Dismissed

Viswanathan K.C. v. High Court of Kerala

Kerala HC3 Nov 2016WP(C)/19238/2014

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition seeking reinstatement and quashing of dismissal orders. The petitioner argued that a later corrected discharge certificate established no misconduct occurred when he joined service. The court held that subsequent documents cannot review concluded proceedings already adjudicated up to the Supreme Court.

What did the court decide?

Petition dismissed; no revision of concluded disciplinary proceedings allowed in light of binding inter partes judgments.

Viswanathan K.C. Vs High Court of Kerala — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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THURSDAY, THE 3RD DAY OF NOVEMBER 2016/12TH KARTHIKA, 1938

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WP(C).No. 19238 of 2014 (R)

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PETITIONER(S) :

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VISWANATHAN K.C., AGED 53 YEARS,

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S/O.NALINAKSHA MENON, CHUKKUNGAL HOUSE, THURUTHISSERY, MAIKKAD P.O, ERNAKULAM DISTRICT, PIN-683 589.

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BY ADVS. SRI.P.N.SANTHOSH

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SRI.S.RAMESH SRI.NAVEEN.T SMT.POOJA SURENDRAN

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RESPONDENT(S) :

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1. HIGH COURT OF KERALA, REPRESENTED BY ITS REGISTRAR GENERAL, ERNAKULAM, KOCHI-682 031.

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2. THE DISTRICT JUDGE, DISTRICT COURT, ERNAKULAM, KOCHI-682 011

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3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM-695 004.

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R1 TO R2 BY ADV. SRI.B.UNNIKRISHNA KAIMAL R3 BY ADV. SRI.P.C.SASIDHARAN, S.C

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 19238 of 2014 (R)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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P1: TRUE COPY OF THE ORDER DATED 04/08/2007 ISSUED BY THE 2ND RESPONDENT.

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P2: TRUE COPY OF THE MEMO OF CHARGE DATED 13/02/2008 ALONG WITH THE STATEMENT OF ALLEGATIONS ISSUED BY THE ADDL. DISTRICT AND SESSIONS JUDGE, NORTH PARAVUR.

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P3: TRUE COPY OF THE REPLY DATED 25/02/2008 SUBMITTED BY THE PETITIONER BEFORE THE ADDL. DISTRICT AND SESSIONS JUDGE, NORTH PARAVUR.

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P4: A TRUE COPY OF THE ENQUIRY REPORT DATED 17/09/2008 SUBMITTED BY THE ENQUIRY OFFICER.

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P5: TRUE COPY OF THE NOTICE DATED 26/09/2008 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

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P6: TRUE COPY OF THE REPLY DATED 30/10/2008 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

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P7: TRUE COPY OF THE ORDER DATED 04/11/2008 ISSUED BY THE 2ND RESPONDENT.

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P8: TRUE COPY OF THE ORDER DATED 24/02/2009 ISSUED BY THE 1ST RESPONDENT.

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P9: A TRUE COPY OF THE ORDER DATED 10/09/2012 IN W.P(C).NO. 10485/2009 OF THIS HON'BLE COURT.

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P10: A TRUE COPY OF THE JUDGMENT DATED 01/03/2013 IN WA NO. 95/2013 OF THE DIVISION BENCH OF THIS HON'BLE COURT.

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P11: TRUE COPY OF THE ORDER DATED 25/07/2013 IN O.A NO. 172/2012 OF THE ARMED FORCES TRIBUNAL, REGIONAL BENCH , KOCHI.

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P12: TRUE COPY OF THE SAID DISCHARGE CERTIFICATE DATED 13/03/2014 ISSUED BY THE ARMY AIR DEFENCE CENTRE TO THE PETITIONER.

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P13: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE SUPREME COURT IN AVTAR SINGH VS. UNION OF INDIA & OTHERS DATED 21.07.2016 IN S.L.P.(C) NOS. 20525/2011, 4757/2014 AND 24320/2014.

