ANIL KUMAR A.P v. MAHATMA GANDHI UNIVERSITY

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY ,THE 28TH DAY OF SEPTEMBER 2018 / 3RD ASWINA, 1940** ## **WP(C).No. 27355 of 2018** ## **PETITIONER/S:** **ANIL KUMAR A.P AGED 49 YEARS S/O.A.A.PANKAJAKSHAN** **BY ADV. ELVIN PETER P.J.** ## **RESPONDENT/S:** |**1**|**MAHATMA GANDHI UNIVERSITY**| |---|---| ||**REPRESENTED BY ITS REGISTRAR**| ||**686560**| |**2**|**THE REGISTRAR**| ||**MAHATMA GANDHI UNIVERSITY,**| ||**PRIYADARSHINI HILLS,**| ||**ATHIRAMPUZHA,**| ||**KOTTAYAM - 686 560.**| |**3**|**THE DEPUTY REGISTRAR-I (ADMINISTRATION)**| ||**MAHATMA GANDHI UNIVERSITY,**| ||**PRIYADARSHINI HILLS,**| ||**ATHIRAMPUZHA,**| ||**KOTTAYAM - 686 560.**| ||**BY ADVS.**| ||**SRI.P.C.SASIDHARAN**| ||**SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ========================= W.P.(C).No.27355/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~ 28[th] day of September, 2018 ## **-:3:-** ## J U D G M E N T _My prodigious sin was, and still is, being a non-conformist..._ , the sentiments echoed by Charlie Chaplin in “My Autobiography” resembles the thoughts of the petitioner expressed through the social media as against the barriers around him. The petitioner has now fallen in disciplinary boundaries of M.G.University and seeking interference of this Court. The petitioner, a University Assistant, is on the claws of suspension pressed on him by the University. 2. A fastidious outlook of a person often invites wrath of others as he may not fall on line of the course decided by them. Being an active member of the Mahatma Gandhi University Employees Association, the petitioner was thrown out from its primary membership on 5.6.2018. This followed his emotional outburst in a sarcastic frame in the social media to poignantly depict persons, who wield power. He also made an appeal to organise a theatre and music club to catalyst the movement towards upholding values. Be that it may look as outrageous to someone, who ========================= W.P.(C).No.27355/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~ 28[th] day of September, 2018 **-:4:-** would really be aggrieved to be provoked, nonetheless for an independent reader it was his angrily disparage on the persons with whom he is at loggerheads. The petitioner has not chosen to name, Institution or persons against whom such diatribe was intended. There is nothing on the face to conclude that it was against the University or the officials of the University. One can ignore this as a mere outcry. But those who know what had caused his vituperative response cannot remain unmindful, to be provoked for vengeance. Any such outcry in social media need not be understood as against the Institution. It may be a subject matter of inquiry whether it was intended against the University or against officers or was against the persons in the Union. If this emotional outburst is understood in isolation with his expulsion of membership, perhaps it may have any colourable meaning. The University thought that it was an attack on the University or towards persons, who were in higher echelons of the University. Provoked by this, the University suspended him from service on 8.8.2018. This writ petition was filed on 10.9.2018 challenging his suspension. Taking note of the nature and the circumstances leading to the suspension, this Court thought it fit to relegate to the Vice Chancellor by an Interim Order dated 14.9.2018 to decide upon continuation of the suspension order. On ========================= W.P.(C).No.27355/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~ 28[th] day of September, 2018 **-:5:-** 18.9.2018 that was considered. Reiterating that it was a call from the petitioner to instigate the employees rebel against the University and authorities and tarnish the prestige of the University in public, suspension was ordered to be continued. The learned counsel for the University, Shri P.C.Sasidharan points out the maintainability of the writ petition without recourse to statutory remedy before the Syndicate. 3. What constitute a misconduct, perhaps is the subject matter of the inquiry. It would be inappropriate for this Court to deal with that issue now. 4. Emotional outburst of a disgruntled, through social media in a louder voice is part of his right of free speech. In certain circumstances, there are chances that such public outburst would intersect with the Institution's interest. What is acceptable behaviour by use of social media is a subject matter of various debate in this country and elsewhere. Absence of social media guidelines often lead to confrontation of this nature. 5. Human impulses conditioned by thought processes are expressed in varied forms, if men are precluded from expressing ========================= W.P.(C).No.27355/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~ 28[th] day of September, 2018 **-:6:-** sentiments on matters of interest of all, though it may be distasteful for some but need to be gauged on an Institutional perspective. Individuals identified with Institutions are, in fact, part of the Institution's identity. If such expressions breach the limit or boundary and it entrench to tarnish the prestige of the Institution, such tendency must be desisted through actions. How far it had tarnished the prestige of the Institution is a matter for inquiry. The right of freedom of speech is not absolute when the individual right of an employee becomes repugnant to the collective interest of the Institution, the individual must fall within the lines of collective interest. 6. Servitude is an outlook of an individual and not a governing norm in a public Institution. Discipline is a norm. Discipline and servitude are to be distinguished. If an employee speaks out in the social media in a general perspective which is not inconsistent with the collective interest of the Institution, that is part of his right of free speech. No authority should expect one to be silent. Survival of public Institution depends upon how it accounts for democratic values. Free expression is the corner stone of democratic value. Every functionary of public power therefore, must command liberty to their constituents. ========================= W.P.(C).No.27355/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~ 28[th] day of September, 2018 ## **-:7:-** 7. The petitioner is under suspension for nearly 60 days. Suspension cannot be used as a weapon to penalise. Continuation of suspension must be in larger public interest. The continuation, if pose threat to an ongoing inquiry, such delinquent employee need not be reinstated pending such enquiry. This Court in **K.K.Ramankutty v. State of Kerala and Another [1972 KHC 284]** in para.28 held as follows: “28. The suspension of a member of an All India Service or for that matter of any Civil servant against whom disciplinary proceedings are initiated is not to be intended as a punishment. The order of suspension should not normally depend merely on the gravity of charges but should depend upon a consideration of the question Whether it is necessary to keep him away from the post of office that he occupies. The effect of passing an order of suspension is to keep such officer away from his office for the time being and is intended to deprive him of the powers of the office temporarily. Its objective is to remove him from his sphere of influence during the investigation into and trial of the charges against him and this may be necessary to avoid embarrassment to the officer as well as his subordinates and associates in office. It may be that some or many of the records which are in his custody may have to be looked into. His colleagues or subordinates or sometimes even his superiors in office may ========================= W.P.(C).No.27355/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~ 28[th] day of September, 2018 ## **-:8:-** have to be questioned. To keep the officer in his office when there is necessity to find out facts from people working under him or with him, and to examine papers in his office Would be causing considerable embarrassment, if not annoyance to him as well as to others There may be cases where such suspension may be justified also to avoid misuse of the authority of his office, misuse which may result in obstruction to the proper trial of the charges against him. The situation could be met by the officer being kept under suspension or in some cases merely by transferring the officer away from the scene, the choice necessarily depending upon the exigencies of the situation...” Absolutely there is no need to keep the petitioner under suspension for long. The University should respond to the matter in an unpassionate manner. What could be gathered as a misconduct is already there on his social media postings. There is no scope for him to interfere with any materials now gathered. Larger public interest demand that the employee shall not be continued under suspension. 8. I have not interfered with the legality of suspension. That is left open for consideration in future, and therefore, there is no scope for relegating the petitioner to approach the Syndicate. I am also not adverting to the fact whether such postings would amount to misconduct or not. ========================= W.P.(C).No.27355/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~ 28[th] day of September, 2018 ## **-:9:-** What I have discussed above is only to point out that there is nothing imminent danger that would affect the ongoing process of inquiry as well as the image of the University if the petitioner is ordered to be reinstated. However, the petitioner is restrained from making any such postings in social media touching upon his inquiry or any disciplinary action initiated against him, till the disciplinary inquiry concludes. Accordingly, the petitioner is ordered to be reinstated forthwith. The writ petition is disposed of as above. No costs. Sd/- ## A.MUHAMED MUSTAQUE, JUDGE ms ========================= W.P.(C).No.27355/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~ 28[th] day of September, 2018 ## **-:10:-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **Ext.P1 True copy of the communication dated 5.6.2018 issued by the General Secretary of the Association.** **Ext.P2: True copy of Order No. 6037/A1/1/2018/Admn. Dated 8.8.2018** **Ext.P3 True copy of Relevant extract of Statute 29 of M.G. University First Statutes** **Ext.P4 true copy of order No. 6125/A1/1/2018/Adimn, dated 13.8.2018 issued by the 2[nd] respondent** **Ext.P5 true copy of the news item pubilished in the Malayala Manorama dailly dated** **14.6.2018.** **Ext.P6 true copy of the news item pubilished in the Deccan Chronicle daily dated 14.6.2018.** |**Ext.7**|**true**|**copy**|**of**|**the**|**message**|**publishesd**|**publishesd**| |---|---|---|---|---|---|---|---| |**by**<br>**the**|**petitioner**||**in**|**the**|**social**|**media**|**on**| |**12.6.2018**|||||||| |**Ext.P8**|**true**|**copy**|**of**|**the**|**message**|**published**|| |**by**<br>**the**|**petitioner**||**in**|**the**|**social**|**media**|**on**| |**22.7.2018**|||||||| ========================= W.P.(C).No.27355/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~ 28[th] day of September, 2018 ## **-:11:-** **Ext.P9 true copy of the message published by the petitioner in the social media.** ## **RESPONDENTS' EXTS :** **Annexure I. A true copy of the modified order of Exhibit P2, signed by the Registrar of the University dated 13-08-2018** **Annexure II. Printout of a Facebook post of the Petitioner dated 1-7-2018** **Annexure III. A printout of the post of the Petitioner dated 08-08-2018 found in his Facebook account** **Annexure lll(a).The contention of Annexure lll reproduce** **Annexure IV True copy of the order No.6833/A1/1/2018/Admn. Dated 18.09.2018** **Annexure V True copy of the proceedings No.6832/A1/1/2018/Admn. dated 18.09.2018 appointing the enquiry officer to conduct a detailed enquiry in terms of the University statute.** **Exhibit R1 (a) Printout of a facebook post of the petitioner dated 01.07.2018** ========================= W.P.(C).No.27355/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~ 28[th] day of September, 2018 ## **-:12:-** **Exhibit R1(b) True A printout of the post of the petitioner dated 08.08.2018 found in his Facebook account** **Exhibit R1(c)True copy proceedings** **Exhibit R1(d) - True copy of the order** **\\True copy//** **PS to Judge** **ms**