T. Radha v. Cochin Devaswom Board & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY ,THE 15TH DAY OF JANUARY 2019 / 25TH POUSHA, 1940** ## **WP(C).No. 28105 of 2018** ## **PETITIONER/S:** **SMT. T. RADHA** **AGED 52 YEARS, ADICHUTHALI, THANIKKUDAM BAGHAVATHY TEMPLE, THANIKKUDAM DEVASWAOM, KURICHIKARA P.O, THRISSUR -680028** **BY ADVS. SRI. ELVIN PETER P.J. SRI.K.R.GANESH** ## **RESPONDENT/S:** - **1 THE COCHIN DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, OFFICE OF THE COCHIN DEVASWOM BOARD, THRISSUR 680001** - **2 THE SECRETARY THE COCHIN DEVASWOM BOARD, THRISSUR - 680001** - **3 THE SPECIAL DEVASWOM COMMISSIONER THE COCHIN DEVASWOM BOARD, THRISSUR - 680001** - **4 THE ASSISTANT COMMISSIONER THRISSUR GROUP, THE COCHIN DEVASWOM BOARD,THRISSUR** - **5 THE DEVASWOM OFFICER THANIKKUDAM DEVASWOM KURICHIKKARA P.O, THRISSUR - 680028** **BY ADVS. SRI.K.P.SUDHEER, SRI. DILJITH K MANOHAR, SC, COCHIN DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 28105 of 2018 2 ## **JUDGMENT** The petitioner who is working as an Adichuthali (Sweeper) in Thanikkudam Bhagavathy Temple has filed this writ petition challenging the disciplinary proceedings initiated against her starting from Ext. P4 memo of charges and culminating in Ext.P9 order, by which a penalty of barring of four increments with cumulative effect is imposed on her. 2. The petitioner was placed under suspension as per Ext.P1 order dated 26.07.2017 on the ground that she refused to accept the order of transfer and filed a false complaint against the Devaswom Officer before the Police Station. Immediately thereafter Ext.P2 show cause notice was issued on 31.07.2017 proposing disciplinary action against her for the very same action. The petitioner submitted Ext.P3 representation stating that her suspension was illegal and alleging that the Devaswom Officer asked her to put signature in a blank paper and that he misbehaved towards her and the notice was issued in order to wreak vengeance against her. She had also stated that the order of transfer was not tendered to her. Thereafter she received Ext.P4 memo of charges with more or less similar allegations stating that her explanation to the Show Cause Notice was not satisfactory. Apart from that it was also alleged that the Devaswom Officer had reported that she used to report for duty only by 7 o'clock and she will leave the temple by 8.30 am and does not come in the evening. It was WP(C).No. 28105 of 2018 3 also alleged that she used to misbehave towards the co-workers and used to raise unnecessary complaints. 3. The petitioner submitted Ext.P5 explanation denying the allegations. She stated that there is no facility for transportation from near her residence which is 20 kms away and she starts from her house at 5.30am to catch the first bus, for which she has to walk 30 minutes and could reach the Temple only at 7 o'clock. She also stated that she used to return only after completing her work by 9.30 a.m and she has not committed any indiscipline. Explaining the difficulties faced by her on nonpayment of salary, the petitioner pointed out that the only source of her livelihood is out of the employment. She had also referred to the phone calls she has received, based on which she had filed a complaint. The respondents thereafter informed the petitioner that they have appointed one Advocate from Thrissur as an Enquiry Officer and enquiry would be conducted on 27.11.2017. 4. Petitioner objected to the appointment of an Advocate as enquiry officer, submitting Ext. P7 representation, stating that it is not permissible under Rule 15 (c) of KCS (CCA) Rules 1960. She had also submitted complaints alleging sexual harassment. She had requested to close the enquiry proceedings and to reinstate her. Thereafter she had filed W.P.(C) No.10964 of 2018 challenging the disciplinary action and seeking re- WP(C).No. 28105 of 2018 4 instatement. During the pendency of the writ petition she was reinstated. Respondent Board had also constituted a grievance committee. As per Ext.P8 judgment dated 08.06.2018 the writ petition was disposed of directing the respondents to finalise the disciplinary action, leaving open all the contentions. 5. Petitioner participated in the enquiry and the Enquiry Officer submitted a report finding her guilty of the charges. The Secretary of the Devaswom Board in Ext.P9 order stated that the Board accepted the report and though a notice was issued asking the petitioner to appear before the Board on 01.06.2018, in case she has to submit anything on the proposed punishment of barring her four increments with cumulative effect; but she did not turn up and hence Board decided to impose the penalty as proposed. This Writ Petition is filed at that stage. 6. Petitioner submits that the copy of the enquiry report was not furnished to her and even though she appeared before the Devaswom Board on 01.06.2018 on receipt of Ext.P10 notice, she was not informed either about the findings in the enquiry report or about the proposal of the punishment. Ext.P10 notice refers only to Ext.P7 representation submitted by the petitioner and the decision of the Board in its meeting held on 23.5.2018. 7. The respondents filed a counter affidavit stating that from Ext.P5 WP(C).No. 28105 of 2018 5 defence statement submitted by the petitioner pursuant to Ext.P4 memo it is clear that she has clearly understood all the allegations. In Ext.P5 defence statement she has denied all the charges levelled against her and has given her version on the alleged incident in detail. Regarding the appointment of the Advocate, it is stated that such appointment is made in accordance with Rule 15(b)(v) and the first respondent being a statutory authority can appoint a Special Officer for the purpose of domestic enquiry. The further contention regarding the non furnishing of the copy of the enquiry report is that the petitioner has not explained the prejudice that is caused on account of non supply of the copy of the enquiry report. It is stated that the enquiry was conducted after giving sufficient opportunity to the petitioner to defend. Relying on the judgment in _**Sarv U.P. Gramin Bank v. Manoj Kumar Sinha [2010 (3) SCC 556]**_ , the respondents stated that non supply of enquiry report does not vitiate the enquiry proceedings. 8. The contention of the petitioner is that there is no statement of allegations along with the memo of charge; the allegations in the memo of charges are vague; there is no provision for appointing an Advocate to conduct enquiry and therefore the entire disciplinary proceedings including the punishment awarded are vitiated for violation of the rules as well as principles of natural justice. The learned Counsel for the petitioner relied WP(C).No. 28105 of 2018 6 on the judgment of the Apex Court in _**Anant R. Kulkarni v. Y.P.Education Society**_ [AIR 2013 SC 2098] in support of the contention that enquiry is vitiated in the absence of clear and specific charges and in the absence of statement of allegations. The further contention is that Rule 15(2)(b) provides for appointment of only an officer under the Government to be deputed as Enquiry Officer and appointment of an Advocate as Enquiry officer is not permissible. Therefore, on that ground also the enquiry is vitiated. Further contention is that the respondents did not furnish a copy of the enquiry report to the petitioner and call for her remarks. It is also pointed out that the enquiry report is not furnished to her even along with the order of punishment. Therefore, on that ground also the penalty imposed on her is liable to be set aside. It is also contended that the penalty of barring of four increments with cumulative effect is highly disproportionate and awarded without complying with the procedure prescribed in the KCS (CCA) Rules 1960. 9. Heard the learned Counsel for the petitioner and the learned Standing Counsel. 10. The entire proceedings against the petitioner starts from the order of transfer which the petitioner is alleged to have refused to accept. In Ext.P2 show cause notice, the respondents had called for her explanation for not accepting the order of transfer when it was tendered by the WP(C).No. 28105 of 2018 7 Devaswom Officer. The petitioner had submitted her reply to it. Apart from that when the memo of charge was issued, the petitioner had submitted her explanation on each of the allegations. It is true that the memo of charge is not accompanied by the statement of allegations. 11. Regarding the appointment of an Advocate as enquiry officer, Rule 15 (2)(b) of KCS (CCA) Rules reads as follows: “The formal enquiry may be conducted by (i) the Government; (ii) the appointing authority; (iii) the disciplinary authority; (iv) the Head of the Department or any Officer of the Department empowered by the appointing authority of the Head of the Department; or (v) a special officer or tribunal appointed by the Government for the purpose or a tribunal generally appointed for making inquiries into the conduct of Government servants: xxxx”. Thus the Rules permit appointment of a Special Officer also as enquiry officer and it is not stated that such Special Officer shall be one employed under Government or in this case by the Devaswom Board. Therefore the said contention cannot be accepted. 12. However it is seen that the copy of the enquiry report is not furnished to the petitioner. Only if the petitioner come across the enquiry report, she will be able to submit her defence. The enquiry report is not given to her even after filing this writ petition. She will be able to even point out the prejudice that is caused to her in awarding the punishment, WP(C).No. 28105 of 2018 8 only after going through the report. Therefore by the refusal to furnish the copy of the enquiry report before imposing a major penalty, the respondents have denied her an effective opportunity to defend in violation of the procedure prescribed in the Rules. 13. Therefore, Ext.P9 order is set aside. Respondents shall be free to proceed from the stage at which enquiry officer submitted the report. The contention regarding the vagueness of memo of charge as well as absence of statement of allegation is left open. In case such proceedings are started, it shall be finalised within a period of three months from the date of receipt of a copy of the judgment. The Writ Petition is allowed to the extent indicated above. **Sd/-** **P.V.ASHA** SPR **JUDGE** WP(C).No. 28105 of 2018 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF SUSPENSION ORDER 26.7.2017 ISSUED TO THE PETITIONER** - **EXHIBIT P2 TRUE COPY OF SHOW CAUSE NOTICE DT. 31.7.2017** - **EXHIBIT P3 TRUE COPY OF REPLY DT. 1.8.2017 ISSUED BY THE PETITIONER** - **EXHIBIT P4 TRUE COPY OF CHARGE MEMO DT. 19.8.2017 ISSUED TO THE PETITIONER** - **EXHIBIT P5 TRUE COPY OF REPLY DT. 23.8.17 ISSUED BY THE PETITIONER** - **EXHIBIT P6 TRUE COPY OF NOTICE DT. 21.11.17 ISSUED BY ADV.K.S.RAVISANKAR** - **EXHIBIT P7 TRUE COPY OF REPRESENTATION DT. 5.3.2018 FILED BY THE PETITIONER** - **EXHIBIT P8 TRUE COPY OF JUDGMENT DATED 8.6.2018 IN WPC NO. 10964/2018** - **EXHIBIT P9 TRUE COPY OF THE ORDER NO. M4.935/2015 DATED 18.7.2018 ISSUED BY THE 1ST RESPONDENT BOARD.** - **EXHIBIT P10 TRUE COPY OF NOTICE DATED 29.5.2018 ISSUED BY THE 1ST RESPONDENT BOARD.** - **EXHIBIT P11 TRUE COPY OF THE DATED 11.6.2018 ISSUED BY THE CHAIRPERSON OF THE INTERNAL COMPLAINTS COMMITTEE** - **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R1 TRUE COPY OF THE ENQUIRY REPORT DATED** - **03.03.2018 SUBMITTED BY ENQUIRY OFFICER IS PRODUCED HEREWITH AND MARKED AS EXHIBIT R1**