Appeal Remedy No Bar To Writ Jurisdiction Where Penalty 'Disproportionate' To Charges: Kerala High Court

The Kerala High Court, in a recent ruling, clarified that writ jurisdiction under Article 226 of the Constitution of India can be invoked to challenge orders that imposed penalty 'disproportionate' to charges even if appeal remedy available.Justice Harisankar V. Menon was considering a plea preferred by the former Head of the Department (Department of Engineering and Maintenance) of Malabar Cancer Centre challenging his dismissal from service.The petitioner was in charge of the department from 2009 and in 2019, the department headed by him was taken over by the Director of the Centre. Thereafter, he was issued with a show cause notice initiating disciplinary proceedings against him and he submitted a reply to the same. The department was entrusted to the senior-most supervisor of the department.Later, the petitioner was served with a memo of charges and he denied all allegations with a reply. The Centre conducted an enquiry, which was followed by a Domestic Enquiry Report and in the meantime, the petitioner was suspended from service for 3 months. There was also a sexual harassment complaint against the petitioner under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Internal Complaints Committee's report following the same was set aside in appeal after the appellate authority found that the enquiry against him was done without adhering to the principles of natural justice.Following all this, the petitioner was dismissed from service. Aggrieved, he challenged the show cause notice, suspension order, order that removed him from the charge of the department, Enquiry Report and the dismissal order by filing a writ petition before the High Court under Article 226.The respondents opposed the plea contending that the remedy available was to prefer an appeal under Rule 81 of the Malabar Cancer Centre Society Service Rules, 2008 and since the appeal was not preferred, the writ petition is not maintainable.However, the Court disagreed and held:“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].”The Court took note of the fact that the order that removed him from the charge of the department had very vague allegations like the department was not functioning as expected, and there has been delay in execution of many projects, etc. It further noticed that the show cause notice and memo of charges issued later also did not contain much detail that fastened responsibility on the petitioner but only said that the petitioner intentionally caused inordinate delay in execution of the KIIFB Project.The Court observed that reference to the POSH complaint in the dismissal order was also without justification taking light of the fact that the ICC's report on the same was quashed in appeal.It opined that the punishment was disproportionate to the charges alleged:“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.” Thus, the Court allowed the petition and set aside the dismissal order. It directed the Centre's Director to reconsider the question of punishment imposed against the petitioner and the grant of subsistence allowance to him.Case No: WP(C) No. 30601 of 2023Case Title: Sudeep K.T. v. Malabar Cancer Centre and Anr.Citation: 2026 LiveLaw (Ker) 232Counsel for the petitioner: George Poonthottam (Sr.), Kavya Varma, Nisha George, A.L. Navaneeth Krishnan, Ann Maria FrancisCounsel for the respondents: P. Sreekumar (Sr.), P.A. HelenClick to Read/Download Judgment

Appeal Remedy No Bar To Writ Jurisdiction Where Penalty 'Disproportionate' To Charges: Kerala High Court

K. Salma Jennath

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