IN THE HIGH COURT OF KERALA AT ERNAKULAM

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940** **WP(C).No. 2267 of 2018** **---------------------** **PETITIONER(S)** **--------------** **ROHITHA P., AGED 38 YEARS, D/O. SANKARAN P., SITE SUPERVISOR (NOW UNDER ORDERS OF TERMINATION), NIRMITHI KENDRA KOZHIKODE, CIVIL STATION, CIVIL STATION P.O., KOZHIKODE - 673 020, RESIDING AT SRAVANAM, PANICKERTHODY, WESTHILL P.O., KOZHIKODE - 673 005.** **BY ADVS.SRI.S.PRASANTH (AYYAPPANKAVU), SMT.VARSHA BHASKAR, SRI.JYOTHISH D.MONY.** **RESPONDENT(S):** - **--------------** **1. NIRMITHI KENDRA KOZHIKODE, REPRESENTED BY ITS GENERAL BODY (NOTICE TO BE SERVED THROUGH SECRETARY), CIVIL STATION, CIVIL STATION P.O., KOZHIKODE - 673 020.** **2. THE SECRETARY,** - **NIRMITHI KENDRA KOZHIKODE, REPRESENTED BY ITS GENERAL BODY (NOTICE TO BE SERVED THROUGH SECRETARY), CIVIL STATION, CIVIL STATION P.O., KOZHIKODE - 673 020.** **3. THE DISTRICT COLLECTOR AND CHAIRMAN,** - **NIRMITHI KENDRA KOZHIKODE, CIVIL STATION, CIVIL STATION P.O., KOZHIKODE - 673 020.** **4. JAYANANAND V.P., EXECUTIVE SECRETARY, NIRMITHI KENDRA KOZHIKODE, CIVIL STATION, CIVIL STATION P.O., KOZHIKODE - 673 020.** **WP(C).No. 2267 of 2018 (G)** **5. P.S. LALCHAND (ENQUIRY OFFICER), SPECIAL TAHSILDAR (LR), LAND REFORMS LAND CIVIL STATION, KOZHIKODE - 20.** **R1, R2 & R4 BY ADVS. SRI.SHYAM PADMAN, SRI.C.M.ANDREWS, SMT.BOBY M.SEKHAR, SMT.NEETHU RAVIKUMAR, SMT.REVATHY P. MANOHARAN.** **R3 BY SR. GOVT. PLEADER SRI.BIJOY CHANDRAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-06-2018, THE COURT ON 12/06/2018 DELIVERED THE FOLLOWING:** **rs. 13/06/2018.** **WP(C).No. 2267 of 2018 (G)** **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE EXTRACT OF THE MEMORANDUM OF ASSOCIATION OF THE 1ST RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF THE CERTIFICATE DATED 11.01.2016** - **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 22.10.2016 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE LEAVE APPLICATION DATED 20.02.2017 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE OFFICE ORDER NO. KDNK 71/2017 DATED 01.04.2017 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE SHOW CAUSE NOTICE DATED** - **05.05.2017 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P7 TRUE COPY OF THE REPLY DATED 10.05.2017 SUBMITTED BY THE PETITIONER TO EXT. P5 SHOW CAUSE NOTICE. EXHIBIT P8 TRUE COPY OF THE SUSPENSION ORDER DATED 19.05.2017 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P9 TRUE COPY OF THE MEMO OF CHARGES AD STATEMENT OF ALLEGATION DATED 21.06.2017 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **EXHIBIT P10 TRUE COPY OF THE REPLY DATED 28.06.2017 SUBMITTED BY THE PETITIONER TO THE MEMO OF CHARGES.** - **EXHIBIT P11 TRUE COPY OF THE CERTIFICATE OF NON-EMPLOYMENT SUBMITTED BY THE PETITIONER. EXHIBIT P12 TRUE COPY OF THE LETTER DATED 03.08.2017 SENT BY THE 4TH RESPONDENT. EXHIBIT P13 TRUE COPY OF THE ORDER NO. KDNK/HQ/2017 DATED 18.09.2017 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P14 TRUE COPY OF THE REPRESENTATION DATED 23.09.2017 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.** - **EXHIBIT P15 TRUE COPY OF COMPLAINT SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.** - **EXHIBIT P16 TRUE COPY OF THE LETTER DATED 30.11.2017 SENT BY THE 2ND RESPONDENT TO THE PETITIONER.** - **EXHIBIT P17 TRUE COPY OF THE APPLICATION DATED 19.09.2017 SUBMITTED BY THE PETITIONER UNDER THE RTI ACT, 2005.** - **EXHIBIT P18 TRUE COPY OF THE APPEAL DATED 18/12/2017 SUBMITTED BY THE PETITIONER UNDER THE RTI ACT, 2005.** **EXHIBIT P19 TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER.** **....2/-** **WP(C).No. 2267 of 2018 (G)** **EXHIBIT P20 TRUE COPY OF THE LETTER DATED 03/05/2017 SENT BY THE ASSISTANT ENGINEER TO THE PROJECT MANAGER. EXHIBIT P21 TRUE COPY OF THE LETTER DATED 01/06/2017 SENT BY THE ASSISTANT ENGINEER TO THE 1ST RESPONDENT.** **EXHIBIT P22 TRUE COPY OF THE LETTER DATED 08/06/2017 SENT BY THE ASSISTANT ENGINEER TO THE 1ST RESPONDENT.** **EXHIBIT P23 TRUE COPY OF THE REPORT DATED 10/08/2017 SUBMITTED BY THE 2ND RESPONDENT ON THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** ## **RESPONDENT'S EXHIBITS:** **EXT.R1A COPY OF THE LEAVE APPLICATION DATED 13/02/2017 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.R1B COPY OF THE ORDER NO.A1-21/16 DATED 09/02/2017 APPOINTING THE PETITIONER AS 1ST GRADE OVERSEER, OFFICE OF THE ASSISTANT ENGINEER, LSGD SECTION UNDER PERAMBRA BLOCK PANCHAYATH. EXT.R1C COPY OF THE ORDER NO.AEE/PB/LSGD/E1/1/17 DATED 05/04/2017 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER, LSGD, RELIEVING THE PETITIONER OFF FROM THE POST OF 1ST GRADE OVERSEER. EXT.R1D COPY OF THE ORDER NO.KDNK 71/2017 DATED 01/04/2017. EXT.R1E COPY OF THE STATEMENT OF THE PETITIONER DATED 16/08/2017 RECORDED BY THE ENQUIRY OFFICER. EXT.R1F COPY OF THE STATEMENT OF SREEJA (ACCOUNTANT) DATED 21/08/2017 RECORDED BY THE ENQUIRY OFFICER. EXT.R1G COPY OF THE STATEMENT OF SEENA (ASSISTANT ENGINEER) DATED 24/08/2017 RECORDED BY THE ENQUIRY OFFICER. EXT.R1H COPY OF THE STATEMENT OF KRISHNAN KUTTY (OFFICE ASSISTANT) DATED 14/09/2017 RECORDED BY THE ENQUIRY OFFICER. EXT.R1I COPY OF THE ACKNOWLEDGMENT RECEIPT DATED 06/02/2018 OF THE SUBSISTENCE ALLOWANCE BY THE PETITIONER.