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Kerala High Court Digest 2023: Labour & Service Laws
Tellmy Jolly
10 Jan 2024 3:30 AM GMT
Pension Schemes Under KTWWF Act & Kerala Dairy Farmers' Welfare Fund Act Do Not Prohibit Membership Of Two Different Welfare Funds: Kerala High CourtCase Title: Sadanandan K.S. & Ors. v. Kerala Toddy Workers Welfare Fund Board & Ors.Citation: 2023 LiveLaw (Ker) 7The Kerala High Court held that availing of pension from the Scheme under Kerala Dairy Farmers' Welfare Fund Act, 2007...
Case Title: Sadanandan K.S. & Ors. v. Kerala Toddy Workers Welfare Fund Board & Ors.
Citation: 2023 LiveLaw (Ker) 7
The Kerala High Court held that availing of pension from the Scheme under Kerala Dairy Farmers' Welfare Fund Act, 2007 would not prohibit the same person from availing pension from the Scheme under the Kerala Toddy Workers Welfare Fund Act, 1969.
Justice Murali Purushothaman said neither the KTWWF Act nor the Kerala Dairy Farmers' Welfare Fund Act provides for any prohibition of membership in two welfare funds or in receiving benefits under two welfare fund schemes under two different Acts.
Case Title: Chandra Chooden Nair S v. State of Kerala and Ors.
Citation: 2023 LiveLaw (Ker) 9
The Kerala High Court ordered action against government employees who participated in general strikes last year, on March 28 and 29, against Centre's economic policies.
A Division Bench consisting of Chief Justice S Manikumar and Justice Shaji P. Chaly reiterated that Government Employees who participate in general strikes, affecting the normal life of the public and Public Exchequer, are not entitled to be protected under Article 19(1)(c) of the Constitution. The provision protects the right to form associations or unions.
The Court in the case of G. Balagopalan v. State of Kerala and Others had held that there is no legal right in workers or associations, to call for a general strike or instigate the employees to strike, in the guise of the fundamental right guaranteed under Article 19(1)(c) of the Constitution.
Thus relying on the case, the Court observed that erring government servants are liable to be proceeded against in accordance with the provisions of Kerala Service Rules and Kerala Government Servants' Conduct Rules, 1960.
Case Title: State of Kerala rep. by Secretary to the Government & Ors. v. Dr. Sushama S. & Anr.
Citation: 2023 LiveLaw (Ker) 12
The Kerala High Court held the appointment of a teacher against the vacancy that arose by reason of the leave without allowance granted to a regular incumbent, cannot be regarded as an appointment made against a substantive vacancy.
The Division Bench comprising Justice P.B. Sureshkumar and Justice C.S. Sudha further held that the service rendered by such person in the leave vacancy preceding their absorption without break in the regular establishment would also not qualify for pensionary benefits.
"...in the absence of an order by the Government suspending the lien of the teacher in whose leave vacancy the petitioner was initially appointed, the said teacher was retaining a lien on that post. If that be so, the initial appointment of the petitioner cannot be said to be an appointment made against a substantive vacancy", it was observed.
Case Title: State of Kerala and Ors. v. Raveendran Pillai S and Anr.
Citation: 2023 LiveLaw (Ker) 16
The Kerala High Court observed that according to Rule 4 and Rule 14E(a) of Kerala Service Rules no claim to pension is admissible when an employee is appointed for a limited period and that the period of regular full time service of a pensioner in an aided school alone shall be reckoned as qualifying service for pension.
Division Bench consisting of Justice P. B. Suresh Kumar and Justice C. S. Sudha observed that,
“The appointments of the petitioner in the leave vacancies can be regarded only as appointments for a limited time and in light of Rule 4 of Part III KSR, no claim to pension is admissible for the services rendered by the petitioner in the said vacancies, especially in light of the clarification made in Rule 14E(a) that only regular full time aided school service shall be reckoned for pension”.
Contractual Employees Cannot Be Terminated Without Issuance Of Notice: Kerala High Court
Case Title: Tintu K. & Anr. v. Union of India & Ors.
Citation: 2023 LiveLaw (Ker) 18
The Kerala High Court held that contractual employees cannot be terminated on the ground of 'unsatisfactory performance' of service without the issuance of notice or finding to that effect.
Setting aside an order passed by Mananthavady Municipality by which the service of petitioners at Ayush NHM Homeopathic Dispensary was discontinued, Justice Anu Sivaraman said that the primary reason for termination of services of the contract was that their services had been found to be unsatisfactory.
"If that be so, even though the petitioners are contractual employees, they were entitled to a notice with regard to the unsatisfactory nature of their service and their services could have been terminated only on a finding being rendered on the same," the court said.
The court further noted that even in case the contention of the respondents is that the petitioners were not appointed after a full process of selection was carried out, it is not in dispute that they have been continuing in service on contract basis from 2010 and 2016 onwards.
Case Title: Justice K.K. Denesan (Retd. Judge) v. Senior Accounts Officer & Ors.
Citation: 2023 LiveLaw (Ker) 23
The Kerala High Court considered the question as to whether the pension of a High Court judge, who has been reappointed as an Ombudsman after retirement, could be deducted from his salary, and answered the same in the negative.
Justice Anu Sivaraman, observed in this regard,"the provisions of the Act (Panchayat Raj Act) and the Rules (Ombudsman for Local Self Government Institutions (Inquiry of Complaints and Service Conditions) Rules, 1999) are quite clear in as much as the provision specifically provides that a person appointed as Ombudsman would be entitled to salary and allowances equivalent to that of a High Court Judge. The Act or the Rules, admittedly, do not provide for any deduction of pension".
Case Title: Mr. Unnikrishnan V.V. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 33
The Kerala High Court held that where a person had not been a judicial officer either on the date of submission of application for appointment as the District Judge, or on the date of his appointment as such, and he had only been a Munsiff-Magistrate trainee, the same would not be a bar for his appointment to the post of District Judge.
Justice Anu Sivaraman passed the above order in a petition challenging the appointment of A.V. Telles (3rd respondent), on the ground that he had been undergoing Munsiff-Magistrate training at the Kerala Judicial Academy, and observed,
"a reading of the provisions of the Kerala Judicial Service Rules would make it amply clear that the initial induction in the post of Munsiff-Magistrate is as pre-induction trainees and that Ext.P6 is an order deputing the incumbents whose names are contained in Ext.P5 list for the pre-induction training. Since the Special Rules specifically provide for a pre-induction training and a later appointment as Munsiff-Magistrate after completion of the period of training, the contention of the petitioner that the 3rd respondent stood appointed as Munsiff-Magistrate and was therefore a judicial officer cannot be accepted" the Court said.
Case Title: Kerala Judicial Officers' Association & Anr. v. State of Kerala & Ors. and other connected matters
Citation: 2023 LiveLaw (Ker) 36
The Kerala High Court held that the special pay granted to judicial officers is a part of their pay and that it is to be reckoned for the purpose of calculation of pension.
