K.P.Anil Kumar Vs. State of Kerala - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE3D DAY OF SEPTEMBER201512TH BHADRA, 1937 WP(C).No. 23417 of 2006 (K) ---------------------------- PETITIONER(S): -------------------------- K.P.ANIL KUMAR MANAGER, KERALA STATE DEVELOPMENT CORPN. FOR CHRISTIAN CONVERTS FROM SCHEDULED CASTES AND THE RECOMMENDED COMMUNITIES LTD.(KSDC FOR CC & RC LTD) NAGAMBADAM, KOTTAYAM, R/AT.SHANTHI BHAVAN THU BY ADVS.SRI. S.V.BALAKRISHNA IYER (SR.) SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.HARISH R. MENON RESPONDENTS: ---------------------------- 1. STATE OF KERALA SECRETARY, SC AND ST DEVELOPMENT DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM.

2. THE KERALA STATE DEVELOPMENT CORPN. FOR CHRISTIAN CONVERTS FROM SCHEDULED CASTES AND THE RECOMMENDED COMMUNITIES LTD.(KSDC FOR CC & RC LTD) NAGAMBADAM, KOTTAYAM, REP. BY ITS CHAIRMAN.

3. THE MANAGING DIRECTOR, KERALA STATE DEVELOPMENT CORPN. FOR CHRISTIAN CONVERTS FROM SCHEDULED CASTES AND THE RECOMMENDED COMMUNITIES LTD., (K.S.D.C. FOR C.C. & R.C. LTD.), NAGAMBADAM KOTTAYAM.

4. SHRI. ASHOK KUMAR SINGH, I.A.S., FORMER MANAGING DIRECTOR, KERALA STATE DEVELOPMENT CORPN. FOR CHRISTIAN CONVERTS FROM SCHEDULED CASTES AND THE RECOMMENDED COMMUNITIES LTD. (K.S.D.C. FOR C.C. & R.C. LTD.), NAGAMBADAM, KTYM NOW WORKING AS DISTRICT COLLECTOR, PATHANAMTHITTA R,R2,3 BY ADV. SRI.M.P.MADHAVANKUTTY,SC,KSDC FOR CC&RC R1-3 BY ADV. SMT.A.P.LALY @ LALY VINCENT SPECIAL GOVT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON0309- 2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ::2:: WPC NO.23417 OF2006APPENDIX PETITIONERS EXHIBITS: EXT.P1: DATED66.1996 TRUE COPY OF THE JUDGMENT

OF THIS HON'BLE COURT IN OP NO.4059/1996 EXT.P2: DATED46.2004 TRUE COPY OF THE JUDGMENT

OF THIS HON'BLE COURT IN WPC NO. 4900/2004 G EXT.P3: DATED196.2006 TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE MANAGING DIRECTOR OF2D RESPONDENT EXT.P4: DATED127.2004 TRUE COPY OF THE ORDER

NO.E1/1867/2002/DCCC ISSUED BY2D RESPONDENT CORPORATION EXT.P5: DATED157.2004 TRUE COPY OF THE JUDGMENT

OF THIS HON'BLE COURT IN WPC NO.19082/2004 V EXT.P6: DATED167.2004 TRUE COPY OF THE MINUTES OF THE BOARD MEETING OF RESPONDENT NO.2 CORPORATION EXT.P7: DTATED238.2004 TRUE COPY OF THE SHOW CAUSE NOTICE BEARING NO. E1/1524/04/DCCC ISSUED BY THE4H RESPONDENT EXT.P8: DATED39.2004 TRUE COY OF THE REPRESENTATION MADE BY THE PETITIONER BEFORE THE CHAIRMAN OF THE2D RESPONDENT EXT.P9: DATED49.2004 TRUE COPY OF THE CHAIRMAN'S NOTE TO THE3D RESPONDENT EXT.P10: DATED NIL TRUE COPY OF THE MEMORANDUM OF ASSOCIATION OF THE2D RESPONDENT EXT.P11: DATED153.2004 TRUE COPY OF THE JUDGMETN OF THIS HON'BLE COURT IN WPC NO.927/2004 I EXT.P12: DATED256.2004 TRUE COPY OF THE ORDER

