K. T. Santhosh Kumar v. Kerala Tourism Development Corporation Hotels & Resorts Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942** ## **WP(C).No.7481 OF 2011(I)** ## **PETITIONER:** ## **K.T.SANTHOSH KUMAR** **KERALA TOURISM DEVELOPMENT CORPORATION, HOTELS & RESORTS LTD., RESIDING AT, V.P.V/1565, MUKKOLA JUNCTION,, NETTAYAM P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.R.GOPAN SRI.M.SREEKUMAR** ## **RESPONDENTS:** **1 KERALA TOURISM DEVELOPMENT CORPORATION HOTELS & RESORTS LTD., REPRESENTED BY ITS, MANAGING DIRECTOR, CORPORATE OFFICE,, MASCOT SQUARE, THIRUVANANTHAPURAM.** **2 MANAGING DIRECTOR KERALA TOURISM DEVELOPMENT CORPORATION HOTELS & RESORTS LTD.,, CORPORATE OFFICE, MACOT SQUARE,, THIRUVANANTHAPURAM.** **R1 BY ADV. SMT.CHINCY GOPAKUMAR R1 BY ADV. SRI.B.GOPAKUMAR** ## **SRI. P.A.AHAMED(SC)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.7481 OF 2011 2** ## **JUDGMENT** The petitioner, who is stated to have been working as a Manager Grade - II, in the services of the “Kerala Tourism Development Corporation Hotels & Resorts Ltd”.(KTDC for short), has approached this Court impugning Exts.P1 and P3 Memos of Charges issued against him in the years 2003 and 2004, wherein it is alleged that certain misconduct had been detected from his side. 2. The petitioner says that even though an enquiry was conducted thereafter, culminating in Ext.P5(a) report - which was forwarded to him through Ext.P5 letter dated 12.04.2004 - no action was taken subsequent to it, though he had replied to the same through Ext.P6. The petitioner says that he was, therefore, under the _bonafide_ impression that all action pursuant to the enquiry had been dropped, but that to his surprise, he was served with Ext.P7 notice, dated 28.02.2011, more than seven years later, asking him to **WP(C).No.7481 OF 2011 3** show cause why the proposed punishment of “reduction to a lower post”, be not imposed against him. 3. The petitioner says that Ext.P7 is illegal and that continuation of the disciplinary proceedings against him is without sanction in law, because of the inordinate delay which has been caused after the enquiry against him had been completed. The petitioner, in substantiation of his plea, relies on three judgments of the Hon'ble Supreme Court in _**State of A.P. v.**_ _**N.Radhakrishnan** [1998(4)SCC154],_ _**P.V.Mahadevan**_ _**v. M.D., T.N.Housing Board** [2005(6) SCC 636]_ and _**Union of India & Others v. J.Ahamed** [AIR_ _1979 SC 1022]_ and contends that the large unexplained and inordinate delay in completing the enquiry proceedings, particularly after the enquiry report had been settled, makes the entire proceedings vitiated and hence liable to be set aside by this Court. **WP(C).No.7481 OF 2011 4** 4. I notice that a counter affidavit has been filed on behalf of the 1[st] respondent, wherein, the delay between Exts.P5 and P7 has been conceded; but sought to be explained by saying that, in the meanwhile, Ext.R1(a) memo had been issued to the petitioner and that there was various other complaints made against him from other sources. However, the counter affidavit concedes that no action had been taken after Ext.P5(a) enquiry report until Ext.P7 show cause memo had been issued to the petitioner and as I have said above, the delay of more than seven years is thus unequivocally admitted. 5. That said, when one looks through Ext.R1(a), it is clear that the allegations therein had no bearing to those contained in Exts.P1 or P3 charge memos and appear to be completely new ones, perhaps based on the inputs received subsequently. Therefore, the assertion of the respondents that the proceedings pursuant to Ext.P5(a) enquiry **WP(C).No.7481 OF 2011 5** report had been delayed solely on account of Ext.R1(a) and other complaints received against the petitioner cannot find my favour. This is more so because, pertinently, even though there has been no interim orders in this case granted in favour of the petitioner, no punishment appears to have been imposed against him and that action pursuant to Ext.P7 has thus remained without conclusion. 