Municipality rendered financial assistance to the 3[rd] respondent for constructing a house and an amount of Rs.1,50,000/- was given to the 3[rd] respondent on the basis of the report submitted by the 2[nd] respondent, Overseer. Later, she reported against the payment of further instalments. The Council by Ext.P1 decision dated 15.03.2018, sought explanation from the 2[nd] respondent regarding the adverse report against granting the financial scheme and issued Ext.P2 memo. In Ext.P3 reply, the 2[nd] respondent admitted the guilt and sought further enquiry. By Ext.P4 decision dated 19.06.2018, the Council decided to suspend the 2[nd] respondent as per the Kerala Municipality (Control over the employees) Rules, 2011 and decided to conduct enquiry. Later, it W.P.(C) No.21075 of 2018 3 was communicated by the Secretary of the Municipality to the 1[st] respondent, evident from Ext.P5 communication and Ext.P7 notice dated 19.06.2018. But the 1[st] respondent, Chief Engineer, set aside Ext.P7 notice of the Secretary in respect of the suspension of the 2[nd] respondent, without any valid reason. According to the petitioner, the Chief Engineer has no jurisdiction to interfere with the enquiry proceedings initiated by the Municipality, and further, there was no complaint filed by the 2[nd] respondent before the 1[st] respondent. Therefore, the 1[st] respondent is not having any _suo motu_ authority to interfere with the independent functioning of the democratically elected Municipal Council. 3. The 2[nd] respondent has filed a detailed counter affidavit, refuting the allegations and the contentions put forth by the petitioner Municipality. The primary contention advanced by the 2[nd] respondent is that, so far as the service of the Panchayat/Municipal Common Service employees are concerned, they are Government servants and jurisdiction to entertain cases relating to service disputes of Panchayat/Municipal employees lies with the Kerala Administrative Tribunal. 4. Learned counsel for the 2[nd] respondent in that regard has invited my attention to the judgment of a W.P.(C) No.21075 of 2018 4 Division Bench of this Court in _**'Santhosh Kumar v.**_ _**Director of Panchayats**_ ' [2013 (2) KLT 548. Further it is pointed out that the Chief Engineer was convinced that the 2[nd] respondent was innocent in the matter in respect of the restraint orders passed by the 2[nd] respondent in making the financial aid and it was thereupon only, that the suspension order was revoked. That apart, it is stated that, the contention raised in the writ petition that Ext.P7 is a unilateral decision taken by the Chief Engineer is also not correct, since one Ward Councillor by name Dinesh K. had dissented from the decision and therefore, there was no decision as such was taken to suspend me in the Council meeting. Other contentions with respect to the factual circumstances leading up to the suspension of the 2[nd] respondent are all denied by the 2[nd] respondent, and several documents are produced in order to justify the action of the 2[nd] respondent. 5. A statement is filed for and on behalf of the 1[st] respondent, wherein also, the maintainability of the writ petition before this Court is challenged. According to the 1[st] respondent, the 1[st] respondent had cancelled the order of the Secretary, Kasaragod Municipality after examining the letter dated 21.06.2018 given by one Mr. K. Dinesh, Councillor of Kasaragod Municipality along with W.P.(C) No.21075 of 2018 5 the intimation from the Kasaragod Municipality Secretary dated 19.06.2018. It is also stated that the petition given by the 2[nd] respondent was also adverted and analysed while arriving at Ext.P6 order by the 1[st] respondent. Therefore, it is incorrect to say that the 1[st] respondent had _suo motu_ cancelled the decision of the Council. It is further submitted that, 1[st] respondent is the appointing authority of the 2[nd] respondent, and the 2[nd] respondent was initially appointed provisionally as an Overseer Grade-III by the order of the 1[st] respondent dated 20.11.2014, after she was advised by the KPSC. Other factual circumstances are also narrated justifying the order passed by the 1[st] respondent. 6. I have heard respective counsel across the Bar and perused the pleadings and the documents on record. 7. The predominant and primary question to be considered is, whether the writ petition filed by the petitioner is maintainable under law. The discussion made above would make it clear that the 2[nd] respondent is an employee of Municipal Common Service and is a Government servant. No doubt, the issue raised in this writ petition is a service matter. However, the contention raised by the petitioner Municipality is that, there is no power vested with the 1[st] respondent to revoke ## W.P.(C) No.21075 of 2018 6 the suspension as per Ext.P6 order. However, the statement made by the Government makes it clear that the 1[st] respondent is the appointing authority and the 2[nd] respondent was initially appointed as a Grade-III Overseer provisionally by the 1[st] respondent. Taking into account all these aspects, it is clear that, the subject issue is relating to the service of the 2[nd] respondent and the action initiated by the petitioner Municipality is all against the 2[nd] respondent is also on account of the official duties discharged by the 2[nd] respondent. 8. In that view of the matter, I am of the considered opinion that, petitioner has no _locus standi_ to approach this Court, challenging Ext.P6 order passed by the Chief Engineer. Even though various factual circumstances are pointed out by rival parties, I am not going through the same, since those are all matters to be considered by the Kerala Administrative Tribunal in accordance with law. 9. Therefore, the writ petition is dismissed as not maintainable before this Court for the reasons specified above. All factual and legal circumstances pointed out by the respective parties in respect of suspension of the 2[nd] respondent and revocation of suspension by the 1[st] respondent are all left open to be agitated before the W.P.(C) No.21075 of 2018 7 ## Administrative Tribunal. ## **Sd/-** ## **SHAJI P.CHALY** ## **JUDGE** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE DECISION NO. 52 DATED 15.03.2018 TAKEN BY THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF MEMO DATED 17.05.2018 ISSUED BY THE PETITIONER.** - **EXHIBIT P3 TRUE COPY OF THE REPLY DATED 26.05.2018 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE COUNCIL.** - **EXHIBIT P4 TRUE COPY OF THE DECISION NO.15 DATED 19.06.2018 OF THE KASARGODE MUNICIPALITY.** **EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 20.6.2018.** - **EXHIBIT P6 TRUE COPY OF THE ORDER NO. E20/7952/2018 DATED 22.06.2018 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 19.06.2018 ISSUED BY THE SECRETARY TO THE 1ST RESPONDENT.** - **EXHIBIT P8 THE TRUE COPY OF THE DEPARTMENTAL ENQUIRY REPORT DATED 18.8.2018.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R2 (A) TRUE COPY OF THE REPRESENTATION SUBMITTED BY ME TO THE CHIEF ENGINEER DATED, 26.5.2018.** **EXHIBIT R2 (B) TRUE COPY OF THE RELEVANT NOTES, IN THE MATTER OF FINANCIAL ASSISTANCE GIVEN TO P.PADMANABHA.** W.P.(C) No.21075 of 2018 8 **EXHIBIT R2 (C) TRUE COPY OF THE PHOTOGRAPHS OF THE HOUSE OF PADMANABHA AND THE HOUSE SHOWN EARLIER TO THE 2ND RESPONDENT. EXHIBIT R2 (D) TRUE COPY OF THE LETTER GIVEN BY DINESH K, COUNCILLOR , KASARGODE MUNICIPALITY DATED, 21.6.2018.** **//TRUE COPY// P.S. TO JUDGE** **St/-**