OF THIS HON'BLE COURT IN WPC NO. 18758/2004 EXT.P13: DATED89.2004 TRUE COPY OF THE PROCEEDINGS OF THE MANAGING DIRECTOR OF THE2D RESPONDENT CORPORATION EXT.P14: DATED2008.2004 TRUE COPY OF THE LETTER SENT BY RESPONDENT NO.3 TO RESONDENT NO.1 EXT.P15: DATED296.2006 TRUE COPYOFTHE JUDGEMNT OF THIS HON'BLE COURT IN WPC NO.26272/2004 ::3:: WPC NO.23417 OF2006EXT.P16: DATED126.1980 TRUE COPY OF THE G.O. MS NO.59/80/DD ISSUED BY THE RESPONDENT NO.1 EXT.P17: DATED252.2006 TRUE COPY OF THE MINUTES OF THE128H MEETING OF THE BOARD OF DIRECTORS OF THE2D RESPONDENT CORPORATION EXT.P18: DATED79.2004 TRUE COPY OF THE REPLY SUBMITTED BYTHE PETITIONER BEFORE THE3D RESPONDENT EXT.P19: DATED257.2007 TRUE COPY OF THE PROCEEDINGS NO. 6721/D1/2007/VG FROM THE1TRESPONDENT EXT.P20: DATED85.2006 TRUE COPY OF THE LEGAL OPINION SS NO.1/04/AG/VC8/01 BY THE ADVOCATE GENERAL EXT.P21: DATED1511.2005 TRUE COPY OF THE ORDER

IN CMP11932005 & 1202/2005 IN CC32OF2004OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE THRISSUR EXT.P22: DATED311.2000 TRUE COPY OF THE MINUTES OF THE MEETING OF THE CORPORATION EXT.P23: DATED303.2007 TRUE COPY OF THE COUNTER AFFIDAVIT OF RESPONDENT NO.2 IN WPC NO.31236/2006 EXT.P24: DATED63.2008 TRUE COPY OF THE MBA CERTIFICATE ISSUED TO THE PETITIONER BY MADURAI KAMARAJ UNIVERSITY EXT.P25: DATED248.2007 TRUE COPY OF THE ORDER

NO. KSDC/E2/1547/07 ISSUED BY THE CORPORATION. EXT.P26: DATED96.2012 TRUE COPY OF THE NEWS ARTICLE APPEARED IN THE KOTTAYAM EDITION OF MANGALAM DAILY EXT.R3(e): TRUE COPY OF THE RESPONDENTS EXHIBITS: EXT.R3(a): TRUE COPY OF THE DECISION OF THE BOARD OF DIRECTORS DT2612.1995 EXT.R3(b): TRUE COPY OF THE AGREEMENT EXECUTED BY THE PETITIONER ON2912.1995 EXT.R3): TRUE COPY OF THE SHOW CAUSE NOTICE DATED2002.1996 EXT.R3(d) TRUE COPY OF THE TELEGRAM SEND TO THE PETITIONER EXT.R3(e): TRUE COPY OF THE SHOW CAUSE NOTICE DATED57.96 EXT.R3(f): TRUE COPY OF THE REPLY NOTICE ::4:: WPC NO.23417 OF2006EXT.R3(g): TRUE COPY OF THE CERTIFICATE PRODUCED BY THE PETITIONER DT1210.1995 EXT.R3(h): TRUE COPY OF THE PROCEEDINGS No. c11519/95 DT297.96 EXT.R3(i): TRUE COPY OF THE LETTER DT111.2002 EXT.R3(j): TRUE COPY OF THE ORDER

DT87.98 EXT.R3(k): TRUE COPY OF THE MINUTES OF THE BOARD OF DIRECTORS DATED159.2000 EXT.R3(l): TRUE COPY OF THE JUDGMENT

IN O.P NO.28826/1999 EXT.R3(m): TRUE COPY OF THE LETTER ISSUED TO THE PETITIONER BY THE CORPORATION ON116.2002 EXT.R3(n): TRUE COPY OF THE JUDGMENT

IN CC NO. 635/2002 EXT.R3(o): TRUE COPY OF THE LETTER DT192.2003 SENT TO THE PETITIONER EXT.R3(p): TRUE COPY OF THE REPORT OF THE VIGILANCE DEPARTMENT DT.15.7.2003 EXT.R3(q): TRUE COPY OF THE REPORT OF THE EARLIER MANAGING DIRECTOR DT148.2001 EXT.R3(r): TRUE COPY OF THE LETTER DT202.2008 ISSUED BY THE DY. SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, KOTTAYAM EXT.R3(s): TRUE COPY OF THE LETTER DT138.2004 EXT.R3(t): TRUE COPY OF THE SHOW CAUSE NOTICE DT2308.2004 EXT.R3(u): TRUE COPY OF THE LETTER DT69.2007 ISSUED TO THE THEN MANAGING DIRECTOR BYTHE GOVERNMENT ::5:: WPC NO.23417 OF2006EXT.R3(v): TRUE COPY OF THE REPLY SEND TO EXT.R3(u) BY THE THEN MANAGING DIRECT0R EXT.R3(w): TRUE COPY OF THE ADVERTISEMENT DT1810.1995 PUBLISHED IN MATHRUBHUMI DAILY TRUE COPY P.A TO JUDGE jma K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No.23417 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 03rdh day of September, 2015

JUDGMENT

The petitioner challenges Ext.P13 order of termination issued by the Managing Director. The controversy arose with the termination of the petitioner on 27.07.1996 as per Ext.R3(h), which was made on the ground that the petitioner had not produced the certificate of his qualification. The petitioner, in fact was appointed as per Ext.R3(a), purely on a contract basis for one year. An agreement was entered into between the petitioner and the respondent Corporation produced at Ext.R3(b). The petitioner's appointment commenced from 1995 and was as the Secretary and Finance Manager of the Corporation and was to continue for one year, i.e, till 27.12.1996.

2. The petitioner was once, earlier to Ext.R3(h), terminated by the Managing Director which was challenged in O.P No. 4059/1996 produced at Ext.P1. The judgment dated 06.06.1996 WPC.No.23417/2006 :

2. : found that the petitioner would have the protection available to any other employee during the period of contract and any termination to be effected within that period would have to be in accordance with the law applicable. It was subsequent to Ext.P1 judgment that Ext.R3(h) was passed on 27.07.1996.

3. The petitioner is said to have initiated various litigations in the intervening period; the last of which was W.P(C) 19082/2004, the judgment of which is produced at Ext.P5. Before the writ petition was heard, the Managing Director of the respondent Corporation had by Ext.P4 dated 12.07.2004, reinstated the petitioner in the Corporation. The writ petition hence was disposed of recording such reinstatement. The reinstatement of the petitioner was ratified as per Ext.P6 order of the Board. Subsequently, again the Managing Director issued Ext.P7 show cause notice dated 23.08.2004; which was stayed by the Chairman of the 2nd respondent as per Ext.P9. Despite such stay order passed, WPC.No.23417/2006 :

3. : the Managing Director has continued with the proceedings against the petitioner and terminated him by Ext.P13 dated 08.09.2004.

4. The petitioner challenges Ext.P13 and also relies on Ext.P25 an order passed by the Board, which sanctioned prosecution against the petitioner, but however, asserts that the removal of the petitioner can be effected only by the Board. However, it is also submitted that Ext.P25 only sanctions a prosecution against the petitioner and does not deal with the removal as such.

5. In any event, it is to be noticed that the petitioner's appointment was only for a period of one year and the specific term in the agreement Ext.R3(b) reads as under :- "3. The service of the party of the first part may be terminated as follows:- (1)At the end of the first year by either party without notice. If the petitioner is continued WPC.No.23417/2006 :

4. : beyond one year, definitely two months notice had to be issued in accordance with clause (2)" 6. In such circumstance, the petitioner's right is to continue only for a period of one year. The petitioner was continued from 27.12.1995 to 27.07.1996; when he was terminated. His claim at best could have been only for continuation till 27.12.1996. Be that as it may, the petitioner was reinstated as per Ext.P4 on 04.06.2000. Even on reinstatement the petitioner had a claim only to be continued for the balance period of that one year, for which he was initially appointed.

7. The termination effected at Ext.P13 is without any enquiry and merely proceeded by a show cause notice. The termination if not one, which is a discharge simplicitor, it cannot be sustained for reason of no enquiry having been conducted (AIR1964SC441[Jagdish Mitter v. The Union of India], 1980(3) SCC459Managing Director, Utter Pradesh Warehousing Corporation WPC.No.23417/2006 :

5. : and Another v Vijay Narayan Vajpayee].

8. The show cause notice and Ext.P13 termination order lists out a number of reasons, amounting to misconduct; as against which no enquiry has been held. The above precedents declare that a discharge simplicitor would not require an enquiry.n There could be two modes of termination; one a dismissal in a punitive manner and the other a discharge simplicitor under the terms of the contract. It was held that, an enquiry into the aspect of whether the service of the temporary servant could be continued or not and a discharge on account of a finding against such continuance would not necessarily be a punitive discharge, since it is under the terms of the contract and does not at all cast any aspersion on the service or conduct of the employee. However, if the termination is one casting an aspersion on the service of the employee and on the basis of an alleged misconduct, then that would necessitate a formal departmental enquiry. WPC.No.23417/2006 :

6. :

9. The decision to terminate, was actuated by reason of the lapses in the service and conduct of the petitioner, which are highlighted and which was the basis of the invocation of such power. This definitely casts a stigma on the employee and the same has been done without affording an opportunity by way of a properly conducted disciplinary enquiry".

10. The Board of the Corporation also asserts the authority on itself as to the power for removal of the employees. In the totality of the circumstance, Ext.P13 cannot be sustained for reason of the Managing Director having no authority as also for reason of the termination not being in accordance with law; as directed in Ext.P1 judgment. However, even on Ext. P13 being set aside, there can be no order of reinstatement of the petitioner since the petitioner's appointment is purely on contract basis, and was to be continued only for one year. In such circumstance, on the reinstatement of the petitioner as per Ext.P4, the petitioner could WPC.No.23417/2006 :

7. : be continued only for the balance period of his original one year appointment. There shall hence be no reinstatement at this distance of time. The petitioner hence shall be treated as continuing for that one year period and any salary payable to the petitioner for the balance period shall be disbursed within a period of two months from the date of receipt of a certified copy of this judgment. Writ petition is partly allowed. No costs. Sd/- (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge