K.J.Joseph vs Kerala State Warehousing Corporation
2025 Latest Caselaw 4124 Ker

Kerala High Court

K.J.Joseph vs Kerala State Warehousing Corporation on 17 February, 2025

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W.P.(C) No.11187 of 2019
                                                                  2025:KER:13024


               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

          THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON

   MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946

                           WP(C) NO. 11187 OF 2019

PETITIONER:

               K.J.JOSEPH,
               AGED 66 YEARS, S/O.LATE MR.K.M.JOSEPH,
               FORMER REGIONAL MANAGER, KERALA STATE WAREHOUSING
               CORPORATION, 10/491, KADAVIPARAMBIL, AMARAVATHI,
               KOCHI- 682001, C/O.DR.VALSAMMA K.M., RESIDING AT
               UNIVERSITY QUARTERS, KERALA AGRICULTURAL
               UNIVERSITY, THAVANUR- 679573.

               BY ADVS.
               SRI.S.RADHAKRISHNAN
               SRI.S.RAJMOHAN
               SMT.R.ANJALI
               SRI.ADITYA THEJUS KRISHNAN

RESPONDENT:

               KERALA STATE WAREHOUSING CORPORATION,
               REPRESENTED BY ITS MANAGING DIRECTOR,
               KERALA STATE WAREHOUSING CORPORATION,
               KOCHI-16.

               BY ADVS.
               SRI.SAJEEV T.K., SC.
               SRI.MAJNU KOMATH.

       THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17.02.2025,         THE    COURT   ON    THE     SAME   DAY   DELIVERED    THE
FOLLOWING:
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W.P.(C) No.11187 of 2019
                                                      2025:KER:13024



                    HARISANKAR V. MENON, J.
            ------------------------------
                    W.P.(C) No.11187 of 2019
            ------------------------------
             Dated this the 17th day of February, 2025

                           JUDGMENT

The petitioner, who was working as Regional Manager with

the respondent herein, was proceeded against pursuant to

certain allegations, in the year 2002, essentially on the

allegation that he was unauthorizedly absent for around 35 days

and he was dismissed from service, a major penalty. The

dismissal as above was challenged by the petitioner by filing a

writ petition before this Court. A learned Single Judge of this

Court, as per Ext.P1 judgment dated 20.01.2016 found that the

penalty imposed as above was quite disproportionate to the

alleged offence. It was also found that the period during which

the petitioner was allegedly absent was representing the spell

when the petitioner was representing a delinquent employee as

the Defence Assistant. This Court also found that the Circular

relied on from the side of the respondent that, even in such

instances, the Defence Assistant was required to mark a casual

leave, would not apply to the case at hand, since the Circular

was issued only subsequently. Finding so, by Ext.P1, this Court

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noticed that only a minor penalty is required and hence, the

petitioner was ordered to be "reduced to the next lower post in

his permanent class and deemed to have continued till his

retirement at the age of 60 years".

2. The afore judgment at Ext.P1 was challenged by the

respondent Corporation, and by Ext.P2 judgment dated

23.06.2016, a Division Bench of this Court essentially upheld the

findings rendered by the learned Single Judge noticed above,

with reference to the requirement of only a minor penalty. The

Division Bench also noticed the contention taken by the

respondent Corporation that the retirement age as regards the

employees of the Corporation was only 60 years, and hence, a

clarification was issued by modifying the directions contained in

Ext.P1 holding that "salary and allowance need to be paid only

from the date of dismissal till the date on which the petitioner

attained the age of 58 years and not 60 years", as directed by

the learned Single Judge.

3. It may straight away be noticed that the afore

clarification issued by the Division Bench of this Court was not

with reference to the length of the reduction and the directions

contained in Ext.P2 was specific that the petitioner is to be

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extended salary and other benefits after the date of dismissal,

till his superannuation.

4. However, in the implementation of the directions

contained in Ext.P1, as clarified in Ext.P2, the respondent took

a stand that the petitioner's benefits, insofar as the petitioner

has already retired on 31.05.2010, have to be calculated by

implementing the directions in Ext.P2 in the post of the Deputy

Manager for the entire period, post the dismissal till the age of

superannuation - 58 years.

5. It is in the afore circumstances that the captioned writ

petition is filed by the petitioner, seeking a declaration that the

minor penalty imposed as above can only be for a period of six

months in the absence of any specific period being fixed and

hence, further seeking appropriate directions to the respondent

Corporation to rework the retiral benefits of the petitioner and

extend the same.

6. I have heard Sri.S.Radhakrishnan, the learned counsel

for the petitioner and Sri.T.K.Sajeev, the learned Standing

Counsel for the respondent Corporation.

7. The facts are not in dispute. The petitioner, while

working as the Regional Manager, was dismissed from service in

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the year 2002. This Court interfered with the dismissal as above,

as per Ext.P1 in the year 2016, by finding that only a minor

penalty of reduction in rank alone is required. The afore

judgment was upheld by Ext.P2 by a Division Bench of this

Court, however clarifying that the petitioner would be entitled

for salary etc., from the date of dismissal till the date of

superannuation.

