Lali.S., Executive Assistant (P&A), Traco Cable Company Ltd. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 19TH DAY OF JANUARY 2016/29TH POUSHA, 1937** ## **WP(C).No. 27845 of 2011 (E)** ## **----------------------------** **PETITIONER(S): ----------------------** **LALI.S., EXECUTIVE ASSISTANT (P&A), TRACO CABLE COMPANY LTD., CHUNATHRA P.O., THIRUVALLA-689 103.** **BY ADVS.DR.ABRAHAM P.MEACHINKARA SRI.JOY C. PAUL SRI.K.S.ARUNDAS** ## **RESPONDENT(S):** **-------------------------** ## **1. STATE OF KERALA, REPRESENTED BY** **ITS CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM-695001.** **2. TRACO CABLE COMPANY LTD., REPRESENTED BY ITS MANAGING DIRECTOR, TRACO CABLE COMPANY LTD. KERALA STATE HOUSING BOARD COMPLEX MANORAMA JUNCTION, ERNAKULAM-682 035.** **3. MANAGING DIRECTOR, TRACO CABLE COMPANY LTD., KERALA STATE HOUSING BOARD COMPLEX, MANORAMA JUNCTION, ERNAKULAM-682 035.** **4. MANAGER (P&A) TRACO CABLE COMPANY LTD., CHUMATHRA P.O., THIRUVALLA-68103.** **5. SENIOR MANAGER (UNIT CHIEF) TRACO CABLE COMPANY LTD, CHUMATHRA P.O., THIRUVALLA-68103.** **6. SMT.RAJIMOL JOSE, ASSISTANT MANAGER TRACO CABLE COMPANY LTD., KERALA STATE HOUSING BOARD COMPLEX, MANORAMA JUNCTION ERNAKULAM-682 035.** **7. SMT.LAKSHMI NAIR, OFFICER (P&A) TRACO CABLE COMPANY LTD., CHUMATHRA P.O. THIRUVALLA-68103.** **(..........2)** **WP(C).No. 27845 of 2011 (E) : 2:** ## **8. SMT.MERCY JOHN KITHU, ASSISTANT MANAGER, TRACO CABLE COMPANY LTD., KERALA STATE HOUSING BOARD COMPLEX, MANORAMA JUNCTION, ERNAKULAM-682 035.** **9. SMT.SHEEJA V.C., OFFICER (P&A) ON SUSPENSION, TRACO CABLE COMPANY LTD., IRUMPANAM, ERNAKULAM RESIDING AT SREPADAM, MAMANGALAM EDAPPALLY, ERNAKULAM-682 025.** **R1 BY GOVERNMENT PLEADER SRI.MOHAMMED SAVAD A. R2 TO 5 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR BY ADV. SRI.P.GOPINATH BY ADV. SRI.P.BENNY THOMAS BY ADV. SRI.K.JOHN MATHAI R6 BY ADV. SRI.JOHN NUMPELIL (JUNIOR) R6 BY ADV. SMT.K.M.MINIMOL R8 BY ADV. SRI.T.O.XAVIER R9 BY ADV. SRI.N.UNNIKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 27845 of 2011 (E)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** - **EXHIBIT P1: NOTICE 185/P&A/8315 DATED 23RD DECEMBER 2005 INVITING APPLICATION FOR THE POST OF OFFICER (P&A).** **EXHIBIT P2: NOTICE NO.185/P&A) DATEAD 27TH DECEMBER, 2005 INVITING APPLICATION FOR THE POST OF OFFICER (MARKETING).** **EXHIBIT P3: PETITIONER APPLICATION DATED 26TH DECEMBER 2005 TO BOTH THE POST THROUGH PROPER CHANNEL WHICH WAS DISPATCHED VIDE NO.22/JFTC/SM/1719 DATED 26TH DECEMBER, 2005.** **EXHIBIT P4: COPY OF OFFICE ORDERS NO.8/P&A/1342, DATED 27TH MARCH 2006, OF SMT.RAJIMOL JOSE.** **EXHIBIT P5: COPY OF OFFICE ORDRS NO.8/P&A/1343 DATED 27TH MARCH 2006, OF SMT.LAKSHMI NAIR.** - **EXHIBIT P6: COPY OF OFFICE ORDERS NO.8/P&A/1344 DATED 27TH MARCH 2006, OF SMT.SJEEJA V.S.** **EXHIBIT P7: COPY OF OFFICE ORDERS NO.8/P&A/1345 DATED 27TH MARCH 2006 OF SMT.MERCY JOHN KITHU.** **EXHIBIT P8: COPY OF THE VIGILANCE ENQUIRY REPORT NO.VE19/06/PTA DATED 30TH JUNE 2009.** **EXHIBIT P9: OFFICE ORDER NO.MD/01/36/2011 DATED 23 FEBRUARY, 2011 PROMOTING SMT.RAGIMOL JOSE AS ASSISTANT MANAGER.** - **EXHIBIT P10: OFFICE ORDER NO.MD/01/37/2011 DATED 23 FEBRUARY 2011 PROMOTING SMT.MERCY JOHN KITTU AS ASSISTANT MANAGER.** - **EXHIBIT P11: BY NOTICE NO.185/P&A/1744 DATED 3RD AUGUST, 2010 INVITING APPLICATION FOR THE POST OF OFFICER (STORE), OFFICER (Q.A.) OFFICER (MARKETING) AND PS.TO MD.** **EXHIBIT P12: PETITIONER'S REPRESENTATION DATED 3RD SEPTEMBER, 2010.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R9(A): A TRUE COPY OF COVER PAGE OF BOOKS ISSUED BY THE SAID INSTITUTION.