Mohanakumar.T v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 23[RD] DAY OF JULY 2021 / 1ST SRAVANA, 1943** **WP(C) NO. 3576 OF 2021** ## **PETITIONER:** **MOHANAKUMAR.T, AGED 61 YEARS, S/O THANKAPPAN PILLAI, RESIDING AT ASWATHY BHAVAN, NETAJI ROAD, KSHETHRAM LANE, NRRA-D-4, VATTIYOOR KAVU P.O., THIRUVANANTHAPURAM-695 013.** **BY ADVS.** **S.CHANDRASEKHARAN NAIR SRI.RAJU GEORGE (KARUVATTA) SRI.S.GOKUL BABU SMT.AMALA.J.RAJ SHRI.BALAMURALI K.P.** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, KERALA STATE COUNCIL FOR SCIENCE AND TECHNOLOGY AND ENVIRONMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 KERALA STATE COUNCIL FOR SCIENCE AND TECHNOLOGY AND ENVIRONMENT, SASTHRABHAVAN, PATTOM P.O., THIRUVANANTHAPURAM-695 004, REPRESENTED BY EXECUTIVE VICE PRESIDENT.** **3 THE DiRECTOR, JAWAHARLAL NEHRU TROPICAL BOTANICAL GARDEN AND RESEARCH INSTITUTE, KARUMANCODE P.O., PACHA, PALODE, THIRUVANANTHAPURAM-695 562.** **BY ADVS. SRI.P.C.SASIDHARAN, SC, KSCSTE SRI.C.K.KARUNAKARAN,SC, R3 SRI.SUNIL KUMAR KURIAKOSE - GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.07.2021, ALONG WITH WP(C).19544/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 3576/2021 & 19544/2019** **-2-** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 23[RD] DAY OF JULY 2021 / 1ST SRAVANA, 1943 WP(C) NO. 19544 OF 2019** ## **PETITIONER:** **MOHANAKUMAR.T., AGED 59 YEARS,** **S/O. THANKAPPAN PILLAI, ASWATHY BHAVAN, NETAJI ROAD, KSHETHRAM LANE, NRRA-D-4, VATTIYOORKAVU P.O, THIRUVANANTHAPURAM-695 013.** **BY ADVS.** **S.CHANDRASEKHARAN NAIR SRI.RAJU GEORGE (KARUVATTA) SRI.S.GOKUL BABU SRI.S.JAYANT SHRI.MUHAMMADALI MANEKKATHODI SHRI.VISHNU PRABHAKAR V.S.** ## **RESPONDENTS:** **1 KERALA STATE COUNCIL FOR SCIENCE AND TECHNOLOGY AND ENVIRONMENT, SASTHRABHAVAN, PATTOM P.O., THIRUVANANTHAPURAM-695 004, REPRESENTED BY EXECUTIVE VICE PRESIDENT.** **2 THE DIRECTOR, JAWAHARLAL NEHRU TROPICAL BOTANICAL GARDEN AND RESEARCH INSTITUTE, KARUMANCODE P.O, PACHA, PALODE, THIRUVANANTHAPURAM - 695 562.** **BY ADVS.** **SRI.P.C.SASIDHARAN, SC, KSCSTE SRI.C.K.KARUNAKARAN, SC, R2** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.07.2021, ALONG WITH WP(C).3576/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 3576/2021 & 19544/2019** **-3-** ## **JUDGMENT** ## **[WP(C) Nos.3576/2021, 19544/2019]** The petitioner, in these two cases - which have been heard together and are being disposed of through this judgment on account of the analogous nature of facts and circumstances urged and reliefs sought for – is stated to have entered the services of “Jawaharlal Nehru Tropical Botanical Garden and Research Institute" (hereinafter referred to as "Research Institute", for short) as Helper (Office Attendant). It transpires that he was thereafter given a ‘by transfer’ appointment as Driver; and that he continued to occupy the said post for a fairly long period of time. 2. The records reveal that the Financial Inspection Wing of the Kerala State Council for Science and Technology and Environment (hereinafter referred to as ‘State Council', for short) had subsequently conducted enquiry into the ## **WP(C) NO. 3576/2021 & 19544/2019** **-4-** affairs of the "Research Institute" and that an investigation under the aegis of the Vigilance and Anti-Corruption Bureau was also requisitioned. 3. The said enquiry seems to have found that petitioner's ‘by transfer’ appointment as Driver was irregular; and consequently, instructions were given to the "Research Institute" to revert him to the post of Helper (Office Attendant) and to recover from him all the benefits which he had obtained in the ‘promoted post’. This triggered Ext.P9 proceedings - produced along with W.P. (C)No.19544 of 2019 - of the Director of the "Research Institute", by which, petitioner was sent back to the post of Helper (Office Attendant) and proceedings recommended for recovery of salary and allowances drawn by him in the ‘promoted post’. It is this order which has been challenged by the petitioner in W.P.(C)No.19544 of 2019. 4. While so, the petitioner is stated to have ## **WP(C) NO. 3576/2021 & 19544/2019** **-5-** retired from service; and on the allegation that his retiral benefits have not been disbursed, he filed W.P.(C)No.3576 of 2021, praying that Ext.P10 proceedings of the Member Secretary of the “State Council” be set aside and his pensionary claims ordered to be disbursed, along with the benefits eligible to him under the Tenth Pay Revision order. 5. I have heard Sri.S.Chandrasekharan Nair - learned counsel appearing for the petitioner in both the cases; Sri.C.K.Karunakaran – learned Standing Counsel for the "Research Institute" and Sri.P.C.Sasidharan – learned Standing Counsel for the “State Council”. 6. Sri.P.C.Sasidharan – learned Standing Counsel for the “State Council”, refuted the afore submissions made on behalf of the petitioner, saying that it is evident from the records that his promotion had been granted irregularly by the ## **WP(C) NO. 3576/2021 & 19544/2019** **-6-** "Research Institute", even though the post of Helper (Office Attendant) was not in the feeder category for being offered promotion to the post of Driver. He submitted that, in fact, the post of Driver was twice ahead to the post of Helper (Office Attendant) and therefore, that the “State Council” was wholly justified in having instructed the "Research Institute" to make reparatory steps, including for recovery of amounts from the petitioner. He, therefore, prayed that these writ petitions be dismissed. 7. Sri.C.K.Karunakaran – learned Standing Counsel appearing for the "Research Institute", adopted the submissions of Sri.P.C.Sasidharan; adding that the 'promotion' given to the petitioner ‘by transfer' was in error and that when this was found out by the competent Authorities and the "Research Institute" notified of the same, they immediately issued Ext.P9 order ## **WP(C) NO. 3576/2021 & 19544/2019** **-7-** in W.P.(C)No.19544 of 2019, sending the petitioner back to his 'original post' and seeking that the amounts received in the 'promoted post' be repaid. He thus argued that there is nothing wrong in Ext.P9 in W.P.(C)No.19544 of 2019 and prayed that these writ petitions be dismissed. 8. When I consider the afore submissions and go through the materials available in these two cases, it becomes rather limpid that there are two broad issues involved, namely: (a) Whether the order of the "Research Institute", reverting the petitioner to the post of Helper (Office Attendant), was issued properly and after following due procedure; and (b) Whether even if the ‘promotion’ of the petitioner is found to be irregular, any amount can be sought to be recovered from him. 9. As far as the second issue is concerned, there can be little doubt that petitioner’s case ## **WP(C) NO. 3576/2021 & 19544/2019** **-8-** is covered by the judgment of the Hon’ble Supreme Court in **State of Punjab v. Rafiq Masih (White Washer)** [2015 (4) SCC 334], since he is, admittedly, a class IV employee and since he has now retired from service. 10. That said, even though Ext.P9 was issued while the petitioner was in service, the fact remains that he retired soon thereafter and any recovery could have been done only as per the provisions of **Rafiq Masih** (supra). Pertinently, in these cases, there is neither a whisper that petitioner was granted ‘promotion’ as a Driver for any reason which can be attributed to him; nor is there anything on record - even in the counter pleadings - that he was guilty of either misrepresentation, fraud or such other vitiating factors, in obtaining the 'promotion'. 