Kerala High Court
V.Viswalal vs Kerala State Beverages (Manufacturing ... on 10 February, 2025
2025:KER:11696
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946
WP(C) NO. 28596 OF 2019
PETITIONER:
V.VISWALAL, AGED 53 YEARS,
SON OF VISWANATHAN, ABKARI WORKER,
KERALA STATE BEVERAGES CORPORATION,
FL-1/2014, PARRIPPALLY KALLUVATHUKAL,
KOLLAM DISTRICT, RESIDING AT VISWAPRASANTH,
GANDHI NAGAR-92, VALTHUNGAL.P.O.,
KOLLAM - 691018.
BY ADVS.
SMT.REKHA VASUDEVAN
SMT.V.DEEPA
RESPONDENTS:
1 KERALA STATE BEVERAGES
(MANUFACTURING AND MARKETING) CORPORATION LTD.,
REPRESENTED BY ITS MANAGING DIRECTOR,
BEFCO TOWER, PALAYAM, VIKAS BHAVAN.P.O.,
THIRUVANANTHAPURAM-695014.
2
W.P(C)No.28596 of 2019 2025:KER:11696
2 THE BOARD OF DIRECTORS,
KERALA STATE BEVERAGES
(MANUFACTURING AND MARKETING) CORPORATION LTD.,
REPRESENTED BY ITS MANAGING DIRECTOR,
BEFCO TOWER, PALAYAM, VIKAS BHAVAN.P.O.,
THIRUVANANTHAPURAM-695014.
BY ADV SRI.NAVEEN.T.,
SC, KERALA STATE BEV.CO.M.AND M.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
3
W.P(C)No.28596 of 2019 2025:KER:11696
JUDGMENT
The petitioner, who was working with the respondent
Corporation, has filed the captioned writ petition seeking to
challenge Ext.P22 order issued by the 1st respondent herein.
2. The short facts necessary for the disposal of this writ
petition are as follows:
The petitioner was working with the respondent
Corporation as an Abkari worker. On account of purely
emergent reasons - the requirement for bringing his ailing
brother who was working abroad, the petitioner states that he
applied and obtained a passport and travelled abroad. The
afore travel was for around 15 days. The petitioner admits that
he did not obtain an NOC from the employer for traveling
abroad. Added to this, in the travel documents, the petitioner
described himself as a businessman.
3. Citing the afore two reasons (i) not obtaining an NOC
from the employer and (ii) describing himself as a businessman
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in the travel documents, proceedings were taken, and the
petitioner was dismissed from service, as evidenced by Ext.P11
dated 17.01.2009. Against Ext.P11, the petitioner filed an
appeal before the appellate authority and during the pendency
of the appeal as above, he was continuing in service.
Ultimately, on account of the dismissal of the appeal, with effect
from 17.01.2009 onwards, the petitioner was kept out of
service. The order of dismissal as confirmed by the Board of
Directors was challenged by the petitioner before this Court by
filing W.P.(C)No.29720 of 2009 and ultimately, by Ext.P15 dated
10.06.2013, a learned Single Judge of this Court found that the
petitioner is sent out of service without following the mandate
prescribed under the Kerala State Beverages (Manufacturing
and Marketing) Corporation Limited Employee's Service
Rules,1986 (hereinafter referred to as the 'Service Rules') by
conducting a proper domestic enquiry. Finding thus, the orders
of dismissal were set aside, further directing the respondents to
reinstate the petitioner in service forthwith and permitting the
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respondents to proceed further with the disciplinary
proceedings.
4. It may straight away be noticed that in Ext.P15, this
Court observed that the question as regards the regularization
of the period during which the petitioner was so kept out of the
service is to be decided "depending on the outcome of the
domestic enquiry and penalty, if any imposed".
5. On the basis of the directions in Ext.P15, by Ext.P16,
the petitioner is reinstated in service on 06.07.2013. However,
the question of regularization for the period from 17.01.2009 to
06.07.2013 was held against the petitioner, without much
discussion.
6. Though a representation is filed, the same met with
no success. This is followed with Ext.P18 dated 05.10.2013,
formally concluding the domestic enquiry, permitted to be
continued by this Court. The order at Ext.P18 finds that the
action of the petitioner, noticed earlier, amounts to "grave
misconduct and was against the Rules of the respondent
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Corporation" and on the basis of the afore, a "warning" is issued
against the petitioner. The claim for regularization was again
not properly considered and rejected.
7. The order at Ext.P18, was challenged to the extent
regularization was not extended, before this Court. By Ext.P19,
this Court, taking note of the directions issued in the earlier
round, set aside the order at Ext.P18 to the extent
regularization was rejected, directing the Corporation to take a
fresh call on the above aspect.
8. It is in the afore circumstances that Ext.P22 is issued
considering the contentions raised and again refusing to
regularize the period referred to above, as prayed for by the
petitioner.
9. The petitioner has filed the captioned writ petition
challenging Ext.P22 passed by the 1 st respondent in the afore
circumstances.
10. I have heard Smt.Rekha Vasudevan, the learned
counsel for the petitioner and Sri.T.Naveen, the learned
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Standing Counsel for the respondent Corporation.
11. The sustainability or otherwise of the findings
rendered in Ext.P22 issued by the 1 st respondent is the sole
issue arising for consideration in this writ petition.
12. Facts are not in dispute. The petitioner was an Abkari
worker with the respondent Corporation. True, the petitioner
obtained a passport and travelled abroad, describing himself as
a businessman. The petitioner also did not obtain an NOC. It is
in the afore circumstances that proceedings were taken against
the petitioner, ultimately leading to the dismissal from service.
This Court, by Ext.P15 judgment, set aside the dismissal, finding
that the respondent has to follow the procedure prescribed and
carry out a domestic enquiry in that regard. The question of
regularization was left to be considered after the finalization of
the afore proceedings.
13. It is in the afore circumstances that Ext.P18 is
ultimately issued by the respondent Corporation after the
reinstatement of the petitioner. True, Ext.P18, finds that the
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petitioner had acted against the Rules as well as the interest of
the respondent Corporation. On the basis of the afore,
ultimately, only a warning is issued against the petitioner.
14. The provisions of the Service Rules of the respondent
Corporation under Rule 8 adopt the provisions of the Kerala
Service Rules (KSR), in those circumstances where the Service
Rules do not contain provisions relating to a particular scenario.
15. In the case at hand, the petitioner claims
regularization of the period he was kept out of service.
Admittedly, the Service Rules of the respondent Corporation do
not contain any provision dealing with the issue of
regularization.
16. In such circumstances, Sri.T.Naveen is justified in
contending that a reference has to be made to the provisions of
Rule 56A read with Rule 56 of Part I KSR. Rule 56A(2) provides
that in situations where an employee is reinstated in service
after the enquiry proceedings, the question of regularization,
etc., is to be made with reference to provisions of Rule 56(4),
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(5) and (7). The provisions of Rule 56(5), read as under:-
"In a case falling under sub-rule (4), the period of
absence from duty including the period of suspension
preceding his dismissal, removal or Compulsory
Retirement, as the case may be, shall not be treated as
a period spent on duty, unless the competent authority
specifically directs that it shall be so treated for any
specified purpose."
True, the learned Standing Counsel, Sri.T.Naveen is justified in
contending that ultimately, it is for the competent authority to
consider as to how the period of regularization is to be treated.
17. However, in the case at hand, the question of making
reference to the provisions of Rule 56A read with Rule 56 of the
KSR arises only after taking into account the nature of the
penalty/punishment imposed on the petitioner. As already
noticed, Ext.P18 ultimately only issued a "warning" to the
petitioner. In this regard, the Service Rules of the respondent
Corporation is a self-contained one with respect to the method
of punishment to be imposed. Rule 83 of the Service Rules
provides for the penalties/punishment against an employee of
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the respondent Corporation. Rule 83 speaks about "minor
penalties" and "major penalties". The provisions of Rule 83 do
not contain a penalty of "warning". When that be so, Ext.P18,
to the extent of imposing only a punishment of "warning"
cannot be considered to be one falling within the scope and
ambit of Rule 83 of the Service Rules.
18. In this connection, the learned Standing Counsel
would contend that the respondent Corporation is justified in
issuing the findings contained in Ext.P18, dehors the ultimate
punishment of warning, insofar as the findings rendered against
the petitioner prove that he was guilty. He took me through the
various findings in the enquiry report also. However, I notice
that the enquiry report, which is produced along with the reply
affidavit filed by the petitioner dated 15.08.2022, in the
concluding portion, specifically takes note of the antecedents of
the service rendered by the petitioner with the respondent
Corporation herein. The fact that the petitioner was continuing
to work even without availing the "weekly off" is noticed. The
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fact that no proceedings were taken against the petitioner from
April 2001 till the impugned incident is also noticed. Apart from
the afore, the actual reason pointed out by the petitioner and
noticed at the beginning of this judgment is also endorsed by
the enquiry officer while finalizing the report at Ext.P24. This
Court also notices that the enquiry officer has obtained the
views of the other employees who worked with the petitioner
herein and has recorded that the other employees also
supported the case put up by the petitioner herein.
19. In such circumstances, I am of the opinion that the
ultimate finding in Ext.P18, noticed earlier goes against the
mandate of Rule 56(5) of Part I KSR.
20. Resultantly, I am of the opinion that the petitioner is
entitled to succeed.
21. In this connection, I also take note of the judgment of
a learned Single Judge of this Court in Madhavan v. CIT and
Others [1983 KHC 263], relied on by the learned counsel,
Smt.Rekha Vasudevan in support of the contention that insofar
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as only a warning is issued, the same is not to be treated as a
"punishment". This Court has already found that the so-called
punishment cannot be considered to be a punishment under
Rule 83 of the Service Rules.
22. Furthermore, I take note of the judgment of the Apex
Court relied on by the learned counsel, Smt.Rekha Vasudevan in
Deepali Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyalaya (D.Ed.) and Others [(2013) 10 SCC 324],
wherein the Apex Court has summarized the proposition to be
applied in cases of the like nature as under:-
"38. The propositions which can be culled out from the
aforementioned judgments are:
38.1. In cases of wrongful termination of service,
reinstatement with continuity of service and back
wages is the normal rule.
.........
38.5. The cases in which the competent Court or
Tribunal finds that the employer has acted in gross
violation of the statutory provisions and/or the
principles of natural justice or is guilty of victimizing the
employee or workman, then the concerned Court or
Tribunal will be fully justified in directing payment of full
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back wages. In such cases, the superior Courts should
not exercise power under Article 226 or 136 of the
Constitution and interfere with the award passed by the
Labour Court, etc., merely because there is a possibility
of forming a different opinion of the entitlement of the
employee/workman to get full back wages or the
employer's obligation to pay the same. The Courts must
always be kept in view that in the cases of
wrongful/illegal termination of service, the wrongdoer is
the employer and sufferer is the employee/workman
and there is no justification to give premium to the
employer of his wrongdoings by relieving him of the
burden to pay to the employee/workman his dues in the
form of full back wages.
.........
38.7. The observation made in J.K.Synthetics Ltd. v. K.P.
Agrawal (supra) that on reinstatement the
employee/workman cannot claim continuity of service
as of right is contrary to the ratio of the judgments of
three Judge Benches referred to hereinabove and
cannot be treated as good law. This part of the
judgment is also against the very concept of
reinstatement of an employee/workman."
In the light of the afore, this Court notices that insofar as no
penalty, within the meaning of the afore term under Rule 83 of
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the Service Rules applicable to the 2 nd respondent herein, is
seen imposed on the petitioner, the period from 17.01.2009 to
06.07.2013, is also to be considered as duty and regularized.
23. However, the larger question to be considered in the
afore circumstances is to the effect that the petitioner has
admittedly not worked with the respondent Corporation for the
afore period. True, the petitioner cannot be found fault for that.
However, insofar as the petitioner has not worked with the
respondent Corporation in between the afore dates, I hold that
the petitioner is to be paid 50% of the salary payable by the
respondent.
In such circumstances, this writ petition would stand
disposed of as under:-
i. Ext.P22 order issued by the 1st respondent is set
aside.
ii. It is held that the period from 17.01.2009 to
06.07.2013 is to be regularized and reckoned for the
purpose of service benefits of the petitioner.
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iii. However, the petitioner would be only entitled for
50% of the salary payable by the respondent for the
afore period.
iv. Needless to say that the respondent Corporation to
extend the afore, as also carry out the consequential
re-fixation within a period of six months.
Sd/-
HARISANKAR V. MENON
JUDGE
ANA
W.P(C)No.28596 of 2019 2025:KER:11696
APPENDIX OF WP(C) 28596/2019
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE OFFICE ORDER
NO.K.S.B.C/AAI/13249/02 DATED 7.2.2003
ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2 A TRUE COPY OF THE KERALA STATE BEVERAGES
(MANUFACTURING &MARKETING) CORPORATION
LTD., EMPLOYEES SERVICE RULES, 1986.
EXHIBIT P3 A TRUE COPY OF THE RELEVANT PAGES OF THE
PASSPORT BEARING NO.G5525858 ON
29.11.20017 ISSUED TO THE PETITIONER.
EXHIBIT P4 A TRUE COPY OF THE COMPLAINT DATED 7.4.08
SUBMITTED BY MR.SALIM TO THE HONOURABLE
CHIEF MINISTER.
EXHIBIT P5 A TRUE COPY OF THE LETTER DATED 16.12.2008
ISSUED BY THE SUPERINTENDENT OF POLICE,
KOLLAM TO THE 1ST RESPONDENT.
EXHIBIT P6 A TRUE COPY OF THE ENQUIRY REPORT DATED
NIL AS SUBMITTED BY SRI.VIJAYAKUMAR.
EXHIBIT P7 A TRUE COPY OF THE MEMO NO.AA7/7402/08
DATED 19.7.08 BY THE 1ST RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE EXPLANATION DATED 13.8.08
SUBMITTED BY THE PETITIONER TO THE 1ST
RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE MEMO NO.AA.7402/08 DATED
1.9.2008 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE REPLY DATED 5.9.08
SUBMITTED BY THE PETITIONER TO THE 1ST
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RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE OFFICE ORDER
NO.A.A.7/7402/8 DATED 17.1.2009 ISSUED BY
THE 1ST RESPONDENT.
EXHIBIT P12 TRUE COPY OF THE APPEAL DATED 2.2.09
SUBMITTED BY THE PETITIONER TO THE 2ND
RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE DECISION IN ITEM NO.2210
IN THE MEETING HELD ON 28.3.09 OF THE 2ND
RESPONDENT.
EXHIBIT P14 TRUE COPY OF THE LETTER NO.A.A.7/7402/08
DATED 29.4.2009 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P15 TRUE COPY OF THE JUDGMENT DATED 10.6.2013
IN WPC.NO.29720 OF 2009 OF THIS HONOURABLE
COURT.
EXHIBIT P16 TRUE COPY OF THE PROCEEDINGS BEARING
NO.K.S.B.C/AA7/17642/2013 DATED 6.7.2013.
EXHIBIT P17 TRUE COPY OF THE DEFENCE STATEMENT
SUBMITTED BY THE PETITIONER TO THE ENQUIRY
OFFICER ON 27.8.2013.
EXHIBIT P18 TRUE COPY OF THE PROCEEDINGS BEARING
NO.K.S.B.C/AA7/17642/2013 DATED 5.10.2013.
EXHIBIT P19 TRUE COPY OF THE JUDGMENT DATED 28.3.2019
IN WPC.NO.607 OF 2014 OF THIS HONOURABLE
COURT.
EXHIBIT P20 TRUE COPY OF THE LETTER
NO.17642/AE17/2019/K.S.B.C. DATED
24.6.2019 ISSUED BY THE GENERAL MANAGER OF
THE 1ST RESPONDENT.
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EXHIBIT P21 TRUE COPY OF THE HEARING NOTE SUBMITTED BY
THE PETITIONER TO THE 1ST RESPONDENT ON
28.6.2019.
EXHIBIT P22 TRUE COPY OF THE ORDER
NO.17642/AE3/AE7/2017/K.S.B.C DATED
19.9.2019 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P23 TRUE COPY OF THE G.O. (P) NO. 233/08/FIN.
DATED 03.06.2008 ISSUED BY THE PRINCIPAL
SECRETARY (FINANCE).
EXHIBIT P23A TRUE COPY OF THE G.O. (P) NO. 418/08/FIN.
DATED 16.09.2008 ISSUED BY THE PRINCIPAL
SECRETARY (FINANCE) I.
EXHIBIT P24 TRUE COPY OF THE ENQUIRY REPORT CONDUCTED
AGAINST THE PETITIONER SUBMITTED BEFORE
THE 1ST RESPONDENT.
