High Court of KeralaSingle Judge2018-01-31RP dismissed.

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

Case / Petition Number:RP.No. 51 of 2018 in W.P(c).No.13674 of 2017-H

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.V. ASHA
Judgment Date: 2018-01-31
Court Decision / Holding: The RP petition is dismissed.
Final Disposition: RP dismissed.

Parties to the Case

Appellants / Petitioners

The Chief Secretary, Government of Kerala
The Additional Chief Secretary, Industries Department

Respondents

Saji Basheer

Legal Representation & Advocates

Counsels for Petitioners

• Sri Renjith Thampan, Addl. Advocate General

Counsels for Respondents

• Sri R.T. Pradeep

Case Synopsis & Summary

This is a review petition (RP No. 51 of 2018) arising from W.P.(C) No. 13674 of 2017‑H, decided by Justice P. V. Asha of the Kerala High Court. The respondents to the writ petition—The Chief Secretary, Government of Kerala, and The Additional Chief Secretary, Industries Department—filed the review after the writ petition questioned an order displacing Saji Basheer from the post of Managing Director in KSAVREC, with deployment to SIDCO. The petition argued that the writ petition should have been dismissed for lack of party representation of SIDCO/KSAVREC and that Annexure II showed that Basheer’s service was terminated to take up regular SIDCO employment; it also relied on Articles of Association of SIDCO, Section 196 of the Companies Act, and the August 2015 amendment exempting Government from certain subsections to contend the Government’s power over MD appointments. The petitioner contends that the original judgment treated Basheer as a regular employee of KSAVREC prior to deputation and that the order directing posting to the parent department did not affirm a regular SIDCO MD. The High Court found no error apparent in the judgment, noted that the government could be impleaded when orders are challenged, and dismissed the RP, while leaving avenues for appeal open. The vigilance records were acknowledged but not determinative. The RP is thus dismissed.

Provisions of Law Cited

Section 196 of the Companies ActRule 12 of Rules of Business of the Government

Legal Doctrines & Maxims

Clean hands doctrine

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that a writ petition challenging a Government order ought not to be entertained in the absence of the State Government on the party array. They submitted that Annexure II shows the respondent’s service terminated to take up regular appointment in SIDCO, with Exts. P2–P3 confirming regular appointment and that SIDCO’s MD appointment is governed by the Companies Act and SIDCO’s Articles of Association, with the Governor’s pleasure. They emphasized Rule 12 of Government Rules of Business and emphasized the August 2015 Government amendment exempting it from subsections 2, 4 & 5. They argued that the respondent was not proved to be a regular MD of SIDCO and that the judgment relied on such facts; they contended the absence of proper party requires dismissal of the writ or review, and that the review petition should be dismissed with costs. They concluded there was no error on the face of the record and that the Government’s role warranted proper impleadment in challenges to government orders.

Contentions of Respondents

Respondents contended that a writ petition challenging a government order requires proper party presence of the Government and that Annexure II shows termination to facilitate regular SIDCO employment. They argued that the appointment of SIDCO’s MD is governed by the Companies Act and SIDCO’s Articles of Association and that the 2015 amendment exempts the Government from certain subsections. They asserted that the petition challenged an order passed by Government, relying on Ext. P1–P4, and that the earlier judgment recorded Basheer’s probation in the Centre. They urged that the petition be dismissed and noted that vigilance records were part of consideration but not determinative; they insisted that the Government order directing posting to the parent department is valid and that the absence of SIDCO/KSAVREC as party does not invalidate a Government order under challenge."},

