Kerala High Court
Harish K.P vs Sbi Life Insurance Company Ltd on 20 December, 2012
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
THURSDAY, THE 20TH DAY OF DECEMBER 2012/29TH AGRAHAYANA 1934
WP(C).No. 14970 of 2011 (U)
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PETITIONER(S):
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HARISH K.P.,
AGED 32 YEARS, S/O.K.P.PHALGUNAN, KAITHAKKATTU HOUSE,
EDAVILNGU P.O., THRISSUR DISTRICT, (BRANCH SALES MANAGER
(ON TERMINATION), SBI LIFE INSURANCE COMPANY), KALPETTA.
BY ADV. SRI.RENJITH THAMPAN
RESPONDENT(S):
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1. SBI LIFE INSURANCE COMPANY LTD,
KHADI TOWER, KALOOR, ERNAKULAM PN-682 017
REP.BY ITS SALES MANAGER.
2. ASSIATANT VICE PRESIDENT(HR)
SBI LIFE INSURANCE COMPANY LTD, CORPORATE OFFICE
"NATRAJ"M.V.ROAD & WESTERN
EXPRESS HIGHWAY JUNCTION ANDHERI (E)MUMBAI PIN-400069
R1,2 BY ADV. SRI.K.JAJU BABU
R1,2 BY ADV. SMT.M.U.VIJAYALAKSHMI
R1,2 BY ADV. SRI.T.S.SHYAM PRASANTH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10-08-2012, THE COURT ON 20-12-2012 DELIVERED THE FOLLOWING:
tss
W.P.(C) NO.14970/2011
APPENDIX
PETITIONER'S EXHIBITS:-
P1:- COPY OF THE LETTER DTD. 17.4.2007 ISSUED BY THE IST RESPONDENT.
P2:- COPY OF THE LETTER DTD. 4.11.2010 OF THE REGIONAL MANAGER.
P3:- COPY OF THE LETTER DTD. 26.11.2010 ISSUED BY THE PETITIONER.
P4:- COPY OF THE LETTER DTD. 26.11.2010 ISSUED BY THE REGIONAL MANAGER.
P5:- COPY OF THE COMMUNICATION ISSUED BY THE REGIONAL MANAGER DTD.
3.12.2010.
P6;- COPY OF THE LETTER DTD. 9.12.2010 ISSUED BY REGIONAL (HR) MANAGER.
P7 :- COPY OF THE LETTER DTD. 7.12.2010 ISSUED BY THE SENIOR DIVISIONAL SALES
MANAGER.
P8:- COPY OF THE LETTER DT. 8.12.2010 OF THE PETITIONER.
P9:- COPY OF THE SHOW CAUSE NOTICE DTD. 30.12.2010.
P10:- COPY OF THE EXPLANATION GIVEN BY THE PETITIONER DTD. 7.1.2011.
P11;- COPY OF THE SERVICE CONDITIONS OF THE IST RESPONDENT COMPANY.
P12:- COPY OF THE LETTER DT.D 28.3.2011 ISSUED BY THE ASSOCIATE VICE
PRESIDENT OF THE IST RESPONDENT COMPANY.
P13:- COPY OF THE REPRESENTAION FILED BY THE PETITIONER DT. 6.6.2011.
RESPONDENT'S EXHIBITS:-
R1(a):- COPY OF CERTIFICATE OF INCORPORATION DTD. 11.10.2000 ISSUED BY THE
REGISTRAR OF COMPANIES.
R1(b):- COPY OF LIST OF PRIVATE SECTOR LIFE INSURANCE COMPANIES IN THE
STATE.
R1(c):- COPY OF ORDER OF APPOINTMENT DTD. 9.9.06 OF THE RESPONDENT.
R1(d):- COPY OF REPRESENTATION SUBMITTED BY THE RESPONDENT TO THE
REGIONAL LABOUR COMMISSIONER ON 11.4.2011.
//TRUE COPY//
P.S. TO JUDGE
tss
P.N.RAVINDRAN, J.
