K.T.Santhosh Kumar vs Kerala Tourism Development ...
2021 Latest Caselaw 2729 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

      MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942

                       WP(C).No.7481 OF 2011(I)


PETITIONER:

               K.T.SANTHOSH KUMAR
               KERALA TOURISM DEVELOPMENT CORPORATION, HOTELS &
               RESORTS LTD., RESIDING AT, V.P.V/1565, MUKKOLA
               JUNCTION,, NETTAYAM P.O., THIRUVANANTHAPURAM.

               BY ADVS.
               SRI.R.GOPAN
               SRI.M.SREEKUMAR

RESPONDENTS:

      1        KERALA TOURISM DEVELOPMENT CORPORATION
               HOTELS & RESORTS LTD., REPRESENTED BY ITS, MANAGING
               DIRECTOR, CORPORATE OFFICE,, MASCOT SQUARE,
               THIRUVANANTHAPURAM.

      2        MANAGING DIRECTOR KERALA TOURISM
               DEVELOPMENT CORPORATION HOTELS & RESORTS LTD.,,
               CORPORATE OFFICE, MACOT SQUARE,, THIRUVANANTHAPURAM.

               R1 BY ADV. SMT.CHINCY GOPAKUMAR
               R1 BY ADV. SRI.B.GOPAKUMAR


               SRI. P.A.AHAMED(SC)

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
25.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.7481 OF 2011                      2

                                 JUDGMENT

The petitioner, who is stated to have been

working as a Manager Grade - II, in the

services of the "Kerala Tourism Development

Corporation Hotels & Resorts Ltd".(KTDC for

short), has approached this Court impugning

Exts.P1 and P3 Memos of Charges issued

against him in the years 2003 and 2004,

wherein it is alleged that certain misconduct

had been detected from his side.

2. The petitioner says that even though

an enquiry was conducted thereafter,

culminating in Ext.P5(a) report - which was

forwarded to him through Ext.P5 letter dated

12.04.2004 - no action was taken subsequent to

it, though he had replied to the same through

Ext.P6. The petitioner says that he was,

therefore, under the bonafide impression that

all action pursuant to the enquiry had been

dropped, but that to his surprise, he was

served with Ext.P7 notice, dated 28.02.2011,

more than seven years later, asking him to

show cause why the proposed punishment of

"reduction to a lower post", be not imposed

against him.

3. The petitioner says that Ext.P7 is

illegal and that continuation of the

disciplinary proceedings against him is

without sanction in law, because of the

inordinate delay which has been caused after

the enquiry against him had been completed.

The petitioner, in substantiation of his plea,

relies on three judgments of the Hon'ble

Supreme Court in State of A.P. v.

N.Radhakrishnan [1998(4)SCC154], P.V.Mahadevan

v. M.D., T.N.Housing Board [2005(6) SCC 636]

and Union of India & Others v. J.Ahamed [AIR

1979 SC 1022] and contends that the large

unexplained and inordinate delay in completing

the enquiry proceedings, particularly after

the enquiry report had been settled, makes the

entire proceedings vitiated and hence liable

to be set aside by this Court.

4. I notice that a counter affidavit has

been filed on behalf of the 1st respondent,

wherein, the delay between Exts.P5 and P7 has

been conceded; but sought to be explained by

saying that, in the meanwhile, Ext.R1(a) memo

had been issued to the petitioner and that

there was various other complaints made

against him from other sources. However, the

counter affidavit concedes that no action had

been taken after Ext.P5(a) enquiry report

until Ext.P7 show cause memo had been issued

to the petitioner and as I have said above,

the delay of more than seven years is thus

unequivocally admitted.

5. That said, when one looks through

Ext.R1(a), it is clear that the allegations

therein had no bearing to those contained in

Exts.P1 or P3 charge memos and appear to be

completely new ones, perhaps based on the

inputs received subsequently. Therefore, the

assertion of the respondents that the

proceedings pursuant to Ext.P5(a) enquiry

report had been delayed solely on account of

Ext.R1(a) and other complaints received

against the petitioner cannot find my favour.

This is more so because, pertinently, even

though there has been no interim orders in

this case granted in favour of the petitioner,

no punishment appears to have been imposed

against him and that action pursuant to Ext.P7

has thus remained without conclusion.

6. In the afore circumstances, being

guided by the judgments of the Hon'ble Supreme

Court cited by the petitioner, particularly

N.Radhakrishnan (Supra), I am of the firm view

that the proceedings pursuant to Exts.P1 and

P3, cannot be now allowed to continue against

him at this distance of time. The observations

of the Hon'ble Supreme Court, in

N.Radhakrishnan (Supra), which is available in

Paragraph 19 thereof and which is extracted

infra would certainly justify the course that

I have adopted above:

"19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations."

In the conspectus of the above, I order

that all action pursuant to Exts.P1,P3 and P7

shall cease against the petitioner; though the

respondents are at liberty to initiate and

conclude the action based on any other

complaint that may be pending against him, in

terms of law, following due procedure and

after affording him necessary opportunity of

being heard as per the extant Rules and

Regulations.

TO BE SPOKEN TO ON 15.02.2021

This matter has been listed today 'To be

spoken to' at the request of the learned

Standing Counsel for the Kerala Tourism

Development Corporation (KTDC for short), who

submitted that the delay in the enquiry was,

in fact, caused by the petitioner and not on

account of any reason that can be attributed

to his client. He submitted that this has been

clearly stated in paragraphs 8 and 9 of the

counter affidavit filed on behalf of the KTDC

and therefore, prayed that the judgment of

this Court, dictated on 25.01.2021, be

modified to that extent.

2. Even though I have heard the learned

Standing Counsel for the KTDC as afore, when I

examine the averments in the counter

affidavit, particularly those in paragraphs 8

and 9 thereof, it is evident that the KTDC

only says that the petitioner had been

'making innumerable representations to the

Government of Kerala and other authorities

and he was causing undue delay in completing

the proceedings against him'. I fail to

understand how, merely because the petitioner

had been representing to the Government or to

any other Authorities, the KTDC should have

waited, not completing the disciplinary

proceedings against him and that too for an

inordinate period of more than seven years.

3. I cannot, therefore, find favour with

these submissions but take cognisance of the

submissions of the learned Standing Counsel

that there is also a complaint against the

petitioner that he had secured his employment

without acquiring the minimum qualifications.

I must certainly clarify that this aspect has

not been touched upon by me at all and that

even going by the judgment, I had let all

other issues open to be pursued by the KTDC

appropriately, if they are so interested,

after following due procedure.

4. It is needless to say, therefore,

that my judgment does not, in any manner,

fetter the rights of the KTDC in proceeding

against the petitioner for this or any other

charge, which is unrelated to the allegations

and issues in this Writ Petition.

It is so clarified and I, therefore, do

not deem it necessary to modify the judgment

in any manner.

Sd/-

DEVAN RAMACHANDRAN

JUDGE

MC/20.02.2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF MEMO NO.KTDC/PA/1/92/2003 DATED 25.4.2003.

EXHIBIT P2 TRUE COPY OF THE REPLY LETTER FROM THE PETITIONER DATED 11.6.2003 TO THE 2ND RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE MEMO OF CHARGE NO.KTDC/PA/1/92/04 DATED 13.1.2004.

EXHIBIT P4 TRUE COPY OF THE REPLY LETTER FROM THE PETITIONER DATED 15.1.2004 TO THE 2ND RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE LETTER NO.KTDC/PA1/92/04 DATED 12.4.2004.

EXHIBIT P5(A) TRUE COPY OF THE ENQUIRY REPORT DATED NIL.

EXHIBIT P6 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 30.4.2004.

EXHIBIT P7 TRUE COPY OF THE SHOW CAUSE NOTICE NO.KTDC/PAI/92/2011 DATED 28.2.2011.

EXHIBIT P8 TRUE COPY OF REPLY LETTER FROM THE PETITIONER DATED 11.3.2011 TO THE 2ND RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE SHOW CAUSE NOTICE NO.KTDC/PAI/92/2011 DATED 12.5.2011.

EXHIBIT P10 TRUE COPY OF REPRESENTATION SUBMITTED BY PETITIONER BEFORE THE 2ND RESPONDENT DATED 27.5.2014.

EXHIBIT P11 TRUE COPY OF THE LETTER NO.KTDC/PAI/PP/2013 DATED 20.4.2013 ISSUED BY THE 2ND RESPONDENT.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1(A) TRUE COPY OF MEMO NO.KTDC/PA(3)/42/09 DATED 18.04.2009.

EXHIBIT R1(B) TRUE COPY OF MEMO NO.KTDC/ACTS/MAR/2002-03 DATED 29.5.03.

EXHIBIT R1(C) TRUE COPY OF LETTER NO.KTDC/ACTS/S.DEBTORS/2003-04 DATED 4.12.03.

EXHIBIT R1(D) TRUE COPY OF MEMO NO.KTDC/PA(1)/S2/2000 DATED 18.7.2000.

EXHIBIT R1(E) TRUE COPY OF THE EXPLANATION OF THE PETITIONER TO R1(A) DATED 21.5.2009.

EXHIBIT R1(F) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE HONOURABLE MINISTER OF TOURISM DATED 21.5.2009.