Disposed

Mary Jancy K.X v. Special Officer

Kerala HC9 Oct 2013WP(C)/21172/2013

Case brief

AI extract

What is this about?

In a writ petition, the Kerala HC addressed the validity of the petitioner's suspension without specific rules, the right to full salary subsistence allowance, and the obligation to form an internal complaints committee under Vishaka guidelines.

What did the court decide?

Petitioner directed to file representation to the 4th respondent regarding suspension and subsistence allowance. 3rd and 4th respondents directed to constitute a Vishaka committee within six months.

Mary Jancy K.X Vs Special Officer — Service and Employment | Kerala HC (2013)

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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 C.T.RAVIKUMAR

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WEDNESDAY, THE 9TH DAY OF OCTOBER 2013/17TH ASWINA, 1935

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WP(C).No. 21172 of 2013 (V)

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PETITIONER(S):

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MARY JANCY K.X, AGED 42 YEARS W/O.JUDESON, KURIKAYIL HOUSE, CHERIYEDATH PARAMBU LINE 7, VYTTILA P.O., KOCHI - 682 019.

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BY ADVS.SRI.G.KRISHNAKUMAR

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SRI.K.A.ANI JOSEPH SRI. D.R. BALAKRISHNA PRABHU SRI.K.A.ABDUL NISTAR

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RESPONDENT(S):

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1. SPECIAL OFFICER, DAKSHINA BHARAT HINDI PRACHAR SABHA (KERALA) CHITTOOR ROAD, ERNAKULAM - 682 016.

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2. SECRETARY, DAKSHINA BHARAT HINDI PRACHAR SABHA (KERALA) CHITTOOR ROAD, ERNAKULAM - 682 016.

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3. DAKSHINA BHARAT HINDI PRACHAR SABHA (KERALA), CHITTOOR ROAD, ERNAKULAM - 682 016.

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4. DAKSHINA BHARAT HINDI PRACHAR SABHA (CHENNAI), REP. BY ITS GENERAL SECRETARY, T.NAGAR, CHENNAI - 17.

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5. VIJAYAKUMARAN NAIR, SECRETARY DAKSHINA BHARAT HINDI PRACHAR SABHA (CHENNAI) T.NAGAR CHANNAI-17.

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6. ADVISORY COMMITTEE, DAKSHINA BHARAT HINDI PRACHAR SABHA (KERALA) CHITTOOR ROAD, ERNAKULAM - 682 016.

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7. PRINCIPAL,

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B.ED COLLEGE, AMBADIMALA, THIRUVANKULAM - 682 305.

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R1 -R 4 & 7 BY ADV. SRI.P.B.SAHASRANAMAN R1 -R 4 & 7 BY ADV. SRI.T.S.HARIKUMAR R1 -R 4 & 7 BY ADV. SRI.K.JAGADEESH R1 -R 4 & 7 BY ADV. SRI.RAAJESH S.SUBRAHMANIAN R5 BY ADV. SRI.VAKKOM N.VIJAYAN R5 BY ADV. SMT.REEJA HARI R5 BY ADV. SMT.V.RENJU

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 21172 of 2013 (V)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1: TRUE COPY OF THE ORDER DATED 28/4/2012 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

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EXT.P1(A): TRUE COPY OF THE ENGLISH TRANSLATION OF THE ORDER DATED 28/4/2012 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

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EXT.P2: TRUE COPY OF THE COMPLAINT IN CRIME NO.1418/12 OF CENTRAL POLICE STATION, KOCHI CITY.

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EXT.P3: TRUE COPY OF THE LETTER DATED 19/5/2012 OF THE 1ST RESPONDENT.

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EXT.P4: TRUE COPY OF THE REPLY DATED 23/5/2012 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.

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EXT.P5: TRUE COPY OF THE ORDER DATED 26/5/2012 ISSUED BY THE 1ST RESPONDENT.

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EXT.P6:TRUE COPY OF THE REPLY DATED 31/5/2012 SUBMITTED IN RESPONSE TO EXHIBIT P5 .

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EXT.P7: TRUE COPY OF THE LETTER DATED 03/07/2012.

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EXT.P7(A): TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P7 LETTER.

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EXT.P8: TRUE COPY OF THE LETTER DATED 7/7/2012 OF THE 1ST RESPONDENT, TRANSFERRING THE PETITIONER TO AMBADIMALA B ED COLLEGE.

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EXT.P9: TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P8 LETTER.

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EXT.P10:TRUE COPY OF THE REPRESENTATION DATED 19/7/2012.

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EXT.P10(A): TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P10

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EXT.P11: TRUE COPY OF THE REPRESENTATION DATED 27/7/2012.

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EXT.P12: TRUE COPY OF THE LETTER DATED 30/11/2012 ISSUED BY THE 1ST RESPONDENT.

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EXT.P13: TRUE COPY OF THE REPLY DATED 4/12/12 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.

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EXT.P14: TRUE COPY OF THE ORDER DATED 17/12/2012 JOINTLY ISSUED BY THE RESPONDENTS 1 & 2.

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RESPONDENTS EXHIBITS: NIL

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--------------------------------------

/TRUE COPY/

P.A. TO JUDGE

SKV

C.T.RAVIKUMAR,J

W.P.(C).No.21172 of 2013

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Dated this the 9^th day of October, 2013

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JUDGMENT

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The petitioner is an Aya in the Balabhavan Nursery School under the Dakshin Bharat Hindi Prachar Sabha

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(Kerala). This writ petition has been filed challenging Ext.P14 order whereby the petitioner was placed under suspension from 17.12.2012. Despite the long lapse of period, no steps were taken either to review the order of suspension or to revoke the same. It is in the said circumstances that this writ petition has been filed.

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The petitioner has a further grievance regarding

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the failure on the part of the respondents in constituting a committee in terms of the decision of the Hon'ble Apex Court in Vishaka and Others v State of Rajastan reported in 1997 (6) SCC 241 for Dakshin Bharat Hindi Prachar Sabha (Kerala). On 27.8.2013, this court issued notice on admission to the respondents and consequently, the parties have entered appearance. The learned Standing

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W.P.(C). No.21172 OF 2013 2

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Counsel appearing for respondents 1 to 4 and 7 submitted that as on today there is no advisory committee for the Dakshin Bharat Hindi Prachar Sabha (Kerala) and therefore, treating the service of notice on respondents as complete this writ petition has been taken up for hearing finally.

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I have heard the learned counsel for the petitioner, the learned Standing Counsel appearing for respondents 1 to 4 and 7 and also the learned Counsel for the 5^th respondent.

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It is contended by the petitioner that no rules governing the service conditions of the employees under the Dakshin Bharat Hindi Prachar Sabha (Kerala) have so far been framed and therefore, there was no provision for placing her under suspension. In other words, according to the petitioner, in the absence of an enabling provision empowering the authorities to place her under suspension, the very order in Ext.P13 in that regard is illegal and therefore unsustainable. To buttress the said contention the petitioner relies on the decision of the Hon'ble Apex

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W.P.(C). No.21172 OF 2013 3

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Court in T. Cajee v U. Jormanik Siem reported in 1961 SC 276.

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Despite the persuasive arguments of the learned Counsel appearing for the petitioner, I am of the view that the decision relied on by the petitioner cannot be understood to have laid down the law that the mere absence of an enabling provision would disable or dis empower the employer to place an employee under suspension. In fact, the Hon'ble Apex Court in Cajee's Case (Supra) held that the absence of such a provision would not make the authority incompetent to place an employee who allegedly committed a serious misconduct or direction of duty under suspension. The said position could easily be gathered from the following recital in the said decision:-

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“The last point that has been urged is that in any case the Executive Committee could not suspend the respondent, and reliance in this connection is placed on Management of Hotel Imperial v. Hotel Workers' Union, (1960) 1 SCR 476: (AIR 1959 SC 1342). This Court held in that case as under:

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“It was now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant,

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W.P.(C). No.21172 OF 2013 4

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and that such power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the so-called period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay”.

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It is urged on the basis of these observations that in any case the respondent could not be suspended. Suspension is of two kinds. In the first place, suspension may be as a punishment, but the present is not a case of this kind of suspensions; in the second place interim suspension may be made pending inquiry into a case where removal is the result sought. It was this type of interim suspension which was dealt with in the case of Hotel Imperial, (1960) 1 SCR 476: (AIR 1959 SC 1342) and it was pointed out that without an express term in the contract or without some provision of a statute or the rules there could not be interim suspension in the sense that the master could withhold the wages of the servant. But the case did not lay down that the master could not forbid the servant from working while he was inquiring into his conduct with a view to removing him from service. It was specifically said there that if the master does so, namely, forbids the

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W.P.(C). No.21172 OF 2013 5

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servant to work and thus in fact suspends him as an interim measure he will have to pay the wages during the period of interim suspension. These wages or payment for the work done or emolument of the office held could not be withheld in whole or in part unless there is power to make an order of interim suspension either in the contract of employment or in the statute or the rules framed thereunder. The effect of that decision is that in the absence of such power in the master can pass an order of interim suspension but he will have to pay the servant according to the terms of contract between them. In the present case the terms and conditions communicated to the respondent do not indicate an express term giving power to the District Council to make an order of interim suspension while inquiring into the conduct of the respondent with a view to his ultimate removal. No statute or rules framed thereunder have been brought to our notice which authorized interim suspension having the effect of withholding remuneration in whole or in part. In the circumstances therefore though an order of interim suspension could be made against the respondent while inquiry into his conduct with a view to his ultimate removal is going on, his remuneration according to the terms and conditions communicated to him cannot be withheld unless there is some statute or rules framed thereunder which would justify the withholding of the whole or part of the remuneration. So far therefore as there is no statute or rule thereunder the remuneration cannot be withheld from the respondent even though an order of interim suspension in the sense he is told not to do the work of his office, may be made against him. The order of interim suspension therefore passed in this case on July 7,

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W.P.(C). No.21172 OF 2013 6

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1959, would be valid subject of course to the respondent being paid the full remuneration unless the District Council can legitimately withhold the whole or part of it under some statute or rules framed thereunder, there being undoubtedly no express contract to that effect in this case.”

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In this case, evidently as per Ext.P14 the petitioner was placed under suspension pending enquiry in to certain serious dereliction of duty, disobedience with orders of superiors and misconduct.

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In the circumstances, it can only be said that absence of specific provision in governing rules or even the absence of any governing rule relating service condition cannot and will not make the appointing authority or any other competent authority to place an employee under its control, under suspension. I have no doubt that holding otherwise would not be conducive to the smooth functioning or administration of any office/institution as no member of any service could be put in a situation to indulge in an activity with impunity and also with immunity from being placed under suspension even in a case warranting disciplinary action for imposition of a major penalty. In such

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W.P.(C). No.21172 OF 2013 7

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circumstances, I am not inclined to accept the contention of the petitioner that in the absence of a specific enabling provision in the rules governing the service conditions of employees under the Dakshin Bharat Hindi Prachar Sabha (Kerala) to place an employee under suspension she could not have been placed under suspension.

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I may now, consider the alternative contention of the petitioner, as is obvious from ground H for full salary till the disciplinary proceedings are over. In other words, the contention is that since she was placed under suspension without an express authority for the same she is entitled to full slary as subsistence allowance. The petitioner relied on the very same decision in Cajee's case (Supra) to support the said contention. When it is an admitted position that the petitioner is undergoing suspension the obligation of the respondents to pay the subsistence allowance during the period of suspension cannot be disputed. Nonetheless, the entitlement to subsistence allowance would again depend upon one condition viz., production of a non-employment certificate during the relevant period/periods. Even in the

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W.P.(C). No.21172 OF 2013 8

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absence of any specific provision governing the employees under the Dakshin Bharat Hindi Prachar Sabha (Kerala) this position cannot be disputed. An employee who is placed under suspension from any service if gainfully employed elsewhere during the period of suspension it would make that person ineligible to claim subsistence allowance. Thus, there cannot be any doubt with respect to the question that the entitlement of the petitioner to get subsistence allowance is subject to the production of non-employment certificate. The learned counsel relied on the decision in Cajee's case (Supra) to contend that there is no statute or rule which would justify withholding of the whole or part of the remuneration it could not be withheld from her and therefore, she is entitled to get subsistence allowance at the rate or equivalent to his salary.

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As held earlier, the very entitlement of the petitioner is depending upon the production of non employment certificate. Therefore, I am of the view that in case the petitioner produces the non-employment certificate definitely the respondents are bound to look into the

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W.P.(C). No.21172 OF 2013 9

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question and fix the amount of subsistence allowance payable to her. The petitioner was being paid at the rate of 50% of his salary and the learned counsel appearing for the petitioner submitted that though the petitioner was being paid subsistence allowance at the aforesaid rate that is subsequently dispensed with or discontinued. I may hasten to add, I shall not be understood to have held that the petitioner is entitled to get subsistence allowance in excess of 50% of his salary. A perusal of Ext.P14 would reveal that the said order has been issued jointly by the 1^st and 2^nd respondents. The learned Counsel appearing for respondents 1 to 4 and 7 submitted that the 4^th respondent is a superior authority to the 1^st and 2^nd respondents and therefore, the grievance of the petitioner regarding the continued suspension or the claim for revocation of the suspension as also relating the rate of subsistence allowance could be looked into by the 4^th respondent in case the petitioner appropriately approaching through representation. Admittedly, the petitioner has not so far approached the 4^th respondent by filing an appropriate

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W.P.(C). No.21172 OF 2013 10

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petition raising grievances against Ext.P14. In the said circumstances, the petitioner is left at liberty to file a proper petition raising all grievances, claims and contentions against Ext.P14 before the 4^th respondent within a period of three weeks from the date of receipt of a copy of this judgment. In case the petitioner submits such a representation against Ext.P14, the 4th respondent shall consider the same and pass appropriate orders expeditiously, at any rate, within a period of one month from the date of receipt of such representation. I am of the view that in case the petitioner requires a personal hearing it will be open to the petitioner to make such a request in his representation.

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As noticed hereinbefore, the petitioner has a further grievance regarding the failure on the part of the respondents to constitute a committee to consider the grievances against sexual harassment of women in Dakshin Bharat Hindi Prachar Sabha (Kerala) in terms of the decision of Hon'ble Apex Court in Vishaka's case (supra) . The learned Counsel appearing for the petitioner further

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W.P.(C). No.21172 OF 2013 11

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submitted that subsequent to the decision in Vishaka's case (supra) the question regrading the non- compliance or non-adherence to the guidelines laid down in that decision came up for consideration before the Hon'ble Apex Court in Medha Kotwal Lele and Others v Union of India and Others reported in 2013 (1) SC 297. In paragraph 17 thereunder the Hon'ble Apex Court held that “we are of the view that if there is any non-compliance or non adherence to the Vishaka guidelines, orders of this court following Vishaka and the above directions, it will be open to the aggrieved persons to approach the respective High Courts. The High Court of such State would be in a better position to effectively consider the grievances raised in that regard”. On account of the absence of appropriate materials, to decide on the constitution of a committee, following the guidelines laid down by the Hon'ble Apex Court in Vishaka's case (supra), I do not propose to consider the said aspect in this proceedings. Still in the light of the decision by the Hon'ble Apex Court in Vishaka's case (supra) the respondents cannot wriggle

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W.P.(C). No.21172 OF 2013 12

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out of their responsibility to constitute such a committee. In that view of the matter it will only be appropriate for the 3^rd and 4^th respondents to take appropriate steps for constituting a committee to look into the said issue in the light of the guidelines laid down by the Hon'ble Apex Court in Vishaka's case (supra) expeditiously, at any rate, within a period of six months from the date of receipt of a copy of this judgment.

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Subject to the above, this writ petition is disposed of.

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C.T.RAVIKUMAR, JUDGE.

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SKV

Mary Jancy K.X v. Special Officer

Case brief

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Mary Jancy K.X v. Special Officer

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