Kerala State Warehousing Corporation & G. Mohandas v. K. J. Joseph

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 23RD DAY OF JUNE 2016/2ND ASHADHA, 1938** **WA.No. 990 of 2016 () IN WP(C).28739/2005** **------------------------------------------AGAINST THE JUDGMENT IN WP(C) 28739/2005 of HIGH COURT OF KERALA DATED 20.01.2016** ## **APPELLANTS/RESPONDENTS 1 & 2 IN WPC:** **-------------------------------------** **1. KERALA STATE WAREHOUSING CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, KOCHI - 682 016.** ## **2. MR.G.MOHANDAS,** - **MANAGING DIRECTOR, KERALA STATE WAREHOUSING CORPORATION, KOCHI - 682 016.** **BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI** ## **RESPONDENT/PETITIONER IN WPC:** **--------------------------------** **K.J. JOSEPH (FORMER REGIONAL MANAGER, KERALA STATE WAREHOUSING CORPORATION), 10/491, KADAVIPARAMBIL, AMARAVATHI, KOCHI - 682 001.** **BY ADVS. SRI.S.RADHAKRISHNAN SRI.S.RAJ MOHAN KUM.R.ANJALI SMT.SHALINI GOPINATHAN NAIR SMT.J.DEEPTHI ROSE** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VPV** ## **P.N.RAVINDRAN & A.MUHAMED MUSTAQUE, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W.A.No.990 of 2016** ## **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 23[rd] day of June, 2016** ## **JUDGMENT** ## _**P.N.Ravindran, J.**_ The appellants are the respondents in W.P.(C)No.28739 of 2005 on the file of this court, a petition filed by the respondent herein under Article 226 of the Constitution of India challenging the orders passed in the disciplinary action initiated against him on allegations of misconduct. By judgment delivered on 20.01.2016, the learned single Judge allowed the writ petition, set aside the punishment of dismissal from service and imposed the punishment of reduction to a lower post. In view of the fact that by the time the writ petition was disposed of the writ petitioner had attained the age of superannuation, the learned single Judge directed that the entire pay and allowances from the date of dismissal till the date of attainment of the age of superannuation as also the terminal benefits computed on that basis shall be disbursed within a period of four months from the date of receipt of a certified copy of the judgment. The appellants have, aggrieved thereby, filed this writ appeal. The brief facts of the case are as follows: 2. The writ petitioner was at the relevant time working as the Regional Manager in the regional office of the Kerala State ## **W.A.No.990 of 2016** ## **-:2:-** Warehousing Corporation at Wadakkancherry in Thrissur District. The writ petitioner was appointed as the defence representative in three disciplinary proceedings initiated against other employees of the Kerala State Warehousing Corporation and this fact was known to his controlling officer, viz. the Managing Director. He had participated in the said enquiries as the defence representative on 37 days. On the allegation that prior permission of the controlling officer had not been obtained for leaving the head quarters (Wadakkancherry) for the purpose of attending the disciplinary enquiry at Ernakulam and he had not availed leave on the said days but had drawn salary and also on the allegation that when the Managing Director, who is the controlling officer, visited the regional office at Wadakkancherry on 24.11.1999, the writ petitioner was absent in the head office without availing leave and citing other irregularities, the Managing Director of the Kerala State Warehousing Corporation issued Ext.P3 show cause notice dated 10.11.1999 calling upon the writ petitioner to show cause why disciplinary action shall not be initiated against him. The writ petitioner submitted Ext.P4 reply dated 27.12.1999. The reply was not acceptable to the controlling officer who issued Ext.P5 memo of charges dated 19.02.2000. The writ petitioner submitted Ext.P6 reply dated 18.3.2000. An enquiry officer was appointed to enquire into the allegations of misconduct set out in Ext.P5 memo of charges. The ## **W.A.No.990 of 2016** ## **-:3:-** enquiry officer after enquiry submitted Ext.P7 report dated 29.1.2002, finding the writ petitioner guilty of majority of charges. Without giving the writ petitioner an opportunity to show cause against the findings of the enquiry report and the procedure adopted in the enquiry, the executive committee of the Kerala State Warehousing Corporation that met on 26.7.2002 accepted that report and tentatively decided to impose the punishment of dismissal from service on the writ petitioner and to issue a show cause notice calling upon him to show cause why the punishment of dismissal from service shall not be imposed on him. Thereupon