IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 WP(C).No. 35914 of 2008(A) -------------------------- PETITIONER(S): --------------- D.PRASAD(FORMERLY)JUNIOR MANAGER, QUALITY CONTROL, KERALA STATE CIVIL SUPPLIES CORPORATION), R/AT.VIJAYAPRASA=THAM, PRA.46, PUTHUPPALLY LANE, MEDICAL COLLEGE PO., THIRUVANANTHAPURAM. BY ADV. SRI.KRB.KAIMAL (SR.) SRI.B.UNNIKRISHNA KAIMAL SRI.V.MADHUSUDHANAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT OF KERALA, FOOD , CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. BOARD OF DIRECTORS, KERALA STATE CIVIL SUPPLIES CORPORATION LTD. REP. BY ITS MANAGING DIRECTOR, MAVELI BHAVAN MAVELI ROAD, GANDHI NAGAR, KOCHI-682020. 3. CHAIRMAN AND MANAGING DIRECTOR KERALA STATE CIVIL SUPPLIES CORPORATION LTD., MAVELI BHAVAN, GANDHI NAGAR, ERNAKULAM. ADV. SRI.LAKSHMI NARAYAN, SC, SUPPLYCO FOR R2 & 3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.35914 of 2008 ------------------------------- Dated this the 11th December, 2008. J U D G M E N T Heard Sri.K.R.B.Kaimal, the learned Senior Advocate appearing for the petitioner and Sri.Lakshmi Narayan, the learned Standing Counsel appearing for respondents 2 and 3. 2. The petitioner is an employee of the Kerala State Civil Supplies Corporation Ltd. While he was working as Junior Manager (Quality Control), he was placed under suspension by order passed on 15.1.2005. Later a memo of charges dated 31.1.2005 was issued and the then General Manager was appointed as the Enquiry Officer. The Enquiry Officer submitted a report and thereupon the disciplinary authority viz., the Chairman and Managing Director of the Corporation, issued Ext.P1 show cause notice together with a copy of the enquiry report calling upon the petitioner to show cause why the provisional decision taken by him to dismiss the W.P.(C) No.35914/2008 2 petitioner from service and to recover the loss caused by him to the Corporation should not be finalised. The petitioner submitted Ext.P2 reply. The disciplinary authority did not accept the explanation offered by the petitioner and issued Ext.P3 proceedings dated 14.10.2005 imposing on him the punishment of dismissal from service. The petitioner carried the matter in appeal before the Board of Directors of the Corporation. By Ext.P5 order passed on 26.12.2005, the Board of Directors of the Kerala State Civil Supplies Corporation Ltd. consisting of the Chairman and Managing Director, rejected the said appeal. The petitioner thereafter moved the Government and the Government in Ext.P6 letter dated 8.5.2006 directed the Chairman and Managing Director of the Corporation to reinstate the petitioner in service and to order a fresh enquiry in respect of the charges which stood proved in the first enquiry. When the Chairman and Managing Director did not implement Ext.P6, the petitioner submitted Ext.P7 representation before the Government seeking appropriate orders. This writ petition is thereafter filed challenging Exts.P3 and P5 and seeking a writ in the nature of W.P.(C) No.35914/2008 3 mandamus commanding the Corporation to reconsider Ext.P4 appeal and pass fresh orders thereon. 3. The petitioner contends, relying on Rule 71 of Kerala State Civil Supplies Corporation Service Rules that the disciplinary authority cannot be a member of Board of Directors which decided the appeal and that in violation of the said rule, the Chairman & Managing Director who passed Ext.P3 order, presided over the meeting of the Board which considered the petitioner's appeal, participated in the proceedings and also issued Ext.P5 order, though in the name of the Board. The petitioner submits that Ext.P5 order is therefore liable to be set aside on that short ground. The petitioner has specifically averred in ground-D of the writ petition that as per Rule 71 of the Kerala State Civil Supplies Corporation Service Rules, the Chairman & Managing Director who issued Ext.P3 order dismissing the petitioner from service was not entitled to participate in the proceedings of the Board in which Ext.P4 appeal W.P.(C) No.35914/2008 4 was considered. The said averment is not disputed by the second respondent in its counter affidavit. 4. Sri.Lakshmi Narayan, the learned Standing Counsel appearing for respondents 2 and 3 submits, on instructions, that the Chairman and Managing Director who issued Ext.P3 order was a member of the Board of Directors which heard and decided Ext.P4 appeal. He further submits that in the light of Ext.P9 judgment of this Court issued in identical circumstances, the Corporation is willing to re-consider the appeal and pass fresh orders thereon, after affording the petitioner an opportunity of being heard. The learned Senior Advocate appearing for the petitioner submits that the Chairman & Managing Director presently in office is not the Chairman & Managing Director who issued Ext.P3 order, and therefore, the prohibition in Rule 71 may not now apply, if the appeal were to be heard afresh by the Board of Directors of the Corporation. 5. In the light of the specific provision in Rule 71 of Kerala State Civil Supplies Corporation Service Rules and also the W.P.(C) No.35914/2008 5 fact that the respondents have not denied the participation of the Chairman & Managing Director who issued Ext.P3 order, in the proceedings of the Board which lead to Ext.P5 order, I am of the opinion that Ext.P5 order passed by the Board in appeal, is liable to be set aside and the second respondent directed to re-consider the appeal on the merits. In these circumstances, I quash Ext.P5 order and direct the Board of Directors of Kerala State Civil Supplies Corporation Limited to reconsider Ext.P4 appeal and pass orders thereon, after affording the petitioner a reasonable opportunity of being heard in person. Revised orders on Ext.P4 appeal shall be passed within three months from the date of receipt of a copy of this judgment. The petitioner's contentions on the merits are left open. P.N.RAVINDRAN, JUDGE nj.