Dismissed

V.a.Sreelekha v. Chief Secretary,Govt.of Kerala

Kerala HC4 Apr 2016WP(C)/4634/2004

Case brief

AI extract

What is this about?

The High Court set aside a termination order for procedural irregularity. However, due to the contractual nature of employment, the non-existence of the original employer, and the long pendency of the petition, the Court denied reinstatement. Instead, it directed the successor entity to pay three months' pay and allowances in lieu of notice.

What did the court decide?

Termination order set aside; Petitioner directed to receive three months pay and allowances in lieu of notice from Additional 6th Respondent; Termination to be without stigma.

V.a.Sreelekha Vs Chief Secretary,Govt.of Kerala — Service and Employment | Kerala HC (2016)

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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 K.VINOD CHANDRAN

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MONDAY, THE 4TH DAY OF APRIL 2016/15TH CHAITHRA, 1938

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W.P.(C).No.4634 of 2004 (B)

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PETITIONER(S):-

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V.A.SREELEKHA,

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DISTRICT CO-ORDINATOR, [ STED PROJECT SUB CENTRE ] (### ADDED), THIRUVANANTHAPURAM (UNDER SUPSPENSION), RESIDING AT KAVERI, NETAJI ROAD, VATTIYOORKAVU, VATTIYOORKAVE.P.O., THIRUVANANTHAPURAM.

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[### “NOW KNOWN AS C-STED REGIONAL CENTRE”]

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BY ADVS. SRI.VADAKARA V.V.N.MENON SRI.T.N.SUKUMARAN

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SRI.JOHN PANICKER

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RESPONDENT(S):-

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CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM AS THE CHAIRMAN OF STEERING COMMITTEE, STED PROJECT (# ADDED) AS WELL AS REPRESENTATIVE OF THE STATE OF KERALA.

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THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF SCIENCE & TECHNOLOGY, GOVERNMENT OF INDIA, CENTRAL SECRETARIAT, NEW DELHI.

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THE SCIENCE & TECHNOLOGY ENTREPRENEURSHIP DEVELOPMENT PROJECT (STED) [# ADDED], HEAD OFFICE, INDUS AVENUE, VTH FLOOR, KALLAI ROAD, KOZHIKODE,

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REPRESENTED BY ITS [PROJECT DIRECTOR]. (## ADDED, ** ADDED)

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[SRI.T.K.MANZOOR] ( DELETED), [PROJECT DIRECTOR ##], STED PROJECT (# ADDED), VTH FLOOR, INDUS AVENUE, KALLAI ROAD, KOZHIKODE-673 002. (*** ADDED)

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W.P.(C) NO.4634 OF 2004-B

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- [SRI.T.O.SOORAJ] (* DELETED), DISTRICT COLLECTOR, KOZHIKODE AS PATRON AND CHAIRMAN OF TASK FORCE COMMITTEE, STED PROJECT (# ADDED), KOZHIKODE.

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**** ADDITIONAL 6TH RESPONDENT IMPLEADED:

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ADDL.R6. CENTRE FOR SCIENCE TECHNOLOGY ENTREPRENEURSHIP DEVELOPMENT (C-STED), PUTHIYARA POST, KOZHIKODE - 673 004, REPRESENTED BY ITS DIRECTOR.

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“NOW KNOWN AS C-STED”.

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“NOW KNOWN AS DIRECTOR”. ### “NOW KNOWN AS C-STED REGIONAL CENTRE”.

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THE NAMES OF “SRI.T.K.MANZOOR” AND “SRI.T.O.SOORAJ” RESPECTIVELY DELETED FROM THE ADDRESS OF THE 4TH AND 5TH RESPONDENTS AS PER THE ORDER DATED 03.08.2015 IN I.A.9104/15.

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** NOW FUNCTIONING AS CENTRE FOR SCIENCE TECHNOLOGY ENTREPRENEURSHIP DEVELOPMENT (C-STED), PUTHIYARA P.O., KOZHIKODE, PIN - 673 004, REPRESENTED BY ITS DIRECTOR, ADDED AS PER ORDER DT.3.8.2015 IN I.A.9104/15.

