Kerala High Court
Mohanan.K.P vs The State Of Kerala on 23 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943
WA NO. 1386 OF 2021
AGAINST THE JUDGMENT IN WP(C) 30911/2015 OF HIGH COURT OF
KERALA, ERNAKULAM DATED 10.3.2021
APPELLANT/PETITIONER IN WPC:
MOHANAN.K.P.
AGED 63 YEARS
S/O. K.K. KUNHIRAMAN,
RETIRED DEO,
SREYAS, KOYYAM P.O.,
KANNUR-670 142.
BY ADVS.
ABDUL RAOOF PALLIPATH
K.R.AVINASH (KUNNATH)
RESPONDENTS/RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY,
SECRETARIAT, TRIVANDRUM-695 001.
2 THE PRINCIPAL SECRETARY
DEPARTMENT OF GENERAL EDUCATION,
TRIVANDRUM-695 001.
3 THE DIRECTOR OF PUBLIC INSTRUCTIONS
TRIVANDRUM-695 001.
4
SASIDHARAN K.N.
S/O. NARAYANAN KOCHUPARACKAL,
RETIRED ADMINISTRATIVE ASSISTANT,
MANAKKAD P.O., THODUPUZHA
IDUKKI-685 608.
W.A.1386/2021
5 ISMAIL P H
S/O. HASSAN,
RETIRED SENIOR SUPERINTENDENT,
PODIPPARAYIL HOUSE, NEYYASSERI P.O,
KARIMANNOOR, THODUPUZHA, IDUKKI-685 581.
SRI.K.P.HARISH,SR GP FOR R1 TO R3
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
23.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.1386/2021
3
JUDGMENT
Dated this the 24th day of November, 2021
Shaji P. Chaly, J.
Writ appeal is preferred by the petitioner in the writ petition challenging
the judgment of learned Single Judge dated 10.3.2021 in W.P(C). No.30911 of
2015, whereby the relief sought for by the petitioner to quash Exhibit P8
internal correspondence having the endorsements of the Secretary General
Education Department recommending to drop the disciplinary proceedings
initiated against respondents 4 and 5, viz., Sasidharan K. N and Ismail P.H.,
was declined.
2. Brief material facts for the disposal of the writ appeal are as follows:
Appellant's wife, one E.P. Pushpalatha, was the Headmistress in Kunjithanni
Government School Idukki District. On 6.3.2015, respondents 4 and 5, who
were the officials of the Office of the Deputy Director of Education, Idukki
went to the school in question for inspection. On that day, it was found that
one Clerk namely, Anakha was continuously on leave. The 4 th and 5th
respondents demanded a statement in writing from the appellant's wife, who
was the Headmistress.
3. According to the appellant, the Headmistress was not willing to give
such a statement forthwith, in writing, because she was busy with the SSLC
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examination to be held within a couple of days and therefore, she sought time
to think it over. But, the allegation made by the appellant is that the
Headmistress was threatened by the 4th respondent namely, Sasidharan K.N.,
who was the Administrative Assistant, stating that she would face severe
consequences and she would be put in jail etc.; again in the evening, the 4th
respondent telephoned the Headmistress and repeated the threat.
4. The grievance of the appellant is that due to the above incident, his
wife, who was living away from her native place was mentally upset and
shocked, and on the next day, she fell unconscious and was taken to a nearby
Medical College Hospital and found that she had suffered a stroke. She died in
the hospital on 11.3.2015 and according to the appellant, the stroke had
occurred on account of the threat made by respondents 4 and 5 and the resultant
strain and stress.
5. Apparently, on the basis of the complaint filed by the appellant, the
Deputy Director of Education, Additional Director of Public Instructions and
Director of Public Instructions enquired into the incident and a hearing was
conducted by the Secretary to the Government and found that respondents 4
and 5 are liable for disciplinary action. However, totally ignoring the
recommendations of the concerned officers, the Government has decided to
drop the proceedings against respondents 4 and 5. It was thus challenging the
legality and correctness of the proceedings of the State Government dropping
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the proceedings against respondents 4 and 5 the writ petition was filed.
