Sunil George vs State Of Kerala
2021 Latest Caselaw 4587 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

           TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942

                          WP(C).No.11501 OF 2020(K)


PETITIONER:

                SUNIL GEORGE
                AGED 32 YEARS
                S/O. RAJAN, SUNITHA NIVAS, ETHIRPANAM, MANNARKKAD, PALAKKAD
                DISTRICT.

                BY ADVS.
                SRI.K.MOHANAKANNAN
                SMT.T.V.NEEMA

RESPONDENTS:

       1        STATE OF KERALA
                REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT
                DEPARTMENT, THIRUVANANTHAPURAM 695 001

       2        THE DIRECTOR OF PANCHAYAT,
                PUBLIC OFFICE BUILDING, MUSEUM (PO),
                THIRUVANANTHAPURAM 695 003

       3        THE DEPUTY DIRECTOR OF PANCHAYAT,
                CIVIL STATION, PALAKKAD 678 001

       4        KUMARAMPUTHUR GRAMA PANCHAYAT,
                REPRESENTED BY ITS SECRETARY, KUMARAMPUTHUR, PALAKKAD
                DISTRICT 678 583

       5        THE PANCHAYAT COMMITTEE
                KUMARAMPUTHUR GRAMA PANCHAYAT, KUMARAMPUTHUR, PALAKKAD
                DISTRICT 678 583

                BY ADV. SRI.M.MUHAMMED SHAFI
                SRI.SUNIL KUMAR KURIAKOSE -GP

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.11501 OF 2020(K)

                                   2




                            JUDGMENT

While the petitioner was working as a Pump Operator in the

services of Kumaramputhur Grama Panchayat in Palakkad, he

was placed under suspension through Ext.P4 on the allegation

that he and a certain Sri.Shibumon had committed misconduct

by pilfering the assets of the Panchayat, particularly pipes

intended for a Drinking Water Project. The petitioner took the

stand that he was not involved in any such offence, even if it had

been committed by Sri.Shibumon and that he has not been

implicated as an accused in the consequent FIR registered.

2. However, through Ext.P4, both Sri.Shibumon and the

petitioner were placed under suspension, alleging that the

former had conceded to his guilt, while that an "assumption"

should be drawn that the latter was equally involved in the

incident.

3. The petitioner says that even though Ext.P4

suspended him pending an enquiry, no such enquiry had been

conducted, but that he was removed from service through

Ext.P10 unceremoniously and besmirching him with the stigma WP(C).No.11501 OF 2020(K)

of being a thief. The petitioner, therefore, prays that Ext.P10 be

set aside and the Panchayat be directed to reinstate him in

service.

4. The petitioner also has a case that the Panchayat had

earlier approached the Government to sanction the posts of

Pump Operators on a regular basis and also to consider

confirming him against one such post, for the reason that he had

been continuing on daily wages for the last several years. The

petitioner says, therefore, that Government be also directed to

consider his regularization in the post of Pump Operator, to be

sanctioned by them in terms of the recommendations made by

the Grama Panchayat.

5. In response to the submissions of Sri.Mohanankannan,

learned counsel for the petitioner, as recorded above,

Sri.Muhammed Shafi, learned counsel appearing for the

Panchayat, submitted that a counter affidavit has been filed on

record, wherein, the following have been stated:

"6. With regard to the averments contained in paragraph No.1 of the writ petition, it is submitted that this respondents had appointed as the pump operator considering their WP(C).No.11501 OF 2020(K)

technical qualification and experience in the field. But the appointment was purely a temporary one as is evident from Ext.P1 to P3 itself. Ext.P1 and P3 was issued considering their sincere attitude at that point of time. Ext.P2 report submitted by the 3rd respondent was also based only on the condition prevailed then. But no consequential action was taken by the Government on Ext.P1 till date. But the petitioner cannot now claim benefits of Ext.P1 to P3 since on enquiry both the petitioner and his colleague figured in Ext.P1 were found involved in a serious act of criminal nature. Even admittedly Mr. Shibumon is booked in the criminal case as is evidenced by Ext.P5 and P8.