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*** NOW FUNCTIONING AS C-STED, PUTHIYARA P.O., KOZHIKODE, PIN - 673 004, ADDED AS PER ORDER DT.3.8.15 IN I.A.9104/15.

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ADDITIONAL 6TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 28.5.2015 IN I.A.NO.6945 OF 2015.

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R1 & R5 BY GOVERNMENT PLEADER SRI.M.R.ARUNKUMAR. R2 BY ADV. SRI.SAJEESH.K.B., ADDL.CGSC R2 BY ADV. SRI.GEORGE JOSEPH, ADDL.CGSC R3 BY ADV. SRI.GEORGE ZACHARIA,SC,STED R3, R4 & ADDL.R6 BY ADV. SRI.K.RAMAKUMAR (SENIOR ADVOCATE) R4 BY ADV. SRI.T.RAMPRASAD UNNI ADDL R6 BY ADVS. SRI.S.M.PRASANTH

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SRI.C.DINESH SMT.ASHA BABU SRI.G.RENJITH SMT.AMMU CHARLES SMT.JINNU SARA GEORGE.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-

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W.P.(C) NO.4634 OF 2004-B

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1 TRUE PHOTO COPY OF NOTICE NO.1/STED/KKD/ESTT/2003/PD 11 DATED 6.11.2003 ISSUED BY THE 4TH RESPONDENT.

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EXT.P2 TRUE PHOTO COPY OF ORDER NO.1/STED/KKD/ESTT/2003/PD 11 DATED 6.11.2003 ISSUED BY THE 4TH RESPONDENT.

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EXT.P3 TRUE COPY OF RELEVANT PORTIONS OF PAPER ON THE SYSTEM IN MANPOWER MANAGEMENT BUDGETING/FINANCE & DELEGATION OF POWERS WITH RELEVANT PORTIONS OF THE MINUTES VITH STEERING COMMITTEE MEETING OF STED HELD ON 4.12.99.

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EXT.P4 TRUE PHOTO COPY OF CHARGE-SHEET-CUM-SHOW CAUSE NOTICE ISSUED TO THE PETITIOENR BY THE 4TH RESPONDENT DATED 10.12.2003.

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EXT.P5 TRUE PHOTO COPY OF REPLY DT.13.11.2003 TO EXT.P1 DATED NIL SUBMITTED BY THE PETITIOENR BEFORE THE 4TH RESPONDENT.

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EXT.P6 TRUE PHOTO COPY OF REPLY DT.17.12.2003 TO EXT.P4 SUBMITTED BY THE PETITIOENR BEFORE THE 4TH RESPONDENT.

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EXT.P7 TRUE PHOTO COPY OF REPRESENTATION DATED 19.12.2003 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

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EXT.P8 TRUE PHOTO COPY OF MODEL BILL NO.160073 DT.27.11.2003 ISSUED BY FOODWORLD SUPERMARKETS LTD.

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EXT.P9 TRUE PHOTO COPY OF CERTIFICATE DT.27.11.2003 WITH BILL NO.142581 DT.29.7.2003 ISSUED TO THE PETITIONER BY FOODWORLD SUPERMARKETS LTD.

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EXT.P10 TRUE PHOTO COPY OF FORGED VOUCHER FOR BILL NO.142581 WITH BILL DATED 29.7.2003.

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EXT.P11 TRUE PHOTO COPY OF THE PROCEEDINGS WITH ORDER NO.1/STED/KKD/ESTT/2003/PD 36 DATED 20.12.2003 ISSUED BY THE 5TH RESPONDENT.

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EXT.P12 TRUE PHOTO COPY OF REPRESENTATION DT.2.1.2004, SUBMITTED BY THE PETITIOENR BEFORE THE HON'BLE CHIEF MINISTER OF KERALA WITH COPY OF THE SAME TO THE 1ST RESPONDENT.