The Single Judge Bench of Justice Anu Sivaraman was considering a batch of petitions filed by judicial officers who are either working or have retired from service as District and Sessions Judges, seeking refixation of pension payable to the petitioners and members of the Kerala Judicial Officers Association by reckoning special pay which is paid to them as part of their emoluments.
Kerala High Court Directs State To Revise Minimum Wages Of Nurses In Private Sector
Case Title: Kerala State United Nurses Association v. State of Kerala
Citation: 2023 LiveLaw (Ker) 41
The Kerala High Court has directed the State government to revise the minimum wage of nurses working in the private sector in the State.
The Single Judge Bench of Justice Amit Rawal has directed that the said exercise ought to be undertaken within a period of 3 months. The Court has added that the said decision has to be taken after hearing the submissions of the hospital Management and the nurses.
Case Title: The Secretary, Sree Avittom Thirunal Hospital v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 51
The Kerala High Court recently held that the authority under the Payment of Gratuity Act cannot condone the delay in filing an appeal by entertaining an application under Section 5 of the Limitation Act.
Justice Amit Rawal, interpreted Sections 5 and 29 of the Limitation Act, as well as Section 7(7) of the Payment of Gratuity Act. The Court noted that as per Section 7(7) of the Payment of Gratuity Act, limitation to file an appeal against the order of the authority is 60 days, condonable by another 60 days subject to the explanation of prevention by giving a sufficient cause and not beyond.
"...it is evident that the legislature while enacting sub Section 7 of Section 7 specifically excluded the application of limitation Act by providing the limitation of appeal for a period of 60+60 days. Otherwise, the limitation to file an appeal under the schedule of the limitation Act is thirty (30) days. Thus for all intends and purposes, there cannot be any condonation of delay by taking the aid of the aforementioned provisions by entertaining an application under Section 5 of the Limitation Act", it observed.
Case Title: Tomy Joseph v. The Joint Registrar of Cooperative Societies (General), Idukki & Anr.
Citation: 2023 LiveLaw (Ker) 71
The Kerala High Court held that an order of suspension under Section 32 of the Kerala Co-operative Societies Act, 1969 (hereinafter, 'the Act') is not dependent on the completion of the inquiry under Section 65 and the power can, for grave and compelling reasons, be exercised even when the inquiry is pending.
The Single Judge Bench of Justice Gopinath P., in this case was considering a writ petition filed by the president of the Managing Committee of the Idukki District Dealers Co-operative Society, who was aggrieved by the order of the Joint Registrar of Cooperative Societies (General), Idukki (1st respondent herein) placing the elected Managing Committee of the Society under suspension in the exercise of jurisdiction under Section 32 of the Act, pending completion of an inquiry under Section 65 of the Act.
"The very nature of an order of suspension indicates that such power is to be exercised to meet an emergent situation where it may be necessary to keep an elected Managing Committee out of office in order to complete the inquiry under Section 65. If it were to be held that such power can be exercised only after the inquiry is completed under Section 65, it might even defeat the purpose for which an inquiry is contemplated. A reading of Ext.P2 (order of the Joint Registrar) clearly shows that the officer had taken a view that it was necessary to keep the Managing Committee under suspension pending inquiry under Section 65 as it would be difficult to complete the inquiry in a proper manner if the elected Managing Committee is allowed to continue in office pending inquiry", it was observed.
Case Title: State of Kerala rep. by Additional Chief Secretary & Ors. v. Dr. Louis J. Kattady & Ors.
Citation: 2023 LiveLaw (Ker) 80
The Kerala High Court has held that a teacher, who entered service with M.Phil and was awarded two advance increments on the basis of the M.Phil degree, and who subsequently acquired Ph.D while in service, would not be entitled to three additional non-compounded increments provided in the State Government order based on the Sixth UGC Scheme.
A Division Bench comprising Justice P.B. Sureshkumar and Justice C.S. Sudha, observed that the teacher could not be regarded as a teacher in service who has been awarded Ph.D at the time of coming into force of the subsequent Government Order in terms of the Sixth UGC Scheme entitling teachers who completed their Ph.D. in service to three non-compounded increments.
"The pointed question is as to whether the petitioner could be regarded as a teacher in service who has been awarded Ph.D at the time of coming into force of Ext.P4 order.If a person like the petitioner who has been awarded Ph.D about two years prior to the coming into force of Ext.P4 order and who was governed by Clause 6.17 of Ext.P2 order is regarded as a teacher in service who has been awarded Ph.D at the time of coming into force of Ext.P4 order, then all similar teachers who were governed by Clause 6.19 of Ext.P2 order would also fall under Clause 10.5, as the Sixth Scheme of the UGC .... only precludes teachers who have already availed the benefit of advance increments from possessing Ph.D at the entry level under the earlier Scheme, from claiming advance increments under the Sixth Scheme in terms of Clause 7(xxi) therein. If that be so, they can also claim three non-compounded increments in addition to the two advance increments which have been granted to them in terms of Clause 6.19 of Ext.P2 order. Such an inference, according to us, cannot be made, for if such an inference is made, those who have entered service with Ph.D when Ext.P2 order was in force will have to be satisfied with four increments, whereas those who have entered service without Ph.D, but acquired Ph.D while in service, will be able to claim five increments, two under the Fifth Scheme and three under the Sixth Scheme", it was observed.
Case Title: Geethakumary J. v. The District Educational Officer & Ors.
Citation: 2023 LiveLaw (Ker) 116
The Kerala High Court held that the the Acharya certificate issued by the Kerala Hindi Prachar Sabha can be treated as a collegiate training such as B.T, L.T or B.Ed as provided under Explanation I to Rule 44A of Chapter XIV(A) of Kerala Education Rules (KER).
Justice P.V. Kunhikrishnan passed the above order while considering a case relating to promotion of a High School Assistant to the post of Headmaster following 13 years of graduate service.
"For deciding the same, this Court has to read Rule (2) of Chapter XXXI of KER read with Explanation (1) to Rule 44A of Chapter XIV(A) of KER. There the graduate service is explained to the effect that the graduate service should be after acquisition of collegiate training such as B.T, L.T or B.Ed. Rule 44A Chapter of XIV(A) also states the minimum qualification for appointment as Headmaster. Since the explanation clearly says that after acquisition of collegiate training such as B.T, L.T or B.Ed, the candidate should be in graduate service as defined in that explanation. Hence it is clear that the qualification of B.T, L.T or B.Ed alone are not included but such other qualifications are also included," the Court observed.
Case Title: Dr. Usha V. Parameswaran and Others V State of Kerala and Others
Citation: 2023 LiveLaw (Ker) 150
The Kerala High Court recently upheld the constitutional validity of Section 45A of the Kerala University of Fisheries and Ocean Studies Act, 2010 (KUFOS Act) on the ground that the qualifications for teaching posts prescribed in addition to the UGC Regulations is for uplifting the quality of education.