Therefore the circumstances which led to the issuance of Ext.P1 to P3 are no longer existing.

7. With regard to the averments contained in para 2 and 3 of the writ petition it is submitted that the enquiry conducted by the panchayat and the president of the panchayat clearly revealed that the both the petitioner and Mr.Shibumon are responsible for committing such a grave offence.

Moreover they were entrusted with the responsibility of managing and handling the water distribution system at the pumping station and the incident of theft by using forged seal and letter head of the panchayat is a very serious one. This is also a serious act of dereliction of duty by the petitioner. It was considering the grave nature that the petitioner was suspended from the entrustment as evidenced by Ext.P4.

Ext.P11 decision of the Panchayat dated 11.02.2019 had categorically resolved not to reinstate the petitioner in his earlier post. It is also revealed from Ext.P6 minutes that the decision of the WP(C).No.11501 OF 2020(K)

president was also ratified by the committee had resolved not to reinstate the petitioner and to appoint new employees in the vacancy.

8. With regard to the averments contained in paragraph No.4 to 7 it is submitted that the petitioner cannot take the benefits of the FIR stating that he is not made an accused in the above crime and shibumon alone is the culprit in the above act because the enquiry initiated and conducted by this respondents is totally different from the ones done by the police. Mere fact that the petitioner is not an accused in the FIR cannot have any binding effect on the enquiry conducted by the Panchayat and its consequential decisions. "

6. Sri.Muhammed Shafi submitted that, therefore, the

petitioner cannot be heard to say that he is entitled to continue

in service and that he should be engaged by the Panchayat

particularly because he is, admittedly, only a daily wage

employee, who cannot impell any such right, even independent of

Ex.P10.

7. I have considered the afore submissions and have also

examined the various materials and documents available on

record.

8. Before I proceed to analyze the submissions of the WP(C).No.11501 OF 2020(K)

learned counsel, I must record that, noticing, the afore extracted

averments in the counter affidavit of the Panchayat, I had

directed Sri.Muhammed Shafi to place on record the report of

enquiry stated to have been conducted by it.

9. However, when this matter was called today,

Sri.Muhammed Shafi, submitted that there is no such enquiry

report and all that is available on record is Ext.P4, wherein, it

has been said that President of the Panchayat and its members

had conducted an enquiry and found the petitioner also guilty.

10. However, when one examines Ext.P4 very closely, it is

obvious that the case of Sri.Shibumon is different from that of

the petitioner because, he appears to have confessed to his

guilt. As far as the petitioner is concerned, he did not do so and

what is stated in the said document is that the Panchayat

'assumes' that he is also equally guilty along with Sri.Shibumon.

It is on such basis that said order then says that the petitioner

will be subjected to an enquiry. However, as is now evident from

the submissions of Sri.Muhammed Shafi, that no such enquiry

had ever been conducted but the Panchayat, thereafter, issued

Ext.P10 terminating him from service. WP(C).No.11501 OF 2020(K)

11. Therefore, what is indubitable is that the petitioner

has been found guilty on an assumption, as recorded in Ext.P4,

without any enquiry being conducted and it is now well settled-

without need for further expatiation-that even in the case of daily

wage employees or persons who are on probation, they cannot

be sent out from service with a stigma, unless a proper enquiry

had been conducted and they found guilty.

12. In the case at hand, it goes without saying that the

petitioner has never been found guilty because Ext.P4 only

"assumes" that he was implicated in the crime along with

Sri.Shibumon and since no further enquiry had been concededly

conducted thereafter, his guilt has never been established.

13. Ineluctably, therefore, the petitioner is certainly

entitled to have Ext.P10 set aside; but the corollory question is

whether he is entitled to be reinstated in service from the date

on which he was suspended.

14. On this issue, I am gratified that this Court will not

require to answer it specifically because, Sri.Mohanankannan -

learned counsel for the petitioner, submits that his client will be

satisfied if he is directed to be reinstated prospectively without WP(C).No.11501 OF 2020(K)

any backwages or emoluments for the period when he was kept

out of service, so that he can then pursue his request for

regularization with the Government, based on the

recommendations made by the Panchayat for creation of the

post.

In the afore circumstances, I order this writ petition and set

aside Ext.P10 and direct the Grama Panchayat to allow the

petitioner to be engaged on daily wages, as he was done before

Ext.P4 suspension. As a consequence, further allowing the

petitioner liberty to approach the Government with a proper

representation seeking regularization into one of the posts to be

sanctioned on the recommendations of the Grama Panchayat;

and if this is done, within a period of two weeks from the date of

receipt of a copy of this judgment, the competent Authority of the

Government will consider the same, in terms of law and issue an

appropriate order thereon, as expeditiously as is possible, but

not later than three months from the date on which such

representation is received by them.

In the meanwhile, if the Panchayat is interested in filling up

the post of Pump Operator on daily wages pursuant to Ext.P15, WP(C).No.11501 OF 2020(K)

they will be at liberty to do so, but they will keep one post vacant

from the said process until such time as the Government passes

an order on the representation to be made by the petitioner in

terms of the afore directions.

Sd/-

                                          DEVAN RAMACHANDRAN

rp                                                 JUDGE
 WP(C).No.11501 OF 2020(K)






                                   APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1                 TRUE COPY OF THE LETTER DATED 9-1-2018 SENT BY
                           THE PANCHAYAT TO THE GOVERNMENT

EXHIBIT P2                 TRUE COPY OF THE PROCEEDINGS OF THE DEPUTY

DIRECTOR OF PANCHAYAT DATED 5-07-2018

EXHIBIT P3 TRUE COPY OF TJHE MINUTES OF THE MEETING OF THE PANCHAYAT DATED 3-1-2018

EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED 18-1-2019 OF THE 4TH RESPONDENT

EXHIBIT P5 TRUE COPY OF THE FIR IN CRIME NO. 48/2019 OF THE MANNARKKAD POLICE STATION DATED 19/1/10

EXHIBIT P6 TRUE COPY OF THE MINUTES OF THE PANCHAYAT DT 28-

1-2019

EXHIBIT P7 TRUE COPY OF THE REPRESENTATIOND ATED 8-2-2019 SUBMITTED BY THE PETITIONER

EXHIBIT P8 TRUE COPY OF THE REPORT OF THE POLICE3 SUBMITTED INC RIME NO. 48/2019

EXHIBIT P9 TRUE COPY OF THE REPRESENTATIOND ATED 6-7-2019, BEFORE THE 4TH RESPONDENT PANCHAYAT BY THE PETITIONER.

EXHIBIT P10 TRUE COPY OF THE INFORMATION GIVEN BY THE PANCHAYAT WITH DECISION DATED 16-07-2019

EXHIBIT P11 TRUE COPY OF THE INFORMATION GIVEN BY THE PANCHAYAT WITH DECISION DATED 11-2-2019

EXHIBIT P12 TRUE COPY OF THE INFORMATION GIVEN BY THE PANCHAYAT WITH DECISION DATED 22-1-2019

EXHIBIT P13 TRUE COPY OF THE COVERING LETTER DATED 28-09-2019 ISSUED BY THE PANCHAYAT

EXHIBIT P14 TRUE COPY OF THE DECISION NO.2 OF THE PANCHAYATH COMMITTEE DATED 26.2.2020.

WP(C).No.11501 OF 2020(K)

EXHIBIT P15 TRUE COPY OF THE NOTIFICATION DATED 18.7.2020 PUBLISHED IN THE CHANDRIKA DAILY, PALAKKAD EDITION.

EXHIBIT P16 A TRUE COPY OF THE LETTER SENT BY MY COUNSEL DATED 28.7.2020 TO THE PANCHAYATH SECRETARY.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R4(a): TRUE COPY OF THE RELEVANT PAGES OF THE MUSTER ROLL FOR THE MONTH OF JUNE 2020.