Kerala High Court
Mohanakumar.T vs State Of Kerala on 23 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
WP(C) NO. 3576 OF 2021
PETITIONER:
MOHANAKUMAR.T, AGED 61 YEARS, S/O THANKAPPAN PILLAI,
RESIDING AT ASWATHY BHAVAN, NETAJI ROAD,
KSHETHRAM LANE, NRRA-D-4, VATTIYOOR KAVU P.O.,
THIRUVANANTHAPURAM-695 013.
BY ADVS.
S.CHANDRASEKHARAN NAIR
SRI.RAJU GEORGE (KARUVATTA)
SRI.S.GOKUL BABU
SMT.AMALA.J.RAJ
SHRI.BALAMURALI K.P.
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PRINCIPAL SECRETARY, KERALA STATE
COUNCIL FOR SCIENCE AND TECHNOLOGY AND ENVIRONMENT
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 KERALA STATE COUNCIL FOR SCIENCE AND TECHNOLOGY AND
ENVIRONMENT, SASTHRABHAVAN, PATTOM P.O.,
THIRUVANANTHAPURAM-695 004, REPRESENTED BY EXECUTIVE
VICE PRESIDENT.
3 THE DiRECTOR, JAWAHARLAL NEHRU TROPICAL BOTANICAL
GARDEN AND RESEARCH INSTITUTE, KARUMANCODE P.O., PACHA,
PALODE, THIRUVANANTHAPURAM-695 562.
BY ADVS.
SRI.P.C.SASIDHARAN, SC, KSCSTE
SRI.C.K.KARUNAKARAN,SC, R3
SRI.SUNIL KUMAR KURIAKOSE - GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.07.2021, ALONG WITH WP(C).19544/2019, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 3576/2021 & 19544/2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
WP(C) NO. 19544 OF 2019
PETITIONER:
MOHANAKUMAR.T., AGED 59 YEARS,
S/O. THANKAPPAN PILLAI, ASWATHY BHAVAN,
NETAJI ROAD, KSHETHRAM LANE, NRRA-D-4,
VATTIYOORKAVU P.O, THIRUVANANTHAPURAM-695 013.
BY ADVS.
S.CHANDRASEKHARAN NAIR
SRI.RAJU GEORGE (KARUVATTA)
SRI.S.GOKUL BABU
SRI.S.JAYANT
SHRI.MUHAMMADALI MANEKKATHODI
SHRI.VISHNU PRABHAKAR V.S.
RESPONDENTS:
1 KERALA STATE COUNCIL FOR SCIENCE AND TECHNOLOGY
AND ENVIRONMENT, SASTHRABHAVAN, PATTOM P.O.,
THIRUVANANTHAPURAM-695 004, REPRESENTED BY
EXECUTIVE VICE PRESIDENT.
2 THE DIRECTOR,
JAWAHARLAL NEHRU TROPICAL BOTANICAL GARDEN AND
RESEARCH INSTITUTE, KARUMANCODE P.O, PACHA,
PALODE, THIRUVANANTHAPURAM - 695 562.
BY ADVS.
SRI.P.C.SASIDHARAN, SC, KSCSTE
SRI.C.K.KARUNAKARAN, SC, R2
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.07.2021, ALONG WITH WP(C).3576/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 3576/2021 & 19544/2019
-3-
JUDGMENT
[WP(C) Nos.3576/2021, 19544/2019]
The petitioner, in these two cases - which
have been heard together and are being disposed of
through this judgment on account of the analogous
nature of facts and circumstances urged and
reliefs sought for - is stated to have entered the
services of "Jawaharlal Nehru Tropical Botanical
Garden and Research Institute" (hereinafter
referred to as "Research Institute", for short) as
Helper (Office Attendant). It transpires that he
was thereafter given a 'by transfer' appointment
as Driver; and that he continued to occupy the
said post for a fairly long period of time.
2. The records reveal that the Financial
Inspection Wing of the Kerala State Council for
Science and Technology and Environment
(hereinafter referred to as 'State Council', for
short) had subsequently conducted enquiry into the
WP(C) NO. 3576/2021 & 19544/2019
affairs of the "Research Institute" and that an
investigation under the aegis of the Vigilance and
Anti-Corruption Bureau was also requisitioned.
3. The said enquiry seems to have found that
petitioner's 'by transfer' appointment as Driver
was irregular; and consequently, instructions were
given to the "Research Institute" to revert him to
the post of Helper (Office Attendant) and to
recover from him all the benefits which he had
obtained in the 'promoted post'. This triggered
Ext.P9 proceedings - produced along with W.P.
