Kerala High Court
Sathish Kumar D vs The Director, Kerala Hydel Tourism ... on 10 June, 2022
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 10TH DAY OF JUNE 2022 / 20TH JYAISHTA, 1944
WP(C) NO.4553 OF 2022
PETITIONER :-
SATHISH KUMAR D., AGED 39 YEARS
S/O.DURAISAMY, KSEB QUARTERS, R.A. HEAD WORKS,
KSEB COLONY, OLD MUNNAR, K.D.H. VILLAGE,
DEVIKULAM TALUK, IDUKKI DISTRICT, PIN - 685 612
BY ADVS.
S.JIJI
AJITH POTTAS
RESPONDENTS :-
1 THE DIRECTOR,
KERALA HYDEL TOURISM CENTRE CABIN NO.426,
4TH FLOOR, VYDYUTHIBHAVANAM, PATTOM,
THIRUVANANTHAPURAM DISTRICT, PIN - 695 004
2 OFFICER ON SPECIAL DUTY
KERALA HYDEL TOURISM CENTRE, MUNNAR CIRCUIT,
MUNNAR HYDEL PARK, NEAR HOTEL HILL VIEW,
OLD MUNNAR, IDUKKI DISTRICT, PIN - 685 612
3 THE SENIOR MANAGER
KERALA HYDEL TOURISM CENTRE, MUNNAR CIRCUIT,
MUNNAR HYDEL PARK, NEAR HOTEL HILL VIEW,
OLD MUNNAR, IDUKKI DISTRICT, PIN - 685 612
4 SRI. MUTHUKUMAR K., SITE IN CHARGE
MADUPPETTY DAM BOATING CENTRE, K.H.T.C.,
MUNNAR CIRCUIT, NEAR HOTEL HILL VIEW, OLD MUNNAR,
IDUKKI DISTRICT, PIN - 685 612
BY ADV M.K.THANKAPPAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 10.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO.4553 OF 2022
-: 2 :-
JUDGMENT
Dated this the 10th day of June, 2022 This writ petition is filed seeking the following reliefs :-
"(i) Call for the records leading to the issuance of Ext.P6 order and issue a writ of certiorari or any other appropriate writ, order or direction quashing Exhibit P6 order dated 05-02-2022 of the 1st respondent terminating the petitioner from the post of Jr.Accountant in Kerala Hydel Tourism Centre Munnar Circuit Office.
(ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing 1st respondent to reconsider the issue and pass necessary orders on Ext.P7 by reinstating petitioner to the post forthwith."
2. Heard the learned counsel for the petitioner and the learned counsel appearing for the Kerala Hydel Tourism Centre. In view of the directions being issued, notice to the 4 th respondent is dispensed with.
3. The petitioner submits that he was appointed as Tourism Assistant under the 1st respondent on 1.6.2012. By Ext.P1 proceedings dated 27.4.2016, he was promoted as Junior Accountant. It is submitted that Ext.P2 salary certificate had been issued to the petitioner by the 1st respondent showing him as a regular employee. Thereafter, it is contended that the petitioner had been informed by the 3rd respondent on 30.9.2021 that there is a complaint received against him from the 4 th respondent with WP(C) NO.4553 OF 2022 -: 3 :- regard to an incident which happened on 19.9.2021. It is contended that on the said date, though seven boat entry cards had been issued, the petitioner had remitted the money only in respect of six boats. The petitioner had submitted Ext.P3 explanation on the same day itself. It is submitted that on 21.12.2021, Ext.P4 order had issued appointing an enquiry officer to enquire into the charges levelled against the petitioner. Ext.P5 charge memo and statement of allegations had also been issued to the petitioner. Thereafter, no proper enquiry had been conducted or completed, but, Ext.P6 proceedings had been issued to the petitioner stating that his contract is terminated with immediate effect on allegations of financial irregularities against him.
4. The learned counsel for the petitioner submits that the petitioner was not granted any copy of the complaint submitted by the 4th respondent against him, that no proper enquiry had been conducted and that no opportunity was given to the petitioner to cross examine any of the witnesses as against him. It is submitted that without even an enquiry report having been generated, the petitioner had been dismissed from service.
5. A statement has been placed on record on behalf of respondents 2 to 4. The initial contention is that the Kerala Hydel Tourism Centre is only a society registered under the Travancore WP(C) NO.4553 OF 2022 -: 4 :- Cochin Literary Scientific and Charitable Societies Act, 1955 and that the society is, therefore, not amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. Without prejudice to the said contention, it is contended that the petitioner was guilty of gross misconduct and that the nature of the charges raised against the petitioner were extremely grave. It is further stated that Ext.P6 order was issued after following the principles of natural justice by hearing the petitioner, by issuing a memo and receiving a reply and after a thorough enquiry by looking at past antecedents of the petitioner. It is stated that in spite of repeated oral warnings and instructions, the petitioner did not improve upon his behaviour and continued misappropriation of funds and misbehaviour towards the tourist on various occasions in inebriated state. It is further submitted that the respondents were only trying to enforce order in functioning of the charitable society by discouraging malpractice in all respects. It is contended that there is an appeal provided under clause 11.4 of the bye-laws of the society and the petitioner's remedy would only to approach the respondents with an appeal.
6. I have considered the contentions advanced on either side. The contention raised in the counter affidavit that the respondent is only a society and is therefore not amenable to writ WP(C) NO.4553 OF 2022 -: 5 :- jurisdiction is absolutely untenable as evident from Ext.R1(a) Memorandum of Association produced by the respondents themselves along with the counter affidavit. It is clear from the Constitution of the Governing Body of the society that the society is a public body constituted with the Minister for Electricity, State of Kerala, Chairman of the KSE Board and other public functionaries of the Board as its members. In the above circumstances, the respondents are duty bound to conduct enquiry themselves in a fair and non-arbitrary manner. It is not in dispute from the pleadings on record that after Ext.P5, the petitioner had been served with Ext.P6 proceedings dated 5.2.2022 terminating his service. It is clear that the respondents have decided to conduct an enquiry into the allegations raised by the 4 th respondent. However, thereafter, without taking any further steps for the conduct of the enquiry, Ext.P6 was issued. After having issued proceedings to conduct an enquiry, appointed an enquiry officer and issued a charge memo and statement of allegations to the petitioner, it was not proper on the part of the respondents to issue an order in the nature of Ext.P6 without conducting such enquiry at all. Since the orders of termination were evidently on allegations of misconduct, such orders could have been passed only after considering the contentions of the petitioner as well. However, in view of the WP(C) NO.4553 OF 2022 -: 6 :- contentions raised in the counter affidavit with regard to the gravity of the allegations, I am of the opinion that the issue requires a reconsideration by the 1st respondent.
There will, accordingly, be a direction to the 1st respondent to take up Ext.P7 representation preferred by the petitioner and to consider and pass appropriate orders on the same, in accordance with law. The petitioner shall be served with a further copy of the complaint, if any, received against him. All material which is likely to be relied on shall be put to the petitioner and the entire contentions shall be considered and appropriate proceedings issued in the enquiry proposed against him and initiated by Exts.P4 and P5. Appropriate orders shall be passed, after hearing the petitioner also and after considering his contentions, within a period of six weeks from the date of receipt of a copy of this judgment.
This writ petition is ordered accordingly.
Sd/-
ANU SIVARAMAN JUDGE Jvt/13.6.2022 WP(C) NO.4553 OF 2022 -: 7 :- APPENDIX OF WP(C) 4553/2022 PETITIONER EXHIBITS Exhibit P-1 TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 27-04-2016.
Exhibit P-2 TRUE COPY OF THE SALARY CERTIFICATE OF THE PETITIONER ISSUED BY THE 1ST RESPONDENT FOR THE PURPOSE AVAILING PERSONAL LOAN FROM SBI MUNNAR Exhibit P-3 TRUE COPY OF THE EXPLANATION DATED 30-09-2021 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT Exhibit P-4 TRUE COPY OF THE ORDER DATED 21-12-2021 ISSUED BY THE 1ST RESPONDENT.
Exhibit P-5 TRUE COPY OF THE STATEMENT OF ALLEGATION AND CHARGE MEMO ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
Exhibit P-6 TRUE COPY OF THE TERMINATION ORDER DATED 05- 02-2022 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER Exhibit P-7 TRUE COPY OF THE REPRESENTATION DATED 07-02- 2022 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT RESPONDENT ANNEXURES Annexure R1 (a) True copy of the relevant pages (Pages 6 to 9) of Memorandum of Association of KHTC Annexure R1 (b) True copy of the complaint 30-09-2021 of 4th respondent Annexure R1 (c) True copy of the relevant pages (Page Nos. 49 to 51) of Byelaws of the KHTC