IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 WA.No. 2952 of 2007() --------------------- AGAINST THE JUDGEMENT IN WPC.1591/2004 Dated 26/11/2007 .................... APPELLANT/PETITIONER ------------------------ T.K.GOPALAKRISHNAN, SENIOR GRADE VESHAM TEACHER, (NOW UNDER ORDERS OF TERMINATION), UNNAYI WARRIER SMARAKA KALANILAYAM REG.NO.9/55, UNNAYI WARRIER ROAD, IRINJALAKUDA-680 121. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SRI.A.SAMEER SRI.M.H.HANIS RESPONDENTS/ RESPONDENTS -------------------------- 1. UNNAYI WARRIER SMARAKA KALANILAYAM REG.NO. 9/55, UNNAYI WARRIER ROAD, IRINJALAKUDA-680 121, REPRESENTED BY ITS SECRETARY. 2. THE MANAGING COMMITTEE OF THE UNNAYI WARRIER SMARAKA KALANILAYAM REG.NO.9/55, UNNAYI WARRIER ROAD, IRINJALAKUDA- 680 121, REPRESENTED BY ITS PRESIDENT. BY ADV.ASHOK KUMAR FOR R1 & R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------ W.A.No.2952 of 2007 ------------------------------ Dated this, the 11th day of August, 2009 JUDGMENT Balakrishnan Nair, J. The appellant was the writ petitioner. He was a teacher working under the respondents. He was removed from service by the decision of the second respondent with effect from 25.9.2003, by resolution dated 5.12.2002. By the order of the second respondent, the secretary of the first respondent has communicated the same to the appellant by Ext.P12 dated 8.12.2002. Challenging Ext.P12, the writ petition was filed. The learned Single Judge took the view that, since the appellant has a right of appeal to the General Council under Rule 51 of the Unnayi Warrier Smaraka Kalanilayam Service Rules, the appellant has to invoke that remedy. As per the judgment under appeal, it was ordered that if the appellant invokes the alternative remedy within one month from the date of that judgment, the appeal shall be entertained and dealt with as filed in time. But the appellant, W.A.No.2952 of 2007: - 2 - instead of invoking the said appellate remedy filed the writ appeal. 2. We heard the learned counsel for the appellant. The learned counsel tried to canvass that Ext.P12 has been issued by the Secretary who is not the competent authority. So, Ext.P12 is issued without jurisdiction and, therefore, this Court should have quashed the impugned order, instead of turning him away to invoke the appellate remedy. We notice that, the decision in Ext.P12 has been taken by the Managing Committee, which has been communicated by the Secretary of the first respondent. At every stage of the disciplinary proceedings, as will be evident from Ext.P12, the decision was taken by the Managing Committee. The Secretary being the executing authority, was communicating the decision. So, the said contention of the appellant cannot be accepted. Once the learned Single Judge dismisses the writ petition on the ground of availability of alternative remedy, an appeal under Section 5 of the Kerala High Court Act is not maintainable, unless it is shown that the exercise of discretion by the W.A.No.2952 of 2007: - 3 - learned Single Judge is perverse. Going by the facts of the case, it cannot be held that, the decision of the learned Single Judge is perverse. In the result, the Writ Appeal is dismissed, without prejudice to the contentions of the appellant. If the appellant prefers the appeal before the General Council as directed by the learned Single Judge, the period this writ appeal was pending before this Court shall be excluded while computing the period fixed by the learned Single Judge for filing the appeal. Sd/- K. Balakrishnan Nair, Judge. Sd/- C.T. Ravikumar, Judge. DK. (True copy)