O.P(KAT) No.2122 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 22ND DAY OF AUGUST 2012/31ST SRAVANA 1934** ## **OP(KAT).No. 2122 of 2012 (Z)** ## **---------------------------OA.136/2012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** **......** ## **PETITIONER(S):** **------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE LABOUR COMMISSIONER, HOUSING BOARD BUILDINGS, 4TH FLOOR, SANTHI NAGAR, THIRUVANANTHAPURAM.** ## **BY SR.GOVERNMENT PLEADER SRI.C.S.MANILAL** ## **RESPONDENT(S):** **---------------------------** **A.V GEETHA KUMARI, AGED 54 YEARS, W/O. MADHU, DEPUTY LABOUR COMMISSIONER AND SECRETARY, STATE ADVISORY CONTRACT LABOUR BOARD, BAKERY JUNCTION, THIRUVANANTHAPURAM RESIDING AT KRISHNAVILASAM, T.C 28/1452, SREEKANDESWARAM, THIRUVANANTHAPURAM - 23.** **BY ADVS. SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 31/07/2012, THE COURT ON 22/08/2012 DELIVERED THE FOLLOWING:** **Kss** ## **OP(KAT)NO.2122/2012 Z** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF O.A.136/2012 OF THE KAT, THIRUVANANTHAPURAM.** - **P2: STATEMENT FILED ON BEHALF OF R1 ON 16/02/2012.** - **P3: COUNTER AFFIDAVIT FILED BY 2ND RESPONDENT ON 2/04/2012.** - **P4: ORDER IN O.A.136/2012 OF THE KAT, THIRUVANANTHAPURAM.** - **P5: COPY OF THE LETTER DATED 11/06/2012 ADDRESSEDTO THE DEPUTY LABOUR COMMISSONER, KOLLAM.** - **P6 & P7:COPY OF THE LETTER DATED 25/06/2011 & 25/07/2011 TO THE REGISTRAR GENERAL OF THIS COURT AND FORM - 1.** - **P8: COPY OF THE SHOW CAUSE NOTICE DATED 20/10/2011.** - **P9: COPY OF THE EXPLANATION.** - **P10: COPY OF THE REPORT TO THE GOVERNMENT OF THE LABOUR COMMISSIONER DATED 20/12/2011.** - **P11: COPY OF THE SUSPENSION ORDER.** ## **RESPONDENT'S EXHIBITS:** - **R1(A): COPY OF THE ORDER DATED 3/08/2011 IN WPC.NO.21082/2011 OF THIS HON'BLE COURT.** - **R1(B): COPY OF THE ORDER DATED /11/2011 IN CONT.CASE © NO.886/2011 OF THIS HON'BLE COURT.** - **R1(C): COPY OF THE ORDER DATED 22/12/2011 IN CONT.CASE © NO.886/2011 OF THIS HON'BLE COURT.** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** **MANJULA CHELLUR (Ag.CJ) & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** O.P.(KAT) No.2122 of 2012 ---------------------------------------Dated this the 22[nd] day of August 2012 ## **J U D G M E N T** ## **SHAFFIQUE, J.** The respondents in O.A.No.136 of 2012 of the Kerala Administrative Tribunal, Thiruvananthapuram (KAT) are the petitioners herein. Respondent is the applicant before the KAT. The application was filed by the respondent herein challenging the validity of an order dated 19/01/2012 produced as Annexure A11 suspending her from service. The applicant before the KAT was promoted to the post of Deputy Labour Commissioner, Kollam by Annexure A1 order dated 02/04/2011. Since the applicant was undergoing treatment for infertility at Medical College Hospital, Thiruvananthapuram, she made a request to the Government for transfer to Thiruvananthapuram. She was transferred and posted at Thiruvananthapuram by order dated 23/4/2011 and she took charge on 25/4/2011. By this time, she had undergone Colonoscopy, a cyst was detected which was suspected to be cancerous and she was advised to remove the 2 O.P(KAT) No.2122/2012 cyst. 2. By an order dated 29/7/2011, the applicant was transferred as Deputy Labour Commissioner, Kannur and the next incumbent joined duty on 01/08/2011 in the absence of the applicant. The applicant challenged the order of transfer by filing a writ petition before the High Court as W.P.C.No.21082/2011 and by interim order dated 02/08/2011, there was a direction to retain her at Thiruvananthapuram. Even thereafter, she was not given posting and then she filed a contempt case before the High Court for non-compliance of the interim order. While the contempt proceedings were in progress, the 2[nd] respondent issued a show cause notice dated 20/10/2011 calling upon the applicant to show cause why disciplinary proceedings should not be taken against her. Three counts of allegations were made against her as extracted hereunder: (i) In the monthly statements sent to the Hon'ble High Court of Kerala for the months of May and June of the year 2011, she has shown that 11 cases and 3 cases respectively were disposed of. In fact, those cases were only taken up for final orders, after hearing. The act of O.P(KAT) No.2122/2012 3 filing wrong statement is a grave dereliction of duty from the part of the applicant. (ii) Three Workmen Compensation Cases, which were taken for orders by the applicant, were not returned to the office, after her transfer. When the Confidential Assistant of the office enquired about those files, her response to the same was improper. iii) 21 Minimum Wages Claims which were reserved for orders on various dates between 09.05.2011 and 08.07.2011, were not disposed of by her. 3. A reply was submitted by the applicant to the above show cause notice explaining the allegations against her. In the meantime, on 22/12/2011, the High Court passed Annexure A10 order in the contempt case criticizing the respondents for not implementing the interim order passed by this Court and there was a direction to the 2[nd] respondent to personally appear before this Court on 13/01/2012. It is the case of the applicant that, it is on account of the initiation of contempt proceedings against the 2[nd] respondent that he recommended to the Government to take disciplinary action against the applicant and pursuant to the same, Government passed Annexure A11 order dated 19/01/2012 O.P(KAT) No.2122/2012 4 suspending the applicant from service. It is the case of the applicant that the order of suspension initiated by the appellants herein is vitiated by mala fides and are in violation of her fundamental rights under Article 14 of the Constitution of India. 