Karnataka High Court

Dr P Marutham W/O Rajesh Kannan vs The Executive Secretary on 13 October, 2023

Bench: N S Gowda

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                                                   NC: 2023:KHC:37573
                                                WP No. 16181 of 2011




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 13TH DAY OF OCTOBER, 2023

                                     BEFORE
                   THE HON'BLE MR JUSTICE N S SANJAY GOWDA
                    WRIT PETITION NO. 16181 OF 2011 (S-RES)
            BETWEEN:

               DR.P.MARUTHAM,
               W/O RAJESH KANNAN,
               AGED ABOUT 42 YEARS,
               R/AT No.829/1055,
               BOGADHI MYSORE MAIN ROAD,
               BOGADHI VILLAGE,
               MYSORE-570 026.
                                                        ...PETITIONER

            (BY SRI. A.MADHUSUDHAN RAO., ADVOCATE)

            AND:

               THE EXECUTIVE SECRETARY
               J.S.S.MAHAVIDYA PEETA,
               SRI.SHIVARATHRI RAJENDRA CIRCLE,
               MYSORE-570 004.
Digitally
signed by                                              ...RESPONDENT
PANKAJA S
Location:
HIGH        (BY SRI.B.M.HALASWAMY, ADVOCATE)
COURT OF
KARNATAKA
                   THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
            227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
            THE JUDGMENT DATED 03.09.2010 MADE IN E.A.T.No.1/2006
            ON THE FILE OF THE PRL. DISTRICT JUDGE AND EDUCATIONAL
            APPELLATE TRIBUNAL AT MYSORE, AS PER ANNEXURE-M, ETC.
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                                               NC: 2023:KHC:37573
                                            WP No. 16181 of 2011




      THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR    ORDERS     ON      03.10.2023,       COMING        ON   FOR
PRONOUNCEMENT      THIS     DAY,      THE    COURT    MADE     THE
FOLLOWING

                           ORDER

1. The petitioner was appointed as a Clinical

Psychologist in the respondent--J.S.S. Mahavidya Peetha,

Mysore (hereinafter referred to as "the Institution", for

the sake of convenience) in the year 1996.

2. On 31.01.2004, a complaint was lodged by the

petitioner against her Head of the Department ("the

HOD", for short) Dr.T.S.Satyanarayana Rao. In this

complaint, she contended that she was being subjected to

harassment by her HOD. One amongst the allegations

that she leveled against her HOD was that he had abused

her using unparliamentarily words with strong sexual

connotation in public and thereby caused humiliation to

her. She also alleged several incidents of harassment

relating to her work.

NC: 2023:KHC:37573 WP No. 16181 of 2011

3. It appears that no action was taken on this

complaint.

4. On 26.05.2004, i.e., four months after the petitioner

lodged the complaint against the HOD, her HOD--

Dr.T.S.Satyanarayana Rao lodged a complaint against the

petitioner. Two charges were leveled against her. The

first charge was that during a Departmental meeting in the

chamber of the HOD and in the presence of other

colleagues, she had hurled unparliamentary words against

the HOD. The second charge was that she had threatened

the HOD to the effect that nothing could be done to her

and she knows how to handle everybody and thereby, she

showed scant regard to the HOD.

5. On the basis of this complaint by the HOD, an

enquiry was conducted and the enquiry officer submitted a

report holding that the first charge that she had used

unparliamentary language against the HOD was proved,

while the second charge that she threatened the HOD has

not been proved.

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6. The Executive Secretary of the respondent--

Institution accepted the enquiry report and proceeded to

impose a punishment of withholding of one annual

increment, by order dated 07.04.2005 and this order was

not challenged by the petitioner.

7. On 04.01.2005, the petitioner sought for permission

of the Executive Secretary to prosecute the HOD on the

charges of criminal intimidation and other criminal

charges. This was obviously a continuation of her

complaint dated 31.01.2004, in which she had made

allegations against the HOD of improper behaviour.

8. The petitioner, thereafter, also preferred a private

complaint, which, after investigation, was registered as a

criminal case by the Criminal Court in C.C. No.2489 of

2007. In these proceedings, the taking of cognizance by

the Magistrate was challenged by the HOD by filing

Crl.R.P. No.507 of 2009 before the II Addl. District and

Sessions Judge, Mysore and the same was allowed on

26.03.2010 and the proceedings came to be quashed.

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9. This order was challenged by the petitioner by filing

another revision petition in Crl.R.P. No.780 of 2010,

however, the same had been rejected by order dated

13.02.2013.

10. A month after the punishment of withholding of one

increment was imposed on the petitioner, the Principal of

the College proceeded to address a letter to the Executive

Secretary on 30.05.2005. In this letter, the Principal

stated that the petitioner was in the habit of addressing

communications directly and despite warnings, she had

not changed her behaviour and the letter dated

09.05.2005 written by the HOD supported this fact. He

also stated in the said letter that the petitioner had shown

insubordination and failed to maintain professional

decorum and that she was also not cooperating with the

work of the Department. The Principal stated that the

petitioner had used unparliamentary words against the

HOD and she had refused to accompany him on rounds,

which was condemnable. He, therefore, ultimately

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requested that appropriate action be taken against the

petitioner.

11. On the basis of this letter, an order was passed on

15.07.2005 proposing to hold an enquiry against the

petitioner.

12. Three charges were leveled against her. The first

charge was that she had not accompanied the HOD during

the ward rounds and that amounted to dereliction of duty.

13. The second charge was that she had deliberately

disobeyed the directions of the HOD and had failed to

accompany the HOD during the ward rounds, which

amounted to a grave misconduct.

14. It has to be noticed here that both these charges

were essentially the same.

15. The third charge was that she had made sarcastic

remarks such as "so-called meetings" and "so-called

rounds" against the HOD and that also amounted to grave

misconduct.

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16. Thus, essentially the charges against the petitioner in

the second round was that she had failed to accompany

the HOD during his ward rounds and that she had made

some sarcastic remarks against him.

17. The enquiry officer appointed, conducted an enquiry

and came to the conclusion that the charges leveled

against the petitioner that she had not accompanied the

HOD on the ward rounds and had disregarded the

instructions of the HOD had been proved. The enquiry

officer, however, held that the charge that she had passed

sarcastic remarks had not been proved.

18. A copy of this enquiry report was furnished to the

petitioner and she, in turn, gave her reply.

19. The Executive Secretary, on consideration of the

reply of the petitioner, came to the conclusion that the

enquiry report merited acceptance and there were no

extenuating circumstances to mitigate the punishment and

he, therefore, came to the conclusion that it was a fit case

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to impose a major punishment and ordered that the

services of the petitioner would stand terminated with

immediate effect.

20. Being aggrieved by this order of termination, the

petitioner approached the Principal District Judge and

Education Appellate Tribunal, Mysore ('the Tribunal', for

short). The Tribunal, on consideration of the matter, came

to the conclusion that the enquiry report against the

petitioner had rightly been accepted and the punishment

imposed against her was also justified and it accordingly

proceeded to dismiss the appeal.

21. As against the said order, the petitioner is before this

Court.

22. As stated above, the essence of the charges levelled

against the petitioner was that she had not accompanied

the HOD during his ward rounds. If this charge is viewed

in the context of the complaint dated 31.01.2004 that had

been lodged by the petitioner earlier, in which one of the

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allegations was that the HOD had made remarks of sexual

connotation against the petitioner and also in the context

of the fact that an enquiry had been initiated against the

petitioner on the complaint of the HOD regarding her

arrogant behaviour and using unparliamentary words by

her, it is clear that there was a deep sense of ill-will and

distrust between the HOD and the petitioner.

23. It is also to be noticed here that the Management,

for the reasons best known to it, did not seek to conduct

an enquiry in response to the serious allegations made by

the petitioner that her HOD had made derogatory remarks

against her and had used the terms which had sexual

connotation.

24. In my view, notwithstanding the procedure that was

followed and the enquiry report that was submitted, this is

a case in which the respondent-Institution has acted in a

very unjust manner against the petitioner. The

Management has, on the mere allegation that the

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petitioner did not accompany her HOD on the ward

rounds, has proceeded to terminate her from service.

25. As already noticed above, in the light of a deep sense

of distrust that existed between the petitioner and her

HOD, the Management ought not to have taken

cognizance of the charges that the petitioner had not

accompanied her HOD on his ward rounds and therefore,

she deserved to be punished.

26. It is also to be noticed here that the first enquiry

against the petitioner was in respect of the allegation that

she had behaved arrogantly and had used

unparliamentary words against the HOD, and for this, she

had been punished with the penalty of withholding of one

annual increment.

27. In the second enquiry that was initiated against the

petitioner, one of the charges which was held to be not

proved was once again was of passing sarcastic remarks

by the petitioner. In fact, the second enquiry was not on

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the basis of a complaint made by the HOD directly, but the

HOD appears to have addressed a letter dated

09.05.2005, complaining of the improper behaviour of the

petitioner to the Principal, and the Principal had taken this

letter to make a further complaint.

28. It has to be borne in mind that on the first complaint

of the HOD, an order of punishment was imposed on

07.04.2005 and within a month thereafter, on the basis of

the Principal's letter dated 30.05.2005, a second enquiry

had been commenced, virtually on the charges which are

similar to the earlier charges, inasmuch as, both of them

relate to insubordination by the petitioner.

29. If the petitioner had already been punished by

withholding of her one annual increment for her improper

behaviour with her HOD, the Principal could not have

utilized the subsequent letter of the Principal to make a

recommendation for a second enquiry.

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30. This conduct, viewed from the background of the fact

that the petitioner had made an allegation that her HOD

had made remarks with sexual connotation, would lead to

an inference that the entire process of leveling charges

against the petitioner was obviously with a sense of bias

by her HOD and by her Principal.

31. The Enquiry officer has acknowledged the fact that

there were allegations and counter-allegations between

the petitioner and her HOD, however, he has given the

following reasoning:

"While looking at the other document like Ex-M.6, M.8, M.9, M.10 & M.11. I find that there are allegations and counter allegations by way of memos and replies between Dr.Rao & Dr.P.Marutham. Further Dr.P.Marutham is very serious in submitting before the enquiry that she has been harassed by Dr.Rao and also principal, JSS Medical College, Mysore, as detailed by her from Ex-E.1 to E.8 and she has also produced certain documents before the enquiry regarding her grievances against Dr.Rao and the

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Principal, and also as seen from the entire records which are placed before me by both the parties, I find that Dr.P.Marutham to defend the charges which are levelled against her, has submitted both oral and documentary Evidence before the Enquiry proceedings to substantiate her defence, and further as also seen from her own statement before the Enquiry which is said to have been conducted against Dr.P.Marutham, and further the 1st Enquiry is already completed and concluded, and it is the stand of Dr.P.Marutham that in the 1st Enquiry which was conducted against her the point of harassment and other problems and pin-pricks given by Dr.Rao is said to have been proved or substantiated by documents and through some of the witnesses who were presenting that Enquiry, but it is not so in this particular enquiry, where in, the allegation and the counter allegation has remained in the reply, objections and their statement, without being substantiated before the enquiry by Dr.P.Marutham, because if really she had a positive answer being received and said

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by the witnesses before the 1st enquiry, she could have definitely submitted the same, or at least called for the production of the same before the enquiry to substantiate her defence in respect of the charges which are levelled against her in this particular charge sheet. But as seen from the records, I do not find any such document having been produced by Dr.P.Marutham to substantiate that she was harassed by Dr.Rao and the principal. Under the above circumstances, I find that the allegation of harassment, the alleged problem made against her remains unanswered without any material or witnesses."

The enquiry officer ultimately came to the conclusion

that the allegation of harassment made by the petitioner

has not been established.

32. It has to be stated here that even though the

Management chose not to hold an enquiry against the

allegations made by the petitioner against the HOD,

nevertheless, the enquiry officer has proceeded to

exonerate the HOD and has come to the conclusion that

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the allegations made by the petitioner against the HOD

had not been proved and thereafter, exonerated the HOD.

33. This approach of the enquiry officer, in my view,

indicates that the entire process was used to exonerate

the HOD and at the same time harass the petitioner.

34. It is also to be borne in mind that the petitioner did,

in fact, seek permission of the Institution to prosecute her

HOD before the Criminal Court and the records do not

disclose whether any such permission was either granted

or refused.

35. The fact that the petitioner had lodged a private

complaint indicates that she had taken steps in accordance

with law against the HOD for the alleged misbehaviour. It

is, no doubt, true that the proceedings initiated by her

were quashed, but the fact that she did proceed with the

matter in accordance with law indicates that it was not a

case where the petitioner simply made an allegation

against her HOD.

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36. In my view, therefore, the entire proceedings

initiated against the petitioner on the basis of the

recommendation of the Principal, was motivated.

37. The Appellate Tribunal, in the impugned order dated

03.09.2010, has not even considered the proceedings in

relation to the second enquiry that was initiated on the

basis of the recommendation of the Principal.

38. The Management has gone on to consider the

enquiry report in relation to the first complaint, on the

basis of which the petitioner had already been imposed

with the punishment, to come to the conclusion that the

enquiry officer was justified in holding that the charges

had been proved. The relevant paragraphs which

establishes this fact is extracted as under:

"36. Now it has to be noted that, on perusal of the Enquiry Report which is marked as Ex.P.3 and the Management marked the same as Ex.P.8 before the Enquiry Officer, it is the finding of the Enquiry Officer that, looking into the

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evidence from the management side, all the 4 witnesses who have been examined as MW.1, MW.2, MW.3 and MW.4 have deposed that the appellant used the word 'Loafer' and also used the word 'I had enough of your drama' and the same was admitted by the appellant in the examination of the witnesses and also in her written argument and for this, there is no doubt about the delinquent employee used the word 'Loafer' and the word 'I had enough of your drama' against MW.1 and hence the Enquiry Officer has submitted the report that the remarks made against MW.1 is said to true beyond reasonable doubt that Charge No.1 is proved and the Management has succeeded in placing proper evidence for the same. Though the DE contended that the word used was not unparliamentary, but this word is not used by the prudent man in the normal and a decent communication between any persons. The context in which she was suing the word was accusative. It is further observed that moreover, she unequivocally admits and apologized for the same and hence the Enquiry Officer

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has come to the conclusion that the Charge No.1 is proved and answered Charge No.1 as affirmative.

37. Regarding the Charge No. No.2 the Management relied upon the evidence of MW.2,MW.3 and MW.4 and they categorically denied the Charge No.2 in their deposition and further all these witnesses stated that MW.1 himself created problems in the Department and the witnesses have also complained about the very short comings of the department of Psychiatry and the same is recorded and cited in the depositions of MW.2, MW.3 and MW.4 and further they stated that the allegations made in the complaint letter dated 26.05.2004 given by MW.1 is not true as per the evidence of MWs.2 to 4 and further the Enquiry Officer has made an observation that MW.1 has not produced sufficient materials during cross-examination to prove the Charge No.2 and the presenting officer, in his written argument insisted that, when the Management witnesses expressed their dissatisfaction about the behaviour of the

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HOD including chatting sex irrelevantly and teasing the staff members and also due to imposing this whims and fancies in the administration, the subordinate staff are not in good terms with MW.1. In view of these observations, the Enquiry Officer has given the finding that the presenting officer of the Management and the complainant have not produced sufficient evidence to prove the Charge No.2 and hence the Charge No.2 was not proved and answered in the negative."

It is, therefore, clear that the Tribunal has committed

a serious error in dismissing the appeal by considering the

findings of the first enquiry that had been conducted

against the petitioner.

39. In the view I have taken, it is necessary to hold that

the enquiry report, its acceptance and the imposition of

punishment against the petitioner were wholly improper

and completely unwarranted. The impugned orders are,

therefore, quashed.

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40. As a consequence, the petitioner shall be reinstated