IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 WP(C).No. 22859 of 2007(U) -------------------------- PETITIONER(S): --------------- V.K.VISWANATHAN, HSA(MALAYALAM), (DEEM TO HAVE RETIRED FROM GOVT. HIGH SCHOOL) OTHUKKUNGAL, MALAPPURAM DISTRICT. RESIDING AT VAZHAPPILLI HOUSE, KANNAMPULLIPURAM P.O., CHANDRAPPINNI (VIA), THRISSUR DISTRICT. BY ADV. SRI.P.B.SAHASRANAMAN SRI.V.K.SATHYANATHAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH RESPONDENT(S): --------------- 1. THE DEPUTY DIRECTOR (EDUCATION), MALAPPURAM. 2. HEADMASTER, GOVT. HIGH SCHOOL, UTHUKKUNGAL, MALAPPURAM DISTRICT. 3. THE HEADMASTER, GOVT. HIGH SCHOOL, VELLARMALA, WAYANAD DISTRICT. 4. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 5. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVT., DEPARTMENT OF GENERAL EDUCATION, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. GOVT. PLEADER SHRI.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 22859/07. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE LPC DTD.10.1.94. P2. COPY OF THE LPC DTD.1.3.94. P3. COPY OF THE REPORT DTD.24.3.94. P4. COPY OF THE REPORT DTD.25.3.94 BY R2. P5. COPY OF THE LETTER DTD.16.5.94. P6. COPY OF THE ORDER DTD.29.7.94. P7. COPY OF THE PETITION DTD.9.9.96. P8. COPY OF THE JUDGMENT IN C.C.NO.691/03. P9. COPY OF THE PETITION DTD.5.1.07. P10. COPY OF THE APPEAL DTD.17.4.07. P11. COPY OF THE LETTER DTD.24.4.97. P12. COPY OF THE LETTER DTD.4.5.07. P13. COPY OF THE APPEAL DTD.5.6.07 UNDER R.I.ACT. P14. COPY OF THE MEMO OF CHARGES. P15. COPY OF THE NOTICE DTD.19.9.07. P16. COPY OF THE ORDER DTD.11.10.95. P17. COPY OF THE COVERING LETTER DTD.5.10.07. P18. COPY OF THE COPY OF THE LETTER DTD.6.3.94. P19. COPY OF THE POSTAL ENDORSEMENT. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 22859 of 2007 ================== Dated this the 17th day of March, 2011 J U D G M E N T The petitioner was a High School Assistant in Malayalam. He entered service on 7.7.1983. He was suspended from service with effect from 29.7.1994. Subsequently, he was removed from service by order dated 11.10.1995, which is Ext.P16 produced in this writ petition. In respect of the same set of facts relating to the proceedings against him, which concluded in Ext.P16, he was tried by the Judicial First Class Magistrate, Malappuram, in C.C.No.691/2003 and he was acquitted by judgment dated 27.7.2006. According to the petitioner, the petitioner was never served with Ext.P16 order of removal from service and he was under the impression that he continued to be under suspension till he attained the age of superannuation on 2.12.1995. When after acquittal in the criminal case he enquired about the matter, he was told that he was removed from service by order dated 11.10.1995. Thereafter, he obtained a copy of Ext.P16 order and filed this writ petition challenging Ext.P16 seeking the following reliefs: “(i) to issue a writ of Certiorari or other writ or order or direction, calling for the records connected with this case and quash the order of the first respondent No.A7/13460.94 dt.11.10.1995, the order terminating the service of the petitioner issued by the first respondent. (ii) to issue a declarations as follows: a) that the disciplinary proceedings taken against the petitioner is in the violation of the principles of natural justice and w.p.c.22859/07 2 against the statutory rules. b) that the petitioner's service could not have been terminated without conducting a proper departmental enquiry. c) that it was malafide and illegal to have proceeded with the departmental proceedings against the petitioner when he was facing trial in the Criminal Court on the charges containing very same allegations as in the departmental proceedings. d) that the petitioner is entitled to count the service from 7.7.1983 to 31.12.1995 as pensionable service as he is entitled to all pensionary benefits taking into account that service. e) that the petitioner is entitled to all service benefits including complete pay and allowances, higher grade, increments etc., from the period he was kept under suspension to the date of his superannuation. f) that the petitioner's service should be reckoned upto 31.3.1996 i.e. till the end of the Academic year in which he attained the age of superannuation. (iii) to issue a writ of mandamus or other writ or order directing the respondent to grand the following : a) to direct the respondents to count the period from 29.7.1994 to 31.3.1996 as duty for all service benefits, including pay, pension, higher grade, increments etc. b) to grant pensionary benefits to the petitioner notwithstanding the order of dismissal/Removal passed by the 1st respondent and pay salary for the period from 29.7.1994 to 31.3.1996 with interest at the rate of 12% per annum. iv) to direct the respondents to count the service of the petitioner from 7.7.1983 to 31.3.2006 as pensionable service and he is entitled to all pensionary benefits taking into account that service. v) to direct the respondent to extend all service benefits including complete pay and allowances, higher grade, increments etc. from the period he was kept under suspension to the date of his superannuation. vi) to direct the respondents to reckon the service upto 31.3.1996 i.e till the end of the Academic Year in which he attained the age of superannuation. (vii) to issue such other further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of this case. To issue a Writ of certiorari and quash Ext.P16. w.p.c.22859/07 3 To direct the respondents to pay the subsistence allowances to the petitioner for the period from 29.7.1994 to 31.3.1996.” 2. According to the petitioner, the disciplinary proceedings are vitiated for non-compliance with the procedure prescribed under the Kerala Civil Services (Classification, Control and Appeal) Rules, insofar as no enquiry had been conducted with notice to the petitioner and there is also no enquiry report. More over, Ext.P16 order was never served on the petitioner. 3. A counter affidavit has been filed by the 1st respondent, wherein the contention taken is that as stated in Ext.P16 order, although the petitioner accepted the charge memo dated 16.12.1994 issued to him, he simply filed a reply statement stating that he is denying the same without giving specific reply to the allegations against him. Subsequently, a letter dated 13.5.1995 was issued to the petitioner directing him to appear for an enquiry on 28.7.1995, which was returned by the postal authorities with the endorsement “refused”. Therefore, the disciplinary proceedings were continued and he was issued with a notice to show cause why he should not be removed from service. It is after considering his reply to the same, that Ext.P16 order has been passed. The 1st respondent would contend that Ext.P16 was sent by post to the petitioner and he refused to accept the same also. Therefore, the notice regarding his removal from service by Ext.P16 order was published in the newspapers. It is specifically w.p.c.22859/07 4 contended that Ext.P16 is dated 11.10.1995 and the petitioner filed this writ petition challenging the same only on 31.1.2008 more than 12 years thereafter. According to the 1st respondent, the petitioner has not offered any acceptable explanation for the long delay of 12 years and the writ petition should be dismissed on that ground alone. 4. The petitioner would contend that the petitioner was unaware of Ext.P16 and he has filed a reply denying the averment that he had refused to accept Ext.P16 and notice was published in the newspapers. 5. I have considered the rival contentions in detail. 6. Technically one thing is in favour of the petitioner. There is no enquiry report in this case. Of course, in Ext.P16 it is specifically stated that the petitioner refused to accept the notice posting the disciplinary proceedings for enquiry. But even if he had refused to accept the notice, the disciplinary authority was statutorily bound to conduct an enquiry and obtain a enquiry report before further proceeding with the disciplinary proceedings, which has not been done in this case. But still, the petitioner's explanation for the long delay of 12 years does not appear to be convincing at all. Admittedly, the petitioner's date of superannuation was 2.12.1995 and the minimum an ordinary prudent person would do is to enquire about the retirement benefits due to him, if he was not actually removed from w.p.c.22859/07 5 service. Therefore, I am of opinion that the petitioner has not sufficiently explained the long delay of 12 years in challenging Ext.P16 order appropriately. As such, I am inclined to consider his inaction in the matter for 12 years as an acceptance of the punishment. 7. The learned counsel for the petitioner submits that the petitioner would be satisfied if the dismissal from service is converted into compulsory retirement, accepting that the petitioner is guilty of the misconducts found to have been committed by him by Ext.P16 order. In view of the said specific request of the petitioner, taking into account all other facts and circumstances fo the case, I am inclined to direct that the punishment of the petitioner be converted into the one of compulsory retirement from service with effect from 29.7.1994. Consequently, the petitioner would be entitled to the benefits arising from such compulsory retirement from service. Orders in that regard shall be passed and benefits arising therefrom shall be disbursed to the petitioner, as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.22859/07 6