Sheeja V.C. v. TRACO Cable Company Limited and The Managing Director, TRACO Cable Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** ## **TUESDAY, THE 10TH DAY OF APRIL 2012/21ST CHAITHRA 1934** ## **WP(C).No. 7764 of 2012 (U)** **--------------------------------------** **PETITIONER:** ## **-------------------** **SHEEJA .V.C., AGED 39 YEARS, W/O. SREEKUMAR.V. 'SREEPADAM', MAMANGALAM, EDAPPALLY.P.O., ERNAKULAM-683 572.** **BY ADVS.SRI.SAJEEV KUMAR K.GOPAL, SMT.AMBIKA RADHAKRISHNAN.** **RESPONDENTS:** ## **------------------------** **1. TRACO CABLE COMPANY LIMTIED, REGD. OFFICE IV-TH FLOOR, K.S.H.B OFFICE COMPLEX, XXXVIII/1242, PANAMPILLY NAGAR, P.B. NO. 4269, KOCHI, PIN-682 036, REPRESENTED BY ITS MANAGING DIRECTOR.** ## **2. THE MANAGING DIRECTOR,** **TRACO CABLE COMPANY LTD., REGD. OFFICE, IV-TH FLOOR, K.S.H.B OFFICE COMPLEX, XXXVIII/1242, PANAMPILLY NAGAR, P.B. NO. 4269, KOCHI, PIN-682 036.** **BY SRI.M.PATHROSE MATTHAI, SENIOR ADVOCATE, ADVS. SRI.SAJI VARGHESE, SMT.MARIAM MATHAI.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C).NO.7764/2012-U:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF THE MEMO NO. 9/P&A/4763 ISSUED BY THE SENIOR MANAGER OF THE 1ST RESPONDENT DATED 14-6-1995.** **EXT.P2: TRUE COPY OF THE MEMO NO. 9/P&A/2194 ISSUED BY THE 1ST RESPONDENT DATED 9-3-1996. EXT.P3: TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT VIDE NO. 185/P&A/8315 DATED 23-12-2005.** **EXT.P4: TRUE COPY OF THE CERTIFICATE ISSUED BY THE REGISTRAR OF INDIAN LABOUR EDUCATION.** **EXT.P5: TRUE COPY OF THE MEMO NO. 8/P &A/030 ISSUED BY THE 1ST RESPONDENT DATED 6-3-2006. EXT.P6: TRUE COPY OF THE OFFICE ORDER VIDE NO. 8/P&A/1344 ISSUED BY THE 1ST RESPONDENT DATED 27-3-2006. EXT.P7: TRUE COPY OF THE F.I.R IN CRIME NO. 1931 OF 2010 DATED 15-10-2010.** **EXT.P8: TRUE COPY OF THE REMAND REPORT SUBMITTED BY THE POLICE DATED 22-12-2010. EXT.P9: TRUE COPY OF THE MEMO OF CHARGES TO THE PETITIONER VIDE NO. 16/P&A/64 DATED 6-1-2011.** **EXT.P10: TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 8-1-2011. EXT.P11: TRUE COPY OF THE MEMO VIDE NO. 16/P&A/380 DATED 5-2-2011.** **EXT.P12: TRUE COPY OF THE OFFICE ORDER NO. 16/P&A/749 ISSUED BY THE 2ND RESPONDENT DATED 23-3-2012.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** ## **Prv.** ## **K. SURENDRA MOHAN , J ---------------------------------W.P.C. NO. 7764 OF 2012 ----------------------------------Dated this the 10[th] April 2012** ## **J U D G M E N T** The petitioner an employee of the first respondent company has filed this writ petition challenging Ext.P12 order of the 2[nd] respondent by which the petitioner has been reverted to the clerical post that was originally held by him. According to the petitioner, Ext.P12 is vitiated by the violation of the principles of Natural Justice and is liable to be set aside. 2. The petitioner joined the service of the first respondent company as a clerk on contract basis during 1995. Ext.P1 is the order appointing her. Later on, she was regularized in service as per Ext.P2. While so, as per Ext.P3 notice applications were invited from the employees of the company for selection and appointment to the post of officer (P&A). The petitioner applied for selection to the said post. She was called for an interview and was selected and appointed to the post as per Ext.P6 order dated 27.03.2006. ## **W.P.C. NO. 7764 OF 2012** 2 The petitioner has been continuing to work as an officer, ever since. 3. In the above circumstances, complaints arose from the trade unions of the company alleging malpractices in the appointment of officers. Pursuant to the complaints, the Vigilance and Anti Corruption Bureau, Pathanamthitta conducted an enquiry into the various allegations, which included allegations against selection of the petitioner as an officer also. An enquiry report was submitted by the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, wherein it has been stated that the selection of the petitioner as an officer was illegal. The allegation was that the petitioner had produced a fake and false Diploma Certificate in Human Resource Development and had obtained appointment on the strength of the said certificate, though she was not qualified for such appointment. Therefore, a case was registered under Section 13(2) read with Section 13(i)(e) and (d) of the Prevention of Corruption Act. Offences under Sections 420, 468, 471 and 120B of the ## **W.P.C. NO. 7764 OF 2012** 3 Indian Penal Code were also alleged. Accordingly, Ext.P7 First Information Report has been registered, the petitioner was arrested and was later on released on bail. Ext.P8 is a copy of the remand report. 4. Pursuant to the above developments, Ext.P9 memo of charges was issued to the petitioner. She replied to the charges by submitting Ext.P10. However, the petitioner was suspended from service on 05.02.2011 as per Ext.P11 order. A domestic enquiry has been ordered into the charges against the petitioner. The enquiry had also commenced. In the above circumstances, as per Ext.P12 order dated 23.3.2012 the 2[nd] respondent has ordered that the domestic enquiry against the petitioner be kept in abeyance till the decision of the Additional Chief Judicial Magistrate's Court, Ernakulam in Crime No. 1931 of 2010. As per Ext.P12, the suspension of the petitioner is revoked and she has been directed to report for duty as a clerk in the Irimpanam unit of the company, after reverting her. The petitioner has filed this writ petition seriously aggrieved by ## **W.P.C. NO. 7764 OF 2012** 4 the order of reversion passed against her. 5. According to the counsel for the petitioner, the petitioner is possessed of all the requisite qualifications stipulated by Ext.P3. A copy of the diploma of the petitioner is produced as Ext.P4. The respondents also had no dispute at any point of time that the petitioner was not qualified for selection and appointment to the notified post. It was for the said reason that she was directed to appear for an interview as per Ext.P5. After the interview, she was selected and was appointed as per Ext.P6, on 27.03.2006. The petitioner has been continuing to discharge the duties of an officer (P&A), efficiently and without cause for complaint from any quarter, all these years. Since the petitioner had been suspended from the post of an officer, it is incumbent upon the respondents to reinstate the petitioner in the same post. A reversion to the lower post amounts to imposition of a punishment on her, without the conduct of an enquiry and amounts to a gross violation of the principles of Natural Justice. Therefore, it is contended that Ext.P12 is vitiated ## **W.P.C. NO. 7764 OF 2012** 5 and liable to be set aside. The counsel for the petitioner places reliance on Article 311 of Constitution to contend that the petitioner also should be considered to be the holder of a civil post, entitled to the protection of the said constitutional provision. In the said perspective, it is contended that her reversion is without any justification whatsoever. Reliance is also placed on the decision of this court reported in _**Rajalekshmi V. State of Kerala [1992 (1) KLT 458] .**_ 6. Adv. Sri. Pathrose Mathai, Senior Counsel opposes the contentions of the petitioner by pointing out that the petitioner was not possessed of the qualifications stipulated by Ext.P3. However, she was appointed by mistake, without noticing that she did not have the stipulated qualifications. The appointment of the petitioner gave rise to a lot of complaints from various organizations including trade unions of the workers. A vigilance enquiry was conducted and it was revealed that the petitioner was not possessed of the necessary qualifications stipulated by ## **W.P.C. NO. 7764 OF 2012** 6 Ext.P3. There are allegations that the petitioner’s certificate is a fake certificate. Therefore, a crime has been registered and the petitioner is facing trial for various offences under the Indian Penal Code as well as the Prevention of Corruption Act. It was in the wake of the criminal prosecution launched against the petitioner and her consequential arrest that she was placed under suspension as per Ext.P11. Since the matter is pending trial before the Criminal Court, the respondents decided to await the outcome of the same. Therefore the petitioner has been reinstated in service. Since the petitioner was not qualified for appointment as an officer, she cannot stake a claim to continue in that post. Though it was open to the respondent to have terminated her from service, the management has been leneint and the petitioner has been reinstated in the original post in which she had been working. It is contended that the domestic enquiry that was ordered was into the charges of misconduct levelled against the petitioner. The fact that the petitioner was not qualified to be appointed as ## **W.P.C. NO. 7764 OF 2012** 7 an officer is an issue that is totally distinct and separate from the charges of misconduct. Placing reliance on two decisions of this court it is contended by the learned senior counsel for the 2[nd] respondent that the appointment of the petitioner was void ab initio for since she was not qualified for the said post. Therefore, it was not necessary to conduct any enquiry before terminating her. Reliance is placed on the decisions of this court reported in _**Gopalan V. Managing Director [1979 K.L.T. 848]**_ **and** _**Eranalloor - Service Co operative Bank Ltd. V. Labour Court and Others [1986 (2) L.L.J. 492]** ._ For the above reasons, it is contended that this writ petition is liable to be dismissed. 7. I have heard the counsel for the petitioner as well as the learned Senior Counsel Shri.M.Pathrose Mathai at length. I have also considered the rival contentions advanced before me, anxiously. 