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W.P.(C).No.14970 of 2011
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Dated this the 20th day of December, 2012
JUDGMENT
The petitioner, who was formerly working as Branch Sales Manager in SBI Life Insurance Company Ltd., the first respondent herein, has filed this writ petition challenging Ext.P12 letter dated 28.3.2011 sent by the second respondent informing him that his service stands terminated with immediate effect. The brief facts of the case are as follows:
2. The petitioner herein entered service as Unit Manager in the first respondent company at Thrissur on 9.9.2006. His initial appointment was on probation for a period of six months effective from 9.9.2006. After satisfactory completion of probation he was confirmed in service with effect from 9.3.2007, as stated in Ext.P1 letter dated 17.4.2007 issued by the second respondent. Later, in April, 2007 the petitioner was promoted as Territory Manager and in April, 2008 he was promoted as Branch Sales Manager and posted at Kodungallur. It is stated that based on his excellent performance the petitioner was given performance based salary W.P(C).No.14970 of 2011 -:2:- hike in 2009-2010, that he was the winner of Business Contest 2009, a sales initiative conducted by the first respondent company and that he was also given sales incentive bonus in the years 2009 and 2010. The petitioner has averred that while matters stood thus, in April 2010 he was transferred and posted as Branch Sales Manager, Kalpetta in Wayanad district, which it is stated, had a very little insurance business, that thereupon the petitioner worked as Branch Sales Manager at Kalpetta from May 2010 to September 2010, that on 10.10.2010 he met with an accident and was advised full rest, that he applied for medical leave for five days which was approved by the Divisional Office, Calicut, that even after five days he was not fit for travelling and was advised for complete rest for one month and therefore, he filed an application dated 15.10.2010 for extending the leave till 25.11.2010. It is stated that in the meanwhile Sri.P.N.Pradeeban, Regional Manager (HR), Chennai, called the petitioner over telephone on 13.10.2010 and asked him to resign from service failing which he was threatened with dismissal from service, that when the petitioner brought this fact to the notice of the higher authorities, the Regional Manager (HR), Chennai, again called him and scolded him for complaining to higher authorities, that the petitioner did not submit a letter of resignation as demanded, but W.P(C).No.14970 of 2011 -:3:- continued in service, but no communication was given regarding his application for leave till 25.11.2010. It is stated that later, the Regional Manager (HR), Chennai, sent Ext.P2 letter dated 4.11.2010 calling upon the petitioner to appear for medical examination in the designated centres at Calicut or Cochin within 48 hours of receipt of the letter failing which he was cautioned that his absence from office will be treated as unauthorized absence and action will be initiated against him.
3. The writ petition proceeds to state that as requested in Ext.P2, the petitioner appeared for medical examination at Kochi and submitted the medical records. It is stated that thereafter on 26.11.2010 the petitioner reported for duty at Kalpetta and sent Ext.P3 e-mail to Sri.C.Neeraj Narendran, Senior Divisional Sales Manager at Calicut informing him that he has joined duty in the Kalpetta office in the morning of 26.11.2010, that thereupon Sri.P.N.Pradeeban, Regional Manager, (HR), Chennai, sent Ext.P4 e-mail (at about 5.40 p.m. on 26.11.2010 itself) informing the petitioner that as he had availed leave since 11.10.2010 on reasons of sickness, he can join duty only after a fitness certificate is submitted, that by that e-mail he was called upon to contact the Medical Panel and to complete the check-up with them and then report after submission of the fitness status certificate. It is W.P(C).No.14970 of 2011 -:4:- stated that the petitioner again went to the agency referred to in Ext.P2 letter, underwent a medical check-up and produced the fitness certificate issued by the agency referred to in Ext.P2 letter and thereupon Sri.P.N.Pradeeban, Regional Manager, sent Ext.P5 e-mail dated 3.12.2010 advising him to report to Sri.C.Neeraj Narendran, Senior Divisional Manager, Calicut, that as directed in Ext.P5 he reported before Sri.C.Neeraj Narendran, Senior Divisional Manager, but he was asked to wait at Calicut and not to do any work, that apprehending that he would be blamed not attending Wayanad office he requested for a written order to that effect, that thereupon Sri.P.N.Pradeeban contacted the petitioner and informed him that unless he receives a written order by the evening of 4.12.2010 he can go back to Kalpetta office, that as no written order was received, he went back to Kalpetta office and resumed duty, that on 9.12.2010 the petitioner received Ext.P6 e-
mail sent by Sri.P.N.Pradeeban, Regional Manager (HR), Chennai, informing him that due to official exigencies it had been decided to depute him to Calicut office and he was accordingly advised to report to Calicut office vide e-mail dated 3.12.2010, that without authorization and on his own the petitioner has proceeded to Kalpetta office and as long as he does not report to Calicut office as already instructed, he will be treated as unauthorisedly absent W.P(C).No.14970 of 2011 -:5:- from duty.
4. It is stated that Sri.C.Neeraj Narendran, Senior Divisional Sales Manager, Calicut, had sent Ext.P7 letter dated 7.12.2010 alleging that as per e-mail dated 3.12.2010 sent from the Regional Office he was asked to report at Calicut office, that the petitioner reported before him at Calicut office and on instructions given by him the petitioner had signed the attendance register at Calicut, but the petitioner has on 7.12.2010 reported at Kalpetta office without any such instruction either from him or any other higher authority, that it is a clear instance of insubordination and therefore he should give an explanation within 24 hours of receipt of Ext.P7 letter as to why action should not be taken against him as per rules. It is stated that the petitioner thereupon submitted Ext.P8 letter dated 8.12.2010 pointing out that pursuant to Ext.P5 e-mail dated 3.12.2010 he reported before the Senior Divisional Manager, Calicut at 9 a.m. on 4.12.2010, that he was then informed that he was transferred to Calicut office and directed to sign the attendance register, that he accordingly signed the attendance register and when he enquired about the transfer order he was informed that the order would be received by noon, that as the order of transfer was not received by noon he had sent an e-mail to the Regional Manager (HR), Chennai and contacted W.P(C).No.14970 of 2011 -:6:- him over phone and the Regional Manager (HR), Chennai, in turn directed him to await the transfer order till the evening and if the order is not received, to continue at Kalpetta office on the next day, that these facts were informed to him orally and since no transfer order was received till the evening of 6.12.2010 on the next day he started working as Branch Sales Manager at Kalpetta office and since he had been appointed as Branch Sales Manager at Kalpetta by a written order it would not be proper for him to join at any other branch without the official permission of the competent authority. He contended that he has not committed any act of insubordination or disobeyed the orders of the Senior Divisional Sales Manager or any other higher authority and that there is no reason for taking any action against him as per rules. He also requested that his explanation may be accepted and the intended action may be dropped.
5. The Regional Sales Manager at Chennai thereupon issued Ext.P9 show cause notice dated 30.12.2010 calling upon the petitioner to show cause why disciplinary action should not be taken against him. The petitioner was also called upon to submit his reply by 7.1.2011, failing which he was informed that it will be presumed that he has nothing to say in the matter. By the said letter the petitioner was called upon to answer various charges set W.P(C).No.14970 of 2011 -:7:- out therein. Upon receipt of Ext.P9 show cause notice the petitioner submitted Ext.P10 reply dated 7.1.2011. By Ext.P12 letter dated 28.3.2011 the second respondent terminated the petitioner's service and informed him accordingly. Ext.P12 is under challenge in this writ petition.
6. The principal contention raised in the writ petition is that Ext.P12 is violative of the principles of natural justice, that the terms and conditions of service evidenced by Ext.P11 do not contemplate termination of service, that the penalties contemplated therein are: (a) reduction to a lower grade or post or lower stage in the pay scale; (b) compulsory retirement from service; (c) removal from service and (d) dismissal from service, that the procedure prescribed in paragraph 10(6) of Ext.P11 was not followed and an enquiry was not held before his services were terminated, that by Ext.P9 show cause notice the petitioner was called upon to show cause why disciplinary action should not be taken against him, that thereafter without framing charges and holding an enquiry Ext.P12 order terminating his services was passed and therefore, on that score also the impugned order is liable to be set aside. It is contended that the first respondent company, which is a subsidiary of a public sector undertaking and is bound to act fairly and reasonably, has terminated the W.P(C).No.14970 of 2011 -:8:- petitioner's services for no justifiable reason.
7. The first respondent had filed a counter affidavit dated 18.6.2011, In paragraphs 3 and 4 it is contended that the SBI Life Insurance Company Ltd., is a company incorporated under the Companies Act, 1956, that it is a joint venture between State Bank of India and the Cardiff Ltd. (now known as BNBB Assurance) and registered under the Insurance Regulatory and Development Authority to transact Life Insurance business and Annuity business, that the Central Government holds 59.41% shares in the State Bank of India and the State Bank of India holds only 74% of shares in the first respondent company and therefore, the first respondent is not an authority within the meaning of the term "State" occurring in Article 12 of the Constitution of India. It is contended that the Department of Financial Services, Ministry of Finance, Government of India, has classified the first respondent company as a Private Sector Life Insurance Company [vide Ext.R1(b)] and therefore, the first respondent is not a "State" within the meaning of Article 12 and consequently it is not amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. The counter affidavit proceeds to state that the petitioner was appointed as Unit Manager by Ext.R1(c) order dated 9.9.2006, that clause 11 W.P(C).No.14970 of 2011 -:9:- thereof provides for termination of service after giving three months' notice, that in the absence of notice three months salary is to be paid and that the petitioner's services were terminated as per letter dated 28.3.2011 by paying him three months' salary in lieu of notice. It is also contended that the petitioner has got an alternative remedy to challenge the impugned order by filing an application before the Managing Director and therefore, for that reason also the writ petition is liable to be dismissed.
8. The petitioner has filed an additional affidavit dated 25.6.2012 wherein it is stated that SBI Life Insurance Company Ltd. is a subsidiary of the State Bank of India, that the State Bank of India has 74% shares in the first respondent company, that the Chairman of the State Bank of India always holds the post of Chairman of the first respondent company in his capacity as Chairman of the State Bank of India, that seven out of the nine Directors of the first respondent, including its Managing Director, are either high officials of the State Bank of India deputed by the State Bank of India or nominated by the State Bank of India and therefore, the State Bank of India, which is a public sector undertaking has all pervasive control over the first respondent.
9. I heard Sri.Ranjith Thampan, learned Senior Advocate, appearing for the petitioner and Sri.K.Jaju Babu, learned counsel W.P(C).No.14970 of 2011 -:10:- appearing for the respondents. I have also gone through the pleadings and the materials on record. Ext.P12 letter dated 28.3.2011 by which petitioner's service was terminated, gives four reasons for terminating his service. It is stated that his service has not been found satisfactory, that he has made ineligible travelling allowance, taken leave under the pretext of medical treatment and has not reported at Calicut office as directed, but instead reported at Kalpetta branch on his own. It is also stated that he has violated clauses 9(3)(a), 9(3)(b), 9(3)(c) and 9(3)(d) of Ext.P11 and therefore, it has been decided to terminate his service in terms of para 6 thereof. The fact that the petitioner was appointed as Unit Manager on probation for a period of six months, that he was confirmed in service with effect from 9.3.2007, later promoted as Territory Sales Manager in April, 2007 and as Branch Sales Manager in April 2008, are not in dispute. The petitioner's initial appointment as Unit Manager was as per Ext.R1(c) letter dated 9.9.2006. Ext.R1(c) letter of appointment discloses that the appointment of the petitioner as Unit Manager took effect on 9.9.2006 and he was on probation for a period of six months. Ext.P1 produced along with the writ petition discloses that after evaluating his performance he was confirmed in service with effect from 9.3.2007. Ext.P1 letter W.P(C).No.14970 of 2011 -:11:- confirming the petitioner's service was issued by the second respondent way back on 17.4.2007. Later he was promoted as Territory Sales Manager in April, 2007 and as Branch Sales Manager in April 2008. The terms and conditions subject to which he was promoted have not been placed on record. There is also no averment to the effect that under the terms of the order promoting the petitioner as Territory Sales Manager and as Branch Sales Manager, the first respondent has the right to terminate his employment without assigning any reasons or by giving notice or by giving notice pay. As stated earlier, the petitioner's appointment as Unit Manager was confirmed after evaluating his performance which was found to be satisfactory. However, relying on para 6(1) of the Terms and Conditions of Service of Directly Recruited Officers (Ext.P11), his service was terminated by the impugned letter. The said letter also refers to clauses 9(3)
(a), 9(3)(b), 9(3)(c) and 9(3)(d) of Ext.P11.
6. Paragraph 6(1) of Ext.P11 reads as follows:-
"6. Resignation, Termination and Retirement.
(1) During the period of probation, an officer may resign from the service of the Company by giving at least one month's notice.
The Company may, during the period of probation, terminate the service of an officer by W.P(C).No.14970 of 2011 -:12:- giving the officer one month's notice or one month's basic salary in lieu thereof in case his/her work and/or conduct is not found to be satisfactory. Any officer promoted may be reverted to his/her earlier grade if his/her work and/or conduct are not found to be satisfactory during the period of probation."
(emphasis supplied)
10. Paragraph 6(i) of Ext.P11 extracted above stipulates that the company may, during the period of probation, terminate the service of an officer by giving the officer one month's notice or one month's basic salary in lieu thereof in case his/her work and/or conduct is not found to be satisfactory. It is also stipulated that any officer promoted may be reverted to his/her earlier grade if his/her work and/or conduct are not found to be satisfactory during the period of probation. The respondents have no case that the petitioner is a probationer. Though his initial appointment as Unit Manager was on probation for a period of six months as per Ext.R1(c) letter of appointment dated 9.9.2006, he was confirmed in service with effect from 9.3.2007, as can be seen from Ext.P1. He was thereafter promoted as Territory Sales Manager in April, 2007 and as Branch Sales Manager in April, 2008. The orders promoting the petitioner have not been produced by the respondents. The respondents have no case that W.P(C).No.14970 of 2011 -:13:- his promotion was also on probation. In such circumstances, as the petitioner was not a probationer, the first limb of rule 6(1) of Ext.P11 can have no application and his service cannot be terminated by giving one months notice or notice pay. Though under the second limb of rule 6(1) of Ext.P11 a promotee can be reverted during the period of probation if his work and conduct are not found to be satisfactory, the said provision will not enable the first respondent to terminate the service of the petitioner. Even the second limb of rule 6(1) would only enable reversion to the lower post of a person promoted, but on probation. As stated earlier, there is no material before this Court to establish the said fact. The petitioner was admittedly promoted as Territory Sales Manager in April, 2007 and as Branch Sales Manager in April, 2008. He was not a probationer at the time when Ext.P12 letter terminating his service was issued on 28.3.2011. It has therefore to be necessarily held that rule 6(1) of Ext.P11 can have no application to the case on hand.
11. Though rule 6(3) of Ext.P11 recognizes the right reserved in the company to terminate the service of an officer, if in the opinion of the company, his/her continuance in the service is detrimental to its interest, by giving him/her three months' notice in writing or three months' basic salary in lieu thereof, it is W.P(C).No.14970 of 2011 -:14:- evident from a reading of rule 6(5) that the said right can be exercised only if the contingencies stipulated in rule 6(5) exist. Rule 6 (3), (4) and (5) of Ext.P11 are extracted below:-
6. (3) The Company reserves the right to terminate the service of an officer, if in the opinion of the Company, his/her continuance in the service is detrimental to its interest, by giving him/her three months' notice in writing or three months' basic salary in lieu thereof.
(4) The officer shall be entitled to appeal against any order passed under clause 5(3) within 15 days to the Managing Director of the Company.
(5) The management's right to terminate the services of an officer may be exercised under the following circumstances:
(i) The officer, for any reason, has not been attending to his/her duties in the Company continuously for a period of 60 days or more after exhausting all leave due to him/her, or absenting without authorization for a continuous period of 30 days.
(ii) The person employed on the basis of a particular expertise or skill or qualification, ceases to possess the expertise or skill or qualification for any reason.
(iii) The officer, for two consecutive years in annual appraisal of his/her performance, has received a rating of Unsatisfactory Performance or equivalent thereto, and W.P(C).No.14970 of 2011 -:15:- despite the appraisal having been communicated to him/her, his/her performance has not improved.
(iv) The evidence to be relied upon to prove any misconduct on the part of the officer gets destroyed or any principal witness of misconduct becomes unavailable for reasons beyond the Company's control.
