Sheeja T.A. v. Kerala State Handloom Development Corporation Limited and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 29[TH] DAY OF SEPTEMBER 2022 / 7TH ASWINA, 1944** ## **WP(C) NO.12740 OF 2021** ## **- PETITIONER :** SHEEJA T.A., AGED 46 YEARS PACKER, WIFE OF BINU JOSEPH, HANVEEV SHOWROOM, CHALAKUDY, RESIDING AT VAZHAPPILLY HOUSE, VELIYATHUKADAVU ROAD, ANAMALA JUNCTION, CHALAKUDY P.O., PIN-680 307. BY ADVS. K.RAMAKUMAR (SR.) T.RAMPRASAD UNNI S.M.PRASANTH G.RENJITH R.S.ASWINI SANKAR T.H.ARAVIND ## **- RESPONDENTS :** 1 KERALA STATE HANDLOOM DEVELOPMENT CORPORATION LIMITED (A GOVERNMENT OF KERALA UNDERTAKING) PM 32/249, THILLERI ROAD, KANNUR-670 001 REPRESENTED BY ITS MANAGING DIRECTOR. 2 THE MANAGING DIRECTOR KERALA STATE HANDLOOM DEVELOPMENT CORPORATION LIMITED (A GOVERNEMNT OF KERALA UNDERTAKING), PM 32/249, THILLERI ROAD, KANNUR-670 001. 3 THE CHAIRMAN, BOARD OF DIRECTORS, REPRESENTING THE BOARD OF DIRECTORS (APPEAL COMMITTEE) OF THE KERALA STATE HANDLOOM DEVELOPMENT CORPORATION LIMITED (A GOVERNMENT OF KERALA UNDERTAKING), PM 32/249, THILLERI ROAD, KANNUR-670 001. 4 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF INDUSTRIES, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001. BY ADVS. M.GOPIKRISHNAN NAMBIAR KURYAN THOMAS WP(C) NO.12740 OF 2021 -: 2 :- K.JOHN MATHAI JOSON MANAVALAN PAULOSE C. ABRAHAM RAJA KANNAN SRI.SUNIL KURIAKOSE, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.09.2022, THE COURT ON 29.09.2022 DELIVERED THE FOLLOWING: WP(C) NO.12740 OF 2021 -: 3 :- ## **ANU SIVARAMAN, J.** **----------------------------------W.P.(C) No.12740 of 2021** **----------------------------------------------------------Dated this the 29[th] day of September, 2022** ## **JUDGMENT** This writ petition is filed seeking the following reliefs :- - “i) To call for the records leading upto Exhibits P6, P10 and P15 and quash the same by the issuance of a Writ of Certiorari or any other appropriate writ, order or direction. - ii) To issue a Writ of Mandamus commanding the respondents to reinstate the petitioner back in service forthwith with all attendant service benefits including monetary. - iii) To declare that the entire proceedings initiated against the petitioner by the respondents are wholly void, inoperative and unenforceable on account of infraction of fundamental rights guaranteed to the petitioner under Articles 14, 16, 19 and 21 of the Constitution of India and irregular, improper and illegal and liable to be declared so.” 2. Heard the learned Senior Counsel appearing for the petitioner as well as the learned counsel appearing for the respondents. 3. It is submitted that the petitioner while working as Packer in the Chalakudy show room of the 1[st] respondent was placed under suspension by Ext.P1 order dated 8.1.2018. WP(C) NO.12740 OF 2021 -: 4 :- Ext.P2 show cause notice cum charge memo dated 23.3.2018 was served on her alleging that she had caused loss to the employer. The petitioner submitted Ext.P3 reply to the charge memo. Disciplinary proceedings were initiated and an Advocate was appointed as Enquiry Officer. The petitioner had occasion to complain about the biased attitude of the Enquiry Officer as evident from Exts.P4 and P5. However, the enquiry was duly completed and Ext.P6 report was submitted by the Enquiry Officer. 4. The Enquiry Officer found that 19 of the 21 charges against the petitioner stood proved. A copy of the enquiry report was forwarded to the petitioner. The petitioner sought a translated Malayalam version of the report, but the said request was declined. Ext.P9 objection was submitted by the petitioner. Ext.P10 order was passed on 26.8.2020 rejecting the petitioner's objections to the enquiry report and simultaneously inflicting the punishment of dismissal from service on the petitioner. The petitioner submitted Ext.P11 appeal before the Board of Directors _inter alia_ contending that the punishment imposed is excessive and that no notice of the WP(C) NO.12740 OF 2021 -: 5 :- proposed punishment had been granted to her before the punishment was imposed. The said appeal was considered and dismissed by Ext.P13 order dated 17.11.2020. 5. The petitioner approached this Court and by Ext.P14 judgment, the order of the Appellate Authority was set aside and the appeal was directed to be reconsidered with an opportunity of hearing being afforded to the petitioner physically or through video-conferencing within two months. Thereafter, the petitioner was heard and Ext.P15 order was passed. The contentions of the petitioner were examined and the Appellate Authority came to the conclusion that the enquiry proceedings were carried out in a just and fair manner and following the principles of natural justice. The appeal was therefore dismissed. 6. The learned Senior Counsel appearing for the petitioner contends that sub clause (12) of Clause 114 of the Service Rules of the 1[st] respondent Corporation specifically provided that if the disciplinary authority is of the opinion that any of the penalties specified in items (v) to (viii) of the Rule are to be imposed, a) it shall furnish to the employee a copy of WP(C) NO.12740 OF 2021 -: 6 :- the report of the enquiring authority with a statement of its findings together with brief reasons for disagreement, if any, with the findings of the enquiring authority and b) give him a notice stating the action proposed to be taken in regard to him and calling upon him to submit within a specified time which may not generally exceed one month, such representation as he may wish to make against the proposed action, provided that such representation shall be placed only on evidence addressed at the detailed enquiry. It is contended that the order imposing penalty has been imposed without issuing any such notice as provided in clause 114(12)(b) of the Service Regulations and that as such, the same is bad in law. It is contended that the refusal on the part of the respondents to put the petitioner on notice of the proposed punishment and in denying her an opportunity to make a representation against the proposed punishment as specifically provided in the Service Rules is violative of the principles of natural justice and has rendered the order of punishment _non-est_ in law. 7. A statement has been placed on record by respondents 1 to 3. It is contended that the petitioner had WP(C) NO.12740 OF 2021 -: 7 :- been served with an additional charge sheet dated 7.9.2018 during the pendency of the disciplinary proceedings and that the enquiry had been conducted specifically in accordance with the provisions of the Service Rules and after giving the petitioner all possible opportunity to defend her case. It is submitted that the charges contained in the second charge sheet are grave and involve allegations of criminal actions committed by the petitioner amounting to moral turpitude. It is contended that the domestic enquiry report was submitted after considering all relevant aspects and after carefully examining the evidence placed on record. It is stated that Ext.P7 notice was issued to the petitioner along with a copy of the enquiry report requiring her to submit her objections to the same. Though the petitioner submitted detailed objections, they were found to be unsatisfactory and Ext.P10 order imposing punishment was issued. It is contended that it is after considering all the objections raised by the petitioner to the enquiry report that Ext.P10 order was passed. Ext.P11 appeal was also carefully considered and rejected by the respondents. It is further contended that sufficient WP(C) NO.12740 OF 2021 -: 8 :- opportunities had been given to the petitioner to defend her case and that it was only after considering all the objections raised by the petitioner that the impugned orders were passed. It is, therefore, contended that the contentions raised by the petitioner are untenable and that the orders impugned are liable to be upheld. 8. The learned senior counsel appearing for the petitioner contends that in view of the specific provision in the Service Rules providing a second opportunity to show cause against a proposed punishment which has admittedly not been granted to the petitioner in the instant case, the imposition of the penalty stands vitiated and that the petitioner is liable to be given an opportunity to place on record her objections to the punishment sought to be imposed on her. It is contended that the imposition of the penalty without complying with the procedure as provided in the Rules is completely untenable. 9. The learned counsel appearing for respondents 1 to 3 would, on the other hand, place reliance on the decision of the Apex Court in **Union of India and others** v. **Mohd. Ramzan Khan** [(1991) 1 SCC 588] to contend that after the 42[nd] WP(C) NO.12740 OF 2021 -: 9 :- amendment to the Constitution the contention that a second opportunity of hearing with regard to the proposed punishment is to be given to the petitioner before the punishment is so imposed is untenable. Relying on the decision in **Managing Director, ECIL, Hyderabad and others** v. **B. Karunakar and others** [(1993) 4 SCC 727], it is contended that even in case a second opportunity is not granted to the petitioner, the petitioner has to show that prejudice was caused due to the non-grant of the said second opportunity and in the absence of such prejudice, the penalty imposed is liable to be upheld. It is further contended that even in case all the contentions of the petitioner are to be accepted, the petitioner has raised the nongrant of the opportunity to object to the proposed punishment as a ground in Ext.P11 appeal and all that is required to be done is a reconsideration of the appeal taking note of the said objections as well. 10. I have considered the contentions advanced on either side. The specific case of the learned Senior Counsel appearing for the petitioner is that there is a clause in the Service Rules which provides for, a) the furnishing of a copy of WP(C) NO.12740 OF 2021 -: 10 :- the report of the enquiry with the reasons for disagreement, if any, with the findings of the enquiry officer by the disciplinary authority to the delinquent officer and b) a show cause notice to be issued to the delinquent employee pointing out the proposed punishment and seeking his/her explanation to the same. In the instance case, it is not in dispute that a copy of the enquiry report had been forwarded to the petitioner. The petitioner had submitted her objections to the enquiry report. Thereafter, it is clear that Ext.P10 order has been passed inflicting the punishment of dismissal without any further notice being issued as to the proposed punishment. The petitioner submitted Ext.P11 appeal specifically raising this aspect as a ground therein. Paragraphs 14 and 15 of Ext.P11 appeal is evidence of this fact. The appeal was dismissed by Ext.P13 without considering the contentions of the petitioner. The petitioner challenged the order imposing the penalty as well as the appellate order before this Court in W.P.(C) No.25969/2020 which led to Ext.P14 judgment. This Court set aside Ext.P13 appellate order on the ground that the said order was not one passed after hearing the petitioner. The order was WP(C) NO.12740 OF 2021 -: 11 :- set aside and a reconsideration of the appeal was ordered. However, it was made clear that all the contentions of the parties on merits are left open to be pursued in future, if so advised. It is thereafter that Ext.P15 order was passed in appeal apparently after hearing the petitioner as well. 11. However, it is clear from the order passed in appeal that the specific contention raised by the petitioner that she was not given a show cause notice showing the proposed punishment against her and that no opportunity was given to her to submit a representation against the same has not been considered by the Appellate Authority. The Service Rules, as extracted by the petitioner admittedly provides for an opportunity to show cause against the proposed punishment. In the above view of the matter, I am of the opinion that the contention raised that the petitioner is not prejudiced by the non-grant of the opportunity to show cause against the proposed punishment cannot be countenanced. In the above view of the matter, I am of the opinion that the impugned orders cannot be sustained. Exts.P15 and P10 orders are, therefore, set aside. There will be a direction WP(C) NO.12740 OF 2021 -: 12 :- to the respondents to issue a show cause notice to the petitioner requiring her to show cause against the proposed punishment and to give her an opportunity to object to the same. The objections of the petitioner against the show cause notice shall be taken into account and an appropriate order shall be passed, taking note of the objections raised by the petitioner as well. Necessary shall be done 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** Jvt/22.9.2022 WP(C) NO.12740 OF 2021 ## -: 13 :- ## **APPENDIX OF WP(C) 12740/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF ORDER NO.KSHDC/G2/PF/1314/2017-18 DATED 8.1.2018 ISSUED BY R2. Exhibit P2 TRUE COPY OF SHOW CAUSE NOTICE-CUM-CHARGE MEMO NO.KSHDC/G2/PF/1826/2017-18 DATED 23.3.2018 ISSUED BY R2. - Exhibit P3 TRUE COPY OF EXPLANATION DATED 12.4.2018 SUBMITTED BY THE PETITIONER. - Exhibit P4 TRUE COPY OF COMPLAINT DATED 15.1.2020 SUBMITTED BY THE PETITIONER BEFORE R2. - Exhibit P5 TRUE COPY OF COMPLAINT DATED 6.3.2020 SUBMITTED BY THE PETITIONER BEFORE THE MANAGER (ADMN. IN CHARGE KSHDC LTD. KANNUR. - Exhibit P6 TRUE COPY OF ENQUIRY REPORT DATED 22.2.2020 SUBMITTED BY THE ENQUIRY OFFICER ADV. SRI ABHAYAKUMAR BEFORE R1. - Exhibit P7 TRUE COPY OF NOTICE KSHDC/G2/PF/12/2020-21 DATED 2.6.2020 ISSUED BY R2. Exhibit P8 TRUE COPY OF REQUEST DATED 10.6.2020 SUBMITTED BY THE PETITIONER. - Exhibit P9 TRUE COPY OF OBJECTION DATED 17.8.2020 SUBMITTED BY THE PETITIONER. Exhibit P10 TRUE COPY OF ORDER NO.KSHDC/G2/PF/166/2020-21 DATED 26.8.2020 ISSUED BY R2. - Exhibit P11 TRUE COPY OF APPEAL DATED 3.9.2020 SUBMITTED BY THE PETITIONER BEFORE THE BOARD OF DIRECTORS OF R1 Exhibit P12 TRUE COPY OF NOTICE NO.KSHDC/G2/PF/236/2020-21 DATED 18.9.2020 ISSUED BY R2. WP(C) NO.12740 OF 2021 -: 14 :- Exhibit P13 TRUE COPY OF ORDER NO.KSHDC/G2/PF/454/2020-21 DATED 17.11.2020 ISSUED BY R2. Exhibit P14 TRUE COPY OF JUDGMENT DATED 11.12.2020 IN WPC NO.25969 OF 2020. Exhibit P15 TRUE COPY OF ORDER NO.KSHDC/APPELLATE/893/2021-22 DATED 28.4.2021 ISSUED BY THE CHAIRMAN OF THE KERALA STATE HANDLOOM DEVELOPMENT CORPORATION LIMITED. RESPONDENTS' EXHIBITS :- ANNEXURE R1(a) : TRUE COPY OF ADDITIONAL CHARGE SHEET DATED 7.9.2018, ISSUED BY THE KERALA STATE HANDLOOM DEVELOPMENT CORPORATION LTD., KANNUR TO THE PETITIONER.