A single bench of Justice Sathish Ninan was considering a plea challenging the constitutional validity of Section 45A of the KUFOS Act on the ground that it was repugnant to the qualifications prescribed by the University Grants Commission (UGC) Regulations. The petitioners also challenged the employment notification issued by the Kerala University Of Fisheries And Ocean Studies for filling up posts prescribing the above qualifications.
Case Title: Dr. K.S. Chandrasekhar & Ors. v. The Chancellor & Ors
Citation: 2023 LiveLaw (Ker) 156
The Kerala High Court quashed the order of Governor Arif Mohammed Khan, Chancellor of the University of Kerala, withdrawing the nomination of 15 members of the University Senate.
A single bench of Justice Sathish Ninan held that the order of the Chancellor withdrawing the nominations of the members invoking the doctrine of pleasure was unsustainable in law and arbitrary:
“it is evident that the order is not based on any reason, but, was rather founded on prejudice. It was an unreasoned act, without regard to the facts and circumstances”, the court observed.
Case Title: Saheer S V Union Of India
Citation: 2023 LiveLaw (Ker) 187
The Kerala High Court directed the Employees Provident Fund Organization to modify its online system to allow employees/pensioners to comply with the directives of the Supreme Court for opting for higher pension without having to provide copies of the option under paragraph 26(6) of the Employees Provident Fund Scheme, 1952.
A single bench of Justice Ziyad Rahman while granting the interim order observed: “the Employees Provident Fund Organization and the authorities under the same are directed to make adequate provisions in their online facility to enable the employees/pensioners to furnish the options in tune with the directions of the Honourable Supreme Court, without the production of the copies of option under paragraph 26(6) of the Scheme, 1952 and the details thereof, for the time being”.
Case Title: Xavier T.J v State Of Kerala
Citation: 2023 LiveLaw (Ker) 199
The Kerala High Court recently held that the when a Headmaster is appointed bypassing seniority, such appointment can only be accepted if it is indicated in the appointment order that the appointment is being made by invoking the minority status of the institute.
A single bench of Justice P V Kunhikrishnan observed that when a Manager of an educational institute appoints a headmaster by overlooking seniority in exercise of its minority rights, this should be made clear in the appointment order under Form 27 of KER (Kerala Education Rules) by striking out paragraph 3 of the form that states there is no other candidate qualified and eligible for promotion to the said post.
Case Title: Kerala Public Service Commission v. State Disability Commissioner & Ors.
Citation: 2023 LiveLaw (Ker) 213
The Kerala High Court held that the State Commissioner for Persons with Disabilities cannot make an adjudication on a service matter or direct appointment of a person to civil services of the Central Government or the State Government.
Justice N. Nagaresh perused Sections 80-83 of the Rights of Persons with Disabilities Act, 2016, and observed that,
"A reading of Sections 80 to 83 would show that the State Disability Commissioner has power only to advise and make recommendations to appropriate authorities".
Additionally, the Court observed that pursuant to the enactment of the Administrative Tribunals Act, 1985, all service matters pertaining to appointment to Central Government and State Government services are to be adjudicated by the Administrative Tribunals constituted under the Act.
Case Title: Mahesh Thampi v. The Deputy Director of Education & Ors.
Citation: 2023 LiveLaw (Ker) 218
The Kerala High Court recently held that a teacher in an aided school governed by the Kerala Education Act (hereinafter, 'the Act') and the Kerala Education Rules (hereinafter, 'the KER'), can be dismissed from service on the basis of conviction in a criminal case, without following the procedures prescribed under Rules 65, 74 and 75 of Chapter XIVA KER.
The Division Bench comprising Justice P.B. Sureshkumar and Justice Sophy Thomas referred to Rule 77A of KER which stipulates that where a penalty is imposed on a teacher on the ground of conduct which had led to his conviction on a criminal charge, the authority taking action under the Rule, may consider the circumstances of the case and pass such orders thereon as it deems fit. Explaining its scope the bench observed:
"...where a penalty is imposed on a teacher on the ground of conduct which had led to his conviction on a criminal charge, the authority taking action under the Rule, may consider the circumstances of the case and pass such orders thereon as it deems fit. In other words, where a penalty is imposed on a teacher on the ground of his conduct which had led to his conviction on a criminal charge, it is not necessary to follow the procedure prescribed in Rule 75 and the competent authority is empowered to pass appropriate orders in such cases as it deems fit."
Case Title: Sreedevi S. & Ors. v. The Selection Committee, Chennithala, Thripperumthara Grama Panchayat & Ors.
Citation: 2023 LiveLaw (Ker) 224
The Kerala High Court recently quashed the selection list for appointment of Anganwadi workers in Anganwadi Centre Nos.81, 84, 96 and 155 of Chennithala Thriperumthura Grama Panchayat under the Integrated Child Development Services (ICDS) Mavelikkara Project.
Justice N. Nagaresh, on finding the selection process vitiated by bias, quashed the same and directed the respondents- Director and Officer of the Women and Child Development, the Child Development Project Officer, and the Chennithala Thriperumthura Grama Panchayat- to constitute a fresh Selection Committee and conduct the selection process afresh, considering the candidature of those who had already participated in the process, within 2 months.
Case Title: Ratheesh Dasan V. State Of Kerala
Citation: 2023 LiveLaw (Ker) 226
The Kerala High Court recently held that High Court has the power to prescribe conditions for inter district transfers of employees in the administrative side of the judiciary. The Court observed that this power is derived from Article 235 of the Constitution which grants the High Court the power to exercise complete administrative control over the subordinate courts.
A single bench of Justice N Nagaresh observed,
“The courts are institutions or an organism where all the limbs complete the whole system of courts. When the constitutional provision is of such wide amplitude to cover both the courts and persons belonging to the judicial office, there would be no reason to exclude the other limbs of the courts, namely, administrative functionaries and ministerial staff of its establishment from the scope of control. Such control is exclusive in nature, comprehensive in extent and effective in operation.”
Case Title: Nixy James V Kerala State Road Transport Corporation
Citation: 2023 LiveLaw (Ker) 236
The Kerala High Court recently held that an employee in service can be transferred on administrative grounds in order to maintain a harmonious atmosphere in office for its smooth functioning.
A single bench of Justice Sathish Ninan also observed that departmental action may not be required in light of such transfers as they are not to be considered as punishment, but only a means to maintain a good work environment:
“When an employee is transferred to maintain the smooth running of an organization, it is not to be understood as a punishment. The element of punishment is absent therein. The idea is to maintain the internal harmony of the organisation and to safeguard its smooth functioning. In every case of erratic or inappropriate behaviour by a subordinate, the employer is not bound to initiate departmental action and to impose punishment. For effecting a transfer, there need not be any enquiry conducted to first ascertain whether there was misbehaviour or conduct unbecoming of an employee. To hold otherwise would frustrate the very purpose of transferring an employee in public interest or exigencies of administration, to enforce a decorum and ensure probity.”