(C)No.19544 of 2019 - of the Director of the
"Research Institute", by which, petitioner was
sent back to the post of Helper (Office Attendant)
and proceedings recommended for recovery of salary
and allowances drawn by him in the 'promoted
post'. It is this order which has been challenged
by the petitioner in W.P.(C)No.19544 of 2019.
4. While so, the petitioner is stated to have
WP(C) NO. 3576/2021 & 19544/2019
retired from service; and on the allegation that
his retiral benefits have not been disbursed, he
filed W.P.(C)No.3576 of 2021, praying that Ext.P10
proceedings of the Member Secretary of the "State
Council" be set aside and his pensionary claims
ordered to be disbursed, along with the benefits
eligible to him under the Tenth Pay Revision
order.
5. I have heard Sri.S.Chandrasekharan Nair -
learned counsel appearing for the petitioner in
both the cases; Sri.C.K.Karunakaran - learned
Standing Counsel for the "Research Institute" and
Sri.P.C.Sasidharan - learned Standing Counsel for
the "State Council".
6. Sri.P.C.Sasidharan - learned Standing
Counsel for the "State Council", refuted the afore
submissions made on behalf of the petitioner,
saying that it is evident from the records that
his promotion had been granted irregularly by the
WP(C) NO. 3576/2021 & 19544/2019
"Research Institute", even though the post of
Helper (Office Attendant) was not in the feeder
category for being offered promotion to the post
of Driver. He submitted that, in fact, the post of
Driver was twice ahead to the post of Helper
(Office Attendant) and therefore, that the "State
Council" was wholly justified in having instructed
the "Research Institute" to make reparatory steps,
including for recovery of amounts from the
petitioner. He, therefore, prayed that these writ
petitions be dismissed.
7. Sri.C.K.Karunakaran - learned Standing
Counsel appearing for the "Research Institute",
adopted the submissions of Sri.P.C.Sasidharan;
adding that the 'promotion' given to the
petitioner 'by transfer' was in error and that
when this was found out by the competent
Authorities and the "Research Institute" notified
of the same, they immediately issued Ext.P9 order
WP(C) NO. 3576/2021 & 19544/2019
in W.P.(C)No.19544 of 2019, sending the petitioner
back to his 'original post' and seeking that the
amounts received in the 'promoted post' be repaid.
He thus argued that there is nothing wrong in
Ext.P9 in W.P.(C)No.19544 of 2019 and prayed that
these writ petitions be dismissed.
8. When I consider the afore submissions and
go through the materials available in these two
cases, it becomes rather limpid that there are two
broad issues involved, namely:
(a) Whether the order of the "Research
Institute", reverting the petitioner to the post
of Helper (Office Attendant), was issued properly
and after following due procedure; and
(b) Whether even if the 'promotion' of the
petitioner is found to be irregular, any amount
can be sought to be recovered from him.
9. As far as the second issue is concerned,
there can be little doubt that petitioner's case
WP(C) NO. 3576/2021 & 19544/2019
is covered by the judgment of the Hon'ble Supreme
Court in State of Punjab v. Rafiq Masih (White
Washer) [2015 (4) SCC 334], since he is,
admittedly, a class IV employee and since he has
now retired from service.
10. That said, even though Ext.P9 was issued
while the petitioner was in service, the fact
remains that he retired soon thereafter and any
recovery could have been done only as per the
provisions of Rafiq Masih (supra). Pertinently, in
these cases, there is neither a whisper that
petitioner was granted 'promotion' as a Driver for
any reason which can be attributed to him; nor is
there anything on record - even in the counter
pleadings - that he was guilty of either
misrepresentation, fraud or such other vitiating
factors, in obtaining the 'promotion'.
11. On the contrary, Ext.P9 order in W.P.
(C)No.19544 of 2019, would luculently indicate
WP(C) NO. 3576/2021 & 19544/2019
that petitioner was promoted by the "Research
Institute", and that when the said Institute was
notified by the Authorities about the alleged
irregularity in effecting the same, he was
immediately 'sent back' to his original post of
Helper (Office Attendant) and recovery ordered.
12. I am certain that, going by Rafiq Masih
(supra), the recovery now ordered against the
petitioner is impermissible, especially because
there is not even a murmer in the counter
pleadings that an enquiry against him had preceded
this, in any manner whatsoever. I am, therefore,
of the firm opinion that the recovery ordered
through Ext.P9 in W.P.(C)No.19544 of 2019, against
the petitioner is impermissible and contrary to
law.
13. Returning to the first aspect, the
allegation against the petitioner is that he was
'promoted' illegally to the post of Driver. As is
WP(C) NO. 3576/2021 & 19544/2019
evident from Ext.P9 order in W.P.(C)No.19544 of
2019, the allegation is that his 'promotion' along
with various others were effected by the "Research
Institute" illegally, though they were not
entitled to the same.
14. Even if these allegations are accepted to
be true for the sake of the argument, Ext.P9 also
reflects that no enquiry was ever conducted
against the petitioner nor was his version taken
before he was reverted as a Helper (Office
Attendant) or recovery recommended against him. It
is a fundamental principle in Administrative Law
that when this Court embarks upon a judicial
review of the action taken, it is the decision
making process which is under scrutiny and not the
decision per se. Therefore, even if the decision
in Ext.P9 is found to be correct, eventually, the
fact remains that the decision making process
cannot subscribe to the standards required in law,
WP(C) NO. 3576/2021 & 19544/2019
particularly because, as I have already said
above, the petitioner has not been heard nor he
been issued any notice, before he was reverted and
recovery ordered against him.
15. I am, therefore, of the sure opinion that
Ext.P9 to such extent cannot find my favour; and
that the competent Authorities must now issue a
proper notice to the petitioner and hear him
before any action, as ordered therein, except
recovery, can be initiated against him.
In the afore circumstances, these writ
petitions are ordered as under:
(a) W.P.(C)No.19544 of 2019 is
ordered and Ext.P9 is quashed to the
extent to which it orders recovery of
amounts from the petitioner; however,
leaving full liberty to the competent
Authorities to appositely notify the
petitioner, leading to any decision
WP(C) NO. 3576/2021 & 19544/2019
with respect to his reversion to the
post of Helper (Office Attendant).
(b) W.P.(C)No. 3576 of 2021 is
ordered, directing the Authorities to
grant the eligible pensionary
benefits to the petitioner in the
post of Helper (Office Attendant),
if not already paid as per the
interim order of this Court, within a
period of one month from the date of
receipt of a copy of this judgment;
and in the event the petitioner is
found eligible to be continued in the
post of Driver, after the exercise
ordered in paragraph (a) above, his
benefits in the said post will also
be made available to him without any
avoidable delay.
WP(C) NO. 3576/2021 & 19544/2019
(c) Needless to say, in view of my
observations above, all recovery
against the petitioner with respect
to the salary and emoluments drawn by
him in the post of Driver shall stand
interdicted, going by the judgment of
the Hon'ble Supreme Court in Rafiq
Masih (supra).
Sd/-
DEVAN RAMACHANDRAN
JUDGE
akv
WP(C) NO. 3576/2021 & 19544/2019
APPENDIX OF WP(C) 3576/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER NO
134/ESST3/2020/JNTBGRI DATED 18.5.2020
EXHIBIT P2 TRUE COPY OF THE GO(P)67/2020/FIN
THIRUVANANTHAPURAM DATED 27.5.2020
EXHIBIT P3 COPY OF THE PROCEEDING BEARING NO E1
4074/2003 DATED 1.8.2003
EXHIBIT P4 TRUE COPY OF THE ORDER NO
3015/EST/2017/JNTBGRI DATED 5.7.2019
EXHIBIT P5 TRUE COPY OF THE ORDER IN IA NO 1/2020
IN WPC NO 19544/2019 DATED 24.1.2020
EXHIBIT P6 TRUE COPY OF THE WRIT PETITION IN WPC NO
19544/2019 DATED 15.7.2019
EXHIBIT P7 TRUE COPY OF THE ANOMALY COMMITTEE
REPORT DATED 30.8.2009
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED
22.6.2020 SUBMITTED BEFORE THE 3RD
RESPONDENT
EXHIBIT P8 (A) TRUE COPY OF THE REPRESENTATION DATED
22.6.2020 SUBMITTED BEFORE THE 2ND
RESPONDENT
EXHIBIT P8 (B) TRUE COPY OF THE REPRESENTATION DATED
22.6.2020 SUBMITTED BEFORE THE 3RD
RESPONDENT
EXHIBIT P9 COPY OF THE JUDGMENT DATED 5.8.2020 IN
WPC NO 15921/2020
WP(C) NO. 3576/2021 & 19544/2019
EXHIBIT P10 COPY OF THE ORDER DATED 18.11.2020
BEARING NO COUNCIL (M) ORDER NO
90/2020/KSCSTE.
