Kerala High Court
Surendran P.K vs State Of Kerala on 21 January, 2000
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH
WEDNESDAY, THE 11TH DAY OF APRIL 2012/22ND CHAITHRA 1934
WP(C).No. 15845 of 2004 (J)
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PETITIONER(S):
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SURENDRAN P.K., PART-TIME SWEEPER,
VELLATHOOVAL GRAMA PANCHAYAT, VELLATHOOVAL.
BY ADVS.SRI.J.JULIAN XAVIER
SRI.FIROZ K.ROBIN
RESPONDENT(S):
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1. STATE OF KERALA, REPRESENTED BY ITS
SECRETARY, LOCAL ADMINISTRATION DEPARTMENT
GOVT.OF KERALA, THIRUVANANTHAPURAM.
2. DIRECTOR OF PANCHAYAT,
THIRUVANANTHAPURAM.
3. DEPUTY DIRECTOR OF PANCHAYAT
IDUKKI DISTRICT, THODUPUZHA.
4. SECRETARY, VELLATHOOVAL SPECIAL GRADE
PANCHAYAT, VELLATHOOVAL.
5. DEVIKULAM TOWN EMPLOYMENT EXCHANGE,
ADIMALY, REPRESENTED BY ITS OFFICER
IDUKKI DISTRICT.
BY ADV. GOVERNMENT PLEADER SRI.LIJU STEPHEN
BY ADV. SRI.P.P.JACOB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
15.3.2012, THE COURT ON 11.4.2012 DELIVERED THE FOLLOWING:
[ W.P.(C)NO. 15845/2004]
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: TRUE COPY O THE APPOINTMENT ORDER DATED 21.1.2000 ISSUED BY THE
4TH RESPONDENT.
EXT.P2: TRUE COPY OF THE ORDER PASSED BY THE 2ND RSPONDENT DATED
9.1.2001 AND THE CONSEQUENT COMBINED ORDER DATED 27.1.2001
PASSED BY THE 3RD RESPONDENT.
EXT.P3: TRUE COPY OF THE JUDGMENT DATED 16.9.2002 IN O.P.NO.3875/2001.
EXT.P4: TRUE COPY OF THE STATEMENT FILED ON BEHALF OF THE 3RD
RESPONDENT IN O.P.NO.3744/2001.
EXT.P5: TRUE COPY OF THE LETTER DATED 7.1.99 ADDRESSED TO 5TH
RESPONDENT.
EXT.P6: A TRUE COPY OF THE REQUISITION FORM DATED 7.1.99 FORWARDED BY
THE 4TH RESPONDENT TO THE 5TH RESPONDENT.
EXT.P7: TRUE COPY OF THE LIST DATED 29.4.1999 FORWARDED BY THE 5TH
RESPONDENT TO THE 4TH RESPONDENT PANCHAYAT FOR THE SELECTION
FOR THE POST OF PART-TIME SWEEPER.
EXT.P8: A TRUE COPY OF THE ORDER DATED 6.8.2002 PASSED BY THE 2ND
RESPONDENT.
EXT.P9: A TRUE COPY OF THE LATTER DATED 10.9.2002 FILED BY
PETITIONER BEFORE 4TH RESPONDENT.
EXT.P10: TRUE COPY OF THE JUDGMENT DATED 24.9.2002 IN
O.P.NO.26214/2002
EXT.P11: TRUE COPY OF THE LETTER DATED 25.1.2003 ISSUED BY THE 2ND
RESPONDENT.
EXT.P12: A TRUE COPY OF THE LETTER DATED 26.4.2004 ISSUED BY 2ND
RESPONDENT to the 4TH RESPONDENT.
EXT.P13: A TRUE COPY OF THE ORDER DATED 17.5.2004 ISSUED BY 4TH
RESPONDENT.
ADDITIONAL EXHBITS IN LIEU OF AMENDMENTS.
EXT.P14: A TRUE COPY OF THE ORDER DATED 1.7.2004 ISSUED BY 2ND
RESPONDENT.
EX .P15: A TRUE COPY OF THE ORDER DATD 3.1.2005 ISSUED BY THE 1ST
RESPONDENT.
ext.p16: A TRUE COPY OF THE ORDDER DATED 3.1.2005 ISSUED BY 1ST
RESPONENT.
EXT.P17: A TRUE COPY OF THE PETITION DATED 2.1.2006
EXT.P18: A TRUE COPY OF THE ORDER DATED 1.12.2005 REINSTATING
SMT.P.JANANAKI INTO SERVICE.
