Dismissed

Mohanan.K.P. v. the State of Kerala

Kerala HC23 Nov 2021WA/1386/2021

Case brief

AI extract

What is this about?

The Division Bench dismissed a writ appeal challenging a single judge's judgment. The court held internal notes are not executable orders, dismissal against a retired employee was barred by rules of limitation, and the petitioner lacked locus standi.

What did the court decide?

No relief granted. Writ appeal against the dismissal of disciplinary action and the dropping of proceedings against retired officials dismissed.

Mohanan.K.P. Vs the State of Kerala — Pension and Retirement Benefits | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 23^RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943

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WA NO. 1386 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 30911/2015 OF HIGH COURT OF KERALA, ERNAKULAM DATED 10.3.2021

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APPELLANT/PETITIONER IN WPC:

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MOHANAN.K.P. AGED 63 YEARS S/O. K.K. KUNHIRAMAN, RETIRED DEO, SREYAS, KOYYAM P.O., KANNUR-670 142.

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BY ADVS. ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH)

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RESPONDENTS/RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM-695 001.

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2 THE PRINCIPAL SECRETARY DEPARTMENT OF GENERAL EDUCATION, TRIVANDRUM-695 001.

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3 THE DIRECTOR OF PUBLIC INSTRUCTIONS TRIVANDRUM-695 001.

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4 SASIDHARAN K.N. S/O. NARAYANAN KOCHUPARACKAL, RETIRED ADMINISTRATIVE ASSISTANT, MANAKKAD P.O., THODUPUZHA IDUKKI-685 608.

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5 ISMAIL P H S/O. HASSAN, RETIRED SENIOR SUPERINTENDENT, PODIPPARAYIL HOUSE, NEYYASSERI P.O, KARIMANNOOR, THODUPUZHA, IDUKKI-685 581.

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SRI.K.P.HARISH,SR GP FOR R1 TO R3

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A.1386/2021

J U D G M E N T

Dated this the 24^th day of November, 2021

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Shaji P. Chaly, J.

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Writ appeal is preferred by the petitioner in the writ petition challenging the judgment of learned Single Judge dated 10.3.2021 in W.P(C). No.30911 of 2015, whereby the relief sought for by the petitioner to quash Exhibit P8 internal correspondence having the endorsements of the Secretary General Education Department recommending to drop the disciplinary proceedings initiated against respondents 4 and 5, viz., Sasidharan K. N and Ismail P.H., was declined.

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Brief material facts for the disposal of the writ appeal are as follows: Appellant's wife, one E.P. Pushpalatha, was the Headmistress in Kunjithanni Government School Idukki District. On 6.3.2015, respondents 4 and 5, who were the officials of the Office of the Deputy Director of Education, Idukki went to the school in question for inspection. On that day, it was found that one Clerk namely, Anakha was continuously on leave. The 4^th and 5^th respondents demanded a statement in writing from the appellant's wife, who was the Headmistress.

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According to the appellant, the Headmistress was not willing to give such a statement forthwith, in writing, because she was busy with the SSLC

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examination to be held within a couple of days and therefore, she sought time to think it over. But, the allegation made by the appellant is that the Headmistress was threatened by the 4^th respondent namely, Sasidharan K.N., who was the Administrative Assistant, stating that she would face severe consequences and she would be put in jail etc.; again in the evening, the 4^th respondent telephoned the Headmistress and repeated the threat.

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The grievance of the appellant is that due to the above incident, his wife, who was living away from her native place was mentally upset and shocked, and on the next day, she fell unconscious and was taken to a nearby Medical College Hospital and found that she had suffered a stroke. She died in the hospital on 11.3.2015 and according to the appellant, the stroke had occurred on account of the threat made by respondents 4 and 5 and the resultant strain and stress.

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Apparently, on the basis of the complaint filed by the appellant, the Deputy Director of Education, Additional Director of Public Instructions and Director of Public Instructions enquired into the incident and a hearing was conducted by the Secretary to the Government and found that respondents 4 and 5 are liable for disciplinary action. However, totally ignoring the recommendations of the concerned officers, the Government has decided to drop the proceedings against respondents 4 and 5. It was thus challenging the legality and correctness of the proceedings of the State Government dropping

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the proceedings against respondents 4 and 5 the writ petition was filed.

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Learned Single Judge, after hearing the respective parties and perusing the materials on record found that Exhibit P8 is only a note submitted by the Principal Secretary to Government, General Education Department to the Hon'ble Chief Minister and Minister for Education, and the Hon'ble Chief Minister endorsed his views thereon. It was also found that in Exhibit P8 note, Principal Secretary to Government has, in short, found that the incident occurred when Smt. Pushpalatha, ie., wife of the appellant was under pressure of duty related to SSLC Examination and she shared her worries with the witnesses present at the time and the chances of the 4^th respondent using harsh language cannot be ruled out and even though the 5^th respondent was associated with the inspection conducted by the 4^th respondent, no direct involvement of the 5^th respondent could be established. Other aspects contained in Exhibit P8 note were also elaborated by the learned Single Judge and thereafter rendered the following judgment:

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No orders pursuant to Ext.P8 Note or any consequential proceedings have been produced before this Court. With regard to the challenge against Ext.P8 Note, it is trite law that notings in a Departmental file do not have the sanction of law to be an effective order. In Bachhittar Singh v. State of Punjab and another (AIR 1963 SC 395) , the Constitution Bench of the Apex Court considered the effect of an order passed by a Minister on a file which order was not communicated to the person concerned. Referring to Article 166(1) of the Constitution, the Court held that order of the Minister could not amount to an order by the State Government unless it was expressed in the name of the

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Rajpramukh, as required by the said Article and was then communicated to the party concerned. The Court observed that business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. Before an action is taken by the authority concerned in the name of the Rajpramukh, which formality is a Constitutional necessity, nothing done would amount to an order creating rights or casting liabilities to third parties. The Court noticed that it is possible that after expressing one opinion about a particular matter at a particular stage, a Minister or the Council of Ministers may express quite a different opinion which may be opposed to the earlier opinion. Which of the two opinions can be regarded as the "order" of the State Government? It was held that opinion becomes a decision of the Government only when it is communicated to the person concerned. The said decision was followed in Sethi Auto Service Station and Another v. Delhi Development Authority and Others [(2009) 1 SCC 180] wherein the Apex Court held that notings in a departmental file do not have the sanction of law to be an effective order and that a noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. The Court observed that internal notings are not meant for outside exposure and notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person concerned. The Apex Court also observed that mere favourable recommendations at some level of the decision making process, are of no consequence and shall not confer any right. Following the decision in Bachhittar Singh's case (supra), this Court in Ramachandran v. State of Kerala [2009 (3) KLT 473] has held that the Note whereby the Minister ordered that the petitioner's service as Managing Director of a Corporation is terminated without an order of the State Government expressed in the name of the Governor as required by cl. (1) of Art.166 of the Constitution of India cannot be said to be an order passed by the Government and cannot be challenged in a writ petition. Relying on the decisions in Bachhittar Singh's case (supra) and Shanti Sports Club and

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another v. Union of India [2009 (15) SCC 705] , the Apex Court in Ali K.S.B. v. State of Andra Pradesh and others [2018 (11) SCC 277] reiterated that notings recorded in official files by officers of the Government at different levels even of Ministers, do not become decisions of the Government unless same are sanctified and acted upon by issuing an order in the name of the President or the Governor as the case may be, authenticated in the manner provided in Art.77(2) and Art.166(2) of the Constitution.

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In view of the principles laid down by the Apex Court and this Court in the above decisions, the challenge to Ext.P8 Note is not sustainable.

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Though no orders pursuant to Ext.P8 Note or any consequential proceedings have been produced before this Court and challenged, it is not disputed that pursuant to the hearing by the 2^nd respondent on the petitions submitted by respondents 4 and 5, the Government have decided to drop all disciplinary action against respondents 4 and 5. The second prayer of the Petitioner is to take appropriate action against respondents 4 and 5.

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So far as the 5^th respondent is concerned, he was placed under suspension by the Director of Public Instructions as per Ext.R5(a) dated 12.03.2015 and was served with a memo of charges and statement of allegations dated 30.03.2015 and the disciplinary proceedings against the 5^th respondent was dropped vide Ext.R5(d) order of the DPI and the period of suspension was treated as duty and regularised. By Ext.R5(d), the disciplinary proceedings initiated against the 5th respondent has come to a logical conclusion.

