Sudeep K.T. vs Malabar Cancer Centre Moozhikkara (P.O.)

Harisankar V. Menon, J

The petitioner, working as an Engineer, holding the post of Head of the Department (Department of Engineering and Maintenance) with the 1st respondent herein, was appointed pursuant to Ext.P1 order dated 23.06.2009. The petitioner took charge with the 1st respondent herein on 11.07.2009. He has been continuing so till 2019, when pursuant to Ext.P3 order dated 19.11.2019 issued by the 2nd respondent, the control of the department headed by him was taken over by the Director of the 1st respondent. Thereafter, a show cause notice at Ext.P4 dated 23.11.2019, initiating disciplinary proceedings, was served on the petitioner, for which Ext.P5 reply dated 04.12.2019  has  been  submitted  by  the  petitioner. Later,  the department, which was being headed by the petitioner, was entrusted to the senior-most supervisor of the department with effect from 02.03.2020, followed with Ext.P9 memo of charges. The petitioner, having submitted Ext.P10 reply dated 24.03.2020, denying the allegations, the 1st respondent constituted an enquiry leading to Ext.P15 Domestic Enquiry Report dated 29.04.2023. In the meantime, the petitioner was suspended from service for a period of three months, as evidenced by Ext.P11 dated 28.03.2020, and later, pursuant to Ext.P17 dated 11.05.2023, issued by the 2nd respondent herein, the petitioner was dismissed from the service of the 1st respondent. It is seeking to challenge Ext.P17 issued as above, as  well  as  the  show  cause  notice  at  Ext.P4  and  the  Domestic Enquiry Report at Ext.P15, that the petitioner has instituted the captioned writ petition. The petitioner has also sought to challenge Ext.P3, by which he was removed from the charge of the department, as noticed earlier, as well as Ext.P11 order of suspension, referred to above.

I have heard Smt.Kavya Varma, learned counsel for the petitioner, as well as Sri.P.Sreekumar, learned Senior counsel, instructed by Ms.P.A.Helen, learned counsel for the respondents herein.

Sri.P.Sreekumar, learned Senior counsel for the respondents,  would  contend  that  the  petitioner  ought  to  have preferred an appeal with reference to the provisions of Rule 81 of  Ext.P2  Service  Rules,  and  insofar  as  the  petitioner  has  not preferred an appeal as above, this writ petition is not maintainable. I have considered the afore preliminary objection raised by the respondents.

This Court notices that the petitioner has been removed from service pursuant to the order at Ext.P17. Ultimately, the allegations leading to the suspension from service  as  well  as  the  final  order  of  dismissal  requires  to  be analysed. In a situation where this Court is coming to a conclusion that the penalty imposed, as above, is“disproportionate” to the charges, in my opinion, the petitioner requires to be permitted to challenge the impugned orders under  Article  226  of  the  Constitution  of  India,  as  held  by  the Apex Court in Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Assn. And Another [(2007) 4 SCC 669]. In my opinion,  the  order  at  Ext.P17,  leading  to  the  dismissal  of  the petitioner from service, is highly “disproportionate” for the reasons to be discussed hereafter, and therefore, the petitioner is to be permitted to avail the remedy under Article 226 of the Constitution of India.

This  Court  notices  that  the  proceedings  against  the petitioner commenced with the office order at Ext.P3. It is worthwhile to refer to the allegations/reasons contained in Ext.P3, which reads as under:-

“Off late it has been noticed by the undersigned that the Engineering & Maintenance Department of Malabar Cancer Centre is not functioning as it is expected to.  It is perceived that there has been significant delay in execution of many projects and proper maintenance. As the faith in the functioning of the aforementioned is lost, for the benefit of the staff of the Department and institution. It is proposed to take over the Department of Engineering & Maintenance by the Director himself. Engineer will not be permitted to interfere in any of the works of maintenance and on-going projects till further orders. Shri.Sudeep K.T. will not be invited to attend any of the Administrative Committee meeting of the institution.

This change will be in force w.e.f. 19-11-2019 till further orders are issued in this regard.”

(underlining supplied)

The only allegation contained in Ext.P3 is to the effect that the Engineering and Maintenance Department of the 1st respondent herein, which was being headed by the petitioner, was not functioning“asit is expected to”. It is further alleged that there has been considerable delay in the execution of “many projects”and “proper maintenance”. However, the order at Ext.P3 is silent as regards the projects which were being delayed, as alleged in Ext.P3. It is on that basis that the petitioner has been removed from the charge of the department referred to above, and  administration taken  over by the  2nd respondent  herein. Subsequently, the show cause notice at Ext.P4 has been issued on 23.11.2019. Herein also, the allegation is essentially the very same one as has been highlighted in Ext.P3. In other words, the allegation was to the effect that there is delay in the implementation of the various projects undertaken by the respondents herein. However, in Ext.P4, for the first time, reference  is  made  regarding  the  delay  in  the  execution  of  the“Kerala Infrastructure Investment Fund Board (KIIFB) project,”which  could have  been  avoided  if  the  engineering  department had provided M/s.BSNL (SPV), with adequate information needed for the work. The afore letter/notice is also silent as to whether  the  petitioner  was  the  person  responsible  for  the  so- called delay  in  the execution of the work. Later, the Memo of Charges at Ext.P9 is also issued to the petitioner. Here, the first charge levelled against the petitioner reads as under:-

“1. That you, Shri.Sudeep K.T. (Engineer), HOD-Department of Engineering & Maintenance, Malabar Cancer Centre (MCC),  Moozhikkara  (PO),  Thalassery,  while  holding  the above post, is understood to have caused significant and inordinate delay in the execution of KIIFB Project, and such delay has been intentionally caused by you and most of the communications in connection with KIIFB with M/s.BSNL, who is the SPV(Special Purpose Vehicle) of the Project, were not properly made by you and such communications  are  purposefully  delayed  by  you. It  is also known that you have instructed the Engineering Staff of MCC not to get involved with KIIFB Project and that the Project in MCC will not happen at all.”

A reading of the afore would show that the petitioner is alleged to have caused “significant and inordinate delay in the execution of the KIIFB Project intentionally”. Though Ext.P9 makes reference  to  some  “communications  in  connection  with  KIIFB with  BSNL”,  the  details  thereof  have  not  been  provided  along with  the  said  Memo  of  Charges. It  is  on  that  basis  that  the disciplinary proceedings were constituted, and an enquiry authority was appointed. The findings contained in the enquiry report at Ext.P14 have been referred to by Sri.Sreekumar, learned Senior counsel for the 1st respondent, in detail. A reading  of  Ext.P15  also  shows  that  the  allegation  against  the petitioner is the delay of almost 15 months in the execution of the projects, as noticed earlier. It is on that basis that the impugned order at Ext.P17 has been issued. In the impugned order at Ext.P17, the 2nd respondent herein has arrived at the conclusion  that  the  charges  against  the  petitioner  are  serious and  therefore,  the  petitioner  requires  to  be  mulcted  with  the maximum punishment. This Court also notices that while passing the order at Ext.P17, the 2nd respondent has also referred  to  a complaint  filed  under  the  Sexual  Harassment  of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the ‘PoSH Act’) by a lady. It  is  also  to  be  noticed  that  the  order  at  Ext.P17  informs  the petitioner  that  the  punishment  imposed  as  above “is  also  by taking into consideration a complaint lodged against you by the lady employee”.

Smt.Kavya, learned counsel for the petitioner, has also pointed out that the complainant, who lodged the complaint under the PoSH Act, is none other than the person to whom the charge  has  been  handed  over  pursuant  to  Ext.P7.  This  Court also notices that the Internal Committee’s report at Ext.P19 has been challenged by filing an appeal by the petitioner, which led to Ext.P25 order dated 18.10.2023, by the appellate authority, finding that the enquiry at Ext.P19 has been carried out without following the principles of natural justice and therefore, Ext.P19 requires to  be quashed. In the light of the afore, I am of the opinion that the reference made to the complaint lodged by the afore individual, while passing the order at Ext.P17, was without any justification.

On the face of the afore findings, this Court notices that, ultimately, the petitioner is being removed from the service, as a case of “maximum punishment”. In  my opinion, the question of “proportionality” as regards the punishment imposed,  as  above,  requires  to  be  noticed. Here,  as  already found, the allegation against the petitioner is the alleged delay of  15  months  in  the  execution  of  certain  projects. As  already noticed, the allegations contained in the Charge Memo were not specific, and the petitioner has also been removed from service, without taking note of the doctrine of proportionality.

At  this  juncture, the judgment  of the  Apex  Court  in Coimbatore District Central Cooperative Bank (supra) requires  to  be  noticed. It  has  been  found  by  the  Apex  Court that,  if  an  action  taken  by  the  authorities  is  contrary  to  law, improper, irrational, or otherwise unreasonable, a court of law can interfere by exercising judicial review, and also by exercising the “doctrine of proportionality”, as under:-

“17. So far as the doctrine of proportionality is concerned,  there  is  no  gainsaying  that  the  said  doctrine  has not only arrived in our legal system but has come to stay. With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts. If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the “doctrine of proportionality”.

“Proportionality” is a principle where the court is concerned  with  the  process,  method  or  manner  in  which  the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise—the elaboration of a rule of permissible priorities.

de Smith states that “proportionality” involves“balancing test” and “necessity test”. Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity test) requires infringement of human rights to the least restrictive alternative. [Judicial Review of Administrative Action (1995), pp. 601-05, para 13.085; see also Wade & Forsyth: Administrative Law (2005), p. 366.]”

With reference to the principles laid down by the Apex Court as above, there cannot be any dispute that the punishment imposed on the petitioner was disproportionate.

In such circumstances, the findings contained in Ext.P17 do not inspire confidence in this Court. Therefore, Ext.P17,  to  the  extent  that  the  petitioner  has  been  dismissed from the service, is set aside. The question as regards the punishment to be imposed on the petitioner has to be reconsidered afresh by the 2nd respondent. In view of the afore, the petitioner’s entitlement for subsistence allowance also requires to be considered by the 2nd respondent.

The writ petition is allowed, as above.