Sameer.S vs State Police Chief
2021 Latest Caselaw 14621 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
         THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                 &
          THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
  WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
                   OP(KAT) NO. 106 OF 2021
 AGAINST THE ORDER DATED 7-8-2019 IN OA 2206/2018 OF KERALA
        ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.
PETITIONER/APPLICANT IN O.A          :

          SAMEER.S, AGED 39 YEARS,
          S/O. M. SHAHABUDEEN, ROADARIKATHU KADAYIL VEEDU,
          11TH STONE NEDUMANGAD P.O, THIRUVANANTHAPURAM,
          KERALA 695 541, MOB. 8136876716.
          BY ADVS.SRI.V.MANOJ KUMAR &        SRI.IYPE JOSEPH.


RESPONDENTS/RESPONDENTS IN O.A           :

    1     STATE POLICE CHIEF,
          KERALA POLICE HEADQUARTERS,
          THIRUVANANTHAPURAM, KERALA 695 010.
    2     THE ADDITIONAL DIRECTOR GENERAL OF POLICE,
          APBN, POLICE HEADQUARTERS,
          THIRUVANANTHAPURAM, KERALA 695 010.
    3     THE INSPECTOR GENERAL OF POLICE ARMED POLICE
          BATTALION, PEROORKADA, THIRUVANANTHAPURAM,
          KERALA-695 005
    4     COMMANDANT, SPECIAL ARMED POLICE, PEROORKADA,
          THIRUVANANTHAPURAM, KERALA-695 005.


          BY SRI.B.UNNIKRISHNA KAIMAL, GOVT.PLEADER


     THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP
FOR ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
   OP (KAT) No.106 of 2021                           2




         ALEXANDER THOMAS & A.BADHARUDEEN, J J.
              ------------------------------------------------
                     OP (KAT) No.106 of 2021
        (Arising out of the impugned final order dated 7-8-2019 in O.A No.2206 of 2018
                                on the file of KAT, Tvm. Bench.)
                    ----------------------------------------------------
                      Dated this the 14th day of July, 2021


                                     JUDGMENT

ALEXANDER THOMAS, J.

The prayers in the aforecaptioned Original Petition filed under

Articles 226 & 227 of the Constitution of India are as follows {See page 9

of the paper book of the O.P(KAT)} :

"(i) To call for the entire records leading to Exhibit P5 and

(ii) To issue direction or appropriate order to set aside Exhibit P5 order dated 7-8-2019 in O.A N.2206 of 2018 except positive direction tobe complied by the 4th respondent on the file of the Kerala Administrative Tribunal, Thiruvananthapuram Bench and allow the above O.P(KAT)

(iii) To direct the 4th respondent to comply Exhibit P5 order of the Kerala Administrative Tribunal, Thiruvananthapuram Bench.

(iv) To grant such other and further reliefs as are just, proper and necessary in the facts and circumstances of the case.

(v) To award cost of this proceeding."

2. Heard Sri.V.Manoj Kumar, the learned counsel appearing

for the petitioner/original applicant in the O.A before the Tribunal and

Sri.B.Unnikrishna Kaimal, the learned Government Pleader for the

respondents in the O.P/respondents in O.A.

3. The prayers in the instant Ext.P1 O.A No.2206 of 2018

filed by the petitioner herein before the Tribunal are as follows {See page

Nos.28 and 29 of the paper book of O.P(KAT)} :

"(a) To call for the records leading to Annexure A22(a) order terminating the Applicant from service as Camp Follower (Cook) in Special Armed Police, Trivandrum and quash the same as it deter mentally affects the future employment of the Applicant and also as it is issued in violation of Article 16 and Article 311(2) of the Constitution of India.

(b) To direct the 4th respondent to re-instate the Applicant in the post of Camp Follower (Cook) as he was terminated illegally from service in violation of rules of Natural Justice and constitutional guarantees, and to make him permanent as he has worked 153 days continuously without any break.

(c) To direct the 4th respondent to address the Employment Officer immediately to withdraw Annexure A10 letter to all employment officers in Trivandrum which has stated illegal age limit for Camp Follower (cook) as 18 to 25 which is against rules.

(d) To call for the Attendance Register in the Office of the 4 th respondent pertaining to the period the Applicant worked ie, from 22-07-2015 to 22-12-2015 (153 days uninterruptedly and Continuously and verify the genuineness of the complaint of the Applicant and issue necessary directions to the 4 th respondent.

(e) To call for the minutes of disciplinary action pertaining to Annexure A4 termination order.

(f) To call for the minutes records of hearing leading to Annexure A22(a) rejected order conducted as per the order of the Hon'ble Tribunal in O.A 833/2018.

(g) Grant such other reliefs which this Hon'ble Tribunal deems just and proper to be granted to meet the ends of justice."

4. The Tribunal after hearing both sides has now rendered

the impugned Ext.P5 final order dated 7-8-2019 in the above O.A

No.2206 of 2018, whereby it has been held that the impugned

Annexure A22 proceedings is illegal and ultra vires as the said order

terminating the service of the petitioner on the grounds of alleged

misbehavior, without notice or an opportunity of being heard to him,

is illegal and ultra vires and accordingly the impugned Annexure A22

proceedings dated 9-8-2018 issued by the competent authority of the

Police Department has been quashed on the ground that the

impugned order is illegal as the same is one ordering termination of

service of the petitioner on the ground of alleged misconduct and

without reasonable opportunity of being heard. However, the Tribunal

found that since the employment of the petitioner was purely on daily

rated wage basis, it may not be feasible to reinduct him into service

and hence ordered that the 4th respondent in the O.A (Commandant,

Special Armed Police, Peroorkada, Thiruvananthapuram) should pay

compensation to the original applicant for lose of employment by

paying the remuneration due to him for the remaining days of his

engagement. This was ordered to be done within a period of one

month.

5. The facts in this case are not in serious dispute. The

petitioner herein who is the original applicant was initially appointed

on daily wage basis as Camp Follower (Cook) in the SAP Battalion as

per the orders of the 4th respondent (Commandant, Special Armed

Police) for 59 days vide Order No.272/2015 dated 28-07-2015 on

temporary basis and later his service was terminated on 31-08-2015

vide order dated 2-9-2015. After that he was again posted for another

59 days on daily wage basis vide order dated 3-9-2015 and later

terminated from service on 30-10-2015 on completing his tenure.

Later, he was again appointed as Camp Follower (Cook) on daily wage

basis considering his request, vide order dated 4-11-2015 w.e.f

3-11-2015 for a period of 59 days and was later prematurely

terminated from service as per the impugned Annexure A4 order

dated 22-12-2015 alleging misconduct and indiscipline on his part. So

it appears that before he could enjoy the full term of his appointment

of 59 days as covered by the last appointment order dated 4-11-2015,

he had been prematurely terminated from service as per the impugned

Annexure A4 order dated 22-12-2015. Being aggrieved by Annexure

A4 order, the petitioner herein had earlier approached the Tribunal by

filing OA No.833 of 2018 and Tribunal as per order dated 1-6-2018 in

the said O.A No.833 of 2018 had directed the first respondent therein

to consider the representation of the applicant and take decision

thereon after hearing him within three months. It is thereafter that the

impugned Annexure A22 order dated 9-8-2018 has been passed by

the Deputy Inspector General of Police rejecting the request of the

petitioner to reinstate him in service and alleging therein that the

termination from the service of the petitioner as per Annexure A4

order was on account of indiscipline, misbehavior and misconduct

towards higher ups, etc. The Tribunal after hearing both sides has held

that the impugned Annexure A22 order is liable to be quashed as the

service of the petitioner has been prematurely terminated alleging

misconduct as per Annexure A4 but without hearing him at that time.

However, the Tribunal found that since the appointment of the

petitioner is purely on daily basis, there is not much scope of

reinstatement of the petitioner in service and he had hardly about two

weeks of service to complete his full term of appointment as covered

by the last appointment order and therefore, the ends of justice will be

met by ordering that the 4th respondent in the O.A will pay

compensation to the petitioner for lose of employment by paying the

remuneration due to him for the remaining days of his engagement

within one month. After hearing both sides, we are of the view that the

Tribunal's decision is fair, equitable and just and there is not much

scope for interfering with the said verdict of the Tribunal by ordering

reinstatement of the petitioner as he had hardly about two weeks of

service to complete his full term of appointment.

6. Sri.V.Manoj Kumar, the learned counsel appearing for the

petitioner/original applicant in the O.A before the Tribunal pointed

out that the orders at Annexures A4 and A22 would carry strong

stigma against him in asmuch as it alleges that the petitioner has been

terminated from service on the ground of alleged misconduct and that

this may even be a ban for his future reemployment and that even

though petitioner is eligible for being considered for re-engagement on

daily wage basis as per the norms, the order at Annexure A4 will stand

in the way of such re-induction even on daily wage basis or even on

provisional basis. Annexure A4 would disclose that the petitioner has

been prematurely terminated from service on account of alleged

misconduct, indiscipline and misbehavior, etc. There is no dispute for

respondents that Annexure A4 termination order has been passed on

the ground of alleged misconduct but without affording an

opportunity of being heard to the applicant. Accordingly, it is ordered

that Annexure A4 order would also be declared as illegal and ultra

vires. Annexure A22 has already been quashed by the Tribunal. Since

the termination of the petitioner from the service on the ground of

alleged misconduct was without affording reasonable opportunity

being heard to him and as Annexures A4 & A22 have already been

declared as illegal and ultra vires, the said impugned proceedings shall

not be treated in any manner as a disqualification for future

employment of the petitioner on regular basis, temporary/provisional

basis or on daily wage basis. If the norms of the respondents permit

consideration of re-engagement of a person like the petitioner on daily

wage basis or provisional basis etc., then the case of the petitioner

shall be considered in accordance with the norms and Annexrues A4

and A22 shall not be treated as a disqualification for any such

engagement or appointment.

7. Further, it is also pointed out by the learned counsel for

the petitioner that till date the 4th respondent has not paid the

compensation ordered by the Tribunal. The impugned Ext.P5 final

order was rendered by the Tribunal on 7-8-2019 and thereafter the

original applicant has filed the present OP before this Court on

24-03-2021. Accordingly, it is ordered that the competent authority

among the respondents herein, more particularly, the 4th respondent

shall ensure that the compensation payable to the petitioner in terms

of Ext.P5 final order of the Tribunal shall be paid to him without any

further delay, at any rate, within six weeks from the date of production

of a certified copy of this judgment.

8. The petitioner has raised certain other issues and prayers

in the O.A as regards his right to be considered for temporary

appointment, etc. But none of the issues had been decided by the

Tribunal. We make it clear that none of the other issues raised by the

original applicant has been decided and those issues are left open to be

raised and decided in an appropriate proceedings in a manner known

to law. The directions and orders of the Tribunal at Ext.A5 will stand

modified as above.

With these observation and directions, the above Original

Petition will stand finally disposed of.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

                                  A.BADHARUDEEN, JUDGE




amk





                      APPENDIX OF OP(KAT) 106/2021



PETITIONER'S       ANNEXURES :


ANNEXURE A1                TRUE COPY OF ORDER NO.               DLSA/TVPM/IR
                           320/2018 DATED 27.09.2018.
ANNEXURE A2                TRUE COPY      OF     B.O.NO.   272/2015    DATED
                           28.07.2015.
ANNEXURE A3                TRUE COPY OF EXPERIENCE CERTIFICATE NO.

1059/2015/ACQM/SAP DATED 13.11.2015.

ANNEXURE A4 TRUE COPY OF PREMATURE TERMINATION ORDER B.O. NO. 512/2015 S DATED 22.12.2015.

ANNEXURE A5 TRUE COPY OF REPRESENTATION TO THE 3RD RESPONDENT DATED 10.12.2015.

ANNEXURE A6 TRUE COPY OF DEPOSITION OF APPLICANT DATED 22.12.2015.

ANNEXURE A7 TRUE COPY OF REPRESENTATION TO THE 4TH RESPONDENT.

ANNEXURE A8 TRUE COPY OF THE REPRESENTATION TO THE 3RD RESPONDENT DATED 23.12.2015.

ANNEXURE A9 TRUE COPY OF THE INTIMATION LETTER NO. A2-

10296/2015/SAP DATED 15.10.2015 VACANCIES OF CAMP FOLLOWERS.

ANNEXURE A9(A) TRUE COPY OF REQUISITION FROM TO BE USED BY ESTABLISHMENTS IN THE STATE GOVERNMENT SECTOR WHEN CALLING FOR APPLICANT FROM EMPLOYMENT EXCHANGE.

ANNEXURE A10 TRUE COPY OF LETTER NO. X16 NO.

C1/451/2015 DATED 10.12.2015 IN CONNECTION WITH URGENT CIRCULAR FIXING AGE LIMIT OF

18-25.

ANNEXURE A11 TRUE COPY OF REPRESENTATION TO THE 1ST RESPONDENT DATED 02.06.2017.

ANNEXURE A12 TRUE COPY OF THE ACKNOWLEDGMENT OF ANNEXURE A11.

ANNEXURE A13 TRUE COPY OF LETTER NO. L3-96774/2017/PHQ DATED 29.06.2017.

ANNEXURE A14 TRUE COPY OF THE REPRESENTATION TO THE 4TH RESPONDENT DATED 20.03.2018.

ANNEXURE A15 TRUE COPY OF THE ACKNOWLEDGEMENT OF ANNEXURE A14.

ANNEXURE A16 TRUE COPY OF ORDER IN O.A. NO. 833/2018 OF THE HON'BLE TRIBUNAL DATED 01.06.2018 DIRECTING THE 1ST RESPONDENT TO TAKE A DECISION ON ANNEXURE A11 REPRESENTATION DATED 02.06.2017.

ANNEXURE A17               HEARING NOTICE NO.L3-96774/2017/PHQ DATED
                           21.07.2018   ISSUED   FROM    POLICE HEAD
                           QUARTERS, THIRUVANANTHAPURAM.
ANNEXURE A18               REPRESENTATION DATED 27.07.2018 SUBMITTED
                           BY THE APPLICANT BEFORE THE HEARING

OFFICER (DIG OF POLICE ADMINISTRATION) ANNEXURE A19 BAND CERTIFICATE NO.4N.B.BS/07 DATED 20.06.2007 IS ISSUED TO THE APPLICANT BY THE NEW BRASS BAND SET ANNEXURE A20 COMMUNICATION LETTER NO.L3-152165/2015/PHQ DATED 24.09.2015 ISSUED FROM THE POLICE HEAD QUARTERS TO THE COMMANDANT SPECIAL ARMED FORCE TRIVANDRUM.

ANNEXURE A21 THE BANDSMAN (SIDE DRUMMER) VACANCY DETAILS FURNISHED BY THE O/O. THE SPECIAL ARMED POLICE COMMANDANT, TVPM, DATED 03.08.2015 TO THE APPLICANT, UNDER RTI

ACT.

ANNEXURE A22 REJECTED ORDER NO. L3-96774/2017/PHQ DATED 09.08.2018 ISSUED BY THE DEPUTY INSPECTOR GENERAL OF POLICE (ADMINISTRATION) POLICE HEAD QUARTERS, THIRUVANANTHAPURAM REJECTING THE ANNEXURE A11 REPRESENTATION STATING THAT NO VALID GROUND IN REPRESENTATION.

ANNEXURE 22(A) THE COVERING LETTER OF ANNEXURE A22 REJECTED ORDER ISSUED BY THE SAP COMMANDANT, THIRUVANANTHAPURAM, DATED 21- 08-2018.

ANNEXURE A23 SENIORITY LIST OF CAMP FOLLOWERS OF THIRUVANANTHAPURAM CITY AS ON 31.03.2000. ANNEXURE A24 THE RTI ACT APPLICATION DATED 26.09.2018 SUBMITTED BEFORE THE INFORMATION OFFICER, SAP PEROORKADA, THIRUVANANTHAPURAM.

ANNEXURE A24(A), TRUE COPY OF POSTAL ACKNOWLEDGEMENT CARD. ANNEXURE A25 RIGHT TO INFORMATION ACT APPLICATION DATED 31.10.2018 FILED BY THE APPLICANT SEEKING INFORMATION ABOUT THE ORDER OF CONFIRMING PERMANENTLY ONE MR. K.

