Writ Petition By Employee Challenging Dismissal Order Maintainable When It Is Highly Disproportionate: Kerala High Court
The petition before the Kerala High Court was filed by an employee of the Malabar Cancer Centre who was dismissed from service.
Justice Harisankar V. Menon, Kerala High Court
While granting relief to an employee of the Malabar Cancer Centre who was dismissed from service, the Kerala High Court has held that a litigant can be permitted to avail the remedy under Article 226 of the Constitution when order leading to dismissal from service, is highly “disproportionate”.
The petition before the High Court was filed by an Engineer who was the former Head of the Department (Department of Engineering and Maintenance) at the Cancer Centre.
The Single Bench of Justice Harisankar V. Menon held, “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.”
Senior Advocate George Poonthottam represented the Petitioner while Senior Advocate P. Sreekumar represented the Respondent.
Factual Background
The petitioner, working as an Engineer, holding the post of Head of the Department (Department of Engineering and Maintenance) with the Malabar Cancer Centre (first respondent) was appointed pursuant to an order in 2009. He continued till 2019, when, pursuant to an order issued by the Director, the control of the department headed by him was taken over by the Director. Thereafter, a show-cause notice initiating disciplinary proceedings was served on the petitioner. The petitioner was suspended from service for a period of three months. Aggrieved thereby, the petitioner approached the High Court. A challenge was also laid to the order by which he was removed from the charge of the department.
Reasoning
Referring to the order by which the control of the department was taken over by the Director, the Bench noted that it was mentioned therein that the Engineering & Maintenance Department of Malabar Cancer Centre was not functioning as it was expected to and there had been a significant delay in the execution of many projects and proper maintenance. The Bench found that in the show cause it was alleged that there was a 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”, it added.
The Bench stated, “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.”
Considering that the petitioner was removed from the service, as a case of “maximum punishment”, the Bench referred to the judgment in Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Assn. And Another (2007) and held, “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.”
Thus, setting aside the petitioner’s dismissal and allowing the petition, the Bench ordered, “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.”
Cause Title: Sudeep K.T. v. Malabar Cancer Centre (Neutral Citation: 2026:KER:21664)
Appearance
Petitioner: Senior Advocate Nisha George, Advocates A.L. Navaneeth Krishnan, Ann Maria Francis, Kavya Varma
Respondent: Senior Advocate P. Sreekumar, Advocate P.A. Helen