EXT.P19: A TRUE COPY OF THE REPRESENTATION DATED 1.11.2006
EXT.P2O: A TRUE COPY OF THE COVERING LETTER DATED 2.11.2006
EXT.P21: A TRUE COPY OF THE ORDER DATED 7.4.2007 REINSTATING THE
PETITIONER BACK TO SERVICE.
RESPONDENTS' EXHIBITS:
EXT.R2(A): TRUE COPY OF THE JUDGMENT DATED 16.3.2004 IN W.A.NO.1953
&1954/03.
EXT.PR2(B): TRUE COPY OF COMMMUNICATION DATED 1.6.2004 TO 4TH
RESPONDENT.
EXT.R2(C): TRUE COPY OF LETTER DATED 26.3.2003 OF ADIMALY TOWN
EMPLOYMENT EXCHANGE.
EXT. R2(D): TRUE COPY OF G.O.(RT) NO/ 177/04 /VIG. DATED 3.6.2004.
// TRUE COPY //
P.S. TO JUDGE.
BABU MATHEW P. JOSEPH, J.
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W.P.(C). No. 15845 of 2004
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Dated this the 11th day of April, 2012
JUDGMENT
The petitioner is a Part-time Sweeper in the fourth respondent Panchayat. The fifth respondent Employment Exchange sent Ext.P7 list of candidates to the fourth respondent on the basis of Ext.P5 letter and Ext.P6 requisition dated 7.1.1999 of the fourth respondent for considering appointment as Part-time Sweeper. After due selection process, the petitioner was selected and by Ext.P1 order dated 21.1.2000 he was appointed as a Part-time Sweeper in that Panchayat. While so, the second respondent issued Ext.P2 letter dated 9.1.2001 directing to cancel the appointment in the part-time posts in different Panchayats in Devikulam Taluk including that of the petitioner on the ground that the appointments were irregular. The third respondent has communicated Ext.P2 to different Panchayats including the fourth respondent for immediate compliance. The petitioner filed O.P.No.3875 of 2001 before this Court challenging Ext.P2. Ext.P2 was stayed by issuing an interim order. Subsequently, since a [W.P.(C) No.15845/2004] 2 Division Bench of this Court has quashed Ext.P2, that Original Petition was closed as no further orders were required. It was also declared in that judgment that the petitioner cannot be sent out of service on the strength of Ext.P2.
2. The second respondent has issued Ext.P8 order dated 6.8.2002 cancelling the appointments in part-time posts in different Panchayats including that of the petitioner after conducting an enquiry on the basis of the directions issued by this Court. Ext.P8 was issued without notice to the petitioner. Since the fourth respondent Panchayat initiated urgent steps for terminating the service of the petitioner, he has filed O.P.No.26214 of 2002 challenging Ext.P8. That Original Petition was disposed of by Ext.P10 judgment dated 24.9.2002. This Court found that the petitioner was not heard before passing Ext.P8 order even though the second respondent was directed to consider the matter with notice to all affected persons. Therefore, Ext.P8 was quashed and directed the second respondent to reconsider the matter after issuing notice to the petitioner within three months from the date of receipt of a copy of Ext.P10. Also directed in that judgment that while issuing notice, the reasons for the proposed termination of the petitioner other than those [W.P.(C) No.15845/2004] 3 given in Ext.P8 shall be shown in it so that the petitioner can effectively answer them. It was further directed in that judgment that the petitioner should be reinstated in service forthwith.
3. Thereafter, the petitioner was served with Ext.P11 notice dated 25.1.2003 of the second respondent directing him to appear before the second respondent on 5.2.2003 for hearing. No fresh reasons have been shown in Ext.P11 for the proposed termination of the petitioner from service. Even though the petitioner was heard on 5.2.2003, nothing was heard from the second respondent. While so, to the utter dismay of the petitioner, the second respondent issued Ext.P12 letter dated 26.4.2004 directing different Panchayats including the fourth respondent to implement his Ext.P8 order dated 6.8.2002 i.e., to terminate the appointments made in part-time posts, including that of the petitioner, in different Panchayats. Ext.P12 was issued in violation of Ext.P10 judgment. Based on Ext.P12, the fourth respondent issued Ext.P13 order dated 17.5.2004 terminating the service of the petitioner with effect from 17.5.2004. Aggrieved by Exts.P12 and P13, the petitioner has preferred this Writ Petition. [W.P.(C) No.15845/2004] 4
4. This Court, as per interim order dated 3.6.2004, directed to reinstate the petitioner in service forthwith. Also directed to consider and dispose of the matter referred to in Ext.P10 judgment within one month. Thereafter, the second respondent has issued Ext.P15 notice to the petitioner directing him to appear before the second respondent on 30.6.2004 for hearing. In this notice also, no fresh reasons have been shown for the proposed termination of the petitioner from service. The petitioner appeared before the second respondent on 30.6.2004. The second respondent, without considering the relevant aspects, issued Ext.P14 order dated 1.7.2004 terminating the service of the petitioner.
5. The first respondent Government issued Ext.P16 order dated 3.1.2005 suspending the petitioner from service along with another based on the fact that a vigilance case was registered against 18 employees and the investigation was pending. Thereafter, as per Ext.P21 order dated 7.4.2007 of the second respondent, the petitioner was reinstated in service. The petitioner has amended this Writ Petition incorporating the events after filing the same and also raising additional prayers for [W.P.(C) No.15845/2004] 5 quashing Ext.P14 and for regularising the period under suspension and for disbursing all the service benefits to the petitioner for that period.
6. The second respondent and the fourth respondent have filed their counter affidavits.
7. I have heard the learned counsel appearing for the petitioner, the learned Government Pleader appearing for the respondents 1 to 3 and 5 and the learned counsel for the fourth respondent.
8. The petitioner is a Part-time Sweeper. He is now aged 46 years. He was appointed as Part-time Sweeper in the fourth respondent Panchayat by order dated 21.1.2000. This is the third time he is approaching this Court for the very same purpose i.e, against termination of his service. Learned counsel for the petitioner submitted that as per Ext.P5 letter and Ext.P6 requisition of the fourth respondent Panchayat, the fifth respondent has sent Ext.P7 list dated 29.4.1999 containing the names of 10 persons including the petitioner for considering for appointment as Part-time Sweeper in the fourth respondent Panchayat. The petitioner is the sixth person in Ext.P7. Ext.P7 is signed by the Employment Officer N.Jayaprakash. The second [W.P.(C) No.15845/2004] 6 respondent has not disputed Exts.P5 to P7 documents or the averments made in respect of them. The fourth respondent, in their counter affidavit, admitted that Exts.P5 and P6 were forwarded to the Employment Officer and a list of persons has been received from the Employment Exchange and the petitioner was selected and by Ext.P1 order appointed him as Part-time Sweeper. In the first Writ Petition, O.P.No.3875 of 2001, filed by the petitioner, a statement filed by the third respondent in O.P.No.3744 of 2001 was adopted. Ext.P4 is that statement. This is not disputed in the counter affidavit. No specific allegation was raised against the petitioner in Ext.P4 statement, but the appointment from bogus list was alleged in the case of certain others in different Panchayats, he further submits.
9. This Court, by Ext.P10 judgment, quashed Ext.P8 and directed to reconsider the matter after issuing notice to the petitioner. It was also specifically directed that while issuing notice, the reasons for the proposed termination of the petitioner other than those given in Ext.P8 shall be shown so that the petitioner can effectively answer them. The only allegation stated in Ext.P8 in respect of the list of candidates sent to the fourth respondent Panchayat is that the names shown in that list [W.P.(C) No.15845/2004] 7 are not in proper order. What should have been the proper order of the names in the list sent from the Employment Exchange to the fourth respondent Panchayat has not been explained in Ext.P8. In the light of the direction issued by this Court in Ext.P10, the second respondent was duty bound to show in the notice the reasons, if any, existed for the proposed termination of the service of the petitioner other than the reason stated in Ext.P8. But, the second respondent neither in Ext.P11 notice nor in Ext.P15 notice has stated any fresh reason for the proposed termination of the petitioner from service. But, the second respondent, in Ext.P14 order issued by him terminating the service of the petitioner, has stated some other reasons. They are: (1) the list said to have sent to the fourth respondent Panchayat was irregular and improper as revealed in the enquiry conducted by the Employment Director; (2) the names of the candidates included in the list said to have sent from the Employment Exchange and the names of the candidates included in the list considered by the Secretary of the fourth respondent Panchayat were seen different; and (3) since the appointments of Part-time Sweepers in five Grama Panchayats in Idukki District including in the fourth respondent were irregular [W.P.(C) No.15845/2004] 8 and based on a conspiracy, the Vigilance and Anti-Corruption Wing had registered a case and it was being investigated.