11. On the contrary, Ext.P9 order in W.P. (C)No.19544 of 2019, would luculently indicate ## **WP(C) NO. 3576/2021 & 19544/2019** **-9-** that petitioner was promoted by the "Research Institute", and that when the said Institute was notified by the Authorities about the alleged irregularity in effecting the same, he was immediately ‘sent back’ to his original post of Helper (Office Attendant) and recovery ordered. 12. I am certain that, going by **Rafiq Masih** (supra), the recovery now ordered against the petitioner is impermissible, especially because there is not even a murmer in the counter pleadings that an enquiry against him had preceded this, in any manner whatsoever. I am, therefore, of the firm opinion that the recovery ordered through Ext.P9 in W.P.(C)No.19544 of 2019, against the petitioner is impermissible and contrary to law. 13. Returning to the first aspect, the allegation against the petitioner is that he was ‘promoted’ illegally to the post of Driver. As is ## **WP(C) NO. 3576/2021 & 19544/2019** **-10-** evident from Ext.P9 order in W.P.(C)No.19544 of 2019, the allegation is that his 'promotion' along with various others were effected by the "Research Institute" illegally, though they were not entitled to the same. 14. Even if these allegations are accepted to be true for the sake of the argument, Ext.P9 also reflects that no enquiry was ever conducted against the petitioner nor was his version taken before he was reverted as a Helper (Office Attendant) or recovery recommended against him. It is a fundamental principle in Administrative Law that when this Court embarks upon a judicial review of the action taken, it is the decision making process which is under scrutiny and not the decision _per se._ Therefore, even if the decision in Ext.P9 is found to be correct, eventually, the fact remains that the decision making process cannot subscribe to the standards required in law, ## **WP(C) NO. 3576/2021 & 19544/2019** **-11-** particularly because, as I have already said above, the petitioner has not been heard nor he been issued any notice, before he was reverted and recovery ordered against him. 15. I am, therefore, of the sure opinion that Ext.P9 to such extent cannot find my favour; and that the competent Authorities must now issue a proper notice to the petitioner and hear him before any action, as ordered therein, except recovery, can be initiated against him. In the afore circumstances, these writ petitions are ordered as under: (a) W.P.(C)No.19544 of 2019 is ordered and Ext.P9 is quashed to the extent to which it orders recovery of amounts from the petitioner; however, leaving full liberty to the competent Authorities to appositely notify the petitioner, leading to any decision ## **WP(C) NO. 3576/2021 & 19544/2019** **-12-** with respect to his reversion to the post of Helper (Office Attendant). **==> picture [313 x 17] intentionally omitted <==** ordered, directing the Authorities to grant the eligible pensionary benefits to the petitioner in the post of Helper (Office Attendant), if not already paid as per the interim order of this Court, within a period of one month from the date of receipt of a copy of this judgment; and in the event the petitioner is found eligible to be continued in the post of Driver, after the exercise ordered in paragraph (a) above, his benefits in the said post will also be made available to him without any avoidable delay. ## **WP(C) NO. 3576/2021 & 19544/2019** **-13-** (c) Needless to say, in view of my observations above, all recovery against the petitioner with respect to the salary and emoluments drawn by him in the post of Driver shall stand interdicted, going by the judgment of the Hon’ble Supreme Court in **Rafiq Masih** (supra). **Sd/DEVAN RAMACHANDRAN JUDGE** akv ## **WP(C) NO. 3576/2021 & 19544/2019** **-14-** ## **APPENDIX OF