ANOOP P PAULOSE v. STATE MISSION DIRECTOR NATIONAL HEALTH MISSION, GENERAL HOSPITAL JUNCTION, THIRUVANANTHURAM; DISTRICT MEDICAL OFFICER (HEALTH) CHIEF EXECUTIVE OFFICE OF DISTRICT HEALTH & FAMILY WELFARE SOCIETY, AROGYAKERALAM, THRISSUR; DISTRICT PROGRAMME MANAGER, NATIONAL HEALTH MISSION, AROGYAKERALAM, OLD DISTRICT HOSPITAL COMPOUND, ROUND EAST, THRISSUR; CHAIRMAN AND DISTRICT COLLECTOR, THRISSUR, DISTRICT HEALTH AND FAMILY WELFARE SOCIETY, THRISSUR

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN`** ## **`MONDAY, THE 8[TH] DAY OF AUGUST 2022 / 17TH SRAVANA, 1944`** ## **`WP(C) NO. 10871 OF 2022`** ## **`PETITIONER:`** ``` ANOOP P PAULOSE AGED 34 YEARS S/O.P.V.PAULOSE, RESIDING AT PARNAYIL HOUSE, PATTIKKAD POST, MANJAKKUNNU, THRISSUR-680652. ``` ``` BY ADVS. ``` - **`T.C.SURESH MENON P.BHASKARAN B.DEEPAK`** ## **`RESPONDENTS:`** - **`1 STATE MISSION DIRECTOR NATIONAL HEALTH MISSION, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM-695035.`** - **`2 DISTRICT MEDICAL OFFICER (HEALTH) CHIEF EXECUTIVE OFFICE OF DISTRICT HEALTH & FAMILY WELFARE SOCIETY, AROGYAKERALAM, THRISSUR-680001.`** - **`3 DISTRICT PROGRAMME MANAGER, NATIONAL HEALTH MISSION, AROGYAKERALAM, OLD DISTRICT HOSPITAL COMPOUND, ROUND EAST, THRISSUR-680001.`** - **`4 CHAIRMAN AND DISTRICT COLLECTOR, THRISSUR, DISTRICT HEALTH AND FAMILY WELFARE SOCIETY, THRISSUR-680004.`** ``` BY ADV SRI.M.AJAY,SC,NATIONAL RURAL HEALTH MISSION ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 10871 OF 2022 ``` ``` 2 ``` ## **`JUDGMENT`** ## **Dated this the 8[th] day of August, 2022** This writ petition is filed seeking the following prayers: _“(i) call for the records leading to the passing of Ext.P17 by the 3[rd] respondent and quash the same by the issue of a writ of certiorari or other appropriate writ, order or direction_ _(ii) issue a writ in the nature of mandamus directing the 3[rd] respondent to consider Exts.P12 and P13 and furnish the petitioner with the materials sought for by him and conduct a fresh enquiry in a fair manner_ _(iii) issue a writ in the nature of mandamus directing the 1[st] respondent to consider on merits Ext.P16 representation and pass orders on the same after affording to the petitioner a reasonable opportunity of being heard._ _(iv) issue a writ in the nature of mandamus directing the 2[nd] respondent to consider on merits Ext.P15 and pass orders on the same after affording to the petitioner a reasonable opportunity of being heard”_ 2. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondents quite in extenso. 3. It is submitted by the learned counsel for the petitioner that the petitioner was working as District Urban Health Co-ordinator under the 1[st] respondent. The petitioner was initially engaged as Data Entry ``` WP(C) NO. 10871 OF 2022 ``` ``` 3 ``` Operator by Ext.P1 proceedings. He was thereafter appointed as PRO from 07.11.2014 by Ext.P3 and by Ext.P5, he was appointed on contract as District Urban Health Co-ordinator. It is submitted that while so, the petitioner was issued with Ext.P9 memo alleging misconduct on his part and Ext.P10 reply was submitted by the petitioner. It is stated that a notice was served on the petitioner for a hearing to be conducted on 18.01.2022 and that the service of notice was at 4.30 pm on 17.01.2022. By Ext.P12, the petitioner sought 3 days time and copies of the documents relied on against him, but the same was not granted and the hearing was conducted. The petitioner submitted Ext.P13 objection. It is contended that his objections were not considered by the respondents. Further, Ext.P14 notice was again issued to the petitioner by the 3[rd] respondent requiring him to submit his reply within 7 days. The petitioner submitted Ext.P15 reply. It is submitted that by Ext.P17 proceedings dated 21.03.2022, the petitioner’s service was terminated by the 3[rd] respondent. 