Rathin T.Prasad vs Central Warehousing Coporation
2021 Latest Caselaw 3035 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

   THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942

                    WP(C).No.19351 OF 2020(T)


PETITIONER :-

            RATHIN T.PRASAD, AGED 31 YEARS
            S/O.THANKA PRASAD, VISMAYAM, VATTAPPARA.P.O,
            THIRUVANANTHAPURAM - 695 028.

            BY ADVS.
            SRI.R.T.PRADEEP
            SMT.M.BINDUDAS
            SRI.K.C.HARISH

RESPONDENTS :-

      1     CENTRAL WAREHOUSING COPORATION
            REPRESENTED BY ITS REGIONAL MANAGER,
            REGIONAL OFFICE, MAVELI ROAD,
            GANDHI NAGAR, KADAVANTHRA, ERNAKULAM - 682 020.

      2     REGIONAL MANAGER,
            CENTRAL WAREHOUSING CORPORATION,
            REGIONAL OFFICE, MAVELI ROAD, GANDHI NAGAR,
            KADAVANTHRA, ERNAKULAM - 682 020.

      3     WAREHOUSE MANAGER,
            CENTRAL WAREHOUSE, KAKKANAD,
            KINFRA EPIP, KUSUMAGIRI.P.O,
            COCHIN - 682 030.

      4     DIRECTOR OF EMPLOYMENT,
            NATIONAL EMPLOYMENT SERVICE(KERALA),
            VIKAS BHAVAN, THIRUVANANTHAPURAM - 695 001.

            BY   ADV. SRI.K.R.GANESH
            BY   ADV. SMT.T.S.LIKHITHA
            BY   ADV. SRI.ELVIN PETER P.J.
            BY   SRI.BIJOY CHANDRAN, GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 28.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C).No.19351 OF 2020(T)

                                      -: 2 :-


                                  JUDGMENT

Dated this the 28th day of January 2021

This writ petition is filed seeking the following reliefs :-

"I. To issue a writ of certiorari or any other appropriate writ order or direction calling upon the records pertaining to Exhibits - P4, P9, P11, P12, P14, P16, P20 & P21 and quash the same.

II. To issue a writ of mandamus or any other appropriate writ order or direction to respondents to pay forthwith the amount due towards Contributory Provident Fund, Contributory Pension System and 10 days' salary."

2. Heard the learned counsel for the petitioner and the

learned counsel appearing for the respondent Corporation.

3. It is submitted by the learned counsel for the petitioner

that the petitioner had been appointed as Warehouse Assistant

Grade-II in the respondent Corporation on 8.1.2016. It is submitted

that while he was working in the Corporation as a probationer, he was

advised for appointment by the Public Service Commission as LD

Clerk in the National Employment Service, Kerala. It is submitted

that the petitioner informed the respondents and sought orders of

relief to join the new employment. However, without considering the

said request, the probation of the petitioner was declared by Ext.P4.

Thereafter, the petitioner submitted Ext.P5 resignation and sought to

be relieved from duty immediately to take up the employment as LD WP(C).No.19351 OF 2020(T)

Cleark. It is submitted that the respondents had thereafter issued

Ext.P6 communication threatening the petitioner with disciplinary

proceedings for having left the service without completing the notice

period. It is submitted that Ext.P7 notice was thereafter issued

requiring him to rejoin duty. The petitioner submitted Ext.P8 reply.

However, by Ext.P9 order dated 9.5.2017, the petitioner was required

to pay an amount equivalent to the basic pay and DA of the post held

by him for a period of three months to enable the respondents to

accept the petitioner's resignation. When the petitioner did not make

the payment as demanded, disciplinary proceedings have been

initiated against him and Ext.P16 order of termination of service was

issued. Thereafter, since the punishment imposed was only a

termination, the petitioner had sought the release of the CPF dues

and the other amounts liable to be paid to him. Ext.P20

communication was issued stating that the terminal benefits will be

released to the petitioner on payment of the three months' notice pay

with 18% GST, failing which, the present employer would be

approached for the realisation of the same. It is submitted that by

Ext.P21, the present employer of the petitioner has also been put on

notice to recover Rs.89,350/- from the petitioner and to make

payment to the 1st respondent's account. These orders are under

challenge in this writ petition.

