WP(C) Nos. 9307/2021 & 10786/2021 (NIKHILA O.K. v. Kadambur Grama Panchayath; SHEEBA T. C. v. State of Kerala)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943** **WP(C) NO. 9307 OF 2021** ## **PETITIONER:** NIKHILA O.K. AGED 28 YEARS W/O.VIJESH.K., NREGS (NATIONAL RURAL EMPLOYMENT GUARANTEE SCHEME), RESIDING AT KUNDIL VEEDU, THEKKENMANAL, CHALAD P.O., KANNUR DISTRICT. BY ADVS. M.SASINDRAN SRI.V.VENUGOPAL ## **RESPONDENTS:** 1 THE KADAMBUR GRAMA PANCHAYATH KADAMBUR, KADACHIRA P.O., PIN-670 621, KANNUR DISTRICT, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY, KADAMBUR GRAMA PANCHAYATH, KADAMBUR, KADACHIRA P.O., PIN-670 621, KANNUR DISTRICT, REPRESENTED BY ITS PRESIDENT. 3 THE PANCHAYATH COMMITTEE KADAMBUR GRAMA PANCHAYATH,KADAMBUR,KADACHIRA P.O670621,KANNUR DISTRICT REPRESENTED BY ITS PRESIDENT. 4 THE JOINT PROGRAMME CO-ORDINATOR, MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE SCHEME, OFFICE OF THE DISTRICT PROGRAMME CO-ORDINATOR, KANNUR-670 001. BY ADVS. T.ASAFALI LALIZA.T.Y. ## **OTHER PRESENT:** GP PARVATHY KOTTOL **WP(C)Nos.9307/2021& 10786/2021** 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.09.2021, ALONG WITH WP(C).10786/2021, THE COURT ON 7/10/2021 DELIVERED THE FOLLOWING: **WP(C)Nos.9307/2021& 10786/2021** 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943** **WP(C) NO. 10786 OF 2021** ## **PETITIONER:** B SHEEBA T. C. AGED 44 YEARS W/O. ROOPESH N., ACCOUNTANT CUM IT ASSISTANT, NREGS (NATIONAL RURAL EMPLOYMENT GUARANTEE SCHEME), KADAMBUR GRAMA PANCHAYATH, KANNUR DISTRICT., RESIDING AT 'NAVATH HOUSE', KIZHUNNAPPARA, KIZHUNNA P. O., KANNUR DISTRICT - 670 007. BY ADV C.LEENA ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, LSGD, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE KADAMBUR GRAMA PANCHAYATH KADAMBUR, KADACHIRA P. O. - 670 621, KANNUR DISTRICT, REPRESENTED BY ITS SECRETARY. 3 THE SECRETARY THE KADAMBUR GRAMA PANCHAYATH, KADAMBUR, KADACHIRA P. O. - 670 621, KANNUR DISTRICT. 4 THE PANCHAYATH COMMITTEE KADAMBUR GRAMA PANCHAYATH, KADAMBUR, KADACHIRA P. O. - 670 621, KANNUR DISTRICT, REPRESENTED BY ITS PRESIDENT. 5 THE JOINT PROGRAMME CO-ORDINATOR MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE SCHEME, OFFICE OF THE DISTRICT PROGRAMME COORDINATOR, KANNUR - 670 001. BY ADVS. T.ASAFALI LALIZA.T.Y. **WP(C)Nos.9307/2021& 10786/2021** 4 GP PARVATHY KOTTUR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.09.2021, ALONG WITH WP(C).9307/2021, THE COURT ON 7/10/2021 DELIVERED THE FOLLOWING: **WP(C)Nos.9307/2021& 10786/2021** 5 ## **COMMON JUDGMENT** **[WP(C) Nos.9307/2021, 10786/2021]** In W.P.(C) No.9307/2021, the petitioner was employed as an Overseer working under the Mahathma Gandhi National Rural Employment Guarantee Scheme(hereinafter referred to as MGNREG scheme for abbreviation) under the first respondent Grama Panchayath. She was issued with Ext.P1 appointment order dated 30/1/2019 on a contract basis for one year. Subsequently it was extended upto 31/3/2021. MGNREG scheme is a project under the Government of India and is a continuing programme undertaken by the Grama Panchayath. The present panchayath committee took charge on 21/12/2020. By Ext.P5 communication dated **3** 1/3/2021 issued by the second respondent secretary of the Grama Panchayath, the petitioner was informed that her term is not extended beyond 31/3/2021. It was stated therein that it was pursuant to the decision of the panchayath committee. Ext.P6 reply was submitted by her explaining her stand. Alleging that the management was bent upon the terminating the service of the petitioner and one Sheeba, who was also employed under the scheme (who is the writ petitioner in W.P.(C) No.10786/2021), the petitioner has approached this court challenging the order of the termination. The relief sought in the writ petition is to declare that Ext.P3 resolution of the panchayath will not apply to the petitioner and to set aside Ex.P4 resolution to the extent it applies to the petitioner and to quash Ext.P5 order of non renewal of contract of employment. **WP(C)Nos.9307/2021& 10786/2021** 6 2. The writ petitioner in W.P.(C) No.10786/2021 has approached this court seeking identical relief as that of the W.P.(C) No.9307/2021 as against the same panchayath. The writ petitioner was appointed by the panchayath as the Accountant-cum-IT Assistant working under the MGNREG scheme as above. She was appointed on 25/1/2013. Subsequently, her service was extended from time to time and while so, she was served with Ext.P1 order dated 20/3/2021 issued by the Secretary of the Panchayath informing her that her tenure will not be extended after 31/3/2021. The above order refers to the resolution of the panchayath consequent to a dispute relating to transfer of funds to another account. Ext.P2 is the Panchayath resolution and Ext.P3 is the communication issued by the 5[th] respondent- Joint Programme Co-ordinator of MGNREG scheme. 3. In both cases facts are identical. Both the petitioners challenge the respective notices served on them informing them that their contract of service expiring on 31/3/2021 will not be renewed thereafter. In both the termination orders, there is a specific reference to the resolution of the Panchayat which took the decision consequent to a dispute relating to transfer of funds. 4. The specific contention of both the writ petitioners is that the termination order was mala fide and punitive in nature. It was contended that, though ultimately by the respective orders in the case of each of the writ petitioner they were informed that the contract will not be renewed after 31/3/2021, both refers to the resolution of the Panchayath which was consequent to the allegations that due to the conduct of the petitioners, fund **WP(C)Nos.9307/2021& 10786/2021** 7 payable to one person was wrongly transferred to the account of another person. It seems that an enquiry was ordered to be conducted. Ext.P3 is the communication issued by the joint programme coordinator of MGNREG scheme addressed to the President of the Panchayath informing them that an enquiry was conducted and it was found that there was serious latches from the side of Sheeba C.T. who is the writ petitioner in W.P.(C) No.10786/2021. He recommended that necessary action may be taken in that regard. Thereupon, the Grama Panchayath met and by its resolution dated 16/3/2021, took note of the allegations. The Panchayath committee referred to transfer of certain funds payable in favour of contractor and the amount was transferred to the account of another contractor. An enquiry was conducted by a committee of Block Programme Officer, MGNREG scheme, Panahcyath Secretary and the District Social officer and based on their report, a direction was issued by the Joint Programme Co-ordinator to the Panchayath to take necessary action. Consequently, the panchayath committee resolved not to renew the contract of the writ petitioners beyond 31/3/2021. A reference to the letter of the Joint Programme Coordinator and the resolution of the panchayath considered in the background of the order by which the contract of employment was not renewed, clearly shows that the non renewal was pursuant to the misconduct alleged against the writ petitioners. In the letter of Joint Programme Coordinator, it was specifically stated that the enquiry revealed serious latches on the part of the writ petitioner in W.P.(C) No. 10786/2021. However, the name of the writ petitioner in W.P.(C) No.9307/2021 is not even referred in it. Clearly, enquiry **WP(C)Nos.9307/2021& 10786/2021** 8 apparently did not find any latches on the part of the writ petitioner in W.P.(C) No.9307/2021. However, the Panchayath resolution proceeded to club both the writ petitioners together and a resolution casting stigma on them was adopted, . The termination order was consequent thereto. In these background it is evident that the termination order is punitive since it has cast a stigma by raising an allegation on the conduct of the writ petitioners. 