Kerala High Court
The Honourable Mr.Justice C.K.Abdul ... vs By Advs.Sri.Elvin Peter P.J on 22 March, 2018
Bench: C.K.Abdul Rehim, V Shircy
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
THURSDAY, THE 22ND DAY OF MARCH 2018 / 1ST CHAITHRA, 1940
WA.No. 580 of 2018 IN WPC. 38107/2017
AGAINST THE JUDGMENT IN WP(C) 38107/2017 of HIGH COURT OF KERALA
APPELLANT/PETITIONER
JEEJO RAVEENDRAN
DEPUTY MANAGER, VEGETABLES & FRUITS PROMOTION COUNCIL
(OWNED BY GOVERNMENT OF KERALA) ALHALA BUILDING,
MAGHAM ROAD,AL AMIN PALLI, KANJANGAD PO, KASARAGOD - 671315.
BY ADVS.SRI.ELVIN PETER P.J.
SRI.K.R.GANESH
RESPONDENTS/RESPONDENTS:
1. THE CHIEF EXECUTIVE OFFICER
VEGETABLES AND FRUITS PROMOTION COUNCIL (KERALA)
MYTHRIBHAVAN, NEAR DOORADARSAN KENDRA, KAKKANAD,
KOCHI 682 037.
2. THE DIRECTOR (ADMINISTRATION & FINANCE
VEGETABLES AND FRUITS PROMOTION COUNCIL (KERALA)
MYTHRIBHAVAN, NEAR DOORADARSAN KENDRA, KAKKANAD,
KOCHI 682 037.
3. DISTRICT MANAGER
VEGETABLES AND FRUITS PROMOTION COUNCIL (KERALA),
COMPLAKAD PO, WAYANAD - 673 122.
4. SMT. PREETA A.K
ADVOCATE, KHCAA GOLDEN JUBILEE, NEAR HIGH COURT OF
KERALA, ERNAKULAM 682 031.
R1-R3 BY ADV. SRI. MAJNU KOMATH, SC, VEGETABLE AND FRUIT PROMOTION
COUNCIL KERALAM
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22-03-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.K.ABDUL REHIM & SHIRCY V.,JJ.
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Writ Appeal No.580 of 2018
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Dated this the 22nd day of March, 2018
JUDGMENT
C.K.Abdul Rehim,J.
The petitioner in W.P(C)No.38107/2017 is the appellant herein challenging the judgment dismissing the writ petition, under Section 5 of the High Court Act. The appellant, who is working as Deputy Manager under respondents 1 to 3, is facing disciplinary action based on the memo of charges issued to him on 28.5.2015. After submitting explanations to the memo of charges, he had approached this court on an earlier occasion in a writ petition, when he was informed about appointment of an Inquiry Officer. The said writ petition was disposed of through Ext.P6 judgment by directing the respondents to finalise the disciplinary action in accordance with law, within a period of three months from the date of receipt of a copy Writ Appeal 580/2018 2 of that judgment. Thereafter the present writ petition is filed challenging Ext.P11 order, through which the 1 st respondent had appointed the 4th respondent as Inquiry Officer based on the contention that, under the relevant provision contained in the Staff Regulations, appointment of an Advocate as Inquiry Officer is not permissible; and unless there is any specific provision which permits for appointment of an Advocate as the Inquiry Officer, the respondents cannot be permitted to conduct the enquiry through an Advocate.
2. While considering the writ petition, the learned Single Judge found that, the appellant had already approached this court in an earlier writ petition pointing out that an Advocate is going to be appointed as Inquiry Officer and the contentions in that respect was already considered in Ext.P6 judgment. Since it was found that the appellant had not raised the present challenges in the earlier writ petition and since Ext.P6 judgment was not challenged in Writ Appeal 580/2018 3 appeal, he cannot be permitted to raise the contentions in the present writ petition, which could have been urged in the first writ petition itself. The writ petition was dismissed by holding that, it is hit by constructive res judicata. The said judgment is impugned in the present appeal.
3. Heard; Counsel for the appellant and the Standing Counsel appearing for respondents 1 to 3.
4. We had occasion to peruse a copy of the writ petition filed in W.P(C)No.12717/2017 (the earlier writ petition). Challenge raised therein was against the Memo of Charges (produced as Ext.P8 in the said writ petition). But one among the exhibits produced by the appellant in that writ petition is a letter issued by the 1 st respondent, dated 23.3.2017, intimating about the decision to conduct a detailed enquiry through an Advocate. In paragraph 6 of the said writ petition, the appellant had raised a contention that, the enquiry by an Advocate Commissioner is not mentioned Writ Appeal 580/2018 4 anywhere in the Staff Regulations or under the Kerala Civil Service (CCA) Rules. In Ext.P6 judgment this court had observed that, in case an Advocate is appointed as Inquiry Officer and the inquiry is conducted consistent with the provisions contained in the Regulations, after affording sufficient opportunity to defend the enquiry, there is no reason for the appellant to be aggrieved by the action of continuing the disciplinary action. On the basis of the challenge raised by the appellant in W.P(C)No.12717/2017 and on the basis of the findings contained in Ext.P6 judgment, we are of the considered opinion that the conclusions arrived by the learned Judge in the judgment impugned, that the challenge raised is hit by constructive res judicata, need to be upheld.
5. Further, we are persuaded to consider the contentions on its merits. It is evident that, another lawyer was appointed as Inquiry Officer, prior to appointment of Writ Appeal 580/2018 5 the 4th respondent herein, as early as in June 2017. It is evident that the said Advocate had made a request to cancel his appointment, on the basis of objections raised by the appellant through letter dated 22.6.2017. It is evident from Ext.P7 that the said Advocate had forwarded a copy of the objections submitted by the appellant, to the 1st respondent and expressed his opinion that in view of the objections he is not in a position to conduct the enquiry against the appellant. It is thereafter that the 4 th respondent was appointed as Inquiry Officer, during October 2017. Evidently, the 4th respondent had conducted the first sitting on 27.10.2017, in which the appellant had again submitted Ext.P10 objections against further proceedings in the enquiry. There also the appellant had raised the very same contention that, the council of the organisation concerned has no power to appoint an Advocate Commissioner or external person as an Inquiry Officer under the Staff Writ Appeal 580/2018 6 Regulations. It is further evident that the objection was forwarded by the 4th respondent to the 1st respondent and the 1st respondent had communicated Ext.P11 letter to the 4th respondent pointing out that the relevant regulations will not prevent the appointing authority from appointing an Advocate as the Inquiry Officer. Thereafter, when the 4 th respondent had proceeded with the enquiry, the appellant had filed the present Writ Petition. From the conduct of the appellant as mentioned above, it is evident that he is making all attempts to get the enquiry prolonged by raising repeated challenges.
6. In the present Writ Petition, the challenge raised is based on the provisions contained in Chapter XVIII of the Vegetable and Fruit Promotion Council, Keralam (Staff Regulation) 2010. The sub clause dealing with formal enquiry and its procedure reads as follows;
b