Sheeja S. v. Director, Diary Development Department; Deputy Director, Diary Development Department; Kundara KSHEERA Vyavasaya Co-operative Society Ltd.; The President, Kundara KSHEERA Vyavasaya Co-operative Bank Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944** ## **WP(C) NO. 19601 OF 2021** ## **PETITIONER:** SHEEJA S, AGED 57 YEARS, W/O.P.G.SAJEEV RAJ, SENIOR CLERK, KUNDARA KSHEERA VYAVASAYA CO-OPERATIVE SOCIETY LTD., NO.Q88, KUNDARA P.O., KOLLAM-691501, RESIDING AT ARAAM, KALLUMPURAM, EZHUKONE P.O, KOLLAM-691505. BY ADVS. ELVIN PETER P.J. K.R.GANESH SIDHARTH SUDHEER GOURI BALAGOPAL ## **RESPONDENTS:** 1 THE DIRECTOR DIARY DEVELOPMENT DEPARTMENT, DIRECTORATE OF DIARY DEVELOPMENT, THIRUVANANTHAPURAM-695002. 2 THE DEPUTY DIRECTOR, DIARY DEVELOPMENT DEPARTMENT, OFFICE OF THE DIARY DEVELOPMENT DEPARTMENT, KOLLAM-691501. 3 KUNDARA KSHEERA VYAVASAYA CO-OPERATIVE SOCIETY LTD., REPRESENTED BY ITS SECRETARY, NO.Q88, KUNDARA P.O., KOLLAM-691501. 4 THE PRESIDENT, KUNDARA KSHEERA VYAVASAYA CO-OPERATIVE BANK LTD., NO.Q88, KUNDARA P.O., KOLLAM-69150.1. BY ADV M.NARENDRA KUMAR ## **OTHER PRESENT:** SRI. V.K. SUNIL, GOVT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W.P.(C) No.19601 of 2021** **= = = = = = = = = = = = = = = = = = Dated this the 22[nd] day of February, 2023** ## **J U D G M E N T** Ext.P13 Memo of Charges issued against the petitioner is under challenge in this writ petition alleging malice and malafides. 2. The petitioner was appointed as a sales girl in the third respondent Society on 01.02.1988. While in the services of the Society, she acquired JDC in the year 1997. For acquiring JDC, she had availed leave from 01.06.1996 to 31.03.1997 which was duly sanctioned by the then Managing Committee of the Society. After acquiring JDC, the petitioner was promoted as junior clerk on 01.04.1999 and later as a senior clerk on 01.04.2009. 3. According to the petitioner, she was not in the good books of the Managing Committee and there had been a conscious attempt on the part of the Committee to prevent the petitioner from being promoted as the ## **W.P.(C) No.19601 of 2021** -: 2 :- Secretary. To stall the prospects she was issued with Ext.P13 memo of charges on 26.02.2018. The petitioner's contention is that, on the very same allegations as raised in Ext.P13, there were earlier proceedings against her. In all such proceedings, the concerned officers who had enquired into the allegations had categorically found that she is innocent of the charges levelled. The initiation of further disciplinary proceedings under Ext.P13 is tainted. Further, in the proceedings, though the petitioner made a request for representation through a legal practitioner, the same was rejected. Enquiry is vitiated on the said ground also, it is contended. 4. The learned counsel for the Society would on the other hand contend that the petitioner had utilised her position in the Society for unlawful gains and that the enquiry proceedings are not to be interfered with by this Court. The learned counsel relied on the judgment of the Apex Court in _**Secretary, Ministry of Defence and Ors. v.**_ **W.P.(C) No.19601 of 2021** -: 3 :- _**Prabhash Chandra Mirdha [2012 (11) SCC 565]**_ to contend that, initiation of disciplinary enquiry does not affect the right of a party nor does it give rise to any cause of action. Therefore, the proceedings (Ext.P13) and the consequential proceedings are not liable to be interfered with by this Court. 