IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 OP.No. 5134 of 2002(J) ---------------------- PETITIONER(S): --------------- KALANILAYAM UNNIKRISHNAN, PROFESSOR (KATHAKALI MUSIC),KERALA KALAMANDALAM, CHERUTHURUTHY, THRISSUR DISTRICT. BY ADV. SRI.P.RAVINDRAN, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. SECRETARY, KERALA KALAMANDALAM, CHERUTHURUTHY, THRISSUR DISTRICT. 2. KERALA KALAMANDALAM, REPRESENTED BY ITS SECRETARY, CHERUTHURUTHY, THRISSUR DISTRICT. 3. SHRI RAJASEKHARAN, PROFESSOR IN KATHAKALI VESHOM (IN CHARGE OF VICE PRINCIPAL), KERALA KALAMANDALAM, CHERUTHURUTHY,THRISSUR DIST. ADV. SRI.GEORGE POONTHOTTAM FOR R1 & R2 SRI.S.P.ARAVINDAKSHANPILLAY,KER.KALAMANDALAM THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 5134/02. ---------------------------------------------------------- EXT.P1 TRUE COPY OF ORDER DT. 7-6-1999. EXT.P2 ORDER DT. 5-6-1999. EXT.P3 PROCEEDINGS DT. 5-6-1999. EXT.P4 MEMO DT. 3-11-1999. EXT.P5 COMMUNICATION DT. 3-11-1999. EXT.P6 REPLY TO EXT. P2 MEMO. EXT.P7 PROCEEDINGS DT. 15-1-2000. EXT.P8 REPRESENTATION DT. 6-6-2001. EXT.P9 JUDGMENT IN W.A. 3703/2001. EXT.P10 ORDER DT. 12-1-2002. RESPONDENTS' EXHIBITS: ------------------------------------- EXT.R1(a) COMPLAINT DT. 2-11-1999. EXT.R1(b) PROCEEDINGS DT. 14-2-2000. EXT.R1(c) TRUE COPY OF ENQUIRY REPORT. EXT.R1(d) PROCEEDINGS DT. 18-9-1990. EXT.R1(e) COMPLAINT DT. 2-11-1999. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 5134 of 2002 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 5th October, 2009. J U D G M E N T The petitioner was a Professor of the 1st respondent-Kerala Kalamandalam. There was a dispute regarding the seniority between the petitioner and the 3rd respondent in the post of Professor. That was ultimately settled by this Court by judgment in O.P.No. 18213/1999 in favour of the petitioner. Pursuant to that judgment, Ext. P3 order was passed, whereby the petitioner's seniority over the 3rd respondent in the cadre of Professor was accepted. Subsequently, on the basis of his seniority, the petitioner was provisionally promoted as Vice Principal of the Kerala Kalamandalam by Ext. P1 order. Later, by Ext. P2 order, he was also given additional charge of Principal. According to the petitioner, when the 3rd respondent failed to get seniority over the petitioner, he found out a round-about method to steal a march over the petitioner for promotion. The petitioner submits that on 1-11-1999, when various cultural activities were going on in connection with the Manaveeyam festival conducted by the Kerala Kalamandalam, while the petitioner and his wife were proceeding to their quarters after the function, another male teacher of the Kalamandalam in a highly inebriated state, abused the petitioner and misbehaved with his wife. The petitioner would submit that in view of the embarrassment which publicity given to the incident may cause to them, the petitioner and his wife refrained from making any complaint about the issue. Later on, allegedly at the instance of the 3rd respondent, the said teacher, who misbehaved with the petitioner and his wife, filed a complaint alleging that the petitioner assaulted him. Pursuant to the same, Ext. P4 show cause notice was issued, an enquiry was conducted and ultimately Ext. P10 proceedings were issued to the petitioner directing that status quo regarding the removal of the petitioner from the post of Vice Principal O.P No. 5134/02 -: 2 :- would continue. The petitioner originally challenged only Ext. P10 order. Subsequently, after his retirement, he got the original petition amended seeking a prayer for notionally promoting the petitioner to the post of Vice Principal and Principal of Kerala Kalamandalam with effect from the date when vacancies arose in those posts, so as to enable him to get the monetary benefits arising therefrom. Therefore, as per the amended original petition, the petitioner seeks the following reliefs: “a) call for the records leading to Ext. P 10 and quash the same by the issue of a writ in the nature of certiorari or any other appropriate writ, or direction; b) issue a writ of mandamus or any other appropriate writ, or direction commanding the respondent