V.L.Pradeep Kumar vs The Chief Secretary
2021 Latest Caselaw 1416 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

                                   &

               THE HONOURABLE MR. JUSTICE T.R.RAVI

    THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942

                           WA.No.1484 OF 2020

AGAINST THE JUDGMENT DATED 28.01.2020 IN WP(C) 472/2020(H) OF HIGH
                         COURT OF KERALA


APPELLANT/PETITIONER:

             V.L.PRADEEP KUMAR
             AGED 62 YEARS, VISHNU KRIPA,
             VADASERIKONAM P O,
             THIRUVANANTHAPURAM-695 143.

             BY ADV. SRI.S.SUJIN

RESPONDENTS/RESPONDENTS:

      1      THE CHIEF SECRETARY
             GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
             THIRUVANANTHAPURAM, PIN-695 001.

      2      THE PRINCIPAL SECRETARY TO GOVERNMENT
             AGRICULTURE DEPARTMENT,
             GOVERNMENT OF KERALA,
             GOVERNMENT SECRETARIAT,
             THIRUVANANTHAPURAM, PIN-695 001.

      3      KERALA STATE COCONUT DEVELOPMENT CORPORATION LTD
             ELATHOOR P O, KOZHIKODE, PIN-673 303.
             REPRESENTED BY THE MANAGING DIRECTOR.

      4      THE MANAGING DIRECTOR
             KERALA STATE COCONUT DEVELOPMENT CORPORATION LTD,
             ELATHOOR P O, KOZHIKODE , PIN-673303.

             SRI.B.UNNIKRISHNA KAIMAL, GOVT.PLEADER,
             SMT.SANJANA R.NAIR, STANDING COUNSEL

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA.No.1484 OF 2020

                                      2

              ALEXANDER THOMAS & T.R.RAVI, JJ.
                 =======================
                         WA NO.1484 OF 2020
          (arising out of the judgment dated 28.01.2020
                       in WP(C)No.472 of 2020)
                   =======================
              Dated this the 14th day of January, 2021


                              JUDGMENT

ALEXANDER THOMAS, J.

The aforecaptioned intra court appeal has been filed under Section

5(i) of the Kerala High Court Act to impugn the judgment dated

28.01.2020 rendered by a learned Single Judge of this Court in WP(C)No.

472/2020 filed by the writ appellant herein/writ petitioner.

2. Heard Sri.N.N.Sugunapalan, learned Senior Counsel instructed by

Sri.Navaneeth.D.Pai, learned counsel appearing for the appellant,

Sri.B.Unnikrishan Kaimal, learned Government Pleader appearing for

respondents 1 & 2 (State Government authorities) and Smt.Sanjana R Nair,

learned Standing Counsel for the Kerala State Coconut Development

Corporation Limited appearing for respondents 3 & 4.

3. Sri.N.N.Sugunapalan, learned Senior Counsel instructed by

Sri.Navaneeth D Pai, learned counsel appearing for the writ appellant/writ

petitioner has made submissions broadly in tune with the pleadings and WA.No.1484 OF 2020

materials produced in the writ petition as well as in this appeal. Apart from

the said materials, the appellant has also produced an additional document

as Annexure A1 along with IA No.1/2021 in this appeal, which is

accompanied by a sworn affidavit dated 13.1.2021 of the appellant.

Annexure A1 is a copy of the counter affidavit dated 6.7.2009 filed on

behalf of the respondent State Government in W.P.(C).No. 4082/2008.

4. Sri.B.Unnikrishna Kaimal, learned Government Pleader

appearing for respondents 1 & 2 (State Government authorities) and

Smt.Sanjana R.Nair, learned Standing counsel for the Kerala State Coconut

Development Corporation appearing for respondents 3 & 4 have submitted

on the basis of the pleadings and materials on record that the judgment of

the learned Single Judge cannot be faulted in the manner and would not

require any interdiction and that the appeal is bereft of any merit and that

this Court may not extend any appellate interference in this case.

