Regional Cancer Centre (RCC) vs Flower Augustine

The Regional Cancer Centre, Thiruvananthapuram and its Director are in appeal against the judgment dated 20-5-2022 in W.P. (C ) No. 41168 of 2016 passed by the learned Single Judge in a Writ Petition filed by the first respondent herein.

The brief facts necessary for the disposal of the appeal are as follows:-

The petitioner was appointed as a Nursing Superintendent Grade-II in the appellant institution by order dated 14-01-1993. Her probation was terminated by order dated, 5-09-1994, which was unsuccessfully challenged before this Court and confirmed in appeal. By Ext. P6 order dated 29-11-2002, on an application moved by the employee, she was directed to be “re-instated back in service”. She, thereafter, requested for treating the entire period during which she was kept out of service as period spent on duty and the Government by order dated, 16-5-2006, Ext. P8, appeared to have allowed the request.

Thereafter, the Government, by letter dated 6-6-2007, held that the employee could only be treated as a fresh entrant from 2002 onwards. Thereafter, a hearing was conducted and the Government by an order dated 16-5-2012 directed the appellant to treat the period when the petitioner was kept out of service as period spent on duty for all purposes including monetary benefits. Copy of the said order dated 16-5-2012 is marked in the Writ Petition as Ext. P10. The said order was not implemented as there were complaints against the said decision and the matter was pending before the Lok Ayuktha.

The Government, thereafter, by letter dated 11-5-2015, Ext. P14 informed the appellant that the employee is entitled to get the service benefits as stated in the Government Order. Alleging non-compliance of the same, a writ petition was filed by the employee as W.P.C. 10441/2016 in which Ext. P15 judgment was rendered on 29-3-2016, holding that the first respondent was entitled to the entire benefits due to her to be paid within four months. W.P. C. No. 10441 of 2016 which resulted in Ext. P15 judgment was challenged in appeal by one Sreelekha in W.A. No. 1019 of 2016. She had also filed separate Writ Petition as W.P.C. 16873/2016, both of which were heard together. There was an order passed on 11-7-2016 in the above cases which is extracted as follows:

“The learned Special Government Pleader submits that the government is likely to rethink on the issue involved in the Writ Appeal and the writ petition. He seeks a month's time. Post on 29-8-2016”

Accordingly, thereafter, the Government issued notice to the first respondent and to the other parties and passed Ext. P21 order. The Division Bench, on being appraised of the passing of the above order closed the writ appeal and the writ petition by a common judgment dated 28-10-2016, recorded the submission that Ext. P21 order dated 23-09-2016 covering the subject in issue has been passed, granting liberty to the employee, to question the said order, if needed, and closed  the Writ Appeal and Writ Petition.  Ext. P21, after considering the entire issues substantially reduced the benefits payable to the petitioner by pointing out certain factual aspects, which were not considered earlier nor brought to the notice of this court while passing Ext. P15 judgment. It is Ext. P21, which is challenged by the employee in this Writ Petition.

A counter affidavit was filed on behalf of the appellant stating that O.P. No.13003 of 1994 was filed before this Court by the employee challenging the termination order which was dismissed by judgment dated 10-12-19 Ext. R2 (a). Appeal filed against the same as W.A. No. 639 of 2000 was also dismissed on 18-8-2000 by Ext. [R2 (b)]. It was, thereafter, that the employee filed a petition before the Government which resulted in the order dated 29-11-2002, directing the RCC to re-instate the employee. The request of the employee to treat the period kept out of duty as service was rejected by the appellant by proceedings dated, 1-8-2005 and this was intimated to the Government. The appellant also, by letter dated 26-5-2006, requested the Government to review the Government direction in Ext. P6 pointing out that she cannot be reinstated as the termination order served on the employee was unsuccessfully challenged by her before the High Court. By Ext. P21 order, the Government has directed to investigate how the illegal decisions were taken in favour of the employer without considering the factual aspects involved. The appellant had intimated the Government, on earlier occasions and even sought a clarification while implementing the order dated 16-4-2012. The counter has narrated the entire sequence of events while justifying Ext. P21.

A counter affidavit has been filed by the Government as well on the same lines as that of the appellant herein. The counter of the Government notices the huge loss caused to the State exchequer and the reason for passing Ext. P21 recalling the earlier orders were dealt in detail. Government stated on affidavit that Ext. P6 order was found to be illegal and a decision was taken without properly considering the facts and the earlier judgments and it was the duty of the government to correct/review an order which was erroneously passed. Ample opportunity was given to the employee before passing Ext. P21 order which is a speaking order, apart from being a self explanatory one.

The learned Single Judge who considered the matter was of the view that in view of Ext. P15 judgment of this Court, Government cannot be clothed with the power to upset the mandamus issued by this Court by revoking the orders based on which the mandamus was issued. Reliance was placed on the judgment of the Supreme Court in N. Nagabhushana v. State of Karnataka and Another [(2011) 3 SCC 408]. Thus, finding that the Government as well as the appellant were parties to Ext. P15 judgment and that the Government could not have entertained the challenge against Exts. P10 and P14, allowed the writ petition by quashing Ext. P21 order and further directing the respondents to disburse the benefits granted to the petitioner under Ext. P10 as affirmed by Ext. P15 judgment within two months from the date of receipt of a copy of this judgment. Aggrieved by the said judgment , the employer has come up in this Writ Appeal.

The learned counsel for the appellant Sri. Athul Shaji argues that Ext. P21 order is passed after taking into account the admitted facts. He also argues that the inter partes judgment Ext. R2(b) and (c) were not brought to the notice of this Court while passing Ext. P15 judgment and it cannot be reviewed or set at naught by the parties to the said judgment. Ext. P6 and the other orders granting the benefits to the employer has to be seen as void and illegal and mistakes were corrected by the Government while passing Ext. P21 order. It is by non-consideration of the inter parte judgments in R2 (b) and (c) that the employee obtained Ext. P15 judgment. On the other hand, the learned Senior Counsel appearing for the first respondent, apart from re-iterating the contentions taken in the writ petition, argued that Ext. P15 judgment of this Court, wherein a mandamus is issued on the basis of the orders in favour of the employee cannot be interfered or reversed by the Government who is a party to the judgment and recalling those orders based on which mandamus was issued. He submits that Ext. P12 virtually overruled the judgment of this Court in Ext. P15 and the Government being a party to the earlier judgment cannot be allowed to pass an order like Ext. P21.

We have considered the arguments made by the learned counsel on either side and perused the records.

It is not disputed that the probation of the first respondent was terminated in the year 1993 due to unsatisfactory performance and that the challenge to the same was dismissed by this Court and confirmed by the Division Bench.  The said orders have become final. A petition under the   guise of a review petition filed before the Government in year 2002,  that is, after a span of  nearly nine years from the date of termination was ordered to be placed by the Chief Minister before the governing body of RCC in which on 29-11-2002 Ext. P6 an order was passed directing the first respondent to be  re-instated. This order was plainly against the judgments referred above. Another order was passed on 29-11-2012, directing to reckon the period from 15-3-1993 to 29-11-2002 for all service benefits and also to declare the probation with retrospective effect. The orders cannot be seen as void. They can only be seen as orders passed by the government despite a judgment in their favour. A litigant can always choose to waive the benefits conferred on it under a judgment. However, in such cases, the appointment has to be seen as a fresh one. The Government could not have treated as legal, the period of service that was found by the Court to be illegal. Curiously, Ext. P21 order also points out that during the period in question, the first respondent had worked in Cosmopolitan Hospital, Trivandrum apart from undergoing a five year regular LLB Course from Government Law College, Thiruvananthapuram, and had also practiced in the District Court, Thiruvananthapuram vide Roll No. K/943/2000 of the Bar Council of Kerala. As per the orders cancelled by Ext. P21 order, the first respondent was directed to be given all benefits even during this period when she was gainfully employed and was not working in the appellant institution. Ext. P21, further noted that the implementation of these orders leads to  a pecuniary gain of  Rs. 30 lakh,  over and above,   the  65 lakh already  paid to  her  as  per  G.O.  (Rt)  No. 2931/2002/H&FWD dated 29-11-2002. None of these things were pleaded or brought to the notice of this Court while filing W.P. (C ) No. 10441 of 2016. These facts were brought to light only because a 3rd party intervened and pointed out the glaring illegalities being committed.

It is to be noted that Ext. P15 judgment was subjected to appeal at the instance of the 3rd party, the said 3rd party had also filed W.P.C No.16873 of 2016 and it was a common order in both these cases that is referred above. Hearing was accordingly conducted pursuant to the submission made before this Court and, thereafter, Ext. P21 order was passed. In other words, the Division Bench did not consider the appeal against Ext. P15 judgment on merits in the light of the subsequent events. In such circumstances, Ext. P15 judgment cannot be said to be final, as regards the orders whose implementation was sought. There is nothing wrong in the Government revoking the orders that was sought to be implemented in Ext. P15 judgment in the instant case and on the admitted facts. Thus, Ext. P21 ought to have been challenged independently and the learned Single Judge also ought to have considered the legality of the same independent of the orders on the basis of which the writ petition that led to Ext. P15 judgment was filed and decided. The learned Single Judge did not consider the legality of Ext. P21 independently, instead chose to accept the finality of Ext. P15 while allowing the writ petition which we think is wrong on facts and law. We also note that an application for extension of time for complying with the directions in Ext.  P15  was  sought  as  I.A. No.12987/16. In the said application, the government has specifically stated that it intends to reconsider the matter or file an appeal against Ext. P15 judgment. It is seen that the Writ Appeal by the 3rd party and was filed on 12-05-2016 and the Writ Petition was filed on 2-5-2016. The judgment relied on in favour of the respondent by the learned Single Judge, we feel states the principle of finality of the litigation and the attempt to file cases on the same subject matter about which nobody can have a dispute. The case on hand is one where the Government had passed orders contrary to the directions issued by this Court and which were corrected by them albeit belatedly. The principles in the judgment in N. Nagabhushana (Supra) therefore, has no application to the case on hand.

A reading of the above facts would clearly show that Ext. P15 was passed ignoring the admitted facts. The facts recorded about the gainful employment of the petitioner during the period between 15-3-1993 to 29-11-2002 are not disputed. The employee had claimed parity with one P. Gopakumar whose services were terminated pursuant to disciplinary proceedings, but had challenged and obtained favourable order setting aside the disciplinary proceedings. It was claiming parity with such a person that benefits were directed to be given to the employee. There has been total recklessness on the part of the appellant and the Government while issuing orders conferring undue benefits on the employee, as rightly found by the Additional Chief Secretary to the Government in Ext. P21 order. How such illegal decisions came to be taken causing injustice and irreparable damage to the institutional integrity, need to be thoroughly investigated is opined in Ext. P21. A mandamus issued on the basis of orders ignoring the binding judgments of the Court between parties cannot be acted upon on the basis of the principles of finality of judgment. It is public money that is involved and which has not been carefully dealt with either by the appellant employer or the government while issuing orders casually which stands revoked in Ext. P21 order.

The argument that the employee was not given an opportunity before passing Ext. P21 is factually wrong. The employee was issued with Ext. P17 letter dated 8-8-2016 and Ext. P19 letter dated 12-8-2016 before issuing Ext. P21 order. The employee was absent on both these occasions and on 19-08-2016, the date of hearing she had attended duty in the appellant institution. Government's power to correct a mistake or an illegality of this gravity cannot be doubted. Exts. P6 and P10 have been rightfully revoked by the Government Ext. P21 corrects a legal mischief, if not a mischief.

The result of the above discussion is that Ext. P21 is upheld. It is declared that the first respondent will not be treated to be in service from 15-3-1993 to 29-11-2002 and shall not be entitled for any service benefits during that period. The respondents will calculate the actual amounts due after deducting the amounts already paid and pay the first respondent the balance, if any, without delay. W.P.C. No. 41168 of 2016 filed by the first respondent is dismissed. The judgment of the learned Single Judge dated 20-5-2002 in W.P.C. No. 41168/2016 is set aside and Writ Appeal 996 of 2022 is allowed.