IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 18TH FEBRUARY 2010 / 29TH MAGHA 1931 OP.No. 27169 of 2002(H) ---------------------------------- PETITIONER: ------------------- P.T.DAVID, S/O. THOMAS, PONNAYUR HOUSE, P.O.CHITTILAPPILLY, TRICHUR DISTRICT- 680 551 WAS WORKING AS AGRICULTURAL ASST.GRADE I, KRISHI BHAVAN, CHOWARA. BY ADV. MR.M.P.KRISHNAN NAIR. RESPONDENTS: ------------------------ 1. STATE OF KERALA, THE PRINCIPAL SECRETARY, AGRICULTURE DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM 2. THE DIRECTOR OF AGRICULTURE, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. THE PRINCIPAL AGRICULTURAL OFFICER, PRINCIPAL AGRICULTURE OFFICE, TRICHUR-20. R1 TO R3 BY GOVERNMENT PLEADER SMT. M.R. SREELATHA. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 27169/2002-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REPRESENTATION DTD. 30/10/2000 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS. EXT.P.2: COPY OF THE ORDER NO. SVC4/54041/2000 DTD. 03/03/2001. EXT.P.3: COPY OF THE APPEAL DTD. 05/04/2001 SUBMITTED BY THE PETITIONER BEFORE THE R.1. EXT.P.4: COPY OF THE ORDER G.O.(RT).NO.217/02/AD DTD. 20/03/2002 ISSUED BY THE R.1. EXT.P.5: COPY OF THE REPRESENTATION DTD. 29/06/02 SUBMITTED BY THE PETITIONER BEFORE THE R.1. EXT.P.6: COPY OF THE PAPER REPORT APPEARED IN MALAYALA MANORAMA DAILY DTD. 03/07/2002. EXT.P.7: COPY OF THE PROCEEDINGS NO.SVC(4)54041/00 DTD. 29/06/2002 ISSUED BY THE DIRECTOR OF AGRICULTURE. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. ~~~~~~~~~~~~~~~~~~~ O.P. No.27169/2002 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 18th day of February 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ J U D G M E N T The petitioner joined the service of the Government of Kerala on 3/8/1983 as an Agricultural Demonstrator. He was later promoted as Agricultural Assistant Grade-I, in 1992. He applied for Leave Without Allowances (LWA) for 5 years from 1/10/1994 on domestic reasons. He wanted to rejoin duty after the expiry of the leave applied for. At that time he was informed that his leave was not sanctioned. Thereafter, he filed an application for LWA, on medical grounds along with a medical certificate. That also was not sanctioned. Subsequently, the petitioner was allowed to join duty on 5/5/2000, subject to disciplinary action, for the unauthorised absence and he continued to work thereafter. 2. He filed an application for voluntary retirement from 30/8/2000, by application dated 26/5/2000. Then the petitioner was informed that he did not have sufficient O.P. No.27169/2002 2 qualifying service for seeking voluntary retirement. He submitted a resignation later, seeking to retire from service with effect from 31/8/2000. That resignation not accepted. But on 1/9/2000, he filed a nomination for contesting the elections to the local bodies. He contested the election and lost. Thereafter, he submitted an application seeking to withdraw the resignation letter, which was not allowed. The petitioner approached this Court and this Court ordered the Government to pass appropriate orders on his representation in this regard. Pursuant to that, Ext.P4 order dated 20/3/2002 was passed by the Government holding that, since he committed serious misconducts by filing a nomination in the elections to the local bodies, while in service, he cannot be permitted to withdraw his resignation letter. Accordingly, by Ext.P4 order, the Director of Agriculture was directed to accept his resignation with effect from 31/8/2000. The petitioner is challenging Ext.P4 order in this writ petition. 3. According to the petitioner, under law, the petitioner O.P. No.27169/2002 3 can withdraw the resignation at any time before the same is accepted. He contends that his resignation letter seeking to resign from services on 31/8/2000 was never accepted by the competent authority. He submitted an application for withdrawal of the resignation on 30/10/2000. His resignation was accepted only by Ext.P4 dated 20/3/2002. Since his application for withdrawal of resignation was much before the acceptance of resignation, under law, the petitioner's resignation could not have been put into effect is the contention raised by the petitioner. The petitioner, therefore, seeks the following reliefs; (i) Call for the entire records of the petitioner's case leading to issue of Ext.P2, P4 and P7 and all action taken by the 1st respondent in pursuance of Ext.P5 and quash Ext.P2, Ext.P4 and P7; (ii) To issue a writ in the nature of mandamus or appropriate writ or order declaring that Ext.P2, Ext.P4 and P7 are highly illegal, malafide in nature, discriminatory in character, unjust, unfair, unreasonable and unsustainable; (iii) To issue a writ in the nature of mandamus or appropriate writ or order declaring that the petitioner is entitled to withdraw his application for voluntary retirement dated 26/5/2000 and O.P. No.27169/2002 4 resignation letter dated 31.8.2000 and continue in service without any break as Agricultural Assistant in Krishi Bhavan, Chowannur, Trichur as if there is no voluntary resignation from 31/8/2000; (iv) To issue a writ in the nature of mandamus or any other appropriate writ, order/orders, direction/directions, directing the respondent to accept the petitioner's request for withdraw the application for voluntary retirement and resignation letter dated 31/8/2000 and allow him to join duty as Agricultural Assistant, Krishi Bhavan, Chowannur till retirement; (v) To issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to act according to law; (vi) To pass any other writ/writs, order/orders, direction/ directions which are deemed fit and proper in the facts and circumstances of the case; AND (vii) To award the cost to the petitioner. 4. A counter affidavit has been filed by the first respondent justifying the action in refusing to allow the petitioner to withdraw his resignation and accepting his resignation by Ext.P4. The counter affidavit proceeds on the basis that since the petitioner committed misconducts violating the Rules 67, 69, 70 and 71, of Kerala Government Servants' Conduct Rules 1960, by filing a nomination for O.P. No.27169/2002 5 contesting the elections to the local bodies while he was still in service, the respondents were justified in rejecting his application for withdrawal of resignation. 5. I have considered the rival contentions in detail. I am of the opinion that the petitioner is bound to win this writ petition only because of the conduct of the respondents. The respondents never did what they ought to have done at the appropriate time. Admittedly, the petitioner was absent from duty without leave for a period of 5 long years. Apart from threatening the petitioner with disciplinary action, no action whatsoever was taken. Instead, the petitioner was allowed to join duty on 5/5/2000, subject to disciplinary action and that disciplinary action never materialised. Again the petitioner filed a nomination paper and contested the election to the local bodies, while he was still in Government service which is a misconduct. For that also, no disciplinary action was taken by the respondents. The petitioner's resignation letter dated 31/8/2000 was not acted upon also. The respondents O.P. No.27169/2002 6 woke up only when this Court reminded them of their duty to dispose of the application submitted by the petitioner. Ext.P4 order directing to accept the resignation of the petitioner was passed only by Ext.P4 dated 20.3.2002, much after he sought to withdraw the resignation. In fact Ext.P4 was passed in an appeal by the petitioner against the order of the Director of Agriculture, refusing to accept his application to withdraw his resignation. As such at every stage, the respondents are in default. As a result, a delinquent employee has been let of by the inaction of the respondents. 6. As far as the legal question is concerned, I am constrained, albeit reluctantly, to accept the contentions of the petitioner. Admittedly, the petitioner's resignation dated 31/8/2000 was not accepted before he filed an application to withdraw the said resignation. Therefore, notwithstanding the fact that, he was liable to be proceeded against in disciplinary action, under law, the respondents could not have refused to accept his application to withdraw the O.P. No.27169/2002 7 resignation letter. As such, Ext.P4 is clearly vitiated. Accordingly, the same is quashed. The petitioner shall be reinstated forthwith, but in view of the conduct of the petitioner, I am not inclined to grant any backwages. This would be without prejudice to the right of the respondents to take appropriate disciplinary action against the petitioner for the misconducts of unauthorised absence and filing a nomination in an election to the local bodies while in service, for which action shall be initiated and completed, within a period of six months from the date of his reinstatement in service. The original petition is disposed of as above. S. SIRI JAGAN, JUDGE nl