RESPONDENT'S/S EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
WP(C) NO. 3576/2021 & 19544/2019
APPENDIX OF WP(C) 19544/2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF DRIVING LICENCE AND BADGE
OF THE PETITIONER ISSUED BY THE
REGISTERING AUTHORITY
EXHIBIT P2 TRUE COPY OF THE SECTIONAL ORDER NO. 147
DATED 30-07-1998 ISSUED BY THE
REGISTRAR, TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, PALODE
EXHIBIT P3 TRUE COPY OF THE PROCEEDING BEARING NO.
E1 4074/2003 DATED 1-8-2003 ISSUED BY
THE REGISTRAR, TROPICAL BOTANIC GARDEN
AND RESEARCH INSTITUTE, PALODE
EXHIBIT P4 TRUE COPY OF THE PAY SLIPS OF THE
PETITIONER FOR THE MONTH OF JUNE 2019
EXHIBIT P4 TRUE COPY OF THE PAY SLIPS OF THE
PETITIONER FOR THE MONTH OF MAY 2019
EXHIBIT P4 TRUE COPY OF THE PAY SLIPS OF THE
PETITIONER FOR THE MONTH OF APRIL 2019
EXHIBIT P4 TRUE COPY OF THE PAY SLIPS OF THE
PETITIONER FOR THE MONTH OF MARCH 2019
EXHIBIT P5 TRUE COPY OF ASSESSMENT PROMOTION AND
CONSEQUENT FIXATION OF SALARY OF THE
PETITIONER AND OTHERS DATED 18-12-2017
EXHIBIT P6 TRUE COPY OF THE VIGILANCE ENQUIRY
REPORT SUBMITTED BY THE ENQUIRY OFFICER
WP(C) NO. 3576/2021 & 19544/2019
EXHIBIT P7 TRUE COPY OF PROCEEDINGS NO. BG3/209/95
DATED 12-07-1993 ISSUED BY THE
ADMINISTRATIVE OFFICER, TROPICAL BOTANIC
GARDEN AND RESEARCH INSTITUTE, PALODE
EXHIBIT P8 TRUE COPY OF PROCEEDINGS NO. 275/ESTT
2/2017/JNTBGRI DATED 23/06/2017 ISSUED
BY THE REGISTRAR, JAWAHARLAL NEHRU
TROPICAL BOTANIC GARDEN AND RESEARCH
INSTITUTE, PALODE
EXHIBIT P9 TRUE COPY OF ORDER NO.
3015/EST./2017/JNTBGRI DATED 05-07-2019
ISSUED BY JAWAHARLAL NEHRU TROPICAL
BOTANIC GARDEN AND RESEARCH INSTITUTE,
PALODE.
EXHIBIT P10 TRUE COPY OF THE FINAL REPORT OF THE
COMMITTEE ON RECTIFICATION OF
IRREGULARITIES IN THE PAY FIXATION OF
THE ADMINISTRATIVE AND TECHNICAL STAFF
OF TBGRI.
EXHIBIT P11 TRUE COPY OF SERVICE RULES OF TROPICAL
BOTANIC GARDEN AND RESEARCH INSTITUTE
TBGRI.
EXHIBIT P12 TRUE COPY OF RULES FOR RECRUITMENT AND
PROMOTION OF ADMINISTRATIVE STAFF.
EXHIBIT P13 TRUE COPY OF G.O.(MS) NO.57/79/PIG DATED
17/11/1979 ISXSUED BY THE PLANNING &
ECONOMIC AFFAIS (SCIENCE & TECHNOLOGY)
DEPARTMENT.
EXHIBIT P14 TRUE COPY OF THE RELEVANT PAGES OF THE
ORDER G.O.(P) NO.82/99/STED DATED
02/08/1999 ISSUED BY THE SCIENCE,
TECHNOLOGY AND ENGIRONMENT DEPARTMENT.
WP(C) NO. 3576/2021 & 19544/2019
EXHIBIT P15 TRUE COPY OF THE PROCEEDINGS FDATED
16/05/2006 ISSUED BY THE REGISTRAR,
TROPICAL BOTANIC GARDEN AND RESEARCH
INSTITUTE, PALODE.
RESPONDENT'S/S EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