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W.P.(C) NO.4634 OF 2004-B

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EXT.P13	TRUE COPY OF REPLY DT.23.4.2004 SENT BY THE PETITIONER TO THE CONVENOR, ENQUIRY COMMITTEE AND RESPONDENTS 1, 4 AND 5.
EXT.P14	TRUE COPY OF MEDICAL CERTIFICATE DT.22.4.2004 ISSUED TO THE PETITIONER BY SUPERINTENDENT OF GENERAL HOSPITAL, THIRUVANANTHAPURAM.
EXT.P15	TRUE COPY OF CERTIFICATE DATED 28.4.04 ISSUED FROM SNEHA HOSPITAL TO THE PETITIONER.
EXT.P16	TRUE COPY OF ENQUIRY PROCEEDINGS HELD ON 27.4.04 AT THE STED DISTRICT SUB CENTRE, THIRUVANANTHAPURAM.
EXT.P17	TRUE COPY OF REPLY LETTER DT.1.5.04 SENT BY THE PETITIONER TO THE CONVENOR OF THE ENQUIRY COMMITTEE AND TO RESPONDENTS 1, 4 AND 5.
EXT.P18	TRUE PHOTO COPY OF GO.(RT) NO.203/2001/STED DT.18.6.2001.
EXT.P19	TRUE PHOTO COPY OF PROCEEDINGS NO.N1-32605/99 OF THE DISTRICT COLLECTOR, KOZHIKODE DT.7.7.01.
EXT.P20	TRUE PHOTO COPY OF G.O.(RT) NO.151/2003/STED DATED 31.3.2003.
EXT.P21	TRUE COPY OF GOVT. LETTER NO.2818/A1/02/STED DT.24.6.2002.
EXT.P22	TRUE COPY OF GOVT. ORDER G.O.(RT) NO.103/2001/STED DATED 26.3.2001 AND ALSO GOVT. LR. NO.7229/A1/01/STED DATED 23.4.02, EVIDENCING EFFECTIVE CONTROL EXERCISED BY THE 1ST RESPONDENT GOVERNMENT ORDER THE 3RD RESPONDENT.
EXT.P23	TRUE PHOTO COPY OF THE NOTICE NO.1/2004/ENQ./681 DATED 17.4.2004 ISSUED BY THE CONVENOR OF ENQUIRY COMMITTEE.
EXT.P24	TRUE PHOTO COPY OF THE REPRESENTATION DT.21.6.2004 WITH A MEDICAL CERTIFICATE.
EXT.P25	TRUE PHOTO COPY OF THE REPRESENTATION DT.24.6.2004 SUBMITTED BY THE PETITIOENR BEFORE THE CONVENOR OF THE ENQUIRY COMMITTEE.
EXT.P26	TRUE PHOTO COPY OF THE NOTICE NO.7/2004/ENG/29 DATED 6.7.2004 ISSUED BY THE ENQUIRY COMMITTEE TO THE PETITIONER.

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W.P.(C) NO.4634 OF 2004-B

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EXT.P27	TRUE PHOTO COPY OF THE REPRESENTATION DT.13.7.2004 SUBMITTED BY THE PETITIOENR BEFORE THE CONVENOR, ENQUIRY COMMITTEE.
EXT.P28	TRUE PHOTO COPY OF THE SAID ENQUIRY REPORT.
EXT.P29	TRUE COPY OF THE NOTICE/LETTER DT.26.5.2005 OF THE 5TH RESPONDENT.
EXT.P30	TRUE PHOTOCOPY OF THE SAID EXPLANATION DT.15.6.2005 SUBMITTED BY ME TO THE DISTRICT COLLECTOR WITH COPY OF THE SAME TO THE THEN PROJECT DIRECTOR ALSO.
EXT.P31	TRUE COPY OF THE ORDER REF.NO.1/STED/KKD/ESTT/2005/1161 DT.22.7.2005 PASSED BY THE SAID DISTRICT COLLECTOR.
EXT.P32	TRUE PHOTO COPY OF THE REPORT OF CDAC DT.14.9.2004.
EXT.P33	TRUE COPY OF PETITIONER;S REMARKS DT.18.11.2005 REGARDING THE SAID REPORT ON THE CDAC.
EXT.P34	TRUE COPY OF THE LETTER TO THE CONVENOR OF ENQUIRY COMMITTEE FURNISHING THE CORRECT ADDRESS OF KRISHNAPRIYA.
EXT.P35	TRUE COPY OF THE LETTER DT.3.2.2005 WRITTEN BY THE SAID KRISHNAPRIYA ADDRESSING THE CONVENOR OF THE ENQUIRY COMMITTEE WITH A COPY OF THE SAME TO ME.
EXT.P36	TRUE COPY OF THE COVERING LETTER DT.4.2.2005.
EXT.P37	TRUE COPY OF THE NEWS PAPER REPORT PUBLISHED IN INDIAN EXPRESWS (KOCHI-EDITION) DT.27.12.2005.
EXT.P38	TRUE COPY OF THE NEWS PAPER REPORT PUBLISHED IN INDIAN EXPRESS DT.6.10.2006.
EXT.P39	TRUE PHOTO COPY OF THE JUDGMENT DT.12.1.2007 OF THIS HON'BLE COURT.
EXT.P40	TRUE COPY OF THE JUDGMENT DT.13.4.2007 IN W.A.NO.659/2007.