SREEDHARAN WHO HAS BEEN APPOINTED AS DAILY WAGES FOR 59 DAYS IN THE SPECIAL ARMED POLICE.

ANNEXURE A26 CERTIFICATE OF EXPERIENCE DATED 14.08.1991, THIRUVANANTHAPURAM, OF ONE MR. K. SREEDHARAN WHO HAS APPOINTED AS DAILY WAGES FOR 59 DAYS IN THE SPECIAL ARMED POLICE, T.V.P.M.

ANNEXURE A27               TRUE COPY OF G.O.R.T NO. 2942/06/HOME
                           DATED     13.12.2006    THIRUVANANTHAPURAM

REGULARISING THE SERVICE OF CASUAL SWEEPER IN THE POST OF PART TIME SWEEPER.

ANNEXURE A28 TRUE COPY OF JUDGMENT IN O.P.NO. 25759 OF 2001 DATED 24.03.2006 ON THE FILE OF HON'BLE HIGH COURT OF KERALA, DIRECTING THE SECRETARY, HOME DEPARTMENT TO CONSIDER AND TO PASS APPROPRIATE ORDERS, WHICH LED TO THE ANNEXURE A27, GO SANCTIONING A REGULAR POST OF SWEEPER AND REGULARISING THE CASUAL SWEEPER IN THE SANCTIONED POST OF PART-TIME SWEEPER.

ANNEXURE R4(A) TRUE COPY OF B.O. NO. 339/2015/SAP DATED 02.09.2015.

ANNEXURE R4(B) TRUE COPY OF B.O. NO. 417/2015/SAP DATED 30.10.2015.

ANNEXURE R4(C) TRUE COPY OF B.O. NO. 422/2015/SAP DATED 04.11.2015.

ANNEXURE R4(D) TRUE COPY OF B.O. NO. 512/2015/S DATED 22.12.2015.

ANNEXURE R4(E) TRUE COPY OF COMPLAINT FORWARDED DATED 05.12.2015, L.R. NO. 1159/15/ACQM/SAP. ANNEXURE R4(F) TRUE COPY OF THE COMMUNICATION DATED 04.12.2015 G.L. NO. 595/2015 B COMPANY.

ANNEXURE R4(G) TRUE COPY OF SUBMISSION 22.12.2015. ANNEXURE A29 TRUE COPY OF THE CAMP FOLLOWER'S APPOINTMENT LETTER NO. BO. NO. 343/2015 DATED 03.09.2015.

ANNEXURE A30 TRUE COPY OF THE RTI ACT APPLICATION DATED 22.12.2015.

ANNEXURE A31 TRUE COPY OF THE FEES PAID CHELLAN DATED 04.02.2016.

ANNEXURE A32 TRUE COPY OF THE REPLY FURNISHED UNDER RTI ACT DATED 06.02.2016 NO. G1/649/2016 S.

EXHIBIT P1 TRUE COPY OF ORIGINAL APPLICATION OA NO.

2206 OF 2018 FILED BY THE PETITIONER

BEFORE THE (KAT) THIRUVANANTHAPURAM BENCH. EXHIBIT P2 TRUE COPY OF M.A. NO. 384/2019 IN O.A. NO.

2206/2018 BEFORE (KAT) THIRUVANANTHAPURAM. EXHIBIT P3 TRUE COPY OF REPLY STATEMENT FILED BY THE 4TH RESPONDENT IN O.A. NO. 2206/2018 BEFORE THE KAT THIRUVANANTHAPURAM.

EXHIBIT P4 TRUE COPY OF REJOINDER FILED BY THE PETITIONER IN O.A. NO. 2206/2018 BEFORE (KAT) THIRUVANANTHAPURAM.

EXHIBIT P5 TRUE COPY OF ORDER IN O.A. NO. 2206/2018 BEFORE (KAT) NO. THIRUVANANTHAPURAM.

EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 03.09.2019 SUBMITTED BEFORE THE 4TH RESPONDENT ALONG WITH COPY OF EXHIBIT P5 ORDER WITH A/D.

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 27.10.2020 SUBMITTED BEFORE THE 1ST RESPONDENT.