Disposed

B.Jayakumar v. the Kerala State Council for Science Technology and Environment (Kscste)

Kerala HC15 Sept 2021WP(C)/16617/2021

Case brief

AI extract

What is this about?

This is a writ petition challenging departmental orders regarding punishment, suspension, and penalty imposition for an employee. The court found that a second appeal is pending before another court and disposed of the petition by directing the Executive Committee to consider the pending appeal after hearing. The penalty must not be implemented until the appeal is disposed of.

What did the court decide?

Direction to the Executive Committee of the Kerala State Council for Science, Technology and Environment to consider the appeal filed by the petitioner after hearing, and not to impose penalty until d

B.Jayakumar Vs the Kerala State Council for… — 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 MR. JUSTICE SUNIL THOMAS

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WEDNESDAY, THE 15^TH DAY OF SEPTEMBER 2021 / 24TH BHADRA, 1943

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WP(C) NO. 16617 OF 2021

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PETITIONERS:

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B.JAYAKUMAR, AGED 53 YEARS S/O. LATE N. BALAKRISHNA PILLAI, GARDEN MESTHIRI, JAWAHARLAL NEHRU, TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE (JNTBGRI), PALODE, THIRUVANANTHAPURAM, PIN - 695562. BY ADVS. P.V.ANIL V.S.LIJA

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RESPONDENTS:

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1 THE KERALA STATE COUNCIL FOR SCIENCE TECHNOLOGY AND ENVIRONMENT (KSCSTE) TECHNOLOGY AND ENVIRONMENT (KSCSTE), REPRESENTED BY THE EXECUTIVE VICE PRESIDENT, SASTHRA BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN - 695004.

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2 JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE. REPRESENTED BY ITS DIRECTOR, JNTBGRI, KARIMANCODE P.O, PACHA, PALODE, THIRUVANANTHAPURAM, PIN - 695562.

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3 THE DIRECTOR, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, KARIMANCODE P.O, PACHA, PALODE, THIRUVANANTHAPURAM, PIN - 695562.

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OTHER PRESENT:

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R1BY R1 BY SC, SRI.P.C SASIDHARAN, SC .SRI.C.K KARUNAKARAN (R2 & R3)

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.09.2021, THE COURT ON 15/9/2021 DELIVERED THE FOLLOWING:

WPC(C) No.16617/2021

JUDGMENT

The petitioner was appointed as a Gardner under the 2^nd respondent in 1990. First respondent is an autonomous body constituted by the Government of Kerala in 1972. Petitioner was later promoted and is garden mesthiri, since 2014. By Ext.P6, the petitioner and six others were placed under suspension, on an allegation that they were involved in a scuffle in the office premises. By Ext.P9, a six member enquiry committee was constituted to enquire into the allegations in Exts.P2 and P3. According to the petitioner, though Rule 11.2.4 of Ext.P1 Service Rules provides for allowing the delinquent to cross examine the witnesses in support of the charges, the petitioner was not given an opportunity to cross examine the witnesses. By Ext.P13 enquiry report, the petitioner and others were found guilty of the offences alleged against them. Consequently, the 3^rd respondent issued Ext.P16 order directing that three annual increments of the petitioner shall be withheld. He was permitted to continue in service with the above penalty.

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Aggrieved by Ext.P16 order, the petitioner filed statutory appeal before the managing committee. Ext.P17 appeal was heard by the appellate authority and by virtue of Ext.P19, Ext.P17 was rejected. The contention of the petitioner is that though the managing committee heard the appeal, it did not consider the allegation of fragrant violation of principles of natural justice.

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Assailing the above, petitioner has approached this court. However, at the time of hearing, it was mentioned that against Ext.P19 order, the petitioner had moved the Executive Vice President as ExtP.21. However, the executive Vice

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WPC(C) No.16617/2021

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President and other members of the committee, while considering Ext.P21 observed that any final decision on the issue has to be taken by the Executive Committee of the first respondent. The matter is stated to be now pending before the first respondent.

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According to the petitioner, the Chairman of the Executive Committee, is the executive Vice President of the Committee. The composition of the Executive Committee was such that it included officers who were part of Ext.P13.

