Kerala High Court
The Secretary To Government vs The Secretary To Government on 6 January, 2021
O.P.(KAT) No.5 of 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942
OP(KAT).No.5 OF 2021
AGAINST THE ORDER IN OA 718/2020 DATED 18-12-2020 OF KERALA
ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 & 2 IN OA:
1 THE SECRETARY TO GOVERNMENT
INDUSTRIES DEPARTMENT,GOVT.SECRETARIAT,
THIRUVANANTHAPURAM,PIN-695001.
2 THE DIRECTOR OF INDUSTRIES AND COMMERCE,
DIRECTORATE OF INDUSTRIES AND COMMERCE,
VIKAS BHAVAN,
3RD FLOOR,
UNIVERSITY OF KERALA,
SENATE HOUSE CAMPUS,
PALAYAM,
THIRUVANANTHAPURAM.
BY SR. GOVERNMENT PLEADER SRI ANTONY MUKKATH
RESPONDENT/APPLICANT/3RD RESPONDENT IN OA:
1 BIJU KURIAN, AGED 49 YEARS,
S/O.C.G.KURIAN,GENERAL MANAGER,
DISTRICT INDUSTRIES CENTRE,
IDUKKI-685602,
RESIDENT OF BABYS BUNGLOW,
AMPALTHUMKALA.P.O,
EZHUKONE,
KOLLAM,PIN-691505.
O.P.(KAT) No.5 of 2021 2
2 P.S.SURESH KUMAR,
AGED 52 YEARS
S/O.SUKUMARAN.K.N(LATE),
JOINT DIRECTOR/GENERAL MANAGER,
INDUSTRIES AND COMMERCE DEPARTMENT,
WAYANAD DISTRICT,
RESIDING AT PADITHIRAPPALLIL,MOOLAVATTOM.P.O,
KOTTAYAM,
PIN-686012.
R1 BY SRI.P.NANDAKUMAR
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 06.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(KAT) No.5 of 2021 3
ALEXANDER THOMAS & T.R. RAVI, JJ.
------------------------------------------------
O.P.(KAT) No.5 of 2021
(Arising out of order dated 18.12.2020 in O.A.718/2020 of
Kerala Administrative Tribunal, Thiruvananthapuram)
--------------------------------------------------
Dated this the 6th day of January, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayers in the aforecaptioned Original Petition filed under
Articles 226 and 227 of the Constitution of India, are as follows;
"1. To set aside Exhibit P4 order dated 18.12.2020 of the Kerala
Administrative Tribunal in O.A.No.718/2020.
2. To issue other reliefs this Honourable Court may deem fit in
the Original Application."
2. Heard Sri Antony Mukkath, learned Senior Government
Pleader appearing for the petitioners (State of Kerala in the Industries
Department and the Director of Industries and Commerce)/
respondents 1 and 2 in the OA before the Tribunal and
Sri P.Nandakumar, learned Advocate appearing for the 1 st respondent
herein (original applicant before the Tribunal). In the nature of the
order proposed to be passed, notice to the 2nd respondent will stand
dispensed with.
3. The 1st respondent had approached the Kerala
Administrative Tribunal, Thiruvananthapuram Bench by filing the
instant O.A.No.718 of 2020 seeking quashment and setting aside of the
impugned Annexure A4 G.O.(Rt)No.345/2020/ID dated 25.05.2020
issued by the Governmental authorities in the Industries Department,
whereby the 1st respondent herein (original applicant) was ordered to be
placed under suspension pending disciplinary proceedings. The
Tribunal as per the impugned Ext.P4 final order dated 18.12.2020 in
O.A.No.718 of 2020 has set aside and quashed the said Annexure A4
suspension order dated 25.05.2020 and has also quashed the
disciplinary proceedings referred to therein and has ordered that the
original applicant (1st respondent herein) may be reinstated in service in
the same post he was working, i.e., as the General Manager of District
Industries Centre, Idukki. Incidentally, it is also relevant to note that
the 1st respondent herein had also filed another original application, viz;
O.A.No.403 of 2020 seeking for quashment of the impugned transfer
order dated 20.02.2020, whereby he was ordered to be transferred
from Idukki to Wayanad. As a matter of fact, the Tribunal as per Ext.P4
has rendered a common final order dated 18.12.2020 and finally
disposed of both the above said Original Applications one in relation to
the suspension order and the other in relation to the transfer order.
