Saji Basheer v. Chief Secretary, Government of Kerala & Additional Chief Secretary, Industries Department

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 9TH DAY OF AUGUST 2017/18TH SRAVANA, 1939** ## **WP(C).No. 13674 of 2017 (H)** **------------------------------------------** **PETITIONER(S) :** **-------------------------** **SAJI BASHEER, AGED 45 YEARS, S/O. BASHEER, TC 10/747, SULTHANA, MANNANMOOLA, PEROORKADA, THIRUVANANTHAPURAM-695 005.** **BY ADVS. SRI.R.T.PRADEEP SMT.M.BINDUDAS** **RESPONDENT(S) :** - **----------------------------** **1. CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. ADDITIONAL CHIEF SECRETARY, INDUSTRIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **BY GOVERNMENT PLEADER SRI. B.UNNIKRISHNA KAIMAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** ## **WP(C).No. 13674 of 2017 (H)** ## **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT-P1 TRUE COPY OF THE ORDER DATED 19.06.2004 DECLARING THE PROBATION OF PETITIONER IN THE CADRE AS MANAGING DIRECTOR (C-APT).** - **EXHIBIT-P2 TARUE COPY OF THE ORDER DATED 18.05.2007 BY WHICH PETITIONER IS APPOINTED AS MANAGING DIRECTOR OF SIDCO ON DEPUTATION BASIS.** - **EXHIBIT-P3 TRUE COPY OF THE ORDER DATED 24.02.2011 BY WHICH PETITIONER IS APPOINTED AS MANAGING DIRECTOR OF SIDCO ON REGULAR BASIS.** - **EXHIBIT-P4 TRUE COPY OF THE ORDER DATED 08.09.2015 BY WHICH PETITIONER IS APPOINTED AS MANAGING DIRECTOR OF KSIE.** - **EXHIBIT-P5 TRUE COPY OF THE ORDER DATED 03.06.2016 BY WHICH PETITIONER IS SUBSTITUTED BY ANOTHER OFFICER AS MANAGING DIRECTOR, KSIE.** - **EXHIBIT-P6 TRUE COPY OF THE REPRESENTATION DATED 17.10.2016 BEFORE THE 2ND RESPONDENT.** - **EXHIBIT-P7 TRUE COPY OF THE ORDER DATED 10.11.2016 BY WHICH HIS REQUEST FOR POSTING AS MANAGING DIRECTOR WAS DECLINED BY 2ND RESPONDENT BY HARPING ON VIGILANCE CASES.** - **EXHIBIT-P8 TRUE COPY OF THE ORDER IN W.P(C).NO. 1027/2017 OF THE APEX COURT.** - **EXHIBIT-P9 TRUE COPY OF THE LIST OF GOVERNMENT OFFICIALS, MANAGING DIRECTOR OF PUBLIC SECTOR UNDERTAKING AND PUBLIC MAN PENDING FOR PROSECUTION SANCTION FROM GOVERNMENT.** - **EXHIBIT-P10 TRUE COPY OF THE JUDGMENT DATED 17.02.2017 IN W.P(C).NO. 1206/2017.** - **EXHIBIT-P11 TRUE COPY OF THE NOTICE DATED 17.03.2017 FOR THE PERSONAL HEARING OF PETITIONER.** **EXHIBIT-P12 TRUE COPY OF THE G.O (RT) NO. 592/2017/1D DATED 03.04.2017.** **EXHIBIT-P13 TRUE COPY OF THE G.O (MS) NO. 11/2015/1D DATED 07.08.2015.** **RESPONDENT(S)' EXHIBITS : NIL //TRUE COPY// P.A.TO JUDGE.** **Msd.** ## **P.V.ASHA J.** ## **------------------------------------** ## **W.P.(C).No.13674 of 2017** **-------------------------------------** Dated this the 9[th] day of August, 2017 ## **J U D G M E N T** Petitioner, who was working as the Managing Director of Kerala State Audio Visual and Reprographic Centre, where his probation was already declared as per Ext.P1, was appointed as Managing Director of Kerala Small Industries Development Corporation on deputation as per Ext.P2 order dated 18.05.2007. Thereafter, as per Ext.P3 order Government appointed the petitioner in SIDCO on regular basis. Thereafter, as per Ext.P4 order, the petitioner was appointed as Managing Director of Kerala State Industrial Enterprises Limited, Thiruvananthapuram. By Ext.P5 order dated 03.06.2016, the petitioner was replaced by another Managing Director. Ext.P5 order reads as follows: “Dr.M.Beena I.A.S, Managing Director, KSDC is given full additional charge of Managing Director of Kerala State Industrial Enterprises Ltd., in place of Sri.Saji Basheer on public interest with immediate effect.” ## 2. Thereafter, petitioner is not given any W.P.(C).No.13674 of 2017 2 appointment. He therefore submitted Ext.P6 representation. As per Ext.P7 letter, he was denied a posting saying that vigilance investigations were pending against him. Thereupon he approached this Court filing W.P.(C) no. 1206 of 2017. As per Ext.P10 judgment, the respondents were directed to pass fresh orders after setting aside Ext.P7 order. In that writ petition, the Government Pleader had, on instructions submitted that a vigilance case was registered against the petitioner and therefore, he cannot be given any assignment. It was also stated that he was not included in the panel put forth by the Public Sector Restructuring and Internal Audit Board. In the absence of vigilance clearance, it was not possible to give any assignment to petitioner. In those circumstances that the Government was directed to take a decision on the question whether petitioner should be given any assignment or kept idle. After affording an opportunity of hearing to the petitioner, Government issued Ext.P12 order. Ext.P12 order says that the Accountant General has raised serious objections regarding the activities of the petitioner while he was the Managing Director of SIDCO and recommended that the loss which was assessed as 5.47 W.P.(C).No.13674 of 2017 3 Crores has to be recovered from the petitioner. Apart from that there are several irregularities found against the petitioner in various activities as seen in paragraphs 5 and 6, which read as follows: “5.Perusal of files show that the Principal Accountant General in his D.O. letter No. report (Comml) 53/-8(AR) 2015-16/DP-SIDCO dated 07/10/2016 has pointed out cases where a total amount of `5.47 crore was given as advances in violation of tender/ agreement conditions resulting in undue benefit to suppliers and consequential of `5.47 crore to SIDCO and recommended that the loss should be recovered from Sri. Saji Basheer for "directing payments without observing prudent financial practices and protecting the interest of the Company. All these cases should be investigated by the vigilance”. Government have accordingly referred the case to Vigilance. 6. The Vigilance and Anti-corruption Bureau reports that currently,. VC 02/14/S1U-II/SIDCO for irregularities in land development work in Telecom City project site in Menamkulam, Kazhakkuttam by SIDCO, VC01/15/PKD/SIDCO for irregularities in the allotment of sheds at SIDCO Industrial Estate, Olavakkode, and VC.28/16/TSR/SIDCO for irregularities in transfer of land in Ollur. SIDCO Industrial Estate are pending against this Petitioner. The Director, Vigilance and Anti- corruption Bureau has further reported that crime No. VC4/2016/SCT U/s 13(2)r/w 13(1 )(e) of the Prevention of Corruption Act, 1988 has been registered against Sri. Saji Basheer on 30/08/2016 for possession of assets disproportionate to his known sources of income.” 3. It is stated that the post of Managing Director W.P.(C).No.13674 of 2017 4 was given to him at the pleasure of Government and in view of the pendency of the vigilance case against the petitioner, he cannot be allowed to continue in any Government enterprises. This writ petition was filed at that stage, challenging Ext.P12 order. 4. Petitioner disputes the allegations against him and the findings of the Accountant General as well as the vigilance wing and is seeking orders relying on the judgments in **B.P.Singhal v. Union of India and Another** [2010 (6) SCC 331] and **Brij Mohanlal v. Union of India** [2012 (6) SCC 502]. 5. The learned counsel for the petitioner submitted that the question of doctrine of pleasure cannot be invoked to deny any assignment to the petitioner and that does not apply in the circumstances of the case. On the other hand, the learned Government Pleader on the basis of the counter affidavit filed in this writ petition argues that since there are various vigilance cases pending against the petitioner, he cannot be given any assignment as Managing Director. It is also pointed out that petitioner does not have any lien as the Managing Director and he cannot be given any assignment. In the counter W.P.(C).No.13674 of 2017 5 affidavit, the respondents have explained the turn over and profit and loss for the SIDCO for the period from 2005-2006 to 2014-2015, while petitioner was its Managing Director. It is also pointed out that there was a huge loss for the Kerala State Industrial Enterprises also when he had functioned as Managing Director of the year 201516. The respondents deny the claim of the petitioner that he was appointed on regular basis in SIDCO. It is pointed out that the regulations of SIDCO do not provide for the post of Director or the Managing Director; Managing Directors are appointed by Government from time to time and petitioner cannot have any lien for an appointment as Managing Director of SICDO. There are serious allegations against the petitioner against the loss caused to the institutions where he worked. It is also pointed out that he has acquired assets disproportionate to the sources of his income. According to them, the petitioner's services were terminated. 6. Even though, it is stated that the petitioner's services were terminated, no order terminating the services of the petitioner is produced by the respondents. Apart from the fact that he was replaced by W.P.(C).No.13674 of 2017 6 Dr.Smt.M.Beena, as per Ext.P5 order on 3.06.2016, giving her full additional charge, no orders are issued to the petitioner. 7. According to the petitioner, he was a regular employee in Kerala State Audio Visual and Reprographic Centre. Ext.P1 order read with Ext.P2 would show that petitioner's appointment in Kerala Small Industries Development Corporation was from the Kerala State Audio Visual and Reprographic Centre on deputation. In Ext.P12 order also it is stated that petitioner's appointment in SIDCO was on deputation basis and the pay and allowances was fixed at the same rate admissible in the parent organisation. In that event, it is for the authority, who appointed the petitioner on deputation to Kerala Small Industries Development Corporation from Kerala State Audio Visual and Reprographic Centre, to post the petitioner back to his parent organisation. Petitioner claims that he was appointed as General Manager in the Centre for Advanced Printing Technology in the year 1995 and was later promoted as Managing Director. Petitioner who was a regular employee in an organisation cannot be denied employment on the ground that he cannot be given W.P.(C).No.13674 of 2017 7 assignment in any other organisation. The appointment of the petitioner in the parent organisation should have been regular in any of the posts there, as the pay and allowances in SIDCO was fixed as the same as in parent organisation. Therefore, in case the respondents found the petitioner unsuitable to hold the post of Managing Director, there is no reason why he is not sent back and allowed to work in the parent organisation. Petitioner is kept without any posting either in the parent organisation or anywhere else, without placing him under suspension or without terminating his services and denying him even subsistence allowance from 03.06.2016 onwards. 8. Therefore, in case the appointment in the parent organisation was on regular basis as claimed by the petitioner, and as seen from Exts.P1 and P2, he shall be posted back or he should be given any alternate appointment. If he has committed any misconduct, he should be dealt with, in accordance with law. Petitioner cannot be kept out of service under the guise of doctrine of pleasure, without issuing any orders or initiating any action in accordance with the regulations of his parent organisation. W.P.(C).No.13674 of 2017 8 Accordingly, Ext.P12 order is set aside, in the circumstances stated above. Respondents shall pass fresh orders within a period of 'one month' from the date of receipt of a copy of the judgment. The writ petition is disposed of accordingly. Sd/- **P.V.ASHA, JUDGE.** AS