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RESPONDENT'S EXHIBITS:-

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--------------------------------------EXT.R6(a) TRUE COPY OF THE LETTER DT.22.7.2005 ISSUED TO THE PETITIONER. vku/[ true copy ]

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K. Vinod Chandran, J

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W.P.(C) No.4634 of 2004-B

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--------------------------------------Dated this the 04th day of April, 2016

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JUDGMENT

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The petitioner challenges the disciplinary proceedings initiated against the petitioner and the order of termination and seeks a direction to reinstate the petitioner with all consequential benefits and continue her upto 58 years, being the age of superannuation. The petitioner sought such remedy against the 3rd respondent, which is no more in existence. The activities of the 3rd respondent has been taken over by the 6th respondent, a different entity registered under the Societies Registration Act. It is to be noticed that the petitioner has not thought it fit to amend the writ petition and claim any relief against the 6th respondent. The 6th respondent had by themselves sought for impleadment in the writ petition only since an interim order for reinstatement passed in the writ petition was produced before them.

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The petitioner is said to be appointed as District Co-ordinator with effect from 21.04.1999 in the 3rd respondent. The petitioner does not produce the appointment order, which assumes significance; as against the specific contention of the 6th

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W.P.(C) No.4634 of 2004 - 2 -

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respondent in its counter affidavit that the petitioner was only on contractual employment in the 3rd respondent, which itself was a project which was discontinued on the formation of the 6th respondent.

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The proceedings were initiated by Exhibit P1, alleging misappropriation of amounts by presenting false vouchers. The show cause notice was issued at Exhibit P1 and the petitioner was suspended also as per Exhibit P1. Subsequently, the petitioner was issued with a memo of charges at Exhibit P4, to which explanation was given by Exhibits P5 and P6. The enquiry was ordered as per Exhibit P11 and the same was proceeded with by the Committee so appointed to carry out the enquiry. The enquiry report is placed at Exhibit P28 and the show cause notice on the basis of the Enquiry Report is at Exhibit P29. The termination order is at Exhibit P31.

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The petitioner primarily allege that going by Exhibit P3 Rules, only the Task Force Committee has the competence to carry out disciplinary proceedings and the suspension, show cause and enquiry initiated by the Project Director are incompetent. Arguments were also addressed about the charges

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W.P.(C) No.4634 of 2004 - 3 -

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alleged and the enquiry report. No procedural irregularity was alleged. The petitioner was fully participated in the enquiry and was allowed to cross-examine the witnesses, produce documents and proffer her defence.

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The allegation against the enquiry is that the findings are not supported by any evidence. It is trite that this Court would not go into the evidence adduced at the enquiry to embark upon an exercise of re-appreciation of evidence. This Court, exercising powers of judicial review under Article 226 of the Constitution, is not sitting in appeal on the report of the Enquiry Officer or the order of the disciplinary authority.

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The irregularity first alleged is with respect to the disciplinary enquiry having been initiated by the Project Director, who is incompetent as per Exhibit P3 Rules. The specific reference is to Clause III.d., referring to “Disciplinary proceedings”, which have to be brought to the Task Force and the decision of the Task Force would be implemented by the Project Director. This Court does not find any irregularity in the disciplinary proceedings having been initiated by the Project Director, since on the explanation submitted it was the Task Force Committee which

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W.P.(C) No.4634 of 2004

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considered the allegations raised against the petitioner and appointed a Disciplinary Committee to conduct the enquiry, as is evidenced in Exhibit P11.

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The learned Counsel had taken me through the entire enquiry report and this Court is not satisfied that there could be any interference caused to the enquiry report; but this Court would restrain from making any comments on the same, since it has come to the notice of this Court that there is a procedural irregularity insofar as consideration of the report and the objection filed by the delinquent, by the disciplinary authority.

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Exhibit P28 report was supplied to the petitioner by Exhibit P29. In Exhibit P29, the Task Force Committee tentatively accepted the findings of the Enquiry Committee and the delinquent was asked to file an explanation/ reply to the findings in the report. The petitioner had also submitted the explanation as per Exhibit P30. Till that stage, the disciplinary proceedings have been carried on perfectly in consonance with the principles of natural justice as

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has been delineated in Managing Director, ECIL v. B. Karunakar

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[(1993) 4 SCC 727].

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The irregularity is insofar as the issuance of Exhibit

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W.P.(C) No.4634 of 2004 - 5 -

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P31 termination order. There is absolutely no discussion of the findings in the enquiry report or the objection submitted by the delinquent. Further, it is also to be noticed that it is the Task Force Committee which has to decide on the final action to be taken. Here, the Patron of the Project, the District Collector, has taken the decision, that too without any discussion as mentioned above. On the aforesaid finding, this Court would have normally set aside Exhibit P31 and remanded the case for fresh consideration, but for the fact that it has been categorically stated by the 6th respondent, on affidavit, that the 3rd respondent, under which the petitioner was employed, that too on contractual terms, is no more in existence.

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The Hon'ble Supreme Court in Oshiar Prasad v. Sudamdih Coal Washery [2015 (4) SCC 71] has dealt with the claim for absorption and regularisation when originally the employment itself was as per the terms of a contract. Therein, an industrial dispute was sought to be referred raising issues on the termination of the employees and also regularisation. The Hon'ble Supreme Court found that since the employees have been employed only on the basis of a contract, the dispute subsisting was only with respect to the termination and there could have

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W.P.(C) No.4634 of 2004 - 6 -

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been no issue of regularisation referred for adjudication. Absorption or regularisation could be claimed or granted only when the contract of employment was subsisting, was the finding. It is to be reiterated that the petitioner has not produced anything to show that the petitioner was a regular employee of the 3rd respondent. There is also nothing produced to show that the period of the Contract subsists as of now. The 3rd respondent, the entity which employed the petitioner on contract in a specific project is also no longer in existence and the project itself is concluded. These averments of the additional 6th respondent have not been refuted and there is also no relief sought against them.

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The 6th respondent has filed a counter affidavit dated 28.11.2015, specifically contending that the 3rd respondent, which was a project, is no more in existence. But, it is admitted that the 6th respondent has taken over the project as such. Even then the petitioner did not seek to amend the writ petition and merely relied on the interim orders passed in the writ petition, which kept open the issue of bias by order dated 25.05.2004. A reading of the said interim order would indicate that the petitioner had challenged the suspension and the disciplinary enquiry

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W.P.(C) No.4634 of 2004 - 7 -

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initiated as per Exhibit P11, which was initially stayed by this Court. This Court, by the said interim order, vacated the stay order and permitted continuance of the disciplinary proceedings; but the question of prejudice was left open. This does not authorise the petitioner to seek for reliefs against a totally different entity without them in the party array and without seeking specific reliefs. It is also trite that in the case of contractual employment, the contrary having not been established there would be no scope for reinstatement.

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The additional 6th respondent is in the party array only by reason of an application filed by them for impleadment, by which they were impleaded by order dated 28.05.2015. This was also by reason of an order of reinstatement issued by this Court on 07.04.2015 in an I.A., numbered as 4833 of 2015, filed by the writ petitioner. A contempt is said to be pending before the learned Single Judge who passed interim direction for reinstatement. The contention of the 6th respondent is that they were never a party to the writ petition and was not impleaded before such an order was passed. However, that is a matter to be raised before the learned Single Judge who is dealing with the contempt proceedings.

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W.P.(C) No.4634 of 2004

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The learned Counsel for the petitioner would contend that the petitioner's case is similar to that in Exhibit P39 judgment of the learned Single Judge, which has been affirmed in Exhibit P40, by a Division Bench. The petitioner contends that therein the petitioners were granted reinstatement and the petitioner herein would also be entitled to such orders. At the outset it is to be noticed that the petitioner but for producing the said judgments, has not placed anything on record to find any similarity of employment of the petitioner herein and the petitioners in Exhibit P39 judgment. Further, it is to be noticed that therein the petitioners 1 and 2 had raised allegations of gender harassment against the Project Director and the accusation was that the disciplinary proceeding initiated was a counter to that. There, the enquiry was found to have been carried out without participation of the delinquent employees nor were witnesses examined or any documents produced. The allegation of gender harassment was also prima facie found to be worthy of examination by the Commissioner of Police, Calicut City, who had recommended a departmental action in accordance with the directions of the Hon'ble Supreme Court in Vishaka & Others v. State of

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W.P.(C) No.4634 of 2004 - 9 -

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Rajasthan & Others [(1997) 6 SCC 241]. The disciplinary enquiry having been held to be in total violation of the principles of natural justice, it was directed that the petitioners would be reinstated and the disciplinary proceedings could be continued. There can be no similarity found in the case of the petitioners therein and the petitioner herein.

¶94

As far as the present case is concerned, Exhibit P31 is found to be bad for reason of the same being not in compliance with the principles laid down in B.Karunakar ( supra ). Exhibit P31 would stand set aside. It is trite that on irregularity being detected in a disciplinary proceeding, this Court would have to set aside the proceedings continued after such irregularity was occasioned and remand the matter to the authority for commencement of proceedings from that stage.

¶95

There are some compelling circumstances which would restrain this Court from issuing such directions - the petitioner is stated to have been in a contractual employment; the petitioner was terminated in the year 2004; the writ petition had

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been pending here for the last 12 years; the additional 6th respondent had taken over the activities of the 3rd respondent; the

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W.P.(C) No.4634 of 2004 - 10 -

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6th respondent is said to have been registered under the provisions of the Societies Registration Act, 1860, bearing No.571/09 and that there is also no relief sought against the 6th respondent.

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Be that as it may, it is an admitted fact that the activities of the 3rd respondent were taken over by the 6th respondent. A similar issue was considered by this Court in Arunkumar v. Information Kerala Mission [2015 (5) KHC 549]. In Arunkumar ( supra ), there was no enquiry at all conducted and the delinquent was not participated in the preliminary enquiry conducted. The allegations levelled were found in a preliminary enquiry and even without a charge memo, termination was effected. In such circumstance, this Court directed the respondent-employer to pay an amount equivalent to three months salary and allowances last paid to the delinquent/petitioner and an equal amount as compensation, finding the employment of the petitioner to have been merely a contractual one.

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In the present case, this Court is not convinced that any compensation can be granted to the petitioner. As was noticed earlier, the learned Counsel for the petitioner took me through the entire enquiry report and there is a reasonable basis for the

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W.P.(C) No.4634 of 2004 - 11 -

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allegation of misappropriation. But this Court would not now say anything on it. A remand also is not possible as of now, on the facts disclosed. In any event, the order of the disciplinary authority having been set aside, the petitioner would be entitled to three months pay in lieu of notice from the additional 6th respondent. The writ petition would stand disposed of with the above directions for disbursing three months pay and allowances in lieu of notice of termination, which will have to be done by the additional 6th respondent who took over the activities of the 3rd respondent. The termination of the petitioner would be without any stigma. Parties are left to suffer their respective costs.

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Sd/- K.Vinod Chandran Judge.

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Vku/-

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[ true copy ]

V.a.Sreelekha v. Chief Secretary,Govt.of Kerala

Case brief

What is this about?

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V.a.Sreelekha v. Chief Secretary,Govt.of Kerala

Case brief

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