IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
WP(C) NO. 16220 OF 2021
PETITIONER:
SHAJAHAN A., AGED 50 YEARS, S/O. ABDUL KAREEM,
SEENA MANZIL, MEERANVETTY, PERINGAMALA P.O,
NEDUMANGAD, THIRUVANANTHAPURAM - 695563.
BY ADVS.
K.S.MADHUSOODANAN
M.M.VINOD KUMAR
P.K.RAKESH KUMAR
K.S.MIZVER
M.J.KIRANKUMAR
RESPONDENTS:
1 KERALA STATE ROAD TRANSPORT CORPORATION KSRTC
TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM -
695023, REPRESENTED BY MANAGING DIRECTOR.
2 CHAIRMAN AND MANAGING DIRECTOR
KERALA STATE AND ROAD TRANSPORT CORPORATION,
TRANSPORT BHAVAN, EAST FORT,
THIRUVANANTHAPURAM - 695023.
3 THE DISTRICT TRANSPORT OFFICER
KERALA STATE ROAD TRANSPORT CORPORATION,
THIRUVANANTHAPURAM CITY - 695011.
4 THE DISTRICT TRANSPORT OFFICER,
KERALA STATE ROAD TRANSPORT CORPORATION,
NEDUMANGAD - 695011.
5 INSPECTOR IN CHARGE, KERALA STATE ROAD TRANSPORT
CORPORATION, VITHURA DEPOT
(THIRUVANANTHAPURAM DISTRICT - 695551.
BY ADV DEEPU THANKAN - SC
WPC 16220/21
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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 09.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WPC 16220/21
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JUDGMENT
The petitioner, while working as a Driver in the services of the Kerala State Road Transport Corporation (KSRTC), was placed under suspension on 15.04.2017, on the allegation that he refused to abide by an instruction issued to him to take over the schedule of a service to Thiruvananthapuram via Anappetty. He asserts that Ext.P5 Trip Schedule would show that another Driver, by name Sri.S.Aravind, was already allotted the bus in question and that he had taken over duty at 4 a.m on 06.04.2017, thus incapacitating him from operating the trip. He says that it is without considering this that the entire disciplinary action, culminating in imposition of punishment of barring one increment has been concluded against him; and therefore, that the entire proceedings are liable to be quashed.
2. Sri.K.S.Madhusoodanan - learned counsel for the petitioner, submitted that this is not the first occasion where his client has been compelled to approach this Court and that he had earlier filed WP(C)No.20022/2017, which was allowed WPC 16220/21 4 through Ext.P13 judgment, directing that his appeal against the disciplinary action be disposed of within the time frame fixed therein. He says that when this was mechanically adhered to and his appeal dismissed, without adverting to any of the relevant considerations, he preferred WP(C)No.1005/2018 challenging the said order, which was allowed and the order impugned therein quashed, with the following specific observations and directions:
6. I have considered the contentions advanced on either side. The petitioner's specific contention in Ext.P7 appeal is that the very initiation of disciplinary proceedings against him on the basis of alleged dereliction of duty and disobedience of order on 6.4.2017 was fictitious. The petitioner had produced documents before the 1st respondent to show that he was never allotted to duty to operate short trip from Vithura to Anappetti on 6.4.2017. relying on the log sheets issued to him as well as to S.Aravind who was the substitute driver of the vehicle operating the said local trip, the petitioner contends that the said substitute driver had been present for duty at 4.40 a.m. on 6.4.2017 and that there was no occasion for the petitioner being required to carry out the duty. The petitioner contends that his log sheet, which shows that he has reported to duty at 4 a.m. and had been allotted only to a long trip from Vithura to Munnar; had not been cancelled and that the initiation of disciplinary proceedings against him and the resultant transfer were absolutely unnecessary in the facts and circumstances of the case as pointed out by the petitioner. This Court by Ext.P8 judgment had directed a consideration of Ext.P7 appeal. The rejection of the appeal on the ground that it can be considered only after the petitioner joins duty and completes six months of service in the transferred unit therefore cannot apply with the facts of this case, since the petitioner was challenging the very inception of the disciplinary proceedings against him on WPC 16220/21 5 the ground that the facts stated for placing the petitioner under suspension were non-existent.
7. In the facts and circumstances of the case, I am of the opinion that the rejection of the petitioner's appeal without considering the documents produced by him was improper. I am of the opinion that the petitioner ought to have been heard and his contentions with regard to the materials produced by him should have been taken note of by the 1 st respondent before orders were passed.
3. Sri.K.S.Madhusoodanan submitted that, in spite of this, when his client's appeal was not disposed of, he approached this Court again, by filing WP(C)No.14694/2019, culminating in Ext.P18 judgment, wherein, it was recorded that he undertakes to report back to duty; and thus the disciplinary action was directed to be disposed of within a period of three months from the date of the said judgment. He submitted that, notwithstanding the afore, Ext.P19 order was issued by the disciplinary Authority, which was confirmed through Ext.P22 order of the Appellate Authority, both holding that the disciplinary action against his client is tenable and without any error. He argued that both these orders are illegal; and thus prayed that the reliefs sought for in this Writ Petition be granted.
