STATE OF KERALA Vs. MOHANAN

JUDGEMENT

(1.) Only question raised in this Writ Appeal filed by the State under S.5 of the Kerala High Court Act, 1958 (in short 'the Act') is whether learned single Judge is correct in his view that before dismissal an opportunity of being heard was required to grant to the affected employee.

(2.) Background facts essentially are as follows: Respondent (hereinafter referred to as 'employee') was working as L.D. Clerk in the office of Chief Engineer IDRB. He was convicted by Judicial First Class Magistrate IV (Mobile), Trivandrum and sentenced simple imprisonment for three months and to a pay a fine of Rs. 1,01,000/- for an offence under S.138 of Negotiable Instruments Act, 1898 (in short 'N.I. Act'). On receipt of copy of judgment in connected case, i.e., CCC 9 of 1990, Chief Engineer considered the question of further retention of respondent in the light of his conduct which led to his conviction. It was found that his retention was undesirable. Therefore, order was issued dismissing him from service. Dismissal was challenged in O. P. 19524 of 1997 on grounds that execution of sentence has been suspended in Crl. M.P. 365 of 1997 in Crl. A. 378 of 1997 and no opportunity was granted before order of dismissal was passed. Stand of employer was that in view of order of conviction, further retention of respondent in service was undesirable in public interest. Learned single Judge observed that since no show cause notice was issued in order to enable respondent employee to put forth his objections and explanations, order of dismissal is bad. Direction was accordingly given to reinstate employee within one week from the date of receipt of judgment.

(3.) According to learned counsel for State, termination was automatic in view of conduct of respondent and his retention would be against public interest. Reliance is placed on decisions of apex court in Union of India v. Ramesh Kumar ( AIR 1997 SC 3531 ) and Dy. Director of Collegiate Education (Admn) v. S. Nagoor Meera ( AIR 1995 SC 1364 ) to contend that grant of opportunity was not necessary. It was further stated that R.18 of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960 (in short 'Rules') did not provide for grant of opportunity. Learned counsel for respondent employee submitted that termination is not automatic and, therefore, grant of opportunity was imperative and such opportunity having not been given, learned single Judge was justified in his view.