5. We have given our ancient consideration on the rival pleas in

this case. The factual aspects would stand on an extremely narrow

compass. The writ appellant/writ petitioner had initially entered in service

of the respondent Kerala State Coconut Development Corporation Ltd.

While so, he was suspended from service as per order dated 3.10.1997 on

the basis of certain allegations. This ultimately culminated in the issuance

of order dated 17.10.2010 by the competent authority of the respondent WA.No.1484 OF 2020

Corporation, by which the writ appellant/writ petitioner was ordered to be

dismissed from service, consequent to the finalization of the said

disciplinary proceedings. The petitioner was then constrained to challenge

the same by filing a writ petition before this court as OP.No.21241/2001, in

which this court had directed the competent Authority of the State

Government to consider the representation/petition filed by the writ

petitioner before the State Government. It appears that the competent

authority of the State Government in the Agriculture Department had given

serious consideration to the various pleas made by the petitioner in the said

representation/petition and had thereafter issued Ext.P1 G.O(Ms)No.102/

05/Ad dated 13.07.2005, whereby it was found that the dismissal order is

tainted by serious procedural violations and without even conducting any

enquiry to ascertain the correctness of the said allegations. It appears that

by that time, the respondent Corporation was facing some financial

problems and the Corporation had given the option of Voluntary

Retirement Scheme (VRS) to many of the employees. The competent

authority of the respondent State Government in the Agriculture

Department in Ext.P1 Government Order dated 13.7.2005, after taking note

of the findings in the enquiry, has made the following findings in internal

page 2 of Ext.P1 Government Order (in page 22 of the paper book of the

appeal);

WA.No.1484 OF 2020

"A detailed enquiry report was furnished to Government by the Re-enquiry Officer, Smt. Edina Lopez, Managing Director (i/c). According to the enquiry officer, the available records reveal that there have been some irregularities. But the Factory Manager cannot be held responsible for the duties that are to be done by other persons like Cashier and Assistant Cashier. There seems to have been a willful attempt to pin him down even before getting his explanation or giving him a hearing especially when a major penalty was imposed on him. The enquiry conducted earlier when things could have been easily verified does not seems to be an impartial one. Hence the enquiry officer has recommended that an amount of Rs.3268/- (allegation 3) may be recovered from him dropping all the other allegations that were found to be baseless or which cannot be proved at this distance of time. His dismissal from service cannot be justified and as he cannot be reinstated he may be treated to be on duty till implementation of V.R.S on 11.1.2001 his pay and allowances from the period of suspension up to 11.1.2001 may be limited to the subsistence allowance if any drawn by him.

Government have examined the case in detail with reference to the enquiry report and the second enquiry, Board resolution dated 30.06.2003 and other available documents/evidences, and agree with the findings and recommendations of the second enquiry officer."

On the aforesaid basis, the Government has ordered in Ext.P1 Government

Order dated 13.7.2005 that only an amount of Rs.3,268/- could be ordered

to be recovered, as has been assessed by the Broad of Directors of the

Corporation and that all other charges are dropped and accordingly, the

Government ordered that the said impugned punishment of dismissal

order dated 17.10.2010 will stand set aside and that the appellant will be

treated to have been on duty till implementation of the Voluntary

Retirement Scheme (VRS) on 11.1.2001 and that his pay and allowances for

the period of suspension will be limited to the subsistence allowances and

the Managing Director of the Corporation was directed to immediately

disburse the eligible amount to the petitioner, after recovering an amount

of Rs.3,268/-, etc. Being aggrieved by the directions in Ext.P1 dated

13.7.2005 to the limited extent it did not order full pay & allowances and WA.No.1484 OF 2020

reinstatement, etc. the petitioner had again approached the Government.

This resulted the respondent Government issuing Ext.P2 Go(Rt)No.1390/

2007/Ag dated 30.7.2007, whereby it was ordered that the petitioner will

stand reinstated, but that he would actually be posted in the Kera Fed to

the Managerial cadre for the purpose of exclusively looking after the

accounts and other duties in connection with the respondent Kerala State

Coconut Development Corporation Ltd. and other allied duties and his

scale of pay is also mentioned therein. Further, from the submissions of

both sides, it appears that when the respondent Corporation revived, the

petitioner was actually posted to the respondent Corporation sometime in

the year 2014 or so, and later he had retired from service consequent to

attainment of superannuation age some time in June 2015 or so.

6. Since the relief for full pay and allowances for the period in

question [3.10.1997 (date of suspension order) up to 17.10.2010 (date of

dismissal)] and for the subsequent period from 18.10.2010 up to the date of

reinstatement, etc., the petitioner had again made various representations

to the respondent Corporation as well as to the competent Authority of the

State Government in the Agriculture Department. In this contest,

incidentally, it may also be noted that by Ext.P3 proceedings, the pay and

salary of the petitioner had been fixed as per Ext.P3 proceedings dated

10.1.2012 issued by the respondent Kerala State Coconut Development WA.No.1484 OF 2020

Corporation, so that technically his lean is in the Corporation. One such

aforesaid representation is the one made by the petitioner on 14.10.2008

(which was referred to as item no.3 in Ext.P11) and this Court as per

judgment dated 5.11.2008 in WP(C)No. 32425/2008 filed by the petitioner

had directed the competent authority of the respondent State Government

to consider various aspects of the matter to deal with the abovesaid

grievance of the petitioner [the aforesaid judgment in WP(C)No.32425/

2008 has been referred to as item No.4 in Ext.P11]. Thereafter, the

competent Authority of the respondent State Government has issued

Ext.P11 G.O(Rt)No.1445/2009/AD dated 18.8.2009 ordering that the

suspension period of the appellant from 3.10.1997 (date of suspension) up

to 11.1.2001 (date on which he was ordered to opt to the VRS Scheme), will

count for pension and other service benefits, except for full pay and

allowances and that the directives in G.O(Ms)No.102/2005/AD 13.7.2005

will stand modified to that extent.

7. In the meanwhile, as can be seen from Ext.P13 G.O.(Ms).No.

65/2014/AD dated 04.03.2014, the respondent State Coconut

Development Corporation was ordered to be revived with certain

conditions and various aspects of the matter as referred to in Ext.P13

Government Order. In respect of the aforesaid various representations

made by the appellant, later the competent authority of the respondent WA.No.1484 OF 2020

State Coconut Development Corporation has submitted Ext.P14 letter

dated 02.04.2012 addressed to the Principal Secretary to Government in

the Agriculture Department, wherein it has been stated that almost all the

charges raised against the petitioner are not sustainable and untenable and

that from the documents and materials produced by the appellant, it is

clear that from 2001 to 2007, either staff engaged on daily basis or officers

or staffs of Kera Fed were utilized for the work of State Coconut

Development Corporation and that it is hard to disagree with the

submission of the appellant that he was unlawfully denied work, even

though there had been work from 12.07.2001 to 30.07.2007 and that he

was denied work for the period from 12.07.2001 to 30.07.2007 without any

valuable reason and that the Government has favorably taken into account

the representations given by the appellant for reconsideration of the

matter. Later, it appears that, consequent to the directions issued by this

Court to the judgment dated 01.12.2014 in WP(C) No.30460/.2014 filed by

the petitioner, the respondent State Government has issued Ext.P17

G.O(Rt)No.845/2020/AD dated 5.5.2015 ordering that the abovesaid plea

of the petitioner for grant of full pay and allowances for the period in

question cannot be acceded to. Since no proper reason was stated in

Ext.P17, the petitioner was again constrained to approach this Court, which

resulted in Ext.P18 judgment dated 10.04.2018 in WP(C) No.12553 of WA.No.1484 OF 2020

2018, whereby this Court ordered that the earlier order of rejection made

as per impugned Ext.P4 therein (viz Ext.P17 herein) was ordered to be

reconsidered by the Government and orders were directed to be passed by

the State Government, after taking into consideration of various relevant

aspects in the matter, within three months, etc. This has consequently

resulted in the impugned Ext.P19 G.O(Rt)No.529/2019/AD, whereby the

Government has again ordered that the said plea of the petitioner for grant

of full pay and allowances for the above said period in question cannot be

granted, etc. This was challenged by the appellant by filing the instant

WP(C) No.472 of 2020, which, in turn has resulted in the present

impugned judgment dated 28.01.2020. A reading of the impugned

judgment dated 28.01.2020 in WP(C) No.472 of 2020 would broadly

indicate that the main ground of rejection made out in the impugned

Ext.P17 herein and Ext.P19 herein, etc. would not deserve any interdiction

at the hands of this Court, as the said ground is that the allegations against

the petitioner in the disciplinary proceedings were quite serious and

further that petitioner has not been fully exonerated of the said charges and

that therefore, the said stand of the Government would not deserve any

interference, etc.

8. After hearing both sides and after going through the pleadings

on record, it is seen that no proper grounds of rejection are adverted to or WA.No.1484 OF 2020

stated by the respondent State Government in the impugned Ext.P11

rejection order rendered on 18.08.2009. A mere reading of Ext.P11 would

make it clear like the day light that after reciting the various sequence of

incidents, all what has been stated is that the plea for back wages during

the period in question cannot be granted in view of the disciplinary

proceedings, etc. Whereas, the solitary ground of rejection disclosed in

Exts.P17 and P19 is to the effect that the allegations raised against the

petitioner in the above said disciplinary proceedings (which resulted in his

suspension and dismissal, etc.) are quite serious and that though the said

orders have been interdicted by the Government, the appellant has not

been fully exonerated from the charges therein. The said solitary ground

made out in Exts.P17 and P19 is referred to in para No.12 on internal page

No. 3 of P17 and para No.3 on internal page No.2 of Ext.P19. The only

observation therein is that though the impugned dismissal order was set

aside by the Government, the allegations in the disciplinary proceedings

are quite serious and that the petitioner has not been fully exonerated

from the charges. Therefore, the solitary ground of rejection is assertion of

the factual ground mentioned as herein above. A mere reading of Ext.P1

G.O. dated 13.07.2005, which resulted in the setting aside of the dismissal

order, would make it clear like the day light that the Government has dealt

with various aspects of the matter and it was found that initially the WA.No.1484 OF 2020

petitioner was ordered to be dismissed from the service without

conducting any proper enquiry and without any notice to him. That later,

a re-enquiry was conducted by the Managing Director in-charge of the

Kerala State Coconut Development Corporation, which resulted in the

various aspects mentioned in internal page No.2 of Ext.P1, which have

been quoted in this judgment earlier. Further, it can be seen that based on

the conclusive findings in the said re-enquiry report, the Government has

fully concurred with the views of the said re-enquiry that the only matter

that would warrant any action against the petitioner is to order for the

recovery of a small amount of Rs.3,268/- and that all the other charges

are dropped and that therefore, the order of dismissal would deserve to be

set aside by the Government, etc. Further, Ext.P14 is a detailed report

given by the Managing Director of the respondent State Coconut

Development Corporation, which has also dealt with various aspect of the

matters and it has been held that all the charges which are raised against

the petitioner are bereft of any merit and that the submission of the

petitioner that he was unlawfully kept away from work for the period in

question appears to be tenable and that he was unlawfully denied work for

the period in question without any valid reason, etc. The above said

findings referred to in various documents, more particularly in Exts.P1

and P14, etc., have become final and conclusive and none of the WA.No.1484 OF 2020

