Dismissed

Mohammed Kasim P.P. v. the Administrator and Others

Kerala HC4 Aug 2016WP(C)/28336/2009

Case brief

AI extract

What is this about?

This writ petition challenged an order terminating the petitioner's service during probation for alleged misconduct. The High Court analyzed the relevant Standing Order provisions, distinguishing between punitive dismissal for misconduct and removal for unsuitability. Finding no inquiry held, the Court held that the petitioner was removed, not terminated, and dismissed the writ petition.

What the court decided

AI extract

Mohammed Kasim P.P. Vs the Administrator and… — Pension and Retirement Benefits | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

¶4

¶5

THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

¶6

THURSDAY, THE 4TH DAY OF AUGUST 2016/13TH SRAVANA, 1938

¶7

WP(C).No. 28336 of 2009 (S)

¶8

AGAINST THE ORDER IN OA 514/2005 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 26-07-2007

¶9

PETITIONER(S):

¶10

P.P.MOHAMMED KASIM, AGED 32 YEARS,

¶11

S/O.SAYED SHAIKOYA, ANDROTH ISLAND, U.T.LAKSHDWEEP, CONSTABLE (PIS NO.5199175)(UNDER ORDER OF TERMINATION) INDIAN RESERVE BATTALION, LAKSHADWEEP DAMAN AND DIU & DADRA AND NAGAR, HAVELI.

¶12

BY ADV. SRI.P.V.MOHANAN

¶13

RESPONDENT(S):

¶14

THE ADMINISTRATOR, UNION TERRRITORY OF LAKSHADWEEP, KAVARATHI.

¶15

THE INSPECTOR GENERAL, INDIAN RESERVE BATTALION, LAKSHADWEEP, DAMEN AND DIU AND DADRA AND NAGAR HAVELI, HEAD QUARTERS, KAVARATHI.

¶16

THE COMMANDANT, OFFICE OF THE COMMANDANT, INDIAN RESERVE BATTALION, LAKSHADWEEP DAMAN AND DIU, DADRA AND NAGAR, HAVELI.

¶17

R BY SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN.

¶18

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶19

WP(C).No. 28336 of 2009 (S)

¶20

APPENDIX

¶21

PETITIONERS EXHIBITS :

¶22

EXT. P1 : TRUE COPY OF the ORDER IN O.A. NO. 514/2005 DATED 26.07.2007 EXT. P2 : TRUE COPY OF THE O.A. NO. 514/2005 EXT. P3 : TRUE COPY OF THE REPLY STATEMENT IN O.A. NO. 514/2005 EXT. P4 : TRUE COPY OF THE REJOINDER IN O.A. NO. 514/2005 EXT. P5 : TRUE COPY OF THE REPORT DATED 17.09.2002 SUBMITTED BY THE SUB INSPECTOR TO THE ASSISTANT COMMANDANT. EXT. P6 : TRUE COPY OF THE SHOW CAUSE NOTICE DATED 11.10.2002

¶23

/TRUE COPY/

¶24

P.A. TO JUDGE

¶25

P.R. RAMACHANDRA MENON &

¶26

ANIL K. NARENDRAN, JJ.

¶27

¶28

JUDGMENT

¶29

Ramachandra Menon, J.

¶30

The petitioner, who was the applicant before the Central Administrative Tribunal, is aggrieved of Ext. P1 order passed by the Tribunal declining interference with regard to the challenge raised against Annexure A4 order, whereby he was 'terminated' from service for the alleged incriminating circumstances mentioned therein.

¶31

The petitioner, on coming out successful in the process of selection, was appointed as a Constable in the Indian Reserve Battalion as per Annexure A1 order dated 10.04.1999. The petitioner completed the first phase of training and joined duty, pending confirmation in service. While so, by virtue of the organizational requirement, IR Battalion had to move from the Kavaratti island RHQ, to the Silvassa and they were proceeding in the vehicle concerned on 20.02.2001. On their way, they were stopped at Thaliparamba, with intent to have night halt. The troop was sought to be stationed in a particular lodge/hotel and according to the

¶32

W.P.(C) No. 28336 of 2009

¶33

: 2 :

¶34

petitioner, he along with two others had gone out to a nearby 'fast food shop' to have some snacks. It was about 11.30 p.m. by that time. There was admittedly a quarrel with the locals and after return, the rooms were compelled to be vacated and the troop proceeded further to the destination.

¶35

Later, referring to the above instances, the petitioner was served with Annexure A2 memo dated 31.08.2002, to which explanation was stated as submitted (copy of which is not produced). Subsequently, the Assistant Commandant, who is having control over the unit, sought for a report from the concerned Sub Inspector, who submitted Annexure R1 report on 17.09.2002. By that time, a statement was also recorded from the Manager of the Hotel on 03.09.2002; a copy of which has been produced as Annexure R2. Annexure R3 is the Enquiry report dated 04.09.2002 submitted by the Assistant Commandant. Based on the materials collected as above, a show-cause notice was issued to the petitioner on 11.10.2002, vide Annexure R4, adding some more incriminating circumstances and asking for explanation, as to why his service shall not be terminated. On receipt of Annexure R4, the petitioner submitted Annexure R5 reply pleading innocence and trying to explain the situation. However,

¶36

W.P.(C) No. 28336 of 2009

¶37

: 3 :

¶38

after considering the same, Annexure A4 order came to be passed on 30.11.2002, terminating the service of the petitioner during the period of 'probation', invoking the power under Rule 17(9) Chapter II of the Standing Order No. 02 (a copy of which has been produced as Annexure R7).

¶39

Met with the situation, the petitioner preferred Annexure A5 appeal before the Inspector General on 24.12.2002 specifically contending that Rule 17(9) Chapter II of the Standing Order No. 02 would never be attracted to the case in hand. It is stated that no order was passed by the appellate authority on Annexure A5, which made the petitioner to file Annexure A6 representation before the Administrator, Union Territory of Lakshadweep. The appeal was stated as rejected by the Competent Authority as communicated to the petitioner, vide Annexure A7. It was accordingly, that the petitioner sought to challenge Annexures A4 and A7 by filing O.A. No. 514 of 2015.

¶40

The relief was sought to be resisted by the respondents in the O.A. with reference to the facts and figures and the relevant provisions of law. After hearing both the sides and also placing reliance on the judicial precedents, interference was declined and the

¶41

W.P.(C) No. 28336 of 2009

¶42

: 4 :

¶43

O.A. was dismissed as per Ext. P1 order, however observing that the impugned order would not carry any stigma. This, according to the petitioner, is not adequate enough in so far as he has been declared as 'terminated' from service invoking the power under Rule 17(9) Chapter II of the Standing Order No. 02, which in turn is under challenge in this writ petition, seeking to set aside Ext. P1 order and also directing the respondent to reinstate him in service with all consequential benefits.

¶44

Heard Sri. P.V. Mohanan, the learned counsel appearing for the petitioner and Sri. S Radhakrishnan, the learned standing counsel appearing for the Lakshadweep Administration.

¶45

We have gone through the contents of the pleadings and proceedings produced before this Court. The circumstances under which the show-cause notice was issued to the petitioner and the sequence of events are very relevant. The initial explanation stated as submitted by the petitioner, on receipt of Annexure A2 show cause notice, has not been produced by him. In the subsequent explanation submitted by the petitioner, it is stated that he, along with two others, had gone out; that there was some quarrel with the locals and that the petitioner returned without taking food. Even going by the

¶46

W.P.(C) No. 28336 of 2009

¶47

: 5 :

¶48

admitted version, the quarrel with the local people stands admitted/conceded by the petitioner. This has to be considered in the light of other mitigating circumstances, particularly the report submitted by the concerned S.I. to the Assistant Commandant, vide Annexure R1, and the course and events. After hearing both the sides and considering the materials as above, in so far as the petitioner was continuing in service as 'probationer', and was still to be confirmed in service, it cannot be said that the petitioner was sent out for no reason at all. It was quite possible for the authorities concerned to have expressed dis-satisfaction of the service of the probationer and as to his unsuitability to continue in service; if the factual position warranted it.