5. Apex Court has held that, ordinarily writ petition does not lie against a charge-sheet since, issuance of a charge-sheet does not give rise to any cause of action. It is only when the final order adversely affecting a party is passed that a cause of action accrues. While it is true that justifiability of the charges at the stage of initiating a disciplinary proceedings is not to be delved into by any court pending enquiry, but it is equally well settled that in the event there is an element of malice or malafides, motive or bias, that the enquiry will be mere farcical show, Courts would interfere. The Apex Court has held that, it is not a question of shielding any misdeed that ## **W.P.(C) No.19601 of 2021** -: 4 :- the court would be anxious to do, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law, the Courts would interfere (See _**State of Punjab v. V.K. Khanna 2001 (2) SCC 330**_ ). 6. Earlier, on 26.02.2018, the petitioner was issued with Ext.P4 notice levelling charges of various irregularities/illegalities allegedly committed by her. As per Ext.P4, the Society required the petitioner to submit her explanation within fifteen days. On considering the allegations levelled and the explanations submitted by the petitioner, the Dairy Extension Officer who had enquired into the allegations found the allegations to be baseless and that the petitioner could not be made liable nor responsible for the alleged irregularities. In order to appreciate the contents of Ext.P4 memo of allegations and the subsequent enquiries levelled against the petitioner, it is necessary to go into the contents and nature of ## **W.P.(C) No.19601 of 2021** -: 5 :- allegations that were levelled in Ext.P4 and also the findings in the report, Ext.P6. The allegations levelled were:- - _(i)_ There occurred delay in getting approval for the - appointment of the petitioner. - _(ii)_ Leave granted for study purpose is not recorded - in the service book - _(iii)_ While studying for JDC petitioner received - salary and other benefits without leave. _(iv)_ The Deputy Director had issued order No.A3/199/2010 approving the appointment of the petitioner as Senior Clerk with effect from 01.02.1988 which is a mistake, and taking advantage of the same more benefits were received by the petitioner. - _(v)_ Additional financial benefits were procured by - the petitioner by obtaining an additional service book. 7. The Dairy Extension Officer found that :- _(i)_ No additional/extraordinary benefits were received by the petitioner. **W.P.(C) No.19601 of 2021** -: 6 :- _(ii)_ Maintenance of service records is not the responsibility of the petitioner. _(iii)_ Order No.A3/199/2010 of the Deputy Director only referred to the date of entry of the petitioner into the service and not the date of assuming the present office. _(iv)_ The petitioner had not received any salary in the capacity of Senior Clerk with effect from the date mentioned in Order No.A3/199/2010. _(v)_ Salaries and other benefits are paid on the basis of the orders of the Deputy Director based on the decisions of the Board. The petitioner could not by her own, receive any amount in excess. 8. Thus, all the allegations made against the petitioner were found against. 9. Thereafter, the former secretary of the Society filed Ext.P9 complaint before the Deputy Director raising similar set of allegations against the petitioner. The same was enquired into by the Dairy ## **W.P.(C) No.19601 of 2021** **==> picture [34 x 9] intentionally omitted <==** Extension Officer. He submitted Ext.P10 report dated 04.07.2019, finding that the allegations against the petitioner are baseless. 