Renji S. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **WEDNESDAY, THE 2[ND] DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944** ## **WP(C) NO. 4041 OF 2019** ## **PETITIONER:** RENJI S., AGED 38 YEARS D/O. SAROJINI AMMA V., RESIDING AT RENJI VILASAM, K.T. KUNNU P.O., THENGINCODE WARD, KALLARA GRAMA PANCHAYATH, THIRUVANANTHAPURAM DISTRICT - 695608, FORMERLY TEACHER, SHISHU VIHAR, KALLAR GRAMA PANCHAYATH (NOW STANDS TERMINATED FROM THE SERVICE OF THE KALLARA GRAMA PANCHAYATH). BY ADVS. RAJESH. K.RAJU SRI.P.MURALEEDHARAN (THIRUVANANTHAPURAM) ## **RESPONDENTS:** |1|STATE OF KERALA,| |---|---| ||REPRESENTED BY THE GOVERNMENT SECRETARY, GOVERNMENT| ||SECRETARIAT, THIRUVANANTHAPURAM-695001.| |2|DIRECTOR OF PANCHAYATHS,| ||DIRECTORATE OF PANCHAYATS, PUBLKIC OFFICE BUILDING,| ||MUSEUM P.O., THIRUVANANTHAPURAM - 695033.| |3|DEPUTY DIRECTOR OF PANCHAYATS,| ||OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYATS, CIVIL| ||STATION, KUDAPPANAKUNNU, THIRUVANANTHAPURAM DISTRICT -| ||695043.| |4|KALLARA GRAMA PANCHAYAT,| ||REPRESENTED BY ITS SECRETARY, OFFICE OF THE KALLARA| ||GRAMA PANCHAYATH, KALLARA P.O., THIRUVANANTHAPURAM| ||DISTRICT - 695608.| |5|SECRETARY,| ||KALLARA GRAMA PANCHAYATH, KALLARA P.O.,| ||THIRUVANANTHAPURAM DISTRICT - 695608.| |6|K. SANTHAKUMAR,| ||PRESIDENT, KALLARA GRAMA PANCHAYATH, KALLARA P.O.,| ||THIRUVANANTHAPURAM DISTRICT - 695608.| ||BY ADVS.| ||SRI.SUNILKUMAR KURIAKOSE, GOVERNMENT PLEADER| ||SRI.RAM MOHAN.G.| ||SRI.G.P.SHINOD| ||SRI.GOVIND PADMANAABHAN| ||SHRI.AJIT G ANJARLEKAR| |THIS|WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON| |02.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:|| W.P.(C)No.4041 OF 2019 2 ## **JUDGMENT** ## **Dated this the 2[nd] day of November, 2022** ## This writ petition is filed seeking the following ## reliefs: _“i. To issue a Writ in the nature of certiorari or any other appropriate writ order or direction commanding to quash the entire disciplinary proceedings and specifically Exhibit Nos. P2, P3, P5, P22, P23, P30 and P32._ _ii. To issue a Writ in the nature of mandamus or any other appropriate writ order or direction commanding the appropriate respondents to reinstate the petitioner to service as part time contingent employee in the 4th respondent Panchayath with back wages (honorarium) and all attendant benefits._ _iii. To issue a Writ in the nature of mandamus or any other writ order or direction commanding the 4th respondent to release the arrears of honorarium of the petitioner for the period from 01.01.2017 till 01.05.2017 at the enhanced rate of Rs. 12000/ as ordered in Exhibit P14 GO and also at that enhanced rate for the period from 02.05.2017 till her reinstatement to service, treating the suspension period as duty.”_ W.P.(C)No.4041 OF 2019 3 2. Heard the learned counsel for the petitioner, the learned Government Pleader as well as the learned counsel appearing for the respondents. 3. It is submitted by the learned counsel for the petitioner that the petitioner was working as Nursery Teacher in 'Shishu Vihar' conducted by the Kallara Grama Panchayat. The petitioner was engaged as a teacher pursuant to Exhibit P1 resolution of the Grama Panchayat on an honorarium of Rs.700/-, on a permanent basis from 14.11.2006. It is submitted that on 02.05.2017, the petitioner was placed under suspension by Exhibit P2 order on an allegation that the petitioner had created an unruly scene in the Panchayath office on 28.04.2017 and had abused the Panchayath officers and office bearers and that she had forcefully taken away a file containing 25 forms W.P.(C)No.4041 OF 2019 4 under the 'Life Mission'. It is submitted that on the same day, Exhibit P3 charge memo had also been issued to the petitioner alleging the same charges. It is submitted that though it is stated in Exhibit P3 that the statement of allegations is appended to the charge memo, there was no statement of allegations and the charges were extremely vague and the petitioner did not have any material on which she could submit a reply to the same. It is contended that Exhibit P4 reply was immediately submitted by the petitioner stating that the petitioner had been entrusted with a file containing a list of 49 beneficiaries of 'Life Mission' for verification and that the petitioner had returned the entire file along with Exhibit P4 reply submitted by her. 4. The petitioner's specific case was that on 28.04.2017, the petitioner had been subjected to W.P.(C)No.4041 OF 2019 5 sexual harassment at the work place at the instance of one Louji M.Nair, who was a Superintendent in the office of the Panchayath. It is contended that Exhibit P16 complaint was submitted by the petitioner on the very same date and the same was acknowledged by the Station House Officer by Exhibit P17. It is stated that on 02.05.2017, Exhibit P18 statement of the petitioner was recorded and Exhibit P19 F.I.R was launched, which was the reason for the order of suspension dated 02.05.2017. It is contended that thereafter, without following any due procedure and without serving copies of any of the documents relied on, Exhibit P5 order of termination was passed on 15.07.2017. It is stated in Exhibit P5 that the petitioner's statement had also been taken and that there are no students in the “Shishu Vihar” and that no purpose will be served by continuing the W.P.(C)No.4041 OF 2019 6 ## engagement of the petitioner. 5. It is submitted by the learned counsel for the petitioner that the punishment of termination of service could not have been imposed on the petitioner in terms of Exhibit P6(a) Kerala Panchayath Raj (Control Over Officers) Rules, 1997, since only minor penalties are contemplated by the said Rules. The petitioner had submitted an appeal as against the order of termination before the Deputy Director of Panchayaths, which was also dismissed by Exhibit P13 proceedings. It is submitted that thereafter, the petitioner had approached the Kerala Administrative Tribunal and a further appeal was preferred before the Government which was directed to be considered. It is submitted that by Exhibit P32 order dated 30.04.2018, the said appeal was also rejected by the Government. It is submitted that even W.P.(C)No.4041 OF 2019 7 thereafter, by Exhibit P35 order, the KAT had directed payment of subsistence allowance to the petitioner on the basis of the enhanced honorarium. The said order was challenged before this Court in O.P.(KAT) No.130 of 2018 and by Exhibit P36 judgment, the KAT was directed to consider the question of maintainability of the O.A. raised by the Panchayath. The question of maintainability was thereafter considered and by Exhibit P37, the KAT found that the O.A. was not maintainable before it. The petitioner, thereafter, approached this Court and on the basis of the interim orders granted by this Court, subsistence allowance was being paid to the petitioner on the basis of the enhanced honorarium. 6. The learned counsel for the petitioner submits that since the order of suspension as well as the memo of charges issued to the petitioner W.P.