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Chief Conservator of Forests, Government of A.P. v. Collector	2003(3)SCC 472; 2003 KHC 636	Positive	Cited to support the proposition that absence of the State Government on the party array can affect entertainability of a writ challenging Government orders.
Karakunnummal Babu & Ors. v. T.P.Raghavan & Ors.	2015(2)KHC 410 (para 31)	Positive	Cited to support the stance on issues related to government orders and party presence in writ petitions.
Abdul Rasheed S.K. v. State of Kerala & anr.	2008(4) KHC 596	Mentioned Only	Cited by counsel; used to discuss that government orders may be passed by other officers, but the court does not adopt it as binding precedent here.
K.P.Mohammad Ali Haji v. S.Rasitha and Ors.	2007(2) KHC 655	Mentioned Only	Cited in the same context as Abdul Rasheed S.K.; used to argue about delegation/powers but not adopted as dispositive.
Kunjalavi Chellamma v. District Geologist, Department of Mining & Geology, Kollam & Ors.	2016(5) KHC 111	Positive	Cited to illustrate the principle related to a party’s clean hands influencing relief and related discretionary considerations.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 31ST DAY OF JANUARY 2018 / 11TH MAGHA, 1939** **RP.No. 51 of 2018** **JUDGMENT IN WP(C) 13674/2017 DATED 09-08-2017. ...** ## **REVIEW PETITIONER(S)/RESPONDENTS IN WP(C):** - **1 THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE ADDITIONAL CHIEF SECRETARY, INDUSTRIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **BY SRI.RENJITH THAMPAN, ADDL. ADVOCATE GENERAL** ## **RESPONDENT/PETITIONER IN WP(C):** **SAJI BASHEER, S/O.BASHEER, TC 10/47, SULTHANA, MANNANMOOLA, PEROORKADA, THIRUVANANTHAPURAM-695005.** **BY ADV. SRI.R.T.PRADEEP** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 31-01-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** **RP.No. 51 of 2018** ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** |**ANNEXURE I:**|**TRUE COPY OF THE RELEVANT PORTION OF THE ARTICLES OF**| |---|---| ||**ASSOCIATION OF SIDCO.**| |**ANNEXURE II:**|**TRUE COPY OF THE ORDER DATED 7.5.2011 OF THE KERALA STATE**| ||**AUDIO VISUAL AND REPROGRAPHIC CENTRE.**| |**ANNEXURE III:**|**TRUE COPY OF THE LIST OF THE PRESENT DIRECTORS OF SIDCO.**| |**ANNEXURE IV:**|**TRUE COPY OF THE DETAILS OF VIGILANCE CASES PENDING AGAINST**| ||**THE.**| |**ANNEXURE V:**|**TRUE COPY OF THE LETTER DATED 28.3.2017 OF THE DIRECTOR OF**| ||**VIGILANCE.**| |**RESPONDENTS' ANNEXURES:**<br>**NIL**|| **/TRUE COPY/** **P.S.TO JUDGE** ## **mbr/** ## **P.V. ASHA, J.** **= = = = = = = = = = = = = = = = = R.P. No. 51 of 2018** ## **in W.P(c).No.13674 of 2017-H** **- - - - - - - - - - - - - - - - - - - - - -** Dated this the 31[st] day of January, 2018 ## **O R D E R** Respondents 1 and 2 in the writ petition have filed this Review Petition, along with a petition to condone delay of 115 days. 2. The respondent herein had filed the writ petition complaining that while he was working as Managing Director of Kerala State Industrial Enterprises, he was displaced by a substitute as per Ext.P5 order dated 03.06.2016. His case was that while he was working in the erstwhile Kerala State Audio Visual Reprographic Centre as Managing Director he was appointed as Managing Director of Kerala State Small Industrial Development Corporation (SIDCO) on deputation basis as per Ext.P2 order dated 18.05.2007 and thereafter his appointment in SIDCO was made on regular basis as per Ext.P3 order dated 24.02.2011 and that he was appointed as Managing Director of Kerala State Industrial Enterprises as per Ext.P4 order dated 08.09.2015. Thereafter, he was displaced from there as per Ext.P5 order on 03.06.2016 by posting a substitute. Writ Petition was filed complaining **R.P. No. 51 of 2018 in W.P(c).No.13674 of 2017-H** 2 that his request was not considered properly even after Ext.P10 judgment. By Ext.P12 order the 2[nd] petitioner herein rejected his representation for reposting. 3. In the judgment sought to be reviewed it was found that the respondent herein was a regular employee in the Kerala State Audio Visual Reprographic Centre from where he joined SIDCO on deputation. 4. The Review Petition is filed stating that the respondent's service in Kerala State Audiovisual and Reprographic Centre was terminated as per Annexure II order dated 07.05.2011. It is also pointed out that the respondent herein who claimed that he was regular Managing Director of SIDCO did not implead either SIDCO or the Kerala State Audiovisual and Reprographic Centre and the writ petition was therefore liable to be dismissed on that ground. Producing Annexure I Articles of Association of SIDCO it is stated that appointment of its Managing Director can only be made as per the provisions contained in the Companies Act and Annexure I and that appointment is on the pleasure of Governor. Annexure IV list of a large number of Vigilance Cases and Annexure V letter of the Director of Vigilance and Anti corruption Bureau are produced stating that engagement of respondent herein in any Public Sector Undertaking would be contrary to **R.P. No. 51 of 2018 in W.P(c).No.13674 of 2017-H** 3 public interest. 5. I heard Sri. Ranjith Thampan, the learned Additional Advocate General and Sri. R.T. Pradeep. 6. Relying on the judgments in **Chief Conservator of Forests, Government of A.P. v. Collector** [2003(3)SCC 472: 2003 KHC 636] and in **Karakunnummal Babu & Ors. v. T.P.Raghavan & Ors.** [2015(2)KHC 410 (para 31)], Sri.Ranjith Thampan, the learned Additional Advocate General, argued that in the absence of State Government on the party array, the writ petition challenging an order passed by Government ought not have been entertained. Relying on the judgment in **Abdul Rasheed S.K. v. State of Kerala & anr.** [2008(4) KHC 596] and **K.P.Mohammad Ali Haji v. S.Rasitha and Ors.** [2007(2) KHC 655] and Rule 12 of Rules of Business of the Government, it was argued that orders can be passed on behalf of Government even by an Under Secretary or by any other officer as may be specially empowered in that behalf. Referring to the Articles of Association of SIDCO and Section 196 of the Companies Act, it was argued that no company shall have a Managing Director for a period of not more than 5 years. However it was pointed out that the amendment brought about in August 2015 exempts Government from application of subsections 2, 4 & 5. **R.P. No. 51 of 2018 in W.P(c).No.13674 of 2017-H** 4 **7.** Relying on the judgment in **Kunjalavi Chellamma v. District** **Geologist, Department of Mining & Geology, Kollam & Ors.** [2016(5) KHC 111], it was argued that the 1[st] respondent who did not come with clean hands did not deserve any relief under the discretionary jurisdiction of this Court and that Writ Petition was liable to be dismissed with cost. 8. According to Sri R.T. Pradeep none of the grounds alleged are sufficient for undertaking a review. 9. I have considered the rival contentions. The main contention is that an order directing that respondent herein should be posted in his parent department would not have been issued in case the respondent had produced Annexure II order in the writ petition. 10. But the review petitioners had in their counter affidavit stated that the respondent's service was terminated. Annexure II order dated 07.05.2011 shows that the service of the respondent was terminated from the Centre in order to take up the regular appointment in SIDCO. That order was issued referring to Ext.P3 order of regular appointment issued by Govt. That order only shows that the termination was for taking up regular appointment. The judgment was rendered after taking note of Ext.P1 order as well as the termination for taking up the “regular” employment in SIDCO. **R.P. No. 51 of 2018 in W.P(c).No.13674 of 2017-H** 5 11. Therefore I do not find any error apparent on the face of the record, for reviewing the judgment. This Court has not found either that the respondent herein is a regular Managing Director of SIDCO or that he should be appointed there. Seeing that the Government had as per Ext.P1 order declared his probation as Managing Director in the Centre, it was directed that he should be given posting in the parent organisation. There is no finding in the judgment that the respondent is a regular Managing Director of SIDCO. This Court has only referred to the Government Order in which his appointment was made regular. 12. I do not find any reason to review the judgment on the ground of Annexure II order when it is stated that such termination was to take up employment in SIDCO. There need not be any doubt for the fact that State Government is to be impleaded when an order issued by or on behalf of Government is under challenge. Therefore, on the basis of the provisions in the Articles of Association or in Companies Act also, a review of the judgment is not called for. The vigilance cases against the respondent herein also were taken note of in the judgment. The review petitioners are free to take up the matter in appeal in case they are aggrieved by the directions in the judgment. **R.P. No. 51 of 2018 in** **==> picture [220 x 12] intentionally omitted <==** The RP is accordingly dismissed. Sd/- _**(P.V. ASHA, JUDGE)**_ _rtr/_ **Obj00DFEDA9**