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As far as the 4^th respondent is concerned, the 4^th respondent was neither placed under suspension nor issued with any memo of charges or statement of allegations in respect of the incident leading to the death of petitioner's wife. The incident leading to the death of petitioner's wife viz; the visit of respondents 4 and 5 to Kunjithanni Government High School was on 06.03.2015. No disciplinary action was initiated against the 4th respondent while the 4th respondent was in service and he was allowed to retire from service on 31.05.2015. On termination of employment, the employer loses disciplinary control over the employee. However, in relation to employment under the State, the State retains some authority to deal with retired employees. As per the provisions of Rule 3 of Part III of the Kerala Service

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Rules, the Government reserves the right to withhold the pension of a retired employee under certain contingencies. The said Rules read as follows:

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"3. The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement: Provided that -

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(a) such departmental proceeding, if instituted while the employee was in service, whether before his retirement or during his reemployment, shall after the final retirement of the employee, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service;

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(b) such departmental proceeding, if not instituted while the employee was in service, whether before his retirement or during his reemployment(i) shall not be instituted save with the sanction of the Government;

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(ii) shall not be in respect of any event which took place more than four years before such institution; and

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(iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the employee during his service;

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(c) no such judicial proceedings, if not instituted while the employee was in service whether before his retirement or during his reemployment, shall be instituted, save with the sanction of the Government, in respect of a cause of action which arose or an event which took place more than four years before such institution; and

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(d) the Public Service Commission shall be consulted before final orders are passed.

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Explanation-- For the purpose of this rule - (a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the employee or pensioner or if the employee has been placed under suspension from an earlier date, on such date; and

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(b) a judicial proceeding shall be deemed to be instituted -

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(i) in the case of a criminal proceeding, on the date on which the complaint or report of police officer on which the Magistrate takes cognizance is made; and

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(ii) in the case of a civil proceeding, on the date of presentation of the plaint in the Court."

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The scope of disciplinary proceedings against an employee who has retired from service has been considered by the Division Bench of this Court in Ayyappan Pillai v. Kerala State Electricity Board and Another [2010 (4) KHC 300 : 2010 (4) KLT SN 77] . Paragraph 11 of the said judgment reads:

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xxx

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“11. We do see force in the submission made by the learned counsel for the appellant. On the termination of employment, the employer loses disciplinary control over the employee. Their legal relationship of employer-employee comes to an end on the termination of the employment. However, in the case of employment under the State, the State by appropriate law may retain some authority to deal with its erstwhile employees. Rule 3 of Part III of the Kerala Service Rules is such a law which authorises the State to withhold the pension of a former employee either totally or partially. Such withholding could be either permanent or for a specified period in the contingencies mentioned in the said rule. Such contingencies are (1) the pensioner is found guilty in a departmental proceeding of grave misconduct or negligence during the course of his service or (2) in a judicial proceeding such a finding is recorded. Further it is required under sub-rule (a) of Rule 3 of the Kerala Services Rules that the departmental proceedings referred to under Rule 3 need not have been concluded while the

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employee was in service. Sub-rule (a) of Rule 3 authorizes the continuation of a pending departmental proceeding even after the retirement of the employee against whom proceedings were initiated.

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In the case of the 4^th respondent, no departmental proceedings were initiated while he was in service. No disciplinary proceedings can be initiated against the 4th respondent after retirement at this distance of time even for the limited purpose provided in Rule 3 of Part III of Kerala Service Rules. I find no reason for this Court to direct the respondents 1 to 3 to initiate any disciplinary proceedings against the respondents 4 and 5.

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The locus standi of the writ petitioner to challenge the action of the 1st respondent to drop the disciplinary proceedings against the respondents 4 and 5 is also a matter to be considered in this writ petition. It is true that the subject matter of the disciplinary proceedings is in relation to the unfortunate incident leading to the sad demise of the petitioner's wife. Nevertheless, the petitioner is a stranger in the matter of disciplinary proceedings. Disciplinary proceedings is essentially a matter between the employer and the employee and a stranger cannot be said to have any interest in those proceedings. The Hon'ble Supreme Court in Rajnit Prasad v. Union of India [2000 (9) SCC 313] considered the scope of locus standi in entertaining a challenge to disciplinary proceedings and held that a person, who is not connected with those proceedings cannot challenge any aspect of such departmental proceedings or action by filing a writ petition. A departmental proceedings is essentially a matter between the employer and the employee and a stranger cannot be said to have any interest in those proceedings. The Court held:

