Kerala High Court
Jayarajan R.C vs The District Collector & Chairman ... on 29 May, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 29TH DAY OF MAY 2024 / 8TH JYAISHTA, 1946
WP(C) NO. 12236 OF 2021
PETITIONER:
JAYARAJAN R.C.
AGED 49 YEARS
S/O.M.P.KUNHIRAMA PODUVAL, EXECUTIVE SECRETARY,
DISTRICT NIRMITHI KENDRA, KASARAGOD, RESIDING AT
'RAJEEVAM', VELLACHAL SOUTH, KODAKKAD, KASARAGOD
DISTRICT - 671 310.
BY ADVS.
M.SASINDRAN
V.VENUGOPAL
RESPONDENTS:
1 THE DISTRICT COLLECTOR & CHAIRMAN DISTRICT NIRMITHI
KENDRA,
COLLECTORATE, KASARAGOD - 671 121.
2 THE SUB COLLECTOR AND MEMBER SECRETARY
DISTRICT NIRMITHI KENDRA, KASARAGOD - 671 531.
3 THE EXECUTIVE COMMITTEE OF NIRMITHI KENDRA
KASARAGOD - 671 121, REPRESENTED BY ITS CHAIRMAN.
BY SRI.BIJOY CHANDRAN, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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W.P.(C) No.12236 of 2021
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Dated this the 29th day of May, 2024
J U D G M E N T
Ext.P19 order of the 1 st respondent, terminating the
services of the petitioner as the Executive Secretary of
the District Nirmithi Kendra, is under challenge in this
writ petition.
2. As per Ext.P2 proceedings dated 07.07.2018, the
petitioner was appointed as the Executive Secretary of
the District Nirmithi Kendra, Kasaragod. The appointment
was provisional for six months. Regularisation of
appointment was to be based on a performance appraisal.
After the expiry of six months, as required, the
petitioner submitted Ext.P3 performance report dated
09.04.2019. Subsequently on 17.10.2019, the petitioner
was issued with Ext.P4 notice raising various
allegations and as to why disciplinary proceedings
should not be initiated against him. The petitioner
submitted Ext.P5 reply. This was followed by Ext.P6
order of suspension dated 03.01.2020. Thereafter the
petitioner was served with Ext.P7 communication
intimating the appointment of an Enquiry Officer.
Pursuant to a notice issued by the Enquiry Officer, the
petitioner submitted Ext.P8 reply. Thereafter the
petitioner was served with Ext.P9 notice from the
Enquiry Officer to appear before him on 28.07.2020.
Thereafter on 07.10.2020, the petitioner was issued with
Ext.P11 memo of charges. This was followed by Ext.P13
communication dated 13.11.2020, dismissing the
petitioner from service. Such dismissal was based on the
decision of the Executive Committee of the Nirmithi
Kendra dated 04.02.2020.
3. Thereupon the petitioner challenged the order of
termination before this Court in W.P.(C) No.26865/2020.
This Court found that there is total violation of the
principles of natural justice. It was noticed that an
officer was appointed without serving any memo of
charges. It was also noticed that the termination of the
services of the petitioner was based on the decision of
the executive committee dated 04.02.2020, which is prior
to the issuance of memo of charges dated 07.10.2020. It
was further noticed that the order of dismissal from
service was without conducting any enquiry. As per
judgment dated 17.03.2021, this Court quashed the memo
of charges and also the order dismissing the petitioner
from service. However, the right of the respondents to
initiate fresh disciplinary proceedings in accordance
with law was left open.
4. The judgment in W.P.(C) No.26865/2020 was dated
17.03.2021. This was followed by Ext.P15 notice dated
27.04.2021 by the first respondent, raising the very
same allegations as were raised in the memo of charges.
The petitioner was asked to submit his explanations as
to why proceedings should not be initiated against the
petitioner in accordance with the bye-laws. In the said
notice, the subject mentioned was regarding the
regularisation of service of the petitioner. The
petitioner submitted Ext.P16 reply. This was followed by
Ext.P17 notice requiring the petitioner to show cause
why his services should not be terminated. It was also
intimated that the executive committee has decided not
to regularise the services of the petitioner and that
the petitioner may offer his submissions if any with
regard to the same. In response the petitioner submitted
Ext.P18 reply. As per Ext.P19, the services of the
petitioner was terminated. The same is under challenge
in this writ petition.
5. I have heard the learned counsel for the
petitioner and Sri.Bijoy Chandran, the learned Senior
Government Pleader. I have also perused the counter
affidavit filed by the first respondent.
6. Disciplinary proceedings were initiated against
the petitioner on certain set of allegations. The
proceedings were interfered with by this Court in W.P.
(c) No.26865/2020 for violation of the principles of
natural justice. The right of the respondents to
initiate fresh disciplinary proceedings in accordance
with law was left open. However, instead of initiating
fresh disciplinary proceedings, the respondents chose to
terminate the service of the petitioner by not
regularising his service. The appointment of the
petitioner under Ext.P2 was provisional for a period of
six months. It was specified therein that regularisation
will be based on performance appraisal. After the expiry
of six months, as was required by the respondents, the
petitioner submitted Ext.P3 performance report. It
appears that there were no orders passed on his
regularisation, and he continued in service. This was
followed by the disciplinary proceedings referred to
earlier. The present order of termination of the
services of the petitioner without regularising, is on
the very same set of allegations upon which the
disciplinary proceedings was initiated. Even according
to the respondents, grave irregularities are alleged
against the petitioner. It is on the basis of such
allegations that the respondents have taken a decision
not to regularise the services of the petitioner. The
respondents did not chose to initiate fresh disciplinary
proceedings on the allegations inspite of the liberty
granted by this Court in W.P.(C) No.26865/2020. But they
chose to terminate the services of the petitioner by not
regularizing his service. However, such decision not to
regularise his service is again based on the very same
set of allegations as was made in the earlier memo of
charges.
7. In Ratnesh Kumar Choudhary v. Indira Gandhi Institute of
Medical Sciences 2015 (15) SCC 151, the Apex Court held that
there is a marked distinction between the concept of
satisfactory completion of probation and punishing a
probationer for any defined misconduct, misbehaviour or
misdemeanor. It was held that, while deciding the issue
of suitability of the probationer, the misconduct may be
ignored and services terminated without casting any
aspersion or stigma which may adversely affect his
future prospects. But if such misconduct or misdemeanor
constitutes the basis for the final decision of the
authority against declaration of probation and
dispensing with the service, albeit by a non-stigmatic
order the court can lift the veil and declare that under
the garb of termination simplicitor the employer has
punished the employee for misconduct. A similar view was
expressed by the Apex Court in Rajasthan High Court v. Ved
Priya and Anr. 2020 (2) KLT 764. The Apex Court held that,
"21. True it is that the form of an order is not crucial to
determine whether it is simplicitor or punitive in nature. An order
of termination of service though innocuously worded may, in the
facts and circumstances of a peculiar case, also be aimed at
punishing the official on probation and in that case it would
undoubtedly be an infraction of Art.311 of the Constitution. The
court in the process of judicial review of such order can always lift
the veil to find out as to whether or not the order was meant to
visit the probationer with penal consequences. If the court finds
that the real motive behind the order was to 'punish' the official, it
may always strike down the same for want of reasonable
opportunity of being heard."
In the case at hand, as was noticed earlier, it is on
the very same set of allegations, which even the
respondents allege to be grave, that the present order
refusing to regularise the services of the petitioner,
was issued. The disciplinary proceedings initiated
against the petitioner was found to be vitiated and
interfered with by this Court. Though liberty was
granted to initiate fresh proceedings, without resorting
to the same, on the very same set of allegations
regularization was declined and services terminated. As
held by the Apex Court, it essentially amounts to
punishing the employee for an act of alleged misconduct
under the garb of non-regularisation in service. Ext.P19
order is thus liable to be set aside.
In the result, the writ petition is allowed.
Ext.P19 order terminating the services of the petitioner
from the post of Executive Secretary, Nirmithi Kendra,
Kasaragod, is quashed. However this shall be without
prejudice to the rights of the respondent to proceed
against the petitioner appropriately, in accordance with
law.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
APPENDIX OF WP(C) 12236/2021
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE RELEVANT EXTRACT FROM THE
MEMORANDUM OF ASSOCIATION OF DISTRICT NIRMTHI
KENDRA, KASARAGOD DISTRICT.
Exhibit P2 A TRUE COPY OF THE PROCEEDINGS DATED
07/07/2018 OF THE CHAIRMAN, DISTRICT NIRMITHI
KENDRA AND DISTRICT COLLECTOR, KASARAGOD, THE
FIRST RESPONDENT.
Exhibit P3 A TRUE COPY OF THE DETAILS SUBMITTED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT DATED
09/04/2019.
Exhibit P4 A TRUE COPY OF THE SHOW CAUSE NOTICE
NO.DCKSGD/2697/18/M5 DATED 17/10/2019 ISSUED
BY THE FIRST RESPONDENT TO THE PETITIONER.
Exhibit P5 A TRUE COPY OF THE REPLY SUBMITTED BY THE
PETITIONER BEFORE THE FIRST RESPONDENT DATED
29/10/2019.
Exhibit P6 A TRUE COPY OF THE ORDER OF SUSPENSION DATED
03/01/2020 VIDE NO.DCKSGD/2697/18/MS ISSUED
BY THE 1ST RESPONDENT TO THE PETITIONER.
Exhibit P7 A TRUE COPY OF THE COMMUNICATION
NO.DCKSGD/2697/2018-M5 DATED 22/01/2020
ISSUED BY THE 1ST RESPONDENT APPOINTING THE
ENQUIRY OFFICER IN REGARD TO THE SUSPENSION.
Exhibit P8 A TRUE COPY OF THE REPLY DATED 13/07/2020
SUBMITTED BY THE PETITIONER BEFORE THE
ENQUIRY OFFICER.
Exhibit P9 A TRUE COPY OF THE NOTICE
NO.EE/GENERAL/ENQUIRY,2020 DATED 22/07/2020
ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONER.
Exhibit P10 A TRUE COPY OF THE JUDGMENT DATED 25/08/2020
IN WP(C) NO.17650 OF 2020.
Exhibit P11 A TRUE COPY OF THE CHARGE MEMO
NO.DCKSGD/2697/18/M5(2) DATED 07/10/2020
ALONG WITH THE STATEMENT OF ALLEGATIONS.
APPENDIX-WP(C) 12236/2021
Exhibit P12 A TRUE COPY OF THE PROCEEDINGS NO.B/7363/18
OF THE MEETING OF THE EXECUTIVE COMMITTEE
DATED 04/02/2020.
Exhibit P13 A TRUE COPY OF THE ORDER DCKSGD/2697/18/M5
DATED 13/11/2020 ISSUED BY THE FIRST
RESPONDENT DISTRICT COLLECTOR AND CHAIRMAN
NIRMITHI KENDRA.
Exhibit P14 A TRUE COPY OF THE JUDGMENT DATED 17/03/2021
IN WP(C) NO.26865 OF 2020.
Exhibit P15 A TRUE COPY OF THE NOTICE
NO.DCKSGD/2697/18/MB(1) DATED 27/04/2021
ISSUED BY THE FIRST RESPONDENT TO THE
PETITIONER.
Exhibit P16 A TRUE COPY OF THE REPLY DATED 29/04/2021
SUBMITTED BY THE PETITIONER BEFORE THE FIRST
RESPONDENT.
Exhibit P17 A TRUE COPY OF THE PROCEEDINGS
NO.DCKSGD/2697/18/M5 DATED 28/05/2021 ISSUED
BY THE FIRST RESPONDENT TO THE PETITIONER.
Exhibit P18 A TRUE COPY OF THE REPLY DATED 01/06/2021
SUBMITTED BY THE PETITIONER TO THE FIRST
RESPONDENT.
Exhibit P19 A TRUE COPY OF THE ORDER NO.DCKSGD/2697/18/M5
DATED 10/06/2021, ISSUED BY THE FIRST
RESPONDENT, TO THE PETITIONER.
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