Case Title: Ajith Kumar V.S. & Anr. v. State of Kerala & Ors. and other connected matters
Citation: 2023 LiveLaw (Ker) 249
Taking exception to the State's rejection of a proposal on the enhancement of retirement age of high court staff from 56 to 58, the Kerala High Court remitted the matter back to the state government for a fresh decision on the proposal of the Chief Justice for enhancement of the retirement age of the meritorious employees.
The Registrar General of the High Court on October 25, 2022 had forwarded the proposal of the Chief Justice for enhancement of the age of superannuation of the members of the High Court staff from 56 to 58 years. The proposal had been sent pursuant to a High level meeting between the Chief Justice and the Chief Minister of the State on September 24, 2022. The sub-committee consisting of three judges had suggested enhancement of retirement age, limiting to members with meritorious service and impeccable integrity for which a performance evaluation would have to be done at the age of 56 years.
Additional Chief Secretary of the Government however, in February informed the High Court of the State's inability to accept the proposal since the retirement age of the High Court staff had been fixed at par with that of the Government servants. The State said that since it had not taken any decision to enhance the retirement age of the government servants, the Government would thus not be able to consider the proposal of the Chief Justice favourably.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas, while taking the view that the request of the Chief Justice could only be treated as a proposal for favourable consideration for initiating suitable amendment to the law laid down with respect to the retirement age, observed:
"It is beyond our power to direct the Government to initiate steps for amendment of legislation related to the retirement age. However, at the same time, we also feel that the Government cannot outrightly reject the proposal, merely citing the age of retirement prevailing for government servants".
Case Title: K. Rajendra Prasad V State Of Kerala
Citation: 2023 LiveLaw (Ker) 257
The Kerala High Court recently observed that the maximum amount of gratuity payable under the Payment of Gratuity Act, 1972 must be calculated from the date on which gratuity became payable and not on the date the amount was actually disbursed.
The Court was considering the plea of a retired Regional Engineer from the Kerala State Housing Board whose DCRG and last month pay was withheld due to audit objections. The Petitioner retired in the year 2002. He had earlier approached the Court and the Secretary of the Board was directed to disburse the withheld amounts. However, according to the petitioner, in light of the 2010 Amendment to the Payment of Gratuity Act, 1972 under Section 4(3) he is entitled to a maximum gratuity of Rupees Ten Lakhs.
Dismissing the petitioner's claim a single bench of Justice Murali Purushothaman observed:
“The gratuity is payable to an employee on the termination of his employment. The gratuity payable to an employee shall not exceed the maximum that is notified under the respective enactments as on the date on which the gratuity becomes payable. Even if it is assumed that the petitioner's claim for gratuity was under the Payment of Gratuity Act, 1972, the maximum amount of gratuity payable under the said Act has to be determined with respect to the date on which the gratuity became payable and not on the date on which sanction was accorded for payment of DCRG or the date on which the amount was actually disbursed to him. Therefore, there is no merit in the contention of the petitioner that he is entitled to the maximum gratuity of Rs.10,00,000/- as per section 4(3) of the Payment of Gratuity Act, 1972, as amended by Act 15 of 2010.”
Case Title: K Cheriya Koya V. U T Administration of Lakshadweep
Citation: 2023 LiveLaw (Ker) 282
The Kerala High Court held that the control over district court and subordinate courts of the Union Territory of Lakshadweep including the power of disciplinary proceedings against the presiding officers of such courts vests with the High Court of Kerala by virtue of Article 235 of the Constitution.
A single bench of Justice P V Kunhikrishnan held,
“In the light of Article 235 of the Constitution of India, it is declared that the control over the district court and courts subordinate thereto mentioned in Article 235 of the Constitution of India includes the power of disciplinary proceedings against the presiding officers of district court and courts subordinate thereto. Since the district court and subordinate courts in Lakshadweep are under the supervision of the High Court of Kerala, it is declared that the High Court of Kerala has got the power to initiate disciplinary proceedings against the presiding officers of the district court and courts subordinate thereto in the Lakshadweep Islands. I also clarify that the 1st respondent is free to frame Rules in tune with Article 235 of the Constitution of India, if necessary.”
Case Title: State of Kerala & Ors. v. Seena M.
Citation: 2023 LiveLaw (Ker) 286
The Kerala High Court held that excess payment that was carelessly or negligently granted to an employee by an employer cannot be recovered, particularly when the employee had no knowledge that the amount that was paid was more than what (s)he was entitled to.
The Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran, on considering the case of an applicant teacher who was paid excess increment based on a Government Order, ascertained that the situation was covered within the ambit of clause (v) of the situations summarized in paragraph 18 of State of Punjab & Ors. v. Rafiq Masih (White Washer Case) (2015). The said clause states that recoveries of excess payment by employers, would be impermissible in law where the recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.
Case Title: Varghese Vijesh v. State of Kerala & connected matters
Citation: 2022 LiveLaw (Ker) 327
The Kerala High Court has held that new categories or posts for appointments cannot be included in State services in the absence of existing enabling recruitment rules prescribing such inclusion.
Justice N. Nagaresh reiterated that the rights and obligations of individuals employed by the Union and the States are derived from the governing rules that regulate their service.
"The law is therefore clear that the rights and obligations of the persons serving the Union and the States are to be sourced from the Rules governing their service. As the petitioners were not eligible for appointment as Assistant Engineers till 30.01.2023, the PSC cannot be directed to consider the candidature of the petitioners in any selection process conducted prior to 30.01.2023."
Disciplinary Authority Cannot Take Upon The Role Of Enquiry Officer: Kerala High Court
Case Title: Bhaskaran KP v Kerala State Electricity Board Ltd.
Citation: 2023 LiveLaw (Ker) 375
The Kerala High Court recently quashed the orders in a disciplinary proceeding because the disciplinary officer took upon himself the role of the enquiry officer, found the petitioner guilty and quantified an amount as personal liability.
Justice Devan Ramachandran, held thus:
“This is because, once the 'Investigating Team' had found liability against the petitioner, the matter should have gone back to the Enquiry Officer for completing the disciplinary proceedings because, as I have said above and as is conceded in all pleadings and documents, said Authority had found the charge to be inconclusive for want of proper inputs. Instead of doing so, the Disciplinary Authority took upon himself the role of the Enquiry Officer also, thus to find the petitioner guilty and to finally conclude that the afore figure should be reckoned as his 'personal liability'. “
Case title: Poongottil Prasad v Melattur Grama Panchayat
Citation: 2023 LiveLaw (Ker) 383
The Kerala High Court recently observed that the Panchayat can be held vicariously liable for the acts of the Upper Division Clerk (UDC) committed during the course of the employment.
