JAYARAJAN R.C. v. THE DISTRICT COLLECTOR & CHAIRMAN, DISTRICT NIRMITHI KENDRA, KASARAGOD, AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946** **WP(C) NO. 12236 OF 2021** ## **PETITIONER:** **JAYARAJAN R.C. AGED 49 YEARS S/O.M.P.KUNHIRAMA PODUVAL, EXECUTIVE SECRETARY, DISTRICT NIRMITHI KENDRA, KASARAGOD, RESIDING AT 'RAJEEVAM', VELLACHAL SOUTH, KODAKKAD, KASARAGOD DISTRICT - 671 310.** **BY ADVS. M.SASINDRAN V.VENUGOPAL** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR & CHAIRMAN DISTRICT NIRMITHI KENDRA, COLLECTORATE, KASARAGOD - 671 121.** - **2 THE SUB COLLECTOR AND MEMBER SECRETARY DISTRICT NIRMITHI KENDRA, KASARAGOD - 671 531.** - **3 THE EXECUTIVE COMMITTEE OF NIRMITHI KENDRA KASARAGOD - 671 121, REPRESENTED BY ITS CHAIRMAN.** **BY SRI.BIJOY CHANDRAN, SR. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W.P.(C) No.12236 of 2021 = = = = = = = = = = = = = = = = = = Dated this the 29[th] day of May, 2024** ## **J U D G M E N T** Ext.P19 order of the 1[st] respondent, terminating the services of the petitioner as the Executive Secretary of the District Nirmithi Kendra, is under challenge in this writ petition. 2. As per Ext.P2 proceedings dated 07.07.2018, the petitioner was appointed as the Executive Secretary of the District Nirmithi Kendra, Kasaragod. The appointment was provisional for six months. Regularisation of appointment was to be based on a performance appraisal. After the expiry of six months, as required, the petitioner submitted Ext.P3 performance report dated 09.04.2019. Subsequently on 17.10.2019, the petitioner was issued with Ext.P4 notice raising various allegations and as to why disciplinary proceedings should not be initiated against him. The petitioner submitted Ext.P5 reply. This was followed by Ext.P6 W.P.(C) No.12236 of 2021 -: 2 :- order of suspension dated 03.01.2020. Thereafter the petitioner was served with Ext.P7 communication intimating the appointment of an Enquiry Officer. Pursuant to a notice issued by the Enquiry Officer, the petitioner submitted Ext.P8 reply. Thereafter the petitioner was served with Ext.P9 notice from the Enquiry Officer to appear before him on 28.07.2020. Thereafter on 07.10.2020, the petitioner was issued with Ext.P11 memo of charges. This was followed by Ext.P13 communication dated 13.11.2020, dismissing the petitioner from service. Such dismissal was based on the decision of the Executive Committee of the Nirmithi Kendra dated 04.02.2020. 3. Thereupon the petitioner challenged the order of termination before this Court in W.P.(C) No.26865/2020. This Court found that there is total violation of the principles of natural justice. It was noticed that an officer was appointed without serving any memo of W.P.(C) No.12236 of 2021 -: 3 :- charges. It was also noticed that the termination of the services of the petitioner was based on the decision of the executive committee dated 04.02.2020, which is prior to the issuance of memo of charges dated 07.10.2020. It was further noticed that the order of dismissal from service was without conducting any enquiry. As per judgment dated 17.03.2021, this Court quashed the memo of charges and also the order dismissing the petitioner from service. However, the right of the respondents to initiate fresh disciplinary proceedings in accordance with law was left open. 4. The judgment in W.P.(C) No.26865/2020 was dated 17.03.2021. This was followed by Ext.P15 notice dated 27.04.2021 by the first respondent, raising the very same allegations as were raised in the memo of charges. The petitioner was asked to submit his explanations as to why proceedings should not be initiated against the petitioner in accordance with the bye-laws. In the said ## W.P.(C) No.12236 of 2021 -: 4 :- notice, the subject mentioned was regarding the regularisation of service of the petitioner. The petitioner submitted Ext.P16 reply. This was followed by Ext.P17 notice requiring the petitioner to show cause why his services should not be terminated. It was also intimated that the executive committee has decided not to regularise the services of the petitioner and that the petitioner may offer his submissions if any with regard to the same. In response the petitioner submitted Ext.P18 reply. As per Ext.P19, the services of the petitioner was terminated. The same is under challenge in this writ petition. 5. I have heard the learned counsel for the petitioner and Sri.Bijoy Chandran, the learned Senior Government Pleader. I have also perused the counter affidavit filed by the first respondent. 6. Disciplinary proceedings were initiated against the petitioner on certain set of allegations. The W.P.(C) No.12236 of 2021 -: 5 :- proceedings were interfered with by this Court in W.P. (c) No.26865/2020 for violation of the principles of natural justice. The right of the respondents to initiate fresh disciplinary proceedings in accordance with law was left open. However, instead of initiating fresh disciplinary proceedings, the respondents chose to terminate the service of the petitioner by not regularising his service. The appointment of the petitioner under Ext.P2 was provisional for a period of six months. It was specified therein that regularisation will be based on performance appraisal. After the expiry of six months, as was required by the respondents, the petitioner submitted Ext.P3 performance report. It appears that there were no orders passed on his regularisation, and he continued in service. This was followed by the disciplinary proceedings referred to earlier. The present order of termination of the services of the petitioner without regularising, is on W.P.(C) No.12236 of 2021 -: 6 :- the very same set of allegations upon which the disciplinary proceedings was initiated. Even according to the respondents, grave irregularities are alleged against the petitioner. It is on the basis of such allegations that the respondents have taken a decision not to regularise the services of the petitioner. The respondents did not chose to initiate fresh disciplinary proceedings on the allegations inspite of the liberty granted by this Court in W.P.(C) No.26865/2020. But they chose to terminate the services of the petitioner by not regularizing his service. However, such decision not to regularise his service is again based on the very same set of allegations as was made in the earlier memo of charges. 7. In _**Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences 2015 (15) SCC 151**_ , the Apex Court held that there is a marked distinction between the concept of satisfactory completion of probation and punishing a W.P.(C) No.12236 of 2021 -: 7 :- probationer for any defined misconduct, misbehaviour or misdemeanor. It was held that, while deciding the issue of suitability of the probationer, the misconduct may be ignored and services terminated without casting any aspersion or stigma which may adversely affect his future prospects. But if such misconduct or misdemeanor constitutes the basis for the final decision of the authority against declaration of probation and dispensing with the service, albeit by a non-stigmatic order the court can lift the veil and declare that under the garb of termination simplicitor the employer has punished the employee for misconduct. A similar view was expressed by the Apex Court in _**Rajasthan High Court v. Ved Priya and Anr. 2020 (2) KLT 764**_ . The Apex Court held that, _“21. True it is that the form of an order is not crucial to determine whether it is simplicitor or punitive in nature. An order of termination of service though innocuously worded may, in the facts and circumstances of a peculiar case, also be aimed at punishing the official on probation and in that case it would_ W.P.(C) No.12236 of 2021 -: 8 :- _undoubtedly be an infraction of Art.311 of the Constitution. The court in the process of judicial review of such order can always lift the veil to find out as to whether or not the order was meant to visit the probationer with penal consequences. If the court finds that the real motive behind the order was to 'punish' the official, it may always strike down the same for want of reasonable opportunity of being heard.”