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HIGH COURT OF KERALA
P.V.ASHA, J
THE ADDITIONAL CHIEF SECRETARY – Appellant
Versus
SAJI BASHEER – Respondent
REVIEW PETITION 51/2018
Review - Writ Proceedings - Companies Act - Sections 196 - The court upheld that the absence of a party (State Government) in government-related cases could render a writ petition untenable, highlighting the necessary legal framework for managing directorships under corporate law, including the implications of public interest.
Fact of the Case:
The respondent, previously Managing Director at a public sector undertaking, was displaced and contested his removal through a writ petition, arguing improper consideration of his earlier position despite a judgment stating his service was terminated for a new role.
Issues: Whether the respondent was wrongfully displaced from his position and if the writ petition was maintainable without the State Government as a party.
Ratio Decidendi: The court concluded that a writ challenging governmental orders requires the inclusion of the State as a party, and based on the absence of clear grounds for review, the earlier judgment stood without error.
Final Decision: The Review Petition is dismissed.
O R D E R
Respondents 1 and 2 in the writ petition have filed this Review Petition, along with a petition to condone delay of 115 days.
2. The respondent herein had filed the writ petition complaining that while he was working as Managing Director of Kerala State Industrial Enterprises, he was displaced by a substitute as per Ext.P5 order dated 03.06.2016. His case was that while he was working in the erstwhile Kerala State Audio Visual Reprographic Centre as Managing Director he was appointed as Managing Director of Kerala State Small Industrial Development Corporation (SIDCO) on deputation basis as per Ext.P2 order dated 18.05.2007 and thereafter his appointment in SIDCO was made on regular basis as per Ext.P3 order dated 24.02.2011 and that he was appointed as Managing Director of Kerala State Industrial Enterprises as per Ext.P4 order dated 08.09.2015. Thereafter, he was displaced from there as per Ext.P5 order on 03.06.2016 by posting a substitute. Writ Petition was filed complaining W.P(c).No.13674 of 2017-H 2 that his request was not considered properly even after Ext.P10 judgment. By Ext.P12 order the 2nd petitioner herein rejected his representation for reposting.
3. In the judgment sought to be reviewed it was found that the respondent herein was a regular employee in the Kerala State Audio Visual Reprographic Centre from where he joined SIDCO on deputation.
4. The Review Petition is filed stating that the respondent's service in Kerala State Audiovisual and Reprographic Centre was terminated as per Annexure II order dated 07.05.2011. It is also pointed out that the respondent herein who claimed that he was regular Managing Director of SIDCO did not implead either SIDCO or the Kerala State Audiovisual and Reprographic Centre and the writ petition was therefore liable to be dismissed on that ground. Producing Annexure I Articles of Association of SIDCO it is stated that appointment of its Managing Director can only be made as per the provisions contained in the Companies Act and Annexure I and that appointment is on the pleasure of Governor. Annexure IV list of a large number of Vigilance Cases and Annexure V letter of the Director of Vigilance and Anti corruption Bureau are produced stating that engagement of respondent herein in any Public Sector Undertaking would be contrary to W.P(c).No.13674 of 2017-H 3 public interest.
5. I heard Sri. Ranjith Thampan, the learned Additional Advocate General and Sri. R.T. Pradeep.
6. Relying on the judgments inChief Conservator of Forests, Government of A.P. v. Collector [ 2003(3)SCC 472 : 2003 KHC 636] and in Karakunnummal Babu & Ors. v. T.P.Raghavan & Ors. [ 2015(2)KHC 410 (para 31)], Sri.Ranjith Thampan, the learned Additional Advocate General, argued that in the absence of State Government on the party array, the writ petition challenging an order passed by Government ought not have been entertained. Relying on the judgment inAbdul Rasheed S.K. v. State of Kerala & anr. [ 2008(4) KHC 596 ] and K.P.Mohammad Ali Haji v. S.Rasitha and Ors. [ 2007(2) KHC 655 ] and Rule 12 of Rules of Business of the Government, it was argued that orders can be passed on behalf of Government even by an Under Secretary or by any other officer as may be specially empowered in that behalf. Referring to the Articles of Association of SIDCO and Section 196 of the Companies Act , it was argued that no company shall have a Managing Director for a period of not more than 5 years. However it was pointed out that the amendment brought about in August 2015 exempts Government from application of subsections 2, 4 & 5.
W.P(c).No.13674 of 2017-H 4
7. Relying on the judgment in Kunjalavi Chellamma v. District Geologist, Department of Mining & Geology, Kollam & Ors. [ 2016(5) KHC 111 ], it was argued that the 1st respondent who did not come with clean hands did not deserve any relief under the discretionary jurisdiction of this Court and that Writ Petition was liable to be dismissed with cost.
8. According to Sri R.T.
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