(v) There is such other cause as would reasonably lead the Company to believe that the retention of the officer in the employment of the Company would prejudice the Company's interest.
12. From a reading of sub-rules (3), (4) and (5) of rule 6 of Ext.P11 extracted above, it can be seen that the right to terminate the service of an officer recognized in sub-rule (3) of rule 6 can be exercised only if any one of the circumstances set out in rule 6(5) exist. The respondents have no case that the circumstances set out in clause (5) of rule 6 exist. In any case no material is produced before this Court to establish the fact that the circumstances mentioned in rule 6(5) of Ext.P11 exist. Therefore, the respondents cannot, in my opinion rely on rule 6(3) or 6(5) of Ext.P11 to terminate the service of the petitioner.
13. Ext.P12 letter terminating the service of the petitioner also refers to rule 9(3)(a), 9(3)(b), 9(3)(c) and 9(3)(d) of W.P(C).No.14970 of 2011 -:16:- Ext.P11. Rule 9(3) is extracted below in full:-
"9.(3) Every officer shall:
(a) faithfully carry out all lawful and reasonable orders and directions, which may from time to time be given to him/her by a superior.
(b) undertake and perform duties of the Company in such capacity and in such place as may be directed by the Company from time to time.
(c) at all times, take all reasonable and possible steps to ensure and protect the interests of the Company and discharge his/her duties with utmost integrity, honesty, devotion and diligence and do nothing that is unbecoming of an officer of the Company.
(d) maintain good conduct and discipline and show courtesy and attention to all persons in the performance of duties of the Company.
(e) submit a return, in the prescribed form, of his/her assets and liabilities as on the date of joining the Company, within one month thereof, and as on the 31st of March each year, giving full particulars of:
(i) immovable property inherited or owned or acquired or held on lease or mortgage, either in his/her own name or in the name of any member of his/her family or in the name of any other person.
W.P(C).No.14970 of 2011 -:17:-
(ii) shares, securities, debentures, cash, bank deposits and other movable property inherited or owned or acquired or held in own name or in the name of any member of family or in the name of any other person.
(iii) debts and other liabilities incurred by him/her directly or indirectly.
(iv) transactions in shares, securities, debentures ad investment in mutual fund scheme; etc., where the aggregate face value exceeds Rs.50,000/- during the financial year.
(f) report to the Company regarding every transaction concerning movable property of the value Rs.50,000/- or more, or regarding any immovable property owned or held either in own name or in the name of any member of the family. However, prior approval of the Company would be necessary if for ;immovable property the transaction is:
i. with a person or firm or Company obligated to the Company; or ii. with a person or firm or Company for whom the Company is rendering any service.
(g) promptly advise the Company when any complaint is filed against him/her alleging a civil/criminal offence and keep the Company informed of the developments in the matter W.P(C).No.14970 of 2011 -:18:- at least on a quarterly basis.
(h) make a declaration of fidelity and secrecy in the required format and shall be bound by the declaration"
14. Rule 9(3)(a) stipulates that every officer shall faithfully carry out all lawful and reasonable orders and directions, which may from time to time be given to him/her by a superior. Rule 9 (3)(b) stipulates that every officer shall undertake and perform duties of the company in such capacity and in such place as may be directed by the company from time to time. Rule 9(3)(c) stipulates that every officer shall at all times, take all reasonable and possible steps to ensure and protect the interests of the company and discharge his/her duties with utmost integrity, honesty, devotion and diligence and do nothing that is unbecoming of an officer of the company. Rule 9(3)(d) stipulates that every officer shall maintain good conduct and discipline and show courtesy and attention to all persons in the performance of duties of the company. Apart from vaguely stating that the petitioner has violated the Code of Conduct prescribed in rule 9(3)
(a), (b), (c) and (d) of Ext.P11, the respondents have not alleged how and in what manner the petitioner has misconducted himself. In the absence of any details, I am of the opinion that mere W.P(C).No.14970 of 2011 -:19:- reference to rule 9(3)(a), (b), (c) and (d) of Ext.P11 would not enable the respondents to terminate the service of the petitioner. If as alleged by the respondents the petitioner has violated the Code of Conduct set out in rule 9(3), the misconduct will have to be established in an enquiry held with notice to him. No reliance can therefore, be placed on rule 9(3)(a), (b), (c) and (d) of Ext.P11 to justify the order of termination.
