O.P.(KAT) No.5 of 2021

O.P.(KAT) No.5 of 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942** **OP(KAT).No.5 OF 2021** **AGAINST THE ORDER IN OA 718/2020 DATED 18-12-2020 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS 1 & 2 IN OA:** **1 THE SECRETARY TO GOVERNMENT INDUSTRIES DEPARTMENT,GOVT.SECRETARIAT, THIRUVANANTHAPURAM,PIN-695001.** - **2 THE DIRECTOR OF INDUSTRIES AND COMMERCE, DIRECTORATE OF INDUSTRIES AND COMMERCE, VIKAS BHAVAN, 3RD FLOOR, UNIVERSITY OF KERALA, SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM.** ## **BY SR. GOVERNMENT PLEADER SRI ANTONY MUKKATH** ## **RESPONDENT/APPLICANT/3RD RESPONDENT IN OA:** |**1**|**BIJU KURIAN, AGED**|**49 YEARS,**| |---|---|---| ||**S/O.C.G.KURIAN,GENERAL MANAGER,**|| ||**DISTRICT INDUSTRIES CENTRE,**|| ||**IDUKKI-685602,**|| ||**RESIDENT OF BABYS**|**BUNGLOW,**| ||**AMPALTHUMKALA.P.O,**|| ||**EZHUKONE,**|| ||**KOLLAM,PIN-691505.**|| O.P.(KAT) No.5 of 2021 2 **2 P.S.SURESH KUMAR, AGED 52 YEARS S/O.SUKUMARAN.K.N(LATE), JOINT DIRECTOR/GENERAL MANAGER, INDUSTRIES AND COMMERCE DEPARTMENT, WAYANAD DISTRICT, RESIDING AT PADITHIRAPPALLIL,MOOLAVATTOM.P.O, KOTTAYAM, PIN-686012.** ## **R1 BY SRI.P.NANDAKUMAR** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 06.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(KAT) No.5 of 2021 3 ## **ALEXANDER THOMAS & T.R. RAVI, JJ. -----------------------------------------------O.P.(KAT) No.5 of 2021** (Arising out of order dated 18.12.2020 in O.A.718/2020 of Kerala Administrative Tribunal, Thiruvananthapuram) **--------------------------------------------------** ## **Dated this the 6[th] day of January, 2021 JUDGMENT** ## **ALEXANDER THOMAS, J.** The prayers in the aforecaptioned Original Petition filed under Articles 226 and 227 of the Constitution of India, are as follows; “1. To set aside Exhibit P4 order dated 18.12.2020 of the Kerala Administrative Tribunal in O.A.No.718/2020. 2. To issue other reliefs this Honourable Court may deem fit in the Original Application.” 2. Heard Sri Antony Mukkath, learned Senior Government Pleader appearing for the petitioners (State of Kerala in the Industries Department and the Director of Industries and Commerce)/ respondents 1 and 2 in the OA before the Tribunal and Sri P.Nandakumar, learned Advocate appearing for the 1[st] respondent herein (original applicant before the Tribunal). In the nature of the order proposed to be passed, notice to the 2[nd] respondent will stand dispensed with. O.P.(KAT) No.5 of 2021 4 3. The 1[st] respondent had approached the Kerala Administrative Tribunal, Thiruvananthapuram Bench by filing the instant O.A.No.718 of 2020 seeking quashment and setting aside of the impugned Annexure A4 G.O.(Rt)No.345/2020/ID dated 25.05.2020 issued by the Governmental authorities in the Industries Department, whereby the 1[st] respondent herein (original applicant) was ordered to be placed under suspension pending disciplinary proceedings. The Tribunal as per the impugned Ext.P4 final order dated 18.12.2020 in O.A.No.718 of 2020 has set aside and quashed the said Annexure A4 suspension order dated 25.05.2020 and has also quashed the disciplinary proceedings referred to therein and has ordered that the original applicant (1[st] respondent herein) may be reinstated in service in the same post he was working, i.e., as the General Manager of District Industries Centre, Idukki. Incidentally, it is also relevant to note that the 1[st] respondent herein had also filed another original application, viz; O.A.No.403 of 2020 seeking for quashment of the impugned transfer order dated 20.02.2020, whereby he was ordered to be transferred from Idukki to Wayanad. As a matter of fact, the Tribunal as per Ext.P4 has rendered a common final order dated 18.12.2020 and finally disposed of both the above said Original Applications one in relation to the suspension order and the other in relation to the transfer order. O.P.(KAT) No.5 of 2021 5 4. Various submissions have been made by both sides. Sri Antony Mukkath, the learned Senior Government Pleader appearing for the petitioners would urge that apart from the illegality in quashing the suspension order, it is to be noted that the original applicant had never sought for quashment of the disciplinary proceedings in the prayers in the instant O.A.No.718 of 2020 and as a matter of fact he had in fact instituted and filed a separate original application as O.A.No.944 of 2020 before the same Tribunal seeking for quashment of the said impugned disciplinary proceedings and that the Tribunal has committed an error apparent on the face of record while passing the impugned order Ext.P4 whereby not only the suspension order has been quashed, but also the disciplinary proceedings referred to therein also have been quashed and that too without quashing the memo of charges and without considering the legality and correctness of the memo charges dated 12.06.2020, produced as Ext.P2 herein on Page 127 of the paper book of this case. It is also, inter alia, pointed out by the learned Senior Government Pleader that the quashment of the impugned proceedings, without a plea in that regard in the present OA and without considering the legality or correctness of Ext.P2 memo of charges dated 12.06.2020 and without quashing the said memo of charges would certainly be an error apparent on the face of record, O.P.(KAT) No.5 of 2021 6 which would require interdiction. 5. After hearing both sides, it is to be noted at the outset that this Court has rendered two separate orders yesterday, viz; order dated 05.01.2021, one in O.P.(KAT)No.3 of 2021 filed by the State authorities challenging the above said common order of the Tribunal rendered on 18.12.2020 in O.A.No.403 of 2020, which relates to the interdiction in the transfer order and this Court held that the interference made by the Tribunal with the said transfer order dated 20.02.2020 is not right and proper and has accordingly interfered with the impugned final order rendered by the Tribunal to the extent it concerns the transfer matter and this Court has also given liberty to the State authorities concerned to immediately implement the the impugned transfer order dated 20.02.2020, but also with the rider that the competent authorities of the State Government should immediately consider the request of the original applicant for posting either in Kollam or in the vacancy said to be available in neighbouring district, viz; Pathanamthitta, taking into account the fact that the applicant has a plea that out of his total 16 years of service, he has already spent 13 long outstation service outside his preferred home district at Kollam and out of which he has already undergone two outstation services in arduous and hilly terrain areas one at Wayanad and one at Idukki. Further, it is also to be noted that O.P.(KAT) No.5 of 2021 7 some of the lady employees concerned who are stated to have given complaints against the original applicant regarding his conduct, stated to have happened during the period of stay at Idukki, which forms part of the main basis of the allegations in the suspension order had also approached this Court by filing O.P.(KAT)No.450 of 2020 praying for interference with the present impugned order dated 18.12.2020 of the Tribunal in the instant O.A.No.718 of 2020 to the extent it has quashed the suspension order and disciplinary action and also the consequential direction issued by the Tribunal to reinstate the original applicant in the very same station at Idukki. 6. In the light of the dictum laid down by the Apex Court in the decisions as in _**Rajeev Kumar and another v. Hemaraj Singh Chauhan and others** [(2010) 4 SCC 554]_ as well as the judgment of the Division Bench of this Court as in the judgment dated 12.07.2010 in WP(C) No.20979 of 2010 as well as the judgment of this Court in _**Gireesh Babu M.B. and others v. Pavithran T.T.V. and others** [2013 (3) KHC 165]_ as well as the dictum laid down by the Full Bench of this Court in the recent decision in _**Haris K.M. v. Jahfar K.** [2020 (4) KLJ 846]_ , we hold that the challenge made by such parties who are essentially third parties before the Tribunal in the impugned proceedings cannot be entertained by this Court as a Court of first O.P.(KAT) No.5 of 2021 8 instance and that the remedy of such third parties who claim to be aggrieved by the decision of the Tribunal would be to approach the Tribunal by filing review application along with necessary application for third party leave, delay condonation application, etc. and convince the Tribunal as to how they are directly affected by the impugned decision of the Tribunal and then to seek review and recall the impugned order inasmuch as if they can establish that they were not heard in spite being detrimentally affected. 7. The learned counsel for the petitioners in O.P.(KAT)No.450 of 2020 had also then submitted that review application and other necessary applications will be filed before the Kerala Administrative Tribunal so as to challenge the impugned order dated 18.12.2020 rendered by the Tribunal in the instant O.P.(KAT)No.718 of 2020 to the extent it has interfered with the suspension order and disciplinary action and other allied matters. Further, the complaint now voiced by the learned Senior Government Pleader representing the petitioners in O.P.(KAT)No.5 of 2021 as well as that by the petitioners in O.P. (KAT)No.450 of 2020 (filed by third parties, which was disposed of by us yesterday), is that the impugned direction to reinstate the original applicant in the very same station and post at Idukki will not survive any longer inasmuch as this Court has already passed a separate order O.P.(KAT) No.5 of 2021 9 yesterday (05.01.2021) finally disposing of O.P.(KAT)No.3 of 2021 whereby the impugned transfer order dated 20.02.2020 has been upheld and the interdiction by the Tribunal has been set aside by this Court and liberty has been given to the State authorities to immediately implement transfer order dated 20.02.2020, but with a rider to immediately thereafter consider the plea of the petitioner for posting in the other stations concerned. Therefore the said complaint voiced by both the aforesaid parties including the State authorities regarding the legality or otherwise of one of the decisions of the Tribunal to reinstate the original applicant in the very same post in the very same station at Idukki does not any longer survive for consideration. Further, since third parties have already been directed to approach the Tribunal by filing formal review application as per the judgment rendered by us yesterday (05.01.2021) in O.P.(KAT)No.450 of 2020 filed by the said third parties, regarding the right of this Court to entertain the present O.P.(KAT)No.5 of 2021 filed by the State authorities concerned, seeking for interference with the directions issued by the Tribunal to the extent concerning suspension and disciplinary matter, inasmuch as the discretion of the Tribunal to entertain the review application at the instance of the above said third parties as ordered in O.P.(KAT)No.450 of 2020 may be unnecessarily affected. Therefore, we suggested that O.P.(KAT) No.5 of 2021 10 for the time being, as of now it would not be right and proper for this Court to entertain the present OP(KAT) No.5 of 2021 by keeping it pending and liberty could be accorded to the petitioners State authorities to wait for the orders of the Tribunal on the review application to be filed by third parties as per the directions in O.P. (KAT)No.450 of 2020 and thereafter if the State authorities have any subsisting grievance as regards the impugned order dated 18.02.2020 rendered by the Tribunal in O.A.No.718 of 2020, then certainly, they will be at liberty to approach this Court again and all contentions of both sides would be left open to be raised in such appropriate proceedings in the manner known to law. When we expressed our view in that regard, Sri Antony Mukkath, learned Senior Government Pleader appearing for the petitioners would fairly submit that if that be so, in case this Court is taking the said stand, liberty may be given to the petitioner State authorities concerned to wait for the orders of the Tribunal in the review application filed by such third parties pursuant to the direction in O.P.(KAT)No.450 of 2020 and thereafter, in case the State authorities have any subsisting grievance, they may be given liberty to approach this Court and liberty may be accorded to them on all contentions in that regard. Further, Sri Antony Mukkath, learned Senior Government Pleader appearing for the petitioner State O.P.(KAT) No.5 of 2021 11 authorities would also submit that leave may also be accorded to the State authorities to prefer separate review applications to challenge the above final order dated 20.02.2020 rendered by the Tribunal in O.A.No.718 of 2020, in case the State authorities are so inclined, most particularly, as the impugned order passed by the Tribunal quashing not only the suspension order but also the disciplinary proceedings without quashing the memo of charges and without considering the legality and correctness of the said memo of charges and without a prayer for quashment of the memo of charges and also when a separate original application as O.A.No.944 of 2020 was already filed by the original applicant before the Tribunal, separately challenging the said memo of charges, would certainly amount to an error apparent on the face of record. Accordingly, it is urged that this Court may also reserve liberty to the State authorities not only to approach this Court at the appropriate time, but also to approach the Tribunal by filing review application, if so advised, and if they are so inclined. The above said views made by Sri Antony Mukkath, learned Senior Government Pleader appearing for the petitioners appears to be eminently fair, reasonable and just. Accordingly, it is ordered that liberty is accorded to the petitioners herein/State authorities concerned to wait for the orders of the Tribunal in the review application proposed to be filed by O.P.(KAT) No.5 of 2021 12 third parties as per the direction in O.P.(KAT)No.450 of 2020 and it is also made clear that in case the third parties do not file any review application within a reasonable time of 5 to 6 weeks, then also the State authorities will be at liberty to approach this Court for challenging the aforesaid order of the Tribunal on all contentions available to them in law. Liberty is also accorded to the State authorities to prefer separate review applications to impugn the order dated 18.02.2020 in O.A.No.718 of 2020 in relation to the suspension matter, if they are so advised and all contentions available to them in that regard for raising such review plea are also kept reserved intact and reserved in the manner known to law with liberty to approach this Court at appropriate time, if they have any subsisting grievance after the Tribunal renders orders in that regard and such filing of review application will also be without prejudice to the right of the State authorities to approach this Court at the appropriate time and all contentions available to them in law are kept open as above directed. Needless to say, since this Court has already passed separate order yesterday (05.01.2021) in O.P. (KAT)No.3 of 2021 filed by the State authorities, whereby the impugned transfer order dated 20.02.2020 has already been upheld with liberty to the State authorities to implement the same, but subject to the said rider, the complaint of the State authorities about the impugned O.P.(KAT) No.5 of 2021 13 direction issued by the Tribunal to also reinstate and re-post the original applicant in the very same post at Idukki does not any longer survive for consideration. With these observations and directions, and with the said liberty, this OP(KAT) filed by the State authorities will stand disposed of. **==> picture [107 x 34] intentionally omitted <==** Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn O.P.(KAT) No.5 of 2021 14 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE O.A.NO.718/2020 ALONG WITH ANNEXURES** **ANNEXURE A1 TRUE COPY OF THE GO(RT)NO.810/2017/ID DATED 13/06/2017 OF GOVT.OF KERALA.** - **ANNEXURE A2 TRUE COPY OF THE INTERIM ORDER DATED 24/02/2020 IN O.A.NO.403/2020 OF THE HONOURABLE KAT.** - **ANNEXURE A3 TRUE COPY OF THE INTERIM ORDER DATED 23/03/2020 IN OA NO.403/2020 OF THE HONOURABLE KAT.** - **ANNEXURE A4 TRUE COPY OF THE GO(RT)NO.345/2020/INDUSTRIES DATED 25/05/2020 OF THE 1ST RESPONDENT.** - **ANNEXURE A5 TRUE COPY OF THE FINAL ORDER DATED 13/07/2017 IN O.A.NO.1263/2017 OF THE HONOURABLE KAT** - **ANNEXURE A6 TRUE COPY OF THE GO(RT)NO.896/2018/ID DATED 28/07/2018 OF GOVT. OF KERALA.** - **ANNEXURE A7 TRUE COPY OF THE FINAL ORDER DATED 07/11/2018 IN OA NO.1455/2018 OF THE HONOURABLE KAT** - **ANNEXURE A8 TRUE COPY OF THE REPLY STATEMENT FILED IN O.A.NO.1455/2018 WITH ANNEXURES BY THE 1ST RESPONDENT.** - **ANNEXURE A9 TRUE COPY OF THE GO(RT)NO.157/2020 INDUSTRIES DATED 20/02/2020 OF THE GOVERNMENT OF KERALA.** - **ANNEXURE A10 TRUE COPY OF THE REPLY STATEMENT IN OA N0.403/2020 ALONG WITH ANNEXURES FILED BY THE 1ST RESPONDENT.** **ANNEXURE A11 TRUE COPY OF THE LETTER NO.DIC/731/2020-ED1 DATED 06/03/2020 OF THE 2ND RESPONDENT.** O.P.(KAT) No.5 of 2021 15 - **ANNEXURE A12 TRUE COPY OF THE REPRESENTATION DATED 16/03/2020 SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT.** - **ANNEXURE A12(A) TRUE COPY OF THE FORWARDING LETTER NO.DICIDK/70/2020-A1 DATED 13/05/2020 -A1 DATED 13/05/2020 OF THE GENERAL MANAGER,DISTRICT INDUSTRIES CENTRE,IDUKKI.** - **ANNEXURE A13 TRUE COPY OF THE MEMO NO.A5/2783/2017 DATED 26/11/2018 ISSUED BY THE APPLICANT SRI.BABU RAJ.K.K.** - **ANNEXURE A13(A) TRUE COPY OF THE MEMO NO.A5/2783/2017 DATED 26/11/2018 ISSUED BY THE APPLICANT TO SMT.SINDHU.P.K.** - **ANNEXURE A13(B) TRUE COPY OF THE MEMO NO.A5/2783/2017 DATED 26/11/2018 ISSUED BY THE APPLICANT TO SMT.RESHMA.G.** - **ANNEXURE A13(C) TRUE COPY OF THE MEMO NO.A5/2783/2017 DATED 26/11/2018 ISSUED BY THE APPLICANT TO SRI.VIJESH.N.V.** - **ANNEXURE A13(D) TRUE COPY OF THE MEMO NO.A5/2783/2017 DATED 26/11/2018 ISSUED BY THE APPLICANT TO SMT.BINCY MOL.T.** - **ANNEXURE A13(E) TRUE COPY OF THE MEMO NO.A5/2783/2017 DATED 26/11/2018 ISSUED BY THE APPLICANT TO SRI.VISHAK.P.S.** - **ANNEXURE A13(F) TRUE COPY OF THE SHOW CAUSE NOTICE NO.A1/689/2019 DATED 22/02/2019 ISSUED BY THE APPLICANT TO SRI.BABU RAJ.K.K.** - **ANNEXURE A13(G) TRUE COPY OF THE SHOW CAUSE NOTICE NO.DICIDK/2234/2019-A1 DATED 18/03/2020 ISSUED BY THE APPLICANT TO SRI.BABU RAJ.K.K.** - **ANNEXURE A13(H) TRUE COPY OF THE SHOW CAUSE NOTICE NO.DICIDK/2321/2019-A4 DATED 01/10/2019 ISSUED BY THE APPLICANT TO SMT.BINCY MOL.T.** - **ANNEXURE A13(I) TRUE COPY OF THE SHOW CAUSE NOTICE DATED 20/03/2020 ISSUED BY THE APPLICANT TO SRI.T.UDAYAKUMAR.** O.P.(KAT) No.5 of 2021 16 |**ANNEXURE A13(J)**<br>**TRUE COPY OF THE SHOW CAUSE NOTICE**|**ANNEXURE A13(J)**<br>**TRUE COPY OF THE SHOW CAUSE NOTICE**| |---|---| |**NO.A1/501/2018 DATED 24/07/2019 ISSUED BY**|| |**THE APPLICANT**|**TO SRI.RENJITH BABU.**| |**ANNEXURE A13(K)**<br>**TRUE COPY OF THE WARNING NOTICE**|| |**NO.A1/4378/18**|**DATED 06/12/2018 ISSUED BY**| |**THE APPLICANT**|**TO SRI VISHAK P.S.**| |**ANNEXURE A14**<br>**TRUE COPY OF THE REPORT NO.DICIDK/297/2020-**|| |**A1 DATED 14/05/2020 SUBMITTED BY THE**|| |**APPLICANT BEFORE THE 2ND RESPONDENT.**|| |**ANNEXURE A14(A)**<br>**TRUE COPY OF THE REPORT NO.DICIDK/297/2020-**|| |**A1 DATED 14/05/2020 SUBMITTED BY THE**|| |**APPLICANT BEFORE THE 2ND RESPONDENT.**|| |**ANNEXURE A15**<br>**TRUE COPY OF THE PMEGP E-PORTAL ONLINE**|| |**REPORT.**|| |**ANNEXURE A16**<br>**TRUE COPY OF THE PROCEEDINGS**|| |**NO.DIC/1516/2020-EDI DATED 26/05/2020 OF**|| |**THE 2ND RESPONDENT.**|| |**ANNEXURE A17**<br>**TRUE COPY OF THE REPORT OF CHARGE**|| |**(RTC)DATED 26/05/2020.**|| |**EXHIBIT P2**<br>**TRUE COPY OF THE MEMORANDUM ALONG WITH MEMO**|| |**OF CHARGES AND STATEMENT OF ALLEGATIONS**|| |**FILED BY THE FIRST PETITIONERS ON**|| |**15.06.2020**|| |**EXHIBIT P3**<br>**TRUE COPY OF THE REPLY STATEMENT ALONG WITH**|| |**ANNEXURES R1(A) TO R1(B)FILED BY THE FIRST**|| |**PETITIONER ON**|**22.06.2020.**| |**ANNEXURE R1(A) TRUE COPY OF THE COVERING LETTER IN**|| |**NO.DICIDK/70/2020-A1 DATED 13.05.2020 OF**|| |**GENERAL MANAGER,DISTRICT INDUSTRIES**|| |**CENTRE,IDUKKI.**|| |**ANNEXURE R1(B) TRUE COPY OF THE ORDER NO.DIC/731/2020/EDI**|| |**DATED 26.02.2020 OF DIRECTOR OF INDUSTRIES.**|| |**EXHIBIT P4**<br>**TRUE COPY OF THE FINAL ORDER OF THE**|| |**TRIBUNAL DATED 18.12.2020 IN O.A.718/2020.**||