V.V.MOHANAN v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942** ## **WP(C).No.8460 OF 2020(F)** ## **PETITIONER:** **V.V.MOHANAN, AGED 57 YEARS PATHAPPALIL HOUSE, DEVIYAR COLONY, VALARA P.O., IDUKKI DIST., KERALA - 685 561.** **BY ADV. SHRI.JOHN T.PAUL** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE PRINCIPAL SECRETARY (LSGD),**| ||**LOCAL SELF GOVERNMENT (RURAL) DEPARTMENT, 4TH**| ||**FLOOR, ANNEX I, SECRETARIAT, THIRUVANANTHAPURAM,**| ||**KERALA, PIN - 695 001.**| |**2**|**THE COMMISSIONER OF RURAL DEVELOPMENT DEPARTMENT,**| ||**4TH FLOOR, SWARAJ BHAVAN, NANTHANCODE, KOWDIAR**| ||**P.O., THIRUVANANTHAPURAM, KERALA, PIN - 695 003.**| |**3**|**THE DISTRICT PROGRAMME COORDINATOR AND DISTRICT**| ||**COLLECTOR,**| ||**MGNREGS, DISTRICT PANCHAYATH BUILDING, PAINAVU**| ||**P.O., IDUKKI DIST., KERALA -683 603.**| |**4**|**THE SECRETARY/BLOCK PROGRAMME OFFICER,**| ||**MGNREGS, ADIMALI BLOCK PANCHAYATH, ADIMALI P.O.,**| ||**IDUKKI DIST., KERALA -695 316.**| |**5**|**ADIMALI BLOCK PANCHAYATH,**| ||**REPRESENTED BY ITS SECRETARY, ADIMALI P.O., IDUKKI**| ||**DIST., KERALA - 685 561.**| ||**R1-3 BY GOVERNMENT PLEADER**| ||**R4-5 BY ADV. SMT.V.H.JASMINE**| ## **OTHER PRESENT:** ## **GP SHRI SUNIL KURIAKOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0311-2020, THE COURT ON 30-11-2020 DELIVERED THE FOLLOWING:** W.P.(C).No.8460 of 2020 2 ## **JUDGMENT** ## **Dated this the 30[th] day of November 2020** - 1.This writ petition is filed seeking the following prayers:- - i) Issue a writ of Certiorari or any direction or order to quash Exhibit P17. ii) Declare that the petitioner is exonerated from all the allegations based on Exhibits P-3, P-5, P-9 reports and Exhibit P-10 government order. iii) Issue a writ of mandamus or any direction or order to the 5[th] respondent to reinstate the petitioner forthwith all consequential benefits. - 2.Heard the learned counsel for the petitioner, the learned Government Pleader as well as the learned counsel appearing for respondents 4 and 5. - 3.It is submitted that the petitioner was appointed on contract basis under the Mahatma Gandhi National Rural Employment Guarantee Scheme on 25.02.2009. The contract was for a period of two years, but it was renewed from time to time. The last contract was valid till 05.06.2020. It is submitted that on the basis of certain fake W.P.(C).No.8460 of 2020 3 complaints raised before the 2[nd] respondent, an enquiry had been conducted by the 2[nd] respondent. On the basis of the report submitted, the Block Panchayat Secretary had censured the petitioner. It is stated that, thereafter, another report was submitted by a junior officer and it was found that the complaints raised were fake and pseudonymous. However, by Exhibit P4, it was recommended to terminate the petitioner from employment. It is submitted that the Block Panchayat Committee had elaborately discussed the matter and found that Exhibit P4 report was ill motivated. Ext.P5 resolution was passed by the Block Panchayat seeking dropping of the proceedings against the petitioner. However, the petitioner's service was terminated without any hearing or show cause notice. It is stated that the petitioner had filed a representation before the Government and the Government directed the Assistant Development Commissioner to conduct an enquiry and submit a report. It is stated that such a report was submitted and the Government considered the same and directed the 2[nd] W.P.(C).No.8460 of 2020 4 respondent to quash the proceedings against the petitioner. The petitioner approached this Court by filing W.P. (C).No.5492/2020 and direction was issued to the 2[nd] respondent to consider the representation preferred by the petitioner. However, the 5[th] respondent considered the issue and passed Exhibit P17 Resolution deciding not to reinstate the petitioner and to fill up the post by appointing fresh candidates without reinstating the petitioner and without considering his request as directed by this Court. 4.The learned counsel for the petitioner submits that the termination of the petitioner was bad in law. It is submitted that the contract was valid till 6.6.2020 and the decision taken in March to fill up the post by appointing a fresh candidate is clearly rendered without any proper procedure being followed and is therefore unsustainable. It is stated that Exhibit P17 is clearly against Exhibit P5 resolution unanimously adopted by the 5[th] respondent and that there is no justification for the departure from the earlier stand It is W.P.