IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 WP(C).No. 6458 of 2004(R) -------------------------------- PETITIONER(S): ------------------- ISSAC JOHN, SENIOR MANAGER, KERALA STATE DRUGS & PHARMACEUTICALS LTD., KALAVOOR, ALAPPUZHA. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): -------------------- 1. KERALA STATE DRUGS AND PHARMACEUTICALS LIMITED, P.O. BOX NO.30, ALAPPUZHA, REPRESENTED BY ITS MANAGING DIRECTOR. 2. MANAGING DIRECTOR, KERALA STATE DRUGS AND PHARMACEUTICALS LIMITED, P.O. BOX NO.30, ALAPPUZHA. R1 & R2 BY ADV. SRI.B.SAJEEV KUMAR,SC,DRUGS & PHARMACEU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/11/2010, ALONG WITH WPC NO. 6732 OF 2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ WP(C).No. 6458/2004(R) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE OFFICE ORDER DATED 20/11/1997 ISSUED BY THE MANAGING DIRECTOR OF THE COMPANY. P2: COPY OF ORDER G.O.(MS)38/2000/ID DATED 09/03/2000. P3: COPY OF THE CERTIFICATE ISSUED BY THE MANAGER (PER & ADMN) DATED 04/02/2004. P4: COPY OF THE JUDGMENT DATED 22/09/2003 IN O.P.NO.30708/2000 OF THIS HON'BLECOURT. P5: COPY OF THE ORDER DATED 30/10/2003 ISSUED TO THE PETITIONER BY THE RESPONDENT. P6: COPY OF THE REPRESENTATION DATED 05/11/2000 SUBMITTED BY THE PETITONER BEFORE THE MANAGING DIRECTOR. P7: COPY OF THE REPRESENTATION DATED 15/11/2003 SUBMITTED BY THE PETITIONER BEFORE THE MANAGING DIRECTOR. RESPONDENT'S EXHIBITS: R1(a):COPY OF THE ORDER NO.KSDP/MD/F100/95 DATED 22/04/95. R1(b):COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT COMPANY IN O.P.9710/95 BEFORE THIS HON'BLE COURT. R1(c):COPY OF THE INTERIM ORDER DATED 25/03/96 PASSED BY THIS HON'BLE COURT IN CMP 8856/96 IN O.P.9710/95. R1(d):COPY OF THE LETTER NO.39524/D2/97/ID DATED 20/11/1997 ISSUED BY THE GOVERNMENT OF KERALA TO THE CHAIRMAN AND MANAGING DIRECTOR OF THE K S I E LTD. /TRUE COPY/ P.A. TO JUDGE svs/ S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)Nos. 6458 & 6732 of 2004 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of November, 2010 J U D G M E N T The petitioners in these two writ petitions were employees of the 1st respondent-company which is a Government company. While they were in service, disciplinary proceedings were initiated against them, which resulted in imposition of the punishment of discharge from service. Petitioners challenged the punishment by filing two writ petitions namely O.P. Nos.30708 of 2000 & 11158 of 2001. A union of employees also filed W.P. (C) No.24702/2001 in respect of the same subject matter. All these cases were considered together by a Division Bench of this court and Ext.P1 judgment was passed setting aside the orders of punishment and clarifying that it would be open to the management to proceed with the disciplinary proceedings afresh in accordance with law from the stage of consideration of the respective replies submitted by the W.P.(C)Nos. 6458 & 6732 of 2004 -2- petitioners, after the conclusion of the enquiry. Pursuant thereto, the respondents passed Ext.P2 order in W.P.(C) No.6732/2004 and Ext.P5 order in the other petition, whereby the petitioners were reinstated in service without any backwages or any allowance for the period they were kept under suspension and discharged. But it was directed that, the period will be reckoned for counting their service. In Ext.P2, certain amounts were also directed to be recovered from the petitioner in W.P. (C ) No.6732/2004. Petitioners are challenging Exts.P2 & P5 in their respective writ petitions. According to them, after having reinstated them without any punishment, they cannot be denied the monetary benefits of backwages during the period when they were kept out of service on account of the suspension and discharge. 2. Counter affidavits have been filed by the respondents justifying Exts.P2 & P5. 3. Originally the respondents took a contention that since the company has been declared as a “Relief W.P.(C)Nos. 6458 & 6732 of 2004 -3- Undertaking” under the Kerala Relief Undertakings (Special Provisions) Act, 1961 which continues to be so even today, the writ petitions cannot be proceeded with during the currency of the notification declaring the company as a relief undertaking. That contention is not sustainable in view of Section 4 read with the Schedule to the said Act wherein it has been specified that, only the provisions of the law specified in the Schedule to the Act, which involve any financial commitment, would be exempted from application in respect of a relief undertaking. The Schedule prescribes only four legislations namely the Industrial Disputes Act, 1947, the Minimum Wages Act 1948, the Travancore Cochin Shops and Establishments Act, 1125 and the Madras Shops and Establishments Act, 1947. The claims of the petitioners are not on the basis of any of those four legislations and therefore the declaration of the 1st respondent as a relief undertaking under the provisions of the Act will not affect the claims of the petitioners in this writ petition. W.P.(C)Nos. 6458 & 6732 of 2004 -4- 4. In Ext.P1 judgment, the ultimate direction is contained in paragraph 11 of Ext.P1 in W.P. (C) No.6732/2004 which reads as follows: “11. In view of the above, both the Writ Petitions are allowed. The impugned orders are set aside. It is, however, clarified that it shall be open to the competent authority to proceed afresh in accordance with law from the stage of the consideration of the respective replies submitted by the petitioners after the conclusion of the enquiry proceedings. Since the order passed by the punishing authority has been found unsustainable, even the two orders passed by the Appellate Authority cannot be sustained.” Ext.P2 in W.P. (C) No.6732 /2004 reads as follows: “Having considered all aspects of the matter, it has been decided to reinstate you in service with immediate effect, but without any back-wages or any allowance for the period you were kept under suspension and discharge. But that period will be reckoned for counting your service. In the letter of then Managing Director dated 3.9.02, it has been ordered to recover an amount of Rs.49,744.75 and Rs.21,742.17 and its interest @ 12% with effect from 1.10.97. The said recovery order stands. You are directed to remit the said amount, failing which the Company will be compelled to initiate further necessary action in this regard.” Ext.P5 in the other writ petition reads as follows: “Please refer to our letter No.KSDP/MD/F. 197/2003 dated 9.10.03 whereby you were granted personal hearing on the basis of the direction of the Hon'ble High Court of Kerala in O.P. 30708/2000. The personal hearing was conducted on 20.10.03 wherein you have fully participated and submitted your written representation as well. I have considered the said representation and have also gone through the entire file leading to the filing of the O.P. by you. I also happened to see a letter No.KSDP/MD/F. 197/2002 dated W.P.(C)Nos. 6458 & 6732 of 2004 -5- 3.09.02 issued by the then Managing Director, wherein he has imposed certain punishment on you. I have considered the same also. Having regard to the entire aspects and attendant circumstances of the case and also based on the representation at the time of personal hearing, it has now been decided to reinstate you in service with immediate effect, but without any back-wages or any allowance for the period you were kept under suspension and discharge. But that period will be reckoned for counting your service.” I don't have to think twice to hold that, Exts.P2 & P5 in the two writ petitions are prima facie not in accordance with the directions in Ext.P1 judgment. In Ext.P1 judgment, the management had been permitted to proceed afresh in accordance with law from the stage of consideration of the respective replies submitted by the petitioners after the conclusion of the enquiry. That would essentially mean that, after considering the replies of the petitioners, the disciplinary authority has to enter a finding as to whether he agrees with the findings of the enquiry officer in the enquiry and as to whether the petitioners are guilty of the misconducts alleged against them. Thereupon, there should be a decision on the punishment to be imposed on the petitioners. In Exts.P2 and P5 there is no specific finding W.P.(C)Nos. 6458 & 6732 of 2004 -6- that, the petitioners are guilty and that the disciplinary authority has decided to impose on them any punishment or not to impose a punishment. If I am to find that in Exts.P2 and P5 the disciplinary authority has not entered any finding as to the guilt of the petitioners, I have to necessarily quash the orders and direct the disciplinary authority to pass fresh orders. But I am of opinion that, the tenor of those orders are to the effect that although the petitioners are guilty the disciplinary authority had decided to reinstate them in service without any monetary benefits for the period during which they were kept out of service. But even then I am of opinion that, the respondents cannot simply deny the petitioners subsistence allowance due to them which is admittedly payable as per the service conditions of the petitioners. When their discharge from service was set aside by this court directing to pass fresh orders in the disciplinary proceedings, they must be deemed to be continuing under suspension since the disciplinary proceedings culminated in Exts.P2 & P5 orders. W.P.(C)Nos. 6458 & 6732 of 2004 -7- When this was pointed out, the learned counsel for the petitioners took time to ascertain from the clients as to whether they would be satisfied with a direction for payment of subsistence allowance and they now confine their relief for payment of subsistence allowance during the period when they were under suspension. In view of my finding that, the petitioners cannot be denied subsistence allowance during the period they were kept out of service, the respondents cannot take a stand that they will not pay subsistence allowance and with that condition only they had been reinstated in service. Exts.P2 & P5 are not orders pursuant to a settlement with the petitioners but a unilateral order. The respondents cannot make that unilateral order binding on the petitioners although they have been reinstated with that condition, especially when the petitioners have challenged the conditions in Exts.P2 and P5 within a reasonable time. That being so, the respondents are bound to pay subsistence allowance due to the petitioners from the date of suspension till they were W.P.(C)Nos. 6458 & 6732 of 2004 -8- reinstated in service. The petitioners in the two writ petitions namely W.P. (C) Nos.6732/2004 and 6458/2004 were under suspension from 15.07.2000 to 01.11.2003 and 15.4.2000 to 30.10.2003 respectively. It is declared that, the petitioners are entitled to be paid subsistence allowance during that period in accordance with the rules of the company. Accordingly these writ petitions are disposed of with a direction to the respondents to pay to the petitioners subsistence allowance due to them for the above said period as expeditiously as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. The contention of the petitioner in W.P.(C) No. 6732/2004 on the question of recovery of the amounts mentioned in Ext.P2 is left open to be agitated by the petitioner appropriately. S. SIRI JAGAN JUDGE shg/