4. The learned counsel for the petitioner submits that the petitioner’s appointing authority was not the 3[rd] respondent and that the order of ``` WP(C) NO. 10871 OF 2022 ``` ``` 4 ``` termination of contract has been issued without conducting any proper enquiry in accordance with law. It is submitted by the learned counsel for the petitioner that though the petitioner’s appointment was temporary and on a contract basis, since Ext.P17 is clearly a stigmatic removal or dismissal from service, the petitioner was entitled to a proper enquiry before such an order was passed. 5. A detailed counter affidavit has been placed on record by the 3[rd] respondent. It is contended that the allegations against the petitioner had been considered by the Executive Committee of the District Health and Family Welfare Society by Ext.R3(o) proceedings and thereafter, the entire contentions raised by the petitioner had been considered and Exts.R3(p) and R3(q) proceedings were issued finding that the petitioner’s services were liable to be terminated. It is therefore contended that the contention raised by the petitioner that his contentions in response to the memos were not considered is incorrect and that all the contentions raised by the petitioner has been clearly considered and found against. ``` WP(C) NO. 10871 OF 2022 ``` ``` 5 ``` 6. A reply affidavit was also placed on record by the petitioner. 7. Having considered the contentions advanced on either side, I notice that the petitioner has been dismissed from service on a finding that he was guilty of misconduct. Though it is true that the appointment of the petitioner was on temporary basis and on a contract, it is trite law that when a stigmatic order of non renewal of contract or termination of contract is issued to an employee on grounds of misconduct, proper procedure is to be followed before such an order can be rendered. I am fortified in my view by the decisions of the Apex Court in **Pavanendra Narayan Verma vs Sanjay Gandhi P.G.I. Of Medical Sciences and others** [2002 (1) SCC 520], **K.C. Joshi vs Union Of India and others** [1985 (3) SCC 153] and **Vijayakumaran C.P. vs Central University Of Kerala** [2020 (12) SCC 426]. In the instant case also, it is the specific case of the petitioner that the details of the allegations against him were not made available to him and a proper opportunity to state his case was not given before the decision was taken by the Committee. The petitioner was also not given any opportunity to peruse the statements of the witnesses against him or to cross-examine the ``` WP(C) NO. 10871 OF 2022 ``` ``` 6 ``` witnesses. 8. Having considered the contentions advanced and in view of the fact that the petitioner has approached the 1[st] respondent with Ext.P16 representation pointing out these facts, I am of the opinion that these issues require a consideration at the hands of the 1[st] respondent. The 1[st] respondent shall take up Ext.P16 representation preferred by the petitioner and consider and pass orders on the same, taking note of the specific contentions raised by the petitioner with regard to the lack of a proper opportunity to defend his case since Ext.P17 is clearly an order of dismissal from service and is definitely stigmatic in nature. Appropriate orders shall be passed, taking note of the contentions of the petitioner that his dismissal, being stigmatic, could not have been rendered without a full opportunity being given to him to defend his case. Orders shall be passed, with notice to the petitioner and after hearing him, within a period of six weeks from the date of receipt of a copy of this judgment. The interim order granted by this Court shall remain in force till then. All other issues are left open and the contentions of the petitioner shall be considered untrammelled by ``` WP(C) NO. 10871 OF 2022 ``` ``` 7 ``` Ext.P17 and anything stated therein. This writ petition is ordered accordingly. ``` Sd/- ``` ``` ANU SIVARAMAN JUDGE ``` ``` NP ``` ``` WP(C) NO. 10871 OF 2022 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 10871/2022`** |**`PETITIONER’S EXHIBITS`**|| |---|---| |**`Exhibit P1`**|**`TRUE COPY OF THE ORDER NO.3560/12/NCD`**| ||**`/AROGYAKERALAM/DPMSU THRISSUR PASSED BY THE`**| ||**`2ND RESPONDENT, DATED 7.8.2012.`**| |**`Exhibit P2`**|**`TRUE COPY OF THE FORMAT OF AGREEMENT, DATED`**| ||**`2.6.2021.`**| |**`Exhibit P3`**|**`TRUE COPY OF THE ORDER OF APPOINTMENT`**| ||**`NO.3571/12/AROGYAKERALAM/DPMSU THRISSUR`**| ||**`PASSED BY THE 2ND RESPONDENT, DATED`**| ||**`7.11.2014.`**| |**`Exhibit P4`**|**`TRUE COPY OF THE LETTER AROGYAKERALAM,`**| ||**`NO.456/14 ISSUED BY THE 3RD RESPONDENT, DATED`**| ||**`22.5.2015.`**| |**`Exhibit P5`**|**`TRUE COPY OF THE ORDER NO.456/14`**| ||**`/AROGYAKERALAM/DPMSU THRISSUR PASSED BY THE`**| ||**`1ST RESPONDENT, DATED 6.6.2015.`**| |**`Exhibit P6`**|**`TRUE COPY OF ORDER NO.DPMSU, THRISSUR/2021`**| ||**`PASSED BY THE 3RD RESPONDENT, DATED 31.5.2021`**| |**`Exhibit P7`**|**`TRUE COPY OF TOKEN OF APPRECIATION FOR THE`**| ||**`BEST DISTRICT CO-ORDINATOR UNDER NUHM, DATED`**| ||**`-NIL-`**| |**`Exhibit P8`**|**`TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE`**| ||**`RECEIPT OF TOKEN OF APPRECIATION BY THE`**| ||**`PETITIONER FROM NUHM, THRISSUR FOR THE`**| ||**`OUTSTANDING PERFORMANCE ON 20TH JUNE, 2021.`**| |**`Exhibit P9`**|**`TRUE COPY OF MEMO AROGYAKERALAM NO.128/2022`**| ||**`ISSUED BY THE 3RD RESPONDENT, DATED 14.1.2022`**| |**`Exhibit P10`**|**`TRUE COPY OF THE REPLY SUBMITTED BY THE`**| ||**`PETITIONER TO EXT.P9, DATED 15.1.2022.`**| |**`Exhibit P11`**|**`TRUE COPY OF THE ACKNOWLEDGMENT,DATED`**| ||**`20.1.2022`**| |**`Exhibit P12`**|**`TRUE COPY OF THE REQUEST MADE BY THE`**| ||**`PETITIONER BEFORE THE 3RD RESPONDENT, DATED`**| ||**`18.1.2022.`**| |**`Exhibit P13`**|**`TRUE COPY OF THE OBJECTIONS FILED BY THE`**| ||**`PETITIONER BY E-MAIL BEFORE THE 3RD`**| ||**`RESPONDENT, DATED 18.1.2022.`**| |**`Exhibit P14`**|**`TRUE COPY OF THE NOTICE NO.TSR/128/OS/2022`**| ||**`/DPMSU ISSUED BY THE 3RD RESPONDENT DATED`**| ||**`21.2.2022.`**| ``` WP(C) NO. 10871 OF 2022 ``` ``` 9 ``` ``` Exhibit P15TRUE COPY OF REPLY SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT TO EXT.P14, DATED 26.2.2022. Exhibit P16TRUE COPY OF THE DETAILED REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT, DATED 15.3.2022. Exhibit P17TRUE COPY OF THE ORDER NO.DPMSU-TSR/128/0S /2022/DPMSU PASSED BY THE 3RD RESPONDENT, DATED 21.3.2022. RESPONDENTS’ EXHIBITS: Exhibit R3(A)A TRUE COPY OF THE REPORT SENT BY THE THIRD RESPONDENT BEFORE THE FIRST RESPONDENT DATED NIL SENT ON 12.01.22 Exhibit R3(B)A TRUE COPY OF REPORT SUBMITTED BY THE THIRD RESPONDENT BEFORE THE FIRST RESPONDENT ON 13.1.22 Exhibit R3(C)A TRUE COPY OF THE ORDER NO.NHM/264/ADMIN/1/ 2022/SPMSU ISSUED BY THE FIRST RESPONDENT DATED 14.1.22 Exhibit R3(D)A TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE THIRD RESPONDENT TO SOORYA RAMAKRISHNAN DATED 14.1.22 Exhibit R3(E)A TRUE COPY OF THE REPLY OF SOORYA RAMAKRISHNAN DATED 15.1.22. Exhibit R3(F)A TRUE COPY OF THE ORDER NO. NHM/264/ADMIN/ 2022/SPMSU ISSUED BY THE FIRST RESPONDENT DATED 15.1.22. Exhibit R3(G)A TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE THIRD RESPONDENT TO THE SHA COORDINATOR DATED 18.1.22. Exhibit R3(H)A TRUE COPY OF THE REPLY TO THE SHOW CAUSE NOTICE SUBMITTED BY THE SHA COORDINATOR DATED 19.1.22. Exhibit R3(I)A TRUE COPY OF THE COMMUNICATION, NHM/128/22 SENT BY THE THIRD RESPONDENT TO THE DIRECTOR, INSTITUTE OF PALLIATIVE CARE, THRISSUR DATED 18.1.22 Exhibit R3(J)A TRUE COPY OF THE REPLY OF THE SECRETARY OF THE PAIN AND PALLIATIVE CARE SOCIETY DATED 20.1.22. Exhibit R3(K)A TRUE COPY OF THE COMMUNICATION SENT BY THE THIRD RESPONDENT TO THE PETITIONER DATED 17.1.22 ``` ``` WP(C) NO. 10871 OF 2022 ``` ``` 10 ``` ``` Exhibit R3(L)A TRUE COPY OF THE COMMUNICATION OF THE FIRST RESPONDENT DATED 26.1.22 ALONG WITH ANNEXURES Exhibit R3(M)A TRUE COPY OF THE COMMUNICATION SENT BY THE THIRD RESPONDENT TO THE FIRST RESPONDENT DATED 28.1.22 ``` ``` Exhibit R3(N)A TRUE COPY OF THE COMMUNICATION OF THE FIRST RESPONDENT DATED 4.2.22. Exhibit R3(O)A TRUE COPY OF THE MINUTES OF THE MEETING OF THE EXECUTIVE COMMITTEE OF THE NHM, THRISSUR DATED 16.2.22 ``` ``` Exhibit R3(P)A TRUE COPY OF THE REPORT PREPARED BY THE SECOND RESPONDENT AFTER HEARING THE PETITIONER IN PERSON DATED 8.3.22, Exhibit R3(Q)A TRUE COPY OF THE MINUTES OF THE EXECUTIVE COMMITTEE MEETING DATED 10.3.22 ```