Anil Kumar A.P. v. State of Kerala & Mahatma Gandhi University & The Vice-Chancellor, Mahatma Gandhi University

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 12TH DAY OF JULY 2019 / 21ST ASHADHA, 1941** ## **WP(C).No.16582 of 2019** ## **PETITIONER/S:** **ANIL KUMAR A.P. AGED 49 YEARS S/O.A.A.PANKAJAKSHAN, ASSISTANT SECTION OFFICER, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686560.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.THOMAS P.KURUVILLA** ## **RESPONDENT/S:** **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 ADVS. SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY SRI.P.C.SASIDHARAN** ## **OTHER PRESENT:** **SPECIAL GP. SRI.M.A.ASIF** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.16582/2019 ## **JUDGMENT** The petitioner, who is an Assistant Section Officer in the Mahatma Gandhi University has filed this Writ Petition challenging Ext.P1 order dated 03.06.2019 placing him under suspension under the Statute 29(1) Part III Chapter 4 of Mahatma Gandhi University Statutes 1997 alleging that he has posted Ext.P2 in the Facebook criticizing Sri.M.M.Mani, the Minister of Electricity and Sri.S. Sharma, a Member of Legislative Assembly of the State. It is stated that by posting this in the Facebook he has violated Rule 60(A) of Kerala Government Servants' Conduct Rules, 1960 and therefore appropriate disciplinary action is liable to be initiated against him. 2. Ext.P1 order of suspension refers to a letter received from the Government. It is stated that Sri.S.Sharma MLA submitted a complaint before the Speaker of the Legislative Assembly with respect to the Facebook post put by the petitioner, criticizing the W.P.(C) No.16582/2019 **==> picture [12 x 8] intentionally omitted <==** MLA and the Minister for Electricity; the Speaker forwarded it to the Principal Secretary to Higher Education Department calling for a report in the matter and the Principal Secretary in turn called for an explanation on it from the University, as per letter dated 29.05.2019. It is stated that on examination of the complaint, the Registrar of the University came to a prima-facie opinion that the act of the petitioner amounts to violation of Rule 60(A) of the Kerala Government Servants Conduct Rules,1960 according to which failure to initiate disciplinary proceedings against such employees would be a serious lapse. The Vice Chancellor thereupon ordered that petitioner shall be placed under suspension with immediate effect under Statute 29 (1) of Part 3, Chapter 4 of M.G.University Statutes, 1997. 3. According to the petitioner, he is a social and environmental activist espousing the rights of persons in tribal areas, etc. and Ext.P2 Facebook post was in respect of certain incidents which took place in the man made dense forest grove namely “Santhivanam” ## W.P.(C) No.16582/2019 :4: where the petitioner is conducting classes in dramatics to the school going students for the last 20 years. It is stated that when he was taking classes there certain persons came there and made attempts for construction of HT Electric towers by cutting and removing the trees in the Santhivanam and when the owner of Santhivanam resisted it, she was threatened and abused in front of him. Petitioner has stated that the attempt to destroy the trees in the Santhivanam disheartened him. As an ardent believer in constitutional and democratic values he reacted to the same by putting up the post. According to him he had only reacted to the fascist mentality of persons who threatened the owner of the Santhivanam. According to him he has not violated any of the rules and his action was perfectly within Article 19(1)(a) of the Constitution. 4. Petitioner relies on Ext.P3 judgment dated 28.09.2018 in WP(C) No.27355/2018 which he had filed challenging his earlier suspension ordered in 2018, based on another Facebook post. After explaining the right to freedom of speech and expression, this court W.P.(C) No.16582/2019 **==> picture [12 x 8] intentionally omitted <==** found that there was no need to keep the petitioner under suspension for long, relying on the judgment in _**K.K.Ramankutty V State of Kerala: 1972 KHC 284** ._ It was observed that the University should respond to the matter in an unpassionate manner and the University was directed to re-instate the petitioner, without going into the validity of suspension and directing the petitioner not to make any posts in the social media in respect of the disciplinary action. 5. The learned Standing Counsel for the University has filed a statement on behalf of respondents 2 and 3 producing Annx.I letter dated 22.05.2019 of the Principal Secretary to Higher Education Department addressed to the Registrar of the University calling for an explanation in respect of the Facebook post. It is stated that Sri.S.Sarma, MLA submitted a complaint before the Speaker of the Legislative Assembly, regarding the Facebook post criticizing the act of Government and making aspersions against the MLA and Sri.M.M.Mony and that the Speaker referred the matter to the Secretary to Higher Education Department seeking W.P.(C) No.16582/2019 :6: explanation, who in turn sought for an explanation from the Registrar of the University, as per Annexure I letter; thereupon the Registrar who is the appointing authority of the petitioner considered the matter and found that petitioner has criticized in public the policy pursued and/or action taken by the Government which is a misconduct under Rule 60 (a) of the Government Servants' Conduct Rules 1960, which is applicable to non teaching staff of the University under Statute 2 of Part I of chapter 4 of MG University Statutes, 1997; as the appointing authority was of the prima facie opinion that there was sufficient reason to initiate disciplinary proceedings against the petitioner, he was suspended contemplating disciplinary proceedings. It is stated that Annexure.II memo of charge has been issued to the petitioner on 13.06.2019 and the petitioner has submitted his written statement and thereupon the Vice Chancellor who is the disciplinary authority on being satisfied that a formal enquiry has to be held, has issued Annexure.III order on 27.06.2019, authorizing the Assistant Registrar-1 W.P.(C) No.16582/2019 **==> picture [12 x 8] intentionally omitted <==** (Academic) to conduct the enquiry with direction to submit a report within one month. 6. A counter affidavit has been filed on behalf of 3[rd] respondent producing Ext.R3(b) circular issued by Government on 31.01.2017 in respect of the action to be taken against the Government servants who act in violation of Rule 60(a) of Government Servants' Conduct Rules, 1960, noticing the tendency of the Government employees putting posts in the social medias criticizing the action/policies of Government. It is stated that as per the circular disciplinary action should be taken against such employees. The 3rd respondent has stated that petitioner has made unwarranted and unfounded personal criticism in the Facebook post against the Minister of Electricity and People's representative, naming them publicly in violation of the Government Servants' Conduct Rules, which amounts to serious misconduct and that political statements were made so as to cause embarrassment to the University. It is stated that his conduct is not one expected from an employee of the university, who is ## W.P.(C) No.16582/2019 **==> picture [12 x 8] intentionally omitted <==** to maintain absolute integration and devotion to his duties. 7. According to the 2[nd] respondent the right to freedom of speech and expression is not unrestricted so as to make any statement publicly criticizing the Government policy or action; Facebook post of the petitioner is a public attack on the Minister and elected representative, naming them and that by making such public statement on a political issue amounts to lowering of the prestige of the organization; it embarrasses the institution as a whole; rules prohibit such public utterances and public criticizing of Government policies and actions; the alleged reaction of the petitioner on incidents in Santhivanam is not expected of a University employee and such reaction made through public posts is prohibited under Rules. The 2[nd] respondent has stated that suspension is ordered on valid grounds pending enquiry and that petitioner has not alleged any grounds based on which the suspension can be interfered with. 8. Heard Sri.S.Sreekumar, the learned Senior ## W.P.(C) No.16582/2019 :9: Counsel for the petitioner, Sri.Ashok M.Cheriyan, the learned Standing Counsel for the University and Sri.P.C.Sasidharan, the learned counsel for the Vice Chancellor-the 3[rd] respondent. 9. The learned Senior Counsel for the petitioner relying on the judgment Ext.P3 and the judgment in _**Ramankutty's**_ case(supra) which was relied on in it argued that the Facebook post was the reaction of the petitioner on incidents occurred in Santhivanam, while exercising his fundamental right to freedom of speech and expression and that there is no justification in placing him under suspension. 10. The learned Standing Counsel for the University relied on the judgment of the Apex court in _**State of Orissa V Bimal Kumar Mohanthi: AIR 1994 SC**_ _**2296**_ and argued that the suspension of the petitioner is fully justified and when the enquiry officer is appointed with time bound direction, no interference is warranted in the case. 11. Sri.P.C.Sasisdahran, the learned Counsel for the Vice Chancellor relied on the judgment in _**M.H.**_ W.P.(C) No.16582/2019 :10: _**Devendrappa V Karnataka State Small Industries Development Corporation: (1998) 3 SCC 732**_ and argued that freedom of speech and expression does not extend to criticism of Government action or policy contrary to the provisions in the Government Servants' Conduct Rules and that the order of suspension pending or in contemplation of an enquiry was fully justified. 