C J JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was Additional Secretary to Government of Kerala in the Election Department. As per Ext. P5 order dated 9-8-1985, the Government compulsorily retired him from Government Service. He was then aged 53 years. The retirement age of the employees under the Kerala Government Service is 55 years. But for Ext. P5, the petitioner could have continued in service till 28-2-1987. The Government passed an order under R.60A of Part.1 of the Kerala Service Rules. The petitioner challenged Ext. P.5 in O. P. No. 9192/85, but that Original Petition was disposed of directing the Government to take a decision on the application for review which, the petitioner offered to file before the Government. Though the petitioner filed such an application for review, the government dismissed it by Ext. P10 order dated 23-7-1986. So, this Original Petition is mainly for quashing Exts. P5 and P10. Incidental reliefs are also prayed for.

(2.) There was a strike by a section of the Government employees in Kerala State from 7-8-1985 onwards. The Kerala Secretariat Employees' Association, of which the petitioner is a member, also joined the strike. The Government took some measures to deal with the strike. One of them was to declare some of the services as "Essential Services". Secretariat service was not, however, declared as an "Essential Service". Another measure adopted was to impose a restriction that leave of any kind should not be granted to Government employees including Gazetted Officers during the period of the strike, except on the ground of unavoidable reasons. The unauthorised absence of the employees for participation in the strike was to be treated as 'dies-non', under R.14-A Part.1 of the Kerala Service Rules. Ext. P1 is the order issued by the Government containing instructions to the various Heads of Departments as to the measures to be adopted in dealing with the strike. During the strike period, the petitioner absented himself from office. The Chief Secretary of the Government of Kerala addressed a demi-official letter to the petitioner on 8-8-1985 pointing out that being a senior officer of the rank of Head of the Department, the petitioner should have, in public interest and with a sense of responsibility, attended the office at a time when a section of Government employees have gone on strike. The petitioner was hence asked to report for duty nest day and at the same time, he was told that if he fails to do so, "the Government will be constrained to take appropriate disciplinary action" against him. It appears that the petitioner was the founder President of the Secretariat Employees' Association and he continued to be its member during the relevant time. The demi-official letter sent by the Chief Secretary did not evoke any positive response in the petitioner who, in his reply expressed inability to abide by the instructions as "he was bound to act in accordance with the instructions of the Association of which, he was a founder member." The reply of the petitioner was unsatisfactory to the Government and thereupon the Government passed Ext. P5 order on 9-8-1985 itself. The first paragraph of Ext. P5 refers to the background and in other paragraphs, the reasons and actions are mentioned. Those latter paragraphs are extracted below:

(3.) Ext. P5 is assailed on the grounds, principally on the ground that it is not really an action under R.60A though it purports to be so that the stigma attached to the petitioner in the order, at any rate, vitiates it, that the constitutional guarantee under Art.311 is circumvented by the Government through a camouflage that the action is only under R.60A and that the extreme step taken against the petitioner is highly discriminatory as he was singled out in this step. Instances have been pointed out in which Government dealt with other Gazetted Officers who too were absent during the strike period and to whom the lightest penalty of censure alone was imposed. Another onslaught made on Ext. P5 is on the ground that it is a mala fide exercise of the power under R.60A for political reasons. According to the petitioner, he does not belong to the Association supported by political parties which are partners in the Ruling Front.