IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 WP(C).No. 2929 of 2010(M) ------------------------------- PETITIONER: -------------- JALAJA.G.PRABHU, LOWER DIVISION CLERK, DR.PADIAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA, ERNAKULAM. BY ADVS. SRI.P.SANKARANKUTTY NAIR SRI.T.V.AJAYAKUMAR RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL & CONTROLLING OFFICER, GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE, THIRUVANANTHAPURAM. 3. THE HON'BLE SECRETARY, DR.PADIAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA, ERNAKULAM. 4. THE PRINCIPAL, DR.PADIAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA, ERNAKULAM. BY SMT. NISHA BOSE, GOVERNMENT PLEADER FOR R1 & R2 SRI.N.NAGARESH FOR R3& R4 SRI.T.V.VINU FOR R3 & R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.2929/2010 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF APPOINTMENT ORDER DTD. 1.2.99. EXT. P2 : COPY OF GOVT. ORDER DTD. 20.02.01. EXT. P3 : COPY OF INTERIM ORDER OF THIS COURT IN O.P.34786/01 DTD. 12.7.02. EXT. P4 : COPY OF CHARGE MEMO DTD. 4.8.04. EXT. P5 : COPY OF ORDER IMPOSING PUNISHMENT DTD. 17.1.05. EXT. P6 : COPY OF APPEAL FILED BY PETITIONER DTD. 21.3.05. EXT. P7 : COPY OF JUDGMENT OF this COURT IN O.P.9581/05 DTD. 7.7.05. EXT. P8 : COPY OF ORDER DTD. 3.2.05 PASSED BY R2. EXT. P9 : COPY OF ORDER DTD. 30.8.08 PASSED BY R1. EXT. P10 : COPY OF ORDER DTD. 25.4.09 ISSUED BY R1. EXT. P11 : COPY OF JUDGMENT OF THE SUPREME COURT IN C.A.1152/09 AND CONNECTED CASES DTD. 23.2.09. EXT. P12 : COPY OF ORDER DTD. 28.2.02. EXT. P13 : COPY OF ORDER DTD. 2.6.04. EXT. P14 : COPY OF REPRESENTATION SUBMITTED BY PETITIONER DTD. 21.10.09. EXT. P15 : COPY OF ORDER OF GOVT. FIXING STAFF STRENGTH OF PADIYAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA. EXT. P16 : COPY OF JUDGMENT IN CONTEMPT CASE No.1084/04 DTD. 20.9.04. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.2929 OF 2010 --------------------------------------- Dated this the 3rd day of December, 2011. J U D G M E N T The petitioner is working as Lower Division Clerk in the Dr.Padiar Memorial Homeopathic Medical College, Chottanikkara. The challenge in the writ petition is against Ext.P9 order passed by the Government. The petitioner challenges Exts.P12 and P13 orders also. 2. It is a case where the Management initiated disciplinary proceedings against the petitioner. The petitioner points out that Direct Payment System was introduced in the College with effect from 01.01.2000 which was applicable to the petitioner also. The petitioner was directed by the Management to take over certain duties in the Hospital attached to the College even though the Direct Payment System was not applicable to the Hospital attached to the College. It is contended that since the petitioner was appointed in the College and not in the Hospital, she did not W.P.(C) No.2929/2010 2 initially abide by the instructions in the matter. This led to the initiation of disciplinary proceedings against her. Exts.P12 and P13 are the orders issued by the Management as well as by the 2nd respondent. 3. In Ext.P12, the Management imposed a penalty of cutting of two increments from the salary of the petitioner. In Ext.P13, it was modified by directing the Management to cut one increment in respect of the petitioner for a period of one year without cumulative effect. Apart from the same, another punishment was imposed as evident from Ext.P5 whereby the penalty of reduction of increment by one stage on a permanent basis was imposed. This was challenged in appeal before the 3rd respondent. 4. Ext.P8 is an order passed by the Principal and Controlling Officer stating that the matter is being referred to the Government as the Principal and Controlling Officer is not authorized to act as an appellate authority in the matter of disciplinary action. Finally, the Government passed Ext.P9 order W.P.(C) No.2929/2010 3 wherein after considering various aspects, the Government ordered that the revision petition is not sustainable as the orders have become non existent. 5. Learned counsel for the petitioner submitted that the assumption in Ext.P9 that the orders are not in existence is not correct. It is submitted that the finding in paragraph 10 of Ext.P9 is that the Management of the College revised the punishment by permanently reducing one stage from the salary of the revision petitioner as per its office order dated 17.01.2005 instead of cutting the two increments permanently as decided earlier. It is also mentioned therein that in the case of the order passed by the Principal and Controlling Officer dated 02.06.2004, she has issued a revised order as per the proceedings dated 03.02.2005. The learned counsel submitted that the above assumptions are wrong on facts. Learned counsel for the Management also submitted that no such orders have been passed by the Management. Therefore, basically, the assumption made by the Government in Ext.P9 is wrong on the factual W.P.(C) No.2929/2010 4 aspects. Learned counsel for the petitioner, therefore, submitted that the revision petition which was filed against the subsequent punishment has not been properly considered by the Government. 6. As far as Ext.P12 order is concerned, the said order also has lost its value since the 3rd respondent is not an appellate authority. In a matter like this, person like the petitioner who is visited with a punishment should have a proper remedy of appeal. The Direct Payment System of course enables payment of salary by the Government based on the agreement executed by the Management. But it is not provided therein that the Principal and Controlling Officer or the Government have been conferred with an appellate power in disciplinary matters. 7. Learned counsel for the Management, therefore, submitted that if the petitioner files appropriate appeals before the Board of Trustees as regards the punishment imposed as per Ext.P5, the same will be sympathetically considered. With regard to Ext.P12 order, it is submitted that if the petitioner files a W.P.(C) No.2929/2010 5 representation, the same will be favourably considered. In that view of the matter, Ext.P9 is quashed. The petitioner will file appropriate representation/appeals against the punishments before the Board of Trustees within a period of one month from today which will be considered duly, with notice to the petitioner, and appropriate order will be passed within a further period of two months. This writ petition is allowed as above. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp