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2025 DIGILAW 2621 (KER)

Deepa P. Mathew v. State Of Kerala Represented By The Secretary To Government, Tourism Government Department

2025-10-07

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : Muralee Krishna, J. The applicant in O.A.No.1213 of 2024 on the file of the Kerala Administrative Tribunal (the ‘Tribunal’ in short), Thiruvananthapuram, filed this original petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, challenging the order dated 08.08.2025 passed by the Tribunal in that original application. 2. The petitioner, while working as a part-time sweeper in the District office of the Tourism Department, Wayanad, was appointed on promotion as a full-time sweeper and posted at Government Guest House, Sultan Bathery, as per Annexure A2 order dated 20.04.2022, but permitted to continue in the District office itself. She was on probation for a period of one year within a continuous period of two years, which expired on 23.04.2023. She submitted Annexure A3 representation dated 15.05.2023 before the 3 rd respondent Deputy Director, for taking necessary action to declare her probation in the post. Since no action was taken, she submitted Annexure A4 and A5 representations dated 09.12.2023 before the 1 st respondent , State of Kerala and the 2 nd respondent Director, Tourism Department. 2.1. According to the petitioner, she submitted Annexure A6 complaint dated 25.05.2022 before the 2 nd respondent against the Deputy Director, District office, Tourism Department, Wayanad, alleging sexual harassment. Before taking any action in Annexure A6 complaint, the petitioner was served with Annexure A7 memo of charges dated 12.06.2023 alleging rude behaviour, insubordination and dereliction of duty. The petitioner submitted Annexure A8 reply dated 01.07.2023 denying the allegations. The petitioner states that without conducting a proper enquiry as prescribed in the Rules, the 2 nd respondent issued Annexure A9 show cause notice dated 23.04.2024 informing the provisional decision of the 2 nd respondent to terminate the probation of the petitioner in the post of full-time sweeper as a penalty. Annexure A10 copy of the enquiry report dated 20.12.2023 of the Joint Director, Tourism Department, was also annexed with Annexure A9 show cause notice. The petitioner submitted Annexure A11 reply dated 21.05.2024 to Annexure A9 show cause notice. However, the 2 nd respondent issued Annexure A1 order dated 20.07.2024 terminating the probation of the petitioner in the post of full-time sweeper as a punishment for her alleged misconduct and dereliction of duty. Hence, the petitioner approached the Tribunal with the original application filed under Section 19 of the Administrative Tribunals Act, 1985 , challenging Annexure A1 order. 2.2. However, the 2 nd respondent issued Annexure A1 order dated 20.07.2024 terminating the probation of the petitioner in the post of full-time sweeper as a punishment for her alleged misconduct and dereliction of duty. Hence, the petitioner approached the Tribunal with the original application filed under Section 19 of the Administrative Tribunals Act, 1985 , challenging Annexure A1 order. 2.2. In the original application, the 2 nd respondent filed a reply statement dated 03.09.2024 opposing the pleadings and reliefs. In the reply statement, it was contended inter alia that as per the letter dated 01.07.2022, the Deputy Director, Department of Tourism Wayanad, reported that on 30.06.2022, the petitioner entered his office cabin and, threatened him. Her action being a serious misconduct, she was served with a memo of charges for major penalties under the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 [‘KCS (CC&A) Rules’ in short]. Subsequently, the Joint Director, Department of Tourism, Kozhikode, was entrusted with the formal inquiry into the charges. The Inquiry Officer conducted a formal inquiry and submitted Annexure A10 inquiry report, and based on that inquiry report, action was taken against the petitioner. The incident that led to the disciplinary proceedings occurred within the probation period of the petitioner. As per the report from the superior, her work and conduct during the period were not satisfactory. Therefore, the probation of the petitioner was not declared as completed. 2.3. In the reply statement, the 2nd respondent further stated that the petitioner filed a complaint dated 05.02.2022 raising the allegation of mental harassment from the Deputy Director and another staff member in the District office. Later, she filed another complaint dated 25.05.2022, raising an allegation of sexual harassment. Both these complaints were entrusted to the Deputy Director, Department of Tourism, Kozhikode, for inquiry. The Deputy Director conducted an inquiry and submitted Annexure R2(a) report dated 02.06.2022, stating that there is no substance in the complaints and instead stated that it is the fault and disobedience that occurred on the part of the petitioner. 2.4. According to the 2nd respondent, the petitioner did not attend the hearing scheduled on 09.11.2023 in the inquiry conducted by the Joint Director on the complaint of the Deputy Director. 2.4. According to the 2nd respondent, the petitioner did not attend the hearing scheduled on 09.11.2023 in the inquiry conducted by the Joint Director on the complaint of the Deputy Director. On the next day of hearing, i.e., 28.11.2023, also she did not appear before the inquiry officer, and finally, the inquiry officer went to the guest house in person where the petitioner was working, to conduct the hearing. The petitioner did not request for cross-examination of the witnesses examined by the inquiry officer, in the hearing note submitted by her. Since the petitioner did not turn up during the hearing scheduled by the inquiry officer, her contention that the statement of the witnesses was not taken in her presence is not sustainable. According to the 2 nd respondent, there is no violation of the procedure contemplated under the KCS (CC&A) Rules in conducting the disciplinary proceedings. 3. The Tribunal considered O.A.No.1213 of 2024 along with O.A.No.525 of 2024 filed by the petitioner seeking declaration of her probation. After hearing both sides and on appreciation of the materials on record, by the impugned common order dated 08.08.2025, the Tribunal dismissed the original application. Being aggrieved, the petitioner is now before this Court. 4. Heard the learned counsel for the petitioner and the learned Senior Government Pleader. 5. The learned counsel for the petitioner argued that the entire disciplinary proceedings taken against the petitioner was in violation of the procedure established by law. There was no proper inquiry conducted against the petitioner to find her guilty. Annexure A7 memo of charges was issued for imposing a minor penalty, and therefore, imposition of a major penalty on the petitioner is illegal and unsustainable. No show cause notice alleging unsuitability of the petitioner was served on her as mandated by the Rules for termination of probation. There is no finding in Annexure A1 as to the unsuitability of the petitioner for the post of full-time sweeper, whereas the finding is that her continuance in the post would cause hindrance to the smooth functioning of the Government guest houses in the State. The said finding casts a stigma on the petitioner, and it shall not be a reason to terminate her probation. 6. The said finding casts a stigma on the petitioner, and it shall not be a reason to terminate her probation. 6. On the other hand, the learned Senior Government Pleader would argue that a proper memo of charges was issued to the petitioner and a proper inquiry was conducted by appointing the inquiry officer. The petitioner did not attend the inquiry conducted by the inquiry officer, and the evidence of the witnesses was recorded in her absence due to the said reason. The inquiry officer had to attend the place where the petitioner was working in order to hear her, and in the hearing notes filed by her, she did not request for cross cross-examination of the witnesses. Since the petitioner did not complete her probation satisfactorily, her probation was not declared, and she was terminated from service based on Annexure A10 inquiry report. Therefore, she will continue as a part-time sweeper. The Tribunal considered all the facts in detail, and there is no necessity to interfere with the impugned order of the Tribunal. 7. Article 227 of the Constitution of India deals with the power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. 8. In Shalini Shyam Shetty v. Rajendra Shankar Patil [ (2010) 8 SCC 329 ] the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 9. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 9. In Jai Singh v. Municipal Corporation of Delhi [ (2010) 9 SCC 385 ] , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 10. In K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [ (2015) 12 SCC 39 ] the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 11. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1] a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law. 12. In view of the law laid down in the decisions referred to supra, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by a lower court or Tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or Tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 13. We have carefully gone through the materials on record and the submissions made at the Bar. The point for consideration before us is whether a proper inquiry was conducted before taking disciplinary action against the petitioner by terminating her probation. The service of the petitioner as a full-time sweeper was terminated by Annexure A1 order, holding that she had not satisfactorily completed her probation. At this juncture, it is apposite to refer Clause 58(3) and (4) of the Manual for Disciplinary Proceedings to be conducted under the KCS (CC&A) Rules, which reads as under: “(3) The probation of a probationer may be terminated at the end or at any time before the expiry of the prescribed period of probation. Though termination of probation is not a penalty under Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, it can be ordered for a specific offence. Though termination of probation is not a penalty under Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, it can be ordered for a specific offence. When a specific offence on the part of a probationer calls for disciplinary action, his suitability to continue on probation should specifically be considered and a finding recorded before any of the penalties prescribed in the Kerala Civil Services (Classification, Control and Appeal) Rules 1960 is imposed on him. (4) If it is proposed only to terminate his probation, the delinquent should be appraised of the action proposed to be taken against him with the reasons thereof and allowed a reasonable opportunity to make any representation he might desire to make against such action”. 14. Similarly, the relevant portion of Rule 19 of Part II KS&SSR, which is extracted in the impugned order of the Tribunal, reads thus: “Suspension, termination or extension of probation.- Rule 19 (a) Where the Special Rules of any service prescribe a period of probation for appointment as a full member of the service or where such period of probation has been extended under General Rule 21, the appointing authority may, at any time before the expiry of the prescribed period of probation or the extended period of probation, as the case may be- (i) suspend the probation of a probationer and discharge him for want of vacancy, or (ii) at its discretion, by order, either, terminate the probation of a probationer and discharge him or in case the probation has not been extended under General Rule 21 extend the period of his probation, after giving him a reasonable opportunity of showing cause against the action proposed to be taken in regard to him: Provided that where a probationer has been given a reasonable opportunity of showing cause against the imposition on him of any of the penalties specified in items (iv), (vii), (viii) and (ix) of rule 11 of the Kerala Civil Services (Classification, Control and Appeal) Rules and at the conclusion of the disciplinary proceedings, a tentative conclusion is arrived at to terminate his probation, a further opportunity of showing cause specifically against termination of his probation need not be given to him. XXXXXXX” 15. The petitioner herein was working as a part-time sweeper, and at that time, she was promoted as a full-time sweeper in the Tourism Department. XXXXXXX” 15. The petitioner herein was working as a part-time sweeper, and at that time, she was promoted as a full-time sweeper in the Tourism Department. The probation period of the petitioner was one year within a continuous period of two years. The 3 rd respondent filed a complaint against the petitioner on 01.07.2022, stating that on 30.06.2022, she entered his cabin and intimidated him. Though the petitioner had previously filed a complaint of sexual harassment against the Deputy Director, by Annexure R2 (a), it was found by the Deputy Director, Department of Tourism, Kozhikode, that there is no substance in the said complaint. After completing an inquiry as contemplated under the KCS (CC&A) Rules, and completing the procedural formalities, Annexure A1 order dated 20.07.2024 was passed by the 2 nd respondent, terminating the probation of the petitioner. Before passing that order, the petitioner was issued with Annexure A9 show cause notice dated 23.04.2024 informing the provisional decision to terminate her probation. In the impugned order, the Tribunal has considered all these aspects, including the judgments of the Apex Court cited by the petitioner, claiming it in her favour. In the impugned judgment, the Tribunal, by relying on the judgment of the Apex Court in Satish Chandra Yadav v. Union of India [ (2023) 7 SCC 536 ] held that the entire objective of probation is to provide the employer an opportunity to evaluate the probationer's performance and test his suitability for a particular post. Such an exercise should be subjective and shall not be treated lightly. The true test of suitability is the actual performance of duties, which can only be applied after the candidate joins and starts working. Qualitative assessment and a holistic analysis of non-quantifiable factors are indeed necessary. The Tribunal ultimately found that the absence of allegations relating to the sweeping work done by the petitioner alone would not be sufficient for declaration of satisfactory completion of probation. Having considered the pleadings and materials on record and the submission made at the Bar, in the light of the provisions extracted above, we find no reason to arrive at a different finding than that arrived at by the Tribunal. The impugned order cannot be said as patently illegal or perverse or one passed without proper appreciation of the materials on record. In such circumstances, the original petition is liable to be dismissed. The impugned order cannot be said as patently illegal or perverse or one passed without proper appreciation of the materials on record. In such circumstances, the original petition is liable to be dismissed. In the result, the original petition stands dismissed.