the Managing Director issued a show cause notice dated 29.7.2002 calling upon the writ petitioner to show cause why the punishment of dismissal from service shall not be imposed on him. The writ petitioner submitted his replies. The executive committee of the Kerala State Warehousing Corporation that met on 7.9.2002 considered the said replies and decided to confirm the punishment proposed by it in the show cause notice. Consequently the Managing Director issued Ext.P8 order dated 9.9.2002 dismissing the writ petitioner from service with immediate effect. It was also directed that the salary received by the writ petitioner for 35 days during which he was unauthorisedly absent shall be recovered from him. Challenging that order the writ petitioner filed Ext.P9 appeal dated 6.11.2002 before the Board of Directors of the Kerala State Warehousing ## **W.A.No.990 of 2016** ## **-:4:-** Corporation. By Ext.P10 order passed on 18.7.2005, the Board of Directors set aside the punishment of dismissal from service awarded by the disciplinary authority and imposed the punishment of removal from service with effect from 9.9.2002, the date with effect from which the punishment of dismissal from service was imposed on him by the disciplinary authority. The writ petition was thereupon filed challenging the orders imposing punishment. 3. The learned single Judge considered the rival contentions and held that before Ext.P7 enquiry report was accepted, the writ petitioner was not afforded an opportunity to represent against the findings in the disciplinary enquiry and that it is a serious violation of the principles of natural justice. In coming to the said conclusion, the learned single Judge placed reliance on the decisions of the Apex Court in **Managing Director, ECIL v. B. Karunakar** [(1993) 4 SCC 727] and **Union of India v. Mohd. Ramzan Khan** [(1991) 1 SCC 588]. The learned single Judge also held, after analysis of the pleadings and the materials on record, that it is the admitted case of the parties that the writ petitioner had attended the domestic enquiry held against other employees at Ernakulam during the 35 days he was alleged to have been unauthorisedly absent in his capacity as the defence representative, that the disciplinary authority has no case that the writ petitioner's appointment as the defence representative had been ## **W.A.No.990 of 2016** ## **-:5:-** objected to or not agreed upon and that in the absence of any material to show that the writ petitioner was not present at the enquiry held against other employees of the Kerala State Warehousing Corporation as the defence representative, the punishment of dismissal from service is shockingly disproportionate to the gravity of the charges proved in the enquiry. The learned single Judge also took note of the fact that no loss has been caused to the Kerala State Warehousing Corporation on account of the allegations of misconduct alleged against the writ petitioner. The learned single Judge also took note of the fact that the appellate authority had come to the conclusion that the punishment of removal from service is warranted for the reason that prior permission of the controlling officer (the Managing Director) had not been taken before leaving the head quarters (Wadakkancherry) for the purpose of attending the disciplinary enquiry held against three other employees at Ernakulam in his capacity as the defence representative. In that view of the matter, the learned single Judge held that the punishment of demotion to a lower post would be adequate punishment. 4. We heard Sri.Benny P.Thomas, learned counsel appearing for the appellants and Sri.S.Radhakrishnan, learned counsel appearing for the respondent. We have also gone through the impugned judgment and the pleadings and the materials on record. After hearing learned ## **W.A.No.990 of 2016** ## **-:6:-** counsel appearing on both sides at length, we are satisfied that the learned single Judge was perfectly justified in coming to the conclusion that the punishment of dismissal from service awarded by the disciplinary authority and the punishment of removal from service awarded by the appellate authority are shockingly disproportionate to the gravity of the charges levelled against the writ petitioner and proved in the enquiry. The appellate authority has more or less conceded that punishment was imposed on the writ petitioner for the reason that he had not taken prior permission for the purpose of leaving the head quarters (Wadakkancherry) to act as the defence representative at Ernakulam; the venue of the disciplinary enquiry against three other employees. The appellants have no case that the writ petitioner was not present at the venue of the enquiry or that he was unauthorisedly absent for the purpose of attending to his personal affairs. 