_ In the case at hand, as was noticed earlier, it is on the very same set of allegations, which even the respondents allege to be grave, that the present order refusing to regularise the services of the petitioner, was issued. The disciplinary proceedings initiated against the petitioner was found to be vitiated and interfered with by this Court. Though liberty was granted to initiate fresh proceedings, without resorting to the same, on the very same set of allegations regularization was declined and services terminated. As held by the Apex Court, it essentially amounts to punishing the employee for an act of alleged misconduct W.P.(C) No.12236 of 2021 -: 9 :- under the garb of non-regularisation in service. Ext.P19 order is thus liable to be set aside. In the result, the writ petition is allowed. Ext.P19 order terminating the services of the petitioner from the post of Executive Secretary, Nirmithi Kendra, Kasaragod, is quashed. However this shall be without prejudice to the rights of the respondent to proceed against the petitioner appropriately, in accordance with law. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF WP(C) 12236/2021** ## **PETITIONER EXHIBITS** |**Exhibit P1**|**A TRUE COPY OF THE RELEVANT EXTRACT FROM THE**| |---|---| ||**MEMORANDUM OF ASSOCIATION OF DISTRICT NIRMTHI**| ||**KENDRA, KASARAGOD DISTRICT.**| |**Exhibit P2**|**A TRUE COPY OF THE PROCEEDINGS DATED**| ||**07/07/2018 OF THE CHAIRMAN, DISTRICT NIRMITHI**| ||**KENDRA AND DISTRICT COLLECTOR, KASARAGOD, THE**| ||**FIRST RESPONDENT.**| |**Exhibit P3**|**A TRUE COPY OF THE DETAILS SUBMITTED BY THE**| ||**PETITIONER BEFORE THE 2ND RESPONDENT DATED**| ||**09/04/2019.**| |**Exhibit P4**|**A TRUE COPY OF THE SHOW CAUSE NOTICE**| ||**NO.DCKSGD/2697/18/M5 DATED 17/10/2019 ISSUED**| ||**BY THE FIRST RESPONDENT TO THE PETITIONER.**| |**Exhibit P5**|**A TRUE COPY OF THE REPLY SUBMITTED BY THE**| ||**PETITIONER BEFORE THE FIRST RESPONDENT DATED**| ||**29/10/2019.**| |**Exhibit P6**|**A TRUE COPY OF THE ORDER OF SUSPENSION DATED**| ||**03/01/2020 VIDE NO.DCKSGD/2697/18/MS ISSUED**| ||**BY THE 1ST RESPONDENT TO THE PETITIONER.**| |**Exhibit P7**|**A TRUE COPY OF THE COMMUNICATION**| ||**NO.DCKSGD/2697/2018-M5**<br>**DATED**<br>**22/01/2020**| ||**ISSUED BY THE 1ST RESPONDENT APPOINTING THE**| ||**ENQUIRY OFFICER IN REGARD TO THE SUSPENSION.**| |**Exhibit P8**|**A TRUE COPY OF THE REPLY DATED 13/07/2020**| ||**SUBMITTED BY THE PETITIONER BEFORE THE**| ||**ENQUIRY OFFICER.**| |**Exhibit P9**|**A**<br>**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**NOTICE**| ||**NO.EE/GENERAL/ENQUIRY,2020 DATED 22/07/2020**| ||**ISSUED BY THE 3RD RESPONDENT TO THE**| ||**PETITIONER.**| |**Exhibit P10**|**A TRUE COPY OF THE JUDGMENT DATED 25/08/2020**| ||**IN WP(C) NO.17650 OF 2020.**| |**Exhibit P11**|**A TRUE COPY OF THE CHARGE MEMO**| ||**NO.DCKSGD/2697/18/M5(2) DATED 07/10/2020**| ||**ALONG WITH THE STATEMENT OF ALLEGATIONS.**| APPENDIX- **WP(C) 12236/2021** -2- |**Exhibit P12**|**A TRUE COPY OF THE PROCEEDINGS NO.B/7363/18**| |---|---| ||**OF THE MEETING OF THE EXECUTIVE COMMITTEE**| ||**DATED 04/02/2020.**| |**Exhibit P13**|**A TRUE COPY OF THE ORDER DCKSGD/2697/18/M5**| ||**DATED 13/11/2020 ISSUED BY THE FIRST**| ||**RESPONDENT DISTRICT COLLECTOR AND CHAIRMAN**| ||**NIRMITHI KENDRA.**| |**Exhibit P14**|**A TRUE COPY OF THE JUDGMENT DATED 17/03/2021**| ||**IN WP(C) NO.26865 OF 2020.**| |**Exhibit P15**|**A**<br>**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**NOTICE**| ||**NO.DCKSGD/2697/18/MB(1) DATED 27/04/2021**| ||**ISSUED BY THE FIRST RESPONDENT TO THE**| ||**PETITIONER.**| |**Exhibit P16**|**A TRUE COPY OF THE REPLY DATED 29/04/2021**| ||**SUBMITTED BY THE PETITIONER BEFORE THE FIRST**| ||**RESPONDENT.**| |**Exhibit P17**|**A**<br>**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**PROCEEDINGS**| ||**NO.DCKSGD/2697/18/M5 DATED 28/05/2021 ISSUED**| ||**BY THE FIRST RESPONDENT TO THE PETITIONER.**| |**Exhibit P18**|**A TRUE COPY OF THE REPLY DATED 01/06/2021**| ||**SUBMITTED BY THE PETITIONER TO THE FIRST**| ||**RESPONDENT.**| |**Exhibit P19**|**A TRUE COPY OF THE ORDER NO.DCKSGD/2697/18/M5**| ||**DATED 10/06/2021, ISSUED BY THE FIRST**| ||**RESPONDENT, TO THE PETITIONER.**| -----