High Court of KeralaSingle Judge2021-11-18Writ petitions allowed; Ext.P13 in WP(C)12563/2...

Anil Kumar A.P. v. State of Kerala, Mahatma Gandhi University & The Vice Chancellor, Mahatma Gandhi University (WP(C) Nos. 12563/2020 and 12966/2020)

Case / Petition Number:WP(C) Nos.12563/2020 & 12966/2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Amit Rawal
Judgment Date: 2021-11-18
Court Decision / Holding: Writ petitions are allowed. The orders imposing minor penalties (Exts. P13 and P16) are quashed for lack of personal hearing. The court cautions that, if further action is contemplated, the University must afford the petitioner a personal hearing before any major penalty is imposed, and consideration of representations must be genuine. The court also notes that while appeal under Part III remains available, the writ court can examine non-compliance with natural justice in the order and exercise its power under Article 226 accordingly.
Final Disposition: Writ petitions allowed; Ext.P13 in WP(C)12563/2020 and Ext.P16 in WP(C)12966/2020 are quashed; respondents to afford opportunity of personal hearing before any major penalty; remedies under Part III of the Mahatma Gandhi University Statutes remain available.

Parties to the Case

Appellants / Petitioners

Anil Kumar A.P., aged 51 years, S/O A.A. Pankajakshan, Assistant Section Officer, Mahatma Gandhi University, Priyadarshini Hills, Athirampuzha, Kottayam-686 560

Respondents

The State of Kerala represented by the Chief Secretary, Government Secretariat, Thiruvananthapuram-695001
Mahatma Gandhi University, Priyadarshini Hills, Athirampuzha, Kottayam-686560, represented by its Registrar
The Vice Chancellor, Mahatma Gandhi University, Priyadarsini Hills, Athirampuzha, Kottayam-686560

Legal Representation & Advocates

Counsels for Petitioners

• S.Sreekumar (Sr.)
• P. Martin Jose
• P. Prijith
• Thomas P. Kuruvilla
• R. Githesh
• Ajay Ben Jose
• Manjunath Menon
• Harikrishnan S.

Counsels for Respondents

• Surin George Ipe (Senior Counsel, M.G. University)
• Sri Jimmy George (Government Pleader, M.G. University)

Case Synopsis & Summary

Anil Kumar A.P. v. State of Kerala, Mahatma Gandhi University and The Vice Chancellor concerns the legality of minor penalties imposed on a university employee after an enquiry into alleged misconduct. The petitioner, Anil Kumar A.P., was penalized with withholding of increment for a limited period, via Exts. P13 (12563/2020) and P16 (12966/2020). In both petitions, the University authorities had given an opportunity to respond after receiving the enquiry report and prior to imposing the penalty. The central legal questions were whether opportunity, including personal hearing, is required on receipt of an enquiry report before imposing a minor penalty, and whether the remedy of appeal under Part III of the Mahatma Gandhi University Statutes is efficacious. The court examined Statute 55 (Part III) which requires to inform the employee in writing of the proposal and the allegations, and to provide an opportunity to make representations, with such representations to be taken into account. It also considered Statute 35 (I–IV), Statute 61, and Article 226 of the Constitution. Relying on Jalaja G. Prabhu v. Board of Trustees (2018 KHC 402), the court held that audi alteram partem mandates personal hearing. Consequently, the challenged orders are quashed; writ petitions are allowed, with directions that personal hearing be provided before any major penalty, and that actions may be reconsidered accordingly.

Provisions of Law Cited

Statute 55 of Part III of Mahatma Gandhi University Statutes, 1997Statute 35 (I to IV) of Mahatma Gandhi University Statutes, 1997Statute 61 of Mahatma Gandhi University StatutesPart III of the Mahatma Gandhi University Statutes, 1997Article 226, Constitution of India

Legal Doctrines & Maxims

audi alteram partem
principles of natural justice

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that upon receipt of the enquiry report, an opportunity before imposing any minor penalty is mandatory, and the term 'opportunity' in Statute 55 includes personal hearing, not merely a show-cause. They relied on principles from Jalaja G. Prabhu to insist on audi alteram partem. They contended that without a personal hearing, the penalties (like withholding increment) impair service prospects, and that the remedy of appeal under Part III of the statutes does not negate the necessity of a personal hearing. The petitions challenge Exts. P13 and P16 as violative of natural justice and seek quashing of the orders and a direction to grant personal hearing before any subsequent major penalty. They also argued the effectiveness of the statutory remedy should not bar the court from ensuring compliance with natural justice in writ jurisdiction.

Contentions of Respondents

The respondents contended that Section 61 of the Statutes provides an appeals route to the Vice-Chancellor and Chancellor; they argued there was sufficient opportunity through a memo and representations, and that Statute 55 does not expressly mandate personal hearing. They maintained the writ petitions are not maintainable and that the remedy exists within the Statutes, with no explicit provision for personal hearing. They asserted that the opportunity given (memo, representations) should suffice and that the absence of a specified personal hearing provision does not violate natural justice in these proceedings.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Jalaja G. Prabhu v. Board of Trustees, Dr. Padiar Memorial Homeopathic Medical College and Others	2018 KHC 402	Positive	The court cites this decision to support the proposition that principles of audi alteram partem must be complied with, mandating an opportunity including personal hearing before imposition of penalties.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **THURSDAY, THE 18[TH] DAY OF NOVEMBER 2021 / 27TH KARTHIKA, 1943** **WP(C) NO. 12563 OF 2020** ## **PETITIONER:** ANIL KUMAR A.P. AGED 51 YEARS, S/O.A.A.PANKAJAKSHAN, ASSISTANT SECTION OFFICER, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686 560. BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.R.GITHESH SRI.AJAY BEN JOSE SRI.MANJUNATH MENON SHRI.HARIKRISHNAN S. ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686 560, REPRESENTED BY ITS REGISTRAR. 3 THE VICE CHANCELLOR, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686 560. BY ADVS. SC, M.G.UNIVERSITY SHRI.SURIN GEORGE IPE, SC, M.G.UNIVERSITY GP SRI JIMMY GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.10.2021, ALONG WITH WP(C).12966/2020, THE COURT ON 18.11.2021 DAY DELIVERED THE FOLLOWING: **WP(C)NOs.12563/2020 & 12966/2020** **2** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **THURSDAY, THE 18[TH] DAY OF NOVEMBER 2021 / 27TH KARTHIKA, 1943** **WP(C) NO. 12966 OF 2020** ## **PETITIONER:** ANIL KUMAR.A.P AGED 51 YEARS, S/O.A.A.PANKAJAKSHAN, ASSISTANT SECTION OFFICER, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686560. BY ADVS. P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.R.GITHESH SRI.AJAY BEN JOSE SRI.MANJUNATH MENON SHRI.HARIKRISHNAN S. ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686560, REPRESENTED BY ITS REGISTRAR. 3 THE VICE CHANCELLOR, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686560. BY ADV SC, M.G.UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.10.2021, ALONG WITH WP(C).12563/2020, THE COURT ON 18.11.2021 DELIVERED THE FOLLOWING: **WP(C)NOs.12563/2020 & 12966/2020** **3** ## **JUDGMENT** The questions of law to be decided in these cases are, 1) On receipt of the enquiry report against the petitioner in both the writ petitions, whether before imposing a minor penalty, an opportunity of personal hearing ought to have been granted to the petitioner or not. 2) If there has been a compliance, whether petitioner has an efficacious remedy of appeal as per the provisions of Part-III of the Mahatma Gandhi University Statutes, 1997. 2. Petitioner had been imposed with a punishment of withholding of increment for a limited period vide order Ext.P13 dated 16.10.2019 in W.P(C).No.12563/2020 by the Registrar of the University and vide order Ext.P16 dated 11.11.2019 in W.P. (C).No. 12966/2020 by the Vice Chancellor. In both the orders before imposing the punishment and on receipt of the enquiry report, petitioner was given an opportunity on proposal to impose the punishment, which was duly replied. 3. Learned counsel appearing on behalf of the petitioner submitted that imposition of minor penalty is provided as per **WP(C)NOs.12563/2020 & 12966/2020** **4** Statute 35 and Statute 55 prescribes the procedure where no order imposing any penalty as specified in item No.(i) to (iv) of Statute 35 can be passed except after University employee is informed in writing of the proposal to take action against him and of the allegations, by giving an opportunity. Expression 'opportunity' is not only the show cause but personal hearing as well. In support of the aforementioned contention has relied upon the judgment of this Court in _**Jalaja G.Prabhu**_ v. _**Board of Trustes, Dr.Padiar Memorial Homeopathic Medical College**_ _**and Others [2018 KHC 402]**_ wherein it has been categorically held that the principles of audi alterem partem had to be complied with. 4. On the other hand, Sri.Surin George, learned counsel appearing on behalf of the respondent has raised the objection of maintainability of the writ petition by relying upon the provisions of Statute 61 of the Statutes as the remedy of appeal against the order of Registrar lies to the Vice chancellor and against the order of Vice Chancellor, to the Chancellor. Sufficient opportunity by issuing a memo was given and not found satisfactory. There is no provision in the Statute 55 regarding any personal hearing. **WP(C)NOs.12563/2020 & 12966/2020** **5** 5. I have heard the learned counsel for the parties and appraised the paper book. 6. To answer the questions raised hereinabove it would be apt to produce Statute 55 of Part III of Mahatma Gandhi Statutes, 1997: “55. Inquiry:- No order imposing any of the penalties specified in items (I) to (iv) of Statute 35 shall be passed except after. (a) the University employees informed in writing of the proposal to take action against him and of the allegations on which it is proposed to be taken and given an opportunity to make any representation he may wish to make: (b) such representation, if any, is taken into consideration by the disciplinary authority.” From the perusal of the aforementioned provision the expression 'opportunity' whether would embrace personal hearing or only an opportunity of proposed punishment, I am of the view that even if a person has to be imposed a minor penalty which would affect his service career like the one in the instant case, despite having been given a show cause notice of proposed punishment and reply thereof not found to be satisfactory, the Vice Chancellor or the Registrar imposing the punishment as per **WP(C)NOs.12563/2020 & 12966/2020** **6** the orders Exts.P13 and P16 in the respective writ petitions ought to have given opportunity of personal hearing. Thus both the orders Ext.P13 in W.P.(C).No.12563/2020 and Ext.P16 in W.P. (C).No. 12966/2020 are quashed. However this will not prevent the respondents from taking action in terms of the observations made hereinabove, after affording an opportunity of personal hearing before taking any call on imposition of major penalty. Since there is violation of the aforementioned provisions the writ court while exercising the powers under Article 226 of the Constitution of India can always examine the veracity of the order if it suffers from non-compliance of principles of natural justice. Writ petitions are allowed. **Sd/AMIT RAWAL JUDGE** nak ## **WP(C)NOs.12563/2020 & 12966/2020** ## **7** ## **APPENDIX OF WP(C) 12966/2020** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF COMMUNICATION DATED 5.6.2018 ISSUED BY TE GENERAL SECRETARY OF MAHATMA GANDHI UNIVERSITY EMPLOYEES' ASSOCIATION. - EXHIBIT P2 TRUE COPY OF ORDER DATED 8.8.2018 OF DEPUTY REGISTRAR OF 1ST RESPONDENT UNIVERSITY. - EXHIBIT P3 TRUE COPY OF ORDER DATED 13.8.2018 OF 2ND RESPONDENT. - EXHIBIT P4 TRUE COPY OF MEMO OF CHARGES DATED 13.8.2018 ISSUED BY THE 2ND RESPONDENT. - EXHIBIT P5 TRUE COPY OF EXPLANATION DATED 8.9.2018 SUBMITTED BY THE PETITIONER TO THE CHARGES IN EXHIBIT P4. - EXHIBIT P6 TRUE COPY OF MEMO DATED 23.8.2018 ISSUED BY THE 2ND RESPONDENT ALLEGING THAT, PETITIONER DEMANDED MONEY FROM THE EMPLOYEES OF THE UNIVERSITY AND HENCE SOUGHT EXPLANATION TO THE SAME. - EXHIBIT P7 TRUE COPY OF EXPLANATION DATED 27.9.2018 SUBMITTED BY THE PETITIONER REFUTING THE ALLEGATIONS IN EXHIBIT P6. - EXHIBIT P8 TRUE COPY OF JUDGMENT DATED 28.9.2018 IN W.P.(C) NO.27355 OF 2018 OF THIS HON'BLE COURT. - EXHIBIT P9 TRUE COPY OF MEMO OF CHARGES ALONG WITH STATEMENT OF ALLEGATIONS DATED 3.6.2019 ALONG WITH THE RECORDS RELATING TO FACE BOOK POST AND SOME OTHER WHATSUP CHATS BY OTHER EMPLOYEES OF UNIVERSITY. - EXHIBIT P10 TRUE COPY OF MEMO OF CHARGES AND ## **WP(C)NOs.12563/2020 & 12966/2020** ## **8** ALLEGATIONS. - EXHIBIT P10(A) TRUE COPY OF COMPLAINT FILED AGAINST PETITIONER. - EXHIBIT P10(B) TRUE COPY OF PRINT OUT OF FACEBOOK POST. EXHIBIT P11 TRUE COPY OF EXPLANATION DATED 17.6.2019 TO EXHIBIT P9. - EXHIBIT P12 TRUE COPY OF EXPLANATION DATED 17.6.2019 TO EXHIBIT P10. EXHIBIT P13 TRUE COPY OF ENQUIRY REPORT DATED 30.7.2019 SUBMITTED BY THE ENQUIRY OFFICER TO THE 2ND RESPONDENT. EXHIBIT P14 TRUE COPY OF MEMO DATED 5.10.2019 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P15 TRUE COPY OF REPLY STATEMENT DATED 14.10.2019 SUBMITTED BY THE PETITIONER REFUTING THE ENQUIRY REPORT OF MEMO PROPOSING PUNISHMENT. EXHIBIT P16 TRUE COPY OF ORDER DATED 11.11.2019 OF THE 2ND RESPONDENT. ## **WP(C)NOs.12563/2020 & 12966/2020** ## **9** ## **APPENDIX OF WP(C) 12563/2020** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF COMMUNICATION DATED 05.06.2018 ISSUED BY THE GENERAL SECRETARY OF THE ASSOCIATION. - EXHIBIT P2 TRUE COPY OF JUDGMENT DATED 28.09.2018 IN WPC NO.27355 OF 2018 OF THIS HON'BLE COURT. - EXHIBIT P3 TRUE COPY OF ORDER NO.2430/ADA1/2019/MGU OF THE REGISTRAR-IN CHARGE OF THE 2ND RESPONDENT UNIVERSITY. - EXHIBIT P4 TRUE COPY OF FACEBOOK POST. - EXHIBIT P5 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER ON 07.06.2019 BEFORE THE HON'BLE VICE CHANCELLOR OF THE 2ND RESPONDENT THROUGH PROPER CHANNEL. - EXHIBIT P6 TRUE COPY OF MEMO OF CHARGES DATED 13.06.2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. - EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 12.07.2019 IN WPC NO.16582 OF 2019 OF THIS HON'BLE COURT. - EXHIBIT P8 TRUE COPY OF EXPLANATION DATED 16.06.2019 TO EXHIBIT P6 MEMO OF CHARGES SUBMITTED BY THE PETITIONER. - EXHIBIT P9 TRUE COPY OF ORAL ENQUIRY OF THE PETITIONER RECORDED ON 11.07.2019 BY THE ENQUIRY OFFICER. - EXHIBIT P10 TRUE COPY OF REPORT DATED 25.07.2019 SUBMITTED BY THE ENQUIRY OFFICER. - EXHIBIT P11 TRUE COPY OF MEMO DATED 18.09.2019 ## **WP(C)NOs.12563/2020 & 12966/2020** **10** ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P12 TRUE COPY OF EXPLANATION DATED 24.09.2019 TO EXHIBIT P1 MEMO. EXHIBIT P13 TRUE COPY OF ORDER DATED 16.10.2019 OF THE 2ND RESPONDENT UNDERTAKING.