IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 WP(C).No. 33913 of 2003(K) -------------------------- PETITIONER(S): ------------------ M.SHAKEER KHAN L.D.CLERK, OFFICE OF CHIEF ENGINEER, ROADS & BRIDGES THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE RESPONDENT(S): ------------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, PUBLIC WORKS DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT ADMINISTRATION, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION, THIRUVANANTHAPURAM. 4. THE ASSISTANT EXECUTIVE ENGINEER IRRIGATION (NORTH) SUB DIVISION, THIRUVANANTHAPURAM. 5. THE ADMINISTRATIVE OFFICE PUBLIC WORKS DEPARTMENT ADMINISTRATION OFFICE OF THE CHIEF ENGINEER PWD ADMINISTRATION, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.ANTONY MUKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.33913/03 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF the ORDER NO.ED3-11832/88 DT 21.4.88, CHIEF ENGINEER, PWD, GENERAL AND BUILDINGS AND LOCAL WORKS. EXT.P2: TRUE COPY OF THE ORDER NO.B3-201/97 DT 23.7.97 OF THE 3RD RESPONDENT. EXT.P3: TRUE COPY OF THE COMMUNICATION DT 7.7.97 ISSUED BY THE EXECUTIVE ENGINEER, IRRIGATION DIVN. EXT.P4: TRUE COPY OF THE MEDICAL CERTIFICATE DT12.11.97. EXT.P5: TRUE COPY OF THE JOINING REPORT DT 26.11.97 SUBMITTED BY THE PETITIONER. EXT.P6: TRUE COPY OF THE ORDER NO.17/97 DT 19.11.97 OF THE ASST.ENGINEER, IRRIGATION SECTION, TVPM. EXT.P7: TRUE COPY OF THE LETTER NO.678/A2/2002/ID DT 23.1.2002 FROM THE SECRETARY TO GOVERNMENT IRRIGATION (A) DEPARTMENT. EXT.P8: TRUE COPY OF THE PROCEEDINGS NO.B3-261/97 DT 16.4.2002 OF THE 3RD RESPONDENT. EXT.P9: TRUE COPY OF THE REPRESENTATION DT 13.5.2002 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P10: TRUE COPY OF THE ORDER NO.ED1-47947/91 DT 16.7.2002 OF THE 2ND RESPONDENT. EXT.P11: TRUE COPY OF THE PROCEEDINGS NO.B3-201/97 DT 4.3.2003 OF THE 3RD RESPONDENT. EXT.P12: TRUE COPY OF THE JUDGMENT DT 3.4.2003 IN OP 21213 OF 1997 OF THIS HON'BLE COURT. EXT.P13: TRUE COPY OF THE PROCEEDINGS NO.A3-12/98 DT 19.5.2003 OF THE 4TH RESPONDENT. EXT.P14: TRUE COPY FOTHE ORDER NO.A3 12/98 DT 13.6.2003 OF THE 4TH RESPONDENT. EXT.P15: TRUE COPY OF THE REPRESENTATION DT 25.6.2003 SUBMITTED BY THE PETITIONER TO THE RESPONDENTS 2 AND 3. WPC NO.33913/03 -2- EXT.P16: TRUE COPY OFHTE JDUGMETN OF THIS HON'BLE COURT DT 21.7.2003 IN WPC NO.16398/03. EXT.P17: TRUE COPY OF THE MEMO DT 16.9.2003 ISSUED BY THE 5TH RESPONDENT. EXT.P18: TRUE COPY OF THE EXPLANATION DT 22.9.2003 SUBMITTED BY THE PETITIONER INR EPLY TO EXT.P17. EXT.P19: TRUE COPY OF THE MEMO OF CHARGES DT 15.9.2003 WITH STATEMENT OF ALLEGATIONS ISSUED BY THE 2ND RESPONDENT. EXT.P20: TRUE COPY OF THE EXPLANATION DT 13.10.2003 SUBMITTED BY THE PETITIONER TO EXT.P19. EXT.P21: TRUE COPY OF THE REPORT OF ENQUIRY GIVEN BY THE STATE PUBLIC INFORMATION OFFICER, PWD DT 23.8.2007 //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 33913 OF 2003 (K) ===================== Dated this the 20th day of November, 2009 J U D G M E N T In this writ petition, two reliefs sought for by the petitioner are to direct the respondents to regularize his break in service for the period 20/11/97 to 16/6/2002 and to quash Ext.P19 memo of charges issued to him. 2. Petitioner joined service in the Irrigation Wing of the PWD as an LDC on 21/4/88. On the bifurcation of the irrigation and PWD w.e.f. 01/04/90, petitioner opted to continue in the Irrigation Department. While so, by Ext.P2 order of 23/7/97, he was appointed as a Canal Officer in the Irrigation wing and he joined the post on 1/8/97. While working as Canal Officer, petitioner fell ill and remained absent from 12/11/97 to 19/11/97, on which date, he was relieved from the post of Canal Officer as per Ext.P6 order. That order was challenged before this Court in OP No.21213/97 during the pendency of which, the petitioner reported for duty at Kerala Highway Research Institute of PWD. However, according to him, on the ground that no post equivalent to that of Canal Officer, which had a pay higher than that of LDC WPC 33913/03 :2 : was available, he was not permitted to resume duty. This uncertainty continued till 2002 when the Chief Engineer issued Ext.P10 order posting the petitioner in an existing vacancy of LDC in PWD. Still later, the Chief Engineer, Irrigation and Administration issued Ext.P11, which reads as under. Adverting to the above, it is requested to take follow up action to the following remarks in regarding posting of Sri.M.Shakkeer Khan, L.D.C. as Canal Officer. Sri.M.Shakkeer Khan, who was appointed as Canal Officer as per Order No.B3-201/97 dt 28.7.97 and joined duty as Canal Officer on 1/8/97 in the Irrigation (N) Sub Division, Thiruvananthapuram. Due to the absorption into PWD vide Order dated 6.11.97 of Chief Engineer, PWD, he had joined duty only on 1/7/2002 and hence there is some break period, to be regularized. The Chief Engineer, PWD vide letter said above has reported that the LPC of Sri.M.Shakkeer Khan, LDC was not received till date from that office. In the above circumstances, it is directed to issue his LPC, after making payments of the legitimate claims in the scale of pay of Canal Officer to Sri.M.Shakkeer Khan, LDC, for the period before absorption into PWD. A detailed report, of his pay and allowances during his incumbency as Canal Officer also be submitted to this Office separately. In the light of Ext.P11 directing that the respondents shall take further action on Ext.P11 and fix the pay of the petitioner and arrears will be disbursed, OP No.21213/97 was disposed of by this Court by Ext.P12 judgment. WPC 33913/03 :3 : Accordingly, his scale of pay was fixed as per Ext.P13, and by Ext.P14 order, the Irrigation Department regularized the petitioner's absence for the period from 12/11/97 to 19/11/97. As already noticed, it was only by Ext.P10 that the petitioner was posted in an existing vacancy of LDC and it was only on that date could the petitioner resume duties. This according to the petitioner, led to the break during the period from 12/11/97 to 16/6/2002, which, on account of Ext.P14, was reduced to 19/11/97 to 16/6/2002. As the break in service remained without being regularized, petitioner submitted Ext.P15 representation and that was also pending. It was at that stage, on the allegation of unauthorised absence for the aforesaid period, he was issued Ext.P17 memo to which he filed Ext.P18 explanation. Not satisfied with the explanation offered, Ext.P19 memo of charges was issued to which Ext.P20 written statement was also filed. It was at that stage this writ petition is filed praying for directing regularisation of the break in service and also challenging Ext.P19 memo of charges. 3. As far as Ext.P19 memo of charges is concerned, an enquiry was conducted and finally the enquiry officer submitted WPC 33913/03 :4 : his report, a copy of which is Ext.P21. The report gives the indication that the petitioner has been exonerated of the charges of unauthorised absence. However, despite the fact that the report was filed way back in 2004, final orders in the light of the report has not been passed by the Chief Engineer, PWD, who being the disciplinary authority had issued Ext.P19. Although the petitioner wanted this Court to direct that further proceedings against him be dropped, still having regard to the fact that it is for the disciplinary authority to pass final orders in the disciplinary proceedings, I feel it appropriate to relegate the matter to the disciplinary authority to pass final orders in the matter consistent with the view taken by the Enquiry Officer. 4. Accordingly, there will be a direction to the 2nd respondent to pass final orders on Ext.P19 memo of charges in the light of Ext.P21 report of the enquiry officer. This shall be done, as expeditiously as possible, at any rate within 8 weeks of receipt of a copy of this judgment. 5. Now what remains is the regularisation of the break in service for the period 20/11/97 to 16/6/2002. This is a matter for the Chief Engineer, Irrigation and Administration to consider. It is WPC 33913/03 :5 : seen from Ext.P11 issued by the Chief Engineer that he has already dealt with this aspect and therefore, it is for the Chief Engineer to pass orders pursuant to Ext.P11 dealing with this aspect also. This the 3rd respondent shall do, on receipt of a copy of this judgment and as expeditiously as possible, at any rate within 8 weeks thereafter. 6. Petitioner may produce a copy of this judgment before respondents 2 and 3 for compliance. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp