Petitioner, relieved from KIED and denied further posting due to pending vigilance cases, challenged the Government order. The Court held the Government could deny posting under the pleasure doctrine due to the sensitive nature of the post, dismissing the writ petition.
Writ petition failed and was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY, THE 12TH DAY OF MARCH 2018 / 21ST PHALGUNA, 1939 WP(C).No. 29558 of 2017
PETITIONER:
DR.K.A. RETHEESH REVIMANGALAM, KALLELIBHAGOM P.O., KARUNAGAPPALLY, KOLLAM DISTRICT.
BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.K.N.REMYA SMT.B.ANANJANA SMT.L.AMMU PILLAI SMT.L.ANNAPOORNA
RESPONDENT:
STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.
BY GOVERNMENT PLEADER SRI.RON BASTIAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
mbr/
WP(C).No. 29558 of 2017 (T)
APPENDIX
| PETITIONERS' E -------------- |
XHIBITS: -------- |
|---|---|
| EXHIBIT P1 | TRUE COPY OF THE G.O.(RT) NO.618/03/ID DATED 25.06.2003. |
| EXHIBIT P2 | TRUE COPY OF THE G.O.(RT) NO.488/04/ID DATED 21.05.2004. |
| EXHIBIT P3 | TRUE COPY OF THE G.O.(RT) NO.548/2005/ID DATED 03.06.2005. |
| EXHIBIT P4 | TRUE COPY OF THE G.O.(RT) NO.1105/15/ID DATED 15.10.2015. |
| EXHIBIT P5 | TRUE COPY OF THE G.O.(RT)NO. 535/2016/ID DATED 18.06.2016. |
| EXHIBIT P6 |
TRUE COPY OF THE REPRESENTATION DATED 26.12.2016 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. |
| EXHIBIT P7 |
TRUE COPY OF THE JUDGMENT DATED 18.01.2017 IN W.P.(C) NO.1858/2017-F OF THIS HON'BLE COURT. |
| EXHIBIT P8 | TRUE COPY OF THE G.O.(RT) NO.574/2017/ID DATED 31.03.2017. |
| EXHIBIT P9 |
TRUE COPY OF THE GOVERNMENT LETTER NO.177/G2/2017/ID DATED 29.04.2017. |
| EXHIBIT P10 |
TRUE COPY OF THE GOVERNMENT LETTER NO.PLGEA-BPE1/63/2017-PLGEA DATED 24.04.2017. |
| EXHIBIT P11 |
TRUE COPY OF THE PETITION DATED 31.03.2017 FILED BY THE PETITIONER BEFORE THE HON'BLE MINISTER FOR INDUSTRIES. |
| EXHIBIT P12 | TRUE COPY OF THE FIR NO.VC-05/2016/KLM. |
| EXHIBIT P13 |
TRUE COPY OF THE FIR NO.VC-16/2016/SCE PENDING BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM. |
| EXHIBIT P14 |
TRUE COPY OF THE FIR IN RC8(A)/2016-CBI/COCHIN PENDING BEFORE THE COURT OF SPECIAL JUDGE FOR CBI CASES THIRUVANANTHAPURAM. |
| EXHIBIT P15 |
TRUE COPY OF THE JUDGMENT DATED 7.12.2017 IN WPC.NO.23665/2017 - G OF THIS HON'BLE COURT. |
| EXHIBIT P16 | TRUE COPY OF THE G.O.(RT)NO.1727/2017/ID DATED 28.12.2017. |
RESPONDENTS' EXHIBITS: NIL ----------------------
/TRUE COPY/ P.S.TO JUDGE mbr/ 28.03.2018.
P.V.ASHA J.
W.P.(C).No.29558 of 2017
-------------------------------------
Dated this the 12th day of March, 2018
J U D G M E N T
The petitioner, who was relieved from the post of
Executive Director of the Kerala Institute of Entrepreneurship Development (KIED), on 18.06.2016, as per Ext.P5 order, is aggrieved by the denial of any posting to him thereafter, rejecting his request for
the same by Ext.P8 order.
the bye-laws of the CAPEX. As per Ext.P3 order dated
W.P.(C).No.29558 of 2017
2
03.06.2005, he was appointed as Managing Director of Kerala State Cashew Development Corporation (KSCDC) on full time basis with additional charge of CAPEX. In this order, it was stated that it was necessary to post a Managing Director on full time basis for KSCDC which have 30 factories and employees around 18000 and CAPEX was relatively small organisation with 10 factories and around 4000 employees. It was stated that Government have examined the improvement in performance of both KSCDC and CAPEX during 2003-04 and 2004-05 and that petitioner was being appointed based on the same.
W.P.(C).No.29558 of 2017
3
Director of KIED, simultaneously posting the General Manager, District Industries Centre, Ernakulam in full additional charge. As petitioner was not given any posting there after, he submitted Ext.P6 representation on 26.12.2016 complaining that he was kept out of service without any suspension or any memo of charges. Thereafter, he approached this Court in W.P.(C).No.1858 of 2017 which was disposed of as per Ext.P7 judgment directing the respondent to consider his representation. Thereafter, Ext.P8 order was passed after hearing the petitioner. Government stated that petitioner's appointment on 03.06.2005 as Managing Director was not on the basis of any selection in a transparent manner, though the terms for such appointments were fixed only as per G.O(Rt.).No.1295/2005/ID dated 22.12.2005 and there is no definite tenure fixed for the petitioner. It is further stated that petitioner's appointment in KSCDC was terminated as per G.O.(Rt) No. 1105/2015/ID dated
W.P.(C).No.29558 of 2017
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15.10.2015 following the Central Bureau of
Investigation ordered by this Court and he was thereafter relieved from KIED as per order dated 18.06.2016. Government stated that in view of the ongoing Vigilance cases instituted against the petitioner both by the Vigilance and Anti-corruption Bureau and the Central Bureau of Investigation, it is not prudent to entrust the petitioner to run any organisation when his credibility has been called upon by the Vigilance proceedings.
pointing out that there is no allegation against him as to unlawful gains while he was in KSCDC. Petitioner has produced the FIR registered against him. It is also pointed out that the FIR, alleging that he amassed disproportionate wealth, was registered after he was relieved from the KIED. Petitioner also points
out that on account of the action of the respondents in relieving him, he is not even able to take up any
W.P.(C).No.29558 of 2017
5
other employment. Since he is not placed under suspension, he is not getting any subsistence allowance also. The respondents have not also terminated his services. By Ext.P6 he was only relieved from KIED. It is pointed out that he had been working as Managing Director right from 2003 onwards, on appointment as per Ext.P1 and since 2005 to 2015 his appointment was on a regular basis. It is also pointed out that his continuance in KIED or a reappointment there would not in any manner affect any of the on-going investigations or inquiry or any further proceedings based on the FIR registered against him as per Exts.P13 or P14 and there is no scope for any further allegations against him if he is given a posting there. It is also pointed out that in the CBI investigation, there is no allegation against him and that Managing Director is only a formal party as can be seen from Ext.P4 and the FIR registered.
W.P.(C).No.29558 of 2017
6
stating that petitioner's appointment was not made for a particular tenure. It is also stated that besides CBI enquiry there exist two vigilance cases against him in V.C.05/16/Kollam relating to the period when
he was the Managing Director of KSCDC and V.C.16/16/SCE on the allegation of amassment of wealth. It is stated that the Managing Director of Public Sector Undertakings (PSU) are appointed at the pleasure of Government without fixing any specific tenure and at no point of time petitioner was promised any tenure and therefore there is no question of giving any posting or any payment to the petitioner and a further posting cannot be given to him in view of the vigilance cases. It is further stated that staff regulations of PSUs do not contain any regulation covering the post of Managing Director. At the same time, the Managing Directors are appointed by Government from time to time on the basis of discretionary power conferred on Government. It is
W.P.(C).No.29558 of 2017
7
stated that the petitioner was not appointed through Public Service Commission .
Government has not looked into the material aspects of the case and as on the date on which the petitioner
was relieved, the FIR relating to the amassing of wealth, disproportionate to his income was not available. It is also pointed out that the Government
is retaining and appointing several persons as Managing Directors of various PSUs, despite the pendency of large number of vigilance cases with more serious allegations. It is pointed out that as per Ext.P16 order issued on 28.12.2017, the Managing
Director of Kerala Automobiles Limited against whom there are serious allegations and was placed under suspension, was re-instated; even though, there was a direction from this Court in Ext.P15 judgment, the respondents readily reinstated him, without raising
W.P.(C).No.29558 of 2017
8
any objection or filing any appeal. Several other instances of Managing Directors facing vigilance proceedings, are pointed out. It is also the case of the learned counsel for the petitioner that vigilance clearance is not necessary at the time of each and every appointment and it is necessary only at the time of first appointment. Ext.P8 order was passed saying that vigilance clearance is necessary for appointment of the Managing Director. It is pointed out that even as per the Government Circular No.9774/BPE2/2013/Plg. dated 26.06.2013, relied on by the learned Government Pleader, vigilance clearance is not required at the time of each and every appointment and it is not at all required when the petitioner is one who is only relived from the post and not terminated from his service.
W.P.(C).No.29558 of 2017
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Government Pleader argued that Government can deny appointment to the petitioner applying the 'pleasure doctrine' and that it is the duty of the Government to protect the wealth of the State and therefore, the impugned action is not liable to be interfered with by this Court.
tenure for a Managing Director. At any rate, no such provision is brought to my notice. I do not also find any provision of law which provides that once a person is appointed as a Managing Director, he is liable to be retained or accommodated as Managing Director or Chief Executive Officer in one or other PSU. No rules are brought to my notice which deal with disciplinary action against a Managing Director. It is also not made clear why the services of petitioner is not terminated and he is only relieved.
W.P.(C).No.29558 of 2017
10
Co-operative Spinning Mills Limited in which no tenure was fixed. Within one year he was appointed in another PSU and within another year he was appointed in KSCDC, where he continued for a period of more than 10 years, though the appointment was without fixing any tenure. The last appointment was also not made fixing any tenure. Except for the fact that the Articles of Association of the PSUs usually insist that the Managing Director shall be appointed from among the Directors, no rules or orders which prescribe the manner in which a Managing Director can be kept out of service or how they can be relieved with or without a posting or the conditions under which their services can be terminated, are not brought to my notice.
W.P.(C).No.29558 of 2017
11
continue for a particular tenure or that notwithstanding the vigilance cases one can continue the post of Managing Director. When the appointments are made in the absence of any rules and petitioner was relieved at the time when there was CBI investigation followed by vigilance cases, though some of the FIR were registered subsequent to the date on which he was relieved, the action taken by the Government against a person who is facing vigilance cases cannot be said to be one which requires interference by this Court. The fact remains that there was a CBI investigation ordered on the basis of the direction from this Court in the year 2015 and it is followed by certain vigilance investigations.
factual position that the post of Managing Director is a highly responsible as well as respectable post and a post of great confidence. It is quite natural that in the interest of administration and smooth functioning
W.P.(C).No.29558 of 2017
12
of a PSU, Government will have to shift or replace the head of a PSU, by appointing persons in whom it has confidence. Though the judgment of the Apex Court relied on by the learned Government Pleader was rendered in an entirely different context, it cannot be said that pleasure of doctrine will not apply in the case of Managing Directors. So long as the appointment of the petitioner was not made under any statutory rules or even a contract which obliges Government to retain or engage him in any post and there is no violation of any such rules, petitioner cannot have any right to insist that he should be employed as Managing Director or a CEO. None of the legal or constitutional rights of the petitioner are violated.
W.P.(C).No.29558 of 2017
13
retention or for a posting in another PSU, cannot also be accepted, having regard to the nature of duties of the post to be held by the incumbent, as the head of the PSU, which cannot be compared to that of a Government employee. The past performance would be a relevant factor to be looked into for appointment in another PSU or even for the continuance in the same PSU. All these are factors relevant for consideration of Government.
by the learned Counsel for the petitioner, I find that Government is not adopting any uniform yardstick in the matter of appointment/retention/termination /relieving of the Managing Directors/Chief Executive Officers of the Public Sector Undertaking. I find that though a process of selection through RIAB is being adopted, for appointment, all the appointments of CEOs/Managing Directors are not being made based on such selection. Even assuming that the appointments
W.P.(C).No.29558 of 2017
14
are made based on such selections only, the fact remains that several CEOs/MDs facing vigilance cases continue in the respective posts or similar posts while several are kept outside. It is not understood how the wealth of the State can be protected by adopting such a procedure. There should be some uniform basis for invoking the pleasure doctrine if the intention of the Government is to protect the wealth of the State, as argued by the learned Government Pleader and at any rate to protect the interest of the PSU. As contended by the learned Counsel for the petitioner, several persons facing Vigilance proceedings are retained/reposted/reappointed or appointed as Managing Directors/Chief Executive Officers of PSUs while some are kept out. It is for the Government to act in accordance with law, which should be consistent, if the ultimate goal is to achieve excellence and purity in administration.
W.P.(C).No.29558 of 2017
15
persons as in Ext.P16 are continuing even when they are facing vigilance action, it cannot be said that such discrimination in not extending equal treatment among those facing vigilance action, amounts to violation of the fundamental right of petitioner which requires interference of this Court. The absence of uniform a yardstick or the continuance of others with vigilance cases as Managing Directors cannot be a reason for this court to exercise its jurisdiction under Article 226 of the Constitution of India, to issue any direction to Government to re-appoint the petitioner.
Writ petition fails and is dismissed.
Sd/- P.V.ASHA, JUDGE.
AS/ww
3 issues framed by the court
Whether the Government can deny posting to a Managing Director relieved from a post due to pending vigilance investigations.
Whether the petitioner has a legal right to insist on re-employment as Managing Director or CEO of a PSU.
Whether discrimination in extending equal treatment to officials facing vigilance actions violates fundamental rights.
Colour shows how this judgement treated each authority
Union of India v. S.P.Sharma [2014(6)SCC 351]Referred¶61
Dr.K.A. Retheesh Revimangalam
State of Kerala
P.V. Asha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
