SADANANDAN Vs. CIRCLE INSPECTOR

JUDGEMENT

(1.) The appellant is the writ petitioner in O.P. No. 8507 of 1989. He was appointed originally in the service of the State Government in the Excise Department as a driver under Ext. P-1 order dated 15th November 1982. He assumed duty on 16th November 1982. The appointment, being provisional in the Government service, was subject to the condition of the appellant being replaced by regular hand recruited through the Public Service Commission. Admittedly the appellant took the chance of getting selected by direct recruitment in 1976 and 1982 as a driver through the Public Service Commission, but got a lower rank in the ranked list, and so he could not be advised for appointment. By the year 1989, he became over aged, and could not apply for the post. On 15th March 1989 . the appellant absented himself from duty, though on that day he was supposed to assist the authorities in conducting a raid under the provisions of the Abkari Act. As he abstained from duty on 15th March 1989, the raid could not take place. He, however, reported for duty on 16th March 1989, but was not allowed, according to the appellant, to rejoin duty. Thereupon he made Ext. P-4 representation, dated 17th March 1989 seeking permission to rejoin duty. Thereafter Ext. P-5 memo dated 22nd March 1989 was issued to him. in Ext. P-5 it is alleged that even though he has been specifically asked to be present on 15th March 1989 for conducting a raid, he has absented himself on that day, and that a question arose whether the appellant has done that purposefully. It is also stated that on 14th March 1989 after getting the vehicle repaid from the workshop, he is said to have driven the vehicle in a drunken state and behaved in such an unruly way towards the staff. It is further stated in Ext. P-5 that the appellant by his alleged misbehaviour at the Adoor Bus Stand has allegedly created a bad impression about the staff of the department. It is further alleged in Ext. P-5 that no excise staff will be allowed to rejoin duty without the permission of the authority concerned, and the appellant has been asked to show cause why action should not be taken against him for his unauthorised absence on 15th March 1989 and for the aforesaid alleged misbehaviour, on that day itself, failing which it will be presumed that the appellant has no explanation to offer, and action may be taken on that basis. The fact remains that these are only allegations. The appellant submitted Ext. P-6 explanation dated 13th April 1989 denying the various allegations in Ext. P-5 and stating that he was not well on that day and he was enclosing a medical certificate. In as much as Ext. P-6 representation dated 13th April 1989 did not result in allowing him to rejoin duty, he filed the present writ petition on 6th October 1989 for the issue of a writ of mandamus directing the respondents to dispose of Ext. P-4 representation, for a declaration that the refusal to allow him to continue in service for his absence on 15th March 1989 was illegal and arbitrary, and for a direction to allow him to rejoin duty as driver with full backwages, etc.

(2.) A counter affidavit was filed by the first respondent, the Circle Inspector of Excise, stating that the appellant's initial appointment on 15th November 1982 was subject to his replacement by direct recruits through the Public Service Commission, that the appellant who appeared for the examination Conducted by the Public Service Commission in 1976 and 1982 could not secure a higher rank, that the appellant unauthorisedly absented himself on 15th March 1989, and his explanation to the show cause notice is not satisfactory. Of course, it is not stated that the allegations in the charge memo are found to be true. It also stated that the day on which the appellant absented himself was very important in view of the fact that he was instructed specifically to be present for a raid, under the Abkari Act. It is also stated that the appellant was appointed only for a period of 180 days, and he had no right to continue thereafter. It is also stated that the Public Service Commission had already conducted selection, and one Sri. Thampan had been advised by the Public Service Commission, and he joined duty on 4th November 1989.

(3.) Another counter affidavit has been filed on behalf of the third respondent, the State of Kerala. It was stated that the absence of the appellant on 15th March 1989, the date on which the department wanted to conduct a raid, was unauthorised and the proposal for conducting a raid was defeated because of the appellant's absence. It was also stated in Para.4 that this Court may also take into consideration, while exercising discretion under Art.226 of the Constitution of India, ' that the appellant usually behaved unruly in a state of drunkenness, and was given several warnings. It was then stated finally that 'it is made clear that the denial of employment to the petitioner was not for requesting leave on 15th March 1989, but for unauthorised absence and hence no declaration sought for by the petitioner is warranted'.