IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 27TH JANUARY 2010 / 7TH MAGHA 1931 WA.No. 740 of 2007 -------------------- AGAINST THE JUDGEMENT IN WPC.23778/2005 Dated 01/03/2007 .................... APPELLANT: PETITIONER ------------------------ T.THANKACHAN, MANAGER GRADE-III, GOVERNMENT GUEST HOUSE, THYCAUD, THIRUVANANTHAPURAM (PRESENTLY WORKING AT GOVERNMENT GUEST HOUSE, ATTINGAL, THIRUVANANTHAPURAM. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): RESPONDENTS -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION (TOURISM) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, DEPARTMENT OF TOURISM, OFFICE OF THE DIRECTOR OF DEPARTMENT OF TOURISM, PARK VIEW, THIRUVANANTHAPURAM. BY SENIOR GOVT. PLEADER SRI.BENNY GERVASIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ------------------------------ W.A.No.740/2007 ------------------------------ Dated this, the 27th day of January, 2010 JUDGMENT Balakrishnan Nair, J. The appellant was the writ petitioner. The respondents herein were the respondents in the Writ Petition. 2. The brief facts of the case are the following: The appellant was appointed as Manager Grade III under the Tourism Department of the Government of Kerala, on the advice of the Public Service Commission, on 31.01.1997. Owing to fall in vacancies, he was retrenched from service on 18.9.1997 and re-appointed on 25.10.1997. It appears, he completed the period of probation, which was two years on duty within a continuous period of three years, by the end of 1999. But, his probation was not declared. While so, disciplinary proceedings were initiated against him by serving Ext.P1 memo of charges on 16.4.2001. Prior to that, he was placed under suspension on 2.2.2001 in contemplation of the WA No.740/2007 - 2 - disciplinary proceedings. The appellant submitted Ext.P2 reply, denying the allegations against him. An enquiry was ordered into the allegations against the appellant. The Enquiry Officer submitted a report, finding him guilty. The appellant was given a personal hearing by the 2nd respondent disciplinary authority on 28.9.2001 and he was served with a copy of the enquiry report also. Thereafter, the 2nd respondent issued Ext.P3 show cause notice on 5.10.2001, proposing the penalty of termination from service. The appellant submitted his reply to the said notice on 23.10.2001. The 2nd respondent, taking into account the materials on record, by Ext.P4 order dated 8.11.2001, terminated him from service. The appellant filed an appeal before the Government. The appeal was allowed as evident from Ext.P5 communication dated 4.3.2003. The Government set aside the order of termination of the appellant and a punishment of extending his probation for two more years was imposed on him. It was also ordered that he shall not be put in charge of any Guest House independently for a period of two years. In obedience to Ext.P5, the 2nd respondent issued WA No.740/2007 - 3 - Ext.P6 order dated 31.3.2003, reinstating the appellant as a probationer. After joining duty, the appellant preferred Ext.P7 review petition before the Government. The Government rejected it by Ext.P8 order on 30.1.2004. The Writ Petition was filed, challenging Exts.P5, P6 and P8. The respondents filed a counter affidavit, supporting the impugned orders and the appellant/writ petitioner filed a reply affidavit, dealing with the averments in the counter affidavit. The learned Single Judge, after hearing both sides, dismissed the Writ Petition. Hence this appeal by the writ petitioner. 3. The learned counsel for the appellant brought to our notice that the Government only ordered to extend the appellant's probation by two years. But, in purported implementation of Ext.P5, the 2nd respondent Director treated the appellant as a new entrant in service and he was treated as a fresh probationer from the date of reinstatement. In the meantime, many of the juniors of the appellant were promoted to the cadre of Manager Grade II. Even if Ext.P5 is taken as legal and valid, the maximum adverse consequence that could WA No.740/2007 - 4 - flow from it is that he should be treated as a probationer from the date of joining duty on 31.1.1997 and the period of probation stood extended from two years on duty to four years on duty. It is common ground that the appellant has already cleared the obligatory test of Account Test (Lower) within the prescribed time limit. In view of the above position, the appellant claims, in any view of the matter Ext.P6 should be set aside and he should be given the benefits flowing from Ext.P5. His seniority has to be restored and further, his claim for promotion has to be reconsidered, it is submitted. 4. We heard the learned senior Government Pleader for the respondents. In this case, we think, it is not necessary to go into the correctness of the findings entered by the Enquiry Officer against the appellant. They fall within the realm of disputed questions of fact. But, we agree with the appellant that even assuming that the punishment was validly imposed on him, now that the Government have reduced the punishment, he should be given the full benefit of Ext.P5 order. In the light of Ext.P5, we hold that Ext.P6 is unsustainable to the extent it WA No.740/2007 - 5 - treats the appellant as a new entrant in service. Though the said order does not in so many words state so, the 2nd respondent has proceeded on the footing that the appellant has to be treated as a new entrant in service, commencing probation with effect from the date he joined duty, based on Ext.P6. Since we have held Ext.P6 to be invalid partially, Ext.P9 order declaring the appellant's probation, treating him as having commenced probation after Ext.P6, being a dependent order, is void and unenforcible. We declare so. 5. In view of the above position, we think, the 2nd respondent Director should consider the remaining grievances of the appellant, in the light of the above orders passed by us. The appellant may highlight his grievances and file a representation before the 2nd respondent within one month from today, along with a copy of this judgment. In that event, the said respondent will afford an opportunity of being heard to him and pass appropriate orders, which shall be a speaking order dealing with the grievances of the appellant, within two months from WA No.740/2007 - 6 - the date of receipt of the representation along with the judgment. The Writ Appeal is allowed as above. K. Balakrishnan Nair, Judge. P.N.Ravindran, Judge. nm.