R. Omana v. Secretary, Kuttichal Grama Panchayath, Mannoorkara Village, Nedumangad Taluk, and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **FRIDAY, THE 2ND DAY OF DECEMBER 2016/11TH AGRAHAYANA, 1938** ## **WP(C).No. 13894 of 2014 (J)** **-------------------------------------------** ## **PETITIONER(S) :** ## **-------------------------** **R.OMANA, AGED 51 YEARS, D/O. RAJAMMA, RESIDING AT KODUKKARA, CHITHRALAYALA HOUSE, KOTTOOR, MANNORKARA VILLAGE, NEDUMANGAD TALUK.** ## **BY ADVS. SRI.ABRAHAM MATHEW (VETTOOR) SRI.SRI.ANIL ABEY JOSE** ## **RESPONDENT(S) :** - **----------------------------** **1. THE SECRETARY, KUTTICHAL GRAMA PANCHAYATH, MANNOORKARA VILLAGE, NEDUMANGAD TALUK, PIN-695 541.** **2. KUTTICHAL GRAMA PANCHAYATH, MANNOORKARA VILLAGE, NEDUMANGAD TALUK, REPRESENTED BY ITS SECRETARY, PIN-695 541.** **3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **4. SRI. N. CHANDRASHEKHARAN NAIR, ADVOCATE, GKN TOWERS VANJIYOOR, THIRUVANANTHAPURAM, AS THE ENQUIRY OFFICER, PIN-695 035.(DELETED)** - **R4 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 21.11.2016 IN I.A.NO. 3475 OF 2015.** **5. SMT. BINDU, WORKING AS AAYA AT JAWAHAR SISU VIHAR KOTOOR MANNORKARA VILLAGE, NEDUMANGAD TALUK, PIN-695 541.** ## **R1 & R2 BY ADVS. SRI.P.G.PRAMOD SRI.N.KRISHNA PRASAD R3 BY GOVERNMENT PLEADER SMT. RAJI T.BHASKAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-11-2016, THE COURT ON 02-12-2016 DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 13894 of 2014 (J)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **P1 TRUE COPY OF THE COMMUNICATION WITH NO. B2-208/94 ISSUED BY THE 1ST RESPONDENT DATED 7-3-2000.** - **P2 TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER TO THE 1ST RESPONDENT DATED 9-3-2000.** - **P3 TRUE COPY OF THE LEAVE APPLICATION FILED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 1-3-2000.** - **P4 TRUE COPY OF THE LEAVE APPLICATION FILED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 9-3-2000.** - **P5 TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 3-7-2000.** - **P6 TRUE COPY OF THE REPLY FILED BY THE PETITIONER DATED 21-7-2000.** - **P7 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 19-8-2000.** - **P8 TRUE COPY OF THE COMMUNICATION INTIMATING THE RESOLUTION DATED 21-12-2002 OF THE PANCHAYATH TERMINATING HER SERVICE AS AN AAYA IN THE JAWAHAR SISU VIHAR DATED NIL.** - **P9 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT PASSED IN O.P NO. 2646/2001 DATED 30-5-2006.** - **P10 TRUE COPY OF THE ORDER IN C.M.P. NO. 13376 OF 2000 PASSED IN O.P NO. 8061/00 BY THIS HON'BLE COURT DATED 14-3-2000.** - **P11 TRUE COPY OF THE JUDGMENT PASSED IN C.C. NO. 465 OF 2000 BY THE JUDICIAL 1ST CLASS MAGISTRATE KATTAKKADA DATED 26-8-2004.** - **P12 TRUE COPY OF THE MEMO OF CHARGES ISSUED BY THE PANCHAYATH DATED 25-9-2006.** - **P13 TRUE COPY OF THE REPLY FURNISHED BY THE PETITIONER BEFORE THE ENQUIRY OFFICER DATED 5-2-2007.** - **P14 TRUE COPY OF THE WRITTEN REQUEST MADE BY THE PETITIONER TO THE ENQUIRY OFFICER DATED 11-5-2007.** - **P15 TRUE COPY OF THE REPORT SUBMITTED BY THE ENQUIRY OFFICER TO THE PANCHAYAT DATED 18-1-2008.** - **P16 TRUE COPY OF THE COMMUNICATION FROM THE PANCHAYATH FURNISHING A COPY OF ITS DECISION DATED 27-5-2008.** ## **WP(C).No. 13894 of 2014 (J)** ## **-----------------------------------------** - **P16(A) TRUE COPY OF THE RESOLUTION NO. 5 OF THE PANCHAYATH DATED 28-4-2008.** - **P17 TRUE COPY OF THE REPLY FURNISHED BY THE PETITIONER TO EXT. P16 NOTICE DATED 27-6-2008.** - **P18 TRUE COPY OF THE SUBMISSION MADE BY THE PETITIONER FOR PAYMENT OF ARREARS OF SUBSISTENCE ALLOWANCE DATED 16-7-2007.** - **P19 TRUE COPY OF THE SUBMISSION MADE BY THE PETITIONER FOR PAYMENT OF ARREARS OF THE SUBSISTENCE ALLOWANCE 5-8-2008.** - **P20 TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER FOR PAYMENT OF ARREARS OF SUBSISTENCE ALLOWANCE BY REGISTERED POST AD DATED 9-9-2008.** - **P21 TRUE COPY OF THE REGISTERED LAWYER NOTICE ISSUED BY ADVOCATE C. MADUSOODANAN NAIR TO THE 1ST RESPONDENT DATED 30-9-2008.** - **P22 TRUE COPY OF THE JUDGMENT OF HIS HON'BLE IN W.P(C).NO. 5719/2009 DATED 4-3-2013.** - **P23 TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER TO THE RESPONDENTS 1 AND 2 REQUESTING TO DISBURSE THE ARREARS OF THE SALARY DATED 15-11-2013.