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2025 DIGILAW 2332 (KER)

Bindu Joy, D/o. George. M. P. v. Destination Management Council Represented By Its Chief Executive Officer

2025-08-26

VIJU ABRAHAM

body2025
JUDGMENT : VIJU ABRAHAM, J. The above writ petition is filed challenging Ext.P32 order and also Exts.P14 and P19 orders and Ext.P29 enquiry report. Petitioner has also sought for a consequential direction to the 1 st respondent to reinstate the petitioner in service with full salary from 29.05.2020 onwards. 2. Disciplinary proceedings were initiated against the petitioner while she was working as Manager in Destination Management Council, Peechi Dam. Petitioner would submit that the disciplinary proceedings were initiated due to political differences and for the reason that the petitioner has submitted a complaint against publication of defamatory posts on facebook and consequential registration of Ext.P9 FIR and also due to the complaint filed by the petitioner regarding harassment at work place as evident from Ext.P10. As part of the disciplinary proceedings initiated petitioner was suspended from service as per Ext.P14 dated 29.02.2020. While so, Ext.P20 message was received by the petitioner in whatsapp on 31.07.2020 intimating that a hearing will be conducted by the enquiry officer on 07.08.2020. Petitioner would submit that she was not even informed about the appointment of an enquiry officer and no memo of charges was served on the petitioner before the appointment of the enquiry officer. Further, petitioner was not served with a copy of the order appointing the enquiry officer. After receiving Ext.P20 message by whatsapp Ext.P21 memo of charges was issued to the petitioner. Ext.P22 written statement of defence was also submitted by the petitioner in answer to the allegations in Ext.P21 memo of charges. Rejecting the written statement of defence submitted by the petitioner Adv.Sreejith P. was appointed as enquiry officer for conducting the domestic enquiry as evident from Ext.P23 proceedings. Petitioner submits that the enquiry was one-sided and later Ext.P29 enquiry report was submitted wherein the petitioner was found guilty of all the charges in Ext.P21 memo of charges. Petitioner would submit that though she was found guilty of all the charges levelled against her, there is no finding in the enquiry that any financial loss or misappropriation has been committed by the petitioner. Later, Ext.P30 show cause notice dated 27.10.2020 was issued whereby Ext.P29 enquiry report was handed over to the petitioner informing that the respondents have decided to terminate the service of petitioner in the light of Ext.P29 enquiry report and that if the petitioner has any reply, it should be submitted within a period of seven days. Later, Ext.P30 show cause notice dated 27.10.2020 was issued whereby Ext.P29 enquiry report was handed over to the petitioner informing that the respondents have decided to terminate the service of petitioner in the light of Ext.P29 enquiry report and that if the petitioner has any reply, it should be submitted within a period of seven days. Petitioner has submitted Ext.P31 detailed reply denying all the findings in Ext.P29 domestic enquiry report. Without considering Ext.P31 reply in a proper perspective Ext.P32 order was issued terminating the service of the petitioner. Petitioner submits that going by Ext.P15 circular the duties of the staffs have been specifically assigned by the 2 nd respondent and stock of tickets, accounts, etc. are the duties of the ticket counter staffs and the ticket counter staffs have to do their duties strictly as per the directions of the Manager. On the basis of Ext.P15 circular it is the contention of the petitioner that as regards stock of tickets, accounts, etc., the same has been allotted to other staffs and therefore, no dereliction of duty could be attributed on the part of the petitioner. Petitioner would further submit that though the copy of the enquiry report was given to the petitioner as per Ext.P30 show cause notice, even before getting her reply/objection to the same the management has taken a decision to terminate the service of the petitioner based on the enquiry report. Petitioner would submit that after taking a decision to terminate the service of the petitioner there is no purpose in filing Ext.P31 objection and that the contentions raised by the petitioner in Ext.P31 have not been properly considered while issuing Ext.P32 and the management has solely relied on the enquiry report and dismissed the petitioner from service. It is aggrieved by the same that the present writ petition has been filed. 3. A detailed counter affidavit has been filed by respondents 1 and 2, wherein it is contended that as per Ext.R2(a) the duties were clearly assigned to the petitioner which includes supervision of the day today affairs of the Destination Management Council, Peechi, to do bank transactions properly, to maintain the attendance register and acquittance register and to assign duties of staff at the ticket counters and garden. As there was dereliction in performing the duties assigned to the petitioner, disciplinary proceedings were initiated against her and a detailed enquiry was conducted by appointing an enquiry officer and in the enquiry, the petitioner was found guilty of all the charges and after considering Ext.P31 objection preferred by the petitioner that Ext.P32 decision was taken to terminate the service of the petitioner. It is further stated that though no subsistence allowance was paid to the petitioner, later based on the direction issued by this Court the subsistence allowance was paid as evident from Ext.R2(c). 