5. The writ petitioners specifically relied on the decisions of the Supreme Court in _**Vijayakumaran C.P. v.Central University of Kerala & others (2020 (1) KHC 982)**_ wherein it was held that when an order of termination is ex facie stigmatic and punitive, it ought to have been issued only after subjecting the incumbent to a regular enquiry as per the service rules and when no such enquiry was done,the court would be justified in ordering reinstatement. This court in _**Arunkumar v. Information Kerala Mission(IKM) Tvm. and others (2015 (5) KHC 549)**_ held that, it was trite that a contract employee could be terminated under the terms of contract, in the event of his service being found to be surplus in which event, the termination would amount only to termination simpliciter. However, when allegations are raised and on the basis of such allegations, an employee , whether in regular service on in contract terms, was terminated from service, on the foundation of such allegations, necessarily there has to be domestic enquiry, in which the employee would be given an opportunity to defend himself. Strongly, canvasing the above position, the learned counsel for the writ petitioners contended that the orders terminating their services by non renewal, prima facie, was punitive in nature, which were **WP(C)Nos.9307/2021& 10786/2021** 9 not preceded by an enquiy. It was further contended by the learned counsel for the writ petitioner in W.P.(C) No.9307/2021 additionally, that the allegations were made against her, even though no finding was rendered by the enquiry committee, as against her. 6. Countering this contention, learned counsel for the Panchayath vehemently contended that though certain reference to the alleged misconduct was made, a termination was only a termination simpliciter . It was not punitive termination and the order did not say that they were guilty or the termination was for any misconduct. The respective orders only casually referred to the resolution and came into force by virtue of non renewal of contract of employment and it resulted in automatic termination. Consequently, the termination was due to non renewal contract of employment after the expiry of the contract period. In the above circumstances, it was not a stigmatic termination, but only termination simpliciter. 7. To support this proposition, the learned counsel specifically relied on the Division Bench decision of this Court in _**Noorjihan A. v. State of Kerarla in W.A.No.1570/2018.**_ In that case, at paragraph 28 it was held that, if the contract period was over, then a termination simpliciter without a stigma attached would be perfectly in order. It was held that in cases where the contractual period was not over, necessarily termination on allegation of misconduct can only be after following the due procedure. However, even if an allegations are raised against an employee in the contractual period or when continued after that for reason of interim order of court; if now the contractual **WP(C)Nos.9307/2021& 10786/2021** 10 period is over and he/she has been continued on the basis of the interim order of the court, necessarily on dismissal of the appeals, there could be termination simpliciter. The learned counsel for the Panchayat tried to rely on this decision and to canvass the stand that if the termination was by invoking clause in the order of employment, by which the contract was not renewed after its expiry , the termination can only be a termination simpliciter. 8. I am not attracted by the above decision since the above decision of the Division Bench seems to be perfectly in consonance with the two decisions referred to earlier in Vijayakumar's case(Supra) and Arunkumar's case(supra). Substantially, no deviation has been made by the Division Bench of this Court from the earlier decisions. 9. Precisely, the order of termination refers to allegation of misconduct . The order clearly shows that the cause for non renewal was the resolution of the Panchayath which took note of the enquiry report and resolved not to renew it. This was consequent to the communication of the Joint Programme coordinator who had sought necessary action pursuant to the domestic enquiry report. Hence, the non renewal of the contract of employment is based on a satisfaction arrived at by the panchayath that an action was liable to be taken against the employees who were referred to in the enquiry report. Hence, non renewal is directly linked to the allegation of misconduct. Further, even without any specific allegation, the writ petitioner in W.P.(C) No.9307/2021 is proceeded against. 