** - **P24 TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER BEFORE THE SECRETARY OF THE PANCHAYATH.** - **P25 TRUE COPY OF THE ORDER OF TERMINATION ISSUED BY THE PANCHAYATH AS ORDER NO. A1-136/2008 DATED 1-1-2014.** ## **RESPONDENT(S)' EXHIBITS :** **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **ANU SIVARAMAN, J.** = = = = = = = = = = = = = = = = = = = = = = = = = = **W.P.(C).No.13894 of 2014** = = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 2[nd] day of December, 2016 ## JUDGMENT ## 1. The prayers in this writ petition are as follows:- - i. Issue a writ of certiorari or other appropriate writs, orders or directions quashing Ext.P15 and P25 and the Panchayat resolution referred to in Ext.P25. - ii. Issue a writ of mandamus or other appropriate writs, orders or directions commanding the respondents 1 and 2 to re-instate the petitioner into service as 'aaya ' in the Jawahar Sisu Vihar, Kottor conducted by them and to pay the entire backwages due to the petitioner ever since the date of her suspension. - iii. Issue a writ of mandamus or other appropriate writs, orders of directions commanding the 2[nd] respondent to pay the entire arrears of salary and subsistence allowance to the petitioner together with interest thereon for the belated payment. - iv. To grant such other reliefs which the petitioner may seek from time to time and this Hon'ble Court may deem fit to be granted in the circumstances of the case.” 2.The petitioner was appointed as 'Aaya' in the Jawahar Sisu Bhavan conducted by the 2[nd] respondent Grama Panchayat from 1993. Alleging dereliction of duty, Exhibit P1 notice was issued to her on 7.03.2000. Though the petitioner submitted her reply, she was placed under suspension by Exhibit P5 dated 03.07.2000 and she was dismissed from service by Exhibit P8 order dated 21.12.2002. The petitioner had challenged Exhibit P8 order before this court by filing O.P.No.2646 of 2001. By judgment dated 30.05.2006, the W.P.(C).No.13894/14 2 order of termination was quashed and the Panchayat was directed to take appropriate action in the disciplinary proceedings initiated against her in accordance with law. The subsistence allowance was also directed to be paid. Thereafter, a practicing Advocate was appointed by respondents 1 and 2 as the Enquiry Officer and rejecting the petitioner's request to be represented by an Advocate, the enquiry was completed holding her guilty. Thereafter, on the basis on the said enquiry report, the petitioner was put on notice of the decision to terminate her from service and by Exhibit P25, her services were terminated. The said proceedings are under challenge in this writ petition. - 3.Heard the learned counsel for the petitioner and the learned standing counsel for the respondents 1 and 2 and learned counsel appearing for the 3[rd] respondent. - 4.The main ground of challenge raised by the petitioner against the imposition of penalty of dismissal is with regard to the W.P.(C).No.13894/14 3 refusal on the part of the Enquiry Officer to permit her to be represented by the Advocate in the enquiry. Relying on a decision of the Apex Court in **Professor Ramesh Chandra v. University of Delhi and others** [(2015) 5 SCC 549], it is contended that where the Enquiry Officer is a legally trained person, the delinquent employee shall be entitled to assistance of a legal practitioner in the enquiry. The learned counsel points out that Exhibit P15 enquiry report would clearly show that the petitioner had made a request that she should be permitted to be represented by an Advocate, which had been turned down on 11.05.2007. The petitioner alleges that a property dispute between the petitioner's husband and the Panchayat was the reason behind the animosity towards her and relies on Exhibits P10 and P11 to show the existence of the said dispute. 5.It is contended by the learned standing counsel appearing for the Panchayat that all the contentions of the petitioner had been considered in the enquiry. It is further stated that the W.P.