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The specific ground, on which the impugned orders viz.Exts.P13, P16 and P19, were challenged in the writ petition was that the enquiry committee conducted the enquiry, in fragrant violation of all principles of natural justice. It was contended that the petitioner was not given an effective opportunity of cross examining the witnesses. The conclusion arrived at by the enquiry committee was also biased. Yet another contention advanced was that the appellate authority consisted of persons who had participated in the earlier proceedings and, thereby the various proceedings initiated against the petitioner were rendered a farce by the complete violation of the principles of natural justice.

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The learned counsel for the petitioner specifically pointed out that the committee which rendered Ext.P13 report included one Sri.Madhu and Sri.P.Aswin Kumar, who were also the members of the managing committee which rejected Ext.P17 appeal by Ext.P19 order. It was also further contended that the 3^rd respondent who was the authority which imposed punishment himself was the Chairman of the Managing Committee. Thus three members of the appellate authority were persons who had participated either in the enquiry or in passing of

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WPC(C) No.16617/2021

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Ext.P16 order of penalty.

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The learned counsel for the respondents, vehemently opposing the above contentions, contended that the allegation of violation of principles of natural justice was without any basis. The petitioner was granted opportunity to effectively participate in the enquiry.He had fully participated and never raised any objection regarding the process of enquiry. It was also contended that, the Executive Committee was constituted as per the Rules and even if the authority which imposed the penalty and two of the members of the enquiry committee were members of the Executive Committee, that by itself did not constitute the majority. It was also contended that all were high ranking officers and their capacity to evaluate evidence on record independently and untrammeled by any of the decisions taken by them earlier, could not be doubted. It was also contended that merely because two members of the enquiry committee were the members of Executive Committee and the authority which imposed the penalty was also a member of executive committee by itself cannot automatically lead to a presumption of prejudice. The allegation of prejudice has to be clearly established with cogent materials. No such materials are available on record, it was contended.

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It remains a fact that the authority which imposed the penalty was the Chairman of the executive committee. Likewise two members of the enquiry committee were also the members of the executive committee which considered the appeal. Definitely, it would have been more advisable had these authorities recused themselves from the consideration of appeal to ensure that justice was not

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WPC(C) No.16617/2021

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only done but also seem to be done. It is true that there is absolutely no record to show that merely because of their membership, they could not take independent decisions at each stage. However, this is a matter which is to be considered by

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the authority before whom the matter is now pending.

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Learned counsel for the respondent invited my attention to the decision of this court in W.P.(C)15820/2021 in which the same proceedings were under challenge at the instance of the two other employees, who faced the enquiry. In that, the question whether a second appeal would lie to the executive committee was raised. However, the matter was left open and by the judgment of this court in that writ petition, the second appeal was ordered to be considered by the Executive Committee of Kerala State Council for Science & Technology and Environment. I feel that in the light of the above, this writ petition is also liable to be disposed of accordingly.

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In the result, the writ petition is disposed of with a direction to the Executive Committee of the Kerala State Council for Science, Technology and Environment to consider Ext.P21 appeal preferred by the petitioner after hearing the petitioner, and to pass appropriate orders considering the specific contentions referred to above by the petitioner. If penalty has not been implemented till today, it shall not be imposed till the disposal of the appeal.