** **//TRUE COPY//** **P.S. TO JUDGE** **rs. 13/06/2018.** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.2267 of 2018-G ------------------------------------------- _Dated this the 12[th] day of June, 2018_ ## _**JUDGMENT**_ The disciplinary proceedings initiated against the petitioner culminating in the order of termination of her service are under challenge in this writ petition. 2. The petitioner has been working as a Site Supervisor in the Nirmithi Kendra, Kozhikode. She joined the 1[st] respondent as a trainee on 2.1.2007 and was confirmed as a regular employee in August, 2010. The petitioner claims that considering her good performance, she was issued with Ext.P2 certificate by the District Collector, who is the Chairman of the Nirmithi Kendra, Kozhikode. While working so, she got provisional appointment as First Grade Overseer in Local Self Government Department for a period of 6 months. She thereupon submitted Ext.P4 application for leave without allowance for six months from 20.2.2017. However, within two months, she was relieved from the new employment since a regular hand joined duty. The petitioner submits that she thereupon rejoined duty under the 1[st] respondent on 21.4.2017 and on personal reasons took leave upto 2.5.2017. The petitioner submits that after she rejoined, the 4[th] respondent did not allow her to do any work and he started harassing her. It is stated that she was asked to take care of the tapals contrary to the 2 W.P(C) No.2267 of 2018-G allocation of work in the office and that there were clerical staff to manage tapal. The petitioner thereupon requested to allot her duty pointing out that she was working as a Site Supervisor. The petitioner points out that she had already submitted a representation Ext.P3 on 22.10.2016 requesting to grant her promotion, pointing out her technical qualification and length of service under the 1[st] respondent. 3. Whileso she received a show cause notice Ext.P6 dated 5.5.2017 from the 2[nd] respondent, in which it was alleged that she was picking arguments with superior officers, disobeying their instructions, showing reluctance to perform the duties allotted to her, questioning the appointment of temporary trainees, discouraging her colleagues, etc. 4. The petitioner submitted Ext.P7 reply denying the allegations against her and explained that though she has been working as Site Supervisor after she rejoined duty on 2.5.2017 on expiry of two months' leave followed by medical leave, she was not allotted site work till 5.5.2017 and that she had only requested to exempt her from the work relating to tapal section. She had also stated that there was no occasion for any allegation against her till that time since 2007 and also requested to condone her for the lapses if any occurred. 5. However, by Ext.P8 order dt.19.05.2017, she was placed under 3 W.P(C) No.2267 of 2018-G suspension with effect from 19.5/6.2017 for a period of 3 months pending enquiry. It was followed by Ext.P9 memo of charges and statement of allegations issued on 21.6.2017. In the memo of charges, the allegations were : while working as Site Supervisor, she had continuously violated the office discipline showing disrespect to the superiors, talking to them arrogantly; showing reluctance to receive office tapals: refused to attend urgent duties assigned to her resulting in undue delay in completing the work; questioned appointment of trainees on temporary basis for the urgent execution of water KIOSKS and provoked other incumbents seriously affecting the office discipline. It is alleged that her action amounted to grave misconduct and dereliction of duty warranting disciplinary action. She was requested to show cause against her action, under the Kerala Civil Services (Clarification Control and Appeal) Rule, 1960 within a period of 15 days and to inform whether she wanted a personal hearing. The petitioner thereupon submitted Ext.P10 explanation denying the allegations against her stating that she had been discharging her duties to the satisfaction of the authorities till February, 