Holding the panchayat vicariously liable for the security deposit collected by the UDC, Justice N. Nagaresh observed thus:
“In view of the law on Vicarious Liability as discussed above, if any UDC employed by the respondent-Panchayat accepts money and issue the receipts in the course of his employment, the respondents are liable to refund that amount, if the amount accepted is refundable. The fact that a vigilance case is pending and action has been taken against the fraudulent activities of the UDC cannot be an excuse to deny the amounts duly deposited by the petitioner on the basis of the receipts issued on behalf of the Panchayat. The Panchayat is vicariously liable.”
Case Title: Rahib K.Y. & Anr. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 385
The Kerala High Court has held that government's decision to stipulate three years practice in criminal courts as an essential condition for appointment as Assistant Public Prosecutors cannot be said to be arbitrary.
Justice N. Nagaresh dismissed a plea challenging a notification issued by the Kerala Public Service Commission ('Kerala PSC') in this regard. The bench observed that Assistant Public Prosecutors are expected to prosecute criminal cases and aid the delivery of criminal justice in the State, and that in any case, it is for the appointing authority to decide and fix qualifications of candidates for appointment.
"Public Prosecutors and Assistant Public Prosecutors serve as State's representatives tasked with upholding the interest of the State and of the general public. They have to carry out prosecutions on behalf of the State effectively. They have a duty to ensure that false accusations against any accused do not result in unfair punishment. It is their prime duty to ensure that justice is served. They have to help the Court to identify relevant facts. They are Officers of the Court who assist in the administration of justice. They must be unbiased, just and truthful. A high level of competency is expected from Public Prosecutors and Assistant Public Prosecutors. The Government therefore will be justified in insisting that they should have a minimum Court experience in conducting cases," the Court observed.
Case title: Mattanur Co-operative Rural Bank Ltd. v The Co-operative Arbitration Court
Citation: 2023 LiveLaw (Ker) 399
The Kerala High Court overruled the decision of the division bench in Kodanchery Service Co-operative Bank Ltd. v. Joshy Varghese (2020), which dealt with the interpretation of Rule 198 of the Kerala Co-operative Societies (KCS) Rules.
A Full Bench comprising Justice Alexander Thomas, Justice C Jayachandran and Justice Shoba Annamma Eapen thus revised the interpretation of Rule 198 and held that appointing authority is not the sole and exclusive authority for framing and issuing memo of charges to the delinquent employees.
“...it is to be held that the view taken by the Division Bench in Kodanchery's case supra [2020 (4) KLT 129], as if the appointing authority (Managing Committee) is the sole and exclusive authority for framing and issuing memo of charges to the delinquent employees, covered by Rule 198 of the KCS Rules, does not reflect the correct legal position.”
Case Title: Adv. Hasna Mol N.S. v. Secretary, Kerala Public Service Commission & Ors.
Citation: 2023 LiveLaw (Ker) 400
The Kerala High Court dismissed the plea by a candidate who sought to be appointed to the post of Assistant Public Prosecutor, and had also been issued a Hall-Ticket by the Kerala Public Service Commission (PSC) aspirant but was denied the opportunity to take the examination at the examination hall on the ground of her original application being defective.
Justice Devan Ramachandran observed that since the petitioner herself had conceded that her application did not contain her name or the date on which it was taken, it was thus legally defective.
"The said application, therefore, is legally defective and could never have been acted upon by the PSC; and hence merely because the petitioner was issued a Hall Ticket based on the same by the PSC, being unaware of the said defect, it would not obtain to her any right to write the examination," the Court observed.
Case Title: Managing Director, KSRTC & Anr. v. S.A. Suneesh Kumar & Ors.
Citation: 2023 LiveLaw (Ker) 401
The Kerala High Court recently dismissed an appeal filed by the Kerala State Road Transport Corporation (KSRTC) challenging the Single Judge decision directing KSRTC to deposit both the employees' and employer's contributions to the National Pension Scheme (NPS), and the contributions to State Life Insurance Policy and Group Insurance Accounts within six months.
The Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran found no infirmity in the decision of the Single Judge and upheld the same.
“The primary aspect which weigh with us, is the fact that the appellant-Corporation had effected deduction from the salary of the employees' towards their contribution to the National Pension Scheme, the non-remittance of which could not be justified on any legal premise. As rightly held by the learned Single Judge, once such deductions are effected, the Corporation is statutorily bound to remit the same to the Contributory Pension Scheme. Non-remittance of the said funds, after effecting the deduction, could obviously indicate diversion of the same for some other purposes of the Corporation, which action can hardly be justified. The Corporation inheres no right to meet its financial obligation by utilizing the employees' contribution to the National Pension Scheme,” the Bench observed.
Case title: Sreelatha P. T. V State of Kerala
Citation: 2023 LiveLaw (Ker) 419
The Kerala High Court recently held that an employee who has been in unauthorized absence from service and against whom disciplinary proceedings have already been formally initiated cannot be allowed to rejoin the duty.
Justice Viju Abraham added that disciplinary proceedings are considered initiated only upon the issuance of the memo of charges and in such cases, it might impact the eligibility of the employee for immediate reinstatement.
“Therefore, I am of the view that the request of the petitioner to permit her to rejoin duty, pending disciplinary proceedings cannot be accepted.”
Case Title: National Insurance Co. Ltd. & Ors. v. S. Sudeep Kumar
Citation: 2023 LiveLaw (Ker) 420
The Kerala High Court recently held that an employee who leaves his service either on retirement, voluntary or otherwise, or on resignation, would have no vested or inherent right to claim leave encashment, unless it is otherwise enabled by the statute, rules, or norms regulating the conditions of service.
The Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran, made the above observation while considering an appeal preferred by the National Insurance Company seeking to set aside the Single Judge's order directing the Company to disburse leave encashment to the employee on the ground that the same is part of the salary.
Case Title: Dr Raju Antony V Kerala State Council For Science, Technology And Environment And Connected Cases
Citation: 2023 LiveLaw (Ker) 436
The Kerala High Court recently held that when there is no evidence linking the accused to the incident in disciplinary proceedings, the appellate authority must reconsider the case by addressing specific contentions without merely reiterating the previous orders.
Justice Devan Ramachandran held thus:
“I am, therefore, of the firm view that the appeals of the petitioners before the Executive Committee of the “Council” must be reconsidered, after affording them necessary opportunities of being heard, addressing their specific contention that this is a case where there is no evidence at all to link them to the alleged incident and further that said incident never did happen, as could be established by them from the evidence and testimony of the witnesses. The question whether the punishment imposed against them would require a further reduction on account of the various other mitigating factors as may be noticed or projected, should also cease the attention of the said Executive Committee.”
Daily Wage Workers Entitled To Claim Subsistence Allowance During Suspension: Kerala High Court
Case name: Kerala State Horticultural Products Development Corporation Limited V Sunil Kumar S
Citation: 2023 LiveLaw (Ker) 449
The Kerala High Court has held that under the Kerala Payment of Subsistence Allowance Act 1972, a daily wage employee is entitled to subsistence allowance during suspension.