(C).No.8460 of 2020 5 further contented that since the petitioner had been prevented from completing the term of his contract without any reason, he is liable to be reinstated in service and permitted to continue in service. 5.A counter affidavit has been placed on record by the 2[nd] respondent. It is stated, therein, that the petitioner had been appointed under the National Rural Employment Guarantee Scheme and from 09.05.2013 onwards he was working as Assistant Engineer under the Mahatma Gandhi National Rural Employment Guarantee Scheme. It is submitted that in 2017, a person with a fake identity had submitted a complaint alleging irregularities in the work of the maintenance of Mannamoola Boys and Girls Pre metric hostel under the Scheduled Tribes Development Department and misuse of the vehicle and squandering of funds. An enquiry was conducted by the Joint Development Commissioner and Ext.P2 report was submitted. Since the said enquiry was not a detailed one, the 2[nd] respondent W.P.(C).No.8460 of 2020 6 recommended a detailed enquiry and deputed Smt.Vinodini N., Joint Programme Co-ordinator, MGNREA, Alappuzha as enquiry officer. The enquiry officer submitted a report vide Ext.P4 recommending disciplinary action against the then Secretary, Block Panchayat and Head Clerk for their dereliction of duties. It is stated that the execution of the work did not fall within the scope of duties of the Accredited Engineer. However, the enquiry revealed that the petitioner was involved in the work and that he committed irregularities with an intention to grab Government money. It is stated that on the basis of Ext.P4 enquiry report, the 2[nd] respondent issued a notice to the Secretary, Head Clerk and the petitioner and also obtained their replies. It is stated that the 1[st] respondent had directed the termination of the petitioner from employment immediately as per Ext.P6 communication. The 2[nd] respondent instructed the 4[th] respondent to take action on Ext.P6 and to report compliance. Thereafter, orders of termination were issued on the basis of Ext.P6. It is stated that the 1[st] respondent W.P.(C).No.8460 of 2020 7 conducted another enquiry with the Assistant Development Commissioner (Performance Audit), Idukki as enquiry officer and found that the allegations against the petitioner were not true. It is stated on receipt of Exts.P10 and P12 representations from the petitioner, the 2[nd] respondent had instructed the 4[th] respondent to reinstate the petitioner subject to the decision of the Adimali Block Panchayat Committee. It is stated that since the Block Panchayat Committee is the authority to reinstate the petitioner, the Committee had considered the matter and decided not to reinstate the petitioner and to make alternate appointments. 6. Respondents 4 and 5 have also placed a counter affidavit on record. It is stated, therein, that the direction of the 2[nd] respondent to reinstate the petitioner had been considered by the Block Panchayat Committee and it was decided that there is no reason to extend the term of contract of the petitioner and that other unemployed Engineers are entitled to be considered for appointment to the post. It is submitted W.P.(C).No.8460 of 2020 8 that there is absolutely no illegality in the termination of the contract appointment of the petitioner and that the grounds raised in the writ petition are untenable. It is further contended that the appointment of the petitioner being admittedly contractual in nature, there can be no direction for reinstate of the petitioner after the period of the contract has expired. 7.The learned counsel for respondents 4 and 5 places reliance on the decisions of the Apex Court in **Secretary, State of Karnataka v. Umadevi and others** [2006 KHC 507], **Official Liquidator v. Dayanand and others** [2008 KHC 6959] and **Rajasthan State Roadways Transport Corporation v. Paramjeet Singh** [2019 KHC 6584] as also the judgment of this Court dated 19[th] December, 2018 in W.P.(C).No.22402/2018 and judgment dated 16[th] August, 2019 in W.P.(C).No.15098/2019. W.P.(C).No.8460 of 2020 9 8.I have considered the contentions advanced on either side, it is not in dispute before me that the petitioner was a contractual employee and that the last contract was valid till 06.06.2020. Even if all the contentions of the petitioner are accepted, the only claim that the petitioner could justifiably raise is for continuation during the terms of the contract. A perusal of Exhibit P9 report and Exhibit P10 Government letter would show that the Government had directed the dropping of the disciplinary proceedings against the petitioner. This Court in Exhibit P15 judgment dated 27.2.2020 had also directed the consideration of the request of the petitioner for reinstatement. However, the Block Panchayat Committee had decided not to reinstate the petitioner. The petitioner had approached this Court and by order dated 18.3.2020, further proceedings pursuant to Exhibit P17 was ordered to be kept in abeyance. The interim order was extended and the respondents were required to file their pleadings and move for vacation of the order, if required. W.P.(C).No.8460 of 2020 10 9.The petitioner being a contractual employee, whose contract expired on 06.06.2020, I am of the opinion that his right to continue in service would be limited to the period of contract. In case the petitioner has a contention that his services are being terminated while similarly situated contract employees are being permitted to continue on extended contracts, that is to be taken up with the Government. The petitioner's right was only to continue in service until the date on which the contract stood terminated. Even in case all the contentions with regard to the exoneration of the petitioner are accepted, in view of the fact that it is for the Block Panchayat to take a decision on the extension of contract of the petitioner and in the absence of any established mala fides, I find that the decision taken by the Block Panchayat not to extend the contract of the petitioner cannot be said to be illegal or perverse. W.P.(C).No.8460 of 2020 11 However, the findings in Ext.P9 report and the directions in Ext.P10 cannot be ignored by the 5[th] respondent. This is more so in view of Ext.P5 resolution adopted in respect of the same subject matter. In the light of Exhibits P9 and P10 and the interim order issued by this Court, the refusal to reinstate the petitioner in service during the term of his contract was unsustainable. Ext.P17, to the extent it refused to reinstate the petitioner in service till 6.6.2020 is set aside. The petitioner will be entitled to remuneration for the period he actually worked and for the period from 18.3.2020 to 5.6.2020. This writ petition is ordered accordingly. **Anu Sivaraman, Judge** sj/bng W.P.(C).No.8460 of 2020 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPROVAL OF APPOINTMENT OF THE PETITIONER NO.A2510/09 DATED 26/3/2009.** - **EXHIBIT P2 TRUE COPY OF THE CONTRACT OF AGREEMENT OF THE PETITIONER NO.01/18 DATED 06/06/2018.** - **EXHIBIT P3 TRUE COPY OF THE REPORT NO.DP4/1793/17/CRD DATED 19/6/2018.** - **EXHIBIT P4 TRUE COPY OF THE REPORT BY N.VINODINI, JOINT PROGRAMME COORDINATOR DATED 28/2/2019.** - **EXHIBIT P5 TRUE COPY OF THE RESOLUTION NO.1 (1) OF THE ADIMALI BLOCK PANCHAYATH COMMITTEE DATED 2/5/2019.** - **EXHIBIT P6 TRUE COPY OF THE LETTER NO.D.D.2/181/2019/LSGD DATED 05/10/2019.** - **EXHIBIT P7 TRUE COPY OF THE LETTER NO.17513/ESST.A2/2018/CRD(1) DATED 11/10/2019.** - **EXHIBIT P8 TRUE COPY OF THE ORDER NO.A-2245/19 DATED 11/10/2019.** - **EXHIBIT P9 TRUE COPY OF THE REPORT NO.D1-2765/19 DATED 23/12/2019.** **EXHIBIT P10 TRUE COPY OF THE LETTER NO.D.D.2/181/2019/LSGD DATED 12/02/2020. EXHIBIT P11 TRUE COPY OF THE RELEVANT PORTION OF THE 'MANGALAM' NEWSPAPER CUTTING DATED 15/02/2020.** W.P.(C).No.8460 of 2020 13 **EXHIBIT P12 TRUE COPY OF THE PETITIONER'S APPLICATION BEFORE THE 2ND RESPONDENT DATED 17/2/2020.** **EXHIBIT P13 TRUE COPY OF THE PETITIONER'S APPLICATION BEFORE THE 4TH RESPONDENT DATED 17/2/2020.** **EXHIBIT P14 TRUE COPY OF CVC CIRCULAR NO.03/03/16 DATED 07/3/2016.** **EXHIBIT P15 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.5492 OF 2020 DATED 27/2/2020.** **EXHIBIT P16 TRUE COPY OF THE LETTER NO.17513/ESTT.A2/2018/CRD DATED 03/3/2020.** **EXHIBIT P17 TRUE COPY OF THE RESOLUTION NO.1(1) OF THE ADIMALI BLOCK PANCHAYATH COMMITTEE DATED 11/3/2020.** **EXHIBIT P18** **TRUE COPY OF THE INTERVIEW CALL LETTER NO-D602/2020 DATED 14.9.2020** True copy PS to Judge