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P14: TRUE COPY OF THE JUDGMENT DATED 08.08.2011 IN GOVIND NATH VS. STATE OF UTTARAKHAND AND OTHERS OF THE HON'BLE HIGH COURT OF UTTARAKHAND AT NAINITAL.

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WP(C).No. 19238 of 2014 (R)

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P15: TRUE COPY OF THE ORDER DATED 05.01.2011 IN T.A.NO. 182 OF 2010 OF THE HON'BLE ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI IN MALLAPPA R. VS. UNION OF INDIA & OTHERS.

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P16: TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT REPORTED IN 2011(4) SCC 644.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

ANU SIVARAMAN, J.

W.P.(C) No.19238 of 2014

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Dated this the 3^rd day of November, 2016

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JUDGMENT

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The prayers in this writ petition are as follows:

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(i) issue a writ of mandamus or any other appropriate writ, direction or order directing respondents 1 and 2 to re-consider the disciplinary proceedings initiated against the petitioner which culminated in Exts.P-7 and P-8 in the light of Exts.P-11 and P-12.

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(ii) issue a writ of mandamus or any other appropriate writ, direction or order declaring that in the light of Exts.P-11 and P-12 there was no occasion for respondents 1 and 2 to take any disciplinary proceedings against the petitioner since there is no misconduct at the time when the application was submitted seeking employment through P.S.C.

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(iii) issue a writ of mandamus or any other appropriate writ, direction or order declaring that on the basis of the facts available in the light of Exts.P-11 and P-12 the Public Service Commission alone could initiate any proceedings against the petitioner and which has necessarily to be done within the period prescribed under Rule 3 (c) of the K.S. & S.S.R.

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(iv) issue a writ of mandamus or any other

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W.P.(C) No.19238 of 2014 -2-

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appropriate writ, direction or order directing the respondents to reinstate the petitioner in service forthwith with all monetary benefits.

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(v) and grant such other and further reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case including costs.

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The petitioner contends that he was advised for

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appointment as Lascar in the Irrigation Department on 07.12.1992. Thereafter, he had sought and obtained an interdepartmental transfer to the Judicial Service as Peon in the year 1994. He was promoted as Process Server, Attender, Amin and as L.D. Clerk. While so, it is submitted that on the basis of an anonymous petition, enquiry proceedings were initiated against the petitioner. Ext.P2 memo of charges dated 13.02.2008 was served to the petitioner alleging that he had joined Government service without disclosing the disqualification that he is unfit for civil employment, being a deserter from defence service and that he had undergone imprisonment for 6 months and was subjected to court

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martial. It was alleged that he had suppressed the above said facts in the application submitted by him before the PSC, fully knowing that such disclosure would disqualify him for civil employment.

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On the basis of Ext.P2, an enquiry was conducted and Ext.P7 order of dismissal was served on him. The petitioner had challenged Ext.P7 order of dismissal before the second respondent in appeal. By Ext.P8 order dated 24.02.2009, the appeal was also rejected. Thereafter, the petitioner preferred writ petition challenging Ext.P7 and P8 orders. By Ext.P9 judgment dated 10.09.2012, the writ petition preferred by the petitioner was also dismissed. The petitioner took up the matter in appeal. By judgment dated 10.09.2012, in Writ Appeal No.95/2013, the said appeal was also dismissed, after elaborately considering the petitioner's contentions. The petitioner had taken the matter in SLP and by order dated 21.08.2013 the same was dismissed.

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W.P.(C) No.19238 of 2014

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The petitioner contends that he had preferred O.A.No.172/2012 before the Armed Forces Tribunal, Regional Bench, Kochi, seeking directions to the respondents to make endorsement in his discharge book that he is fit for civil employment. By Ext.P11, after considering the contentions advanced by the petitioner and following the decision of Uttarakhand High Court and an earlier decision of the Tribunal, the O.A. was allowed. The respondents were directed to reconsider the matter in the light of the observations and to pass appropriate reasoned orders and communicate the same to the petitioner. Pursuant to Ext.P11, it is submitted that Ext.P12 Discharge Certificate was issued to the petitioner, wherein it was specifically stated that he would be fit for civil employment. The petitioner contends that Ext.P12 revised Discharge Certificate has to be taken into consideration by the second respondent since the petitioner's dismissal from service was on the ground that he had

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W.P.(C) No.19238 of 2014

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suppressed the fact that he was unfit for civil employment.

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Heard the learned counsel for the petitioner as

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well as the learned Standing Counsels appearing for the first and the third respondents.

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The petitioner also relies on a judgment of the Apex Court in Avtar Singh v. Union of India (UOI) and Ors. dated 21.07.2016 to contend that in case of disciplinary action for suppression of material facts at the time of entering into service, the rules in force at the time of his entry in service is to be taken into account. It is further stated that the guildlines formulated in the said judgment provides that only such information which was required to be specifically mentioned has to be disclosed and if information not asked for, but is relevant, comes to the knowledge of the employer, the same can only be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on the basis of suppression or

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W.P.(C) No.19238 of 2014

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submitting false information as to a fact which was not even asked for. Reliance is placed by the counsel for the petitioner on a decision of the Apex Court in Commissioner of Police and Others v. Sandeep Kumar [2011 (4) SCC 644] to contend that in cases of minor crimes committed by youth, the approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.

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It is vehemently contended by the learned counsel for the petitioner that the correction of his Discharge Certificate and the removal of his ineligibility for civil employment therefrom, would give the petitioner a fresh cause of action to agitate the matter before the second respondent. It is further contended that in the light of Ext.P12 Discharge Certificate, the very initiation of disciplinary proceedings against him was unjustified and therefore he would be entitled to orders of reinstatement in service. The

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learned counsel would also contend that the action of the respondents has resulted in the petitioner suffering multiple punishments for an offence.

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The learned counsel appearing for the first respondent would submit that the proceedings against the petitioner were initiated in the year 2007. The said proceedings were concluded by Ext.P7 order of dismissal dated 04.11.2008. Ext.P8 order is passed in appeal on 24.02.2009. These orders were challenged before this Court. Ext.P9 would show that all the contentions raised by the petitioner in respect of the conduct of the enquiry as well as the merits of the charges raised against the petitioner were considered in detail by the learned Single Judge. In Ext.P10 judgment also, the contentions raised as against Ext.P9 as also the orders in the disciplinary proceedings have been considered in detail. It is seen that Ext.P11 judgment was rendered by the Armed Forces Tribunal on 25.07.2013. The

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Tribunal directed to consider the petitioner's case that he was entitled to discharge without any disqualification for civil service in the light of precedents relied on by it. Ext.P12 order correcting the Discharge Certificate was rendered on 13.03.2014. By the said time, all the litigations initiated against the petitioner up to the Apex court had been concluded.

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The contentions raised by the petitioner against the disciplinary proceedings had been considered in extenso by this Court in Exts.P9 and P10 judgments. Ext.P10 judgment of the Division Bench of this Court had been subjected to a SLP before the Apex Court as well which was dismissed in the year 2013. The issuance of Ext.P12 corrected Discharge Certificate after the conclusion of all these proceedings, in my view cannot help the petitioner in seeking a review of the proceedings which have already concluded. This is especially so in view of the fact that the dismissal order

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W.P.(C) No.19238 of 2014

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had been challenged by the petitioner up to the Apex Court in SLP and the validity of the same stands concluded by judicial pronouncements.

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In view of the binding inter parters judgment in the matter, I am of the opinion that Exts.P13 and P16 judgments will not be help the petitioner to seek a review of the proceedings already concluded against him. The writ petition

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is devoid of merits and the same is accordingly dismissed.

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Sd/ANU SIVARAMAN, JUDGE

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Viswanathan K.C. v. High Court of Kerala

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Viswanathan K.C. v. High Court of Kerala

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