IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 25TH JANUARY 2010 / 5TH MAGHA 1931 WP(C).No. 19027 of 2005(M) -------------------------- PETITIONER(S): ------------------ P.M.HASSAN, ( AGE 55 YEARS), S/O. MOHAMMED, PANDIKASALA, MANGALASSERI, PEROKE P.O.,KOZHIKODE. BY ADV. SRI.K.P.RAJEEVAN RESPONDENT(S): -------------------- 1. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM. 2. EXECUTIVE DIRECTOR (VIGILANCE) K.S.R.T.C., TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM. 3. DISTRICT TRANSPORT OFFICER, K.S.R.T.C.., SULTAN'S BATTERY DEPOT, WAYANAD DISTRICT. 4. APPELLATE TRIBUNAL OF K.S.R.T.C., TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM. ADV. SRI.SAJEEVKUMAR K.GOPAL, SC, KSRTC FOR R1 TO R3 SRI.V.V.N.NAMBIAR, SC, KSRTC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.19027/2005 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF ORDER DT.13.9.93. EXT.P2: TRUE COPY OF ORDER NO.VLE 2-004829/94. EXT.P3: TRUE COPY OF ORDER NO.RP7/99 DTD.17.7.99 BY THE K.S.R.T.C. APPELLATE TRIBUNAL. EXT.P4: TRUE COPY OF JUDGMENT IN OP NO.28880/1999 DTD.11.10.01 OF THIS HON'BLE COURT. EXT.P5: TRUE COPY OF ORDER NO.RPA38/2001 DTD.3.8.2002 OF THE K.S.R.T.C. APPELLATE TRIBUNAL. EXT.P6: TRUE COPY OF ORDER IN CMP NO.45517/2002 IN OP NO.26817/2002 DTD. 19.9.2002 OF THIS HON'BLE COURT. EXT.P7: TRUE COPY OF MEMO NO.E2-8012/03/SBY DTD. 16.11.02. EXT.P8: TRUE COPY OF CHARGE SHEET NO.VLE2-035865/2002 DTD. 4.10.2002. EXT.P9: TRUE COPY OF SHOW CAUSE NOTICE NO.VLE2-035865/2002 DATED. 27.1.2003. EXT.P10: TRUE COPY OF REPLY TOT HE SHOW CUASE NOTICE DATD 18.2.2003. EXT.P11: TRUE COPY OF ORDER NO.VLE2/035865/2002 DTD.8.5.2003. EXT.P12: TRUE COPY OF SALARY SLIP OF THE PETITIONER FOR NOVEMBER AND DECEMBER 2002 AND APRIL 2003. EXT.P13: TRUE COPY OF APPEAL PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 12.5.2003. EXT.P14: TRUE COPY OF JUDGMENT DATED 28.5.03 IN WPC NO.16403 OF 2003. EXT.P15: TRUE COPY OF ORDER NO.D.DIS.18821/03 (APL) DTD. 19.6.2003. EXT.P16: TRUE COPY OF ORDER NO.D.DIS.25511/03 (APL) DTD.20.12.2003. WPC NO.19027/05 -2- EXT.P17: TRUE COPY OF MEMORANDUM NO.PL A.7/022487/2001 DTD. 23.10.2001. EXT.P18: TRUE COPY OF JUDGMENT IN WPC NO.3479 OF 2004 DATED 2.7.2004. EXT.P19: TRUE COPY OF ORDER NO.VLE2-019522/2004 DATED 27.4.2005. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 19027 OF 2005 (M) ===================== Dated this the 25th day of January, 2010 J U D G M E N T Petitioner joined KSRTC as a Driver in March 1977. According to the petitioner, he applied for leave w.e.f. 24/12/90, but however, without obtaining any order sanctioning the leave, he remained absent. Proceedings were initiated against the petitioner on the allegation of unauthorised absence. Accordingly a charge sheet dated 5/2/92 was issued alleging unauthorised absence w.e.f. 24/12/90. The explanation submitted was unsatisfactory to the disciplinary authority and an enquiry was ordered. Finally, by Ext.P1 order dated 13/9/93, a punishment of barring of two increments without cumulative effect was imposed on the petitioner. 2. Even thereafter, petitioner did not resume duties and it would appear that therefore the proceedings were again initiated on the allegation of unauthorised absence w.e.f. 24.12.90. Charge sheet dated 31/3/94 was issued and the proceedings culminated in Ext.P2 order dated 7/4/97, imposing punishment of compulsory retirement on the petitioner. His appeal to the Managing Director WPC 19027/05 :2 : was rejected and revision filed before the Tribunal was also rejected by Ext.P3 order. In OP No.28880/99 filed by the petitioner, Exts.P2 and P3 were challenged and by Ext.P4 judgment, on the ground that the petitioner having been again imposed punishment for unauthorised absence from 24/12/1990, this Court directed that the question of double jeopardy arises for consideration and accordingly the revision was ordered to be reconsidered. Accordingly, Tribunal passed fresh orders disposing of the revision, a copy of which is Ext.P5. By this order, Ext.P2 order of punishment of compulsory retirement and the order issued by the Managing Director rejecting the appeal were set aside with liberty to the disciplinary authority to initiate fresh action. 3. Petitioner has a case that thereafter he reported for duty, but was not permitted to resume duties. Complaining of this, he approached this Court by filing OP No.26817/02. In that Original Petition, Ext.P6 interim order was passed by this Court directing the respondents therein to readmit the petitioner to duty within one month. Accordingly, by Ext.P7 order dated 16/11/2002, petitioner was readmitted to duty with effect from that date. He was again issued Ext.P8 charge sheet on 4/10/2002, which indicates that the WPC 19027/05 :3 : charge was unauthorised absence from 24/12/1990. An enquiry was held. Ext.P9 shows that the charge of unauthorised absence was held proved, but however, the charge that the petitioner engaged himself in private business was held not proved beyond doubt. Enclosing the copy of the enquiry report, petitioner was issued Ext.P9 show cause notice. By this notice, he was called upon to show cause why the proposed punishment of removal from service shall not be imposed on him. Ext.P10 is the reply filed by the petitioner and the disciplinary authority concluded the proceedings by Ext.P11 order dated 8/5/2003 removing the petitioner from service w.e.f. 24/12/90. 4. He filed Ext.P13 appeal to the Manging Director. Pursuant to Ext.P14 judgment of this Court in WP(C) No.16403/2003 directing disposal of the appeal within two months, the appellate authority considered the appeal and rejected the same by Ext.P15 order. It is stated that the petitioner filed revision before the Tribunal as RP No.12/03, which was disposed of by order dated 6/12/2003 directing fresh disposal of the revision. It was accordingly that Ext.P16 order was passed by the Managing Director upholding Ext.P11 order of removal from service. Exts.P11 WPC 19027/05 :4 : and P16 were called in question in WP(C) No.3479/04 filed by the petitioner. 5. During the pendency of the above writ petition, on 30/6/2004, petitioner attained the age of superannuation. On 2nd of July, 2004, the aforesaid writ petition was disposed of by Ext.P18 judgment quashing Exts.P11 and P16 referred to above. Taking note of the entire facts and also the fact that the petitioner had by then attained the age of superannuation, this Court directed that it is only appropriate that the Managing Director passes an appropriate order taking into consideration the entire facts and circumstances giving the whole issue a quietus. Accordingly, the Managing Director passed fresh orders, a copy of which is Ext.P19. By this order, the removal of the petitioner w.e.f 24/12/90 as ordered in Ext.P11 has been confirmed. It is thereupon that this writ petition is filed. 6. As already seen, the petitioner was absent from 24/12/90. For this absence, he was charge sheeted on 5/2/92 and was imposed a punishment of barring of two increments as per Ext.P1 order. He was again charge sheeted only on 31/3/94. After a long spate of litigation, he was again issued Ext.P8 charges, which WPC 19027/05 :5 : again mentioned the period of absence from 24/12/90. It is pursuant to Ext.P8 that the petitioner was removed from service by Ext.P11, which is now confirmed by the impugned order. As a result of this, the fact remains that the petitioner was on unauthorised absence from 24/12/90 till 16.11.2002 and thereafter continued in service till 8.5.2003, when he was ordered to be removed. While remaining out of service, he also attained the age of superannuation. A reading of Ext.P19 order passed by the Managing Director indicates that the order is passed without taking into account the findings of this Court in Exts.P4 and P18 judgments. 7. First of all in Ext.P4 judgment, this Court has held that this is a case of double jeopardy in as much as the petitioner has already suffered Ext.P1 punishment for his absence for the period from 24/12/90 to 5/2/92. A reading of the impugned order shows that despite the aforesaid finding, which is reiterated in Ext.P18, the absence for the aforesaid period is again held against the petitioner to uphold the order of removal. Further, in Ext.P18, taking note of the developments including the previous judgments and after upholding the proceedings thus initiated and concluded WPC 19027/05 :6 : against the petitioner to be unsustainable, this Court directed the Managing Director to pass orders in the matter. 8. Having regard to the fact that the petitioner has by now attained the age of superannuation and has retired from service, at this distance of time, it is not possible to impose any order of punishment as contemplated in the conduct rules. Therefore, the only question which may at this point of time survive for consideration is the manner in which his period of absence and the period subsequent to 8/5/2003 is to be dealt with. This aspect of the matter has not so far engaged the attention of the 1st respondent. Ext.P19 is therefore quashed. 9. At this point of time, all that is required to be done by the 1st respondent is to consider the case of the petitioner and decide on the manner in which his period of absence and the period subsequent to 8/5/2003 is to be dealt with. This the 1st respondent shall do, as expeditiously as possible, at any rate within 2 months of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp