IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 30TH SEPTEMBER 2011 / 8TH ASWINA 1933 WA.No. 1318 of 2011(I) ---------------------- AGAINST THE JUDGEMENT IN WPC.11761/2006 Dated 28/07/2011 .................... APPELLANT/2ND RESPONDENT: ---------------------------------- REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, TRIVANDRUM-695011, REPRESENTED BY ITS DIRECTOR. BY ADV. SRI.K.R.RADHAKRISHNAN NAIR RESPONDENTS/PETITIONER AND 1ST RESPONDENT: --------------------------------------------------------- 1. P. GOPAKUMAR, "SHYLAJAM" MARKET ROAD, ENIKARA, KARAKULAM.P.O.,TRIVANDRUM-10. 2. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM. R1 BY ADV. SRI.P.PARAMESWARAN NAIR SRI.R. SUDHEESHKUMAR R2 BY SENIOR GOVT. PLEADER, SMT.K. MEERA. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 1318 OF 2011 - - - - - - - - - -- - - - - - - - - - - - - - Dated this the 30th day of September, 2011 JUDGMENT J.Chelameswar, C.J. Aggrieved by judgment dated 28.07.2011 the 2nd respondent therein preferred the instant appeal. The 2nd respondent institution is run by the State of Kerala. The 1st respondent herein was the writ petitioner in the abovementioned writ petition. 2. The 1st respondent was dismissed from the service of the appellant herein on the grounds of some alleged misconduct. Aggrieved by the same, the 1st respondent had approached this Court earlier in OP.No.25948 of 1999(Ext.P3 in the instant writ petition). It was disposed of by judgment dated 23.09.2005. This Court held that the punishment of dismissal from the service was “disproportionate to the misconduct” alleged against the respondent though it was held to be “not shockingly disproportionate”. This Court further directed the appellant herein to re-consider the punishment to be awarded to the respondent. W.A. 1318 of 2011 -:2:- 3. Pursuant to the abovementioned judgment, the appellant reconsidered the matter and issued further orders in Ext.P7. Substance of the order is that the 1st respondent was appointed to the post of Helper in the scale of pay of Rs.2550- 3200 in the appellant's organisation subject to various terms and conditions specified therein. The relevant condition is condition No.3 which reads as follows: “The period of termination will not be considered for any service benefits such as seniority, arrears of pay, increment etc.” 4. In substance, the original order of termination was not revoked by the appellant. But the appellant chose to reappoint the 1st respondent. Aggrieved by the same, the 1st respondent once again approached this Court by way of W.P.(C) No.17761 of 2006 from out of which the instant appeal arises. A learned Judge of this Court disposed of the said writ petition. The operative portion reads as follows: “Therefore in the appeal filed by the petitioner, the respondents should have reinstated the petitioner into service with a lesser punishment. But, I am not inclined to remand the matter further to the respondents to impose a proper W.A. 1318 of 2011 -:3:- punishment because of their recalcitrant attitude in the matter. I am of the opinion that the proper punishment to be imposed on the petitioner was on a warning, especially since the petitioner had submitted that he is prepared to wear any uniform in accordance with the service rules, which has been recorded in Ext.P3 judgment. Therefore the petitioner is entitled to reinstatement in service from the date when he was dismissed from service. In the facts and circumstances of the case, I am inclined to deny to the petitioner 50% of the backwages. Accordingly, the respondents are directed to reinstate the petitioner with 50% backwages. The petitioner shall be entitled to all other service benefits for the period during which he was kept out of service.” The substance is that Ext.P7 order is modified and it was declared that the writ petitioner is entitled to reinstatement in service with 50% of the backwages and all other service benefits for the period for which he was kept out of service. 5. In view of the fact that in the first round of litigation this Court found that the punishment of dismissal from service was disproportionate to the misconduct stood against the petitioner and directed reconsideration of the matter by the appellant, we see no reason to interfere with the judgment under appeal as the impugned order in the judgment is not in W.A. 1318 of 2011 -:4:- conformity with the decision of this Court which held that the dismissal from service is disproportionate to the misconduct against the respondent. A fresh appointment without continuity of service and without back wages is certainly not consistent with the earlier judgment of this Court, which has become final. We do not see any reason to interfere with the judgment under appeal. The Writ Appeal is dismissed at the admission stage. J.Chelameswar, Chief Justice. P.R.Ramachandra Menon, Judge. ttb/vku.