IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 WP(C).No. 25961 of 2007(N) -------------------------- PETITIONER: ------------- K.M.KUNJU KANI, AGED 59 YEARS, S/O. LATE MOIDEEN RAWTHER, KANDAMKULATHU,KARINILAM P.O.,PULIKKUNNU, VIA, MUNDAKKAYAM,KOTTAYAM DISTRICT. BY MR.P.K.IBRAHIM,ADVOCATE SMT.K.P.AMBIKA,ADVOCATE SRI.THOMSTINE K.AUGUSTINE, ADVOCATE RESPONDENTS: --------------- 1. THE DIRECTOR OF HEALTH SERVICE, THIRUVANANTHAPURAM. 2. THE DISTRICT MEDICAL OFFICER, PAINAVU, IDUKKI. GOVERNMENT PLEADER MR.DILIP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.25961/2007 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT IN O.P.No.14840/99 (M) DATED 11.11.03 OF THIS HON'BLE COURT. EXT.P2: COPY OF THE JUDGMENT IN C.C.(C).No.423/04 DATED 1.7.04 OF THIS HON'BLE COURT. EXT.P3: COPY PF THE REPRESENTATION DATED 9.7.05 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P4: COPY OF THE COMMUNICATION NO.A5-4112/06 DATED 10.10.06 OF THE 2ND RESPONDENT TO THE PETITIONER. EXT.P5: COPY OF THE AFFIDAVIT ALONG WITH ITS DOCUMENTS DATED 16.3.07 FILED BY THE RESPONDENTS. EXT.P6: COPY OF THE REPLY DATED 16.6.07 SUBMITTED BY THE PETITIONER BEFORE THIS HON'BLE COURT. EXT.P7: COPY OF THE COMMUNICATION NO.A5-4112/06 DATED 28.6.07 FROM THE 2ND RESPONDENT TO THE PETITIONER. EXT.P8: COPY OF THE JUDGMENT DATED 5.7.07 IN C.C.C.183/07 OF THIS HON'BLE COURT. TRUE COPY P.A.TO JUDGE S. SIRI JAGAN, J ............................................... W.P(C) No. 25961 of 2007 ................................................. Dated this the 22th day of July, 2009 J U D G M E N T The facts of this case are abundantly clear from Ext.P1 judgment of this court in O.P. No. 14840/1999, the benefits of which the petitioner is seeking in this writ petition. Therefore, for easy reference, I shall extract Ext.P1 judgment, which reads as follows: “Petitioner was originally appointed as Part-time Helper on daily wages. Thereafter on the basis of the seniority of the family welfare promoters as reflected in Ext.P4, petitioner was appointed as Part-time Cleaner at Primary Health Centre, Kumaly by proceedings dated 11.4.1991 (Ext.P5) of the second respondent. Thereafter in May, 1991 he was promoted as Hospital Attendant Grade II and has been working at Primary Health Centre, Kumaly. While so, Government issued proceedings dated 14.12.1992 terminating the service of the petitioner and a few others on the ground that the petitioner and others were found to have mislead the appointing authority by producing fake documents. That was the subject matter of various writ petitions leading to the common judgment dated 9.3.1993 in O.P.No.1163/93 and connected cases. Petitioner is one among the 7 petitioners in O.P. No. 1477/93. After elaborately considering the pleadings and contentions, this court set aside the Government proceedings dated 14.12.1992 terminating the petitioner from service and all consequential orders were also set aside. The main reason for setting aside the termination order dated 14.12.1992 was that the termination was not based on a procedure as contemplated under the Kerala Civil Services (Classification Control) and Appeal Rules, 1960. However, it was made clear at para 12 of the W.P(C) No. 25961 of 2007 -2- judgment as follows:- “It is made clear that setting aside Annexure I to the extent indicated above, does not mean that the Government and the appointing authority are not invested with sufficient power to enquire into any of the allegations against the petitioners. Respondents are given liberty to take appropriate action, if so deemed necessary, against the delinquent employees based on specific charges and on complying with procedural requirements as established by law.” 2. Thereafter, it is seen from Ext.P8 that the second respondent has conducted a personal hearing on 25.1.1995 and the petitioner has answered the questionnaire. Petitioner was given Ext.P10 enquiry report. It is interesting to note that Ext.P10 report is prepared on the basis of the evidence tendered by certain persons before the Vigilance. Ext.P11 is the show cause notice. Petitioner submitted Ext.P12 detailed reply. However, it is simply stated in Ext.P13 proceedings that none of the contentions taken by the petitioner in Ext.P12 is sustainable and consequently petitioner was removed from service as per Exts.P13 and P14. 3. The first respondent has filed a counter affidavit. It is fairly clear from the counter affidavit that the procedure under Rules was not followed. Paragraph 4 of the counter affidavit reads as follows:- “The fake certificates and documents produced by the petitioner will not become genuine only because of the reason that he was not called for the enquiry as argued by him. But this Honourable High Court in its judgment dated 9.3.1993 clearly stated that the respondents are being given liberty to take appropriate action if so deemed necessary against the delinquent employee based on specific charges and on complying the procedural requirements as established by law. As such enquiry had been conducted on 29.3.1999 complying all procedural formalities and the enquiry report had been received. Consequent on the enquiry a charge memo No.A5(A-4) 9010/92 dated 22.4.1999 was issued to all the concerned incumbents including Sri. K.M.Kunjikani by registered post.” 4. Thus evidently, after the enquiry only a charge memo was issued. That is taking the bullock behind the W.P(C) No. 25961 of 2007 -3- cart. This court clearly directed in Ext.P7 judgment that an enquiry can be conducted only in accordance with rules. 5. That apart, a perusal of Ext.P13 would also show that the appointing authority has not referred to any of the contentions taken by the petitioner in the standard form reply. It is only stated that the contentions are not sustainable. Why they are not sustainable is not mentioned at all. There is not even a reference to any of the contentions. 6. It is submitted that the petitioner has retired from service on 30.4.2002. As already noted above there is no enquiry as per the rules inspite of the observations made by this court in Ext.P7 judgment. Now that the petitioner has already retired from service, there is no point in conducting the enquiry also. Therefore, I set aside the impugned orders. It is declared that the petitioner shall be deemed to have duly retired from service and the pensionary benefits shall be settled accordingly. Appropriate action in accordance with law for settling the pensionary benefits shall be taken within a period of three months from the date of production of a copy this judgment by the petitioner. In the event of delay, petitioner will be entitled to get interest at the rate of 12% from 1.5.2003 and the officers responsible for the delay shall be personally liable for the interest. The original petition is disposed of as above.” 2. It is to be noted that subsequent to Ext.P1, on the ground that the petitioner had not been paid interest on the retirement benefits due to him, he had filed contempt case No. 423 of 2004. which was closed, accepting the apology tendered by the respondents. As is clear form Ext.P1 judgment, it is during the pendency of that writ petition the petitioner had retired from service on 30.4.2002. Petitioner's complaint in this writ petition is W.P(C) No. 25961 of 2007 -4- that the petitioner had not been given appropriate fixation of pay taking into account increments due to him for the period when he was kept out of service as also promotions due to him in his career. The petitioner therefore seeks the following reliefs: “i) Call for the records leading to Ext.P7 and quash the same issuing a writ of certiorari or any other appropriate writ; ii) declare that Petitioner is entitled to increments, promotions and such other service benefits in view of the declaration that Petitioner “shall be deemed to have duly retired from service and the pensionary benefits shall be settled accordingly” In Ext.P1 judgment and direct the Respondents to disburse the salary arrears reckoning increments, grade promotions etc. and revise the pensionary benefits consequently paying all dues forthwith;” 3. A counter affidavit has been filed, in which the only defence is that he is not entitled for any revision of pension taking into account the promotions, increments etc. that he would have got and therefore that claim of the petitioner is totally misconceived. However, same is not supported by any reasons whatsoever. The learned Government Pleader would contend that since the petitioner was guilty of producing false documents, he cannot be given the benefits of increments and promotions. 4. I have considered the rival contentions in detail. 5. In view of Ext.P1 judgment, respondents cannot be heard to contend that the petitioner is not entitled to increments and W.P(C) No. 25961 of 2007 -5- promotions. The result of Ext.P1 judgment is that the petitioner should be deemed to have continued in service without any disciplinary proceedings and retired accordingly. That being so, the petitioner is entitled to all service benefits for the entire period of his service, including increments whenever it became due as also promotions whenever it became due. The respondents cannot deny to the petitioner those benefits. Therefore the petitioner's pay has to be refixed taking into account the increments and promotions due to him. Consequentially, the petitioner's retirement benefits are also liable to be recomputed on the basis of his revised fixation of pay, taking into account, the increments and promotions which were due to him as held above. Orders in this regard shall be issued and the arrears of pay and retirement benefits shall be disbursed to the petitioner, as expeditiously as possible, at any rate, within three months from the date of receipt of copy of this judgment. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE rhs