Appellate Authority Must Consider Prior Judicial Observations When Reconsidering Disciplinary Action: Kerala HC

Kerala High Court: A Division Bench of Justices Anil K. Narendran and Muralee Krishna S. dismissed writ appeals challenging an order that remanded a disciplinary case back to the Appellate Authority for reconsideration. The court held that an Appellate Authority must properly consider prior judicial observations when reconsidering disciplinary action and cannot simply adopt a judicial review approach. The court held that an appeal is a continuation of the original proceedings; it requires the Appellate Authority to address the case on merits rather than limiting itself to procedural review. Background Benny Mathew joined Kerala Tourism Development Corporation (KTDC) as a Company Secretary in 2012 and was on probation for one year. Before the expiry of his probation, he was placed under suspension in 2013 pending disciplinary proceedings. By 2015, his service was terminated with immediate effect. The termination was based on allegations that he undertook private work without prior permission from KTDC. Further, that he utilized materials and human resources of KTDC for private works, and affixed a fraudulent signature of the Managing Director in a communication to the Government. Mathew submitted an appeal before the Board of Directors of KTDC under Clause 79 read with Rule 80 of the Service Rules against the termination order. The appeal was dismissed. He then filed a writ petition challenging both the termination order and the appellate order. By judgment dated 19.03.2020, the learned Single Judge set aside the appellate order and directed KTDC to consider the appeal afresh on merits. Pursuant to this direction, KTDC considered the appeal afresh but rejected it by order dated 07.06.2021. Aggrieved, Mathew filed a writ petition challenging this order. A single judge allowed the petition and remanded the matter back to the Appellate Authority. This led to the filing of two writ appeals - one by KTDC (W.A. No. 828 of 2023) and another by Mathew (W.A. No. 1129 of 2023). Arguments Dr. K.B. Sounder Rajan represented Mathew. He argued that in the judgment dated 19.03.2020, the court found that the disciplinary proceedings were biased and vindictive. The learned Single Judge found that the punishment of dismissal cast a stigma on him and directed the Appellate Authority to consider the appeal afresh. However, Rajan argued that the Appellate Authority did not properly consider the observations made in the prior judgment. Dr. Rajan argued that the Single Judge should not have again remanded the matter for fresh consideration, since Mathew had been facing intolerable hardships since his dismissal in 2017. He contended that the Single Judge should have instead set aside the appellate order and directed the employer to compensate Mathew. Further, he argued that there was no provision for suspension of an employee as per Service Rules of KTDC. He explained that Rule 77(1)(g) which specified suspension as a penalty was deleted by a resolution in 2012. Thus, relying on L.K. Verma v. HMT Ltd. (2006 INSC 52), he argued that in the absence of provision for suspension, Mathew was entitled to full salary. On the other hand, representing KTDC, Adv. Ahamed argued that the Single Judge had not set aside the finding of misconduct in the domestic enquiry. He explained that the matter was sent back to the Appellate Authority only to consider modification of the punishment as discharge from service rather than dismissal. In pursuance of the direction, the Appellate Authority had considered the matter on merits and passed an order. Therefore, he argued, that the Single Judge should have accepted the order and dismissed the writ petition. Court's Reasoning Firstly, the court noted that in the judgment dated 19.03.2020, the learned Single Judge did not find any violations of natural justice or procedural formalities in the disciplinary proceedings. The court held that the reconsideration of the appeal was ordered only to determine whether a punishment of discharge from service (rather than dismissal) would have been sufficient in the circumstances. Secondly, the court observed that the Appellate Authority had not properly considered the observations made in the previous judgment. The Single Judge had specifically directed the Appellate Authority to consider Mathew's arguments on merits and determine whether a termination of probation without casting any stigma would have been sufficient. Thirdly, the court noted how the Appellate Authority had proceeded under the misconception that its role was limited to judicial review. Instead, the court explained that an appeal is a continuation of the original proceedings. That, the Appellate Authority is duty-bound to address any contentions raised by the petitioner regarding the previous judgment's findings. Thus, the Division Bench concluded that the Appellate Authority had not discharged its...

Appellate Authority Must Consider Prior Judicial Observations When Reconsidering Disciplinary Action: Kerala HC

Pranav Kumar

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