6. In the afore circumstances, being guided by the judgments of the Hon'ble Supreme Court cited by the petitioner, particularly _**N.Radhakrishnan (Supra)**_ , I am of the firm view that the proceedings pursuant to Exts.P1 and P3, cannot be now allowed to continue against him at this distance of time. The observations of the Hon'ble Supreme Court, in _**N.Radhakrishnan (Supra),**_ which is available in Paragraph 19 thereof and which is extracted infra would certainly justify the course that I have adopted above: ## **WP(C).No.7481 OF 2011 6** “19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.” In the conspectus of the above, I order that all action pursuant to Exts.P1,P3 and P7 **WP(C).No.7481 OF 2011 7** shall cease against the petitioner; though the respondents are at liberty to initiate and conclude the action based on any other complaint that may be pending against him, in terms of law, following due procedure and after affording him necessary opportunity of being heard as per the extant Rules and Regulations. ## **TO BE SPOKEN TO ON 15.02.2021** This matter has been listed today 'To be spoken to' at the request of the learned Standing Counsel for the Kerala Tourism Development Corporation (KTDC for short), who submitted that the delay in the enquiry was, in fact, caused by the petitioner and not on account of any reason that can be attributed to his client. He submitted that this has been clearly stated in paragraphs 8 and 9 of the counter affidavit filed on behalf of the KTDC and therefore, prayed that the judgment of this Court, dictated on 25.01.2021, be modified to that extent. **WP(C).No.7481 OF 2011 8** 2. Even though I have heard the learned Standing Counsel for the KTDC as afore, when I examine the averments in the counter affidavit, particularly those in paragraphs 8 and 9 thereof, it is evident that the KTDC only says that the petitioner had been ' _making innumerable representations to the Government of Kerala and other authorities_ _and he was causing undue delay in completing_ _the proceedings against him_ '. I fail to understand how, merely because the petitioner had been representing to the Government or to any other Authorities, the KTDC should have waited, not completing the disciplinary proceedings against him and that too for an inordinate period of more than seven years. 3. I cannot, therefore, find favour with these submissions but take cognisance of the submissions of the learned Standing Counsel that there is also a complaint against the petitioner that he had secured his employment without acquiring the minimum qualifications. ## **WP(C).No.7481 OF 2011 9** I must certainly clarify that this aspect has not been touched upon by me at all and that even going by the judgment, I had let all other issues open to be pursued by the KTDC appropriately, if they are so interested, after following due procedure. 4. It is needless to say, therefore, that my judgment does not, in any manner, fetter the rights of the KTDC in proceeding against the petitioner for this or any other charge, which is unrelated to the allegations and issues in this Writ Petition. It is so clarified and I, therefore, do not deem it necessary to modify the judgment in any manner. ## **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** **MC/20.02.2021** **WP(C).No.7481 OF 2011 10** ## **APPENDIX** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF MEMO NO.KTDC/PA/1/92/2003 DATED 25.4.2003. EXHIBIT P2 TRUE COPY OF THE REPLY LETTER FROM THE PETITIONER DATED 11.6.2003 TO THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE MEMO OF CHARGE NO.KTDC/PA/1/92/04 DATED 13.1.2004. EXHIBIT P4 TRUE COPY OF THE REPLY LETTER FROM THE PETITIONER DATED 15.1.2004 TO THE 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF THE LETTER NO.KTDC/PA1/92/04 DATED 12.4.2004. EXHIBIT P5(A) TRUE COPY OF THE ENQUIRY REPORT DATED NIL. EXHIBIT P6 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 30.4.2004. EXHIBIT P7 TRUE COPY OF THE SHOW CAUSE NOTICE NO.KTDC/PAI/92/2011 DATED 28.2.2011. EXHIBIT P8 TRUE COPY OF REPLY LETTER FROM THE PETITIONER DATED 11.3.2011 TO THE 2ND RESPONDENT. EXHIBIT P9 TRUE COPY OF THE SHOW CAUSE NOTICE NO.KTDC/PAI/92/2011 DATED 12.5.2011. EXHIBIT P10 TRUE COPY OF REPRESENTATION SUBMITTED BY PETITIONER BEFORE THE 2ND RESPONDENT DATED 27.5.2014. EXHIBIT P11 TRUE COPY OF THE LETTER NO.KTDC/PAI/PP/2013 DATED 20.4.2013 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1(A) TRUE COPY OF MEMO NO.KTDC/PA(3)/42/09 DATED 18.04.2009. EXHIBIT R1(B) TRUE COPY OF MEMO NO.KTDC/ACTS/MAR/2002-03 DATED 29.5.03.** **WP(C).No.7481 OF 2011 11** |**EXHIBIT R1(C)**|**TRUE COPY OF LETTER**| |---|---| ||**NO.KTDC/ACTS/S.DEBTORS/2003-04 DATED**| ||**4.12.03.**| |**EXHIBIT R1(D)**|**TRUE COPY OF MEMO NO.KTDC/PA(1)/S2/2000**| ||**DATED 18.7.2000.**| |**EXHIBIT R1(E)**|**TRUE COPY OF THE EXPLANATION OF THE**| ||**PETITIONER TO R1(A) DATED 21.5.2009.**| |**EXHIBIT R1(F)**|**TRUE COPY OF THE REPRESENTATION SUBMITTED**| ||**BY THE PETITIONER TO THE HONOURABLE**| ||**MINISTER OF TOURISM DATED 21.5.2009.**|