WP(C) 3576/2021** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER NO 134/ESST3/2020/JNTBGRI DATED 18.5.2020** - **EXHIBIT P2 TRUE COPY OF THE GO(P)67/2020/FIN THIRUVANANTHAPURAM DATED 27.5.2020** - **EXHIBIT P3 COPY OF THE PROCEEDING BEARING NO E1 4074/2003 DATED 1.8.2003** - **EXHIBIT P4 TRUE COPY OF THE ORDER NO 3015/EST/2017/JNTBGRI DATED 5.7.2019** - **EXHIBIT P5 TRUE COPY OF THE ORDER IN IA NO 1/2020 IN WPC NO 19544/2019 DATED 24.1.2020** **EXHIBIT P6 TRUE COPY OF THE WRIT PETITION IN WPC NO 19544/2019 DATED 15.7.2019** - **EXHIBIT P7 TRUE COPY OF THE ANOMALY COMMITTEE REPORT DATED 30.8.2009** - **EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 22.6.2020 SUBMITTED BEFORE THE 3RD RESPONDENT** - **EXHIBIT P8 (A) TRUE COPY OF THE REPRESENTATION DATED 22.6.2020 SUBMITTED BEFORE THE 2ND RESPONDENT** - **EXHIBIT P8 (B) TRUE COPY OF THE REPRESENTATION DATED 22.6.2020 SUBMITTED BEFORE THE 3RD RESPONDENT** **EXHIBIT P9 COPY OF THE JUDGMENT DATED 5.8.2020 IN WPC NO 15921/2020** ## **WP(C) NO. 3576/2021 & 19544/2019** **-15-** **EXHIBIT P10** **COPY OF THE ORDER DATED 18.11.2020 BEARING NO COUNCIL (M) ORDER NO 90/2020/KSCSTE.** **RESPONDENT'S/S EXHIBITS : NIL.** **//TRUE COPY//** **P.A. TO JUDGE** ## **WP(C) NO. 3576/2021 & 19544/2019** **-16-** ## **APPENDIX OF WP(C) 19544/2019** **PETITIONER'S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF DRIVING LICENCE AND BADGE OF THE PETITIONER ISSUED BY THE REGISTERING AUTHORITY** **EXHIBIT P2** - **TRUE COPY OF THE SECTIONAL ORDER NO. 147 DATED 30-07-1998 ISSUED BY THE REGISTRAR, TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE** - **EXHIBIT P3 TRUE COPY OF THE PROCEEDING BEARING NO. E1 4074/2003 DATED 1-8-2003 ISSUED BY THE REGISTRAR, TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE** - **EXHIBIT P4 TRUE COPY OF THE PAY SLIPS OF THE PETITIONER FOR THE MONTH OF JUNE 2019** - **EXHIBIT P4 TRUE COPY OF THE PAY SLIPS OF THE PETITIONER FOR THE MONTH OF MAY 2019** - **EXHIBIT P4 TRUE COPY OF THE PAY SLIPS OF THE PETITIONER FOR THE MONTH OF APRIL 2019** - **EXHIBIT P4 TRUE COPY OF THE PAY SLIPS OF THE PETITIONER FOR THE MONTH OF MARCH 2019** - **EXHIBIT P5 TRUE COPY OF ASSESSMENT PROMOTION AND CONSEQUENT FIXATION OF SALARY OF THE PETITIONER AND OTHERS DATED 18-12-2017** **EXHIBIT P6 TRUE COPY OF THE VIGILANCE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER** ## **WP(C) NO. 3576/2021 & 19544/2019** **-17-** **EXHIBIT P7 TRUE COPY OF PROCEEDINGS NO. BG3/209/95 DATED 12-07-1993 ISSUED BY THE ADMINISTRATIVE OFFICER, TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE** **EXHIBIT P8 TRUE COPY OF PROCEEDINGS NO. 275/ESTT 2/2017/JNTBGRI DATED 23/06/2017 ISSUED BY THE REGISTRAR, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE** **EXHIBIT P9 TRUE COPY OF ORDER NO. 3015/EST./2017/JNTBGRI DATED 05-07-2019 ISSUED BY JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE. EXHIBIT P10 TRUE COPY OF THE FINAL REPORT OF THE COMMITTEE ON RECTIFICATION OF IRREGULARITIES IN THE PAY FIXATION OF THE ADMINISTRATIVE AND TECHNICAL STAFF OF TBGRI. EXHIBIT P11 TRUE COPY OF SERVICE RULES OF TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE TBGRI.** **EXHIBIT P12 TRUE COPY OF RULES FOR RECRUITMENT AND PROMOTION OF ADMINISTRATIVE STAFF. EXHIBIT P13 TRUE COPY OF G.O.(MS) NO.57/79/PIG DATED 17/11/1979 ISXSUED BY THE PLANNING & ECONOMIC AFFAIS (SCIENCE & TECHNOLOGY) DEPARTMENT.** **EXHIBIT P14 TRUE COPY OF THE RELEVANT PAGES OF THE ORDER G.O.(P) NO.82/99/STED DATED 02/08/1999 ISSUED BY THE SCIENCE, TECHNOLOGY AND ENGIRONMENT DEPARTMENT.** **WP(C) NO. 3576/2021 & 19544/2019** **-18-** **EXHIBIT P15** **TRUE COPY OF THE PROCEEDINGS FDATED 16/05/2006 ISSUED BY THE REGISTRAR, TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE.** **RESPONDENT'S/S EXHIBITS : NIL.** **//TRUE COPY//** **P.A. TO JUDGE**