Sd/-

SUNIL THOMAS

Judge

dpk

WPC(C) No.16617/2021

APPENDIX OF WP(C) 16617/2021

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PETITIONER EXHIBITS

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Exhibit P1	TRUE COPY OF THE RULES AND REGULATIONS OF THE STATE COUNCIL I.E. KERALA STATE COUNCIL FOR SCIENCE TECHNOLOGY AND ENVIRONMENT (KSCSTE).
Exhibit P2	TRUE COPY OF THE COMPLAINT DATED 08.11.2018 FILED BY MR.S. MOHAMMED, SHEREEF TO THE 3RD RESPONDENT.
Exhibit P3	TRUE COPY OF THE COMPLAINT FILED BY MR. K.ASHOK KUMAR ON 08.11.2018 TO THE 3RD RESPONDENT.
Exhibit P4	TRUE COPY OF THE REPORT DATED 08.11.2018 FURNISHED BY THE SECURITY OFFICER TO THE 3RD RESPONDENT.
Exhibit P5	THE TRUE COPY OF THE LETTER DATED 08.11.2018 SENT BY THE 3RD RESPONDENT TO THE CIRCLE INSPECTOR OF POLICE, PALODE POLICE STATION.
Exhibit P6	TRUE COPY OF THE ORDER OF SUSPENSION ISSUED BY THE 3RD RESPONDENT BY NO. 3437/ESTT.2/2018/JNTBGRI DATED 09.11.2018.
Exhibit P7	TRUE COPY OF THE MEMO OF CHARGES AND MEMO OF ALLEGATION BY NO. 3437(5)/ESTT.2/2018/JNTBGRI DATED 05.12.2018.
Exhibit P8	TRUE COPY OF THE REPLY DATED 12.12.2018 SENT BY THE PETITIONER TO THE 3RD RESPONDENT.
Exhibit P9	TRUE COPY OF THE ORDER BY NO. 3437/ESTT.2/2018/JNTBGRI DATED 06.02.2019 ISSUED BY THE 3RD RESPONDENT.
Exhibit P10	TRUE COPY OF THE COMMUNICATION BY NO. JNTBGRI/DR/61/2019 DATED 28.02.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.
Exhibit P11	TRUE COPY OF THE STATEMENT IN THE FORM OF AN
	AFFIDAVIT SUBMITTED BY THIS PETITIONER ON 15.03.2019 BEFORE THE DISCIPLINARY COMMITTEE.

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WPC(C) No.16617/2021

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Exhibit P12	TRUE COPY OF THE COMPLAINT FILED BY THIS PETITIONER TO THE 3RD RESPONDENT DATED 12.07.2019.
Exhibit P13	TRUE COPY OF THE REPORT OF THE DISCIPLINARY COMMITTEE DATED 19.07.2019 FURNISHED BEFORE THE 3RD RESPONDENT.
Exhibit P14	TRUE COPY OF THE SHOW CAUSE NOTICE BY NO.3437(6)/ESTT.2/2018 JNTBGRI DATED 19.08.2019 ISSUED BY THE 3RD RESPONDENT.
Exhibit P15	TRUE COPY OF THE REPLY GIVEN BY THIS PETITIONER TO THE 3RD RESPONDENT TO EXT.P13 DATED 26.08.2019.
Exhibit P16	TRUE COPY OF THE ORDER BY NO. 3437/ESTT.2/2018/JNTBGRI DATED 20.09.2019.
Exhibit P17	TRUE COPY OF THE APPEAL MEMORANDUM SUBMITTED BY THIS PETITIONER ON 20.11.2019 TO THE MANAGEMENT COMMITTEE OF THE 2ND RESPONDENT.
Exhibit P18	THE TRUE COPY OF THE MINUTES OF THE 25TH MANAGING COMMITTEE OF JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE (KSCSTE - JNTBGRI),PALODE, THIRUVANANTHAPURAM DATED 05.02.2020.
Exhibit P19	TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT BY NO.3437/ESTT/2/2019/JNTBGRI DATED 16.03.2020.
Exhibit P20	TRUE COPY OF THE DETAILS OF THE MEMBERS INVOLVED IN THE EXECUTIVE COMMITTEE - KERALA STATE COUNCIL FOR SCIENCE TECHNOLOGY AND ENVIRONMENT (KSCSTE)
Exhibit P21	TRUE COPY OF THE APPEAL DATED 05.01.2021 FILED BY THIS PETITIONER BEFORE THE EXECUTIVE VICE PRESIDENT, KERALA STATE COUNCIL FOR SCIENCE TECHNOLOGY AND ENVIRONMENT (KSCSTE).
Exhibit P22	TRUE COPY OF THE FILE BY NO. KSCSTE/64/2021- C2 (COMPUTER NO.30677) DATED 30.06.2021 ISSUED BY THE EXECUTIVE VICE PRESIDENT OF THE 1ST RESPONDENT.

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WPC(C) No.16617/2021 8

B.Jayakumar v. the Kerala State Council for Science Technology and Environment (Kscste)

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B.Jayakumar v. the Kerala State Council for Science Technology and Environment (Kscste)

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