Allowed

S.Girija v. Kerala State Development Corporation for

Kerala HC20 Jan 2012WP(C)/5793/2007

Case brief

AI extract

What is this about?

The court held that the Board of Directors did not give the petitioner an adequate opportunity of hearing before rejecting her appeal against disciplinary action. The writ petition was allowed, setting aside the impugned order and directing the appellate authority to reconsider the appeal with a hearing within three months.

What did the court decide?

Ext.P10 is set aside; the appellate authority is directed to reconsider the appeal after giving an opportunity of hearing within three months.

S.Girija Vs Kerala State Development… — Pension and Retirement Benefits | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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FRIDAY, THE 20TH DAY OF JANUARY 2012/30TH POUSHA 1933

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WP(C).No. 5793 of 2007 (M)

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PETITIONER(S): -------------

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S.GIRIJA, ASSISTANT GRADE I, KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD. ST.ANTONY'S COMPLEX, NAGAMPADAM, KOTTAYAM. BY ADVS.SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.PIRAPPANCODE V.S.SUDHIR

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RESPONDENT(S): --------------

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, SCHEDULED CASTES AND SCHEDULED TRIBES DEVELOPMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD. REGISTERED OFFICE, P.B.NO.523, TOWN HALL ROAD, THRISSUR-680 020, REPRESENTED BY ITS MANAGING DIRECTOR. R1 BY GOVERNMENT PLEADER SMT.LALY VINCENT R2 BY M.K.CHANDRAMOHAN DAS

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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VPV

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WPCNO.5793 OF 2007

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1:	COPY OF THE MEMO OF CHARGES NO.10174/A1/2000 DATED 7.10.2004 ISSUED TO THE PETITIONER.
EXT.P2:	COPY OF THE EXPLANATION DATED 25.10.2004 TO EXT.P1 SUBMITTED BY THE PETITIONER.
EXT.P3:	COPY OF THE ORDER NO.10174/A1/2000 DATED 5.11.2004 OF THE 2ND RESPONDENT.
EXT.P4:	COPY OF THE HEARING NOTE SUBMITTED BY THE PETITIONER.
EXT.P5:	COPY OF THE SHOW CAUSE NOTICE NO.10174/A1/2000 DATED 23.9.2005 ISSUED BY THE 2ND RESPONDENT.
EXT.P6:	COPY OF THE ENQUIRY REPORT SENT TO THE PETITIONER ALONG WITH EXT.P5.
EXT.P7:	COPY OF THE EXPLANATION DATED 10.10.2005.
EXT.P8:	COPY OF THE ORDER NO.10174/A1/2000 DATED 11.1.2006 OF THE 2ND RESPONDENT.
EXT.P9:	COPY OF THE APPEAL PETITION DATED 28.1.2006 OF THE CHAIRMAN OF THE K.S.D.C.
EXT.P10:	COPY OF THE ORDER NO.10174/A1/2000(2) DATED 13.10.2006.

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RESPONDENT'S EXHIBITS: NIL

/TRUE COPY/

P.A. TO JUDGE

P.R.RAMACHANDRA MENON,J.

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---------------------------------------- WP(C). No.5793 of 2007

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Dated this the 20^th day of January, 2012

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JUDGMENT

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The petitioner, who is an employee of the second respondent Corporation is before this Court, challenging the disciplinary action initiated against her in respect of some misconduct, culminating in the punishment imposed by the Managing Director of the Kerala State Development Corporation as per Ext.P8 order dated 11.01.2006 barring two increments with cumulative effect, which was subsequently modified in appeal, as barring of 'one increment' with cumulative effect as per Ext.P10 order.

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The sequence of the case is as follows:

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The petitioner was working as an Assistant Grade I in

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the regional office of the second respondent. She was having

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some grievance with regard to the alleged harassment by some superiors. It is also her case that she was telling all these facts to

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her son, who was the sole support for her in her life. There was

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WP(C). No.5793 of 2007

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also some grievance with regard to the denial of proper seniority to the petitioner, which was being sought to be agitated in accordance with the relevant provisions of the service rules.

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While the petitioner was serving the second respondent as above, she was served with Ext.P1 memo of charges dated 7.10.2004, which mainly consisted of the

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following two charges:

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i) You have arranged to send representation directly to Government albeit in the name of your son alleging aspersions on the senior officials and controlling officers ignoring the official channel.

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ii) Represented the Government, for getting redressal of the grievances like protection of Service Seniority, without availing the appropriate forums available in the Corporation for the purpose.

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The petitioner submitted Ext.P2 explanation, pointing out that the petitioner had never instructed her son to send any representation to the Government, as to the harassment by the superiors, though she used to discuss the cause and events in the office with her son, who sent a representation, on his own.

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WP(C). No.5793 of 2007

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Despite the explanation, Ext.P3 enquiry was ordered by the second respondent, upon which, the petitioner submitted Ext.P4 'notes of arguments' in respect of the evidence rendered. On conclusion of the enquiry, Ext.P6 enquiry report was submitted, whereby the enquiry officer arrived at the guilt of the petitioner. A copy of the enquiry report was forwarded to the petitioner and explanation was sought for, proposing to impose the penalty of barring of 'five' increments with cumulative effect, as per Ext.P5 show-cause notice. The petitioner submitted Ext.P7 explanation on 10.10.2005. However, allegedly without any proper appreciation of the facts and figures, the second respondent passed Ext.P8 order, whereby 'two' increments were cut of with cumulative effect, which in turn was subjected to challenge by filing Ext.P9 appeal before the Board of Directors, as provided. It is seen that the appeal was rejected by the Board of Directors and the same was communicated to the petitioner as per Ext.P10 order.

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Jelson.J.Edampadam, the learned counsel appearing

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WP(C). No.5793 of 2007

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for the petitioner submits that the course pursued by the respondents is per se wrong and illegal in all respects and that a 'major penalty' has been imposed upon the petitioner, that too, in respect of vague and flimsy charges as levelled in Ext.P1 charge sheet. The learned counsel further submits that the disciplinary action initiated and finalised against the petitioner is a measure of victimization. The learned counsel also submits that the son of the petitioner was examined in the enquiry, who clearly deposed that the grievance projected by him by sending a representation in respect of the atrocities/ harassment meted out by his mother, was as a dutiful son and never as instructed by the mother, i.e., the petitioner herein. With regard to the second charge, the learned counsel submits that the petitioner had submitted the representation only through proper channel, to be forwarded to the Government and it was after making the necessary endorsements that the Managing Director forwarded the same to the Government with the covering letter No. E1/Estt/178/KSDC/99 dated

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WP(C). No.5793 of 2007

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16.8.2004 as observed by the Enquiry officer himself in Ext.P6 Enquiry report. As put forward by the learned counsel, the only mistake if at all any committed by the petitioner, was to have forwarded an 'advance copy' of the said representation directly to the Government, after having submitted the original to be forwarded through proper channel. This being the position, the charge itself is not correct or sustainable as against the petitioner and even if it is sustainable, the punishment imposed upon the petitioner is a major penalty and is highly disproportionate to the gravity of the allegedly proven misconduct.

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In spite of the pendency of the writ petition from the year 2007, no counter affidavit has been filed by the respondents so far, rebutting the specific averments raised. This by itself shows the callous inaction and laxity on the part of the respondents in dealing with the issue projected by the petitioner. That apart, it is seen from the enquiry report that the representation, of which 'advance copy' was sent by the

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WP(C). No.5793 of 2007 6

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petitioner to the Government, the original was forwarded through proper channel. The enquiry officer has also referred to the relevant 'file number' and has observed that the original of said representation was routed through the Regional Manager Trivandrum, who had forwarded the same to the second respondent/Managing Director along with his letter number E1/Estt/178/KSDC/99 dated 16/8/2004 which in turn was sent to the Principal Secretary as per letter No.10174/ A1/2000 dated 31.8.2004 of the Managing Director. It is to be noted that the contents of the impugned proceedings give an idea that the petitioner ought to have persuade the specific course as provided by the relevant rules formulated by the second respondent by ventilating the grievance before the Managing Director, then before the Court and then only before the Government and hence that it was not correct on the part of the petitioner for having approached the Government directly. The fact remains that the original of the said representation was forwarded by the Regional Manager to the Managing

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WP(C). No.5793 of 2007 7

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Director, who in turn, sent the same to the Principal Secretary to the Government, along with the covering letter dated 31.8.2004. If the course pursued by the petitioner was not correct or justified, there was absolutely no reason for the Regional Manager to have sent the same to the Managing Director on 16.8.2004 and so also, the Managing Director ought not to have forwarded the same to the Principal Secretary to the Government on 31.8.2004 and the position ought to have been communicated to the petitioner stating that the representation cannot be forwarded to the Government before having the grievance considered and finalized by the Managing Director at the first instance and then by the Board, as contended by them. In any view of the matter, this Court does not intend to express anything further in this regard, but for the reference as to the total non-application of mind by the Managing Director as well. This vital aspect is not seen considered when the appeal preferred by the petitioner before the Board of Directors was considered and disposed of as per

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WP(C). No.5793 of 2007 8

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Ext.P10, more so with regard to the proportionality of the punishment to be imposed.

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It is also seen from Ext.P10 that on filing the appeal

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by the petitioner, the Board considered the matter in its 259^th meeting and observed that a report of the Managing Director was necessary to take a final decision. It was accordingly that the Managing Director (who is the disciplinary authority and has passed Ext.P8 order - though the concerned person was not the same) gave an opportunity of hearing to the petitioner, based on which a report was prepared and forwarded, which in turn was considered by the Board of Directors in the 261^st meeting. It was after considering the appeal petition and the said report, that the Board of Directors took a decision to reject the same as per order dated 30.9.2006 which in turn was communicated by the second respondent as per Ext.P10. To put it short, the appellate authority did not give any opportunity of hearing to the petitioner and what was the actual procedure followed, is not revealed from the materials on record, as no

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counter affidavit has been filed by the second respondent in the writ petition.

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In the above circumstance, this Court finds that the matter requires to be reconsidered by the Board of Directors. Accordingly, Ext.P10 is set aside and the appellate authority of the first respondent Corporation is directed to reconsider Ext.P9 appeal preferred by the petitioner and pass final orders in accordance with law, after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. No cost.

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Sd/-

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P.R.RAMACHANDRA MENON

JUDGE

/TRUE COPY/

P.A. To JUDGE

VPV

WP(C). No.5793 of 2007

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S.Girija v. Kerala State Development Corporation for

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S.Girija v. Kerala State Development Corporation for

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