Jeena George v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 7TH DAY OF MARCH 2018 / 16TH PHALGUNA, 1939** **WP(C).No. 2372 of 2018** ## **PETITIONER:** **JEENA GEORGE, W/O. SATHYAN, AGED 49 YEARS, NO.F 310, KSEB QUARTERS(KUNNUMPURATHU), IDUKKI COLONY POST, IDUKKI DISTRICT PIN-685602** **BY ADVS.SRI.P.K.RAVISANKAR SRI.M.K.THANKAPPAN** ## **RESPONDENT(S):** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEATLH, THIRUVANANTHAPURAM PIN-695001** **2. DISTRICT COLLECTOR, IDUKKI-685602** **3. SUPERINTENDENT GOVERNMENT MEDICAL COLLEGE HOSPITAL (DISTRICT HOSPITAL), IDUKKI, PIN-685602** **4. HOSPITAL MANAGEMENT COMMITTEE GOVERNMENT MEDICAL COLLEGE HOSPITAL, REPRESENTED BY ITS SECRETARY, (SUPERINTENDENT, GOVERNMENT MEDICAL COLLEGE HOSPITAL IDUKKI-685602** **R1 TO R3 BY SENIOR GOVERNMENT PLEADER SRI. RON BASTIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PBS** **WP(C).No. 2372 of 2018 (V)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1: TRUE COPY OF THE ORDER NO.B214/04/DHI DATED 19.3.2004 ISSUED BY THE 4TH RESPONDENT EXHIBIT P2: TRUE COPY OF THE INTERIM ORDER DATED 11.1.2012 IN WPC NO.31840 OF 2011 OF THIS HONOURABLE COURT EXHIBIT P3; TRUE COPY OF THE JUDGMENT DATED 24.10.2017 IN WPC NO.31840 OF 2011 OF THIS HONOURABLE COURT EXHIBIT P4: TRUE COPY OF THE COMPLAINT DATED 16.11.2017 SUBMITTED BY THE PETITIONER EXHIBIT P5: TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE SUB INSPECTOR OF POLICE DATED 16.11.2017 EXHIBIT P6: TRUE COPY OF THE ORDER NO.C1-6345/2017/SUPERINTENDENT/DISTRICT HOSPITAL, IDUKKI DATED 11.11.2017 ISSUED BY THE 3RD RESPONDENT EXHIBIT P7: TRUE COPY OF THE LETTER NO.C1-6345/2017 DATED 22.11.2017 ISSUED BY THE 3RD RESPONDENT EXHIBIT P8: TRUE COPY OF THE ORDER NO.C1-6345 DATED 24.11.2017 ISSUED BY THE 3RD RESPONDENT EXHIBIT P9: TRUE COPY OF THE ENVELOPE THAT CONTAINED EXHIBIT P8 EXHIBIT P10; TRUE COPY OF THE EXPLANATION DATED 6.12.2017 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT EXHIBIT P11: TRUE COPY OF THE ORDER NO.C1-6345/2017 SUPERINTENDENT/DISTRICT HOSPITAL, IDUKKI DATED 16.1.2018 ISSUED BY THE 3RD RESPONDENT** ## **RESPONDENT'S EXHIBITS** **EXHIBIT R3(A) A TRUE COPY OF THE NEWS PAPER CUTTING DATED 12.11.2017. EXHIBIT R3(B) A TRUE COPY OF THE ORDER OF TERMINATION SENT THROUGH REGISTERED POST WITH ACHNOWLEDGMENT ENDORSEMENT BY POSTAL AUTHORITIES ON THE REGISTERED LETTER AS “UNCLAIMED” ON 30.01.2018. EXHIBIT R3(C) A TRUE COPY OF THE LETTER OF ACKNOWLEDGMENT DATED 02.02.2018 OF THE VILLAGE OFFICER, IDUKKI.** **/TRUE COPY/** **PA TO JUDGE** **PBS 13/3/2018** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.2372 of 2018-V ------------------------------------------- _Dated this the 7[th] day of March, 2018_ ## _**JUDGMENT**_ The petitioner, who has been working as a Clerk in the 4[th] respondent Hospital Management Committee under the Government Medical College Hospital, is aggrieved by Ext.P6 order placing her under suspension and Ext.P11 order by which her services were terminated without conducting any enquiry. 2. The petitioner has been working under the 4[th] respondent as a Clerk, on the basis of her appointment as per Ext.P1 since 19.03.2004. The petitioner points out that she has been continuing since then without interruption. She also points out that certain proceedings were initiated against her to terminate her services in the year 2011 when she approached this Court in W.P(c).No.31840/2011 and she continued in service on the basis of an interim order passed on 11.1.2012 and the said writ petition was 2 W.P(C) No.2372 of 2018-V disposed of by Ext.P3 judgment dated 24.10.2017 in which it was directed that the petitioner shall not be replaced by another person appointed on daily wages while directing to consider her request for regularisation. 