¶49

Under such circumstances, two courses are possible; viz, the work rendered by the probationer may not be satisfactory to the requisite extent; upon which, the probationer could be sent out, holding that his service was unsatisfactory, which does not cast any stigma. If the probationer had committed any misconduct, it was also open for the employer, to proceed against such misconduct and impose proper punishment (which may include dismissal/termination from service, depending on the gravity of the proven misconduct),

¶50

W.P.(C) No. 28336 of 2009

¶51

: 6 :

¶52

once it was proved. But then, such punishment can be imposed only after conducting a proper enquiry in accordance with the relevant provisions of law.

¶53

The question to be considered is, whether the concerned respondent has imposed any 'punishment' upon the petitioner in respect of such instance of misconduct or whether it can be treated as removal of the probationer from service without necessity to have conducted any enquiry and imposition of punishment, if the service was unsatisfactory or unsuitable for the post.

¶54

Admittedly, Annexure A4 order has been passed by the competent authority with reference to Rule 17(9) Chapter II of the Standing Order No. 02, which reads as follows :

¶55

“(9) A member of the I.R. Battalion undergoing

¶56

training anywhere or with any organization before confirmation must satisfactorily complete the training. In case anybody deserts/leaves in between the training period or probation without information they stand terminated/dismissed. Termination/dismissal shall follow action as per proposed regulation. Such deserters shall refund all training charges, all pay and allowance drawn etc. A member of the I.R. Battalion found unsuitable can removed within training period

¶57

W.P.(C) No. 28336 of 2009

¶58

: 7 :

¶59

without notice and within probation with prior notice.”

¶60

Obviously, the said Rule has two parts. The first limb deals with instance of 'termination/dismissal' from service; if a probationer leaves the unit without permission and does not report for duty. Under the second limb, it is open for the authority concerned to declare a probationer as unsuitable or unfit , upon which, it is for them to have him 'removed' from service. Thus, the terminology used in two limbs are different; in the former case, it is 'termination/dismissal' , whereas in the latter case i.e., when the probationer found unsuitable or unfit, it is 'removal' from service.

¶61

In so far as there is no case for the respondents that any enquiry was conducted in respect of the misconduct committed by the petitioner and the same was proved in an enquiry, to have imposed punishment of 'dismissal' or 'termination' from service and since putting an end to the service of the petitioner was only on finding him unfit/unsuitable, invoking Rule 17(9) Chapter II of the Standing Order No. 02, this Court finds that the proper word, which ought to have been used in Annexure A4 order was “removed from service” instead of 'terminated from service'. Eventhough the Tribunal has made clear in paragraph 9 of Ext. P1 order that the order of

¶62

W.P.(C) No. 28336 of 2009

¶63

: 8 :

¶64

termination is only in the nature of termination without any sting of stigma, considering the adverse circumstances that may possibly be resulted, as pointed out by the learned counsel for the petitioner, we make it clear that Annexure A4 order would read as “removed from service” , instead of 'terminated from service'. Thus, it is an order of removal simplicitor, because of the unsuitability of the petitioner.

¶65

With the above observations, interference is declined and the

¶66

writ petition stands dismissed.

¶67

Sd/-

¶68

P. R. RAMACHANDRA MENON, JUDGE

¶69

Sd/-

¶70

ANIL K. NARENDRAN, JUDGE

¶71

kmd

¶72

/True copy/

¶73

P.A. to Judge

Mohammed Kasim P.P. v. the Administrator and Others

Case brief

What is this about?

What the court decided

Mohammed Kasim P.P. v. the Administrator and Others

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Divya K.S. Vs Kerala Public Service Commission

Malabar Cement Ltd., Vs the Kerala State Security Staff Asso.

Tyford Estate Vs P.Natarajan

Tomy Joseph Vs the Superintendent of Post Office

N.Ratheesh Kumar Vs State of Kerala

State of Kerala Vs M.K.Mohanan