Allowed

J.Kumari (Died) v. Kerala State Civil Supplies Corporation

Kerala HC10 Dec 2019WA/2142/2019

Case brief

AI extract

What is this about?

The High Court set aside a dismissal order passed via an arbitrary post-retirement communication against a deceased employee. Due to procedural flaws, including lack of a domestic enquiry and failure to quantify loss, the court granted retirement benefits to the legal heirs with interest from the date of retirement.

What did the court decide?

The order of dismissal and recovery proceedings were set aside, and directions issued to disburse all retirement benefits and gratuity to the legal heirs of the appellant with interest.

J.Kumari (Died) Vs Kerala State Civil… — Pension and Retirement Benefits | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941

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W.A.No.2142 OF 2019

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AGAINST THE JUDGMENT IN WP(C) 27728/2017(M) DATED 05.04.2018 OF HIGH COURT OF KERALA

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APPELLANTS/ PETITIONER & LEGAL HEIRS OF THE WRIT PETITIONER:

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1 J.KUMARI (DIED) W/O.C.G.BHASKARAN, RESIDING AT CHELLIKUZHIYIL,

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504 COLONY, PUNCHAVAYAL P.O., MUNDAKKAYAM, KOTTAYAM-686 513.

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2 C.G.BHASKARAN, AGED 65 YEARS, S/O.KUMARAN (LATE), RESIDING AT CHELLIKUZHIYIL, 504 COLONY, PUNCHAVAYAL P.O., MUNDAKKAYAM, KOTTAYAM-686 513.

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3 DILEEP KUMAR C.B., AGED 43 YEARS, S/O.C.G.BHASKARAN, RESIDING AT CHELLIKUZHIYIL HOUSE, MAANAMANGALAM P.O., PUTHUR, THRISSUR-680014.

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4 DILEEMA KUMARI C.B., AGED 38 YEARS. D/O.C.G.BHASKARAN, RESIDING AT THATTAMKULAM HOUSE, MAANAMANGALAM P.O., PUTHUR, THRISSUR-680 014.

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5 DEEPA KUMARI C.B., AGED 36 YEARS, D/O.C.G.BHASKARAN, RESIDING AT THURUTHEPPALLY HOUSE, KUTTIPLANGADU P.O., KAKKAYAR, IDUKKI-686 514.

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6 DAYAL KUMAR C.B., AGED 35 YEARS, S/O.C.G.BHASKARAN, RESIDING AT CHELIKKUZHIYIL HOUSE, ANNAKKARA P.O., PALAKKAD-685 512.

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BY ADVS.

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SRI.A.JAYASANKAR SRI.MANU GOVIND SRI.ASHWIN SETHUMADHAVAN SMT.B.MEERA SRI.S.SABARINADH

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W.A.No.2142 of 2019

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RESPONDENTS/ RESPONDENTS IN WRIT PETITION:

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1 KERALA STATE CIVIL SUPPLIES CORPORATION, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, ERNAKULAM, KERALA-682 020,

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REPRESENTED BY ITS MANAGING DIRECTOR.

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2 THE DEPUTY TAHSILDAR (REVENUE RECOVERY), KANJIRAPPILLY, 1ST FLOOR, MINI CIVIL STATION, KOTTAYAM-KUMILY ROAD, KOKKAPPALLY, KANJIRAPPALLY, KERALA-686 55.

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3 THE DISTRICT COLLECTOR, KOTTAYAM, DISTRICT COLLECTORATE, KOTTAYAM-KUMILY RD, KOTTAYAM-686 001.

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4 THE TAHSILDAR, KANJIRAPPILLY, 1ST FLOOR, MINI CIVIL STATION, KOTTAYAM-KUMILY ROAD, KOKKAPPALLY, KANJIRAPPALLY, KERALA-686 555.

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R1 BY SRI.R.LAKSHMI NARAYAN, SC, SUPPLYCO.

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OTHER PRESENT:

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SR.GP SRI.P.N.SANTHOSH FOR R2 TO R4.

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.No.2142 of 2019

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K.Vinod Chandran & V.G.Arun, JJ.

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W.A.No.2142 of 2019

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---------------------------------------Dated this the 10^th day of December, 2019

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JUDGMENT

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K.Vinod Chandran,J:

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A totally arbitrary act, whether can be validated

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by mere passage of time however long the period; is the question we are called upon to answer in the Writ Appeal.

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2. This appeal is by the legal heirs (appellants 2 to 6) of the deceased writ petitioner, who died after the impugned judgment was passed, while this appeal was pending. The petitioner was dismissed from service in the year 2008, which remained unchallenged for long. The petitioner after more than 8 years, in the year 2016 approached the Kerala State Commission for Scheduled Castes and Scheduled Tribes projecting her grievance and alleging victimization on the ground of her caste status. On appearance of the respondent-Corporation and after hearing them, the Commission passed an order directing payment of certain retirement benefits, including Employees' Provident Fund, on submission of application. It was also directed that if an appeal is filed against the dismissal order, the Director, Civil Supplies would consider the same ignoring the delay caused.

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W.A.No.2142 of 2019

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3. Whether the Commission had the jurisdiction to issue such directions is not a question as long as the Corporation complied with the said orders. We also pertinently notice that there is no challenge to the order of the Commission, produced in the Original Petition as Exhibit P5. The amounts directed to be paid were disbursed to the petitioner. The appeal was considered and dismissed as per Exhibit P9 order dated 23.06.2017. Later, recovery was proceeded against the petitioner. The writ petition was against the order in appeal and the recovery initiated.

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4. Here, we notice that the allegations against the petitioner arose on account of audit objections raised. Shortage was found in the articles dealt with in the shop of the respondent-Corporation, in which the petitioner was acting as the Manager-in-charge. To the audit objection, a response was made by the petitioner. Later when a charge memo was issued, that was also replied to. The allegations eventually led to the dismissal of the employee, which, it is asserted by the learned Counsel for the petitioner, was without any enquiry and totally flouting the principles of natural justice. After a show cause notice was issued and objections received, an order was passed again at the behest of the Regional Manager for reason of not remitting

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the value of the shortage occasioned during the

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W.A.No.2142 of 2019

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petitioner's tenure. The dismissal order was issued just a day prior to the retirement of the petitioner. She was merely asked to sign on the order and the order was not even issued to her, are the contentions raised. The learned Single Judge rightly found that there could be no recovery proceeded at such a late stage, i.e., after eight years. The long delay was found against the petitioner too on the aspect of dismissal. It was found that there could be no invalidation of dismissal at this late stage.

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5. On facts, we have to notice that the petitioner was issued with a notice pointing out certain audit objections. We need not look into the service details of the petitioner and suffice it to notice that the allegations were occasioned when the petitioner was the Shop Manager-in-charge at Maveli Store, Punchavayal in the year 2004. An audit objection was raised, which was communicated to the petitioner in 2007. The petitioner responded to it with Exhibit R1(a) dated 05.03.2007. Later, on 19.07.2007 the petitioner was suspended on allegation of irregularities, which resulted in a shortage of goods, of the value of Rs.1,34,508.55. Exhibit R1(b) charge memo was also issued. The petitioner approached this Court with a writ petition against her suspension, which was disposed of as per Exhibit P3. In Exhibit P3 judgment, the Court

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W.A.No.2142 of 2019

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repelled the challenge against Exhibit P7 order of suspension and the memo of charges produced therein at Exhibits P8 and P9. However, there was a direction to the respondent-Corporation to consider representation, if any, filed by the petitioner seeking revocation of the order of suspension especially since the petitioner was about to retire.

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6. In purported compliance of the judgment, Exhibit R1(c) order dated 24.09.2008 was passed. Here, we have to observe that the petitioner was due to retire on 30.09.2008. Exhibit R1(c) order referred to the allegations raised and the judgment of this Court at Exhibit P3 as also the directions contained therein. It was ordered that the amounts found as short fall at Rs.1,34,508.55 has to be remitted within two days and on such remittance the applicant could join back. Obviously the petitioner did not pay the said amounts and would have superannuated on 30.09.2008; having not been able to re-join duty for reason of the interdiction caused by Exhibit R1(c) order. The petitioner was dismissed by order dated 29.09.2008.

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7. We were not happy with the manner in which the Corporation, a public authority, had proceeded against one of its employees. There was no order of dismissal produced by the petitioner and we enquired with the Corporation;

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W.A.No.2142 of 2019

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since they also did not produce it, as to its availability. Only then the Corporation thought it fit to produce the order dated 29.09.2008 along with a statement filed by the Standing Counsel, which is marked as Annexure R1(1).

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8. We have carefully perused the order of dismissal. The proceedings taken, notices served and the responses made by the petitioner were detailed in the first two paragraphs. In the 2^nd paragraph, towards end, it is stated that though the petitioner was sought to be served the hearing notice, even through the employees of the Corporation, at the residence of the petitioner; the petitioner successfully evaded service by vacating the residence temporarily and locking it up. However, in paragraph 3 it is stated that as per reference No.14 dated 06.09.2008, a notice was issued for appearance on 17.09.2008 and that the petitioner appeared and gave her deposition. The petitioner is said to have requested to revoke her suspension especially relying on Exhibit P3 judgment. This hearing was only on the revocation of suspension. Exhibit R1(c) is then referred to, which has already been noticed by us. In the 4^th paragraph it is stated that since as per Exhibit R1(c) the applicant failed to deposit the value of shortage found on audit, by reference No.18 there is a direction to dismiss the

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W.A.No.2142 of 2019

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petitioner. Reference 18, as is seen from Exhibit R1(1), is a communication dated 29.09.2008 of the Additional General Manager (P&A) in-Charge. The operative portion of the order refers to the allegations levelled against the petitioner and further orders recovery of the amounts from the petitioner. There is an endorsement of the petitioner having received the said order on 29.09.2008.

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9. The petitioner does not remain in this world to see the final result of the litigation she initiated, though delayed. We are quite conscious of the fact that the dismissal of the year 2008 was not challenged till 2016 and when challenged, it was before a Commission appointed for Scheduled Castes and Scheduled Tribes. However, that alone would not efface the totally arbitrary action of the Corporation. The concept of natural justice seems to be alien to the Corporation and the officers are quite unaware of the development of law regulating employer-employee relationship and the rudimentary aspects to be complied with by an employer while proceeding against an employee.

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10. The learned Standing Counsel for the Corporation has valiantly attempted to uphold the order of the Corporation based on the Kerala State Civil Supplies Corporation Helpers Service Rules, 1978 ['Helpers Rules of 1978' for brevity] and the requirement in the case of a

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W.A.No.2142 of 2019

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disciplinary proceeding. However, we do not find the Rules or the provisions therein to be at all aiding the Corporation. Dismissal from service is categorized as a major penalty under the Rules. It is also specified in the Rules that no punishment shall be imposed on an employee unless he has been informed in writing of the grounds on which action is proposed and he has been afforded an opportunity, including a personal hearing, to defend himself. It is also the specific stipulation that no major penalty shall be imposed without holding a domestic enquiry.

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11. In the present case, it has to be noticed that the petitioner was a 'Helper' posted as a 'Shop Manager-incharge'. The action taken by the management to dismiss the employee is in stark violation of the Rules. A mere charge-sheet was issued and a response received. No enquiry was constituted and when Exhibit P3 judgment was placed before the appointing authority, an order was passed at Exhibit R1(c), directing revocation of suspension on the petitioner remitting the shortage amounts within two days. Since the petitioner was not able to remit the money she was dismissed by order dated 29.09.2008. There was no enquiry conducted and not even a notice issued before the dismissal order was passed. The Corporation could have

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W.A.No.2142 of 2019

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constituted an enquiry prior to superannuation and permitted her to retire, subject to the finalization of the enquiry. The Corporation sought to give a complete go-by to the valuable right of the employee to be put to notice of the various materials relied on by the audit party and the disciplinary authority for finding shortage and permit the delinquent to put forth her objections and defend her case. It is also seen that the disciplinary authority also did not quantify the amounts due and it is not clear as to the misconduct for which the dismissal was imposed; whether it is for causing shortage which was not proved or for reason of non-remittance of the shortage alleged, such recovery being not possible unless there is a quantification. We are faced with an order of dismissal where neither the alleged misconduct was proved nor a quantification of the loss alleged substantiated.

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12. The passage of years is inconsequential considering the haphazard manner in which an employee was dealt with by the Corporation. We also see that the appeal as directed by the Commission was considered and rejected by Exhibit P9 in the year 2017, which give rise to a valid cause of action for the petitioner. The petitioner had retired from service and is no more available for continuing any proceedings. We set aside the order of

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dismissal and direct the entire retirement benefits to be disbursed to the legal heirs of the petitioner, who are appellants 2 to 6 herein, within a period of three months including the gratuity payable with interest at the rate of 7% from the date of Exhibit P5 order of the Kerala State Commission for Scheduled Castes and Scheduled Tribes, i.e., 21.07.2016. If the said amounts are not paid within the time we directed, interest shall run at the rate of 9% and shall commence from 01.10.2008, the date after which the petitioner is deemed to have retired from service and in that circumstance, the differential interest liability though borne by the Corporation shall be recovered from the officer(s) of the Corporation who caused the delay in disbursing the amounts.

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The Writ Appeal is allowed, setting aside the judgment of the learned Single Judge and allowing the writ petition with the above directions. The parties are directed to suffer their respective costs.

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Sd/K.VINOD CHANDRAN JUDGE

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Sd/V.G.ARUN JUDGE

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vku/-

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W.A.No.2142 of 2019

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APPENDIX

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RESPONDENT'S/S ANNEXURE(S):

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ANNEXURE R1(1)

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THE PHOTOCOPY OF PROCEEDINGS OF THE FIRST RESPONDENT DATED 29/09/2008, ISSUED BY THE REGIONAL MANAGER TO THE APPELLANT.

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[ TRUE COPY ]

J.Kumari (Died) v. Kerala State Civil Supplies Corporation

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J.Kumari (Died) v. Kerala State Civil Supplies Corporation

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