10. The first two reasons were stated to have been reported by the Employment Officer of the fifth respondent Employment Exchange. The said report of the Employment Officer is produced as Ext.R2(c) along with the counter affidavit of the second respondent. The reason is vaguely stated in Ext.P8. No specific allegation has been raised against the petitioner in Ext.P8. Similarly, the first two reasons are vaguely stated in Ext.P14 without the necessary details. Whether any list has been sent to the fourth respondent Panchayat from the fifth respondent employment Exchange? If a list was sent to the fourth respondent from the fifth respondent, why should that fact be noted as a list 'said to have sent'. How many candidates were included in the 'irregular and improper' list sent from the fifth respondent and how many candidates were included in the list considered by the Secretary of the fourth respondent Panchayat? Who were they? What actually was the difference in the names? No list sent from the Employment Exchange or considered by the fourth respondent Panchayat has been produced? The names of the candidates included in the list have [W.P.(C) No.15845/2004] 9 not been stated. No report of the Employment Director has been produced. Based on what material, the Employment Director has arrived at his conclusions. Nothing is forthcoming. The petitioner was suspended from service, based on the vigilance case, by Ext.P16 order. He was reinstated in service by Ext.P21 order. If the vigilance case was true, why the petitioner was reinstated in service. What was the result of the investigation in that vigilance case? No answer is forthcoming. The second respondent has not stated the reasons stated by him in Ext.P14 for the termination of the petitioner either in Ext.P11 or in Ext.P15 notice issued. This is gross violation of the direction, with regard to the notice, issued by this Court in Ext.P10 judgment. Such reasons, as stated in Ext.P14, should have been incorporated in Exts.P11 and P15 notices enabling the petitioner to give an effective answer to them. But that was not done in violation of Ext.P10 judgment. When a direction is issued by this Court, the authorities like the second respondent are duty bound to scrupulously follow and implement the same. The petitioner, who has already become overaged for public employment and who was appointed as Part-time Sweeper in the fourth respondent Panchayat about 12 years back, was compelled to approach this [W.P.(C) No.15845/2004] 10 Court thrice for protecting his employment. If the respondents 1 to 3 have any genuine case against the petitioner, they could have taken steps for terminating his service by showing sufficient and cogent reasons. But, in spite of the direction of this Court, without complying with the same and in an arbitrary way, the second respondent has issued Exts.P11 and P15 notices and also Ext.P14 order terminating the service of the petitioner. This is illegal and hence, Ext.P14 is liable to be quashed. Since it is explained in the counter affidavit that Ext.P12 letter, directing to implement Ext.P8 order of the second respondent, happened to be issued mistakenly and Ext.R2(b) letter dated 1.6.2004 has been issued by the second respondent to the fourth respondent Panchayat directing not to apply Ext.P12 in the case of the petitioner, the question of quashing Ext.P12 and the consequential order Ext.P13 does not arise as Exts.P12 and P13 are not in force. Ext.P14 order is quashed.
11. In the light of the foregoing discussions and observations, this Court is of the view that this Writ Petition can be disposed of by issuing the following directions:-
(1) The second respondent is free to proceed against the petitioner for terminating his service with the fourth [W.P.(C) No.15845/2004] 11 respondent Panchayat if sufficient and valid reasons are existed for the same.
(2) If the second respondent so proceeds against the petitioner, a notice incorporating all such reasons and the supporting documents enabling the petitioner to effectively answer them shall be served on him. (3) The petitioner shall be afforded an opportunity of being heard including the opportunity of making his representation, if any, before passing orders on the matter by the second respondent.
(4) The second respondent shall specifically look into the contentions raised by the petitioner as noted in this judgment and the observations made in this judgment while disposing of the matter.
(5) The second respondent shall consider and dispose of the matter within a period of three months from the date of receipt of a copy of this judgment. The Government Pleader concerned shall make available a copy of this judgment to the second respondent. (6) Unless and until a valid order of termination is passed by the second respondent after considering the matter [W.P.(C) No.15845/2004] 12 as directed, the petitioner shall not be terminated from service.
(7) If the petitioner's appointment as Part-time Sweeper in the fourth respondent Panchayat is found to be proper by the second respondent, the petitioner shall be entitled to have regularised the period of his suspension from service as if there was no suspension and all service benefits, after deducting the subsistence allowance, if any, received by him, shall be given to him.
This Writ Petition is disposed of as above.
Sd/-
BABU MATHEW P. JOSEPH, JUDGE.
krs.