4. I have heard the rival contentions on both sides. 5. Learned counsel appearing for the respondents would contend on the basis of the judgment of the Apex Court in State Bank of India v. A.G.D.Reddy , 2023 KHC 6803 that the scope of judicial review against a departmental enquiry proceeding is very limited and it is not in the nature of an appeal and a review on merits of the decision and the scope of the enquiry is to examine whether the decision making process is legitimate and to ensure that the findings are not bereft of any evidence. It is true that it is settled law that the scope of enquiry is very limited and it is confined to an examination as to whether the decision making process is legitimate. Petitioner would contend that a perusal of Ext.P30 show cause notice would reveal that the management has taken a decision to terminate the service of the petitioner and the petitioner was directed to submit her objection, if any, in not making the said decision absolute and the objection should be filed within a period of seven days from the date of receipt of Ext.P30. So a perusal of Ext.P30 would reveal that before the enquiry report was served on the petitioner and before Ext.P31 objection to the enquiry report was filed by the petitioner a decision was taken by the management to dismiss the petitioner from service. The Apex Court in Union of India v. Mohd. So a perusal of Ext.P30 would reveal that before the enquiry report was served on the petitioner and before Ext.P31 objection to the enquiry report was filed by the petitioner a decision was taken by the management to dismiss the petitioner from service. The Apex Court in Union of India v. Mohd. Ramzam Khan , 1991 KHC 236 has held that wherever there has been an inquiry officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge. It is true that the copy of the enquiry report was furnished to the petitioner along with Ext.P30 and only after furnishing the report that Ext.P32 order was issued terminating the service of the petitioner. But it is a fact that even before issuance of the enquiry report, it could be seen in Ext.P30 show cause notice that the management has taken a decision to terminate the petitioner from service based on the enquiry report. The Apex Court in Managing Director, ECIL, Hyderabad v. B.Karunakar , 1993 KHC 995 has held that both the dictates of the reasonable opportunity as well as the principles of natural justice require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the inquiry officer’s findings and the disciplinary authority is then required to consider the evidence, the report of the inquiry officer and the representation of the employee against it. It is further held that denial of the inquiry officer’s report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice. It is further held that denial of the inquiry officer’s report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice. So going by the judgment of the Apex Court in B.Karunakar ’s case cited supra it is incumbent upon the management to have supplied a copy of the enquiry report before the disciplinary authority comes to its own conclusion and the disciplinary authority is required to consider the evidence, report of the enquiry officer and the representation of the employee before taking a final decision and further that denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice. A perusal of Ext.P30 would clearly reveal that a decision has been taken by the management to terminate the service of the petitioner even before the enquiry report is furnished and before the petitioner submitted Ext.P31 objection to the enquiry report, which is clearly in violation of the decision of the Apex Court in B.Karunakar ’s case cited supra. Therefore, I am of the view that Ext.P32 is liable to be interfered with. There will be a further direction to the 2 nd respondent to reconsider the matter taking into consideration Ext.P31 objection filed by the petitioner and appreciate the evidence adduced before the enquiry officer and provide an opportunity of hearing to the petitioner and take a fresh decision in the matter strictly in accordance with law. The contention of the petitioner based on Ext.P15 circular that each employee has been assigned duties and the dereliction of duty complained of in the show cause notice is not a duty which is assigned to the petitioner and also the stand taken by respondents 1 and 2 in their counter affidavit that even going by Ext.R2(a) the duties assigned to the petitioner were supervision of the day today affairs of the DMC, Peechi, to do bank transactions properly, to maintain the attendance register and acquittance register and to assign duties of staff at the ticket counters and garden is also to be taken into consideration by the 2 nd respondent while reconsidering the matter. A fresh decision in this regard shall be taken within an outer limit of two months from the date of receipt of a copy of the judgment. Writ petition is disposed of as above.