Kerala State Coir Corporation Factory Ward And Anr vs Jayamohan B. And Anr

Shaffique, J

The Kerala State Coir Corporation and its officer have preferred this appeal challenging judgment dated 15/10/2019 in WP(C) No. 3446/2019 by

which the learned Single Judge had directed the appellants to consider the petitioner for promotion in preference to the 3rd respondent within a period

of one month from the date of receipt of a copy of the judgment and to pass orders of promotion with effect from the date on which the 3rd

respondent was promoted.

The contention of the appellants is that the writ petitioner, the 1st respondent herein, is involved in a disciplinary action and a punishment had been

imposed against him for recovering of one third of Rs. 81,86,890/-, which is the loss sustained by the Corporation on account of the misconduct

committed by the 1st respondent. Therefore, according to the appellants, he cannot be considered for promotion.

The 1st respondent/writ petitioner contended that there is no provision enabling the appellants to withhold promotion against him merely for the

reason that a disciplinary action or vigilance enquiry is pending against him whereas the 2nd respondent herein was given promotion when a criminal

case is pending against him. The learned Single Judge observed that in the absence of any rules disentitling the petitioner from being considered for

promotion while a disciplinary action had been finalised against him and that he is under obligation to pay any amount to the Corporation, he has to be

considered and promoted in preference to the 3rd respondent.

Learned counsel for the appellants submits that Ext.P3 is the service rules governing the employees of the 1st appellant Corporation. However, it is

stated that, as per Rule 3 (b) of Ext.P3, appointments that do not come under the purview of the Public Service Commission has to be made by the

Board subject to the rules in force from time to time and on the recommendation of the Appointment Committee. The 1st respondent was working as

Supervisor Grade II and he aspires for promotion to the post of Supervisor Grade I.

There is no dispute about the fact that the 1st respondent/petitioner was found guilty of misconduct and direction was issued to recover 1/3rd of the

loss from the said employee. In Ext.P1, by which the 2nd respondent herein was promoted as Supervisor Grade I, it is stated that the 1st respondent

who was senior was not considered as a vigilance enquiry was pending against him and after conclusion of the enquiry, it will be reconsidered. The

contention urged by the appellants is that a person cannot be promoted to a higher post with higher responsibilities and higher pay who is found to have

committed misconduct and caused huge loss to the Corporation and facing even vigilance charges.

On the other hand, learned counsel appearing for the 1st respondent herein would argue that challenging the disciplinary proceedings initiated

against him, he had already filed WP(C) No. 19777/2015 before this Court and this Court had stayed all further steps for recovery of the amount from

the monthly salary of the petitioner. That apart, it is contended that even the 2nd respondent herein is involved in a criminal case and he was also not

eligible for being promoted if the same yardstick is taken into consideration.

As far as promotion to a higher post is concerned, the competent authority to make appointments is the Board subject to the rules in force and on

recommendation of the Appointment Committee. Therefore, while considering promotion from one post to another, it shall be open for the Board on

the recommendation of the Appointment Committee to take a decision. Whether a person involved in a misconduct is required to be promoted or not

also is a matter which could be considered by the Appointment Committee or the Board.

Apparently, no such consideration had been made either by the Board or the Appointment Committee. The learned Single Judge proceeded on the

basis that a junior cannot be promoted to a higher post overlooking the senior. But what would be the position in an instance where a senior is involved

in a grave misconduct is also a factor which requires consideration. In the absence of any such provision under the Rules governing the employees of

the 1st appellant, we are of the view that the Appointment Committee as well as the Board are empowered to take such a decision. Therefore, it was

not appropriate for the learned Single Judge to have directed the 1st respondent to be promoted. It would have been only appropriate to direct the

management to consider the right of the 1st respondent to get promotion or the reason why he is superseded taking into account the rules as well as

the factual circumstances arising in the matter. Under such circumstances, we are of the view that the direction issued by the learned Single Judge

requires to be modified.

Taking into account all the factual circumstances, it is only appropriate that Ext.P1 be set aside so that the Board and the Appointment Committee

can take a fresh decision in the matter. It shall be open for respondents 1 and 2 to submit appropriate representation to the Board and the Board shall

take a fresh decision in accordance with law after consultation with the Appointment Committee and while doing so, the representation, if any,

submitted by respondents 1 and 2, shall also be considered.

Writ appeal is disposed of as above in modification of the judgment of the learned Single Judge. No costs.