Anju Muraleedharan v. State of Kerala and Kerala State AIDS Control Society

W.P.(C).No.15962/22 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 1[ST] DAY OF DECEMBER 2022 / 10TH AGRAHAYANA, 1944** ## **WP(C) NO. 15962 OF 2022** ## **PETITIONER:** ANJU MURALEEDHARAN AGED 35 YEARS WIFE OF SHIBU L, RESIDING AT ABHINAVAM, SANKARANTHAZHE, KADAKKAVUR, THIRUVANANTHAPRUAM - 695306. BY ADVS. P.RAMAKRISHNAN PREETHI RAMAKRISHNAN (P-212) C.ANIL KUMAR ASHA K.SHENOY ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, THIRUVANANTHAPURAM - 695034. 2 KERALA STATE AIDS CONTROL SOCIETY, REPRESENTED BY ITS PROJECT DIRECTOR, RED CORSS ROAD, THIRUVANANTHAPURAM - 695035. BY ADV SRI.LEO GEORGE, SC, KERALA STATE AIDS CONTROL SOCIETY SUNILKUMAR KURIAKOSE GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.10.2022, THE COURT ON 01.12.2022 DELIVERED THE FOLLOWING: W.P.(C).No.15962/22 2 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(C).No.15962 of 2022 = = = = = = = = = = = = = = = = Dated this the 1[st] day of December, 2022** ## **JUDGMENT** 1.This writ petition is filed challenging Ext.P6 order of the 2[nd] respondent by which the petitioner’s service as Lab Technician in the Integrated Counselling and Testing Centre (hereinafter referred to as 'ICTC' for short) on contract basis was terminated. It is submitted that the 2[nd] respondent is an autonomous society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act,1955 and since the governing body is comprised mainly of State functionaries, it answers the definition of State under Article 12 of the Constitution of India. The petitioner had been appointed as Lab Technician after a due selection process consisting of a written test and an interview. She was appointed at Nileswaram for 179 days by order dated 23.09.2009 and her contract was extended and she was transferred to various centres. She continued in service till 31.03.2022 at which time she was working at the ICTC Centre W.P.(C).No.15962/22 3 attached to the District Public Health Laboratory, Kollam. It is submitted that the petitioner was issued with Ext.P1 charge memo dated 15.03.2022, alleging misconduct and insubordination. She submitted Ext.P2 reply dated 26.03.2022. It is submitted that thereafter, no further action was taken on the disciplinary proceedings. However, by Ext.P3 when the contract of all ICTC staffs was extended, the petitioner’s contract was not extended. When the petitioner made enquiries, she was informed by Ext.P4 communication dated 31.03.2022 that her reply to the show cause notice was not received by the 2[nd] respondent and that the question of extension of her contract would be decided later. The petitioner again submitted Ext.P5 representation to which Ext.P6 reply dated 29.04.2022 was received stating that the respondents have decided not to renew the contract of the petitioner due to “repeated disciplinary issues against her and breach of contract”. - 2.The learned counsel for the petitioner submits that Ext.P6 proceedings are vitiated by non compliance with the W.P.(C).No.15962/22 4 principles of natural justice as also by mala fide. It is submitted that at the time of the initial appointment in 2009 itself, options were sought from all candidates who were successful in the selection with regard to the place of posting, but the petitioner was given no such option. She took up the matter before the higher authorities and was ultimately given a posting at Nileswaram, Kasargod, even though there were vacancies available near the petitioner’s place of residence. It is submitted that while working at Nileswaram, the petitioner suffered a fall and had to avail medical leave. She was served with an order of termination dated 22.09.2010 which was taken up before the Government and by Ext.P8 order dated 27.02.2012, the Government directed reinstatement of the petitioner. It was only after repeated directions that the petitioner was ultimately reinstated in service. It is submitted that in the year 2018 also, there was reluctance on the part of the respondents to renew her contract of service, on the ground that she had obtained a low score for discipline/attendance and punctuality. It is contended that it is only due to the ill will W.P.(C).No.15962/22 5 harboured by the respondents against the petitioner that Ext.P6, a non speaking order, has been issued terminating the petitioner’s services without completing the enquiry proceedings already initiated by Ext.P1. 3.A detailed counter affidavit has been placed on record by the 2[nd] respondent. It is contended that the petitioner was appointed on contract basis initially for one year and later the contract was being extended from time to time, based on performance appraisal. It is submitted that the petitioner’s performance appraisal report indicates that she had secured only very low marks and her contract had been renewed taking a very lenient view. However, her performance did not improve and there were repeated complaints against her. It was decided to renew the contract of the petitioner any further. It is submitted that the initiation of the disciplinary proceedings against the petitioner, by itself, will not give her any right to claim the extension of a contract which stood expired and which was not liable to be extended on the basis of her poor performance report. W.P.(C).No.15962/22 6 4.It is contended that the allegations of mala fide are completely unsubstantiated and that the transfers of the petitioner were on account of administrative necessities and had nothing to do with any ill will against the petitioner. It is submitted that an enquiry was also conducted against the petitioner and Ext.R2(d) enquiry report had been filed by the Resident Medical Officer, General Hospital, Thiruvananthapuram, which showed dereliction of duty on the part of the petitioner. Thereafter, the petitioner was transferred to ICTC, Government Taluk Head Quarters Hospital Attingal, by Ext.R2(e) Order. The petitioner was also specifically informed by proceedings dated 31.03.2018 that she had secured very low marks for discipline, attendance and punctuality and that in the circumstances, the further renewal of the contract of the petitioner would be considered only on the basis of improvement of her performance. It is submitted that even though the performance appraisal reports did not show any significant improvement, the petitioner’s contract was renewed till 31.03.2019 and thereafter till 02.04.2021 taking a lenient view of the matter. W.P.(C).No.15962/22 7 It is submitted that serious allegations regarding the failure on the part of the petitioner in maintaining secrecy of information regarding details of persons affected with HIV were raised by one Jijomon, Counsellor ICTC, District Public Health Laboratory, Kollam on 07.02.2022 and that in a preliminary enquiry conducted, the allegations were found to be well founded. Thereafter a fact finding team consisting of the Additional Project Director, Deputy Director and Assistant Director had visited the ICTC and submitted Ext.R2(l) Enquiry report which showed misconduct and insubordination on the part petitioner. 5. It is submitted that in the meanwhile, the period of contract of the petitioner expired and the 2[nd] respondent, being convinced that it will be detrimental to the proper functioning of the society if the petitioner’s contract is renewed had decided not to extend the contract of service of the petitioner. It is submitted that for a termination of the contractual appointment simplictor, no disciplinary proceedings need to be completed and that there is no stigma W.P.(C).No.15962/22 8 attached to the termination of services of the petitioner. Ext.P6 is also sought to be sustained on the ground that it only refers to “repeated disciplinary issues” and does not cast any stigma. - 6.A reply affidavit has been filed by the petitioner. The learned counsel for the petitioner submits that since the termination of contract of the petitioner is evidently punitive in nature, the respondents cannot contend that such termination could be effected without conducting due enquiry. 7. I have considered the contentions advanced. The petitioner was only employed on contract as lab technician. The term of contract had, however, been extended till 31.3.2022. The term of contract had admittedly expired. The decision taken by the respondents was not to renew the contract of the petitioner thereafter. No reasons were stated. Ext.P5 detailed representation was submitted by the petitioner which would also show that she was fully aware of the poor performance appraisal and the several warnings given in W.P.(C).No.15962/22 9 respect of the same. It was to this representation seeking completion of the disciplinary proceedings that Exhibit P6 reply was given to the petitioner stating that her contract is not being renewed due to “repeated disciplinary issues and breach of contract”. The Apex Court in **Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd.** [1999(2) SCC 21] held as follows:- "33. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by Shah, J. (as he then was) in Ram Narayan Das case. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. It has been so decided in Champaklal case. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge - memo issued, reply obtained, and an enquiry officer is appointed - if at that point of time, W.P.(C).No.15962/22 10 the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur case and in Benjamin case. In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.” The said view was followed in **Ratnesh Kumar Choudhary** - **v. Indira Gandhi Institute of Medical Sciences, Patna,** **Bihar** [ 2015 (15) SCC 151]. 8. The Apex Court in **Director, Aryabhatta Research Institute of Observational Sciences (Aries) and Another** - **v. Devendra Joshi and others** [2018 KHC 6195] has W.P.(C).No.15962/22 11 considered the question of termination of probation on the ground of unsatisfactory service. It was held that even in a case where disciplinary proceedings had been initiated and the question of declaration of probation arises in the meanwhile, the termination of probation without casting stigma on the officer would be maintainable and not against the principles of natural justice. In **Kendriya Vidyalaya Sangathan v. Arunkumar Madhavarao Sinddhaye and another** [2006 KHC 1572] also the Apex Court held that where a preliminary enquiry had been conducted and disciplinary action was recommended, but the term of the contract ended in the meanwhile, the termination of service on the expiry of contract by itself cannot be held to be punitive. 9. In the instant case, it is an admitted fact that though a memo of charges had been issued to the petitioner, her term of contract ended on 31.3.2022. The termination of her service, therefore, is only on account of the termination of the period of contract. The question whether the petitioner's service W.P.(C).No.15962/22 12 was liable to be terminated or not was the question which was being considered by the respondents. It was found that on account of breach of contract and several disciplinary issues which had occurred during the period of contract, it was not advisable to extend the petitioner's term of contract. The fact that a full disciplinary enquiry had not been conducted against the petitioner and she was not found guilty as charged, by itself, cannot result in a finding that the termination was punitive in nature. In view of the sensitive nature of the engagement of the petitioner, I am of the opinion that all that is required in the instant case is to hold that the termination of the petitioner was a termination of a contractual appointment on expiry of the period of contract simplicitor. In the above view of the matter, Ext.P6 order is set aside. However, the decision taken by the respondents not to extend the contractual appointment of the petitioner on expiry of the period of contract is upheld. The writ petition is ordered accordingly. ## **Anu Sivaraman, Judge** sj W.P.