Kerala Power Board Officers ... vs K.S.Sunil
2022 Latest Caselaw 6734 Ker

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OP (C)No. 745 of 2022



            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
  TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
                          OP(C) NO. 745 OF 2022
 AGAINST THE ORDER/JUDGMENT IN OS 1632/2019 OF I ADDITIONAL
                        MUNSIFF COURT ,TRIVANDRUM
PETITIONER/S:

           KERALA POWER BOARD OFFICERS FEDERATION
           C.M STEPHEN MEMORIAL BUILDING, POTTAKUZHI, PATTOM
           P.O, THIRUVANANTHAPURAM-695004 REPRESENTED BY ITS
           GENERAL SECRETARY BIJU PRAKASH S.P.
           BY ADVS.
           SABU GEORGE
           P.B.KRISHNAN
           P.B.SUBRAMANYAN
           MANU VYASAN PETER


RESPONDENT/S:

     1     K.S.SUNIL
           AGED 56 YEARS
           S/O KRISHNAN NAIR, EX-GENERAL SECRETARY, KERALA
           POWER BOARD OFFICERS FEDERATION, C.MSTEPHEN
           MEMORIAL BUILDING, POTTAKUZHI, PATTOM,
           THIRUVANANTHAPURAM-695004,
     2     KERALA ELECTRICITY OFFICERS CONFEDERATION
           REPRESENTED BY ITS PRESIDENT M.V.MANOJ AND GENERAL
           SECRETARY P.S PRASANTH HAVING OFFICE AT VAIDHYUTHI
           BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.



    3.     M.V.MANOJ
           AGED 55 YEARS
           SENIOR SUPERINTENDENT, KSEB ELECTRICAL SECTION,
           KURUPPATHURA, KOTTAYAM -686603 (PRESIDENT, KERALA
           ELECTRICITY OFFICERS CONFEDERATION)(EMPLOYEE CODE
           NO.1038850) .,
     4     P.S.PRASANTH
           AGED 43 YEARS
           S/O PRABHAKARAN NAIR, ASSISTANT ENGINEER, KSEB
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OP (C)No. 745 of 2022


           CENTRALISED CALL CENTRE, VAIDHYUTHI BHAVAN,
           PATTOM, THIRUVANANTHAPURAM-695 004. (GENERAL
           SECRETARY, KERALA ELECTRICITY OFFICERS
           CONFEDERATION)(EMPLOYEE CODE NO.1038850).,

           BY ADVS.
           Joseph Antony
           JOHN MANJOORAN(K/526/2019)
           RAJU JOSEPH (SR.)(R-191)


    THIS OP (CIVIL) HAVING COME UP FOR ADMISSION
ON 14.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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OP (C)No. 745 of 2022


                        C.S DIAS,J.
                    ---------------------------
                 OP (C)No. 745 of 2022
                   -----------------------------
          Dated this the 14th day of June, 2022.

                        JUDGMENT

The original petition is filed to direct the Court of

the First Additional Munsiff, Thiruvananthapuram, to

issue the certified copy of the judgment dated 18.3.2022

passed in OS No.1632/2019 and also to declare that the

order of dismissal of the above suit on 18.3.2022 is

illegal and unsustainable in law.

2. The petitioner, who is the first plaintiff in the

above suit, had filed the same against the respondents

for a decree of permanent prohibitory injunction to

restrain them from claiming themselves to be the office

bearers of the petitioner Federation. The petitioner had

also filed Ext P2 application seeking an order of

temporary injunction. The fourth respondent filed Ext

P3 counter affidavit to Ext P2 application. Thereafter,

the court below has passed Ext P4 order of temporary

OP (C)No. 745 of 2022

injunction. In the meantime, the first respondent

retired from service on 31.5.2021. Therefore, he

became disqualified to hold the post of General

Secretary of the petitioner as per the Kerala Servant's

Conduct Rules, 1960. Despite repeated demands and

resolutions passed by the District Committees, the first

respondent evaded to hand over the account books,

registers and records and attempted to squander the

funds of the petitioner. In the above situation, the

petitioner was constrained to file OS No.1410/2021

before the Court of the Munsiff-IV,

Thiruvananthapuram, to declare that the first

respondent is disqualified from continuing as an office

bearer of the petitioner. The first respondent got

infuriated with the filing of the above suit and he filed

Ext P6 not pressed memo in Ext P1 suit. Immediately

on coming to learn of the filing of Ext P6, the petitioner

had filed Exts P7 & P8 applications, to reject Ext P6 and

to substitute the name of the first respondent with that

OP (C)No. 745 of 2022

of Biju Prakash S.P as the General Secretary of the

petitioner, respectively. The first respondent had filed

Exts P9 and P10 written objection to Exts P7 and P8.

Nonetheless, the court below without considering Exts

P7 to P10, dismissed the suit as not pressed on the

strength of Ext P6. The dismissal of the suit is illegal

and unsustainable in law. Hence, the original petition.

3. The respondents 1, 3 and 4 have filed a

counter affidavit refuting the allegations in the original

petition. It is, inter alia, contended that even though

the first respondent had retired from service on

31.5.2021, as per the bye-laws of the petitioner, he can

continue to be an office bearer of the petitioner.

Moreover, there is a newly constituted general body,

which has taken the decision to not press the suit.

4. Heard Sri.P.B Krishnan, the learned counsel

appearing for the petitioner and Sri.Raju Joseph, the

learned Senior Counsel appearing for the respondents

OP (C)No. 745 of 2022

1, 3 and 4. Service is complete on the second

respondent.

5. The point that arises for consideration in the

original petition is that whether the dismissal of the suit

by the court below as not pressed on the strength of Ext

P6, without adverting to Exts P7 and P8 applications

and Exts P9 and P10 objections, is sustainable in law or

not?

6. Ext P6 memo was filed on 3.12.2021, to

dismiss the suit as not pressed. The petitioner filed Exts

P7 and P8 applications on 9.12.2021, to recall the not

pressed memo and to substitute the first respondent

with Biju Prakash S.P, as the General Secretary of the

petitioner.

7. As discernible from the order sheet maintained

by the court below, it can be gathered that the court

below adjourned the suit from 6.12.2021 to 17.12.2021.

On 17.12.2021, the respondents prayed for time to file

their written objections to Exts P7 and P8 and the suit

OP (C)No. 745 of 2022

was adjourned to 22.2.2022. On 22.2.2022, the first

respondent filed Exts P9 and P10 written objections.

The court below adjourned the suit to 18.3.2022.

Surprisingly, on 18.3.2022, the court below, without

adverting to Exts P7 to P10, acted upon Exts P6 not

pressed memo and dismissed the suit.

8. Ext R4(g) judgment shows that the suit was

dismissed on the basis of Ext P6 not pressed memo. The

course adopted by the court below is vitiated by

material irregularity and is unsustainable in law.

9. Whatever may be the merits of Exts P7 and P8

applications, when the petitioner had opposed Ext P6

not pressed memo and the court below granting the

respondents an opportunity to file their objections to

Exts P7 and P8, which they have done by filing Exts P9

and P10, the court below was cast with a legal

obligation to advert to Exts P7 to P10 while passing an

order on Ext P6. Not having done the same, that too

after adjourning the suit for facilitating both sides to file

OP (C)No. 745 of 2022

the applications and objections, Ext R4(g) is erroneous

and unsustainable in law. Hence, in exercise of the

supervisory jurisdiction of this Court under Article 227

of the Constitution of India, the original petition is to be

allowed.

In the result, the original petition is allowed as

follows:

(i) Ext R4(g) judgment dated 18.3.2022 is set aside.

(ii) OS No.1632/2019 is restored to file.

(iii) Ext P4 order will stand resurrected.

(iv) The court below is directed to consider Ext P6

not pressed memo, after adverting to Exts P7 to

P10 and pass appropriate orders, in accordance

with law, as expeditiously as possible, at any rate

within a period of one month from the date of

receipt of a copy of this judgment.

The original petition is ordered accordingly.

sd/-

sks/14.06.2022                         C.S.DIAS, JUDGE

OP (C)No. 745 of 2022



                    APPENDIX OF OP(C) 745/2022

PETITIONER EXHIBITS

Exhibit-P1 TRUE COPY OF PLAINT DATED 25.10.2019 IN OS 1632/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, T R U E

THIRUVANANTHAPURAM Exhibit-P2 TRUE COPY OF IA NO 12530/2019 DATED 25.10.2019 IN OS 1632/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit-P3 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 15.11.19 IN IA 12530/2019 IN OS 1632/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit-P4 TRUE COPY OF THE ORDER DATED 20.2.20 IN IA 12530/2019 IN OS 1632/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit-P5 TRUE COPY OF THE PLAINT DATED 8.12.21 IN OS 1410/21 OF THE DDITIONAL MUNSIFF COURT-IV, THIRUVANANTHAPURAM Exhibit-P6 TRUE COPY OF THE MEMO FILED BY THE RESPONDENT NO.1 IN OS 1632/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibitp7 TRUE COPY OF IA NO 3/2021 DATED 9.12.21 IN OS 1632/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit-P8 TRUE COPY OF IA NO 4/2021 DATED 9.12.2021 IN OS 1632/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit-P9 TRUE COPY OF THE OBJECTION FILED BY THE RESPNDENT NO.1 IN IA NO 3/21 DATED 22.2.22 IN OS 1632/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit-P10 TRUE COPY OF THE OBJECTION FILED BY THE RESPNDENT NO.1 IN IA NO 421 DATED 22.2.22 IN OS 1632/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit-P11 TRUE COPY OF THE DAILY STAUTS OF OS 1632/2019 DATED 18.3.2022 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit-P12 TRUE COPY OF THE CASE STATUS TO OS 1632/2019 DATED 18.3.2022 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM

RESPONDENTS EXHIBITS

Exhibit-R4(a) True copy of the notice date 04.12.2021 Exhibit-R4(b) true copy of the General Body meeting

OP (C)No. 745 of 2022

dated 19.12.2021

Exhibit-R4(c) True copy of the decision taken in the secretary meeting dated 14.08.2021 Exhibit-R4(d) True extract of the membership register containing names of 3rd and 4th respondents.

Exhibit-R4(e) True copy of the request given to advocate Bhasurendran Nair by the 3rd respondent dated 03.12.2021 Exhibit-R4(f) True copy of the minutes of the governing body convened by Biju Prakash on 07.12.2021

Exhibit-R4(g) True copy of the order passed by the 1st additional Munsiff Thiruvananthapuram in OS No 1632 of 2019 dated 18.03.2022

Exhibit-R4(h) True copy of the registered bye-law of the Kerala Power Board Officers' Federation dated 17.12.1997 alongwith typed copy