IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 WA.No. 2545 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.6846/2009 Dated 11/08/2009 .................... APPELLANT(S): 1ST RESPONDENT ---------------------------- KERALA STATE SPORTS COUNCIL, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR SRI.SAJU JOHN SRI.JELSON J.EDAMPADAM RESPONDENT(S): PETITIONER & 2ND RESPONDENT ------------------------------------------ 1. JALESH KUMAR S., S/O. SUKUMARAN NAIR, THULASI BHAVANAM, PALOTTUMOOLA, NANNIYODE, PACHA P.O., THIRUVANANTHAPURAM. 2. G.SUBI, S/O. GANGADHARAN, PANIKKAN VILAKAM, PULIYOOR, NANNIYODE, PACHA P.O., THIRUVANANTHAPURAM. (SECOND RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 17.11.2009 IN THE WRIT APPEAL) BY ADV. SRI. K.S. MADHUSOODANAN -R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 7.12.2009, THE COURT ON 22.12.2009 DELIVERED THE FOLLOWING: KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 2545 OF 2009 --------------------------------------------- Dated this the 22nd day of December, 2009 JUDGMENT Ravikumar, J. The first respondent in W.P.(C) No. 6846 of 2009 is the appellant. The said Writ Petition was filed by the first respondent herein with a prayer to quash Ext.P8 order passed by the appellant and also for a direction to the appellant herein to appoint him as Swimming coach in one of the five notified vacancies in accordance with his rank in Ext.P3 rank list. 2. The facts, in succinct, are as hereunder: Pursuant to a decision of the standing committee of the appellant, the first respondent herein was engaged as a Swimming coach on daily wages, as per Ext.P1 memo dated 15.5.1996. Thereupon, he joined duty on 18.5.1996. He was terminated from service on 6.2.2001. Later, he was reappointed on daily wages with effect from 27.9.2002. While so, the appellant issued a notification dated 17.8.2007 inviting applications to fill up five posts of Swimming coach on regular basis. The petitioner was an W.A. NO. 2545/2009 2 applicant and after due selection process, he was selected and included in Ext.P3 rank list as rank No.3. While so, he was served with Ext.P4 memo dated 14.1.2009 containing certain allegations and based on the same Ext.P4(a) bearing the same date was served on him. As per Ext.P4(a), he was put off duty. Thereafter, his engagement on daily wages was terminated by the appellant as per Ext.P8 order dated 3.2.2009. It is challenging the said order of termination that the Writ Petition was filed. 3. It was contended before the learned Single Judge that Ext.P4 memo was served on the petitioner with the oblique motive of denying him appointment as Swimming coach on regular basis from Ext.P3 rank list. It was further contended that Ext.P4 memo of charges contained only a set of vague allegations and that Ext.P8 order was issued without furnishing him a copy of the complaint referred to in Ext.P4 memo and also without conducting an enquiry into the allegations levelled against him. A statement was filed by the appellant herein in the Writ Petition. Along with the statement the appellant has produced a copy of the complaint referred to in Ext.P4 memo as Ext.R1(a) and Ext.R1(d) enquiry report dated 13.5.2009. The learned Single Judge found that Ext.P8 order is not an order of termination simpliciter and that it was founded on allegations of misconduct which were not enquired into with notice to the W.A. NO. 2545/2009 3 petitioner/first respondent herein. It was also held that though the petitioner was engaged only on daily wage basis, his termination as per Ext.P8 order could have been done only after a full fledged enquiry, as the termination was on grounds of misconduct. It was further held that the enquiry which culminated in Ext.R1(d) report was conducted behind his back and, therefore, it cannot be sustained. In view of the above said findings, Ext.P8 order was quashed and the appellant was directed to forthwith readmit the first respondent herein on duty on the same terms and conditions on which he was being engaged immediately prior to Ext.P4 memo dated 14.1.2009. It was also observed that the entitlement of the first respondent/petitioner for regular appointment pursuant to his inclusion in Ext.P3 select list would depend on the outcome of W.P.(C) No.8125 of 2009 wherein certain other candidates mentioned in Ext.P3 select list therein had sought for issuance of a writ of mandamus commanding the appellant herein to make regular appointments to the post of Swimming coach from that list. Feeling aggrieved by the said judgment, this Writ Appeal is filed. 4. Learned counsel on both sides virtually raised the very same contentions which were raised before the learned Single Judge. Admittedly, the first respondent herein was engaged as a Swimming coach W.A. NO. 2545/2009 4 only on daily wage basis. Exts.P4 and P4(a) were served on him while he was continuing as such in the services of the appellant. Ext.P4 memo carries certain allegations against the first respondent/petitioner. According to him, the said allegations are vague. That apart, it is his contention that copy of the complaint referred to in Ext.P4 viz. Ext.R1(a) was not served on him. It is true that a perusal of Ext.P4 would reveal that the allegations set out therein are not specific. As per Ext.P4, the petitioner was required to show cause as to why disciplinary proceedings should not be initiated against him. Ext.P4(a) order was also issued on the same day, viz. 14.1.2009. The contention of the petitioner that Ext.P4(a) is an order of suspension cannot be accepted for the simple reason that he was only an appointee on daily wage basis. In view of his status as a daily rated employee, Ext.P4(a) cannot be construed as an order of suspension. Essentially, it is an order, rather a memo, whereby he was put off duty for the reasons stated therein and in Ext.P4. In response to Ext.P4, the first respondent/petitioner had submitted Ext.P5 which would reveal that he had shown cause as to why action should not be taken against him in respect of the incidents specifically explained in Ext.P5. Therefore, though in Ext.P4 misconduct has not been specifically mentioned, the first respondent/petitioner had in fact given a detailed explanation in respect of certain incidents presumably under the impression that the proposed W.A. NO. 2545/2009 5 action was in respect of those incidents. Be that as it may, it is a fact that the petitioner was not served with a copy of the complaint referred to in Ext.P4 (Ext.R1(a)). It is also an admitted fact that prior to the passing of Ext.P8, no enquiry, with notice to the first respondent, was conducted. The enquiry that culminated in Ext.R1(d) report was admittedly conducted behind his back. Exts.R1(a), R1(d) and P8 would undoubtedly show that they cast a stigma on the first respondent. 5. According to the appellant, Ext.P8 order is a termination simpliciter. But, a scanning of Ext.P8 in the light of Exts.R1(a) and R1(d) would reveal that the innocuous form of the termination order is nothing but a cloak for an order of punishment for the alleged misconduct. Ext.P8 in the said circumstances would definitely cast a stigma on the first respondent/petitioner. It is a settled position of law that no order casting a stigma on an employee, irrespective of the nature of his employment, can be passed without affording him an opportunity of being heard, rather without conducting an enquiry into the allegations levelled against him. Admittedly, in this case, no enquiry was conducted into the charges prior to the passing of Ext.P8 and Ext.R1(d) which formed the basis of Ext.P8 order was an outcome of an enquiry conducted without notice to him and without affording him an opportunity to participate in that enquiry. W.A. NO. 2545/2009 6 Therefore, we agree with the finding of the learned Single Judge that Ext.P8 order cannot be sustained. 6. However, according to us, in view of the grave nature of the allegations levelled against the first respondent/petitioner, as per the complaint Ext.R1(a) and borne out from Ext.R1(d), he cannot be readmitted into the services of the appellant based only on the quashment of Ext.P8. There cannot be any doubt that the allegations levelled against him require an enquiry. As long as he is under the cloud of suspension, in view of the nature of the allegations, his continuation in service will not be conducive to the smooth functioning of the Sports Council. Therefore, according to us, the first respondent/petitioner can be put off duty on the basis of Ext.P4(a). Ext.R1(d) report can be construed, in the circumstances, only as a preliminary report. Hence, the appellant will be at liberty to issue memo of charges in terms of Ext.R1(d) to the first respondent and call for his explanation. If the explanation is not satisfactory, the appellant will also be at liberty to conduct an enquiry against the first respondent into the charges. Considering the fact that the first respondent was a daily rated employee and that his name was already included in Ext.P3 select list for appointment on regular basis, it will only be in the interest of justice that such an enquiry, if initiated, be completed W.A. NO. 2545/2009 7 expeditiously. Therefore, there shall be a direction to the appellant to complete the enquiry proceedings, if any, within a period of three months from the date of receipt of a copy of this judgment. With respect to the entitlement of the first respondent for regular appointment, in view of his inclusion in Ext.P3 select list, the observation made by the learned Single Judge is retained. However, we make it clear that the same would also depend upon the outcome of the enquiry, if any, against the first respondent, as it is well within the power of the employer to verify the antecedents and character of a prospective employee. The Writ Appeal is disposed of as above. (KURIAN JOSEPH) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 2545/2009 8 KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. W.A.NO.2545/2009 JUDGMENT 22nd December, 2009 W.A. NO. 2545/2009 9