WP(C).No.19351 OF 2020(T)

4. The learned counsel for the petitioner would contend that

he had submitted Ext.P3 letter dated 14.2.2017 and that he was only

a probationer in the service of the 1st respondent. It is contended that

Ext.P4 order of declaration of probation was issued in hasty manner

only to put the petitioner to prejudice. It is submitted that the action

of the respondents in having initiated disciplinary proceedings against

the petitioner and inflicted the punishment of termination was

completely uncalled for since the petitioner had informed the

respondents of his having secured an alternate employment and no

loss of any nature had been caused to the respondents. It is further

submitted that the action of the respondents in having terminated the

service of the petitioner and thereafter in seeking to recover three

months' notice pay from the petitioner are completely untenable.

5. A detailed counter affidavit has been placed on record by

respondents 1 to 3. It is submitted that a reading of Ext.P3 would

show that it is not a resignation in any sense of the word and that the

request therein was only to relieve the petitioner from duty as and

when he makes such a request. It is submitted that it was only by

Ext.P5 letter dated 10.3.2017 that the petitioner had expressed his

desire to resign from the post of Warehouse Assistant Grade-II for

taking up alternative employment. It is submitted that immediately

on receipt of Ext.P5, the respondents had informed the petitioner that WP(C).No.19351 OF 2020(T)

the notice period is three months in the case of a regular employee

and that the petitioner has to either serve out the notice period or

make the payment of the notice pay. It is submitted that when no

response was received from the petitioner, Ext.P7 communication

requiring him to rejoin duty was also issued. It is submitted that the

disciplinary proceedings had been initiated and taken to their logical

conclusion and Ext.P16 order of termination of service had been

issued to the petitioner. It is, therefore, contended that the petitioner,

who was admittedly duty bound to give notice of termination, is liable

to pay the amounts as demanded by the respondents.

6. I have considered the contentions advanced. Ext.P3 is a

letter initially submitted by the petitioner informing the respondents

that he has secured an alternative employment. However, Ext.P3 is

only an intimation of the fact and a request to relieve him as and

when he makes a further request. It is submitted by the learned

counsel for the respondents that the action taken by Ext.P4 on

18.2.2017 to declare the probation of the petitioner was only a

routine exercise carried out by the Corporation. In any view of the

matter, the petitioner, in Ext.P5 letter dated 10.3.2017, had submitted

his resignation from the post of Warehouse Assistant Grade-II.

Thereafter, the respondents had informed him that there is a notice

period of three months and that if the notice period is not served out, WP(C).No.19351 OF 2020(T)

he would have to remit the notice pay. The petitioner apparently

refused to serve out the notice period or to make the remittance of

the notice pay. On that basis, the petitioner had been proceeded

against by the respondents and an order of termination had been

rendered against him. Ext.P16 termination letter dated 1.10.2019

states that termination of the petitioner from service is on the basis of

unauthorised absence. He, therefore, stood terminated with effect

from 1.10.2019. It is, thereafter, that the petitioner submitted his

request for release of the terminal dues in the light of Ext.P17

circular. The contention of the petitioner that amounts can be

recovered from the CPF and other amounts paid to the petitioner only

if he was dismissed from service appears to have been accepted and

steps have been taken to release the benefits due to him as well.

However, the respondents have now taken further action to recover

the notice pay from the petitioner. I notice that the petitioner has

already undergone the disciplinary proceedings on the charge of

unauthorised absence and has been inflicted with a penalty of

termination of his service.

7. In the above circumstances, the contention of the learned

counsel for the petitioner that he cannot be inflicted with a further

penalty of recovery of notice pay appears to be justifiable. The

contention of the respondents was that the resignation of the WP(C).No.19351 OF 2020(T)

petitioner was not a proper resignation since the notice period was

not served out by the petitioner. If that be so, the respondents could

have accepted the resignation and recovered the notice pay from the

petitioner. However, having chosen to inflict the penalty of

termination of the petitioner, I am of the opinion that the further steps

taken to recover the notice pay is absolutely unjustifiable.

In the above view of the matter, upholding Ext.P16 order

of termination, I find that the further steps taken by the Corporation

by Exts.P20 and P21 to recover the notice pay from the petitioner is

unjustifiable. Exts.P20 and P21 are, therefore, set aside. The

respondents shall release any amounts due to the petitioner, which is

payable to him on account of his termination, at the earliest, within a

period of three months from the date of receipt of a copy of this

judgment.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/1.2.2021 WP(C).No.19351 OF 2020(T)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 THE COPY OF THE MEMORANDUM DATED 8.1.2016 BY WHICH THE PETITIONER AS APPOINTED AS WAREHOUSE ASSISTANT GRADE-II

EXHIBIT P2 THE COPY OF THE OFFICE ORDER DATED 6.8.2016 AS REGARD HIS JOINING OF DUTY ON 21.1.2016.

EXHIBIT P3 THE COPY OF THE LETTER DATED 14.2.2017 SEEKING PERMISSION TO RELIEF FROM DUTY TO TAKE UP OTHER EMPLOYMENT

EXHIBIT P4 THE COPY OF THE OFFICE ORDER DATEWD 18.2.2017 BY WHICH THE PROBATION OF PETITIONER WAS DECLARED.

EXHIBIT P5 THE COPY OF THE RESIGNATION LETTER DATED 10.3.2017 SUBMITTED BY THE PETITIONER.

EXHIBIT P6 THE COPY OF THE COMMUNICATION DATED 15.3.2017 THREATENING THE PETITIONER WITH DISCIPLINARY PROCEEDING FOR HAVING LEFT THE EMPLOYMENT WITHOUT 3 MONTH'S NOTICE BY 2ND RESPONDENT.

EXHIBIT P7 THE COPY OF THE COMMUNICATION DATED 20.3.2017 CALLING UPON THE PETITIONER TO REPORT FOR DUTY BY 3RD RESPONDENT.

EXHIBIT P8 THE COPY OF THE REPRESENTATION DATED 1.4.2017 BY PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P9 THE COPY OF THE COMMUNICATION DATED 9.5.2017 TO PAY 3 MONTHS' SALARY TO OBLITERATE FURTHER PROCEEDINGS.

EXHIBIT P10 THE COPY OF THE REPLY DATED 16.5.2017 BY PETITIONER GIVEN TO 3RD RESPONDENT

EXHIBIT P11 TRUE COPY OF THE COMMUNICATION DATED 20.7.2017 BY 3RD RESPONDENT INFORMING THE INITIATION OF DISCIPLINARY PROCEEDINGS.

EXHIBIT P12 THE COPY OF THE SHOW CAUSE NOTICE DATED 13.6.3.2018 BY 2ND RESPONDENT

EXHIBIT P13 THE COPY OF THE EXPLANATION DATED 20.6.2018 TO SHOW CAUSE NOTICE BY PETITIONER.

WP(C).No.19351 OF 2020(T)

EXHIBIT P14 THE COPY OF THE FINAL NOTICE DATED 24.7.2019 ISSUED BY 2ND RESPONDENT.

EXHIBIT P15 THE COPY OF THE EXPLANATION DATED 2.8.2019 TO FINAL NOTICE BY PETITIONER.

EXHIBIT P16 THE COPY OF THE TERMIMATION LETTER DATED 1.10.2019 BY 2ND RESPONDENT.

EXHIBIT P17 THE COPY OF THE CIRCULAR DATED 9.5.2017 BY 1ST RESPONDENT.

EXHIBIT P18 THE COPY OF THE COMMUNICATION DATED 22.6.2020 BY SENIOR ASSISTANT MANAGER OF 1ST RESPONDENT.

EXHIBIT P19 THE COPY OF THE REPRESENTATION DATED 21.7.2020 BY PETITIONER SEEKING EXPEDITIOUS RELEASE OF TERMINAL BENEFITS AND SALARY DUE.

EXHIBIT P20 THE COPY OF THE ORDER DATED 28.8.2020 TO RECOVER 3 MONTH'S SALARY FROM PETITIONER BY 2ND RESPONDENT.

EXHIBIT P21 THE COPY OF THE PROCEEDING DATED 5.9.2020 BY 2ND RESPONDENT FORWARDED TO 4TH RESPONDENT.

RESPONDENT'S EXHIBITS:

EXHIBIT R1(a) TRUE PHOTOCOPY OF THE RELEVANT EXTRACT OF THE OFFICE MANUAL PUBLISHED BY CENTRAL WAREHOUSING CORPORATION.