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“8. It is, no doubt, true that the scope of "locus standi" has been widened by this Court through its various decisions and, that too, in the field of Public Interest Litigation where it has been said that Public Interest Litigation can be initiated not only by filing petitions in the High Court or in this Court in a regular manner but also by means of letters and telegrams addressed to the Court. (See : People's Union for Democratic Rights v. Union of India, Bandhua Mukti Morcha v. Union of India, State of Himachal Pradesh v. A Parent of a

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Student of Medical College, Shimla and Bangalore Medical Trust v. B.S. Muddappa.

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But a mere busy-body who has no interest cannot invoke the jurisdiction of the Court. In respect of departmental proceedings which are initiated or sought to be initiated by the Government against its employees, a person who is not even remotely connected with those proceedings cannot challenge any aspect of the departmental proceedings or action by filing a Writ Petition in the High Court or in this Court. Disciplinary action against an employee is taken by the Government for various reasons principally for "misconduct" on the part of the employee. This action is taken after a "domestic" enquiry in which the employee is provided an opportunity of hearing as required by the constitutional mandate. It is essentially a matter between the employer and the employee, and a stranger, much less a practising advocate, cannot be said to have any interest in those proceedings. Public interest of general importance is not involved in disciplinary proceedings. In fact, if such petitions are entertained at the instance of persons who are not connected with those proceedings, it would amount to an abuse of the process of Court”.

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In Dr. Duryodhan Sahu and others v. Jitendra Kumar Mishra and others [1998] 7 SCC 273] it was held by the Apex court that in service matters Public Interest Litigation shall not be entertained. The Petitioner in this writ petition is not challenging any action initiated against the petitioner's wife while she was in service or any action of the respondents 1 to 3 that would curtail any of the service or terminal benefits of the petitioner's wife. Therefore, the petitioner cannot have any locus standi to challenge the decision of the Government in dropping the disciplinary proceedings against respondents 4 and 5.

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The writ petition fails and is accordingly dismissed.”

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7. We have heard the learned counsel for the appellant Sri. P.Abdul

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Raoof and Sri.Sumod M.K., and Sri. K.P. Harish, learned Senior Government

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Pleader and perused the pleadings and material on record.

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The sole question to be considered is whether any manner of interference is required to the judgment of the learned Single Judge. On an analysis of the finding rendered by the learned Single Judge, what we could gather is that the appellant was trying to expose the cause of his wife, on the basis of a disciplinary action initiated by the Education Department against respondents 4 and 5, in the light of the allegations discussed above.

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First of all, Exhibit P8 is only a note prepared by the Principal Secretary in order to place it before the higher ups for consideration. Exhibit P8 can never be treated as an order passed by the Government so as to interfere with the same. It is well settled in law that notes prepared by an authority for the purpose of internal correspondence can never be considered as a basis for any cause of action. The said aspect was considered by the learned Single Judge elaborately, taking into account various judgments of the Apex Court and has arrived at a conclusion that the relief sought for by the appellant cannot be granted.

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Moreover, the subject issue is a service matter in regard to the disciplinary action initiated by the Education Department against respondents 4 and 5 and therefore, the appellant can never be said to be a person aggrieved, in the matter of the action initiated by the Department/State Government against respondents 4 and 5. The said question raised was also elaborately

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considered by the learned Single Judge, taking into account the proposition of law laid down by the Apex Court; and that apart, the scope of disciplinary proceedings against an employee, who was retired from service, was also considered elaborately, taking into account rule 3, ruling No.3 of Part III of Kerala Service Rules and a Judgment rendered by this Court, as to whether a disciplinary action can be initiated against a retired employee, and held that disciplinary action against a retired employee is not possible.

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Taking into account the factual and legal circumstances and the judgment rendered by the learned Single Judge analysing the issues raised by the petitioner, cannot be said to be in any manner suffering with any jurisdictional error or other legal infirmities justifying interference exercising the power of intra court appeal conferred under Section 5 of the Kerala High Court Act.

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Needless to say, writ appeal fails, accordingly it is dismissed.

Sd/-

S. Manikumar,

Chief Justice

Sd/-

Shaji P. Chaly,