Justice Murali Purushothaman observed thus,
“Section 2(a) does not exclude a daily wage employee for the purpose of payment of subsistence allowance...Accordingly, I hold that the 1st respondent, a daily wage driver, is an employee as defined under Section 2(a) of the Kerala Payment of Subsistence Allowance Act, 1972, and is entitled to subsistence allowance during suspension.”
Case name: Sandesh S V The Kerala Water Authority
Citation: 2023 LiveLaw (Ker) 453
The Kerala High Court recently refused permission to an employee governed by the Kerala State and Subordinate Services Rules to move back and forth between two departments. The Court held that an employee obtains statutory lien only in the parent department and once that was invoked, he cannot later seek permission to go back to the borrowing department.
Justice Devan Ramachandran observed thus:
“This is incontestable because, even as per the above provision, the employee obtains lien only in his parent department, to be able to return to it if his appointment in the subsequently appointed department had not been confirmed. On this having been invoked, there was no statutory lien left for the petitioner in the latter department, so as to then return to it – such being confined only in the parent department.”
Case Title: Sanjeesh S.S. v. State of Kerala & Ors. and other connected cases
Citation: 2023 LiveLaw (Ker) 457
The Kerala High Court recently directed the District Judge, Trivandrum, to reconsider the competence and credentials of lawyers who were found ineligible for appointment as Additional Government Pleaders and Additional Public Prosecutors in the district.
Justice Devan Ramachandran observed that the 'specific grounds' that led to opinion of the District Judge with respect to the competence and suitability of the applicants are crucial in the matter.
"District Judge can disapprove a particular name only for specified grounds. It is without contest that none of the petitioners in these cases have been informed why they have been found not eligible for being recommended by the learned District Judge and there is no input on record to indicate the reasons in any manner whatsoever," it observed.
The bench added, "...the word 'specific grounds'; relating to the rejection of a candidate by the learned District Judge, assumes great importance because rejection/recording of disapproval, can be done only for valid and specified cause. Since the records to these writ petitions reveals no such having been intimated to the petitioners, I am certainly of the view that their cases will require to be reconsidered by the learned District Judge, leading to the revision of the Panel, now prepared by the District Collector, in terms of law, if it becomes so warranted."
Case Title: Rajan K v. Joint Registrar Of Co-Operative Societies
Citation: 2023 LiveLaw (Ker) 540
The Kerala High Court has held that a person who was living beyond the territorial limit of the Society due to a transfer or change in residence becomes ineligible to continue as a member of the Society as per Rule 16 of the Co-operative Societies Rules and Clause 11 of the bye-laws.
Justice Sathish Ninan observed that while the bye-laws did not mention transfer as a ground for ceasing membership, one's transfer beyond the Society's operational area affected their eligibility for membership.
“The Society is formed to cater the needs of the employees within its area of operation - Trivandrum District. When a member is transferred beyond the territorial jurisdiction of the Society, he ceases to satisfy the eligibility criteria to be a member that is, he no more fulfills the requirement in the bye-law to be a member of the Society.”
Case Title: State of Kerala v Durgadas
Citation: 2023 LiveLaw (Ker) 546
The Kerala High Court observed that despite acquittals in criminal cases, when the government was unable to form an opinion regarding the character and antecedents of a person, then it can conduct an independent and separate enquiry to assess the character of the candidate.
Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen observed that the government cannot disqualify a candidate from acquiring an employment in public service merely because a criminal case was registered against him. It stated that the government can consider the allegations along with materials against the candidate in the criminal case independently to assess the character and integrity of the candidate to see whether he was suitable for entering the service or not.
“The Government cannot merely restate the allegations in the prosecution and hold that the character is bad to make him unsuitable for the post. Thus, we make it clear that in criminal cases where the prosecution cases end up in acquittal if the Government cannot form an opinion based on the prosecution allegations and other materials including the finding entered by the criminal court as to the character of the person, the Government is bound to conduct separate enquiry as to the character antecedents of the person. Thus, mere registration of the criminal case will not enable the Government to disqualify such a person from becoming a member of service.”
Case Title: State of Kerala & Others v. Abhidev
Citation: 2023 LiveLaw (Ker) 549
The Kerala High Court recently held that a Government Order issued to cure the defects of an earlier order will operate retrospectively from the date of the earlier order because the latter Government order can only be treated as curing the defects that existed in the earlier order.
A Division Bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen observed that the government did not issue the order to introduce a new claim, but only to cure the defects in the earlier order.
“The present order can only be treated as curing the defects existed in the earlier order by including the category of personnel, who are having same status of a Defense Personnel. It is not a new claim being endorsed by the Government, rather, it recognizes the equal treatment with other Defense Personnel. In that view of the matter also, we can easily conclude that this Government Order is only curing a defect of an existing order issued as early as in 2002. “
Case title: Venugopalan v The Managing Partner
Citation: 2023 LiveLaw (Ker) 586
The Kerala High Court stated that an employee is entitled to claim interest on medical reimbursement under Section 4A of the Employees Compensation Act, 1923 from the date of making claim before the Compensation Commissioner and not from the date of the accident.
Justice Basant Balaji observed thus: “Therefore, I am of the considered opinion that the Commissioner has failed to award interest as stipulated in Section 4A of the Act. Since the accident happened on 18.09.2011, and the claim was made only in 2016, the appellant is entitled to claim interest from the respondents only from the date he made the claim before the Employees Compensation Commissioner. The delay in not filing the claim from 2011 to 2016 is on the applicant himself. Therefore, the payment of interest for the said period cannot be mulcted on the respondent.”
Case title: Viju P Varghese v The Cochin Port Trust
Citation: 2023 LiveLaw (Ker) 592
The Kerala High Court recently observed that the unauthorized absence of an employee will be counted as non-duty for all purposes, except for the purposes of pension. Justice Anu Sivaraman added that the treatment of unauthorised absence as "non-duty for all purposes except pension" has a clear implication: it cannot be counted for seniority.
“Ext.P3 order was passed on 08.02.2016 and it was found that the 5th respondent was unauthorisedly absent from 01.05.2015 to 18.05.2015 and penalty of censure was also imposed on the 5th respondent. Further, his absence for that period was found to be unauthorised and treated as “non-duty for all purposes other than pension”.
Case title: Ex-Sub Inspector/Exe. Biju K.A. v Additional Director General CISF
Citation: 2023 LiveLaw (Ker) 595
The Kerala High Court recently permitted a CISF personnel who could not report for duty to rejoin duty at ASG Ranchi within ten days since he was in home quarantine after his parents tested positive for COVID-19.
Justice Raja Vijayaraghavan V observed that the respondents had not applied their minds while rejecting the application of the petitioner and that he was in an unusual situation because of which he could not report for duty. It reminded that the power under Article 227 of the Constitution could be exercised only when there is grave injustice or failure of justice and when (i) the Court or the Tribunal has assumed a jurisdiction which it does not have (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.