4. The respondents apparently contended that there was dereliction of duty on the part of the applicant and therefore once it is prima facie found that the applicant is responsible for the charges levelled against her, the order of suspension is valid and cannot be set aside by the Tribunal. 5. The Tribunal, on a consideration of the facts and circumstances of the case, considered the matter in detail especially in the light of filing of the writ petition against the order of transfer wherein there was an interim direction by this Court to permit the applicant to be retained at Thiruvananthapuram itself and the resultant contempt proceedings, found that the order of suspension is vitiated by mala fides. The Tribunal also referred to judgments of the Supreme Court in **State of Orissa v. Bimala Kumar Mohanty** [(1994) 4 SCC 126] and judgment of this Court in **Sreekumar v. Kerala Water Authority** [1996(1) KLT 209] and **Muhammed v. State of Kerala** [1997(2) KLT 394] for the position that O.P(KAT) No.2122/2012 5 suspension is not automatic whenever disciplinary proceedings pending are contemplated nor can be a process of administrative routine or an automatic order. Suspension can be ordered after the appointing authority or the disciplinary authority, considering the gravity of the misconduct sought to be inquired into or investigated as the nature of the evidence placed before the appointing authority and on application of mind by disciplinary authority. It is also held in the above judgments that suspension is warranted only when it is required in public interest and for that purpose, there has to be some material on record to arrive at such a conclusion. 6. The Tribunal, further held that from Annexure A10 order of the High Court, it is clear that the Labour Commissioner has filed a report dated 20/12/2011 before the Government containing wrong and misleading information. Apparently, the Labour Commissioner was directed to appear in person before the High Court in contempt proceedings on 13/01/2012. After elaborately considering the matter, the Tribunal came to a finding that the order of suspension clearly amounts to mala fides and for collateral purpose as contended by the applicant and therefore the impugned order was quashed. O.P(KAT) No.2122/2012 6 7. In regard to the contention of the respondents regarding the availability of the alternate remedy, the Tribunal came to a conclusion that it can entertain the application without insisting for invoking alternate remedy under the service rules in appropriate cases and since the alternative remedy is not available in the case and that the review provided under Rule 35 is not efficacious, the application was allowed. 8. The learned Government Pleader, while challenging the order of KAT, contended that very serious allegations have been raised against the applicant in the charge sheet and therefore the order of suspension pending an enquiry was absolutely necessary and in that view of the matter, the order passed by the Tribunal cannot be sustained. It is the case of the petitioners that when an Officer is entrusted with quasi judicial functions, it is all the more necessary that the said function has to be exercised in honest and straight forward manner and if wrong informations are given to the High Court by the said authority, it amounts to gross dereliction of duty and in that view of the matter, the seriousness of the misconduct was not properly considered by the Tribunal. It is further contended that the respondents had no mala fides in the matter and the said O.P(KAT) No.2122/2012 7 finding is wrong in so far as the order of suspension is passed in the usual course since it was prima facie found that the applicant was guilty of the charges levelled against her. 9. It is also contended that with reference to the charges, the applicant had admitted that she had sent wrong statement to the High Court in respect of the pending cases. According to the learned Government Pleader, in regard to the first charge when the applicant had shown that 11 cases of May 2011 and 3 cases of June 2011 as disposed, those cases were only taken up for final orders after hearing and in that view of the matter, the said dereliction of duty is a very serious issue which requires to be considered. The second charge is that three cases which were taken up for orders were not returned to the office after the petitioner's transfer and so far as the third case is concerned when 21 minimum wages claims were reserved for orders on various dates between 09/05/2011 and 08/07/2011, they were not disposed of. It is relevant to note the explanation given by the applicant that she was only following the practice that was adopted by her predecessor. 10. The respondent has filed an affidavit before this Court narrating the circumstances under which the order of O.P(KAT) No.2122/2012 8 suspension happened to be passed. She had also indicated that as far as she is concerned, it was a request transfer to Thiruvananthapuram and she joined duty on 25/4/2011 and she was transferred by order dated 29/7/2011. So she had the opportunity to work in the said department as Deputy Labour Commissioner only for a period of three months. She was on leave from 29/7/2011 to 01/08/2011. While so, one Mr.K.M.Sherif who was on deputation as Chairman of Cochin Port Trust Area Local Committee, Kerala Headlod Workers Welfare Fund Board was reverted back to the department and appointed in that place and he joined duty while the respondent was on leave. In the affidavit, respondent also has pointed out the practice that has been followed in that office with reference to the case details being sent to the High Court. According to her, she had only followed the procedure that was usually being done in the said office and she had no opportunity to take a different view in the matter. 11. When enquired, the learned Government Pleader does not have a case that the other Deputy Labour Commissioners were not following the same procedure. In fact, it was an admitted fact that the immediate predecessor of the applicant O.P(KAT) No.2122/2012 9 was following the same procedure; but no action is seen taken against him. It is now contended that the previous officer had already retired from service; but while he was in service, the department has not taken any action against him. 12. Though the learned Government Pleader tried to indicate that there was no mala fides in the action of the appellants in suspending the respondent from service pending enquiry on a perusal of the findings of the Tribunal, we also feel that there are clear mala fides in the matter. The sequence of events which led to the petitioner challenging the order of transfer and the High Court directing the petitioner to be reinstated at Thiruvananthapuram itself and for non compliance of the said order, the petitioner filing a contempt case wherein the High Court had criticized the action of the 2[nd] respondent and the manner in which the 2[nd] respondent responded to the said contempt proceedings, all will clearly indicate the fact that there is clear mala fides in issuing the report to the Government. 13. The Tribunal had considered each of the allegations on the basis of the grounds urged by the respondent and had, after verification of the file leading to Annexure A11, referred to the Labour Commissioner's letter dated 20/12/2011. In addition O.P(KAT) No.2122/2012 10 to the allegations of misconduct it is also indicated in the said communication that she has filed a case before the High Court against the transfer without bringing it to the notice of the Hon'ble High Court that Sri.K.M.Sherief has already joined duty and that since the High Court has passed an order to retain her as Deputy Labour Commissioner for two weeks, she also did not join duty. The Tribunal observed that it is with reference to the above letter that she was placed under suspension and the Government order indicating that she has committed serious dereliction of duty and there was indiscipline and misconduct unbecoming of a Government servant from her part. The Tribunal also observed that the charges levelled against the petitioner was quite unfair as the cases were pending for the last several years and the Deputy Labour Commissioner who worked for hardly three months cannot be blamed for such pendency of cases. The Tribunal had come to a finding that the view taken in this regard by the appellant is so absurd that no sensible person could ever accept it. 14. The Tribunal also found that the respondent was following the procedure practiced by her predecessor in office by submitting the reports to the High Court and it should not have O.P(KAT) No.2122/2012 11 been viewed as a deliberate attempt to mislead the High Court. 15. On a perusal of the judgment of the Tribunal, we are of the view that the Tribunal had considered the matter in great detail and had come to a conclusion which cannot be disturbed in the present proceedings. We do not think that a different view can be adopted in the matter. Under these circumstances, we do not think that the petitioners have made out any good ground for interference with the order passed by the Tribunal and in that view of the matter, we dismiss the above original petition. **(MANJULA CHELLUR, ACTING CHIEF JUSTICE)** ## **(A.M.SHAFFIQUE, JUDGE)** jsr O.P(KAT) No.2122/2012 12 O.P(KAT) No.2122/2012 13