6. Learned Single Judge, after hearing the respective parties and
perusing the materials on record found that Exhibit P8 is only a note submitted
by the Principal Secretary to Government, General Education Department to
the Hon'ble Chief Minister and Minister for Education, and the Hon'ble Chief
Minister endorsed his views thereon. It was also found that in Exhibit P8 note,
Principal Secretary to Government has, in short, found that the incident
occurred when Smt. Pushpalatha, ie., wife of the appellant was under pressure
of duty related to SSLC Examination and she shared her worries with the
witnesses present at the time and the chances of the 4 th respondent using harsh
language cannot be ruled out and even though the 5 th respondent was associated
with the inspection conducted by the 4th respondent, no direct involvement of
the 5th respondent could be established. Other aspects contained in Exhibit P8
note were also elaborated by the learned Single Judge and thereafter rendered
the following judgment:
18. No orders pursuant to Ext.P8 Note or any consequential
proceedings have been produced before this Court. With regard to
the challenge against Ext.P8 Note, it is trite law that notings in a
Departmental file do not have the sanction of law to be an
effective order. In Bachhittar Singh v. State of Punjab and
another (AIR 1963 SC 395), the Constitution Bench of the Apex
Court considered the effect of an order passed by a Minister on a
file which order was not communicated to the person concerned.
Referring to Article 166(1) of the Constitution, the Court held that
order of the Minister could not amount to an order by the State
Government unless it was expressed in the name of the
W.A.1386/2021
Rajpramukh, as required by the said Article and was then
communicated to the party concerned. The Court observed that
business of State is a complicated one and has necessarily to be
conducted through the agency of a large number of officials and
authorities. Before an action is taken by the authority concerned in
the name of the Rajpramukh, which formality is a Constitutional
necessity, nothing done would amount to an order creating rights
or casting liabilities to third parties. The Court noticed that it is
possible that after expressing one opinion about a particular matter
at a particular stage, a Minister or the Council of Ministers may
express quite a different opinion which may be opposed to the
earlier opinion. Which of the two opinions can be regarded as the
"order" of the State Government? It was held that opinion
becomes a decision of the Government only when it is
communicated to the person concerned. The said decision was
followed in Sethi Auto Service Station and Another v. Delhi
Development Authority and Others [(2009) 1 SCC 180]
wherein the Apex Court held that notings in a departmental file do
not have the sanction of law to be an effective order and that a
noting by an officer is an expression of his viewpoint on the
subject. It is no more than an opinion by an officer for internal use
and consideration of the other officials of the department and for
the benefit of the final decision-making authority. The Court
observed that internal notings are not meant for outside exposure
and notings in the file culminate into an executable order,
affecting the rights of the parties, only when it reaches the final
decision-making authority in the department, gets his approval and
the final order is communicated to the person concerned. The
Apex Court also observed that mere favourable recommendations
at some level of the decision making process, are of no
consequence and shall not confer any right. Following the decision
in Bachhittar Singh's case (supra), this Court in Ramachandran
v. State of Kerala [2009 (3) KLT 473] has held that the Note
whereby the Minister ordered that the petitioner's service as
Managing Director of a Corporation is terminated without an order
of the State Government expressed in the name of the Governor as
required by cl. (1) of Art.166 of the Constitution of India cannot
be said to be an order passed by the Government and cannot be
challenged in a writ petition. Relying on the decisions in
Bachhittar Singh's case (supra) and Shanti Sports Club and
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another v. Union of India [2009 (15) SCC 705], the Apex Court
in Ali K.S.B. v. State of Andra Pradesh and others [2018 (11)
SCC 277] reiterated that notings recorded in official files by
officers of the Government at different levels even of Ministers,
do not become decisions of the Government unless same are
sanctified and acted upon by issuing an order in the name of the
President or the Governor as the case may be, authenticated in the
manner provided in Art.77(2) and Art.166(2) of the Constitution.
19. In view of the principles laid down by the Apex Court
and this Court in the above decisions, the challenge to Ext.P8 Note
is not sustainable.
20. Though no orders pursuant to Ext.P8 Note or any
consequential proceedings have been produced before this Court
and challenged, it is not disputed that pursuant to the hearing by
the 2nd respondent on the petitions submitted by respondents 4 and
5, the Government have decided to drop all disciplinary action
against respondents 4 and 5. The second prayer of the Petitioner is
to take appropriate action against respondents 4 and 5.
21. So far as the 5 th respondent is concerned, he was placed
under suspension by the Director of Public Instructions as per
Ext.R5(a) dated 12.03.2015 and was served with a memo of
charges and statement of allegations dated 30.03.2015 and the
disciplinary proceedings against the 5th respondent was dropped
vide Ext.R5(d) order of the DPI and the period of suspension was
treated as duty and regularised. By Ext.R5(d), the disciplinary
proceedings initiated against the 5th respondent has come to a
logical conclusion.
22. As far as the 4 th respondent is concerned, the 4th
respondent was neither placed under suspension nor issued with
any memo of charges or statement of allegations in respect of the
incident leading to the death of petitioner's wife. The incident
leading to the death of petitioner's wife viz; the visit of
respondents 4 and 5 to Kunjithanni Government High School was
on 06.03.2015. No disciplinary action was initiated against the 4th
respondent while the 4th respondent was in service and he was
allowed to retire from service on 31.05.2015. On termination of
employment, the employer loses disciplinary control over the
employee. However, in relation to employment under the State,
the State retains some authority to deal with retired employees. As
per the provisions of Rule 3 of Part III of the Kerala Service
W.A.1386/2021
Rules, the Government reserves the right to withhold the pension
of a retired employee under certain contingencies. The said Rules
read as follows:
"3. The Government reserve to themselves the
right of withholding or withdrawing a pension or
any part of it, whether permanently or for a
specified period, and the right of ordering the
recovery from a pension of the whole or part of
any pecuniary loss caused to Government, if in a
departmental or judicial proceeding, the pensioner
is found guilty of grave misconduct or negligence
during the period of his service, including service
rendered upon re-employment after retirement:
Provided that -
(a) such departmental proceeding, if instituted
while the employee was in service, whether
before his retirement or during his reemployment,
shall after the final retirement of the employee, be
deemed to be a proceeding under this rule and
shall be continued and concluded by the authority
by which it was commenced in the same manner
as if the employee had continued in service;
(b) such departmental proceeding, if not instituted
while the employee was in service, whether
before his retirement or during his reemployment-
(i) shall not be instituted save with the sanction of
the Government;
(ii) shall not be in respect of any event which took
place more than four years before such institution;
and
(iii) shall be conducted by such authority and in
such place as the Government may direct and in
accordance with the procedure applicable to
departmental proceedings in which an order of
dismissal from service could be made in relation
to the employee during his service;
(c) no such judicial proceedings, if not instituted
while the employee was in service whether before
his retirement or during his reemployment, shall
be instituted, save with the sanction of the
Government, in respect of a cause of action which
arose or an event which took place more than four
years before such institution; and
(d) the Public Service Commission shall be
consulted before final orders are passed.
W.A.1386/2021
Explanation-- For the purpose of this rule -
(a) a departmental proceeding shall be deemed to
be instituted on the date on which the statement of
charges is issued to the employee or pensioner or
if the employee has been placed under suspension
from an earlier date, on such date; and
(b) a judicial proceeding shall be deemed to be
instituted -
(i) in the case of a criminal proceeding, on the
date on which the complaint or report of police
officer on which the Magistrate takes cognizance
is made; and
(ii) in the case of a civil proceeding, on the date of
presentation of the plaint in the Court."
23. The scope of disciplinary proceedings against an
employee who has retired from service has been considered by the
Division Bench of this Court in Ayyappan Pillai v. Kerala State
Electricity Board and Another [2010 (4) KHC 300 : 2010 (4)
KLT SN 77]. Paragraph 11 of the said judgment reads:
xxx
"11. We do see force in the submission made by
the learned counsel for the appellant. On the
termination of employment, the employer loses
disciplinary control over the employee. Their
legal relationship of employer-employee comes
to an end on the termination of the employment.
However, in the case of employment under the
State, the State by appropriate law may retain
some authority to deal with its erstwhile
employees. Rule 3 of Part III of the Kerala
Service Rules is such a law which authorises the
State to withhold the pension of a former
employee either totally or partially. Such
withholding could be either permanent or for a
specified period in the contingencies mentioned
in the said rule. Such contingencies are (1) the
pensioner is found guilty in a departmental
proceeding of grave misconduct or negligence
during the course of his service or (2) in a
judicial proceeding such a finding is recorded.
Further it is required under sub-rule (a) of Rule
3 of the Kerala Services Rules that the
departmental proceedings referred to under Rule
3 need not have been concluded while the
W.A.1386/2021
employee was in service. Sub-rule (a) of Rule 3
authorizes the continuation of a pending
departmental proceeding even after the
retirement of the employee against whom
proceedings were initiated.
24. In the case of the 4 th respondent, no departmental
proceedings were initiated while he was in service. No
disciplinary proceedings can be initiated against the 4th
respondent after retirement at this distance of time even for the
limited purpose provided in Rule 3 of Part III of Kerala Service
Rules. I find no reason for this Court to direct the respondents 1 to
3 to initiate any disciplinary proceedings against the respondents 4
and 5.
25. The locus standi of the writ petitioner to challenge the
action of the 1st respondent to drop the disciplinary proceedings
against the respondents 4 and 5 is also a matter to be considered in
this writ petition. It is true that the subject matter of the
disciplinary proceedings is in relation to the unfortunate incident
leading to the sad demise of the petitioner's wife. Nevertheless,
the petitioner is a stranger in the matter of disciplinary
proceedings. Disciplinary proceedings is essentially a matter
between the employer and the employee and a stranger cannot be
said to have any interest in those proceedings. The Hon'ble
Supreme Court in Rajnit Prasad v. Union of India [2000 (9)
SCC 313] considered the scope of locus standi in entertaining a
challenge to disciplinary proceedings and held that a person, who
is not connected with those proceedings cannot challenge any
aspect of such departmental proceedings or action by filing a writ
petition. A departmental proceedings is essentially a matter
between the employer and the employee and a stranger cannot be
said to have any interest in those proceedings. The Court held:
"8. It is, no doubt, true that the scope of "locus
standi" has been widened by this Court through its
various decisions and, that too, in the field of
Public Interest Litigation where it has been said
that Public Interest Litigation can be initiated not
only by filing petitions in the High Court or in this
Court in a regular manner but also by means of
letters and telegrams addressed to the Court. (See :
People's Union for Democratic Rights v. Union of
India, Bandhua Mukti Morcha v. Union of India,
State of Himachal Pradesh v. A Parent of a
W.A.1386/2021
Student of Medical College, Shimla and Bangalore
Medical Trust v. B.S. Muddappa.
9. But a mere busy-body who has no interest
cannot invoke the jurisdiction of the Court. In
respect of departmental proceedings which are
initiated or sought to be initiated by the
Government against its employees, a person who
is not even remotely connected with those
proceedings cannot challenge any aspect of the
departmental proceedings or action by filing a
Writ Petition in the High Court or in this Court.
Disciplinary action against an employee is taken
by the Government for various reasons principally
for "misconduct" on the part of the employee. This
action is taken after a "domestic" enquiry in which
the employee is provided an opportunity of
hearing as required by the constitutional mandate.
It is essentially a matter between the employer and
the employee, and a stranger, much less a
practising advocate, cannot be said to have any
interest in those proceedings. Public interest of
general importance is not involved in disciplinary
proceedings. In fact, if such petitions are
entertained at the instance of persons who are not
connected with those proceedings, it would
amount to an abuse of the process of Court".
26. In Dr. Duryodhan Sahu and others v. Jitendra Kumar
Mishra and others [1998] 7 SCC 273] it was held by the Apex
court that in service matters Public Interest Litigation shall not be
entertained. The Petitioner in this writ petition is not challenging
any action initiated against the petitioner's wife while she was in
service or any action of the respondents 1 to 3 that would curtail
any of the service or terminal benefits of the petitioner's wife.
Therefore, the petitioner cannot have any locus standi to challenge
the decision of the Government in dropping the disciplinary
proceedings against respondents 4 and 5.
The writ petition fails and is accordingly dismissed."
7. We have heard the learned counsel for the appellant Sri. P.Abdul
Raoof and Sri.Sumod M.K., and Sri. K.P. Harish, learned Senior Government
W.A.1386/2021
Pleader and perused the pleadings and material on record.
8. The sole question to be considered is whether any manner of
interference is required to the judgment of the learned Single Judge. On an
analysis of the finding rendered by the learned Single Judge, what we could
gather is that the appellant was trying to expose the cause of his wife, on the
basis of a disciplinary action initiated by the Education Department against
respondents 4 and 5, in the light of the allegations discussed above.
9. First of all, Exhibit P8 is only a note prepared by the Principal
Secretary in order to place it before the higher ups for consideration. Exhibit
P8 can never be treated as an order passed by the Government so as to interfere
with the same. It is well settled in law that notes prepared by an authority for
the purpose of internal correspondence can never be considered as a basis for
any cause of action. The said aspect was considered by the learned Single
Judge elaborately, taking into account various judgments of the Apex Court
and has arrived at a conclusion that the relief sought for by the appellant cannot
be granted.
10. Moreover, the subject issue is a service matter in regard to the
disciplinary action initiated by the Education Department against respondents
4 and 5 and therefore, the appellant can never be said to be a person aggrieved,
in the matter of the action initiated by the Department/State Government
against respondents 4 and 5. The said question raised was also elaborately
W.A.1386/2021
considered by the learned Single Judge, taking into account the proposition of
law laid down by the Apex Court; and that apart, the scope of disciplinary
proceedings against an employee, who was retired from service, was also
considered elaborately, taking into account rule 3, ruling No.3 of Part III of
Kerala Service Rules and a Judgment rendered by this Court, as to whether a
disciplinary action can be initiated against a retired employee, and held that
disciplinary action against a retired employee is not possible.
11. Taking into account the factual and legal circumstances and the
judgment rendered by the learned Single Judge analysing the issues raised by
the petitioner, cannot be said to be in any manner suffering with any
jurisdictional error or other legal infirmities justifying interference exercising
the power of intra court appeal conferred under Section 5 of the Kerala High
Court Act.
Needless to say, writ appeal fails, accordingly it is dismissed.
Sd/-
S. Manikumar,
Chief Justice
Sd/-
Shaji P. Chaly,
Judge
sou.