** **//TRUE COPY//** **P.A. TO JUDGE** **STK** **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = = W.P. (C) No.27845 of 2011** **- - - - - - - - - -- - - - - - - - - - -** Dated this the 19th day of January, 2016 ## **J U D G M E N T** The petitioner has been working in the Personnel Department of Traco Cable Company, Thiruvalla, from 1999 onwards. She was selected through the Kerala Public Service Commission, in the year 1990, as Typist. The company, vide Ext.P1 notice, invited application for the post of Officer (P&A) and vide Ext.P2 notice, invited application for the post of Officer (Marketing). The petitioner also participated in the selection process; but, she failed in the said process and respondents 6 to 9 were selected to the post of Officer (P&A). Subsequently, the 2[nd] respondent invited application for the post of Officer (Store), Officer (Q.A.), ## **W.P.(C) No. 27485 of 2011** **-: 2 :-** Officer (Marketing) and P.S. to M.D. vide Ext.P11 and the petitioner also applied for the said Officer's post. The petitioner submitted Ext.P12 representation to the 3[rd] respondent through proper channel to consider her, for the post of Officer, to be filled up, by internal selection, after considering her eligibility; but, the same has not been considered so far. 2. The main grievance of the petitioner in this writ petition is that on a complaint filed by the Employees' Union to the Government, the Government ordered vigilance enquiry into the selection process and by Ext.P8 Vigilance Enquiry Report, it is recommended that the selection process regarding three persons, who were promoted to the post of Officer (P&A) and one person as Officer (Marketing) is illegal and all of them shall be ## **W.P.(C) No. 27485 of 2011** ## **-: 3 :-** reverted to their Clerical cadre and fresh recruitment may be done for the post of Officer (P&A) and Officer (Marketing) and the 9[th] respondent be terminated from the service of the 1[st] respondent. But, in spite of the recommendations in the Vigilance Enquiry Report, the Company has partly accepted the report and suspended the 9[th] respondent. No action has been taken against respondents 6 to 8. That apart, they have been promoted to higher posts. According to the petitioner, partial acceptance of the Vigilance Enquiry Report is not permitted in law and the same is arbitrary, illegal and unreasonable. Hence it is with these averments, this writ petition is filed with the following prayers : _A. to issue a Writ of Mandamus or any other appropriate writ, order or direction, commanding the 3[rd] respondent to implement the recommendations as per Exhibit P8 by reverting the respondents 6 to 9 and to take fresh steps for_ ## **W.P.(C) No. 27485 of 2011** ## **-: 4 :-** _recruitment for the post of Officer (P&A) and Officer (Marketing) ;_ _B. to issue a writ of certiorari calling for the records leading to Exhibit P4, Exhibit P5, Exhibit P6 and Exhibit P7 issued by the 3[rd] respondent and to quash the same ;_ _C. to issue a Writ of Mandamus or any other appropriate writ, order or direction, commanding the 3[rd] respondent to complete the selection process as per Exhibit P11 without further delay ; and_ _D. to grant such other relief's as this Hon'ble Court may deem fit in the circumstance of this case.”_ 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for the 2[nd] respondent and the learned counsel appearing for respondents 6 to 9 in this writ petition. 4. The 2[nd] respondent has filed a counter statement denying the allegation that the 2[nd] respondent has not implemented Ext.P8 Vigilance Enquiry Report. The petitioner has applied for the above post and she participated in the selection procedure. Since the performance of the petitioner was not satisfactory, she was not selected as ## **W.P.(C) No. 27485 of 2011** ## **-: 5 :-** 'Officer' and the petitioner also accepted this decision. After six years, the petitioner has challenged the said selection process, which has no legal force and it is without any _bona fides_ . Even according to the petitioner, Ext.P8 Vigilance Enquiry Report is dated 30.06.2009 and the contention that, the 2[nd] respondent has not implemented Ext.P8 Vigilance Enquiry Report, is made with an ulterior motive. As per Ext.P8 report, the Management initiated action against the 9[th] respondent, after the registration of a crime against her, by the local police, alleging that certificate showing educational qualification produced by the 9[th] respondent was fake. The Management suspended the 9[th] respondent pending enquiry and subsequently considering the fact that she did not have the specified qualification, for ## **W.P.(C) No. 27485 of 2011** ## **-: 6 :-** the post which she was holding, the 9[th] respondent was reverted to the post of Clerk. There is no reason to raise those issues in this writ petition. 5. The sum and substance of the arguments advanced by the learned counsel for the petitioner is that it is obligatory on the part of the 2[nd] respondent to accept the Ext.P8 Vigilance Enquiry Report, as such and to implement the recommendations made by the Investigating Officer as such, without any change. According to the petitioner, the selection process under Ext.P1 order vitiated by fraud, nepotism, favouritism etc. and those allegations are supported by Ext.P8 Vigilance Enquiry Report. In that view of the matter, Ext.P8 Vigilance Enquiry Report filed by the Deputy Superintendent of Police, was liable to be accepted and implemented as such. The case of the 2[nd] ## **W.P.(C) No. 27485 of 2011** ## **-: 7 :-** respondent is that on receipt of Ext.P8 report, the 2[nd] respondent has applied its mind and taken action to the extent that the 2[nd] respondent considered it just and proper and the 2[nd] respondent is not liable to accept the recommendations made respecting the disciplinary proceedings, by the Investigating Officer of the Vigilance Department as such. It is also contended that the 2[nd] respondent has gone beyond the power vested in him under the Vigilance enquiry and made recommendations to terminate certain employees and also made a recommendation that the suspended Officer never be posted as 'Chairman' or 'Managing Director' in any of the public limited companies in future. Such recommendations are beyond the scope of enquiry entrusted to the Vigilance Department. Pursuant to the registration of the crime against the 9[th] ## **W.P.(C) No. 27485 of 2011** **-: 8 :-** respondent, by local the police, the 9[th] respondent was suspended, pending enquiry, and subsequently, considering the fact that she did not have the specified qualification for the post, which she was holding, she was reverted to the post of Clerk. The petitioner has not availed of any of the remedies provided under the standing Orders and Service Rules governing the service matters, challenging the promotion of respondents 6 to 9 or claiming her promotion. Without availing such opportunities, permitted under the Rules, the petitioner has directly approached this Court, after six years from the date of selection, challenging the promotion of respondents 6 to 9. So also, Ext.P12 representation made by the petitioner is not liable to be considered, without a specific selection process provided under the standing orders. ## **W.P.(C) No. 27485 of 2011** **-: 9 :-** 6. In view of the rival submissions made at the Bar, the point to be considered is, whether there is any reason or circumstance, warranting interference of this Court and to allow the reliefs, invoking the extra ordinary jurisdiction of this Court, under Article 226 of the Constitution of India. 7. Going by the Vigilance Report, it is seen that a vigilance enquiry was ordered, on the basis of a complaint filed by the Employees' Association and, after the enquiry, the Deputy Superintendent of Police filed Ext.P8 Vigilance Enquiry Report with certain recommendations. This Court is of the view that, where an offence of criminal misconduct alleged against a public servant is sought to be investigated by the Vigilance Department of the Police, after having found the public servant guilty ## **W.P.