Kerala High Court

Shajahan A vs Kerala State Road Transport ... on 9 June, 2022

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
                       WP(C) NO. 16220 OF 2021


PETITIONER:

          SHAJAHAN A., AGED 50 YEARS, S/O. ABDUL KAREEM,
          SEENA MANZIL, MEERANVETTY, PERINGAMALA P.O,
          NEDUMANGAD, THIRUVANANTHAPURAM - 695563.

          BY ADVS.
          K.S.MADHUSOODANAN
          M.M.VINOD KUMAR
          P.K.RAKESH KUMAR
          K.S.MIZVER
          M.J.KIRANKUMAR


RESPONDENTS:

    1     KERALA STATE ROAD TRANSPORT CORPORATION KSRTC
          TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM -
          695023, REPRESENTED BY MANAGING DIRECTOR.

    2     CHAIRMAN AND MANAGING DIRECTOR
          KERALA STATE AND ROAD TRANSPORT CORPORATION,
          TRANSPORT BHAVAN, EAST FORT,
          THIRUVANANTHAPURAM - 695023.

    3     THE DISTRICT TRANSPORT OFFICER
          KERALA STATE ROAD TRANSPORT CORPORATION,
          THIRUVANANTHAPURAM CITY - 695011.

    4     THE DISTRICT TRANSPORT OFFICER,
          KERALA STATE ROAD TRANSPORT CORPORATION,
          NEDUMANGAD - 695011.

    5     INSPECTOR IN CHARGE, KERALA STATE ROAD TRANSPORT
          CORPORATION, VITHURA DEPOT
          (THIRUVANANTHAPURAM DISTRICT - 695551.


          BY ADV DEEPU THANKAN - SC
 WPC 16220/21
                                        2

      THIS     WRIT   PETITION    (CIVIL)   HAVING   COME    UP    FOR
ADMISSION      ON   09.06.2022,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WPC 16220/21
                                      3

                            JUDGMENT

The petitioner, while working as a Driver in the services of

the Kerala State Road Transport Corporation (KSRTC), was placed

under suspension on 15.04.2017, on the allegation that he

refused to abide by an instruction issued to him to take over the

schedule of a service to Thiruvananthapuram via Anappetty. He

asserts that Ext.P5 Trip Schedule would show that another

Driver, by name Sri.S.Aravind, was already allotted the bus in

question and that he had taken over duty at 4 a.m on

06.04.2017, thus incapacitating him from operating the trip. He

says that it is without considering this that the entire disciplinary

action, culminating in imposition of punishment of barring one

increment has been concluded against him; and therefore, that

the entire proceedings are liable to be quashed.

2. Sri.K.S.Madhusoodanan - learned counsel for the

petitioner, submitted that this is not the first occasion where his

client has been compelled to approach this Court and that he

had earlier filed WP(C)No.20022/2017, which was allowed WPC 16220/21

through Ext.P13 judgment, directing that his appeal against the

disciplinary action be disposed of within the time frame fixed

therein. He says that when this was mechanically adhered to and

his appeal dismissed, without adverting to any of the relevant

considerations, he preferred WP(C)No.1005/2018 challenging the

said order, which was allowed and the order impugned therein

quashed, with the following specific observations and directions:

6. I have considered the contentions advanced on either side. The petitioner's specific contention in Ext.P7 appeal is that the very initiation of disciplinary proceedings against him on the basis of alleged dereliction of duty and disobedience of order on 6.4.2017 was fictitious. The petitioner had produced documents before the 1st respondent to show that he was never allotted to duty to operate short trip from Vithura to Anappetti on 6.4.2017. relying on the log sheets issued to him as well as to S.Aravind who was the substitute driver of the vehicle operating the said local trip, the petitioner contends that the said substitute driver had been present for duty at 4.40 a.m. on 6.4.2017 and that there was no occasion for the petitioner being required to carry out the duty. The petitioner contends that his log sheet, which shows that he has reported to duty at 4 a.m. and had been allotted only to a long trip from Vithura to Munnar; had not been cancelled and that the initiation of disciplinary proceedings against him and the resultant transfer were absolutely unnecessary in the facts and circumstances of the case as pointed out by the petitioner. This Court by Ext.P8 judgment had directed a consideration of Ext.P7 appeal. The rejection of the appeal on the ground that it can be considered only after the petitioner joins duty and completes six months of service in the transferred unit therefore cannot apply with the facts of this case, since the petitioner was challenging the very inception of the disciplinary proceedings against him on WPC 16220/21

the ground that the facts stated for placing the petitioner under suspension were non-existent.

7. In the facts and circumstances of the case, I am of the opinion that the rejection of the petitioner's appeal without considering the documents produced by him was improper. I am of the opinion that the petitioner ought to have been heard and his contentions with regard to the materials produced by him should have been taken note of by the 1 st respondent before orders were passed.

3. Sri.K.S.Madhusoodanan submitted that, in spite of

this, when his client's appeal was not disposed of, he

approached this Court again, by filing WP(C)No.14694/2019,

culminating in Ext.P18 judgment, wherein, it was recorded that

he undertakes to report back to duty; and thus the disciplinary

action was directed to be disposed of within a period of three

months from the date of the said judgment. He submitted that,

notwithstanding the afore, Ext.P19 order was issued by the

disciplinary Authority, which was confirmed through Ext.P22

order of the Appellate Authority, both holding that the

disciplinary action against his client is tenable and without any

error. He argued that both these orders are illegal; and thus

prayed that the reliefs sought for in this Writ Petition be

granted.

WPC 16220/21

4. After asserting as afore, Sri.K.S.Madhusoodanan

further submitted that, pending the disciplinary action, on the

allegation that his client had been on unauthorised absence,

Ext.P27 order has been issued terminating him from service and

alleged that this has been done without following the mandatory

procedure and totally disregarding the undertaking recorded by

this Court in Ext.P18 judgment. He, therefore, prayed that

Ext.P27 also be quashed, so that his client can rejoin duty as per

law.

5. In response to the afore submissions, Sri.Deepu

Thankan - learned Standing Counsel for the KSRTC, submitted

that every allegation impelled by the petitioner in this Writ

Petition is in the realm of facts, which this Court cannot

consider, while acting under Article 226 of the Constitution of

India. He argued that it is now well-settled that, through a

process of judicial review, the petitioner cannot seek this Court

to act as an Appellate Forum, but can only ask an evaluation as

to if the procedure required under the applicable Statute and

Regulations had been complied with implicitly. He affirmatively WPC 16220/21

argued that every such mandatory requirement has been fulfilled

in the process; however, to a pointed question from this Court,

he conceded that Ext.P27 order of termination appears to have

been issued without following such. He, therefore, prayed that

this Writ Petition be dismissed.

6. I have evaluated the afore submissions carefully and

have also examined the various documents available on record.

7. The allegation against the petitioner is that he refused

to abide by the lawful instruction given to him to take over a

schedule on 06.04.2017, towards Thiruvananthapuram via

Anappetty. It is specifically imputed against him that it amounts

to gross insubordination.

8. Interetingly, Sri.Deepu Thankan - learned Standing

Counsel for the KSRTC, says that even though the petitioner was

placed under suspension on 15.04.2017 through Ext.P11, same

was revoked and he could have joined duty any time after

22.05.2017, but that he chose not to do so, which has

culminated in Ext.P27 order, terminating his services on the

ground of unauthorised absenteeism.

WPC 16220/21

9. Be that as it may, on the first allegation, that the

petitioner did not abide by the lawful instruction, the defence

put up by him is that another substitute driver had been

assigned and that he had taken over, thus disabling the

petitioner from operating such schedule. Going by Ext.P17

judgment, this aspect was noticed by this Court and, through the

afore extracted observations, the competent Authority was

directed to consider it specifically. However, when one notices

Ext.P19 or Ext.P22, this aspect has not been adverted to in its

proper perspective, but the Authority has merely said that

disciplinary action cannot be found to be in error. I am afraid

that this Court cannot countenance this, particularly when, in

Ext.P16 judgment, specific directions had been issued in the

manner as has been extracted above.

10. That being said, I asked Sri.Deepu Thankan as to how

the KSRTC can justify Ext.P27 order, terminating the services of

the petitioner, especially when his undertaking had been

recorded in Ext.P18 judgment by another learned Judge of this

Court. The learned Standing Counsel explained that in spite of WPC 16220/21

the undertaking in the said judgment, the petitioner refused to

join duty, and that it is, therefore, that Ext.P27 order has been

issued. He, however, submitted that if this Court is inclined,

KSRTC is willing to reconsider the said order, including by

initiating appropriate action on such allegation.

11. In the afore circumstances, though I cannot find

Ext.P19 or Ext.P22 to be in conformity with the directions of

this Court in Ext.P16 judgment, I choose to quash only the

latter, so that the Appellate Authority can reconsider the matter,

after hearing the petitioner.

12. Needless to say, Ext.P27 cannot be granted

imprimatur because the factual circumstances which warrant such

a drastic step have not been yet proved through a proper

enquiry.

Resultantly, I order this Writ Petition with the following

directions:

a) Ext.P22 is quashed, with a resultant direction to the

competent Appellate Authority to reconsider the disciplinary

action against the petitioner, adverting to his specific contentions WPC 16220/21

which are recorded in Ext.P16 judgment of this Court and after

affording him an opportunity of being heard; thus culminating in

an appropriate order and necessary action thereon as

expeditiously as is possible, but not later than two months from

the date of receipt of a copy of this judgment.

b) Ext.P27 is quashed, with liberty being reserved to the

KSRTC to initiate any action that may be warranted against the

petitioner; however, following due procedure and in implicit

compliance of the statutory provisions.

Sd/-

RR                                       DEVAN RAMACHANDRAN
                                               JUDGE
 WPC 16220/21


               APPENDIX OF WP(C) 16220/2021

PETITIONER EXHIBITS
Exhibit P1          PHOTOCOPY OF THE MEMORANDUM BEARING NO.
                    TR.1/006996/08 DATED 5.4.2017.
Exhibit P2          PHOTOCOPY OF THE RELEVANT PAGE OF
                    POSTING REGISTER DATED 6.4.17.
Exhibit P3          PHOTOCOPY OF THE LOG SHEET DATED 6.4.17
                    AT 4 AM PETITIONER TOOK OVER BUS
                    BEARING NO.RPC/453.
Exhibit P4          PHOTOCOPY OF THE OCCURRENCE REPORT OF
                    5TH RESPONDENT DATED 7.4.2017.
Exhibit P5          PHOTOCOPY OF THE LOG SHEET DATED
                    6.4.2017 ASSIGNING BUS TO S.ARAVIND.
Exhibit P6          PHOTOCOPY OF THE CLEARLY SHEET

ASSIGNING TO S. ARAVIND THE SCHEDULE AT 5.10 AM OVERWRITTEN WITH 5.30 DATED 6.4.2017.

Exhibit P7 PHOTOCOPY OF THE REPLY UNDER R.T.I DATED 2.6.2017 FROM S.I, VITHURA P.S. Exhibit P8 PHOTOCOPY OF THE REPORT BEARING NO.

104/VTR/17 DATED 7.4.2017 OF THE 5TH RESPONDENT.

Exhibit P9 PHOTOCOPY OF THE SUSPENSION ORDER BEARING NO. V.L.E4-009268/17 DATED 15.04.2017.

Exhibit P10 PHOTOCOPY OF THE MEMO OF CHARGE WITH STATEMENT OF ALLEGATION BEARING NO.

V.L.E4 009268/17 DATED 18.05.2017.

Exhibit P11 PHOTOCOPY OF THE MEMO BEARING NO. E2-

3398/17 /NAD DATED 22.05.17 REINSTATING AND TRANSFERRING THE PETITIONER.

Exhibit P12 PHOTOCOPY OF THE APPEAL DATED 6.6.17 TO THE 1ST RESPONDENT.

Exhibit P14 PHOTOCOPY OF THE JUDGMENT IN WP(C) 36230/17 DATED 13.11.2017 OF THE HON'BLE HIGH COURT.

Exhibit P15 PHOTOCOPY OF THE ORDER BEARING NO.

PL.13/001214/17 DATED 30.11.2017 REJECTING APPEAL.

Exhibit P16 PHOTOCOPY OF THE JUDGMENT IN WP(C) 1005/18 DATED 12.06.18 OF THE HON'BLE HIGH COURT.

WPC 16220/21

Exhibit P17 PHOTOCOPY OF THE ORDER BEARING APL 5209/2018 DATED 5.11.2018 REJECTING APPEAL.

Exhibit P18 PHOTOCOPY OF THE JUDGMENT IN WP(C) 14694/19 DATED 20.05.20 OF THE HON'BLE HIGH COURT.

Exhibit P19 PHOTOSTAT COPY OF THE PUNISHMENT ORDER BEARING NO.VLV4/0009268/17 DATED 19.08.20 PASSED BY EXECUTIVE DIRECTOR (VIGILANCE).

Exhibit P20 PHOTOCOPY OF THE APPEAL TOT HE 1ST RESPONDENTS DATED 11.11.2020.

Exhibit P21 PHOTOCOPY OF THE JUDGMENT IN WP(C) 28603/20 DATED 21.12.2020 OF THE HON'BLE HIGH COURT.

Exhibit P22 PHOTOCOPY OF THE APPEAL ORDER BEARING NO.5209/GL6(APL)/2018/RTC DATED 5.5.212 PASSED BY 2ND RESPONDENT.

Exhibit P23 PHOTOCOPY OF THE APPLICATION ALONG WITH RECEIPT DATED 17.06.20 TO REJOIN DUTY.

Exhibit P24 PHOTOCOPY OF THE COMPLAINT TO THE EXE.DIRECTOR(VIGILANCE) DATED 28.02.2018 AGAINST ENQUIRY OFFICER.

Exhibit P25 PHOTOCOPY OF THE WITNESS LIST OF THE PETITIONER DATED 28.2.18.

Exhibit P26 PHOTOCOPY OF THE ENQUIRY REPORT DATED NIL.

Exhibit P27 PHOTOCOPY OF THE ORDER DATED 1.10.2018 BEARING NO-P.L.11/000806/2018 ISSUED BY EXECUTIVE DIRECTOR, (ADMINISTRATION) OF K.S.R.T.C.

Exhibit P27 A TRUE ENGLISH TRANSLATION OF EXT.P-27 Exhibit P28 PHOTOCOPY OF THE LETTER DATED 31.8.2021 BEARING NO-P3/3183/21/CY ISSUED BY 3RD RESPONDENT Exhibit P28A TRUE ENGLISH TRANSLATION OF EXT P-28 Exhibit P29 PHOTOCOPY OF THE REPLY GIVEN TO 3RD RESPONDENT DATED 24.5.208 BY THE PETITIONER.

Exhibit P29A TRUE ENGLISH TRANSLATION OF EXT P-29