4. Various submissions have been made by both sides.
Sri Antony Mukkath, the learned Senior Government Pleader appearing
for the petitioners would urge that apart from the illegality in quashing
the suspension order, it is to be noted that the original applicant had
never sought for quashment of the disciplinary proceedings in the
prayers in the instant O.A.No.718 of 2020 and as a matter of fact he had
in fact instituted and filed a separate original application as O.A.No.944
of 2020 before the same Tribunal seeking for quashment of the said
impugned disciplinary proceedings and that the Tribunal has
committed an error apparent on the face of record while passing the
impugned order Ext.P4 whereby not only the suspension order has
been quashed, but also the disciplinary proceedings referred to therein
also have been quashed and that too without quashing the memo of
charges and without considering the legality and correctness of the
memo charges dated 12.06.2020, produced as Ext.P2 herein on Page
127 of the paper book of this case. It is also, inter alia, pointed out by
the learned Senior Government Pleader that the quashment of the
impugned proceedings, without a plea in that regard in the present OA
and without considering the legality or correctness of Ext.P2 memo of
charges dated 12.06.2020 and without quashing the said memo of
charges would certainly be an error apparent on the face of record,
which would require interdiction.
5. After hearing both sides, it is to be noted at the outset that
this Court has rendered two separate orders yesterday, viz; order dated
05.01.2021, one in O.P.(KAT)No.3 of 2021 filed by the State authorities
challenging the above said common order of the Tribunal rendered on
18.12.2020 in O.A.No.403 of 2020, which relates to the interdiction in
the transfer order and this Court held that the interference made by the
Tribunal with the said transfer order dated 20.02.2020 is not right and
proper and has accordingly interfered with the impugned final order
rendered by the Tribunal to the extent it concerns the transfer matter
and this Court has also given liberty to the State authorities concerned
to immediately implement the the impugned transfer order dated
20.02.2020, but also with the rider that the competent authorities of
the State Government should immediately consider the request of the
original applicant for posting either in Kollam or in the vacancy said to
be available in neighbouring district, viz; Pathanamthitta, taking into
account the fact that the applicant has a plea that out of his total 16
years of service, he has already spent 13 long outstation service outside
his preferred home district at Kollam and out of which he has already
undergone two outstation services in arduous and hilly terrain areas
one at Wayanad and one at Idukki. Further, it is also to be noted that
some of the lady employees concerned who are stated to have given
complaints against the original applicant regarding his conduct, stated
to have happened during the period of stay at Idukki, which forms part
of the main basis of the allegations in the suspension order had also
approached this Court by filing O.P.(KAT)No.450 of 2020 praying for
interference with the present impugned order dated 18.12.2020 of the
Tribunal in the instant O.A.No.718 of 2020 to the extent it has quashed
the suspension order and disciplinary action and also the consequential
direction issued by the Tribunal to reinstate the original applicant in the
very same station at Idukki.
6. In the light of the dictum laid down by the Apex Court in the
decisions as in Rajeev Kumar and another v. Hemaraj Singh
Chauhan and others [(2010) 4 SCC 554] as well as the judgment of
the Division Bench of this Court as in the judgment dated 12.07.2010 in
WP(C) No.20979 of 2010 as well as the judgment of this Court in
Gireesh Babu M.B. and others v. Pavithran T.T.V. and others
[2013 (3) KHC 165] as well as the dictum laid down by the Full Bench of
this Court in the recent decision in Haris K.M. v. Jahfar K. [2020
(4) KLJ 846], we hold that the challenge made by such parties who are
essentially third parties before the Tribunal in the impugned
proceedings cannot be entertained by this Court as a Court of first
instance and that the remedy of such third parties who claim to be
aggrieved by the decision of the Tribunal would be to approach the
Tribunal by filing review application along with necessary application
for third party leave, delay condonation application, etc. and convince
the Tribunal as to how they are directly affected by the impugned
decision of the Tribunal and then to seek review and recall the
impugned order inasmuch as if they can establish that they were not
heard in spite being detrimentally affected.