3. According to the petitioner the incident based on which she was suspended is the following, as stated in paragraph 4 of the writ petition: On 25.10.2017, while petitioner was issuing Out patient (OP) tickets, the Superintendent cum Chairman of the Hospital Management Committee along with the duty doctor came to the counter by 10 A.M, discussed with petitioner and other staff of the hospital regarding the manner of issuing OP tickets and issued certain directions; several persons were waiting in the queue at that time; when petitioner started issuing OP tickets after discussion, a person was found video recording the petitioner in his mobile phone; he did not stop recording despite her objection when she reported it to duty doctor. When the duty doctor came that person said that he did not record anything. Then she proceeded with her work. The video claippings were circulated in the social media. 4. Following the circulation of videoclippings, the 3[rd] respondent issued Ext P6 order on 11.11.2017 placing the petitioner under suspension stating that complaints were received alleging that she refused to issue OP 3 W.P(C) No.2372 of 2018-V tickets to the patients waiting in the queue and misbehaved with them and the allegations were found to be true in the preliminary inquiry. It was alleged that the indiscipline of the petitioner caused difficulties to the patients and hindrance to the smooth functioning of the hospital and the incident which got circulated in social media through video clippings brought disrepute to the hospital and the health department. Petitioner submits that she preferred Ext.P4 complaint before the Police on 16.11.2017. 5. The petitioner submits that as per Ext.P7 letter dt.22.11.2017 the Superintendent of the Hospital informed her that she should appear before the District Collector-the Chairman of the HMC for a hearing on 27.11.2017. She appeared before the District Collector when her statement was recorded. Petitioner submits that she received Ext.P8 memo of charge dated 24.11.2017 of the 3[rd] respondent, on 30.11.2017. In Ext.P8 it was alleged that petitioner stopped the issuance of OP tickets for half an hour and by not issuing tickets to the patients waiting in queue even after the former RMO directed her to issue the tickets misbehaved with them and violated the human rights of the patients; video clippings circulated in the media shows the arrogant and indisciplined behaviour of the petitioner which has also brought disrepute to the Hospital and the health department. 4 W.P(C) No.2372 of 2018-V The petitioner was asked to show cause if any before 11.12.2017, as to why she should not be removed from the service. According to the petitioner Ext P8 memo of charge was dispatched only on 29.11.2017 and was served on her only on 30.11.2017. She submitted Ext.P10 explanation on 6.12.2017. Thereafter, as per Ext.P11 order the 3[rd] respondent terminated the services of the petitioner saying that petitioner committed serious misconduct. It was stated that the as soon as the incident was reported and circulated in the social media, the 3[rd] respondent had conducted an inquiry and submitted the report before the District Medical Officer, finding the default on the part of petitioner, based on which she was placed under suspension; the District Collector who is the Chairman of the HDC, had heard the petitioner on 27.11.17 and thereafter he had sought explanation from other employees including the Superintendent of the hospital on the very same day at 3.30 p.m; the District Collector/Chairman found that petitioner committed unpardonable misconduct. 6. The contention of the petitioner is that the termination of her service in Ext.P11 order dt.16.1.2018 is arbitrary, stigmatic and such termination should not have been ordered without conducting an enquiry. 7. The learned counsel for the petitioner relies on the judgment of 5 W.P(C) No.2372 of 2018-V this Court in **Mohanan V. v. Kerala State Road Transport Corporation, Tvm & Ors.** [2015 (3) KHC 426] in support of the contention that even in a case where the employee is a temporary hand, termination cannot be ordered on the ground of misconduct except after conducting an enquiry. 