WPC 16220/21 6
4. After asserting as afore, Sri.K.S.Madhusoodanan further submitted that, pending the disciplinary action, on the allegation that his client had been on unauthorised absence, Ext.P27 order has been issued terminating him from service and alleged that this has been done without following the mandatory procedure and totally disregarding the undertaking recorded by this Court in Ext.P18 judgment. He, therefore, prayed that Ext.P27 also be quashed, so that his client can rejoin duty as per law.
5. In response to the afore submissions, Sri.Deepu Thankan - learned Standing Counsel for the KSRTC, submitted that every allegation impelled by the petitioner in this Writ Petition is in the realm of facts, which this Court cannot consider, while acting under Article 226 of the Constitution of India. He argued that it is now well-settled that, through a process of judicial review, the petitioner cannot seek this Court to act as an Appellate Forum, but can only ask an evaluation as to if the procedure required under the applicable Statute and Regulations had been complied with implicitly. He affirmatively WPC 16220/21 7 argued that every such mandatory requirement has been fulfilled in the process; however, to a pointed question from this Court, he conceded that Ext.P27 order of termination appears to have been issued without following such. He, therefore, prayed that this Writ Petition be dismissed.
6. I have evaluated the afore submissions carefully and have also examined the various documents available on record.
7. The allegation against the petitioner is that he refused to abide by the lawful instruction given to him to take over a schedule on 06.04.2017, towards Thiruvananthapuram via Anappetty. It is specifically imputed against him that it amounts to gross insubordination.
8. Interetingly, Sri.Deepu Thankan - learned Standing Counsel for the KSRTC, says that even though the petitioner was placed under suspension on 15.04.2017 through Ext.P11, same was revoked and he could have joined duty any time after 22.05.2017, but that he chose not to do so, which has culminated in Ext.P27 order, terminating his services on the ground of unauthorised absenteeism.
WPC 16220/21 8
9. Be that as it may, on the first allegation, that the petitioner did not abide by the lawful instruction, the defence put up by him is that another substitute driver had been assigned and that he had taken over, thus disabling the petitioner from operating such schedule. Going by Ext.P17 judgment, this aspect was noticed by this Court and, through the afore extracted observations, the competent Authority was directed to consider it specifically. However, when one notices Ext.P19 or Ext.P22, this aspect has not been adverted to in its proper perspective, but the Authority has merely said that disciplinary action cannot be found to be in error. I am afraid that this Court cannot countenance this, particularly when, in Ext.P16 judgment, specific directions had been issued in the manner as has been extracted above.
10. That being said, I asked Sri.Deepu Thankan as to how the KSRTC can justify Ext.P27 order, terminating the services of the petitioner, especially when his undertaking had been recorded in Ext.P18 judgment by another learned Judge of this Court. The learned Standing Counsel explained that in spite of WPC 16220/21 9 the undertaking in the said judgment, the petitioner refused to join duty, and that it is, therefore, that Ext.P27 order has been issued. He, however, submitted that if this Court is inclined, KSRTC is willing to reconsider the said order, including by initiating appropriate action on such allegation.
11. In the afore circumstances, though I cannot find Ext.P19 or Ext.P22 to be in conformity with the directions of this Court in Ext.P16 judgment, I choose to quash only the latter, so that the Appellate Authority can reconsider the matter, after hearing the petitioner.
12. Needless to say, Ext.P27 cannot be granted imprimatur because the factual circumstances which warrant such a drastic step have not been yet proved through a proper enquiry.
Resultantly, I order this Writ Petition with the following directions:
a) Ext.P22 is quashed, with a resultant direction to the competent Appellate Authority to reconsider the disciplinary action against the petitioner, adverting to his specific contentions WPC 16220/21 10 which are recorded in Ext.P16 judgment of this Court and after affording him an opportunity of being heard; thus culminating in an appropriate order and necessary action thereon as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment.
b) Ext.P27 is quashed, with liberty being reserved to the KSRTC to initiate any action that may be warranted against the petitioner; however, following due procedure and in implicit compliance of the statutory provisions.
Sd/-
RR DEVAN RAMACHANDRAN
JUDGE
WPC 16220/21
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APPENDIX OF WP(C) 16220/2021
PETITIONER EXHIBITS
Exhibit P1 PHOTOCOPY OF THE MEMORANDUM BEARING NO.
TR.1/006996/08 DATED 5.4.2017.
Exhibit P2 PHOTOCOPY OF THE RELEVANT PAGE OF
POSTING REGISTER DATED 6.4.17.
Exhibit P3 PHOTOCOPY OF THE LOG SHEET DATED 6.4.17
AT 4 AM PETITIONER TOOK OVER BUS
BEARING NO.RPC/453.