7. The learned counsel for the petitioners in O.P.(KAT)No.450
of 2020 had also then submitted that review application and other
necessary applications will be filed before the Kerala Administrative
Tribunal so as to challenge the impugned order dated 18.12.2020
rendered by the Tribunal in the instant O.P.(KAT)No.718 of 2020 to the
extent it has interfered with the suspension order and disciplinary
action and other allied matters. Further, the complaint now voiced by
the learned Senior Government Pleader representing the petitioners in
O.P.(KAT)No.5 of 2021 as well as that by the petitioners in O.P.
(KAT)No.450 of 2020 (filed by third parties, which was disposed of by
us yesterday), is that the impugned direction to reinstate the original
applicant in the very same station and post at Idukki will not survive
any longer inasmuch as this Court has already passed a separate order
yesterday (05.01.2021) finally disposing of O.P.(KAT)No.3 of 2021
whereby the impugned transfer order dated 20.02.2020 has been
upheld and the interdiction by the Tribunal has been set aside by this
Court and liberty has been given to the State authorities to immediately
implement transfer order dated 20.02.2020, but with a rider to
immediately thereafter consider the plea of the petitioner for posting in
the other stations concerned. Therefore the said complaint voiced by
both the aforesaid parties including the State authorities regarding the
legality or otherwise of one of the decisions of the Tribunal to reinstate
the original applicant in the very same post in the very same station at
Idukki does not any longer survive for consideration. Further, since
third parties have already been directed to approach the Tribunal by
filing formal review application as per the judgment rendered by us
yesterday (05.01.2021) in O.P.(KAT)No.450 of 2020 filed by the said
third parties, regarding the right of this Court to entertain the present
O.P.(KAT)No.5 of 2021 filed by the State authorities concerned, seeking
for interference with the directions issued by the Tribunal to the extent
concerning suspension and disciplinary matter, inasmuch as the
discretion of the Tribunal to entertain the review application at the
instance of the above said third parties as ordered in O.P.(KAT)No.450
of 2020 may be unnecessarily affected. Therefore, we suggested that
for the time being, as of now it would not be right and proper for this
Court to entertain the present OP(KAT) No.5 of 2021 by keeping it
pending and liberty could be accorded to the petitioners State
authorities to wait for the orders of the Tribunal on the review
application to be filed by third parties as per the directions in O.P.
(KAT)No.450 of 2020 and thereafter if the State authorities have any
subsisting grievance as regards the impugned order dated 18.02.2020
rendered by the Tribunal in O.A.No.718 of 2020, then certainly, they
will be at liberty to approach this Court again and all contentions of
both sides would be left open to be raised in such appropriate
proceedings in the manner known to law. When we expressed our view
in that regard, Sri Antony Mukkath, learned Senior Government
Pleader appearing for the petitioners would fairly submit that if that be
so, in case this Court is taking the said stand, liberty may be given to the
petitioner State authorities concerned to wait for the orders of the
Tribunal in the review application filed by such third parties pursuant
to the direction in O.P.(KAT)No.450 of 2020 and thereafter, in case the
State authorities have any subsisting grievance, they may be given
liberty to approach this Court and liberty may be accorded to them on
all contentions in that regard. Further, Sri Antony Mukkath, learned
Senior Government Pleader appearing for the petitioner State
authorities would also submit that leave may also be accorded to the
State authorities to prefer separate review applications to challenge the
above final order dated 20.02.2020 rendered by the Tribunal in
O.A.No.718 of 2020, in case the State authorities are so inclined, most
particularly, as the impugned order passed by the Tribunal quashing
not only the suspension order but also the disciplinary proceedings
without quashing the memo of charges and without considering the
legality and correctness of the said memo of charges and without a
prayer for quashment of the memo of charges and also when a separate
original application as O.A.No.944 of 2020 was already filed by the
original applicant before the Tribunal, separately challenging the said
memo of charges, would certainly amount to an error apparent on the
face of record. Accordingly, it is urged that this Court may also reserve
liberty to the State authorities not only to approach this Court at the
appropriate time, but also to approach the Tribunal by filing review
application, if so advised, and if they are so inclined. The above said
views made by Sri Antony Mukkath, learned Senior Government
Pleader appearing for the petitioners appears to be eminently fair,
reasonable and just. Accordingly, it is ordered that liberty is accorded
to the petitioners herein/State authorities concerned to wait for the
orders of the Tribunal in the review application proposed to be filed by
third parties as per the direction in O.P.(KAT)No.450 of 2020 and it is
also made clear that in case the third parties do not file any review
application within a reasonable time of 5 to 6 weeks, then also the State
authorities will be at liberty to approach this Court for challenging the
aforesaid order of the Tribunal on all contentions available to them in
law. Liberty is also accorded to the State authorities to prefer separate
review applications to impugn the order dated 18.02.2020 in
O.A.No.718 of 2020 in relation to the suspension matter, if they are so
advised and all contentions available to them in that regard for raising
such review plea are also kept reserved intact and reserved in the
manner known to law with liberty to approach this Court at appropriate
time, if they have any subsisting grievance after the Tribunal renders
orders in that regard and such filing of review application will also be
without prejudice to the right of the State authorities to approach this
Court at the appropriate time and all contentions available to them in
law are kept open as above directed. Needless to say, since this Court
has already passed separate order yesterday (05.01.2021) in O.P.
(KAT)No.3 of 2021 filed by the State authorities, whereby the impugned
transfer order dated 20.02.2020 has already been upheld with liberty to
the State authorities to implement the same, but subject to the said
rider, the complaint of the State authorities about the impugned
direction issued by the Tribunal to also reinstate and re-post the
original applicant in the very same post at Idukki does not any longer
survive for consideration.
With these observations and directions, and with the said liberty,
this OP(KAT) filed by the State authorities will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
T.R. RAVI, JUDGE
dsn
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE O.A.NO.718/2020 ALONG WITH
ANNEXURES
ANNEXURE A1 TRUE COPY OF THE GO(RT)NO.810/2017/ID DATED
13/06/2017 OF GOVT.OF KERALA.
ANNEXURE A2 TRUE COPY OF THE INTERIM ORDER DATED
24/02/2020 IN O.A.NO.403/2020 OF THE
HONOURABLE KAT.
ANNEXURE A3 TRUE COPY OF THE INTERIM ORDER DATED
23/03/2020 IN OA NO.403/2020 OF THE
HONOURABLE KAT.
ANNEXURE A4 TRUE COPY OF THE
GO(RT)NO.345/2020/INDUSTRIES DATED
25/05/2020 OF THE 1ST RESPONDENT.
ANNEXURE A5 TRUE COPY OF THE FINAL ORDER DATED
13/07/2017 IN O.A.NO.1263/2017 OF THE
HONOURABLE KAT
ANNEXURE A6 TRUE COPY OF THE GO(RT)NO.896/2018/ID DATED
28/07/2018 OF GOVT. OF KERALA.
ANNEXURE A7 TRUE COPY OF THE FINAL ORDER DATED
07/11/2018 IN OA NO.1455/2018 OF THE
HONOURABLE KAT
ANNEXURE A8 TRUE COPY OF THE REPLY STATEMENT FILED IN
O.A.NO.1455/2018 WITH ANNEXURES BY THE 1ST
RESPONDENT.
ANNEXURE A9 TRUE COPY OF THE GO(RT)NO.157/2020
INDUSTRIES DATED 20/02/2020 OF THE
GOVERNMENT OF KERALA.
ANNEXURE A10 TRUE COPY OF THE REPLY STATEMENT IN OA
N0.403/2020 ALONG WITH ANNEXURES FILED BY
THE 1ST RESPONDENT.
ANNEXURE A11 TRUE COPY OF THE LETTER NO.DIC/731/2020-ED1
DATED 06/03/2020 OF THE 2ND RESPONDENT.
ANNEXURE A12 TRUE COPY OF THE REPRESENTATION DATED
16/03/2020 SUBMITTED BY THE APPLICANT
BEFORE THE 2ND RESPONDENT.
ANNEXURE A12(A) TRUE COPY OF THE FORWARDING LETTER
NO.DICIDK/70/2020-A1 DATED 13/05/2020 -A1
DATED 13/05/2020 OF THE GENERAL
MANAGER,DISTRICT INDUSTRIES CENTRE,IDUKKI.
ANNEXURE A13 TRUE COPY OF THE MEMO NO.A5/2783/2017 DATED
26/11/2018 ISSUED BY THE APPLICANT SRI.BABU
RAJ.K.K.
ANNEXURE A13(A) TRUE COPY OF THE MEMO NO.A5/2783/2017 DATED
26/11/2018 ISSUED BY THE APPLICANT TO
SMT.SINDHU.P.K.
ANNEXURE A13(B) TRUE COPY OF THE MEMO NO.A5/2783/2017 DATED
26/11/2018 ISSUED BY THE APPLICANT TO
SMT.RESHMA.G.
ANNEXURE A13(C) TRUE COPY OF THE MEMO NO.A5/2783/2017 DATED
26/11/2018 ISSUED BY THE APPLICANT TO
SRI.VIJESH.N.V.
ANNEXURE A13(D) TRUE COPY OF THE MEMO NO.A5/2783/2017 DATED
26/11/2018 ISSUED BY THE APPLICANT TO
SMT.BINCY MOL.T.
ANNEXURE A13(E) TRUE COPY OF THE MEMO NO.A5/2783/2017 DATED
26/11/2018 ISSUED BY THE APPLICANT TO
SRI.VISHAK.P.S.
ANNEXURE A13(F) TRUE COPY OF THE SHOW CAUSE NOTICE
NO.A1/689/2019 DATED 22/02/2019 ISSUED BY
THE APPLICANT TO SRI.BABU RAJ.K.K.
ANNEXURE A13(G) TRUE COPY OF THE SHOW CAUSE NOTICE
NO.DICIDK/2234/2019-A1 DATED 18/03/2020
ISSUED BY THE APPLICANT TO SRI.BABU
RAJ.K.K.
ANNEXURE A13(H) TRUE COPY OF THE SHOW CAUSE NOTICE
NO.DICIDK/2321/2019-A4 DATED 01/10/2019
ISSUED BY THE APPLICANT TO SMT.BINCY MOL.T.
ANNEXURE A13(I) TRUE COPY OF THE SHOW CAUSE NOTICE DATED
20/03/2020 ISSUED BY THE APPLICANT TO
SRI.T.UDAYAKUMAR.
ANNEXURE A13(J) TRUE COPY OF THE SHOW CAUSE NOTICE
NO.A1/501/2018 DATED 24/07/2019 ISSUED BY
THE APPLICANT TO SRI.RENJITH BABU.
ANNEXURE A13(K) TRUE COPY OF THE WARNING NOTICE
NO.A1/4378/18 DATED 06/12/2018 ISSUED BY
THE APPLICANT TO SRI VISHAK P.S.
ANNEXURE A14 TRUE COPY OF THE REPORT NO.DICIDK/297/2020-
A1 DATED 14/05/2020 SUBMITTED BY THE
APPLICANT BEFORE THE 2ND RESPONDENT.
ANNEXURE A14(A) TRUE COPY OF THE REPORT NO.DICIDK/297/2020-
A1 DATED 14/05/2020 SUBMITTED BY THE
APPLICANT BEFORE THE 2ND RESPONDENT.
ANNEXURE A15 TRUE COPY OF THE PMEGP E-PORTAL ONLINE
REPORT.
ANNEXURE A16 TRUE COPY OF THE PROCEEDINGS
NO.DIC/1516/2020-EDI DATED 26/05/2020 OF
THE 2ND RESPONDENT.
ANNEXURE A17 TRUE COPY OF THE REPORT OF CHARGE
(RTC)DATED 26/05/2020.
EXHIBIT P2 TRUE COPY OF THE MEMORANDUM ALONG WITH MEMO
OF CHARGES AND STATEMENT OF ALLEGATIONS
FILED BY THE FIRST PETITIONERS ON
15.06.2020
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT ALONG WITH
ANNEXURES R1(A) TO R1(B)FILED BY THE FIRST
PETITIONER ON 22.06.2020.
ANNEXURE R1(A) TRUE COPY OF THE COVERING LETTER IN
NO.DICIDK/70/2020-A1 DATED 13.05.2020 OF
GENERAL MANAGER,DISTRICT INDUSTRIES
CENTRE,IDUKKI.
ANNEXURE R1(B) TRUE COPY OF THE ORDER NO.DIC/731/2020/EDI
DATED 26.02.2020 OF DIRECTOR OF INDUSTRIES.
EXHIBIT P4 TRUE COPY OF THE FINAL ORDER OF THE
TRIBUNAL DATED 18.12.2020 IN O.A.718/2020.