(C).No.13894/14 4 petitioner's appointment was only on a temporary basis, and that the allegation against the petitioner was that she had remained unauthorisedly absent without entrusting the key of Anganvadi to anybody, which showed the complete lack of responsibility on her part, and that the misconduct had been clearly proved against her in the disciplinary proceedings conducted. It is contended that the entire proceedings in the enquiry were conducted in accordance with rules, and the factual findings in the enquiry are not open to challenge under Article 226 of the Constitution of India before this Court. It is also alleged that none of the persons against whom mala fide are alleged are made parties to the writ petition, and therefore, the claims of the petitioner on those grounds are also not sustainable. - 6.I have considered the contentions raised on either side at considerable length. The points on which proceedings are challenged by the petitioner relate to mala fides alleged against officials of the Panchayat as also the contention that W.P.(C).No.13894/14 5 the enquiry was vitiated, since the petitioner was not permitted to be represented by a lawyer in the said proceedings. Though various allegations are raised against the officials of the Panchayat, only the Panchayat and the Secretary are made parties to the writ petition. Moreover, apart from showing that a property dispute had been in existence, there is no material to hold that initiation of disciplinary proceedings against the petitioner were the result of the said dispute. It is not the petitioner's case that the procedure of the enquiry and passing of the orders of termination were vitiated by any irregularities. The only contention is that the petitioner was not permitted to be represented by a counsel. I notice from the materials on record that the allegation against the petitioner was one of unauthorised absence without entrusting the key of the Anganvadi to anybody, causing serious inconvenience to the children attending the Anganvadi, as well as their families. The decision of the Hon'ble Supreme Court in **Professor Ramesh Chandra's** case (supra) was in respect of the enquiry W.P.(C).No.13894/14 6 by a retired judge of the High Court as the Enquiry Officer. The employee in that case was a Professor in a University. The presenting officer was also a legally trained person. It was in those circumstance that the Apex Court held that the delinquent employee could also be entitled to be represented by a legally trained person. In the instant case, the allegation raised was only with regard to the unauthorised absence, and failure to entrust the keys with any responsible person. No complicated questions were raised for consideration in the enquiry. There is no allegation that there was a presenting officer who was a legally trained person. Further, setting aside of the enquiry which was initiated on the basis of misconduct committed in the year 2000, according to me, would not be in the interest of justice. - 7.The petitioner has not contended that any serious prejudice had been caused to her by non-representation by a legally trained person. The Apex Court has in the decisions reported in **Haryana Financial Corporation v. Kailash Chandra Ahuja** [(2008)9 SCC 31] and **Burdwan Central Co-operative** W.P.(C).No.13894/14 7 **Bank Ltd. v. Asim Chatterjee** [(2012)2 SCC 641] held that in the absence of any prejudice caused to the delinquent employee by the violation of any procedure, the disciplinary proceedings would not be liable to be set aside, merely due to such procedural irregularity. In the case at hand, there is no contention that any prejudice has been caused to the petitioner due to the dismissal of her request for being represented by an Advocate. In view of the nature of allegations raised and proved against the petitioner, I am of the opinion that her representation by a legally trained person would not have made any difference in the outcome of the enquiry. Since the petitioner has also failed to substantiate her allegations of mala fide as against the officials of the Panchayat, I am of the opinion that the order of termination is not liable to be interfered with. In the above view of the matter, the challenge against Exhibits P15 and P25 orders is repelled. It is made clear that any amounts due to the petitioner, as subsistence allowance till the date of Exhibit P25 order of dismissal and remaining unpaid shall be calculated W.P.(C).No.13894/14 8 and paid to her within a period of two months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. sd/- **Anu Sivaraman, Judge** sj