Kerala High Court
C.P.Pradeepkumar vs Chairman And Managing Director on 31 October, 2018
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
WEDNESDAY,THE 31ST DAY OF OCTOBER 2018/9TH KARTHIKA, 1940
WP(C).No. 12038 of 2016
PETITIONER/S:
C.P.PRADEEPKUMAR
AGED 57, S/O.C.V.PRABHAKARAN, PRINTING MACHINE
OPERATOR, KERALA BOOKS & PUBLICATIONS SOCIETY,
KAKKANAD, COCHIN 682 030.
BY ADVS.
SMT.AYSHA YOUSEFF
SMT.M.KABANI DINESH
SMT.MOLLY JACOB
SMT.PRIYANKA SEBASTIAN
SMT.RABIA BEEGAM T.K.
SMT.SITHARA SHAMSUDEEN
SRI.C.M.EBRAHIM
SRI.JOBI.A.THAMPI
SRI.SHOUKATH HUSAIN
RESPONDENTS:
1 CHAIRMAN AND MANAGING DIRECTOR
KERALA BOOKS & PUBLICATION SOCIETY
KAKKANAD, COCHIN 682 030.
2 KERALA BOOKS PUBLICATION SOCIETY
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR,
KAKKANAD, COCHIN 682 030.
BY ADVS.
BY VISHNU S.(sc)
SRI.K.ANAND (SR.)
SMT.LATHA ANAND
SRI.K.ANAND (SR.)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
31.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 12038 of 2016 2
JUDGMENT
The petitioner was appointed in 1982 as a Printing Helper under the respondent society on the scale of pay of Rs.300 - 450. He was thereafter promoted as Letter Press Printer in 1993 on the scale of pay of Rs.825 - 1420. While so, on account of unauthorised absence, he came to be served with a charge memo/suspension order on 18.03.2004 (Ext.P3). In the charge memo, while proceeding against the petitioner for an unauthorised absence noticed between 16.03.2004 and 18.03.2004, mention was also made of similar such instances of unauthorised absence that had been noticed in the past, and petitioner was asked to submit his explanation to the charge memo. Though the petitioner submitted a reply to the charge memo, the same was found to be unsatisfactory and an Enguiry Officer was appointed to conduct an enquiry. The said enquiry culminated in Ext.P4 Enquiry Report, which found the petitioner guilty of the charges alleged against him. The respondents thereafter issued Ext.P5 notice proposing to impose a punishment of termination of service on the petitioner. WP(C).No. 12038 of 2016 3 The petitioner thereafter submitted an explanation against the proposed punishment and after a hearing in the matter, the disciplinary authority passed Ext.P7 order imposing a lesser punishment of demotion to the lower post of Printing Helper in the scale of Rs.3050 - 5230 and fixing his basic pay at Rs.3050/-. The petitioner was also held not entitled for wages during the suspension period and he was directed to report for duty from 01.01.2005. The service record of the petitioner would indicate that thereafter he was promoted as Printing Machine Assistant on 16.02.2012 and still later as Printing Machine Operator on 16.03.2015. He is said to have retired from service with effect from 16.11.2016. In the writ petition, the challenge is to Ext.P7 and P18 orders, the former being the order of the disciplinary authority passed on 27.07.2004, and the latter being the order dated 01.01.2016 rejecting his representation for taking a lenient view in the matter of punishment.
2. A counter affidavit has been filed on behalf of the respondent society wherein the circumstances leading to the issuance of Ext.P7 order is narrated. It is also stated that pursuant WP(C).No. 12038 of 2016 4 to Ext.P7 order, the petitioner accepted the same and joined duty on 01.01.2005 and Ext.P7 order was not challenged before any authority till 2016. The delay in approaching this Court against the said order is cited to contend that, the writ petition ought not to have been entertained by this Court. As regards the merits of the case, it is stated that the enquiry report clearly indicated that the petitioner was guilty of the charges alleged against him and, although a higher punishment was proposed, taking note of his financial situation as also his domestic circumstances, the respondents had decided to impose a lesser punishment of demotion to the lower post through Ext.P7 order. It is stated that thereafter, the petitioner had joined duty on 01.01.2005 and continued in service, availing the timely promotions, and had retired from service on 16.11.2016. A reply affidavit has been filed by the petitioner controverting the submissions in the counter affidavit and producing copies of the representations that were filed during the period between Exts.P7 and Ext.P18 orders.
3. I have heard the learned counsel appearing for the petitioner and also the learned Standing counsel appearing for the WP(C).No. 12038 of 2016 5 respondent society.
4. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that the petitioner had been proceeded against by the respondent society for his unauthorised absence on various dates, and the disciplinary proceedings that followed culminated in Ext.P7 order, which found the petitioner guilty of the charges levelled against him, but took a lenient view in the matter of punishment and imposed a lesser punishment than what was proposed in the show cause notice proposing punishment. The charges having been proved against the petitioner, and the procedure followed by the respondents having been in strict compliance with the rules of natural justice, I do not see any reason to interfere with the said proceedings in this writ petition that was filed almost 11 years after Ext.P7 order. Although counsel for the petitioner would submit that representations had been preferred before various authorities under the Government, the said representations cannot be traced to any provisions in the standing orders or the service rules pertaining to the organisation. The challenge to Ext.P7 order WP(C).No. 12038 of 2016 6 before this Court was only through the present writ petition, which was filed more than 11 years after the said order. Under the circumstances, the petitioner cannot be seen as someone who was vigilant in pursuing the matter against the respondent society. That apart, it is also worth noting that immediately after Ext.P7 order, the petitioner rejoined the services of the respondent society and continued to work there without demur, availing all the timely promotions till his retirement there from on 16.11.2016.
5. As regards the punishment imposed, I find that although the proposal initially mooted was for termination of the services of the petitioner, for the unauthorised absence noticed, taking note of his peculiar circumstances, the respondent management had thought it fit to reduce the punishment to one of demotion to the lower post. The said punishment cannot be seen as disproportionate when compared to the gravity of the misconduct found against the petitioner. Under such circumstances, I see no reason to interfere with the punishment imposed in Ext.P7 in these belated proceedings under Article 226 of the Constitution of India. Taking note of the apprehension expressed by counsel for the WP(C).No. 12038 of 2016 7 petitioner as regards the possible forfeiture of his long years of service prior to the demotion, it is made clear that the punishment imposed in Ext.P7 shall be seen only as demoting/reverting the petitioner to the lower post and shall not be seen as depriving the petitioner of the benefit of the years of service rendered in the organisation prior to the punishment. The writ petition is thus dismissed subject to the observations made above with regard to the tenure of service of the petitioner under the respondent society.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE mns WP(C).No. 12038 of 2016 8 APPENDIX PETITIONER'S/S EXHIBITS:
P1 PHOTO COPY OF THE INTIMATION REGARDING PROMOTION TO THE POST OF LETTER PRESS PRINTER DATED 28.6.1993 P2 PHOTO COPY OF THE CERTIFICATE ISSUED BY THE DOCTOR IN THE PRIMARY HEALTH CENTRE, KAKKANAD P3 PHOTO COPY OF THE CHARGE MEMO/SUSPENSION ORDER DT. 18.3.2004 P4 PHOTO COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER P5 PHOTO COPY OF THE NOTICE NO.1373/P&A2/2636 DTD.23.9.2004 P6 PHOTO COPY OF THE REPRESENTATION DATED 15.10.2004 P7 PHOTO COPY OF THE ORDER NO.1373/P&A2/3558 DTD. 27.12.2004 P8 PHOTO COPY OF THE STANDING ORDERS OF THE 2ND RESPONDENT P9 PHOTO COPY OF THE REPRESENTATION DATED
6.1.2005 SUBMITTED BY THE PETITIONER TO THE MANAGING DIRECTOR P10 PHOTO COPY OF THE REPRESENTATION DT.
WP(C).No. 12038 of 2016 9
4.3.2013 TO THE HON'BLE MINISTER FOR
PRINTING & STATIONERY
P11 PHOTO COPY OF THE REPRESENTATION TO
THE MINISTER THROUGH MLA ALUVA DTD.
13.11.2011
P12 PHOTO COPY OF THE LETTER NO.5089/H/11
DTD.17.3.2012 ADDRESSED BY THE
PRINCIPAL SECRETARY TO MLA, ALUVA
P13 PHOTO COPY OF THE REPRESENTATION TO
THE CHIEF MINISTER OF KERALA DTD.
4.3.2013
P14 PHOTO COPY OF THE PROMOTION ORDER
DATED 16.02.2012 AS PRINTING M/C
ASSISTANT
P15 PHOTO COPY OF THE PROMOTION ORDER
DTD.16.3.2015 AS PRINTING M/C OPERATOR P16 PHOTO COPY OF THE REPORT DTD. 7.1.2015 ADDRESSED BY THE RESPONDENT TO THE SECRETARY TO GOVT., PRINTING & STATIONERY DEPT P17 PHOTO COPY OF THE REPORT DTD.
22.4.2015 SUBMITTED BY THE 1ST
RESPONDENT TO THE SECRETARY TO
GOVERNMENT, PRINTING & STATIONERY DEPT P18 PHOTO COPY OF THE LETTER NO.7850/H/13 DTD.1.1.2016 ISSUED BY THE SECRETARY TO GOVT. TO THE PETITIONER P19 PHOTO COPY OF THE REPRESENTATION DTD.
27.1.2016 ISSUED BY KBPS EMPLOYEES ASSOCIATION TO THE RESPONDENT.
WP(C).No. 12038 of 2016 10PUBLIC INFORMATION OFFICER ALONG WITH THE COPY OF THE REPRESENTATIONS DATED 20.05.2006, 25,10.2009, 7.4.2008 AND 25.10.2013 RESPONDENTS EXHIBITS:NIL //TRUE COPY// P.A TO JUDGE WP(C).No. 12038 of 2016 11