respondents has in any manner altered those proceedings and findings in

the manner known to law. In this context, it is also highly relevant to

note the submissions made by Sri.N.N.Suganapalan, learned senior

counsel appearing for the writ appellant, based on the above said

additional document produced as annexure A1 in this appeal. Annexure

A1 is a copy of a counter affidavit dated 06.07.2009 sworn to for and on

behalf of the State Government in the Agriculture Department in

W.P.C.No.4082/2008. The said W.P.C.No. 4082/2008 happened to be

filed by certain employees of the respondent Corporation, who urged

before this Court that the decision of the respondent Corporation directing

that they should necessarily await the option of VRS is unlawful and

illegal etc. Therein, it appears that one of the grounds of rejection urged

by the Government was that the respondent Kerala State Coconut

Development Corporation was facing extreme financial hardships and

difficulties and that there is no other way but to insist that the employees

at question may take the option of VRS. The said plea of the State

Government was sought to be resisted by the said employees, by averring

before this Court in that writ petition stating that the writ appellant herein

had faced very serious charges, which resulted in the disciplinary

proceedings and dismissal from service and later none other than the

State Government authorities has ordered to re-instate him service as WA.No.1484 OF 2020

aforesaid. To that case set up by the said writ petitioners in WPC

No.4082/2008, the State Government has filed the above said Annexure

A1 counter affidavit dated 06.07.2009, wherein it is categorically asserted

that the disciplinary action taken against the petitioner was not impartial

and that the re-enquiry conducted found that the allegation made by them

were baseless, etc. It will be pertinent to refer to para Nos.4 and 5 of the

counter affidavit dated 06.07.2009 filed by the State Government in the

said WPC.No.4082/2008, which read as follows:

"At the time of implementation of VRS disciplinary proceedings were going on against Sri.V.L.Pradeep Kumar and later he was dismissed from service by Order No.Admn/Dis.action.VLP/2000-01/367, dated 17.10.2000 of the Managing Director, Kerala State Coconut Development Corporation. Later the Government conducted a re-equiry and found that the disciplinary action taken against Sri.Pradeep Kumar was not impartial and the allegations raised against him were baseless.

Government decided in 1999 to wind up KSCDC. At that time the accounts from 1992-93 onwards were not finalized, which disabled the G0vernment to commence procedures for liquidation. Sri.V.L.Pradeep Kumar was reappointed for the finalization of annual accounts and to complete the pending audit, in order to initiate and complete liquidation process of the Corporation so that a decision on proper utilization of assets can be taken. Now the accounts up to 2007-08 were reconstructed with available records. Since only a few transaction were there for the period from 1996-97 to 2007-08 t the C&AG has been requested to permit to conduct the audit at a stretch by the Statutory Auditors. There is no intention to abandon the liquidation proposal. No decision has been taken to handover the assets to KERAFED. Decision on the utilization of assets of KSCDC can be taken only after completion of liquidation process."

[emphasis applied]

9. Thus it can be seen that, apart from the conclusive findings

made by the respondents, not only in Exts.P1, P14, etc, the said stand has

been asserted by none other than the respondent State Government in

Annexure A1 affidavit filed before this Court in another case. Thus it can WA.No.1484 OF 2020

be seen that the solitary factual ground of rejection made out in Exts.P19

and P17 is indeed without any factual foundation. Sri.N.N.Sugunapalan,

the learned senior counsel instructed by Sri.Navaneeth D Pai, learned

counsel for the appellant, has urged the aforesaid factual aspects and we

are constrained to hold that the above said pleas made by the learned

senior counsel on the basis of the aforesaid objective materials on record

will have to be countenanced by this Court. The above said crucial and

relevant aspects have not been taken into consideration in its proper

perspective in the impugned order in this case and therefore, the matter

would deserve interdiction. Moreover, the impugned Ext.P11 order does

not contain any proper grounds for rejection. The solitary ground for

rejection of the claim of the petitioner is made out in Exts.P17 and P19,

which are factually untenable and unreasonable in view of the above said

reasons. Therefore, the matter will have to be seriously reconsidered by

the competent authority of the State Government. Therefore, the matters

in respect of Exts.P11, P17 and P19, etc. require serious reconsideration at

the hands of the competent Authority of the State Government.