(C).No.15962/22 13 ## **APPENDIX OF WP(C) 15962/2022** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF CHARGE MEMO DATED 15.03.2022 ISSUED TO THE PETITIONER. - Exhibit P2 TRUE COPY OF REPLY DATED 26.03.2022 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. - Exhibit P3 TRUE COPY OF ORDER NO. 5639/2022 ICTCI/KSKCS DATED 03.2022 ISSUED BY THE 2ND RESPONDENT. - Exhibit P4 TRUE COPY OF COMMUNICATION DATED - 31.3.2022 ISSUED BY THE 2ND RESPONDENT TO THE MEDICAL OFFICER, PUBLIC HEALTH LABORATORY, KOLLAM. - Exhibit P5 TRUE COPY OF THE REPRESENTATION DATED 22.04.2022 FROM THE PETITIOENR TO THE 2ND RESPONDENT. - Exhibit P6 TRUE COPY OF ORDER NO. 4868/22/ ICTC1/KSACS DATED 29.04.2022 ISSUED BY THE 2ND RESPONDENT. - Exhibit P7 TRUE COPY OF ORDER OF TERMINATION DATED 22.09.2010 ISSUED BY THE 2ND RESPONDENT. - Exhibit P8 TRUE COPY OF ORDER OF NO. 38579/FW2/11/HFWD DATED 27.02.2012 OF THE PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE. Exhibit P9 TRUE COPY OF ORDER NO. - 38579/FW/2/11/HFWD DATED 31.3.20P1 ISSUED BY THE 1ST RESPONDENT. W.P.(C).No.15962/22 14 - Exhibit P10 TRUE COPY OF ORDER NO. 38579/FW/2/11/HFW DATED 27.02.2012 ISSUED BY THE 1ST RESPONDENT. - Exhibit P11 TRUE COPY OF LETTER DATED 17/3/2021 FROM THE 2ND RESPONDENT TO THE PETITIONER. - Exhibit P12 TRUE COPY OF REPRESENTATION DATED 17.03.20212 FROM THE PETITIONER TO THE 2ND RESPONDENT. - Exhibit P13 TRUE COPY OF ORDER NO. 4081/2021 ICTCI/KSACS DAGED 26.03.2021 ISSUED BY THE 2ND RESPONDENT. - Exhibit P14 TRUE COPY OF ORDER NO. 4081/2021/ICTCI/KSCS DATED 7.10.2021 ISSUED BY THE 2ND RESPONDENT. - Exhibit P15 TRUE COPY OF COMPLAINT DATED 30.10.2021 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT, DEHORS THE ANNEXURES. - Exhibit P16 TRUE COPY OF NOTICE DATED 12.1.2022 ISSUED BY THE 2ND RESPONDENT. - Exhibit P17 TRUE COPY OF LETTER DATED 27.1.2022 FROM THE PETITIONER TO THE 2ND RESPONDENT. - RESPONDENT EXHIBITS - Exhibit R2(A) TRUE COPY OF THE ORDERNO. SACS 3/4423/2008 DATED 23/09/2009 Exhibit R2(B) TRUE COPY OF THE LETTER NO. 5386/2010/ICTC2/KSACS DATED 22/09/2010 Exhibit R2(C) TRUE COPY OF THE ORDER NO. 5386/2010/ICTC2/KSAC DATED 03/05/2012 W.P.(C).No.15962/22 15 - Exhibit R2(D) TRUE COPY OF THE REPORT SUBMITTED BY RMO GENERAL HOSPITAL, THIRUVAANTHAPURAM - Exhibit R2(E) TRUE COPY OF THE ORDER NO. 1340/2012/ICTC2/KSACS DATED 02/04/2015 - Exhibit R2(F) TRUE COPY OF THE PROCEEDINGS OF THE PROJECT DIRECTORS OF THE 2ND RESPONDENT DATED 31/03/2018 - Exhibit R2(G) TRUE COPY OF THE PROCEEDINGS OF THE PROJECT DIRECTOR OF THE 2ND RESPONDENT DATED 27/09/2018 - Exhibit R2(H) TRUE COPY OF THE COMPLAINT FILED BY ONE JIJOMON, COUNSELLOR, ICTC, DISTRICT PUBLIC HEALTH LABORATORY, KOLLAM DATED 07/02/2022 - Exhibit R2(I) TRUE COPY OF THE COMPLAINT FILED BY ONE JIJOMON, COUNSELLOR, ICTC, DISTRICT PUBLIC HEALTH LABORATORY, KOLLAM DATED 09/02/2022 - Exhibit R2(J) TRUE COPY OF THE COMPLAINT FORWARDED THROUGH E-MAIL BY DR. CIJI JOSE - PERALACKATTUCHALIL, MEDICAL OFFICER IN CHARGE OF DISTRICT PUBLIC HEALTH LAB KOLLAM DATED 15/02/2022 - Exhibit R2(K) TRUE COPY OF THE COMPLAINT FORWARDED THROUGH E MAIL BY DR. MARY SANSHYA, JUNIOR CONSULTANT, TRANSFUSION MEDICINE, DISTRICT HOSPITAL, KOLLAM DATED 17/02/2022 - Exhibit R2(L) TRUE COPY OF THE ENQUIRY REPORT Exhibit R2(M) TRUE COPY OF THE PAPER REPORT APPEARED IN DESHABHIMANI DAILY DATED 31/03/2022 16 ## W.P.(C).No.15962/22 Exhibit R2(N) TRUE COPY OF THE REQUEST LETTER ISSUED BY THE PETITIONER DATED 17/09/2009 Exhibit R2(O) TRUE COPY OF THE PRINT OUT OF THE FACEBOOK PAGE OF THE PETITIONER Exhibit R2(P) TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT MEDICAL OFFICER KOLLAM BEARING NO. 69/22 GMO (H) KOLLAM Exhibit R2(Q) TRUE COPY OF THE COMPLAINT SUBMITTED BY SRI.SUMOD S. ANAND BEFORE THE MEDICAL OFFICER, PUBLIC HEALTH LABORATORY KOLLAM DATED 30/03/2022 ## TRUE COPY PS TO JUDGE