IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 OP.NO. 25051 OF 1998(G) ----------------------------------- PETITIONER(S): ----------------------- S.K. THAHIR, S.S. MANZIL, MATHERUVAYALIL, THIRUMULLAVARAM, KOLLAM-12. BY ADV. SRI.N.RAGHURAJ, SMT.K.AMMINIKUTTY. RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HEALTH, GOVERNMENT SECRETRIAT, THIRUVANANTHAPURAM. 2. DHANWANTHARIKENDRA, DISTRICT HOSPITAL, KOLLAM, REPRESENTED BY ITS SECRETARY. 3. THE DISTRICT COLLECTOR, KOLLAM. 4. DR.S. VIJAYALEKSHMI, GOVERNMENT VICTORIA HOSPITAL, KOLLAM. 5. THE DISTRICT PLANNING OFFICER, KOLLAM. R1, R3 & R5 BY GOVT. PLEADER MR.ARAVINDKUMAR BABU R2 & R4 BY SRI.M.R.RAJENDRAN NAIR, SENIOR ADVOCATE, ADV. SRI.T.R.ASWAS, SRI.C.UNNIKRISHNAN (KOLLAM), SRI.M.R.HARIRAJ, SMT.REKHA VASUDEVAN, SRI.SURAJ.S., SMT.VINEETHA B. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.NO. 25051 OF 1998(G) ORDER ON CMP.NOS.44026, 44027 OF 1998 & 6910 OF 1999 IN O.P. NO. 25051 OF 1998 CLOSED 21/07/2010. SD/- ANTONY DOMINIC, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE MEMORANDUM OF ASSOCIATION AND RULES AND REGULATIONS OF THE 1ST RESPONDENT SOCIETY. EXT.P2: COPY OF THE APPOINTMENT LETTER ISSUED BY THE SECRETARY OF THE 2ND RESPONDENT TO THE PETITIONER. EXT.P3: COPY OF THE ORDER OF THE 2ND RESPONDENT DETAILING THE DUTIES OF THE OFFICE STAFF. EXT.P4: COPY OF THE MEMO DATED 11/06/1998 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXT.P5: COPY OF THE EXPLANATION DATED 02/07/1998 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT. EXT.P6: COPY OF THE ORDER DATED 04/07/1998 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXT.P7: COPY OF THE REPRESENTATION DATED 08/07/1998 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P8: COPY OF THE MEMO DATED 24/08/1998 FROM THE 4TH RESPONDENT TO THE PETITIONER. EXT.P9: COPY OF THE REPLY DATED 03/09/1998 FROM THE PETITIONER TO THE 4TH RESPONDENT. EXT.P10: COPY OF THE OFFICE ORDER DATED 02/11/1996 PASSED BY THE 4TH RESPONDENT. EXT.P11: COPY OF THE ORDER DATED 08/09/1998 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXT.P12: COPY OF THE REPRESENTATION DATED 14/09/1998 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P13: COPY OF THE MINUTES OF THE EXECUTIVE COMMITTEE MEETING OF THE 2ND RESPONDENT HELD ON 06/08/1994. OP.NO. 25051 OF 1998(G) EXT.P14: COPY OF THE NOTICE DATED 25/09/1998 FROM THE 5TH RESPONDENT TO THE PETITIONER. EXT.P15: COPY OF THE WRITTEN SUBMISSION FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT. EXT.P16: COPY OF THE REPRESENTATION DATED 15/10/1998 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P17: COPY OF THE LETTER DATED NIL FROM THE PETITIONER TO THE 3RD RESPONDENT. EXT.P18: COPY OF THE ORDER NO.PLG.286/97/ROLL DATED 04/04/1997 PASSED BY THE 4TH RESPONDENT. EXT.P19: COPY OF THE LETTER DATED 23/12/1998 FROM THE PETITIONER TO THE 3RD RESPONDENT. EXT.P20: COPY OF THE LETTER DATED 01/01/1999 FROM THE 2ND RESPONDENT TO THE PETITIONER. EXT.P21: COPY OF THE LETTER DATED 08/01/1999 FROM THE PETITIONER TO THE 2ND RESPONDENT. EXT.P22: COPY OF THE LETTER DATED 14/09/1998 FROM THE 2ND RESPONDENT TO THE PETITIONER. EXT.P23: COPY OF THE NEWS ITEM IN DESABHIMANI DAILY DATED 23/03/1999. EXT.P24: COPY OF THE NEWS ITEM IN DESABHIMANI DAILY DATED 25/03/1999. EXT.P25: COPY OF THE REPRESENTATION DATED 07/06/1999. EXT.P26: COPY OF THE REPRESENTATION DATED 23/06/1999. EXT.P27: COPY OF THE REMINDER DATED 03/06/2000. EXT.P27(a): COPY OF THE REMINDER DATED 21/08/2001. EXT.P27(b): COPY OF THE REMINDER DATED 16/04/2004. EXT.P28: COPY OF THE REMINDER DATED 08/04/2005. RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE ORDER NO.PLG.664/98/DPO DATED 04/06/1999 OF THE DISTRICT COLLECTOR, KOLLAM. EXT.R2A: COPY OF THE CLARIFICATION LETTER ISSUED BY SRI.THODADRI SARMA DY.COLLECTOR (RETD.) TO THE SECRETARY DHANWANTHARI DATED 15/01/1999. OP.NO. 25051 OF 1998(G) EXT.R2B: COPY OF THE ORIGINAL MINUTES OF MEETING DATED 06/08/1994. EXT.R2C: COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DATED 02/07/1998. EXT.R2D: COPY OF THE CERTIFICATE DATED 01/01/1999 ISSUED BY SECRETARY DHANWANTHARI KENDRA, KOLLAM TO THE PETITIONER. EXT.R2E: COPY OF THE LETTER DATED 24/09/1998. EXT.R2F: COPY OF THE COMMUNICATION DATED 23/11/1998 ISSUED BY THE SECRETARY DHANWANTHARI KENDRA TO THE DISTRICT PLANNING OFFICER, KOLLAM. EXT.R2G: COPY OF THE F.I.R. IN CRIME NO.255/1999 OF THE KOLLAM EAST POLICE STATION. //TRUE COPY// P.S. TO JUDGE rs. ANTONY DOMINIC, J. ------------------------- O.P. No.25051 of 1998 (G) --------------------------------- Dated, this the 21st day of July, 2010 J U D G M E N T According to the petitioner, on the basis of Ext.P13 minutes of the executive committee meeting of the 1st respondent held on 06/08/1994, the then Secretary issued Ext.P2 order appointing him as the Assistant Manager with effect from 01/09/1994. It is stated that after the 4th respondent assumed charge as the Secretary, proceedings were initiated against the petitioner culminating in Ext.P4 memo, where allegations of misconducts were levelled against the petitioner. The petitioner submits that he filed Ext.P5 reply denying the allegations. However, by Ext.P6 order dated 04/07/1998, describing the designation of the petitioner as Accountant (Office), the petitioner was placed under suspension. To Ext.P6, the petitioner submitted Ext.P7. The petitioner submits that without any opportunity or other proceedings, he was issued Ext.P8 memo dated 24/08/1998 calling upon him to show cause why penalty of severe warning shall not be imposed. To Ext.P8, he O.P. No.25051/1998 -2- submitted Ext.P9 explanation. Finally, Ext.P11 proceedings was issued imposing warning as proposed in Ext.P8 and directing the petitioner to work as Accountant (Office). The petitioner declined to resume duty as Accountant and made representation in the matter. These did not result in any order allowing him to work as Assistant Manager as claimed by him. 2. In the meanwhile, on identical allegations, he was also called upon to appear before the District Planning Officer as per Ext.P14, to which he submitted Ext.P15 explanation. It is thereafter that this original petition was filed challenging Exts.P6, P8, P11 & P14 and also for a direction to the respondents to permit him to rejoin duty as Assistant Manager. 3. In this original petition, this Court passed interim order dated 16/03/1999 in CMP No.6910/1999 directing that he will be reinstated as Assistant Manager. Against that order, the 4th respondent filed W.A.No.857/1999, which was disposed of by judgment dated 06/04/1999. By this judgment, the petitioner was directed to report for duty and the issue as to whether he was appointed as Assistant Manager as claimed by him or as Accountant O.P. No.25051/1998 -3- as claimed by the respondents was left open to be decided in the original petition. According to the petitioner, though he resumed duty again, he was again placed under suspension by Ext.R1(A) order dated 04/06/1999. 4. Insofar as this original petition is concerned, all that this Court is concerned, is the validity of Exts.P8, P11 & P14 and the question as to whether the petitioner was appointed as Assistant Manager as claimed by him. 5. As far as the disciplinary action which culminated in Ext.P8 and P11 orders are concerned, in my view, the punishment has been imposed in violation of the principles of natural justice. This is for the reason that a perusal of Ext.P8 shows that an enquiry was conducted by the District Planning Officer and that the District Planning Officer reported that the charges levelled against the petitioner in Ext.P6 were proved beyond doubt. The respondents have no case that the enquiry, report of which is relied on in Ext.P8, was with notice to the petitioner or with opportunity to him. Even the report of enquiry was not furnished to the petitioner. It is relying on the report and other undisclosed materials that punishment of O.P. No.25051/1998 -4- warning was proposed and confirmed against the petitioner. Therefore, Exts.P8 & P11 cannot be sustained and are accordingly quashed. 6. Insofar as the challenge against Ext.P14 is concerned, that proceedings did not result in any order against the petitioner, nor have the respondents communicated any order to the petitioner. Therefore, as far as the petitioner is concerned, no prejudicial action has been taken on the basis of Ext.P14 and therefore, the challenge against Ext.P14 is unnecessary, at least at this stage. 7. Now what remains is whether the petitioner was an Assistant Manager as claimed by him or Accountant (Office) as claimed by the respondents. The petitioner claims this status relying on Ext.P2 order of appointment, Ext.P3 allocation of duties, Ext.P10 letter allegedly issued by the Secretary and Ext.P13 minutes of the Executive Committee of the 1st respondent. On the other hand, respondents submit that these documents cannot be relied on. According to the respondents, out of these documents, Exts.P2 and original of Ext.P13 were fabricated by the petitioner to suit his convenience. Insofar as Exts.P3 & P10 are O.P. No.25051/1998 -5- concerned, it is stated that the Secretary issued the same without realising the consequences. The respondents also relied on Exts.P4, P6 & P11 in support of the contention that the petitioner was only an Accountant. It is also their case that they have set criminal law in motion against the petitioner on these allegations. From these, it is obvious that the question whether the petitioner was appointed as an Assistant Manager or as an Accountant is a question of fact, which is seriously disputed by the parties. Such a disputed question of fact, cannot be decided in a proceedings under Article 226 of the Constitution of India. Therefore, I refrain from considering this question and leave it open to the parties to be agitated in appropriate proceedings. This original petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg