Ext.P5 order, by which the petitioner's service as Driver under the 1st respondent Council was terminated, is under challenge in this writ petition.
2. The petitioner alleges that he was initially engaged on temporary basis as Driver under the 1st respondent Council with effect from 22.11.1999. Subsequently, his appointment was regularized with effect from 31.11.2000; and he was appointed in the post of Driver sanctioned by the State Government as per Ext.P2. The petitioner alleges that there had been a spate of litigations arising out of a dispute among the members of the Council, which is a statutory Council constituted under Section 19 of the Pharmacy Act, 1948. The President and the Registrar were under the impression that the petitioner was siding the faction opposing them though he had nothing to do with the said dispute. This, according to the petitioner, lead to animosity of the President and the Registrar against the petitioner; and as a result, he was kept under suspension for a short period alleging insubordination. However, later, he was reinstated in service. The petitioner alleges that later, he was served with an order dated 05.03.2010 issued by the 1st respondent directing the petitioner to proceed on compulsory leave without allowance for a period of six months from the aforesaid date. After receipt of Ext.P4, the petitioner had time and again approached respondents 1 and 2 requesting them to permit the petitioner to join duty. Though they promised to reconsider their decision, no action was taken in that regard. Therefore, the petitioner approached this Court in WP(C) No.18335/2010, in which Ext.P4 was stayed making it clear that the said order will not stand in the way of the 1st respondent for initiating any other action against the petitioner in accordance with rules. The petitioner further alleges that in order to circumvent the interim order and to render the order superfluous, the respondents terminated the services of the petitioner by Ext.P5 order dated 03.07.2010. However, he was not served with Ext.P5 order; and he came to know about the order only when the same was produced as an exhibit in the counter affidavit filed by the 1st respondent in the aforesaid writ petition; it is alleged. Though the petitioner sought to challenge Ext.P5 order by carrying out amendment to WP(C) No.18335/2010, this Court closed the writ petition without prejudice to the rights of the petitioner to challenge Ext.P5 in a separate proceeding. Thus, the petitioner has come up before this Court.
3. In the counter affidavit filed by respondents 1 and 2, they contended that Ext.P2 order was issued to the petitioner to continue as a Driver on provisional basis with a clear direction on the basis of an affidavit agreeing that the appointment would be terminated as and when the State Government or the 1st respondent desires to do so. They would contend that the Government has not approved the appointment of the petitioner; and he is not a regular employee and they have taken a decision to terminate the petitioner as his service was not required and the vehicle is lying idle after his termination. They would further contend that the conduct of the petitioner was not satisfactory and he was suspended from service due to dereliction of duty. He never submitted the log book to the audit team; and thus, the Council was forced to take an extreme step to send him on leave without allowance and the Council also found that the vehicle was unnecessary and decided not to appoint any person in the said post; it was contended. It was further contended that Ext.P4 is not at all illegal and as the same was challenged in the previous writ petition, the present writ petition is not maintainable. They would further contend that the respondent Council is using a rented car for their purposes. It was also contended that the salary of the petitioner was being given from the funds of the respondent Council and no funds are provided by the Government of Kerala or Union of India. Since it was found that it is uneconomical to run a car, the decision to terminate the petitioner was taken; it was contended.
4. The petitioner filed a reply affidavit along with certain additional documents. The allegation regarding the misconduct, dereliction of duty etc. are challenged in the reply affidavit. The contention that the vehicle was not being used by the Council is also incorrect; it was contended. It was also averred that the production of Ext.R1(a) to substantiate the argument that hired vehicle is used by the Council, casts responsibility on the respondents to explain as to why the services of a tour operator is engaged while the Council has a vehicle of its own.
5. In the counter affidavit filed by the 3rd respondent State, it is admitted that Ext.P4, by which the petitioner was directed to go on compulsory leave, is erroneous. They also submitted that Ext.P5 order, by which the petitioner is terminated from service, is illegal for the reason that the post, to which the petitioner was appointed, was created and sanctioned by the Government; and hence, the termination also could have been made only with the prior approval of the Government.
6. Arguments have been heard.
7. The appointment of the petitioner under the service of the 1st respondent Council is admitted. His termination as per Ext.P5 also is admitted. The stand taken by the 1st respondent Council is that the appointment was provisional; and therefore, the 1st respondent Council has liberty to terminate the service of the petitioner at any point of time. It is true that in Ext.P2, it is stated that the appointment could be terminated as and when the State Government or the Kerala State Pharmacy Council desired to do so. But, that does not mean that the termination can be effected without adhering to the established procedure. Ext.P2 would indicate that the State Government had accorded sanction as per the order referred to therein to create one post of Computer Operator and one post of Driver in the respondent Council. Evidently and admittedly, appointment of the petitioner was made to this sanctioned post.
8. It was argued by the learned counsel for the respondent Council that it is uneconomical to run a car and that is the reason for terminating the service of the petitioner. It was also pointed out that the salary of the Driver is given from the funds of Council and neither the Central or State Government was providing any funds to the respondent Council. It was also argued that the sanction of the State Government was quite unnecessary for creating the post of the Driver. But, this Court cannot accept the said argument of the learned counsel for the respondent Council. The constitution and circumspection of the Pharmacy Council are dealt with in Section 19 of the Pharmacy Act, 1948. The authority to constitute a Pharmacy Council, is the State Government. Section 26 of the Act makes it clear that the appointment of officers and servants of the Council are required to be made with the previous sanction of the State Government. Ext.P2 also indicates that the appointment of the petitioner was in a sanctioned post. If the respondent Council had a feeling that the said post was uneconomical, the proper course open to them was to approach the Government to abolish the said post so that the petitioner, who was appointed in a sanctioned post, could have been redeployed. The argument that the maintenance of the car and driver is uneconomical, stands falsified in the light of Ext.R1(a) produced by the 1st respondent, which would indicate that hired vehicles are frequently used by the respondent Council. There is no satisfactory explanation as to why hired vehicles are pressed into service while a vehicle was lying idle with the 1st respondent.
9. The materials now placed on board would indicate that the termination of the petitioner was done with an undue haste without any justifiable reason. The petitioner having worked continuously for a period of ten years as an employee in a sanctioned post, his services cannot be summarily terminated without even getting sanction from the Government. Therefore, this Court is of the definite view that the petitioner is entitled to get the relief as prayed for.
In the result, the writ petition is allowed.
Ext.P5 is quashed.
Respondents 1 and 2 are directed to reinstate the petitioner in the service of the 1st respondent Council forthwith.
It is hereby declared that the petitioner is entitled for continuity in service as Driver in the 1st respondent Council from 30.11.2000, the date on which the petitioner was appointed to the sanctioned post unless and until his service is terminated for valid reasons in accordance with law.
Sd/-
A.V. RAMAKRISHNA PILLAI, JUDGE bka/-