Shaheen F vs State Of Kerala

V.G.Arun, J

The petitioner was appointed as LD Clerk in the Kerala Labour Welfare Fund Board/second respondent vide Ext.P1 dated 22.04.2016. The petitioner cleared the Departmental Test for promotion to the post of UD Clerk before completing his period of probation. As vacancies of UD Clerk were available, the petitioner submitted an application for provisional promotion before the then Welfare Fund Commissioner. The Commissioner directed the Senior Superintendent to report whether the petitioner is eligible. The petitioner, who at that point of time, was working as LD Clerk in the establishment seat of the Board, placed the file before the Senior Superintendent along with the legal opinion of a Service Consultant, stating that the petitioner could be granted provisional promotion as per Rule 31(a)(1) of the KS&SSR. The Senior Superintendent submitted his report accordingly and the petitioner obtained an order from the Welfare Fund Commissioner, provisionally promoting the petitioner as U.D.Clerk in accordance with Rule 31(a) (1) of the KS&SSR. At that time, there was no administrative committee for the Board. Later, on constitution of the Committee, the decision granting provisional promotion to the petitioner was taken up for ratification and rejected. In view of the earlier decision granting provisional promotion, the matter was referred to the Government for consideration. Thereupon, the Government issued Ext.P2 communication, refusing to grant approval for the provisional promotion and seeking explanation for granting such promotion. While so, Ext.P3 was issued by the Commissioner requiring the Finance Officer of the Board to conduct an enquiry into the allegation of misbehaviour by the petitioner. Later, the petitioner was issued with Ext.P5 charge memo, alleging that he had misbehaved with the Labour Fund Commissioner on 02.09.2019 and he had secured promotion as UD Clerk by misleading the Commissioner, contrary to Regulation 67 Chapter V of the Kerala Labour Welfare Fund Board Employees (Appointment & Service Conditions) Regulations, by misleading the Commissioner. Being dissatisfied the petitioner's explanation, the Board decided to conduct Departmental enquiry and appointed an enquiry officer (Ext.P7). The petitioner challenged Ext.P7 before this Court. The challenge was repelled by Ext.P8 judgment and the writ petition disposed of, directing the enquiry to be completed within six months. The enquiry was completed accordingly and Ext.P9 report submitted, finding the petitioner guilty of the charges levelled against him. The petitioner submitted Ext.P7 objection to the findings in the enquiry report. Thereafter, the petitioner was issued with Ext.P11 notice to show cause as to why he should not be imposed with the punishment of reversion to the post of LD clerk, as per Regulation 39(v) of the Kerala Labour Welfare Fund Board Employees (Appointment & Service Conditions) Regulations. Finally, the petitioner was issued with Ext.P12 order reverting him from UD Clerk to LD Clerk for three years. This writ petition is filed seeking to quash Ext.P12 order.

According to the learned Counsel for the petitioner, the very basis for initiation of the disciplinary proceedings is faulty. It is contended that, for the reason that the petitioner  was  working  as  LD Clerk in the establishment seat, it cannot be assumed that he had obtained  provisional  promotion  by  misleading the Welfare Fund  Commissioner. It was the Welfare  Fund Commissioner  who  had directed the Senior Superintendent to consider the petitioner's request for provisional promotion and to report whether the petitioner is found eligible. Accordingly, the Senior Superintendent had considered the request and filed the report, finding the petitioner to be eligible for promotion. Rule 31(a)(i) of Part II KS&SSR provides for temporary promotion. The superior authority having granted the promotion, there is no justification in subjecting the petitioner to disciplinary proceedings and imposing him with the disproportionate punishment of reversion to a lower post for three years. Learned Counsel also argued that the findings of the enquiry officer are baseless and unsubstantiated. It is contended that the Commissioner who had recommended for disciplinary action was inimical towards the petitioner and had appointed a subordinate, willing to toe his line, as the enquiry officer. Ext.P12 is challenged on the ground of non- application of mind and of the punishment being grossly disproportionate to the alleged act of indiscipline.

Learned Standing Counsel for the second respondent Board submitted that the petitioner had caused the then Welfare Fund Commissioner to approve his promotion by making false entries in the file and obtaining the opinion of a Service Consultant, without seeking the Board's permission. It is submitted that, temporary promotions under Rule 31(a)(i) can be effected only in public interest or when such appointment is emergent. Neither public interest nor emergency situation was prevalent in the second respondent Board. Hence, the provisional promotion secured by the petitioner was patently illegal. The challenge against vagueness of the charge and appointment of enquiry officer is no longer available in view of Ext.P8 judgment, wherein the contentions were considered and repelled. It is argued that the limited scope of interference with the decisions of the competent authority in exercise of writ jurisdiction should deter this Court from interfering with Ext.P12 order, particularly when the petitioner has failed to point out any patent perversity in the order.

As rightly contended by the learned Standing Counsel, vagueness of the charge and the legality of appointing a subordinate officer as enquiry officer is no longer open for consideration, since those challenges stand concluded by Ext.P8 judgment. As regard the contentions regarding violation of the principles of natural justice, I am unable to find any such violation in the conduct of enquriy or the disciplinary proceedings. It is settled law that in exercise of the power of judicial review, this Court shall not consider the legality of the decision and should confine the consideration to the legality of the decision making process. It is also the settled law that, while considering the challenge against disciplinary proceedings, the writ court is not expected to function as an appellate forum and reconsider all factual aspects.

For the aforementioned reasons, the challenge against Ext.P12 is found to be without merit. Consequently, the writ petition is dismissed.