10. Thereafter, on 25.06.2020 the Society issued Ext.P13 memo of charges against the petitioner levelling the very same allegations raised earlier. Pending enquiry into Ext.P13, the petitioner was suspended from service. Challenging the order of suspension, the petitioner filed an appeal before the Managing Committee which was also dismissed. The petitioner challenged the same before the Arbitration Court. The Arbitration Court passed an order staying the order of suspension. The third respondent Society challenged the same before this Court in W.P.(C) 22766/2020. Ultimately, as per Ext.P19 judgment dated 25.01.2021, the writ petition was closed as infructuous since in the meantime the order of suspension was withdrawn. 11. Faced with the 3[rd] round of proceedings, the petitioner filed a complaint before the departmental ## **W.P.(C) No.19601 of 2021** -: 8 :- authorities. On the complaint, the Dairy Extension Officer submitted Ext.P12 report to the Deputy Director finding the allegations to be baseless. It was reported that the Managing Committee of the Society is making all attempts to prevent the petitioner from being promoted till she retires. Ext.P12 was dated 28.07.2021. It is thereafter, on 26.08.2021 that the present writ petition has been filed. 12. The petitioner retired from service on 31.05.2022 without having granted promotion and pending the enquiry. 13. On the facts as noticed above, it is seen that, under Ext.P13 memo of charges, the petitioner is again sought to be proceeded against on the similar set of allegations which was earlier enquired into by the departmental officials on more than one occasion. The allegations were found to be baseless. That apart, on the complaint of the petitioner, the officials found that the Managing Committee is attempting to prevent the **W.P.(C) No.19601 of 2021** -: 9 :- petitioner from securing promotion. The allegations against the petitioner having been found to be baseless, the further act of the Society in having issued Ext.P13 memo of charges, cannot be appreciated. The allegation of the petitioner that she is being targeted finds support in Ext.P12 report of the departmental authority. Here it is pertinent to note that, in spite of Exts.P6, P10 and P12 reports by the department officials, the Society never objected to its correctness. On consideration of the entire facts as above, I am of the opinion that this is a case which falls within the rare exceptions to, “the rule of non-interference with a charge memo and the conduct of enquiry”. 14. There is yet another issue involved; pursuant to the issuance of Ext.P13 memo of charges, the petitioner had sought for legal assistance, but the request was declined by the enquiry officer. The Enquiry Officer was an Advocate. Since the Enquiry Officer was a person having legal acumen, it was only proper to permit **W.P.(C) No.19601 of 2021** -: 10 :- the petitioner to have legal representation (See _**Ramesh Chandra v. Delhi University and Ors. (2015) 5 SCC 549**_ ; _**Vaikom Taluk Co-operative Agricultural & Rural Dev. Bank v. Anilkumar 2020 (4) KHC**_ _**81 (DB)**_ . The very fact that in spite of the earlier enquiries the petitioner had, to some extent, taken part in the disciplinary proceedings shows that, she was handicapped due to lack of legal assistance; or else, the enquiry proceedings would have been objected to. The petitioner ought to have been given the right of legal representation. Now that the petitioner has already retired, it is not necessary to have the proceedings re- started affording legal representation to the petitioner. 15. On 04.10.2021, this Court had granted stay of further proceedings pursuant to Ext.P13 memo of charges. The stay is still in force. Though the learned counsel for the Society would submit that consequent on the noncooperation of the petitioner the enquiry was proceeded and completed in her absence and report has been **W.P.