10. In that regard, it is also pertinent to note the submissions

made by Sri.N.N.Sugunapalan, learned senior counsel appearing for and

on behalf of the writ appellant, that any possible plea of the respondents

that it was almost impossible to engage the service of the petitioner during WA.No.1484 OF 2020

the relevant period and to give him full pay and allowances for the period

in question on account of the alleged financial scenario, etc. is not

tenable. In that regard, the learned senior counsel has placed serious

reliance on materials as in Ext.P8 to buttress the point that in fact a

deputationist from Kera Fed, who wanted to be relieved from the service

of the respondent State Coconut Development Corporation, was not

permitted to be relieved and he was directed to continue on deputation

basis in the respondent Corporation. Further, reliance is also placed on

materials as in Ext.P14, to say that the respondent State Coconut

Development Corporation has also strongly recommended to the State

Government to reconsider the matter and to grant the relief of pay and

allowances for the period in question to the petitioner, as he was

unlawfully and unjustly denied to perform work and duty for the period in

question. Those are all aspects, which have to be taken into account and

considered by the respondent State Government. In the light of the

aforesaid aspects, it is ordered that the impugned judgment dated

28.1.2020 rendered in WP(C)No. 472/2020 will stand set aside.

Consequently, it is ordered that the impugned decision of the State

Government referred to in Exts.P11, P17, P19, etc. will stand set aside and

quashed and the matter in relation thereto, will stand remitted for the

serious consideration of the competent authority of the 2 nd respondent WA.No.1484 OF 2020

State Government in the Agriculture Department for consideration afresh.

The appellant will be at liberty to file a detailed and comprehensive

representation. Since various representations are referred to in the

aforesaid impugned proceedings, in order to have a well focused

consideration, the appellant may, if so advised, file a comprehensive

representation/petition before the 2nd respondent without any further

delay, at any rate, within four weeks along with a certified copy of this

judgment. The competent authority of the Government may also consider

the alternate plea of the petitioner, that if for any reason, the arrears of

pay and allowances is not granted, then at least petitioner should be given

compensation for the above period in question, as many other employees

were given VRS compensation amounts. The competent authority of the

2nd respondent Government will afford reasonable opportunity of being

heard to the appellant, thorough his authorized representative/ counsel, if

any, and may also grant a reasonable opportunity to the respondent

Coconut Development Corporation to present their submissions in the

matter and may also take into account various aspects, as urged by the

petitioner on the basis of Exts.P8, P14 etc., and then take a considered

decision from the said plea of the petitioner for full pay and allowances for

the period in question without much delay, preferably within a period of

two months from the date of production of a certified copy of this WA.No.1484 OF 2020

judgment. If, on account of the Covid-19 pandemic issues or any other

issues, the 2nd respondent finds it difficult to conduct personal hearing,

then the hearing process may be conducted through video conferencing

mode and advance notice in that regard should be given to both the writ

appellant as well as the both respondent Corporation, so that the matter is

considered and decided afresh within the said time limit. It is made clear

that the grounds of rejection referred to in Exts.P17, P19, etc. are

untenable that the above said benefits cannot be denied to the petitioner

on the ground that he has not been exonerated of the charges, etc., as the

same is not relevant and germane and that the said plea of the appellant

cannot be again denied on the said ground, which has been already

interfered by this Court in this judgment.

With these observations and directions, the Writ Appeal will stand

finally disposed of.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

T.R.RAVI, JUDGE Sn