(C)No.4041 OF 2019 8 specifically refers to Exhibit P6(a) Rules, only those penalties which are specified therein can be imposed on the petitioner. It is further contended that even if Exhibit P6(a) Rules are found to be not applicable, the petitioner's services could not have been terminated after issuance of Exhibit P3 charge memo, without completing the proceedings and without a finding with regard to the guilt of the petitioner after conducting a due enquiry complying with the principles of natural justice. It is contended that the action of the respondents in having terminated the services of the petitioner, without completing the disciplinary proceedings in accordance with law, on a combined finding that the petitioner is guilty of some nature of misconduct as also that the services of the petitioner are not required anymore, is completely untenable and is against the settled principles of law. W.P.(C)No.4041 OF 2019 9 7. It is contended that the Apex Court has considered similar issues and has held that once a memo of charges is issued to an employee, even in the absence of specific Rules with regard to the conduct of the disciplinary proceedings, an enquiry has to be conducted, complying the principles of natural justice and only on a finding of guilt, can an order of termination be issued. Learned counsel for the petitioner places reliance on the decisions of the Apex Court in **Om Prakash Goel v. The Himachal Pradesh Tourism Development Corporation LTD., Shimla and Another** (AIR 1991 SC 1490) and of a Division Bench of this Court in **Viswamithran v. Manager, S.N. College and Others** (1997 KHC 275) in support of his contentions. 8. Detailed counter affidavits are placed on record by the Panchayath as well as the W.P.(C)No.4041 OF 2019 10 Government. It is submitted by the learned counsel for the respondent Panchayath that Exhibit P6(a) Rules are not applicable in the case at all and the wrong mentioning of the Rule, by itself, cannot confer any right on the petitioner. It is further contended that the contentions of the petitioner had been considered by the Panchayath and a statement had also been recorded from the petitioner and it was on the basis of the said statement as well and after considering the objections raised by the petitioner that Exhibit P5 order had been passed. It is further contended that the petitioner is not entitled to regularization in service on the basis of Exhibit P9 Government Order, since she does not come within the purview of the Order as she did not have ten years of continuous service in 2010, the date on which the said Order was passed and was not one among the W.P.(C)No.4041 OF 2019 11 160 'Shishu Vihar' teachers in favour of whom the Order was passed. It is also contended that it was in view of the factual position that there were absolutely no students in the 'Shishu Vihar' and that the petitioner did not have any work as 'Shishu Vihar' teacher, that Exhibit P5 order as well as the orders in appeal were passed by the authorities and that the petitioner, who was admittedly appointed as teacher of 'Shishu Vihar' could have no claim for continued engagement, in view of the fact that there were no students and no work in the school. 9. Learned Government Pleader has also placed a counter affidavit on record, supporting the contentions of the Panchayath. It is contended that Exhibit P9 can have no application to the petitioner. It is stated that the appointment of the petitioner as a permanent employee by Exhibit P1 itself was erroneous and that this matter has been raised by W.P.(C)No.4041 OF 2019 12 the appropriate authorities. It is also contended that Exhibit P6(a) Rules have no application to the petitioner and that the Government had considered the contentions of the petitioner as well as the Panchayath and had found that since there was no necessity to continue to engage the petitioner, in view of the fact that there were no students in the Shishu Vihar', the action of the Panchayat in having terminated her services was found to be in order. It is also contended that in the factual situation as in the present one, the contention that a full disciplinary proceeding had not been conducted against the petitioner by itself would not confer any claim for continued engagement of the petitioner. 10. Having considered the contentions advanced, it is clear that the petitioner had been engaged by the Panchayat on the basis of Exhibit P1 resolution. The engagement, apparently, is on a W.P.(C)No.4041 OF 2019 13 permanent basis. It appears that steps had also been taken to regularize the petitioner's services a part time contingent worker in the Panchayath by Exhibit P11 resolution dated 29.02.2012. Though the learned counsel for the Panchayat as well as the learned Government Pleader contended that the petitioner was not entitled for regularization in the light of Exhibit P9, however, the fact that Exhibit P2 order of suspension and Exhibit P3 memo of charges had been issued to the petitioner on 02.05.2017, cannot be denied. After having issued a memo of charges to the petitioner, alleging misconducts on her part, the only question that I am called upon to consider is whether an order in the nature of Exhibit P5 could be validly passed, terminating the petitioner's services. Exhibit P5 relies on several documents including complaints submitted by employees of the Panchayat dated W.P.(C)No.4041 OF 2019 14 28.04.2017 and an enquiry report of the President of the Panchayat which is not dated. A decision of the Panchayat Committee on 14.07.2017 is also referred in Exhibit P5. 11. The learned counsel for the petitioner submits that none of the documents which were relied on to find the petitioner guilty of the charges, were served on the petitioner. It is specifically contended that even the statement of allegations which were said to accompany Exhibit P2 had not been served on the petitioner. It is only on the basis of an examination of the reply submitted by the petitioner that Exhibit P5 order appears to have been passed against the petitioner. 12. The petitioner has specifically raised these contentions before the 3[rd] respondent as well as the 1[st] respondent. However, the specific contention of the petitioner that a proper enquiry had not been W.P.(C)No.4041 OF 2019 15 conducted against the petitioner has not been considered by the 3[rd] respondent or the Government. The said authorities, as a matter of fact, proceeded on the basis that the petitioners appointment was only on an honorarium basis and that since there were no students in the school, the petitioner is not entitled to continue in service. 13. The Apex Court in **Om Prakash Goel's** case (Supra) has specifically considered the issue and has held that when a termination order is issued as a punitive measure against an employee where a charge sheet had been issued and an enquiry is conducted, such termination has to be on the basis of findings in a properly conducted enquiry. 14. This Court in **Viswamithran's** case (Supra) has considered the question of the charge memo not being accompanied by a statement of W.P.