Remanded

Arjunan v. Union of India

Kerala HC6 Jan 2020WP(C)/4263/2015

Case brief

AI extract

What is this about?

The Court quashed the petitioners suspension and termination orders for defects of natural justice, including the lack of a memo of charges. The proceedings were remanded to respondents to conclude within three months or reinstate the petitioner.

What did the court decide?

Orders setting aside termination and suspension were quashed. Respondents to complete proceedings within 3 months with a subsistence allowance, or reinstate petitioner.

Arjunan Vs Union of India — Service and Employment | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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MONDAY, THE 06TH DAY OF JANUARY 2020 / 16TH POUSHA, 1941

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WP(C).No.4263 OF 2015(G)

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PETITIONER/S:

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ARJUNAN M. AGED 38 YEARS S/O. MANIYAN, ROADARIKATHU VEEDU, KOLIYAKODU, NEYYARDAM P.O., THIRUVANANTHAPURAM DISTRICT, SALE ATTENDANT/TECHNICIAN (UNDER ORDERS OF TERMINATION), URC-13, NCC GROUP HEAD QUARTERS, THIRUVANANTHAPURAM.

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BY ADV. SRI.G.SUDHEER

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RESPONDENT/S:

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1 UNION OF INDIA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEFENSE DEPARTMENT, NEW DELHI-1.

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2 CHAIRMAN UNIT RUN CANTEEN-13, NCC GROUP HEAD QUARTERS, PAROORKADA P.O., THIRUVANANTHAPURAM-695 005.

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3 COMMANDING OFFICER 4, KERALA BN NCC, NEYYATTINKARA-695 121.

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BY ADV.SRI.JAISHANKAR V.NAIR, CGC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.4263/2015

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JUDGMENT

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The petitioner, who had been working as Sales Attendant/Technician in the Unit Run Canteen - 13 in NCC Group Head Quarters, is challenging Ext.P5 order by which he was placed under suspension, Ext.P7 order by which he was awarded a punishment of dismissal and Ext.P9 order by which his appeal was rejected.

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It is stated that the petitioner was initially appointed in the Unit Run Canteen on daily wages for the period from 1999 onwards. He was appointed as Canteen Helper and thereafter he was made permanent as per Ext.P2(b) order dated 01.11.2001. While working so he was placed under suspension as per Ext.P3 order dated 30.06.2014. The order of suspension reads as follows:

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1. It has been noticed that you have failed to improved your punctuality and performance despite several advices, warnings and disciplinary actions by the URC administration. In addition you have been found in the URC premises on 26.5.14 in intoxicated state at about 1000 hrs during the Offg Chairman's visit.

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2. In view of the above, the managing committee of Unit Run Canteen, NCC Group Headquarters, Peroorkada, Trivandrum is compelled to suspend you from service with immediate effect fro a minimum period of three months.

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3. You are hereby advised not to enter the canteen premises without prior approval of the managing committee.

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W.P.(C) No.4263/2015

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The petitioner submits that without any further

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proceedings he was asked to attend enquiry to be held on 16.08.2014 as per Ext.P4 letter dated 12.08.2014. It is stated that he was not issued any memo of charges. On closure of the enquiry Ext.P5 show cause notice was issued to him on 19.09.2014 asking him to explain why his services should not be terminated as the one man enquiry found him guilty of perpetual absenteeism and behaviour unbecoming of an employee of the Unit Run Canteen of NCC Group Headquarters. The petitioner stated that he submitted Ext.P6 representation before the Chairman requesting to permit him to rejoin duty. Thereafter Ext.P7 order was issued on 30.09.2014 terminating his services. The petitioner challenges Ext.P3 order placing him under suspension as well as Ext.P7 order terminating his services. It is stated that Ext.P8 appeal before the Additional Director General of NCC was rejected as per Ext.P9 order.

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Respondents have stated that the petitioner is a habitual absentee and he was found intoxicated very often. It is stated that disciplinary action was initiated against him on several occasions. As per Ext.R1(a)3 order dated 04.04.2012 disciplinary action initiated against him was

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W.P.(C) No.4263/2015

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:4:

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finalised. Allegations were that he was found in intoxicated stage within the Grocery Layout Counter and he was absent from duty without permission. It was found that he was not showing any improvement despite repeated verbal warnings. Stating that the customers as well as the entire canteen staff were reporting that he was consuming alcohol during working hours, he was warned not to repeat such activities in future and that severe disciplinary action was initiated against him for such activities. It is stated that an enquiry was ordered against the petitioner as per Ext.R1(b) order into the charges stated in the order of suspension and that during the course of enquiry petitioner was summoned in order to substantiate the status of statements given by the witnesses. Respondents have produced Ext.R1(c) enquiry report stating that when witnesses were examined petitioner declined to cross examine them. It is stated that in the enquiry it was found that the petitioner who was a habitual offender was dealt with leniency keeping in view of his physical challenges. Disciplinary action was taken against him in accordance with the terms and conditions of service. It was thereafter that the show cause notice was issued to him. Respondents have also stated that the petitioner had submitted

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W.P.(C) No.4263/2015

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Ext.R1(e) explanation on 24.09.2014 assuring that he would not repeat the offence and to reinstate him in service. It is pointed out that petitioner filed this writ petition suppressing the same.

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According to the respondents, petitioner has in his reply Ext.R1(e) admitted his guilt. The contention of the respondents is that since the petitioner has been found to be a habitual offender and an alcoholic who has displayed indiscipline and aggressive behavior during his service, order of termination does not require any interference.

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From the contentions raised by both sides it is seen that enquiry is conducted without even issuing memo of charge to the petitioner. Even in the enquiry reportExt.R1(c) produced by the respondents, the opinion of the Court was to conduct disciplinary action in accordance with the conditions of service. However the respondents did not care to proceed with the disciplinary action in accordance with law and issued a show cause notice proposing termination of service. Termination of service or dismissal

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from service cannot be ordered without conducting enquiry.

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The learned counsel for the petitioner made available a copy of the guidelines relating to terms and

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W.P.(C) No.4263/2015

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conditions of service and revised pay scales of regular civilian employees of Unit Run Canteen paid out of non public fund. According to Annexure 2 thereof, issuance of a charge sheet, appointment of an enquiry officer etc, are mandatory procedures to be complied with before a punishment of dismissal is awarded. An enquiry is conducted to give effective opportunity to prove and defend the charges for the Department and the delinquent. In order to defend the charges and participate in the enquiry effectively, a memo of charge should be issued. No such action is seen to have taken in this case. Contention of the respondents that petitioner did not come with clean hands or the suppression of Ext.R1(e) reply will not substitute observance of procedure before issuing orders in disciplinary proceedings especially an order of dismissal.

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In the above circumstances, the orders Ext.P7 as well

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as Ext.P9 are set aside. Respondents would be free to initiate disciplinary proceedings against the petitioner in accordance with law. In case the respondents choose to proceed against the petitioner they shall complete the proceedings within a period of three months from the date of receipt of a copy of the judgment. Till that time

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W.P.(C) No.4263/2015

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petitioner will be entitled to subsistence allowance. In case the proceedings are not completed within a period of three months petitioner shall be reinstated.

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The Writ Petition is disposed of accordingly.

Sd/-

P.V.ASHA

rkc

JUDGE

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	P1 : COPY OF DISABILITY CERTIFICATE ISSUED BY CHAIRMAN OF MEDICAL COLLEGE, THIRUVANANTHAPURAM.
EXHIBIT P2	P2 : COPY OF CERTIFICATE ISSUED BY THE MANAGER OF NCC OFFICE HEAD QUARTERS, THIRUVANANTHAPURAM.
EXHIBIT P2A	P2(A) : COPY OF THE CERTIFICATE ISSUED BY MESS SECRETARY, NCC OFFICERS MESS, THIRUVANANTHAPURAM, DTD.05.10.97.
EXHIBIT P2B	P2(B): TRUE COPY OF THE ORDER NO.300/PERS/CANTEEN DT 01/11/2001 OF CANTEEN OFFICER, NCC GROUP HQ CANTEEN, THIRUVAANTHAPURAM
EXHIBIT P3	P3 : COPY OF SUSPENSION ORDER ISSUED ON THE PETITIONER.
EXHIBIT P4	P4 : COPY OF NOTICE WITH NO.E1/101/OFF2 DTD.12.8.2014 ISSUED ON THE PETITIONER.
EXHIBIT P5	P5 : COPY OF THE SHOW CAUSE NOTICE WITH NO.300/GEN/CAN DTD.19.9.2014 ISSUED ON THE PETITIONER.
EXHIBIT P6	P6 : COPY OF THE REPLY TO EXT.P5.
EXHIBIT P7	P7 : COPY OF THE TERMINATION ORDER NO.300/GEN/CAN ISSUED ON THE PETITIONER.
EXHIBIT P8	P8 : COPY OF THE APPEAL SUBMITTED BY THE PETITIONER.
EXHIBIT P9	P9 : COPY OF THE DISMISSAL ORDER NO.300/GEN/CANS ISSUED ON THE PETITIONER.
RESPONDENTS'	EXHIBITS
EXT.R1A(1)	TRUE COPY OF REPORT DT. NIL SUBMITTED BY THE MANAGER, URC, NCC GP HQ
EXT.R1A(2)	TRUE COPY OF REPORT DT.5.7.13 SUBMITTED BY THE MANAGER, URC, NCC GP HQ
EXT.R1A(3)	TRUE COPY OF REPORT DT.04.04.2012 SUBMITTED BY LTD.COL.OIC URC, NCC

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EXT.R1B	TRUE COPY NCC GROUP	OF HQ	CONVENINING ORDER DT.7.7.14 OF TRIVANDRUM
EXT.R1C	TRUE COPY THE ENQUIR	OF Y C	ENQUIRY REPORT SUBMITTED BY OMMISSION
EXT.R1D	TRUE COPY ISSUED TO	OF THE	SHOW CAUSE NOTICE DT.19.9.14 PETITIONER
EXT.R1E	TRUE COPY THE PETITI	OF ONE	REPLY DT.24.9.14 SUBMITTED BY R.

Arjunan v. Union of India

Case brief

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Arjunan v. Union of India

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