5. After going through the pleadings and the materials on record, we are of the opinion that that the worst that could be said about the writ petitioner was that he had not taken prior permission to leave the head quarters on the dates on which he had attended the disciplinary enquiry held against three other employees at Ernakulam to act as the defence representative. It is relevant in this context to note that it was only after disciplinary action was initiated against the ## **W.A.No.990 of 2016** ## **-:7:-** writ petitioner that the management issued Ext.P12 circular dated 29.10.2001 to the effect that henceforth, even for the purpose of appearing as defence representative, the defence assistant must avail casual leave in addition to obtaining the permission of the Managing Director to act as the defence representative. It was only by the said circular that it was stipulated that officers of the rank of Deputy Manager and above will not be permitted to appear as defence assistant for delinquent employees below the rank of Deputy Manager. Ext.P12 circular cannot govern the state of affairs which existed prior to the date on which it was issued. The appellants cannot therefore rely on Ext.P12 circular to contend that the delinquent employee had violated Ext.P12 circular and had not availed casual leave or obtained the prior permission of the Managing Director for the purpose of leaving Wadakkancherry to attend the disciplinary enquiry being held against three other employees at Ernakulam in which, the writ petitioner was the defence representative. 6. On an over all view of the matter, we are of the considered opinion that the learned single Judge was perfectly justified in interfering with the impugned orders of punishment and in substituting the punishment of reduction to a lower post. Though it was strenuously contended before us that in any view of the matter the learned single Judge erred in holding that the writ petitioner will be ## **W.A.No.990 of 2016** ## **-:8:-** entitled to pay and allowances and also retirement benefits on the basis of the last pay drawn, we find nothing wrong with the said direction as well. Apart from challenging the said direction, the learned counsel for the appellants also submitted that when other employees, who have retired from service after unblemished service, are waiting in the queue for payment of retirement benefits, the learned single Judge erred in directing that retirement benefits shall be paid to the writ petitioner within four months from the date of receipt of copy of the judgment. In our opinion, the appellants are themselves to be blamed for the predicament in which they are now placed. In any view of the matter, the appellate authority ought to have in our opinion after having found that the petitioner was physically present at the venue of the disciplinary enquiry during 35 days of the alleged unauthorised absence, awarded only a minor punishment as the one imposed by the learned single Judge instead of awarding the most severe punishment of dismissal from service/removal from service. As the appellants themselves are to be blamed for keeping the writ petitioner out of service and without any justifiable reason, as held by the learned single Judge, the writ petitioner cannot be denied pay and allowances which he would have drawn had he continued in service till he attained the age of superannuation. The writ petitioner attained the age of superannuation in the year 2010. More than 5 years have passed ## **W.A.No.990 of 2016** ## **-:9:-** thereafter. The appellants cannot therefore be heard to contend that the payment of retirement benefits to the writ petitioner would be an out of turn payment. We therefore find no good grounds to interfere with that part of the direction as well. The writ petitioner attained the original age of superannuation namely 55 years only in May 2007. The age of superannuation was revised as 58 with effect from May 2006. Even as on today the age of retirement in the Kerala State Warehousing Corporation is only 58 years. In such circumstances, we clarify, in modification of the direction issued by the learned single Judge, that salary and allowances need be paid only from the date of dismissal till the date on which the writ petitioner attained the age of 58 years and not 60 years as directed by the learned single Judge. The writ appeal is dismissed, but with the above modification. Sd/- ## **P.N.RAVINDRAN JUDGE** Sd/- ## **A.MUHAMED MUSTAQUE JUDGE** /true copy/ P.A. To Judge **vpv**