(C)No.4041 OF 2019 16 allegations and has held that where the charges are not specific and are not supported by a statement of allegations as well, the incumbent loses the right to meaningfully answer the allegations and therefore, the entire proceedings would stand vitiated. 15. In the instant case, Exhibit P3 charge memo had been issued to the petitioner stating that she had abused the employees and officers of the Panchayat. The respondents have not specifically stated that a statement of allegations had been served on the petitioner along with Exhibit P3 charge memo. The materials on which the charges are based have also apparently not been made available to the petitioner. The petitioner has a specific case that the petitioner stands discharged on the very same allegations by Exhibit P38 judgment of the competent criminal court. It is, W.P.(C)No.4041 OF 2019 17 therefore, clear that no proper opportunity had been given to the petitioner to defend the allegations raised in Exhibit P3 memo of charges. In the above factual situation, I am of the opinion that Exhibit P5 order, to the extent it terminates the services of the petitioner, is bad for non-compliance with the principles of natural justice. Exhibit P13 order passed by the 3[rd] respondent, as well as Exhibit P32 order passed by the government which have not considered these aspects are also, therefore, unsustainable. Exhibits P5, P13 and P32 are, therefore, set aside. There will be a direction to the respondents to give the petitioner the statement of allegations and to complete the enquiry proceedings after complying with due procedure and after giving the petitioner a meaningful opportunity to defend her case. Appropriate action will be taken within a period of W.P.(C)No.4041 OF 2019 18 three months from the date of receipt of a copy of this judgment. The petitioner will be continued to be paid 50% of the revised honorarium as subsistence allowance until orders are passed as directed above. All contentions of the parties are left open. **Sd/ANU SIVARAMAN JUDGE** SSK/02/11 W.P.(C)No.4041 OF 2019 19 ## **APPENDIX** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|TRUE COPY OF RELEVANT PAGES OF MINUTES BOOK| ||OF THE PANCHAYATH CONTAINING INTER-ALIA THE| ||TEXT OF THE RESOLUTION NO.VI (11)| ||APPOINTING THE PETITIONER AS TEACHER,| ||SHISHU VIHAR.| |EXHIBIT P2|A TRUE COPY OF THAT ORDER OF SUSPENSION| ||BEING NO.A6- 3658/17 DATED 02/05/2017| ||ISSUED BY RESPONDENT NO.6.| |EXHIBIT P3|TRUE COPY OF CHARGE MEMO BEING NO.A6-| ||3658/2017 DATED 02/05/2017.| |EXHIBIT P4|A TRUE COPY OF THAT REPLY STATEMENT DATED| ||11/05/2017 OF THE PETITIONER.| |EXHIBIT P4|A TRUE COPY OF LIST CONTAINING THE NAMES| ||AND ADDRESSES OF THOSE 49 PERSONS.| |EXHIBIT P5|TRUE COPY OF PROCEEDINGS NO.A6-3658/17| ||DATED 15/07/2017 OF SECRETARY, KALLARA| ||GRAMA PANCHAYATH.| |EXHIBIT P6|A TRUE COPY OF THE DISSENTING NOTE OF 8| ||MEMBERS.| |EXHIBIT P6|TRUE COPY OF KERALA PANCHAYATH RAJ (CONTROL| ||OVER OFFICERS) RULES,1997.| |EXHIBIT P7|TRUE COPY OF THE LETTER NO.A5/5590/2017| ||DATED 21/08/2017 ISSUED TO THE PETITIONER| ||FROM THE SECRETARY OF KALLARA GRAMA| ||PANCHAYATH.| |EXHIBIT P8|A TRUE COPY OF REPLY LETTER DATED| ||30/10/2014 OF THE PETITIONER TO THE| ||PANCHAYATH SECRETARY AS REPLY TO EXHIBIT| ||P8(A).| |EXHIBIT P8|A TRUE COPY OF THE MEMO NO.A6-5888/2014| ||DATED 28/10/2014 ISSUED TO THE PETITIONER| ||BY THE SECRETARY OF PANCHAYATH.| |EXHIBIT P9|A TRUE COPY OF GO(MS)NO.88/2010/LSGD DATED| ||03/05/2010.| |EXHIBIT P10|A TRUE COPY OF THE COMMUNICATION ISSUED BY| ||THE<br>SECRETARY<br>TO<br>LSGD<br>AS| ||NO.69737/EPA2/07/LSGD DATED 24/07/2008.| |EXHIBIT P11|A TRUE COPY OF THE RESOLUTION OF THE| ||PANCHAYATH COMMITTEE DATED 29/02/2012 FOR| ||GIVING PERMANENT APPOINTMENT TO THE| ||PETITIONER AS PART TIME CONTINGENT| W.P.(C)No.4041 OF 2019 20 ||EMPLOYEE.| |---|---| |EXHIBIT P12|A TRUE COPY OF THE LETTER NO.A6-2920/15| ||DATED 22/05/2015 OF THE SECRETARY OF THE| ||KALLARA GRAMA PANCHAYATH.| |EXHIBIT P13|TRUE COPY OF ORDER NO.A4-18498/2013 DATED| ||16/06/2014 OF THE PRESIDENT OF THE KALLARA| ||GRAMA PANCHAYATH.| |EXHIBIT P14|TRUE COPY OF GO (MS) NO.87/2017/LSGD DATED| ||24/04/2017.| |EXHIBIT P15|TRUE COPY OF THE APPLICATION DATED| ||03/07/2017 GIVEN BY THE PETITIONER TO THE| ||SECRETARY TO THE KALLARA GRAMA PANCHAYAT| ||FOR GIVING HER SUCH MONETARY BENEFITS| ||INCLUDING SUBSISTENCE ALLOWANCE.| |EXHIBIT P16|TRUE COPY OF THE COMPLAINT GIVEN AT THE| ||PANGODE POLICE STATION BY THE PERTITIONER| ||ON 28/04/2017.| |EXHIBIT P17|TRUE COPY OF THE ACKNOWLEDGING RECEIPT| ||ISSUED FROM THE POLICE STATION OF THE| ||PETITIONER'S EXHIBIT P16 COMPLAINT.| |EXHIBIT P18|TRUE COPY OF THE STATEMENT (FIS) OF THE| ||PETITIONER GIVEN AT THE POLICE STATION ON| ||29/04/2017.| |EXHIBIT P19|TRUE COPY OF FIR NO.537/2017 OF PANGODE| ||POLICE STATION.| |EXHIBIT P20|TRUE COPY OF THE COMPLAINT TO THE STATE| ||POLICE CHIEF DATED 31/07/2017.| |EXHIBIT P21|TRUE COPY OF THE DISSENTING NOTE SIGNED BY| ||THE SIX MEMBERS VOTED AGAINST THE DECISION| ||OF THE PANCHAYATH COMMITTEE TAKEN ON| ||14/07/2017.| |EXHIBIT P22|TRUE COPY OF THE ENQUIRY REPORT PREPARED BY| ||THE 6TH RESPONDENT.| |EXHIBIT P23|TRUE COPY OF THE RESOLUTION NO.5 OF THE| ||COMMITTEE OF THE PANCHAYATH SAID TO BE OF| ||THE DATE 14/07/2017.| |EXHIBIT P24|TRUE COPY OF TREATMENT RECORD DATED| ||27/06/2014 OF SREE CHITRA TIRUNAL INSTITUTE| ||FOR MEDICAL SCIENCES AND TECHNOLOGY,| ||THIRUVANANTHAPURAM.| |EXHIBIT P25|THE COPY OF THE CERTIFICATE DATED| ||28/05/2014 ISSUED FROM SREE CHITRA TIRUNAL| ||INSTITUTE FOR MEDICAL SCIENCES AND| ||TECHNOLOGY, THIRUVANANTHAPURAM.| |EXHIBIT P26|TRUE COPY OF THE ECHOCARDIOGRAPHY CASE| ||SHEET PEDIATRIC AND CONGENITAL OF THE DATE| W.P.(C)No.4041 OF 2019 21 17/07/2015 OF AMRITHA INSTITUTE OF MEDICAL SCIENCES AND RESEARCH CENTRE, ERNAKULAM. EXHIBIT P27 TRUE COPY OF PAPER CUTTING OF MANGALAM DAILY DATED 03/03/2014. EXHIBIT P28 TRUE COPY OF THE BVIRTH CERTIFICATE ANJALI A.R. DAUGHTER OF THE PETITIONER. EXHIBIT P29 TRUE COPY OF THE APPEAL PETITION DATED 27/08/2017 SUBMITTED TO 3RD RESPONDENT (WITHOUT ENCLOSURES). EXHIBIT P30 TRUE COPY OF ORDER NO.E2-11104/2017 DATED 11/10/2017 OF THE 3RD RESPONDENT. EXHIBIT P31 TRUE COPY OF THE REPRESENTATION (APPEAL) OF THE PETITIONER DATED 10/11/2017 TO THE GOVERNMENT PRINCIPAL SECRETARY, LSGD (WITHOUT ENCLOSURES). EXHIBIT P32 TRUE COPY OF GO (RT) NO.1222/2018/LSGD DATED 30/04/2018. EXHIBIT P33 TRUE COPY OF GOVERNMENT CIRCULAR NO.4110/SD-6/68/PD DATED 23/11/1968. EXHIBIT P34 TRUE COPY OF GOVERNMENT MEMORANDUM NO.38625/SD.4/64/PD DATED 24/04/1965. EXHIBIT P35 TRUE COPY OF ORDER OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 06/02/2018. EXHIBIT P36 TRUE COPY OF ORDER DATED 31/05/2018 IN OP(KAT) 130/2018 OF HON'BLE HIGH COURT OF KERALA. EXHIBIT P37 TRUE COPY OF ORDER DATED 22/01/2019 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. EXHIBIT P38 A TRUE COPY OF THE ORDER DATED 05.10.2019 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, NEDUMANGAD IN C.C.NO.309/2019. SSK //TRUE COPY// PA TO JUDGE