IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 WP(C).No. 17761 of 2006(M) ---------------------------------- PETITIONER(S): ------------------- P. GOPAKUMAR, SHYLAJAM, MARKET ROAD, ENIKARA, KARAKULAM P.O., TRIVANDRUM-10. BY ADVS. SRI.P.PARAMESWARAN NAIR SRI.R.SUDHEESH KUMAR SRI.SUNIL KUMAR A.G RESPONDENT(S): --------------------- 1. STATE OF KERALA, REPRESENTED BY IS CHIEF SECRETARY TO GOVERNMENT, TRIVANDRUM. 2. THE DIRECTOR, REGIONAL CANCER CENTRE, TRIVANDRUM. 3. DR. B.RAJAN, DIRECTOR, REGIONAL CANCER CENTRE, TRIVANDRUM. R1 BY GOVT. PLEADER SRI.ANTONY MUKKATH R2 BY ADV. SRI.K.R.RADHAKRISHNAN NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/07/2011, THE COURT ON 28/07/2011 DELIVERED THE FOLLOWING: svs W.P.(C). NO. 17761/2006 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT IN O.P. NO.6459/1994 DATED 09/12/1998 P2: COPY OF THE ORDER CONFIRMING THE DISMISSAL DATED 20/04/99 OF THE PETITIONER. P3: COPY OF THE JUDGMENT IN O.P. NO.25948/99 DATED 23/09/05 OF THIS HONOURABLE COURT. P4: COPY OF THE MEMORANDUM OF APPEAL DATED 14/10/2005 FILED BY THE PETITIONER BEFORE THE GOVERNING BODY. P5: COPY OF THE REMINDERS SENT BY THE PETITIONER DATED 20/01/2006 AND 14/03/2006. P6: COPY OF THE GOVERNMENT ORDER G.O.(Rt) NO.1407/2006/H & FWD DATED 08/05/2006. P7: COPY OF THE ORDER NO.6803/ADMN.1/2006/RCC DATED 29/06/06. P8: COPY OF THE APPLICATION DATED 18/10/2007 & LETTER DATED 04/06/2008 ISSUED BY THE PUBLIC INFORMATION OFFICER. P9: COPY OF THE APPLICATION DATED 02/03/2010 SEND BY THE PETITIONER. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 17761 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 28th day of July, 2011. J U D G M E N T This is a second round of litigation in respect of the same subject mater. Since all the facts of the case are clear from a judgment of this Court in the earlier round, which is produced as Ext.P3, I shall extract the said judgment: “Petitioner is aggrieved by the disciplinary proceedings initiated against him. Ext.P3 is the order imposing the punishment of dismissal from service. According to the petitioner, he was working as a Helper, but engaged in the clerical section. It is seen from the order that the offence for which the harshest punishment imposed on the petitioner was that he had not worn uniform. It is the case of the petitioner that he was never served with notice and he was not given the uniform allowance also. I do not think it necessary to extensively deal with the merits of the case, except to make a passing observation that the punishment is certainly disproportionate, if not shockingly disproportionate. Petitioner pursued the remedy by way of appeal before the Executive Committee. But the Director was also a member of the Executive Committee and naturally a fair and proper decision could not have been taken by the Executive Committee. Learned counsel appearing for the respondents submits that the Service Rules provide for an appeal to the governing body. Now the personnel have changed. The governing body should approach the issue with an open mind and take a just, proper and reasonable decision in the matter. The petitioner submits that he is prepared to wear any uniform in accordance with the Service Rules. The remorseful conduct of the petitioner should certainly appeal to the good conscience of the governing body. Accordingly, the writ petition is disposed of as follows:- In the event of the petitioner filing an appeal within a period of one month from today before the governing body, the said body shall consider the appeal, taking note also of the observations contained in this judgment and pass appropriate orders in the matter within another two months. If the petitioner requests for an opportunity for hearing the same W.P(C) No. 17761 of 2006 -: 2 :- shall also be granted.” Pursuant thereto, the petitioner filed an appeal. Apparently as an order in the appeal, Ext.P7 order has been issued to the petitioner giving him a fresh offer of appointment as helper without any benefit in respect of the past service. The petitioner is challenging the same. According to the petitioner in Ext.P3 judgment, this Court categorically found that for not wearing uniform, the punishment of dismissal from service is certainly disproportionate, if not shockingly disproportionate. Therefore, what was expected of the respondents while considering the appeal filed by the petitioner pursuant to Ext.P3 judgment, was to consider whether the punishment of dismissal was an appropriate punishment. He would submit that even in that matter, the respondents have no discretion insofar as this Court had categorically found that the dismissal is a disproportionate punishment for the gravity of the alleged misconduct committed by him. Therefore, the offer of re-appointment without any service benefits for the past service is certainly an action disproportionate to the gravity of the misconduct, is the contention raised. The petitioner therefore seeks the following reliefs: “a) issue a writ of mandamus or any other appropriate writ, order or direction, quashing Ext.P7 order; b) issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 2nd and 3rd respondents to issue a fresh order of reinstatement W.P(C) No. 17761 of 2006 -: 3 :- in service, without insisting for any probation and harsh condition. c) issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to reinstate the petitioner forthwith.” 2. A counter affidavit has been filed by the 1st respondent. The 2nd respondent has filed a statement. 3. I have considered the rival contentions in detail. 4. I have already extracted Ext.P3 judgment above. In that judgment, it is unambiguously held by this Court that for the alleged misconduct of not wearing uniform, the punishment of dismissal is certainly disproportionate. This Court has further recorded the submission of the petitioner that he is prepared to wear any uniform in accordance with the service rules. This Court has further directed that the remorseful conduct of the petitioner should certainly appeal to the good conscience of the governing body. From the words of the judgment, there cannot be any doubt whatsoever that the intention behind the judgment was to see that a lesser punishment is imposed on the petitioner cancelling the punishment of dismissal. That has not been done in this case. Instead, the petitioner has been given a fresh appointment order specifically stating therein that the period of termination “will not be considered for any service benefits as the seniority, arrears of pay, increment etc.” I am unhappy to note that the sentiments expressed by this Court in Ext.P3 judgment has not permeated into the psyche of the respondents . I also have absolutely no doubt W.P(C) No. 17761 of 2006 -: 4 :- in my mind that the punishment of dismissal for the misconduct of not wearing uniform may even be shockingly disproportionate. Therefore in the appeal filed by the petitioner, the respondents should have reinstated the petitioner into service with a lesser punishment. But, I am not inclined to remand the matter further to the respondents to impose a proper punishment because of their recalcitrant attitude in the matter. I am of opinion that the proper punishment to be imposed on the petitioner was on a warning, especially since the petitioner had submitted that he is prepared to wear any uniform in accordance with the service rules, which has been recorded in Ext.P3 judgment. Therefore the petitioner is entitled to reinstatement in service from the date when he was dismissed from service. In the facts and circumstances of the case, I am inclined to deny to the petitioner 50% of the backwages. 5. Accordingly, the respondents are directed to reinstate the petitioner with 50% back wages. The petitioner shall be entitled to all other service benefits for the period during which he was kept out of service. Orders in this regard shall be passed as expeditiously as possible at any rate within one month from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. Learned counsel for the 2nd respondent submits that subsequent to his re-appointment, the petitioner has been placed under suspension and disciplinary proceedings are W.P(C) No. 17761 of 2006 -: 5 :- going on. I make it clear that after reinstating the petitioner as directed above, the 2nd respondent can continue the disciplinary proceedings initiated against the petitioner in accordance with law. Sd/- S. Siri Jagan, Judge. Tds/