R. Daniel Madhukar v. Fertilizers and Chemicals Travancore Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 11TH DAY OF JULY 2017/20TH ASHADHA, 1939** ## **WP(C).No. 18911 of 2017 (L)** **----------------------------** ## **PETITIONER(S):** **-----------------------** **R. DANIEL MADHUKAR, AGED 55 YEARS, S/O R. RAJAIAH, DEPUTY GENERAL MANAGER (SPECIAL PROJECTS), FACT LIMITED (UNDER SUSPENSION), UDYOGMANDAL P.O., ERNAKULAM DISTRICT-683 501.** **BY ADVS.SRI.C.S.MANU, SRI.T.B.SIVAPRASAD.** **RESPONDENT(S):** - **------------------------** **1. FERTILIZERS AND CHEMICAL TRAVANCORE LTD., UDYOGMANDAL, ERNAKULAM DISTRICT-683 501, REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR.** **2. CHAIRMAN & MANAGING DIRECTOR, FERTILIZERS AND CHEMICALS TRAVANCORE, UDYOGMANDAL, ERNAKULAM-683 501.** **BY SRI.E.K.NANDAKUMAR, SENIOR SC. ADVS. SRI.M.GOPIKRISHNAN NAMBIAR, SRI.P.GOPINATH MENON, SRI.K.JOHN MATHAI, SRI.JOSON MANAVALAN, SRI.KURYAN THOMAS, SRI.PAULOSE C. ABRAHAM.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2017, ALONG WITH WP(C). NO.19908 OF 2017, THE COURT ON 11/07/2017 DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 18911 of 2017 (L)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1 TRUE COPY OF THE ORDER BEARING NO. CMD-DELHI-2016-04/1 DATED 03-11-2016 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE FIR IN CRIME NO. RC 13(A)/2016/CBI/ACB/ COCHIN ON THE FILES OF THE CBI/ACB/COCHIN DATED 30.09.2016.** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN AJAYKUMAR CHOUDHARY VS. UNION OF INDIA REPORTED IN (2015) 7 SCC 291.** **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 03-03-2017 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 23-03-2017 IN WP(C).NO.9158 OF 2017 PASSED BY THIS HON'BLE COURT.** - **EXHIBIT P6 TRUE COPY OF THE ORDER BEARING NO. CMD-CO-DR-034 DATED 30-05-2017 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R1A COPY OF THE CIRCULAR NO.000/VGL/187 OF OFFICE ORDER NO.2/1/04 DATED 08/01/2004.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ## **P.V.ASHA, J.** ## **W.P.(C) Nos.18911 & 19908 of 2017** ## **Dated this the 11[th] day of July, 2017** ## **JUDGMENT** Both these writ petitions are filed by two Deputy Managers working under the respondents aggrieved by the action of the respondents in retaining them under suspension without even issuing a memo of charge, since 3.11.2016. 2. Petitioners in both these writ petitions were placed under suspension as per separate orders issued on 3.11.2016 which are produced as Ext.P1 in both these cases. The suspension was consequent to the registration of a crime by the CBI with FIR No.RC13 (A)/2016/CBI/ACB/COCHIN with respect to certain irregularities in sale of bulk gypsum. Both the petitioners are Deputy General Mangers in Special Products and Marketing Operations respectively. Petitioners were placed under suspension under sub rule (a)(ii) of rule 21 of FACT Employees' (Conduct, Discipline and Appeal) Rules, 1977 for Managerial Personnel. Ext.P2 FIR was registered against them before the Court of Special Judge for CBI on 30.9.2016. Petitioners submitted Ext.P4 representation on 3.3.2017 before the 2[nd] respondent W.P.(C) Nos18911 & 19908/2017 **==> picture [14 x 10] intentionally omitted <==** requesting to revoke the suspension pointing out that no memo of charges was served on them even after the expiry of 90 days from the date of suspension. They pointed out that in the light of the judgment of the Apex Court in _**Ajay Kumar Choudhary vs. Union of India through its Secretary and another: (2015) 7 SCC 291**_ suspension should not extend beyond three months unless a memo of charge is issued. As no action was taken they approached this court in WP(C) Nos.9158 & 8763 of 2017. By judgment dated 22.3.2017, produced as Ext.P5 in both the writ petitions, the 2[nd] respondent was directed to pass orders on their representations. 3. Thereafter the 2[nd] respondent issued orders dated 30.5.2017, produced as Ext.P6, rejecting their requests. In Ext.P6 it was stated that they were placed under suspension in the background of the fact that the CBI had registered FIR No.RC13(A)/ 2016/CBI/ACB/COCHIN dated 30.9.2016 under section 120 B r/w 420 IPC and s.13 (2) r/w 13(1)(d) of the Prevention of Corruption Act based on a vigilance investigation conducted by the internal vigilance wing of the company. According to the 2[nd] respondent considering the serious imputations against the petitioners fist stage advice from the competent authority was mandatory before issuing charge sheet to the petitioners. The 2[nd] respondent stated that the judgment of the W.P.(C) Nos18911 & 19908/2017 **==> picture [14 x 10] intentionally omitted <==** Supreme Court was in a case where the period of suspension was prolonged and extended upto 4 years whereas in the case of petitioners the suspension was ordered only on 3.11.2016 and the reason for suspension from service is still persisting. 4. Petitioners have filed these writ petitions in the above background challenging the orders Exts.P1 and P6. According to them when this court directed the 2[nd] respondent to consider the representations, the 2[nd] respondent did not have any authority to distinguish the judgment and reject the representation. The Apex Court has held that the persons under suspension shall be reinstated on expiry of three months in case memo of charges is not issued. 5. The respondents have filed a counter affidavit stating that petitioners were placed under suspension on very serious charges. They have explained the circumstances under which the irregularities were detected in the sale of gypsum when the petitioners were the Deputy General Managers in charge of the same. It is pointed out that the allegations involved rigging of tender for sale of gypsum through collusion between some company officials and tenderers. The company had received communication dated 12.8.2016 from the Under Secretary to the Government of India, Department of Fertilisers stating that allegations of irregularities into the sale of gypsum was under W.P.(C) Nos18911 & 19908/2017 **==> picture [14 x 10] intentionally omitted <==** investigation and directing to stay the activities of the sale. The Department of Fertilisers (DoF) directed the company to take disciplinary action against the then Chief General Manager (Marketing) Chief General Manager (Finance), Dy.General Manager (Marketing Operations), Dy.General Manager (Special Products) General Manger (Finance) and Dy.General Manager (Internal Audit) on the basis of the vigilance investigation report. The order of suspension was issued in compliance with the direction of the Department of Fertilisers. Along with petitioners two other officers were also placed under suspension. It is further stated that as per Ext.R1(a) circular dt.8.1.2004, in order to issue the memo of charge, first stage advice from Central Vigilance Commission (CVC) is required in respect of an officer/staff who is not within the Commission's jurisdiction, if they are involved along with other officers who are within the jurisdiction of the commission as the case then would become a composite case and falls within the Commission's jurisdiction. Accordingly the internal vigilance wing of the company had already submitted a request for first stage advice to the CVC in order to issue the charge sheet. Regarding the judgment of the Apex Court it is stated that the facts leading to the said judgment was entirely different whereas the petitioners were placed under suspension only on 3.11.2016 and therefore the said judgment is not W.P.(C) Nos18911 & 19908/2017 **==> picture [14 x 10] intentionally omitted <==** so much binding on the case of the petitioners. It is also stated that going by the ratio of the judgments in _**State Financial Corporation vs. Jagadamba: (2002) 3 SCC 496, C.Ronald vs. Union Territory of Andaman & Nichobar Islands : (2011) 12 SCC 428, Natwarsingh vs. Directorate of Enforcement : (2010) 13 SCC 255,**_ and _**Aswanikumar Singh vs. U.P Public Service Commission & Others : (2003) 11 SCC 584** ,_ the observations of the Supreme Court in other cases cannot be taken as a rule applicable in all cases. _**Ajay Kumar Choudhary's**_ case can be treated as a direction in exercise of powers under Article 142 of the Constitution of India. It is further stated that by the decision in _**Indian Bank vs. ABS Marine Products (P) : (2006) 5 SCC 72,**_ the Apex Court clarified that High Courts should carefully follow the law declared by the Supreme Court by assessing the ratio decidendi and not follow the decisions given on special facts in exercise of the powers under Article 142 of he Constitution of India. 6. The learned counsel for the petitioners pointed out that the 2[nd] respondent exceeded his jurisdiction in distinguishing the judgment of the Apex Court when there was already a direction form the court to consider his application in tune with the judgment in _**Ajay Kumar Choudhary's**_ case. Relying on the judgment of the apex court W.P.(C) Nos18911 & 19908/2017 :6: in _**Suganthi Suresh Kumar v. Jagadeeshan : AIR 2002 SC 681**_ , the learned counsel for the petitioners argued that the decision of the Apex Court cannot be overruled by the High Courts on the ground that the Supreme Court laid down the legal position without considering any other point and it is not only a matter of discipline for the High Courts in India. Paragraphs 9 and 11 are relevant in this context ## which read as follows: 9. It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India. It is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia v. Union of India : Air 1988 SC 1353 that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court. 11. When this court pronounced in Hari Sing v. Sukhbir Singh (supra) that a court may enforce an order to pay compensation “by imposing a sentence in default”. It is open to all courts in India to follow the said course. The said legal position would cntinue t hold good until it is overruled by a larger bench of this court. Hence learned single Judge of the High Court of Kerala has committed an impropriety by expressing that the said legal direction of this court should not be followed by the subordinate courts in Kerala. We express our disapproval of the course adopted by the said Judge in Rajendran v. Jose : 2001 (3) Kerala Law Times 431. It is unfortunate that when the Sessions Judge has correctly done a course in accordance with the discipline the single Judge of the High Court has incorrectly reversed it. 7. Apex Court was considering a case which arose from this court reported in _**Rajendran v. Jose : 2001 (3) KLT 431 (SC)**_ where the learned single Judge of this court directed that the decision of the Apex Court in _**Hari Kishan & State of Haryana v. Sukbir**_ W.P.(C) Nos18911 & 19908/2017 **==> picture [14 x 10] intentionally omitted <==** _**Singh : AIR 1998 SC 2127**_ was not to be followed as section 431 of the Criminal Procedure Code was not adverted to in that judgment. 8. The learned counsel for the respondents relying on the Division Bench judgment of the High Court of Andhrapradesh in _**Buddana Venkata Murali Krishna v. State of A.P : (2015) 0 Supreme (AP) 245**_ argued that the judgment in _**Ajay Kumar Choudhary's**_ case which is rendered by a Bench of two Judges cannot be followed in order to quash an order of suspension ignoring the constitution Bench judgment of the Supreme Court in _**Khem Chand v. Union of India : AIR 1963 SC 687, R.P.Kapur v. Union of India : AIR 1964 SC 787, V.P.Gidroniya v. State of M.P. : 1970 (1) SCC 362,**_ and _**Allahabad Bank v. Deepak Kumar Bhola : (1997) 4 SCC 1**_ wherein the Apex Court held that the courts should not interfere with orders of suspension unless they are passed malafide and lacks even prima facie evidence on record, connecting the employee with the misconduct in question. 9. In answer to these contentions, the learned counsel for the petitioners relied on the judgment of the apex court in _**Suganthi Suresh Kumar's**_ case. It is also pointed out that the two member Bench of the Apex Court has laid down the law taking note of the constitution Bench judgments as can be seen from paragraph 21 of the W.P.(C) Nos18911 & 19908/2017 :8: ## judgment in _**Ajay Kumar Choudhary's**_ case which reads as follows: We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that the previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time-limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us. 10. I have considered the rival contentions raised. Now the question to be looked into is whether the order passed by the 2[nd] respondent is correct or not. When the petitioners approached this court for the first time complaining inaction on the part of the respondents in considering their representations, this court disposed of the writ petitions as follows: “As petitioners have already approached the 2[nd] respondent with Ext.P4 representation and the directions contained in Ext.P3 is the law laid down by the apex court which is binding on the respondents, the writ petition is disposed of directing the 2[nd] respondent to pass orders on Ext.p4 representations submitted by both the petitioners within a period of three weeks from the date of receipt of a copy of the judgment”. 11. The direction was issued to the 2[nd] respondent observing that the judgment in _**Ajay Kumar Choudhary's**_ case is the law of land and it is binding on the respondents. Therefore the 2[nd] respondent cannot overrule the judgment of this court. If at all he had any grievance against the observations in the judgment, it was upto W.P.(C) Nos18911 & 19908/2017 **==> picture [14 x 10] intentionally omitted <==** the 2[nd] respondent to take appropriate proceedings against that judgment. On the other hand what the 2[nd] respondent has done is that he has not only rejected the representation stating that the said judgment is not applicable to the circumstances of the case but also filed a counter affidavit stating that the judgment of the Apex Court is one rendered under Article 142 of the Constitution of India. Advancing arguments by the counsel appearing on behalf of parties distinguishing the applicability of the judgments is different from issuing orders as well as filing of counter affidavit by the respondents, distinguishing the applicability. This court observed that the judgment of the apex court in _**Ajay Kumar Choudhari's**_ case is binding on the respondents. Then the 2[nd] respondent did not have any authority to supersede the observations in the judgment, even assuming that the judgment is wrong. Without filing an appeal or review petition, the 2[nd] respondent ought not have ventured to distinguish the judgment in _**Ajay Kumar Choudhary's**_ case. 12. In the above circumstances, I do not find it necessary to go into the contentions raised by either side as to whether the judgment in _**Ajay Kumar Choudhary's**_ case rendered by a two member Judges was without considering the constitution bench and whether the judgment of the Andhra Pradesh Judgment, distinguishing W.P.(C) Nos18911 & 19908/2017 **==> picture [20 x 10] intentionally omitted <==** that case in the light of Constitution bench judgments is to be followed. Under the above circumstances, order Ext.P6 in both the writ petitions are set aside and respondents are directed to issue fresh orders as directed in Ext.P5 judgment without any further delay and at any rate within a period of ten days from the date of receipt of a copy of the judgment. Writ petitions are allowed accordingly sd/- **P.V.ASHA JUDGE** rkc