2017. It was stated that she had to take leave from 24.2.2017 due to some urgent domestic affairs and she reported back on 2.5.2017 and thereafter she was not allotted site work, instead she was asked to attend the tapal. It is stated that she had only 4 W.P(C) No.2267 of 2018-G pointed out the allocation works among the clerks and the Site Supervisors to the Assistant Secretary and requested to spare her from the tapal work. It was also stated that when she came to know that the governing body had taken a decision to put her to the tapal work, she accepted the tapals and had taken further action without any hesitation. She again requested to pardon her in case there was any misunderstanding in pointing out her inconvenience in dealing with the clerical work in tapal section and requested to drop the proceedings. 6. The respondents appointed the Senior Superintendent (Inspection), Collectorate, Kozhikode as the enquiry officer. The enquiry officer took the statements from the petitioner as well as other employees under the respondent and thereafter submitted a report dated 16.9.17 based on which the District Collector and the Chairman of the 1[st] respondent issued Ext.P13 order terminating her services with immediate effect. It was stated that the enquiry officer had found the petitioner's presence under the 1[st] respondent would lower its morale as a whole. On receipt of Ext.P13 order the petitioner submitted a representation Ext.P14 on 23.9.2017 pointing out that she had not committed any misconduct warranting termination. Pointing out deprivation of her only source of livelihood, for her family consisting of her unemployed husband, her mother and 2 5 W.P(C) No.2267 of 2018-G unmarried sisters, one of whom is physically handicapped, and her 13 year old daughter, she again requested to pardon her and to allow her to rejoin duty. Another representation Ext.P15 was also submitted before the District Collector. However, by Ext.P16 order dated 30.11.2017, the petitioner was informed that her application cannot be entertained, reiterating the charges found against her. The petitioner submitted applications under the Right to Information Act in order to ascertain the reason for initiating disciplinary action against her and sought for a copy of the enquiry report and the files including the note file in respect of the enquiry. Thereupon, she received the copy of Ext.P19 enquiry report, copies of the statements Exts.P20 to P22, etc. 7. In an inspection report Ext.P23, received on the application under Right to Information Act, it is stated that the petitioner had committed serious lapses and that on receiving reports regarding the same from Assistant Engineer, the matter was brought to the notice of the Chairman/District Collector and that the Chairman thereupon directed to terminate the services of the petitioner and the disciplinary action was initiated for implementation of that order. In this report dt.10.8.17 it was stated that a hearing was fixed in the matter on 16.8.2017. Pointing out this, the petitioner alleged that the entire disciplinary action was for 6 W.P(C) No.2267 of 2018-G implementing the decision of the District Collector (Chairman) to terminate her service. Therefore, the suspension as well as the disciplinary proceedings are in malafide exercise of power. It is also the contention of the petitioner that the disciplinary action is initiated at the instance of the 4[th] respondent - the Executive Secretary, who is arrayed in person. It is the further case that the punishment is highly disproportionate to the charges alleged against her. Pointing out that she, who had been working as Site Supervisor all along from 2007 onwards without giving room for any complaint, was subjected to disciplinary action for the first time in the year 2017 after the 4[th] respondent Executive Secretary took charge and it is at his instance the entire action is initiated in order to appoint another person in her place. 