15. From a reading of the various letters produced along with the writ petition it would appear that action has been taken against the petitioner for not remaining at Calicut office. It is not in dispute that the petitioner was transferred and posted at Kalpetta in Wayanad district. It is also not in dispute that after joining duty at Kalpetta he met with an accident and had taken leave for five days ending with 15.10.2010. It is also not in dispute that the petitioner had applied for extension of leave till 25.11.2010. It is also not in dispute that as directed by the Regional Manager, the petitioner had undergone medical examination at Piramal Diagnostics Services Pvt. Ltd., DDRC, Sahodaran Ayyappan Road, Panampally Nagar, Ernakulam and had also submitted medical records. While matters stood thus, Sri.P.N.Pradeeban, Regional Manager (HR), Chennai sent Ext.P5 e-mail at about 6.58 p.m. on 3.12.2010 advising the petitioner to W.P(C).No.14970 of 2011 -:20:- report before Sri.C.Neeraj Narendran, Senior Divisional Sales Manager, Calicut. By the said e-mail the petitioner was also informed that he will advise further course of action. The petitioner reported before the Senior Divisional Sales Manager, Calicut as directed, on 4.12.2010. Since no order transferring the petitioner to Calicut had been issued and the Senior Divisional Manager had not issued any order directing the petitioner to continue at Calicut, the petitioner went back to Kalpetta and thereafter the petitioner sent Ext.P6 e-mail at about 1.12 p.m. on 9.12.2010 to Sri.P.N.Pradeeban, Regional Manager, (HR), Chennai. requesting for instructions. The Regional Manager in turn sent an e-mail at 4.19 p.m. on 9.12.2010 stating that the petitioner has on his own proceeded to Kalpetta office and if he does not report at Calicut office he will be treated as unauthorisedly absent. It is relevant in this context to note that though the petitioner was posted initially by the competent authority as Branch Sales Manager at Kalpetta in Wayanad district, where he joined duty in May, 2010, the respondents had not issued a formal order transferring him to any other station or to Calicut. It would appear from the different e-mails produced along with the writ petition, especially Exts.P5 and P6, that Sri.P.N.Pradeeban, Regional Manager, (HR), Chennai and W.P(C).No.14970 of 2011 -:21:- Sri.C.Neeraj Narendran, Senior Divisional Sales Manager, Calicut, were subjecting the petitioner to harassment. No order formally transferring the petitioner from Kalpetta to Calicut has been placed on record. The respondents do not have a case that a formal order transferring the petitioner to Calicut office had been issued. It appears to me that an attempt was made by them to create a stalemate, subject the petitioner to harassment and also pave way for initiating disciplinary action against him. The respondents have not along with their counter affidavit produced the order transferring the petitioner from Kalpetta to Calicut or posting him at Calicut. From the materials on record the inference is irresistible that for no justifiable reason at all the Regional Manager (HR), Chennai and the Senior Divisional Sales Manager, Calicut were subjecting the petitioner to harassment. From the materials on record and the attendant circumstances and the conduct of the respondents, I am satisfied that Ext.P12 has been issued for no justifiable reason at all. I accordingly hold that Ext.P12 is patently arbitrary and discriminatory and that the respondents have without proving the commission of any act of misconduct by the petitioner misinterpreted the rules in Ext.P11 and terminated his service. I accordingly hold that he is entitled to succeed.
W.P(C).No.14970 of 2011 -:22:-
For the reasons stated above, I allow the writ petition, set aside Ext.P12 and direct the respondents to forthwith reinstate the petitioner in service. Needless to say that as the petitioner was not at fault and that his service was terminated illegally, he will be entitled to all consequential service benefits including salary and allowances. The parties shall bear their respective costs.
P.N.RAVINDRAN, Judge.
ahg.
P.N.RAVINDRAN, J.
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W.P.(C).No.14970 of 2011
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JUDGMENT 20th December, 2012