8. The 3[rd] respondent has filed a counter affidavit pointing out the incident which occurred on 25.10.2017. According to him, the Nursing Superintendent and the Public Relations Officer had come to the O.P counter and discussed about the steps to be taken to avoid the crowd in O.P counter and after they left the counter, the petitioner refused to issue O.P tickets to the patients, even though she did not have any role in the discussion. It is stated that one of the patients in the queue had questioned the same when the petitioner resorted to misbehavior unbecoming of a responsible hospital employee and began to threaten and insult the patients and left the O.P counter. It is stated that even after a senior Doctor, who was the former RMO of the hospital directed the petitioner to issue O.P tickets, she did not issue the same. In the meanwhile, all these incidents were videographed and it was widely circulated in social media and it had also appeared in local daily also as seen in Ext.R3(a). It is stated that the petitioner filed a complaint before the Police Station instead of filing a 6 W.P(C) No.2372 of 2018-V complaint before the Superintendent of the Hospital and in the complaint she did not state anything regarding her misbehavior towards patients. The incident brought disrepute to the hospital as well as the Health Department as a whole. The matter was brought to the notice of the Minister for Health, the office of the Minister for Health reported the same to the Director of Health Service, which in turn brought the same to the notice of the DMO and the petitioner was placed under suspension on direction from the D.M.O. It is stated that the District Collector had in his capacity as Chairman of HMC, visited the premises of hospital on 13.11.2017 and conducted a hearing in his Chamber on 27.11.2017 after issuing Ext.P7 notice and ordered to terminate the services of the petitioner, after hearing the petitioner as well as the other employees of the hospital. It is their case that the order of termination was issued after complying with the principles of natural justice. 9. I have considered the contentions on either side. 10. It is seen that the petitioner has been working in the hospital as a Clerk from 19.03.2004 onwards. Serious allegations are raised against her based on which she was placed under suspension which culminated in Ext.P11 order of termination. Even though a memo of charge was issued, it 7 W.P(C) No.2372 of 2018-V is seen that services of the petitioner has been terminated on the basis of the direction of the District Collector, who is the Chairman of HDC. Though the petitioner had personally heard the petitioner, the direction to terminate her services were issued after the employees of the hospital were heard behind his back of the petitioner and without conducting any inquiry consistent with the principles of natural justice. 11. This court has in the judgment in Arun kumar V Information Kerala Mission: 2015(5)KHC 549, held that termination of services without conducting enquiry is liable to be set aside, if it is as allegations of misconduct, even when there was admission by the employee who was engaged on contract basis. In the judgment in Mohanan V KSRTC: 2015(3) KHC 426, this court, relying on the judgment of the apex court in **Jagdish Mitter v. Union of India** (AIR 1964 SC 449) set aside the removal of an empanelled conductor who was on temporary appointment, as it was found that the same was ordered on allegations of misdemeanor, without conducting enquiry. In my judgment dated 28.02.2018 in W.P.(C) 10746 of 2017, I have set aside the order of termination issued in the case of a person employed by a Hospital Development committee without conducting any inquiry allowing to conduct inquiry. Even if the employees are appointed only on temporary 8 W.P(C) No.2372 of 2018-V basis, their services are not liable to be terminated on allegations of misconduct except after the allegations are found proved in a duly conducted enquiry, in which the employee shall be given fulfledged opportunity to defend their case. In the above circumstances, I set aside Ext.P11 order. The respondent shall be free to conduct an enquiry and take appropriate action in accordance with law. At any rate, enquiry shall be completed within a period of two months from the date of receipt of a copy of the judgment. The writ petition is disposed of accordingly. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_