Exhibit P4 PHOTOCOPY OF THE OCCURRENCE REPORT OF
5TH RESPONDENT DATED 7.4.2017.
Exhibit P5 PHOTOCOPY OF THE LOG SHEET DATED
6.4.2017 ASSIGNING BUS TO S.ARAVIND.
Exhibit P6 PHOTOCOPY OF THE CLEARLY SHEET
ASSIGNING TO S. ARAVIND THE SCHEDULE AT 5.10 AM OVERWRITTEN WITH 5.30 DATED 6.4.2017.
Exhibit P7 PHOTOCOPY OF THE REPLY UNDER R.T.I DATED 2.6.2017 FROM S.I, VITHURA P.S. Exhibit P8 PHOTOCOPY OF THE REPORT BEARING NO.
104/VTR/17 DATED 7.4.2017 OF THE 5TH RESPONDENT.
Exhibit P9 PHOTOCOPY OF THE SUSPENSION ORDER BEARING NO. V.L.E4-009268/17 DATED 15.04.2017.
Exhibit P10 PHOTOCOPY OF THE MEMO OF CHARGE WITH STATEMENT OF ALLEGATION BEARING NO.
V.L.E4 009268/17 DATED 18.05.2017.
Exhibit P11 PHOTOCOPY OF THE MEMO BEARING NO. E2-
3398/17 /NAD DATED 22.05.17 REINSTATING AND TRANSFERRING THE PETITIONER.
Exhibit P12 PHOTOCOPY OF THE APPEAL DATED 6.6.17 TO THE 1ST RESPONDENT.
Exhibit P13 PHOTOCOPY OF THE JUDGMENT IN WP(C) 20022/17 DATED 16.06.2017 OF THE HON'BLE HIGH COURT.
Exhibit P14 PHOTOCOPY OF THE JUDGMENT IN WP(C) 36230/17 DATED 13.11.2017 OF THE HON'BLE HIGH COURT.
Exhibit P15 PHOTOCOPY OF THE ORDER BEARING NO.
PL.13/001214/17 DATED 30.11.2017 REJECTING APPEAL.
Exhibit P16 PHOTOCOPY OF THE JUDGMENT IN WP(C) 1005/18 DATED 12.06.18 OF THE HON'BLE HIGH COURT.
WPC 16220/21 12 Exhibit P17 PHOTOCOPY OF THE ORDER BEARING APL 5209/2018 DATED 5.11.2018 REJECTING APPEAL.
Exhibit P18 PHOTOCOPY OF THE JUDGMENT IN WP(C) 14694/19 DATED 20.05.20 OF THE HON'BLE HIGH COURT.
Exhibit P19 PHOTOSTAT COPY OF THE PUNISHMENT ORDER BEARING NO.VLV4/0009268/17 DATED 19.08.20 PASSED BY EXECUTIVE DIRECTOR (VIGILANCE).
Exhibit P20 PHOTOCOPY OF THE APPEAL TOT HE 1ST RESPONDENTS DATED 11.11.2020.
Exhibit P21 PHOTOCOPY OF THE JUDGMENT IN WP(C) 28603/20 DATED 21.12.2020 OF THE HON'BLE HIGH COURT.
Exhibit P22 PHOTOCOPY OF THE APPEAL ORDER BEARING NO.5209/GL6(APL)/2018/RTC DATED 5.5.212 PASSED BY 2ND RESPONDENT.
Exhibit P23 PHOTOCOPY OF THE APPLICATION ALONG WITH RECEIPT DATED 17.06.20 TO REJOIN DUTY.
Exhibit P24 PHOTOCOPY OF THE COMPLAINT TO THE EXE.DIRECTOR(VIGILANCE) DATED 28.02.2018 AGAINST ENQUIRY OFFICER.
Exhibit P25 PHOTOCOPY OF THE WITNESS LIST OF THE PETITIONER DATED 28.2.18.
Exhibit P26 PHOTOCOPY OF THE ENQUIRY REPORT DATED NIL.
Exhibit P27 PHOTOCOPY OF THE ORDER DATED 1.10.2018 BEARING NO-P.L.11/000806/2018 ISSUED BY EXECUTIVE DIRECTOR, (ADMINISTRATION) OF K.S.R.T.C.
Exhibit P27 A TRUE ENGLISH TRANSLATION OF EXT.P-27 Exhibit P28 PHOTOCOPY OF THE LETTER DATED 31.8.2021 BEARING NO-P3/3183/21/CY ISSUED BY 3RD RESPONDENT Exhibit P28A TRUE ENGLISH TRANSLATION OF EXT P-28 Exhibit P29 PHOTOCOPY OF THE REPLY GIVEN TO 3RD RESPONDENT DATED 24.5.208 BY THE PETITIONER.
Exhibit P29A TRUE ENGLISH TRANSLATION OF EXT P-29