(C) No.19601 of 2021** -: 11 :- submitted, such report does not form part of the pleadings. It is not known how the Society could continue with the proceedings when there was an order of stay by this Court. Suffice to notice that, such proceedings if any taken, will not have any consequence. 16. For the reasons as above, I find that this is a fit case where the memo of charges and the consequent proceedings are liable to be quashed. Resultantly, this writ petition is allowed. Ext.P13 memo of charges and the proceedings thereto are hereby quashed. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF WP(C) 19601/2021** ## PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE ORDER NO.A3/199/10 DATED| |---|---| ||10.02.2010 ISSUED BY THE 2ND RESPONDENT.| |Exhibit P2|TRUE COPY OF THE ORDER NO.A3/4309/2018/K.DIS| ||DATED 24.12.2018 ISSUED BY THE 2ND| ||RESPONDENT.| |Exhibit P3|TRUE COPY OF THE ORDER NO.A3/1664/2019/K.DIS| ||DATED 26.06.2019 ISSUED BY THE 2ND| ||RESPONDENT.| |Exhibit P4|TRUE COPY OF THE NOTICE DATED 26.02.2018| ||ISSUED BY THE 4TH RESPONDENT TO THE| ||PETITIONER.| |Exhibit P5|TRUE COPY OF THE COMMUNICATION NO.RTI-A3-| ||302/2021/LDIS DATED 15.02.2021 ISSUED BY THE| ||PUBLIC INFORMATION OFFICER IN THE OFFICE OF| ||THE 2ND RESPONDENT TO THE PETITIONER.| |Exhibit P6|TRUE PHOTOCOPY OF ENQUIRY REPORT ATTACHED| ||ALONG WITH EXT.P5.| |Exhibit P7|TRUE COPY OF THE REPLY NO.RTI/56/2021 DATED| ||06.03.2021 GIVEN BY THE PUBLIC INFORMATION| ||OFFICER IN THE OFFICE OF THE 2ND RESPONDENT| ||TO THE PETITIONER.| |Exhibit P8|TRUE COPY OF THE ORDER NO.A3/4347/2018 DATED| ||26.11.2018 ISSUED BY THE 2ND RESPONDENT,| ||DIRECTING THE DIARY EXTENSION OFFICER TO| ||CONDUCT AN ENQUIRY IN TO THE ALLEGATIONS| ||LEVELED AGAINST THE PETITIONER AND ATTACHED| ||TO EXT.P7.| |Exhibit P9|TRUE COPY OF THE COMPLAINT DATED 16.11.2018| ||SUBMITTED BY THE SECRETARY OF THE SOCIETY AND| ||ENCLOSED ALONG WITH EXHIBIT P7.| |Exhibit P10|TRUE COPY OF THE REPORT OF THE DIARY| ||EXTENSION OFFICER NO.242/18 DATED 04.07.2019| ||ALONG WITH SUPPORTING DOCUMENTS AND ENCLOSED| ||ALONG WITH EXHIBIT P7.| APPENDIX- **WP(C) 19601/2021** -2- |Exhibit P11|TRUE COPY OF THE REPLY DATED 10.3.2021 ISSUED| |---|---| ||TO THE PETITIONER BY THE STATE PUBLIC| ||INFORMATION OFFICER IN THE OFFICE OF THE 2ND| ||RESPONDENT, SERVING COPIES OF THE NOTE FILES.| |Exhibit P12|TRUE COPY OF THE REPLY NO.RTI 604/21 DATED| ||28.07.2021 ISSUED BY THE PUBLIC INFORMATION| ||OFFICER IN THE OFFICE OF THE 2ND RESPONDENT,| ||SERVING A COPY OF THE ENQUIRY REPORT.| |Exhibit P13|TRUE COPY OF THE MEMO OF CHARGES AND| ||STATEMENT OF ALLEGATIONS DATED NIL ISSUED BY| ||THE 3RD RESPONDENT TO THE PETITIONER.| |Exhibit P14|TRUE COPY OF THE REPLY DATED 09.07.2020| ||SUBMITTED BY THE PETITIONER TO EXT.P13 MEMO| ||OF CHARGES.| |Exhibit P15|TRUE COPY OF THE SUSPENSION ORDER DATED| ||20.07.2020 ISSUED BY THE 4TH RESPONDENT TO| ||THE PETITIONER.| |Exhibit P16|TRUE COPY OF THE ORDER DATED 03.10.2020| ||ISSUED BY THE 3RD RESPONDENT, DISMISSING THE| ||APPEAL FILED BY THE PETITIONER.| |Exhibit P17|TRUE COPY OF THE ARC NO.42/2020 FILED BY THE| ||PETITIONER DATED 05.10.2020 BEFORE THE CO-| ||OPERATIVE ARBITRATION COURT,| ||THIRUVANANTHAPURAM.| |Exhibit P18|TRUE COPY OF THE ORDER PASSED BY THE| ||ARBITRATION COURT IN IA 1/2020 IN ARC| ||NO.42/2020, STAYING EXT.P15 ORDER OF| ||SUSPENSION AND ALSO PASSED AN INTERIM ORDER,| ||RESTRAINING THE SOCIETY FROM FILLING UP THE| ||POST OF SECRETARY.| |Exhibit P19|TRUE COPY OF THE JUDGMENT IN| ||WP(C)NO.22766/2020 DATED 25.01.2021 OF THIS| ||HON'BLE COURT.| -----