Krishnakumari N.S vs The Kerala State Financial ...
2021 Latest Caselaw 9823 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943

                           WP(C).No.5442 OF 2021(E)


PETITIONER:

               KRISHNAKUMARI N.S.
               AGED 58 YEARS
               W/O. RAGHAVAN NAIR, RESIDING AT KRISHNA PRIYA,
               MALAPARAMBA, KOZHIKODE 673 009, RETIRED SENIOR
               MANAGER, KERALA STATE FINANCIAL ENTERPRISES, CIVIL
               STATION, BRANCH, KOZHIKODE DISTRICT.

               BY ADVS.
               SRI.R.SUDHISH
               SHRI.MUSTHAFA V.M

RESPONDENTS:

      1        THE KERALA STATE FINANCIAL ENTERPRISES,
               REPRESENTED BY ITS CHAIRMAN, CORPORATE OFFICE,
               BHADRATHA, THRISSUR 680 020.

      2        THE MANAGING DIRECTOR,
               KERALA STATE FINANCIAL ENTERPRISES, CORPORATE OFFICE,
               BHADRATHA, THRISSUR 680 020.

               R1-2   BY   ADV.   SRI.M.GOPIKRISHNAN NAMBIAR
               R1-2   BY   ADV.   SRI.K.JOHN MATHAI
               R1-2   BY   ADV.   SRI.JOSON MANAVALAN
               R1-2   BY   ADV.   SRI.KURYAN THOMAS
               R1-2   BY   ADV.   SRI.PAULOSE C. ABRAHAM
               R1-2   BY   ADV.   SRI.RAJA KANNAN

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD           ON
24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.5442 OF 2021                 2

                                JUDGMENT

The petitioner says that she retired on

attaining the age of superannuation, from the

services of the 1st respondent - Kerala State

Financial Enterprises (KSFE for short) on

31.07.2020. According to her, while she was in

service, a memo of charges was served on her

on 30.06.2009, which led to a disciplinary

action against her; but that on completion of

the enquiry, a report was presented before the

Management by the Enquiry Officer on

13.08.2010, namely Ext.P2, exonerating her of

all charges honourably.

2. The petitioner says that during the

time when she was suffering the disciplinary

action, her promotion had not been granted;

and that she was, thereafter, promoted only on

11.01.2011, which caused her to approach the

Management on 10.06.2016 seeking seniority in

the promoted post with effect from 03.08.2009.

She says that since her request was not

considered, she was constrained to approach

this Court by filing W.P(C)No.14761 of 2020,

which culminated in Ext.P7 judgment, whereby,

the Managing Director of the 1st respondent was

directed to dispose of her representation in

terms of law, within the period fixed therein.

3. The petitioner says that the 2nd

respondent has now issued Ext.P8 order

rejecting her request solely saying Ext.P2

Enquiry Report had not been accepted by the

Management and therefore, that she is not

entitled to the claim of retrospective

promotion. The petitioner says that Ext.P8 is

egregiously improper, since it has denied her

claim for promotion from the date on which her

juniors had been granted such benefit, merely

saying that the 1st respondent has not accepted

Ext.P2 Enquiry Report. She asserts that even

though this is so stated in Ext.P8, no action

had ever been taken against her pursuant to

Ext.P2 and not even a notice had been issued

to her by the Disciplinary Authority or any

other Authority of the KSFE, informing her

that the enquiry against her is still being

continued, in spite of the conclusive findings

in the enquiry report. The petitioner,

therefore, prays that Ext.P8 be set aside and

the respondents be directed to grant her

retrospective promotion from the date on which

her juniors had been promoted, in the year

2009.

4. The afore submissions of the learned

counsel for the petitioner - Shri.R.Sudhish,

was stoutly refuted by the learned Standing

Counsel for the KSFE - Shri.Gopikrishnan

Nambiar, by asserting that, in Ext.P8 it has

been clearly explained why his client has not

acceded to the petitioner's request for

retrospective promotion. He submitted that

since the enquiry report, namely Ext.P2, had

not been accepted by his client at any point

of time, the petitioner cannot maintain that

she had been honourably exonerated of all

charges; and therefore, that her plea for

promotion prior to 11.01.2011, when she had

been so promoted, cannot be acceded to. He,

therefore, prayed that this writ petition be

dismissed.

5. I am afraid that I cannot find favour

with the submissions of Shri.Gopikrishnan

Nambiar as afore because, as is evident from

Ext.P8, the only reason cited for denying the

claim of the petitioner is that Ext.P2 Enquiry

Report has not been accepted by the 1st

respondent until now.

6. However, the order does not say what

was done after Ext.P2 and as to whether the

enquiry was continued against the petitioner,

based on any notice issued to her by the

Disciplinary Authority, as is warranted in

law. As long as the said order does not

mention whether any such enquiry had been

completed or if the petitioner had been found

guilty or punished subsequently, I cannot find

favour with it, when it merely says that for

nearly 11 years, the Management has chosen not

to accept Ext.P2.

7. If no action had been taken pursuant

to Ext.P2 by the Disciplinary Authority or by

any other competent Authority of the KSFE, it

would be futile for the respondents to now

assert that Ext.P2 report had not been

accepted by them.

8. Therefore, I am of the firm view that

Ext.P8 deserves to be set aside and that the

matter will have to be reconsidered by the 2nd

respondent, adverting to the directions of

this Court in Ext.P7 judgment.

In the afore circumstances, I set aside

Ext.P8; with a consequential direction to the

2nd respondent to reconsider the matter,

adverting to the directions in Ext.P7 judgment

and after affording an opportunity of being

heard to the petitioner - either physically or

through video conferencing - thus culminating

in a new appropriate order thereon, as

expeditiously as is possible, but not later

than one month from the date of receipt of a

copy of this judgment.

This writ petition is thus ordered.

Sd/-

DEVAN RAMACHANDRAN

JUDGE

MC/24.3.2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 COPY OF THE RANK LIST PUBLISHED BY THE RESPONDENTS DATED 24.7.2007 REF.NO. 4130/T

EXHIBIT P2 COPY OF THE ENQUIRY REPROT DATED 13.8.2010.

EXHIBIT P3 COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 3.8.2009 PROMOTING RANK HOLDERS 107,109, 111 AND 112 TO THE POST OF MANAGER GRADE IV.

EXHIBIT P4 COPY OF THE PROMOTION ORDER DATED 11.1.2011 REF NO. 4130.

EXHIBIT P5 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 10.6.2016.

EXHIBIT P6 COPY OF THE REPRESENTATION DATED 13.3.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT .

EXHIBIT P7 COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC NO. 14761 OF 2020 DATED 22.7.2020.

EXHIBIT P8 COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 4.9.2002 REF. NO. 37403/P.