"It is trite that whenever the Tribunal has considered the matter in its proper perspective and where the impugned order shows the application of mind by the Tribunal, this Court will not entertain a petition under Article 227 merely because another view could have been taken," the Court observed.
Case Title: D. Ieda Bhai & Ors. v. K. Ashokan & Ors. and connected matter
Citation: 2023 LiveLaw (Ker) 601
The Kerala High Court has laid down that employees cannot claim promotion in his former service for the purpose of reckoning seniority long after the integration of service.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen were of the considered view that any claim regarding promotion in the former service ought to be raised at the time of integration of service, and cannot be done after the same.
"If the process of integration did not provide any room for raising such a claim, the employee cannot sleep over the right to claim and thereafter wake up from the sleep to raise such claim indirectly through another door of his former service. Whatever the claim the employee had at the time of integration ought to have been raised when he entered into the new integrated service. Baggage left in the former service cannot be retrieved through a backdoor entry to open a new door in integrated service. If the claim is not made at the time of integration in relation to any right available in the former service, that right is forgone and foreclosed," the Bench observed.
Case title: Rajan P v State of Kerala
Citation: 2023 LiveLaw (Ker) 612
The Kerala High Court has held that a person belonging to the Hindu Maravar Community, whose domicile was in Tamil Nadu cannot claim the benefit of OBC reservation after migration to Kerala because Hindu Maravar Community is not recognized as an OBC category in Kerala.
The Court was considering a writ petition filed by the petitioner who challenged the appointment of the 4th respondent to the post of Junior Scientist at Kerala Forest Research Institute based on OBC reservation. Justice Raja Vijayaraghavan V observed that the 4th respondent was not entitled to claim the benefit of OBC reservation as Hindu Maravar Community does not belong to the OBC category in Kerala.
“In view of the principles laid down above, the 4th respondent, who would not satisfy the criteria of being an OBC in the State of Kerala, would not qualify for the 10th turn, which has been set apart for an OBC. The Hindu Maravar Community does not hold recognition or inclusion as an OBC category in the State of Kerala. In that view of the matter, the selection of the 4th respondent on the ground that he is a member of the OBC community is clearly illegal.”
Case title: State of Kerala v P.K Radhakrishnan
Citation: 2023 LiveLaw (Ker) 614
The Kerala High Court held that after a government servant has retired from service and the proceedings primarily become about loss recovery, disciplinary proceedings under Rules 15 and 16 of KCS (CC&A) Rules are no longer applicable. Instead, Rule 3, Part III of the Kerala Service Rules applies, although it governs the recovery of losses from a pensioner found guilty of misconduct during their service.
Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen added that the new proceedings must conform to Rule 3 with a requisite adherence to the principles of natural justice: “However, in the light of the fact that the proceedings have been confined to the recovery of loss as the respondent had retired from the service, the proceedings already initiated under Rules 15 and 16 of KCS (CC&A) Rules would vanish and the proceedings will have to be in accordance with the Rule 3 part III of the Kerala Service Rules (for short, 'KSR').”
Case Title: Thomas Abraham & Ors. v. The Mission Director & Anr.
Citation: 2023 LiveLaw (Ker) 618
The Kerala High Court quashed the order issued by the District Programme Co-ordinator of the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS) terminating the services of six Quality Monitors for unsatisfactory work.
Justice Raja Vijayaraghavan V noted that the impugned order had been passed merely on finding that the performance was unsatisfactory, without any data being placed before the authority substantiating the same. "No order of an administrative authority communicating its decision is rendered illegal on the grounds of absence of reasons ex-facie, and it is not open to the court to interfere with such orders merely on the grounds of absence of any reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same," the Court observed.
Case Title: Gireeshkumar T.M. & Ors. v. State of Kerala & Ors. and connected matter
Citation: 2023 LiveLaw (Ker) 620
The Kerala High Court laid down that the Kerala Public Services Commission cannot alter its previous stance and subsequently admit candidates with higher qualifications for the post of Lower Division Clerk (LDC) in the Kerala Water Authority.
The petitioners in the present writ petitions were aggrieved by the inclusion of candidates who do not have the prescribed qualifications, but higher qualifications, as per the notification to the post of LDC, in the rank list published by the Public Service Commission (PSC). Justice Raja Vijayaraghavan V. observed, “it is imperative to recognize that the Public Service Commission, having steadfastly maintained a particular stance in the earlier proceedings and vigorously objected to the acceptance of candidates with advanced qualifications, cannot justifiably alter its stance by subsequently admitting individuals with higher qualifications. Such a reversal of position, if sanctioned, holds the potential to reopen previously concluded judgments of the Court. This not only raises concerns regarding the abuse of the judicial process but also carries significant ramifications for the overall administration of justice."
Case title: Lilly Krishnan v State of Kerala
Citation: 2023 LiveLaw (Ker) 639
Relying on the Supreme Court's landmark decision in Dheeraj Mor v. High Court of Delhi (2020), the Kerala High Court has held that a Munsiff Magistrate Trainee cannot be appointed as a District Judge by direct recruitment in the quota set apart for lawyers.
It has clarified that only a practising advocate who was continuing practise even as on the date of appointment is eligible to be appointed to the post of District and Sessions Judge in the Kerala State Higher Judicial Service by direct recruitment from the Bar.
A division bench comprising Justice Anu Sivaraman and Justice C.Pratheep Kumar thus denied relief to a Munsiff Magistrate Trainee, whose candidature for the post of District Judge was rejected on the ground that she was not a 'practising advocate' on the date of application.
Kerala High Court Directs KELSA To Appoint Persons To 5 Vacant Posts In Permanent Lok Adalat Sanctioned By State Government
Case Title: Bobby P. Kuriakose v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 663
The Kerala High Court has directed the Kerala State Legal Services Authority (KELSA) to appoint persons to 5 posts, namely, Head Clerk, Bench Assistant, Clerical Assistant (Daily Wages), Confidential Assistant, and Office Assistant at the Permanent Lok Adalat, which had been sanctioned by the State Government vide its Order.
Justice Devan Ramachandran passed the Order on being informed by the State that vide its Order dated October 2010, the aforementioned 5 posts had been sanctioned.
Case Title: Latha v T V Sahadevan
Citation: 2023 LiveLaw (Ker) 678
The Kerala High Court recently upheld an order passed by the Employees Compensation Commissioner (Industrial Tribunal), Idukki which rejected the compensation claim of the dependents of the deceased on the finding that he was an independent contractor and not an employee within the purview of the Act.
The deceased was an electrician and used to supply light and mike sets for conducting small programs and he died due to electrocution while connecting mike set for the function organized by the respondents.
Justice C. Pratheep Kumar observed that the deceased was an independent contractor and his work was not controlled by the respondents and was not an employee under the Act.
“The mike set used in this case belonged to the deceased. Since it was only a hiring of mike set for the purpose of a programme, there was no necessity for the deceased to do his work personally. Instead, he could have done the same by engaging his own employees. His work of connecting the mike set is not controlled by the respondents. In the above circumstances, it is to be held that deceased Babu was not an employee but an independent contractor. Therefore, the impugned order passed by the Commissioner is perfectly justified.”
Case Title: Shibli K v Union of India
Citation: 2023 LiveLaw (Ker) 682
The Kerala High Court has upheld the decision of Kerala Public Service Commission (KPSC) declining a PwD candidate's request to bring his own scribe to examination.
Stating that the decision was meant to rule out any possible misuse of the scribe during exam, the Court clarified that the Commission may itself allot a scribe to the candidate from the panel prepared by it.
Analyzing the objectives of the Rights of Persons With Disabilities Act (RPwD) and the circulars issued by the KPSC, the Division bench comprising Justice Anu Sivaraman and Justice C.Pratheep Kumar observed thus:
“The circular issued by KPSC contains provision for providing the service of a suitable scribe from a panel prepared by them to PwD candidates on request. Since the scribes are provided from the panel prepared by KPSC, it is also capable of ensuring the purity of competitive examinations and to rule out any manipulations. Therefore, it is to be held that the above circular issued by KPSC is capable of protecting the rights of persons with disabilities and to rule out the possibility of misuse of own scribe. In the above circumstance, the conduct of the fifth respondent in declining the prayer of the appellant to chose his own scribe and providing a scribe from the panel prepared by them cannot be said to be arbitrary or unreasonable.”
Principles Of Natural Justice Crucial To Transfer Orders, Prevent Stigma & Bias: Kerala High Court
Case Title: The Corporate Manager v. Beena Hilkushi and Ors.
Citation: 2023 LiveLaw (Ker) 686
A Division Bench of the Kerala High Court recently upheld order of a Single Judge, whereby the transfer order of a teacher working under Corporate Managers was quashed.
The Bench, comprising Justices A. Muhamed Mustaque and Shoba Annamma Eapen, observed that as the transfer order was issued in accordance with Rule 10(4) of the Kerala Education Rules ("KER"), the authorities should have ensured that principles of natural justice were followed by initiating enquiry and giving an opportunity of hearing to the teacher to prevent bias.
Case Title: Dr. Athira P. v. State of Kerala & Ors. and connected matter
Citation: 2023 LiveLaw (Ker) 727
In a significant ruling, the Kerala High Court addressed the disadvantages that women may face due to their biological differences from men, in the context of getting opportunities in public employment. The Court said that the rules relating to public employment must accommodate the concerns of pregnant women and young mothers, so that they don't face discrimination.
The Division Bench comprising Justice A. Muhamed Mustaque and Shoba Annamma Eapen was of the view that, despite standing on equal footing along with men with respect to consideration in the affairs or chances in the public employment, biological differences of women, such as motherhood, may often result in indirect discrimination.
Case Title: State of Kerala & Ors. v. P.V. Kuryan
Citation: 2023 LiveLaw (Ker) 728
The Kerala High Court held that as an employer, the Government ought not to enquire into the private affairs of a Government servant unless any manifest misconduct is expressed in their activities that warrants action to be taken.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen noted that in such cases, it would be for the affected persons to initiate such action as against any moral conduct of the Government servant, and not for the Government to conduct an enquiry into the private affairs of the employee.
Case title: B Suresh v Chief Engineer & Administrator
Citation: 2023 LiveLaw (Ker) 729
The Kerala High Court held that a long period of absence from service without prior intimation or permission would amount to abandonment of service. It observed that abandonment of service means an act of intentionally or voluntarily abandoning service.
In this case, the Court found that the petitioner remained absent for almost 17 years without any prior intimation or permission and it would amount to abandonment of service.
The Division Bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen did not interfere with the order of the Tribunal that terminated his service due to long absence.
Case Title: X v. Union of India
Citation: 2023 LiveLaw (Ker) 741
The Kerala High Court recently quashed an order transferring a senior scientist at the Centre for Development of Advanced Computing (C-DAC) whose son faces 65% permanent locomotor disability. The Court held that the transfer order violated the legal right of the disabled son to be taken care of by his father.
Relying upon the UN Conventions and Rights of Persons with Disabilities (PWD) Act 2016, the Court observed that a child with a disability has a right to live in a family environment of their choice and cannot be deprived of the presence of his father in a way it affects his life.
“Thus, the question arises whether absence of the petitioner would deprive the child, the environment he enjoyed in equal measures with others. Considering the age and other factors, it cannot be said that his wife would be able to adequately maintain the child. If any of the rights of the disabled child is denied by his absence, going by Section 5 of Chapter II of PWD Act, the transfer order passed, without adverting to such right of the child, becomes illegal. In the normal routine of matter, an organisation is not expected to have a consideration of the personal matters of an employee. However, when such personal matters are intertwined with the rights conferred under law, the organisation is bound to address such matters and make sure that the transfer would not affect the child's best interest.”
Quashing the transfer order as illegal, Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen held thus:
“If a person with disability is affected by such transfer, and in no way the best interest of the child can be protected consequent upon implementing such transfer order, that transfer order will be considered illegal.”
Case Title: Rahul Subhash v Union of India
Citation: 2023 LiveLaw (Ker) 743
The Kerala High Court dismissed a petition filed by 28 aspirants for enlistment in the Indian army challenging the Central Government's Agnipath scheme.
Justice N Nagaresh dismissed the writ petition and held that the petitioners have not advanced any tangible reason warranting interference by this Court in the Agnipath Scheme.
The Court observed that the method of recruitment to the Indian army was a matter concerning policy decisions which should be left to the government to decide, as the same affects national security. It further held that Courts cannot interfere in policy decisions of the government as long as there was no infringement of fundamental rights.
“The issue raised by the petitioners is one concerning the method of recruitment to the Indian Armed Forces. It is a sensitive issue. In matters concerning national security, policy decision should be left to the Government. So long as the decision of the Government does not infringe fundamental rights of citizens, the Courts have no reason to interfere. In assessing the propriety of a decision of the Government, the Court cannot interfere even if a second view is possible.”
Case Title: Biju Sundar v State of Kerala
Citation: 2023 LiveLaw (Ker) 760
The Kerala High Court has made it clear that a fine balance has to be found between the requirements of administration and the imperative to provide greater opportunities to PwD Candidates.
The petitioner, in this case, challenged the 2023 notification for appointment as District & Sessions Judge in Kerala State Higher Judicial Service (KSHJS) by direct recruitment from bar (hereafter, notification) for being violative of the rights of disabled persons.
Disposing of the writ petition, Justice Raja Vijayaraghavan V issued directions for the identification of posts, working out backlog vacancies, providing age relaxation, granting grace marks and filling up backlog vacancies through a special recruitment drive for ensuring full and equal rights to disabled persons to fulfil the constitutional mandate as per the Right of Persons with Disabilities Act, 2016.
