At, High Court of Kerala
By, THE HONOURABLE MRS. JUSTICE P.V. ASHA
For the Appearing Parties: Sumathy Dandapani, Millu Dandapani, P. Benny Thomas, D. Prem Kamath, Advocates.
1. The petitioner is aggrieved by Ext.P18 order issued by the Managing Director awarding a punishment of demotion from the post of Superintendent to the post of Supervisor.
2. The main contention of the petitioner is that the Managing Director is not the disciplinary authority. The learned Senior Counsel appearing for the petitioner, referring to clause 47 and 48 of the certified standing orders points out that the HOD (HR) is the disciplinary authority on the staff and the petitioner being a member of staff, the Managing Director did not have any authority to take disciplinary action or to pass final orders on it and on account of this he is deprived of his opportunity to file an appeal against the order of punishment. Clause 48 provides as follows:
48. Appeal and Appellate Authority:
A workman on whom any of the punishment is imposed shall have the right to appeal to the Appellate Authority. The appeal shall be submitted within 15 days of receipt of the order of the Disciplinary Authority. The Appellate Authority shall be the Managing Director of Cochin International Airport.
It is contended that there is no amendment to the certified standing orders 2005 and no such orders are published/made known to the members of the staff. The petitioner has various contentions regarding the charges levelled against him, the manner in which the enquiry was conducted, the evidence as well as the findings and in passing the final order awarding punishment.
3. The respondents have filed a counter affidavit producing Ext.R1(a) - the minutes of the 91st meeting of the Board of Directors of Cochin International Airport dated 28.06.2012, in which in respect of item No.28 of the agenda relating to disciplinary action it is stated as follows:
28. Disciplinary action/Disciplinary Authority/Appellate Authority. Board noted that as per the Standing Orders certified in 2005 which is applicable to the workmen of the Company, Disciplinary Authority is defined as `Any officer to whom powers are delegated to take disciplinary action and impose punishment on workmen' and Appellate Authority is the `Managing Director of CIAL'.
As per the Schedule of Authority approved by the 77th Board held on 29.7.2009, HOD (HR) is authorized to `suspend or take disciplinary action or award punishment' in respect of staff, and in respect of officers, Managing Director is authorized for the same.
Board noted that it has been recommended to designate the HoDs of respective departments as Disciplinary Authority for taking necessary initial steps when a misconduct is reported, such as issue of Show Cause Notice/Memo/Warning/Advice etc., and also to decide on accepting/note accepting the explanation & to impose minor punishments viz. Warning or Censure and Fine. If explanation is not satisfactory and the situation warrants further action such as domestic enquiry etc., the matter may be referred to HR. HR will co-ordinate further action in the matter in consultation with the Managing Director. If deemed necessary, MD may authorize any of the officers as Disciplinary Authority.
Managing Director shall be the Appellate authority if any of the subordinate officers is delegated as Disciplinary Authority. If MD is the Disciplinary Authority, Sub Committee shall be the Appellate authority. xxxx.
4. Referring to Ext.R1(a), the learned Senior Counsel points out that as per the decision of the Board on 29.07.2009, the HOD (HR) was authorised to take disciplinary action against the staff while the Managing Director was authorised to take action in respect of officers and therefore the said proceedings also will not W.P(c).No.23689/2019-I 4 justify the action of the respondents.
5. On the other hand, the learned Standing Counsel for the respondents points out that the Board had already taken note of the provisions with respect to the 2005 standing orders as well as the decision taken on 29.07.2009 and it was decided that the Managing Director may authorise any of such officers as disciplinary authority and in cases where the Managing Director is the disciplinary authority, sub committee shall be the appellate authority and while taking this decision, the authority of Managing Director is not confined to be the disciplinary authority of officers alone.
6. The learned Standing Counsel also points out that one of the allegations raised against the petitioner was that he misbehaved with an Airport Director, who is an officer in a post above the the post of HOD (HR). Therefore, it will not be proper for the HOD (HR) to be the disciplinary authority. Therefore, it became necessary for the Managing Director to act as the disciplinary authority.
7. The next contention of the petitioner is that without amending the standing orders, the Managing Director has taken action against the petitioner usurping the powers of HOD(HR). It is also pointed out that Ext.R1(a) decision taken by the Board is not published and even the petitioner, who is an office bearer of an association, is not aware of such an amendment being brought about. The learned Senior Counsel for the petitioner vehemently argued that the order Ext.P18 is liable to be set aside.
8. Having heard the contentions on either side, I am of the view that the petitioner is free to raise all these contentions before the appellate authority as well as the competent authorities dealing with the standing orders. The respondents have stated that there is an appellate remedy available for the petitioner before the sub committee in accordance with Ext.R1(a) decision. There cannot be any question of violation of the principles of natural justice or deprivation of the appellate remedy as far as the petitioner is concerned. Though it may be true that demotion from service will be a heartburn for an employee, when there is an appellate remedy it is for the petitioner to move that appellate authority or to approach the Industrial Tribunal as the petitioner is admittedly a workma
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n in the Indian Airlines. I do not find it appropriate to interfere with original order of punishment awarded to a workman under Article 226 of the Constitution of India. 9. Therefore, leaving open the remedies available to the petitioner, under Ext.R1(b) as well as before the Industrial Tribunal, I dispose of the Writ Petition. 10. In case the petitioner submits an appeal before the sub committee within a period of two weeks, the sub committee shall consider and pass orders on the same in accordance with law after affording an opportunity of hearing to the petitioner within a period of one month from the date of receipt of a copy of this judgment.