10. Both the writ petitioners invited my attention to an exhibit produced **WP(C)Nos.9307/2021& 10786/2021** 11 along with the writ petitions which is communication of the District Programme Officer of MGNREG scheme by which he had specifically referred to the tendency among the certain panchayaths to terminate the service of employees without any cause. It stated that several employees were terminated or attempted to be terminated without following the specific conditions. The persons having long standing experience being terminated in such a manner affects the scheme as well as the life of such employees, it was held. Consequently, it was directed that even if there was serious latches on the part of the employees, there should not be termination without issuing show cause notice and memo of charges and without establishing the allegation, termination would be a improper. Hence, the panchyaths were directed to be careful in that regard. 11. It was contended by the writ petitioners that in the light of the above circular, the Panchyat was bound to conduct enquiry in the present case. Hence, the action of the Panchayat amounted to breach of Ext.P6 and also principles of natural justice. 12. The learned counsel for the Panchayat answered this by contending that the right to appoint persons under the Scheme was vested with the Panchayats by the Government. Termination being an incident and an integral part of the right of employment. The Joint Progoramme Co-ordinator was not entitled to interfere in the right of termination unless the Government has specifically restricted it. 13. I am not attracted by the above argument. Panchayath cannot, **WP(C)Nos.9307/2021& 10786/2021** 12 notwithstanding the above circular, terminate contrary to the law laid down by the Supreme Court. Further, in Ext.P6, there is no transgression into the right of the employer for termination but only cautioning the authorities to comply with the directions and to exercise the right of termination in accordance with law. 12. Having considered this, I am inclined to hold that the termination is bad in law and hence liable to set aside. Consequently, Ext.P1 in W.P.(C) No.9307/2021 and Ext.P5 in 10786/2021 stands quashed. The writ petitioners will be deemed to be continuing in service notwithstanding the above orders. The Panchayat will be free to proceed against them if it so resolved, however only in accordance with law as mentioned above. The writ petitions are allowed to the above extent. Sd/- ## **SUNIL THOMAS** **Judge** dpk **WP(C)Nos.9307/2021& 10786/2021** 13 ## **APPENDIX OF WP(C) 10786/2021** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER DATED 20.03.2021 BY 3RD RESPONDENT SECRETARY SERVED ON THE PETITIONER ON 31.03.2021. EXHIBIT P2 TRUE COPY OF RESOLUTION DATED 16.03.2021 OF 4TH RESPONDENT PANCHAYATH COMMITTEE. EXHIBIT P3 TRUE COPY OF LETTER DATED 12.03.2021 ISSUED BY 5TH RESPONDENT. EXHIBIT P4 TRUE COPY OF REPLY TO EXHIBIT P3 BY PETITIONER. EXHIBIT P5 A TRUE COPY OF THE RECEIPT SUBMITTED DATED 27.01.2021 BY CONTRACTOR NAMELY NIVED. EXHIBIT P6 A TRUE COPY OF THE COMMUNICATION DATED 10.03.2021 ISSUED BY JOINT PROGRAMME COORDINATOR, PATHANAMTHITTA TO ALL BLOCK PROGRAMME OFFICERS. **WP(C)Nos.9307/2021& 10786/2021** 14 ## **APPENDIX OF WP(C) 9307/2021** PETITIONER EXHIBITS |EXHIBIT P1|A TRUE COPY OF THE ORDER NO.D-5075/18 DATED| |---|---| ||31.01.2019 ISSUED BY THE SECRETARY OF| ||KADAMBUR GRAMA PANCHAYATH (HEREINAFTER FOR| ||SHORT, THE PANCHAYTH ONLY).| |EXHIBIT P2|A TRUE COPY OF THE RESOLUTION DATED| ||29.04.2020 OF THE PANCHAYATH.| |EXHIBIT P3|A TRUE COPY OF THE LETTER DATED 12.03.2021| ||ISSUED BY THE 4TH RESPONDENT JOINT| ||PROGRAMME CO ORDINATOR TO THE PRESIDENT OF| ||THE PANCHAYATH.| |EXHIBIT P4|A TRUE COPY OF THE RESOLUTION DATED| ||16.03.2021 OF THE 3RD RESPONDENT PANCHAYATH| ||COMMITTEE.| |EXHIBIT P5|A TRUE COPY OF THE ORDER DATED 20.03.2021| ||ISSUED BY THE SECRETARY SERVED ON THE| ||PETITIONER ON 31.03.2021.| |EXHIBIT P6|A TRUE COPY OF THE REPLY SUBMITTED BY THE| ||PETITIONER BEFORE THE PANCHAYATH.| |EXHIBIT P7|A TRUE COPY OF THE RECEIPT SUBMITTED BY THE| ||CONTRACTOR NAMELY NIVED.| |EXHIBIT P8|A TRUE COPY OF THE COMMUNICATION DATED| ||10.03.2021 ISSUED BY THE JOINT PROGRAMME| ||CO-ORDINATOR PATHANAMTHITTA TO THE BLOCK| ||PROGRAMME OFFICERS.| |Exhibit P10|A TRUE COPY OF THE GOVERNMENT ORDER AS G.O.| ||(MS) NO.1496/2021/LSGD DATED 9/8/2021| ||ISSUED BY THE GOVERNMENT| |RESPONDENT EXHIBITS|| |Exhibit R1|TRUE COPY OF THE DECISION OF THE 3RD| ||RESPONDENT PANCHAYAT COMMITTEE AT ITS| ||MEETING HELD ON 5TH JULY 2021|