PRABHAKARA MENON Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the Sanitary Inspector of Mattancherry Municipality, having been appointed to the post nineteen years ago, by the Government of the erstwhile State of Cochin. On 31-8-1957, the Municipal Council resolved to terminate the services of the petitioner and the Health Officer of the Municipality. Pursuant to this resolution, the executive authority of the Council served a memo, Ext. P1, on the petitioner on 11-11-1957 framing five charges against him and calling for his explanation. The petitioner was also placed under suspension pending enquiry. The petitioner duly submitted his explanation (Ext. P3) and he also presented a petition to the Government on 12-11-1957 praying that the order of suspension be cancelled. While the petition before the Government was pending, the executive authority, by order Ext. P4, cancelled the order of suspension on 21-12-1957 and directed the petitioner to join duty forthwith. On the termination of the enquiry, the executive authority passed a final order (Ext. P5) on 21-1-1958 exonerating the petitioner of all the charges. Thereafter the petitioner was working as Sanitary Inspector till he took leave on medical grounds on 10-2-1958. Ext. P6 is the order granting him leave. However, the Government had passed an order (Ext. P7) on 3rd January, 1958, dismissing the petitioners prayer for cancellation of the order of suspension. This order directed the executive authority to place the petitioner under suspension pending enquiry which was being conducted by him at that time. Another order (Ext. P8) was passed by the Government on 12-2-1958 pointing out to the executive authority that it was improper for him to have allowed the petitioner to continue in office after receipt of the order dated 3-1-1958 and directing the executive authority to implement the said order. On receipt of Ext. P8, the executive authority passed two orders, Exts. P9 and P10, on 19-2-1958. Ext. P9 stated that the leave granted to the petitioner was cancelled and Ext. P10 that the petitioner was again placed under suspension pending enquiry. The petitioner filed O.P. No. 106 of 1958 in this court to quash Exts. P9 and P10 and this court allowed the petition on 19-8-1958. Thereafter the executive authority issued another order (Ext. P11) on 3-9-1958 stating that the Government had cancelled the order (Ext. P5) dated 21-1-1958 exonerating the petitioner and that the executive authority therefore proposed to hold another enquiry into the same charges. The petitioner was again placed under suspension pending the denovo enquiry. This order (Ext. P11) is based on an order of the Government passed on 26-2-1958 which reads as follows:

(2.) Respondents 1 to 3 are respectively the State of Kerala, the Municipal Council, Mattancherry, and the Municipal Commissioner (executive authority of the municipal council). A counter affidavit has been filed on behalf of the first respondent contending that the order in O.P. No. 106 of 1958 was practically an agreed order and that the petitioner is therefore incompetent to question the order of the Government or the proceedings taken on the basis of the same. The third respondent has filed a counter affidavit on behalf of respondents 2 and 3. He contends that the several orders passed and the proceedings taken are valid, that the order exonerating the petitioner was passed by the then executive authority after the Council had passed a vote of non confidence against him and the Chairman had asked him not to proceed with the enquiry, that when the papers relating to the enquiry were submitted to the Director of Local Bodies, he recommended to the Government to quash the order of the executive authority as the previous enquiry was not an impartial one, and that the Government had jurisdiction to pass the impugned order. It is further contended that the Government can quash any order of the executive authority, that disciplinary action has to be taken under the Municipal Act and not the Public Health Act as contended by the petitioner and that the allegation of mala fide not true.

(3.) Before considering the matter on the merits, I may dispose of the objection taken by the State that the petition is not maintainable in view of the order in O.P. No. 106 of 1958, which is extracted below: