IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 RP.No. 782 of 2009(B) ------------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.25006/2008 DATED 19/11/2008 .................... REVIEW PETITIONERS/RESPONDENTS NOS.3 TO 5 -------------------------------------------------------------------------- 1. M. RADHAKRISHNAN, CONVENER, DISCIPLINARY SUB COMMITTEE, MUTHALAMADA (WEST) KSHEERA VYAVASAYA SAHAKARANA SANGAM LTD.NO.P3(D), NANDANKIZHAYA, ANAMARI POST, KOLLENGODE-678 506. 2. PRESIDENT, MUTHALAMADA (WEST) KSHEERA VYAVASAYA SAHAKARANA SANGAM LTD.NO.P3(D), NANDANKIZHAYA, ANAMARI POST, KOLLENGODE-678 506. 3. MUTHALAMADA (WEST) KSHEERA VYAVASAYA SAHAKARANA SANGAM LTD.NO.P3(D), NANDANKIZHAYA, ANAMARI POST, KOLLENGODE-678 506. REPRESENTED BY ITS SECRETARY, RAJAN.R., AGED 45 YEARS, SON OF RAMANKUTTY. BY ADV. MR.H.B.SHENOY, MR.B.ASHOK SHENOY, SMT.LAKSHMI B.SHENOY. RESPONDENTS/PETITIONER & RESPONDENTS NOS.1 TO 2 ------------------------------------------------------------------------------------- 1. A.C. JAILAVUDEEN, MANCHIRA HOUSE, ANAMARI P.O., KALLAMKODE, PALAKKAD-678 506. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, AGRICULTURE (DIARY) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF DIARY DEVELOPMENT, OFFICE OF THE DEPUTY DIRECTOR OF DIARY DEVELOPMENT CIVIL STATION, PALAKKAD. R2 & R3 BY GOVERNMENT PLEADER MR.I.V. PRAMOD. R1 BY ADV. MR.N.RAGHURAJ. THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 01/02/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. THOTTATHIL B.RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = R.P.782 of 2009 in W.P.(C).25006 of 2008-B = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 1st day of February, 2010. O R D E R 1.The judgment sought to be reviewed was issued setting aside the disciplinary proceedings which stood affirmed in proceedings under Rule 176 of the KCS Rules. While it may be true that Rule 176 may not enable adjudication of individual rights referable to disciplinary proceedings because that may not emanate out of a resolution of the society, the fundamental principle on which the judgment sought to be reviewed was issued is that the enquiry against the writ petitioner was conducted by an advocate who later appeared for the employer society to justify his own enquiry report before superior authorities. Such procedure had stamped the proceedings with vice on its forehead. It had infracted the known canons of transparency, fair play and unbiased approach as is required in disciplinary proceedings. RP782/09 -: 2 :- 2.The review petitioners, though notified of the writ petition, did not appear. They attributed it to the fact that the counsel who was appearing for them before the lower authorities at an earlier point of time had died and the files had to be traced out through his son, who is also a practising advocate. I would deem it as a ground to hear the review petitioners. 3.Be that as it may, the review petitioners cannot point out any legal infirmity or jurisdictional error in the findings or in the principle laid down in the judgment sought to be reviewed. The only aspect that is projected is that while the writ petition was filed in August 2008, the writ petitioner had already moved the arbitration court under the KCS Act on 22.1.2008 by filing Annexure A7 Arbitration Case 11/2008 in relation to the entire issues relating to the disciplinary proceedings. It has to be at once noticed that, for whatever it was worth, on counts of RP782/09 -: 3 :- jurisdiction and standing, the Government had issued an order invoking power under Rule 176, however refusing to interfere. That having been done by the Government, the arbitration court could well excuse itself from further adjudicating the issue since it does not have the power to sit in judgment over a decision of the Government. Therefore, the mere institution of the arbitration case by the writ petitioner would not, by itself, turn the decision from where it has arrived, in the judgment sought to be reviewed. Hence, even if the pendency of the arbitration case 11/2008 was brought to the notice of this Court, that would not have changed the course of result of the writ petition which has achieved as per the judgment sought to be reviewed. 4.However, the review petition having been filed, the writ petitioner has filed a counter affidavit further pointing out that even earlier there was an arbitration case and in all those matters, RP782/09 -: 4 :- including the present matter pending before the arbitration court, the same advocate continues to appear for the management. Whatever be the propriety of such an exercise or the truthfulness of that allegation, it has to be affirmed that the entire disciplinary proceedings against the writ petitioner is vitiated and there is no ground in law to hold that the finding in the impugned judgment that the disciplinary enquiry cannot stand, requires interference either in review or otherwise. For the aforesaid reasons, this review petition is dismissed, however clarifying that the effect of the judgment sought to be reviewed would, needless to say, bind all authorities, that being a pronouncement of the constitutional court. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/0102