to promote the petitioner retrospectively as Vice Principal and Principal to be effective from the date of occurrence of vacancy subject to the petitioner's eligibility. bb) Issue a writ of mandamus or any other appropriate writ, or direction commanding the respondent to notionally promote the petitioner to the post of Vice principal and Principal of Kerala Kalamandalam with effect from date when vacancy arose, give the petitioner all consequential benefits including arrears of pay, re- fixation of pay and retirement benefits on the basis of the notional promotion. c) issue an interim direction, directing the respondent to repost the petitioner provisionally as Vice Principal and Principal, pending disposal of the original petition. d) issue an interim stay of Ext. P10 order pending disposal of the original petition.” 2. The primary contention of the petitioner is that the whole incident was a frame up in order to remove the petitioner from the post of Vice Principal. The enquiry committee did not find the petitioner guilty of any misconduct, despite which Ext. P10 order has been passed, which also cannot be regarded as a punishment order at O.P No. 5134/02 -: 3 :- all, but only an order directing maintenance of status quo. Therefore, according to the petitioner, the impugned order is liable to be quashed and he is entitled to all consequential monetary benefits. 3. A counter affidavit has been filed in which the contention is that the petitioner having been found guilty of very serious misconduct in an enquiry conducted for the purpose, the petitioner cannot seek the reliefs prayed for in the original petition. According to them, by Ext. R1(c) report of the enquiry committee, the petitioner was found guilty of very serious misconducts pursuant to which only Ext. P10 order of punishment was imposed on the petitioner. Therefore, according to respondents 1 and 2, Ext. P10 order is perfectly valid and proper. 4. I have considered the rival contentions in detail. 5. Ext. R1(c) is stated to be the enquiry report in the disciplinary proceedings against the petitioner. I am constrained to hold that Ext. R1(c) is an apology for an enquiry report. It does not contain the charges levelled against the petitioner. It does not state what is the evidence adduced in the enquiry. It does not contain any finding to the effect that the petitioner is guilty of any particular misconduct. As such, Ext. R1(c) cannot be accepted as a report holding the petitioner guilty of any misconduct whatsoever. Ext. P10 order also cannot be regarded as ans order of punishment at all. It does not specifically impose on the petitioner any punishment whatsoever. What Ext. P10 says is that in the light of the enquiry report, the status quo of the petitioner having been removed from the post of Vice Principal should be continued and the petitioner's future conduct would be subject to the observation of the managing committee with a caution if it is found that the petitioner commits any further misconduct, he would be removed from the post of Head O.P No. 5134/02 -: 4 :- of the Department. As such, I am of opinion that Ext. R1(c) cannot be regarded as an enquiry report in which the petitioner was found guilty of any misconduct and Ext. P10 as an order imposing any punishment on the petitioner. Therefore Ext. P10 order is quashed. 6. Now that the petitioner has retired from service, the disciplinary proceedings cannot be continued. As such, the petitioner is entitled to all service benefits as if there was no enquiry, finding of guilt and punishment on the petitioner. Consequently, the petitioner is entitled to all service benefits to which he was entitled to but for the disciplinary proceedings. Accordingly, he would be notionally promoted as Vice principal from the date of Ext. P1. He would be entitled to all monetary benefits and all retirement benefits as if the petitioner retired as Vice Principal of the Kerala Kalamandalam. Orders in this regard shall be issued and arrears of monetary benefits disbursed to the petitioner as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. . The original petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/