8. Respondents 1, 2 and 4 have filed a counter affidavit, denying the allegations and stating that the order of termination was issued on the basis of the findings in the enquiry conducted in complying with the principles of natural justice and the petitioner participated in it without any objection. According to them, the petitioner who joined as a trainee on 20.1.2007, was converted as Site Supervisor in 2010. Ext.P6 show cause notice was issued on account of her acts in violation of office discipline, showing disrespect to superior officers; reluctance to receive office tapals W.P(C) No.2267 of 2018-G 7 marked to her on which she had to act upon, etc. As her reply was not satisfactory, she was placed under suspension on 19.6.2017 and an enquiry officer was appointed. It is stated that the 5[th] respondent conducted an impartial enquiry affording sufficient opportunity to the petitioner. All the witnesses had given statements against the petitioner and the petitioner was heard and the statements were recorded as contained in Exts.R1(e) to (h). Enquiry officer submitted Ext.P19 report on 16.09.2017, in which it was found that the presence of the petitioner in the office would lower the morale of the Kendra and recommended termination of her services and accordingly her services were terminated as per Ext.P13 order on 18.09.17. It is stated that she had submitted Ext.R1(a) application for leave on 13.2.2017 to take up employment in LSGD. Without getting any orders from the respondents she left the office and joined the LSGD based on Ext.R1(b) order appointing her as First Grade Overseer in the LSGD. When she was relieved from there she signed the attendance on 21.4.2017, without getting permission from the respondents. Therefore, it is stated that she has scant regard to office discipline. According to the respondents, she was asked to take the tapal marked to her, since there was no clerk under the 1[st] respondent and allocation of work was ordered as per Ext.R1(d) order. It is stated that all Site Supervisors except the petitioner are willing to receive 8 W.P(C) No.2267 of 2018-G the tapals marked to them. It is stated that all the charges against her were found proved and that the retention of the petitioner would be a real threat to the smooth functioning of the respondent organisation and that the 1[st] respondent lost the faith and confidence and belief in her. Regarding the allegations against the 4[th] respondent it is stated that the petitioner had not raised any complaint against him except after termination of her service and that Ext.P15 complaint was given on an after thought. It is stated that a detailed enquiry was conducted by the senior finance officer on Ext.P15 complaint and it was found baseless. It is stated that the 4[th] respondent had been serving the State Government for more than 30 years. 9. The learned counsel for the petitioner relied on the judgments of the Apex Court in _**State of Uttaranchal & Ors. v. Kharak Singh**_ [2008 (8) SCC 236] and _**Managing Director, ECIL, Hyderabad v. B.Karunakar**_ [1993 (4) SCC 727] in support of his contention that the inquiry officer cannot have any jurisdiction to recommend any punishment and termination from service without furnishing a copy of the enquiry report and is illegal. 10. On the other hand, the learned counsel for the respondents argued that there are no service rules for the 1[st] respondent and that enquiry was conducted consistent with the principles of natural justice. Relying on 9 W.P(C) No.2267 of 2018-G the judgment in _**Indra Bhanu Gaur v. Committee, Management of M.M.Degree College & Ors.**_ [AIR 2004 SC 248], _**Lucknow K.Gramin Bank & Anr. v. Rajendra Singh**_ [AIR 2013 SC 3540], _**Mihir Kumar Hazara Choudhury v. Life Insurance Corpn. and Ors.**_ [AIR 2017 SC 4145] etc. it was argued that the petitioner has not substantiated any prejudice caused to her by the non supply of the enquiry report. The judgments of the Allahabad High Court and Delhi High Court in W.P.No.3687/2014 and W.P(c).No.2314/2012 respectively were also relied on in support of the contention that the employee cannot be allowed to continue once the employer lost faith and confidence in the employee. In such circumstances, it is also argued that the termination of service cannot be said to be one shocking to the conscience of the court, when it is a case where the employer has lost their faith. 11. Having heard the contentions on either side, I find that even before the conclusion of the enquiry, the District Collector, who is the Chairman of the Nirmithi Kendra, had ordered to terminate the services of the petitioner, as evident from Ext.P23 report. Therefore, the entire proceedings subsequent to the direction of the Chairman, referred to in Ext.P23 is a farce. 10 W.P(C) No.2267 of 2018-G Therefore, without going into the merits of the other contentions, I set aside the order Ext.P13 terminating the services of the petitioner and allow the respondents to conduct a denovo enquiry consistent with the principles of natural justice. The order Ext.P16 shall also stand set aside. The petitioner shall continue under suspension pending enquiry. The enquiry shall be completed within a period of 3 months. The writ petition is disposed of with the above directions. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_