8. The qualifications stipulated by Ext.P3 are extracted below. ## _“ The candidate must be possess_ ## **W.P.C. NO. 7764 OF 2012** 8 _post graduation in any discipline or graduation with MBA/LLB/MSW/Diploma in Industrial Relations & Personnel Management from a recognized university/institution.”_ 9. The diploma on the basis of which the petitioner contends that she is possessed of the requisite qualification is Ext.P4. Ext.P4 shows that the same is a diploma in Human Resources Development issued by the Indian School of Labour Education. It is necessary to be bear in mind that there are allegations that Ext.P4 is a fake certificate. The said allegation is the subject matter of the criminal proceedings that are pending. Therefore, I do not venture to make any observation regarding the same. For the present purpose, it is sufficient to notice that Ext.P4 on the face of it shows that it is a diploma in Human Resources Development while the qualifications stipulated by Ext.P3 is a diploma in Industrial Relations and Personnel Management. It is prima facie evident that Ext.P4 is not a qualification stipulated by Ext.P3. According to the counsel ## **W.P.C. NO. 7764 OF 2012** 9 for the petitioner, the respondents had not disputed at any point of time that the qualification as per Ext.P4 was different from the qualifications stipulated by Ext.P3. On the contrary, the respondents had proceeded as though both the qualifications were equivalent. Though it is not clear how the petitioner had been selected and appointed eventhough the qualification possessed by her was different from what is stipulated in Ext.P3, it is not open to the petitioner to contend that since she has been selected both the qualifications should be considered as equivalent. It has been subsequently found that the petitioner's appointment was a mistake. It is evident from what I have noticed above that the said contention is justified. Since the petitioner does not have the qualifications stipulated by Ext.P3, the fact that she was appointed by Ext.P6 cannot confer any right on her to insist that she should be allowed to continue in the said post. The appointment of a person who is not qualified cannot be permitted to continue when the authority concerned issues proceedings to correct the said mistake. ## **W.P.C. NO. 7764 OF 2012** 10 The background in which the respondents have initiated proceedings to correct the mistake is also significant. It has been brought to light on the basis of an enquiry conducted by the Vigilance and Anti Corruption Bureau. The petitioner has no explanation as to how she considered herself as a person possessed of the requisite qualifications stipulated by Ext.P3 when as a matter of fact, her qualification as evidenced by Ext.P4 is different from any of the qualifications stipulated by Ext.P3. Therefore, a presumption of culpability on the part of the petitioner in having misled the authorities also appears to be justified. For the above reasons, the proceedings initiated against the petitioner are held to be perfectly justified in the facts and circumstances noticed above. 10. The next question is whether the petitioner is entitled to the protection of Article 311 of the Constitution. As rightly pointed out by the learned senior counsel who appears for the respondents, the first respondent is a limited company, though a Government Company. A post ## **W.P.C. NO. 7764 OF 2012** 11 under the company cannot be equated to a civil post, which alone is contemplated by Article 311. Therefore, the petitioner cannot be held to be the holder of civil post . Apart from the above, even in the case of a government servant, the holder of a civil post, the Honourable Supreme Court has held in the decision reported in _**R.Viswanatha Pillai v. State of Kerala and others,((2004) 2 Supreme Court Cases 105)**_ that it was not necessary to comply with the provisions of Article 311 of the Constitution, while terminating the services of an employee whose appointment is void ab initio. A person whose appointment is void is not a government servant and therefore, is not entitled to claim the protection of Article 311 which is available only to a government servant who has been validly appointed. Therefore, even if it is assumed that Article 311 applies to the petitioner's post, she is not entitled to the protection thereof. 11. Apart from the above, as rightly contended by the Counsel for the respondents the petitioner could have ## **W.P.C. NO. 7764 OF 2012** 12 been terminated from the service of the company. However, the company has graciously reinstated her in the clerical post in which she was already working. The fact that she has been reinstated to the clerical cadre itself shows that the respondents have acted only in a fair and reasonable manner. 12. For the above reasons, I do not find any infirmity with the impugned proceedings Ext.P12. The writ petition fails and is accordingly dismissed. ## **K. SURENDRA MOHAN JUDGE** NS