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Achuthan Nair Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1960)IILLJ409Ker
AppellantAchuthan Nair
RespondentState of Kerala and ors.
Cases Referred and Devasahayam v. State of Madras
Excerpt:
- .....was appointed, the respondent 3's appeal against the order of dismissal was pending before the board of revenue and the revenue divisional officer was not aware of the pendency of this appeal. the board of revenue allowed the respondent 3's appeal, quashed the order of dismissal and directed reinstatement of the respondent 3. it is also stated that this is not a matter coming within the purview of article 311 of the constitution and that the order (ex. p. 4) is not liable to be quashed. the respondent 3 has filed an affidavit supporting respondents 1 and 2.3. two points are urged on behalf of the petitioner. the first is that he was removed from service by an authority subordinate to that by which he was appointed. it is argued that while his appointment was by the revenue divisional.....
Judgment:

T.K. Joseph, J.

1. The petitioner was appointed on 30 June 1955 to act temporarily as menon, Anjukunnu amsom, Waynad taluk. Subsequently he was ordered to take charge as acting menon in Nallurnad amsom in the same taluk. While discharging his duties as acting menon, he was appointed by the Revenue Divisional Officer, Tellicherry, as menon of Nallurnad amsom in a vacancy caused by the dismissal of the respondent 3 from service. He was working there when he received an order (Ex. P. 4) from the tahsildar, North Waynad taluk, directing the respondent 3 to take charge from him. The petitioner prays for quashing this order. Respondents 1 and 2 are the State of Kerala and the tahaildar of North Waynad taluk, respectively.

2. An affidavit has been filed on behalf of respondents 1 and 2 stating that the order appointing the petitioner as permanent menon of Nallurnad amsom was the result of a mistake. The respondent 3, who was the permanent menon, has been dismissed from Service and the petitioner was appointed in his place. At the time the petitioner was appointed, the respondent 3's appeal against the order of dismissal was pending before the Board of Revenue and the Revenue Divisional Officer was not aware of the pendency of this appeal. The Board of Revenue allowed the respondent 3's appeal, quashed the order of dismissal and directed reinstatement of the respondent 3. It is also stated that this is not a matter coming within the purview of Article 311 of the Constitution and that the order (Ex. P. 4) is not liable to be quashed. The respondent 3 has filed an affidavit supporting respondents 1 and 2.

3. Two points are urged on behalf of the petitioner. The first is that he was removed from service by an authority subordinate to that by which he was appointed. It is argued that while his appointment was by the Revenue Divisional Officer, the order of removal was by the tahsildar and that the order therefore contravened Article 311. No doubt, Ex. P. 4 is signed by the tahsildar, but this does not mean that the tahsildar removed the petitioner from service. The tahsildar was only communicating the decision of the Board of Revenue in the appeal preferred by the respondent 3. The first point is therefore without any substance.

The second point is that the petitioner was not given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. This argument is also based on a misconception of the facts. As stated earlier, the respondent 3's appeal was pending when the petitioner was appointed as permanent menon in the vacancy caused by the dismissal of the respondent 3. The Revenue Divisional Officer appears to have been unaware of the pendency of the appeal and he committed a mistake in making the petitioner's appointment permanent. Thereafter, the vacancy ceased to exist as a result of the order of the Board of Revenue reinstating the respondent 3. It was in these circumstances that the respondent 3 was directed to take charge from the petitioner. The order in question is not one removing the petitioner from service as punishment for misconduct. He was only asked to hand over charge to the permanent incumbent whose dismissal was set aside. It is therefore clear that Article 311 cannot apply to this case. The Board of Revenue was competent to rectify the mistake committed in dismissing the respondent 3 from service and appointing the petitioner in his stead. In a case of this nature, it la not competent for the aggrieved civil servant to invoke the jurisdiction of this Court under Article 226 of the Constitution. This question is covered by the decision of a Bench of this Court in Antony v. State of Kerala 1957 II L.L.J. 445 and Devasahayam v. State of Madras : AIR1959Mad1 . This ground also must therefore fall.

5. No other point arises in this original petition. It is accordingly dismissed, but in the circumstances there will be no order as to costs.


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