IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933 W.A.No.1914 of 2011 ---------------------------------- AGAINST THE JUDGEMENR IN W.P.(C).No.22839/2005-R, DATED 30/11/2011 .................... APPELLANT/ADDITIONAL 4TH RESPONDENT:- ------------------------------------------------------------------ K.N.THANKAPPAN, PEON, CFD SCHOOL, MATHUR, PALAKKAD - 678 571. BY ADV. SRI.KRB.KAIMAL (SENIOR ADVOCATE) SRI.B.UNNIKRISHNA KAIMAL RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3:- ------------------------------------------------------------------------------- 1. THE MANAGER, CFD SCHOOL, MATHUR - 678 571. 2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (N) DEPARTMENT, THIRUVANANTHAPURAM - 695 001. 3. THE DEPUTY DIRECTOR (EDUCATION), PALAKKAD - 678 001. 4. A.RAVEENDRAN, PADMALAYAM, THAMANANGAD, MATHUR P.O., PALAKKAD - 678 571. R1 BY ADV .SRI.P.RAMAKRISHNAN. R2 & R3 BY GOVERNMENT PLEADER SRI.GEORGE MECHERIL. R4 BY ADV.SRI.M.A.ABDUL HAKHIM. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15/12/2011, ALONG WITH W.A.NO.1919 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- C.N.Ramachandran Nair & K.Vinod Chandran, JJ. --------------------------------------------------- W.A.Nos.1914 of 2011 & 1919 of 2011 --------------------------------------------------- Dated this, the 15th day of December, 2011 JUDGMENT C.N.Ramachandran Nair,J.: In the connected writ appeals, one filed by the Manager of the school and the other filed by a Peon, challenge is against the common judgment of the learned Single Judge directing reinstatement of the 3rd respondent in the writ appeal filed by the management (W.A.No.1919 of 2011). 2. We have heard learned counsel appearing for the appellants and also the counsel appearing for the 3rd respondent, the beneficiary of the judgment. 3. The 3rd respondent was proceeded against for unauthorised absence from the school. After enquiry, he was removed from service, against which the delinquent employee filed appeal before the Government. The Deputy Secretary, who heard the matter, issued orders upholding the finding of guilt, but held that the delinquent is entitled to the benefit of procedural lapses, in as much as after completion of enquiry, without giving sufficient time through show WA.Nos.1914 & 1919 of 2011 - 2 - cause notice punishment was imposed. Even though the clear finding is that the delinquent deserves exemplary punishment for his lapses, ultimately on account of the procedural lapses in not issuing show case notice before imposing punishment, the Government ordered reinstatement of the delinquent. It is against this order, the Management of the school and the employee who was appointed as substitute to the post of Peon, vacated by the 3rd respondent, filed separate writ petitions, which were heard and disposed of by the learned Single Judge. The learned Single Judge upheld the Government Orders, against which Writ Appeals are filed. 4. On going through the Government Order, confirmed by the learned Single Judge, what we notice is that the findings are self contradictory, in as much as even after holding the delinquent guilty of the charges levelled against him, the Government ordered his reinstatement, though without backwages. Both the Government as well as the learned Single Judge did not take into account the fact that the delinquent was out of service for the last seventeen years and in the position vacated by him, another person was appointed. Further, after holding that the delinquent is guilty of the charges levelled against him and after finding that he deserves exemplary punishment, WA.Nos.1914 & 1919 of 2011 - 3 - Government has chosen to order his reinstatement. We do not know how the findings and the relief granted go together. Exemplary punishment certainly does not mean re-induction in service, though without backwages. The learned counsel for the 3rd respondent submitted that he is left with five years more service and so much so, he should be reinstated. However, there is no post vacant as of now as the post left by him is already filled with another person, petitioner in W.P.(C).No.23016 of 2005, whose appointment was confirmed. Another vacancy that arose during the course of time is also filled up, by the appellant in W.A.No.1914 of 2011, and he is also awaiting approval of his appointment. The reinstatement order of the 3rd respondent, if given effect, will displace the appellant in W.A.No.1914 of 2011. The judgment in W.P.(C).No.23016 of 2005 is not challenged, since the petitioner therein is not affected by the directions issued in the common judgment. 5. After hearing all the parties concerned, we are of the opinion that the delinquent is entitled to a lighter punishment than what was originally awarded, even though he is not entitled to reinstatement in service. May be for the12 years he had been in service, he should get his retirement benefits and also be paid eligible pension. A person WA.Nos.1914 & 1919 of 2011 - 4 - who absented unauthorisedly for a long duration from service is not a person desirable in the service of the school. We, therefore, allow the Writ Appeals by vacating the judgment of the learned Single Judge and by dismissing W.P.(C). No.22839 of 2005 by modifying the orders impugned in the writ petition by ordering compulsory retirement, directing the management and the Government agencies to release his terminal benefits and also to start paying him eligible pension. Since compulsory retirement would take effect from the date of his removal from service, he is entitled to arrears of pension as well. It is directed that the gratuity, arrears of pension and other retirement benefits, etc. shall be paid within three months from the date of receipt of application for the same. Sd/- C.N.Ramachandran Nair, Judge Sd/- K.Vinod Chandran, Judge. vku/- - true copy -