8. In the afore circumstances, the question arises as to

how the period of reduction in service as ordered in Ext.P2

judgment is to be interpreted. According to the respondent, the

directions are to be implemented by reducing the rank of the

petitioner for the entire period from 2002 till superannuation.

9. In this connection, this Court notices that the

provisions of General and Staff Regulations, 1963, as regards

the respondent Corporation, only speak about the imposition of

penalties under Regulation 21. The provisions of the afore

regulations do not contain any specific procedure as regards the

disciplinary steps etc., and as to how the penalty prescribed

under Regulation 21 is to be imposed. In such circumstances, it

is the contention raised by Sri.S.Radhakrishnan that the general

law of the land - the provisions of the Kerala Civil Service

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(Classification, Control and Appeal) Rules, 1960 (hereinafter

referred to as 'KCS Rules') would apply.

10. In this connection, I notice the averments made in the

counter affidavit filed by the respondent herein, wherein the

respondent themselves have admitted that, in cases of a like

nature, the provisions of the Kerala Service Rules (KSR) are

being adopted by the respondent in appropriate cases.

11. This Court also notices that, when a specific question

was put to the respondent under the provisions of the Right to

Information Act, 2005, as seen from Ext.P7, the respondent has

taken the stand that the provisions of the various Government

Orders are being followed by the respondent for the purpose of

fixation of pay on reduction of rank etc., in the service of the

respondent Corporation. True, as rightly contended by the

learned counsel for the respondent, the respondent has taken a

U-turn when the petitioner relied upon Ext.P7, by issuing

Ext.R1(a) by withdrawing the afore answer and clarifying that,

in such circumstances, it is for the disciplinary authority to

decide on the issue. But this Court notices that a Division Bench

of this Court in W.P.(C)No.25534 of 2014 dated 05.12.2016, had

occasion to consider an almost similar circumstance with respect

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to a Government Company. In that case, the question

considered by the Division Bench of this Court was with

reference to the disciplinary proceedings initiated against an

employee and the requirement for making reference to the

provisions of KCS Rules. In paragraph 4, the Division Bench of

this Court, found that, in the cases of the like nature, insofar as

the standing orders or the general rules governing the

Government Company do not contain the procedure required for

carrying out the disciplinary enquiry in that regard, reference

may be had to the provisions of KCS Rules.

12. Taking cue from the afore judgment, I am of the

opinion that the contention raised by the learned counsel,

Sri.Radhakrishnan that, in the cases of the like nature, the

reference to the provisions of KCS Rules is necessary, is only to

be accepted.

13. In the light of the afore finding, I proceed to consider

the provisions of KCS Rules. The KCS Rules under Rule 11 (1)(v)

have taken into account the penalty being imposed by reduction

to a lower rank/ a lower grade or post or time scale, and the

note prescribed thereunder provides that such reduction shall

not be less than six months and not more than five years. It has

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been categorically provided thereafter that, if the period is not

specified in the order, the period of reduction shall be deemed to

be six months.

14. In view of the afore provisions, the reductions as

ordered in Ext.P1 as clarified in Ext.P2 by the Division Bench of

this Court have to be considered.

15. In Ext.P1, this Court found that a minor penalty of

reduction to the next lower post is only required. The afore

finding has also been upheld by the Division Bench of this Court

in Ext.P2. This Court notices that, in Ext.P1 or in Ext.P2, the

period for such reduction has not been specifically fixed. This

Court also notices that, on the basis of Exts.P1/P2, the

respondent has also not issued a formal order imposing the

reduction as against the petitioner, as ordered by this Court.

16. In this connection, I take note of the contention raised

by the learned counsel for the respondent that such an order

was not issued only because the petitioner had, in the meantime,

retired in the year 2010. Whatever that be, I am of the opinion

that, even in such an instance, it was for the respondent to have

issued an order so as to facilitate the notional fixation of the

retiral benefits as against the petitioner herein. Insofar as such

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a formal order was not issued in this case, I am of the opinion

that the provisions of Rule 11(1)(v) and the note appended

thereunder would apply, and the period of reduction can only be

for a period of six months from the date of dismissal -

09.09.2002. It is for the respondent to carry out the changes as

required and to rework the retiral benefits of the petitioner in

accordance with law.

17. I also take note of the contention raised by the learned

counsel for the petitioner that, once the provisions of KCS Rules

are applied, the question would arise as to the entitlement of the

petitioner for future promotion also.

18. I notice that the petitioner was admittedly working as

the Regional Manager and the directions issued in Exts.P1/P2

was the reduction to the post of Deputy Manager - lower post.

Once it is held that the afore reduction will only have validity for

a period of six months, the petitioner would be continuing as

Regional Manager after the expiry of the six months.

19. Then, the question would arise as to the entitlement

of the petitioner for future promotions. This Court notices that

in the year 2005, a promotion was granted to one of the Regional

Managers on 19.04.2005 to the post of Manager - a higher post.

2025:KER:13024

It is specifically pointed out in the writ petition by the petitioner

that the incumbent who was so offered the promotion was at

serial No.32 in the overall seniority list, whereas the petitioner

was standing as Serial No.14. If that be the case, the petitioner

was entitled to have been extended the benefit of promotion,

which is seen extended by Ext.P14 order.

20. In such circumstances, the respondent is also to

extend the afore benefit notionally and rework the retiral benefit

to the petitioner.

21. In this connection, I take note of the provisions of Rule

11(1)(iv) & (v) and hold that the petitioner would be entitled for

the benefits by virtue of the provisions referred to above also.

22. The learned counsel, Sri.Radhakrishnan, would point

out to prayer No.4, wherein the petitioner has sought for

appropriate directions to the respondents to release "gratuity with

interest" as also "leave encashment benefits" apart from the

benefits of the extension of retirement benefits on account of

revision of salary. As regards the claim for "gratuity with interest",

this Court notices that the petitioner has raised a specific

contention that the amount of gratuity has been received by the

respondent Corporation way back in the year 2002 itself in part

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and as regards that portion, the petitioner is entitled for interest.

With respect to leave encashment benefits, the learned counsel

would rely on Ext.P4 to contend that the leave encashment is

granted only for "ten days", whereas the petitioner is entitled for

such benefits at least for "33 days" per year.

In the result, the captioned writ petition would stand

disposed of as under:

i) The respondent to pass appropriate orders by

limiting the reduction in rank as ordered in

Exts.P1/P2 by applying the provisions of Rule 11

(1) (v) by limiting the same to a period of six

months from the date of dismissal - 09.09.2002.

ii) The respondent to rework the petitioner's retiral

benefits by applying the afore modifications.

iii) The respondent to notionally grant promotion to

the post of the Manager, w.e.f. 19.04.2005, in

view of the promotion granted on that date to the

junior to the petitioner.

iv) The respondent to rework the petitioner's retiral

benefits by taking note of the salary available to

the petitioner in the post of Manager from

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19.04.2005 till the date of superannuation.

v) The petitioner to file an appropriate

representation to the respondent claiming the

benefits of interest on the gratuity, which was

admittedly received by the respondent

Corporation in 2002, as well as the leave

encashment benefits with proper calculations,

within a period of three weeks from today.

vi) If such a representation is being filed, the

respondent to consider the afore and pass

appropriate orders after hearing the petitioner

also.

Sd/-

HARISANKAR V. MENON JUDGE ANA/anm

2025:KER:13024

APPENDIX OF WP(C) 11187/2019

PETITIONER'S EXHIBITS EXHIBIT P1 A TRUE COPY OF THE JUDGMENT PASSED BY THE LEARNED SINGLE BENCH OF THIS HON'BLE COURT IN WP(C)NO.28739/2005 DATED 20.01.2016.

EXHIBIT P2 A TRUE COPY OF THE JUDGMENT PASSED BY THE DIVISION BENCH OF THIS HON'BLE COURT IN WA 990/2016 DATED 23.06.2016.

EXHIBIT P3 A TRUE COPY OF THE PASS ORDER ISSUED BY THE KSWC DATED 05.12.2016.

EXHIBIT P4 A TRUE COPY OF THE PASS ORDER ISSUED BY THE KSWC DATED 23.01.2017.

EXHIBIT P5 A TRUE COPY OF THE PASS ORDER ISSUED BY THE KSWC DATED 23.01.2017.

EXHIBIT P6 A TRUE COPY OF THE GO(MS)186/77/GAD DATED 15.06.1977.

EXHIBIT P7 A TRUE COPY OF THE QUESTION DATED 23.03.2017 AND ANSWER DATED 26.04.2017 FURNISHED UNDER THE RTI ACT TO THE PETITIONER.

EXHIBIT P8                    A TRUE RELEVANT EXTRACT OF THE STAFF
                              PATTERN   REGARDING    THE   METHOD OF
                              APPOINTMENT TO DIFFERENT POSTS.
EXHIBIT P9                    A TRUE COPY OF THE PAY FIXATION ORDER
                              OBTAINED UNDER RTI.
EXHIBIT P10                   A COPY OF THE CORRECT PAY AND ALLOWANCES
                              STATEMENT DUE TO THE PETITIONER DURING

THE PERIOD FROM 09.09.2002 TO 31.05.2010 PREPARED BY THE SAME EXTERNAL AGENCY.

EXHIBIT P11 A COPY OF THE DUE AND DRAWN STATEMENT FOR THE PERIOD FROM SEPTEMBER 2002 TO MAY 2010.

EXHIBIT P12 A TRUE COPY OF THE REPRESENTATION DATED 10.09.2018 SUBMITTED BY THE PETITIONER FORWARDING EXHIBIT P10 AND P11.