(C) No. 27485 of 2011** **-: 10 :-** of the allegations, if the Investigating Officer dictates the terms of departmental disciplinary action to be taken against the errant public servant, in the Vigilance Report, the Authority competent to remove him from his office is not liable to implement the terms of disciplinary action dictated by the Investigating Officer, as such. The main purpose of the vigilance enquiry is to unearth the offence of criminal misconduct, allegedly committed by the public servant and set the criminal law in motion to prosecute and punish him, under the law for the time being in force. It is within the domain of the Investigating Officer, with sanction of the Government or the Authority competent to remove him from his office. The Investigating Officer can file report, suggesting the action to be taken against the errant public servant. But, in my ## **W.P.(C) No. 27485 of 2011** ## **-: 11 :-** view, the terms or the manner of departmental disciplinary action to be taken against a public servant, who has committed a criminal misconduct is a matter within the domain of the Government or the Authority competent to remove him from service. In short, it is a privilege vested with the Authority competent to remove him from service only. Therefore, that part of the recommendation made by the Investigating Officer, which dictates the terms of departmental disciplinary action to be taken, is not liable to be implemented, as such, by the Government or the Authority competent to remove him from service, in the case of a Government Company. 8 _._ In the above view, this Court is not inclined to exercise the extraordinary jurisdiction under Art.226 of the Constitution of India to direct the 3[rd] respondent to implement the disciplinary ## **W.P.(C) No. 27485 of 2011** **-: 12 :-** action recommended by Ext.P8 Vigilance Enquiry Report, as such, where the 3[rd] respondent is not legally liable to do so. Needless to say, the petitioner has no legally enforceable right in this respect. The writ of mandamus can be issued to enforce an established right only. This view is supported by the decision laid down by the Apex Court in _**Rajasthan State Industrial Defelopment Appellants and Investment Corporation and Another v. Diamond and Gem Development Corporation Ltd.**_ _**and Another**_ [(2013) 5 SCC 470]. In the above decision, the Supreme Court held that writ petition does not lie to create or establish a legal right, but to enforce on that is already established. 9. The learned counsel cited the decisions reported in _**Krishan Yadavad and Another v State of Haryana and Others**_ [1994 (4) SCC 165]; _**Suma Verma**_ **W.P.(C) No. 27485 of 2011** **-: 13 :-** _**v Union of India and Others**_ [2004 (12) SCC 58]; _**M.P. State Co-op. Bank Ltd., Bhopal v Nanuram Yadav and Others**_ [2007 (8) SCC 264]; _**S.C. Chandra and Others v State of Jharkhand and Others**_ [2007 (8) SCC 279]; _**State of Bihar v Upendra Narayana Singh and Others**_ [2009 (5) SCC 65] and _**Food Corporation of India v S.N. Nagarkar**_ [2002 (2) SCC 475]. I have carefully considered all the above decisions; but none of these decisions persuade this Court to countenance the arguments that the Authority competent to remove a public servant from his office is bound to take disciplinary action against the public servant in accordance with the terms of action dictated by the Investigating Officer, who conducted the vigilance enquiry. It is also noticed that none of these decisions are relevant on the point to be considered in this writ petition. ## **W.P.(C) No. 27485 of 2011** ## **-: 14 :-** 10. In the above view of the matter, the 3[rd] respondent, being the Managing Director of the 2[nd] respondent Company, is not liable to implement the terms of disciplinary action dictated against the employees, by the Investigating Officer in Ext.P8 Vigilance Enquiry Report, as the same falls under the domain of the Authority competent to remove him from his office, in accordance with the Service Rules or the Memorandum of Understanding, in the case of a Company. In the above analysis, this writ petition is devoid of merits and _bona fides_ . In the result, this writ petition will stand dismissed. Sd/- **K. HARILAL,** **JUDGE** **ami/DST** //True copy// P.A. To Judge