12. On consideration of the rival contentions, I find that the suspension is ordered admittedly on the basis of Ext.P2 post put in the Facebook. The question whether there is violation of the provisions in Rule 60(a) of Government Servants' Conduct Rules or whether it amounts a misconduct or whether it exceeds the right to freedom of speech and expression or whether he is to be punished, are all matters to be considered on finalisation of the disciplinary proceedings. 13. Ext.P1 order placing the petitioner under suspension was passed on 03.06.2019. It is stated that a memo of charge is issued on 13.06.2019 and an enquiry officer was appointed on 27.06.2019. Therefore the only question to be considered is whether it is necessary to W.P.(C) No.16582/2019 **==> picture [17 x 8] intentionally omitted <==** keep the petitioner out of service any further. The only allegation against the petitioner is relating to Ext.P2 post put in the Facebook. Statute 29(1) of Part 3 of Chapter 4 of the M.G.University Statutes, 1997 reads as follows: _29(1) It shall be the duty of the Registrar._ _(i) to be the custodian of the records, the common seal and other properties committed to his charge by the Syndicate_ _(ii) to conduct the official correspondence of the University and to be responsible for the proper maintenance of all the records of the University; (iii) to issue all notices convening meetings of the Senate, the Syndicate, the Academic Council, the Faculties, the Board of Studies and for the committees appointed by those authorities:_ _(iv) to prepare and maintain a record of the proceedings of the meetings of the Senate, the Syndicate, the Academic Council, the Faculties, the Board of Studies, and any Committee appointed by those authorities:_ _(v) to make arrangements for the conduct of elections (a the various authorities or bodies of the University under the directions of the ViceChancellor._ _(vi) to maintain a Register of graduates, a Register of matriculates, a Register of Donors, a Register of Endowments, a Register of Registered Graduates and such other Registers as are or may be prescribed by the laws of the University, from time to time:_ _(vii) to manage, under the directions of the Syndicate, the property and investments of the University and the University Fund;_ _(viii) to sign contracts and other agreements on behalf of the University under the directions of the Syndicate: and_ _(ix) to perform such other functions as may, from time to time, be prescribed by the Syndicate._ 14. Though under the aforesaid provisions the W.P.(C) No.16582/2019 **==> picture [18 x 8] intentionally omitted <==** appointing authority is empowered to place an employee under suspension pending or in contemplation of disciplinary proceedings, it is not necessary that whenever disciplinary proceedings are initiated or contemplated against an employee he should be placed under suspension and should be retained under suspension till disciplinary proceedings are finalised. Though there is no allegation of malafides or as to the competence of the authorities, as pointed by both the learned Counsel for the respondents, what is relevant for consideration is the nature of allegations. In this context, the judgment of the apex court in _**State of Orissa v. Bimal Kumar Mohanty, (1994) 4 SCC 126: AIR 1994 SC 2296**_ is relevant where it was held as follows: _13. It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid_ W.P.(C) No.16582/2019 :13: _action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him._ _**In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent’s continuance in office while facing departmental inquiry or trial of a criminal charge.**_ _(emphasis supplied)_ 15. The apex court was considering a case where an employee was proceeded with on charges of embezzlement. Allegations against the petitioner is confined to Ext.P2 as evident from the order of suspension as well as the charge memo Annexure II. It is not a case where W.P.(C) No.16582/2019 :14: allegations relate to embezzlement or defalcation of accounts or fabrication of records. It cannot also be said that by keeping the petitioner out of service he can be restrained from perpetuating the mischief and he can be kept outside the range of mischief. It cannot also be said that retention of the petitioner under suspension will step in aid to the ultimate result in the disciplinary action, against him, in the circumstances arising in this case. Respondents do not have a case that the enquiry would be affected in any manner in case he is allowed to perform his duties pending enquiry or that he is likely to tamper with the documents or influence the witnesses. Going by the nature of allegations and in the light of the law laid down by the apex court in _**Bimal Kumar's**_ case (supra), by this court in _**Mohamed V State of Kerala : 1997(2) KLT 394**_ **,** in _**Ramankutty's**_ case (supra) relied on in Ext.P3 judgment and also in Ext.P3 judgment, I find that further retention of the petitioner under suspension would not serve any purpose in aid of the on-going disciplinary proceedings. What is required is ## W.P.(C) No.16582/2019 **==> picture [18 x 8] intentionally omitted <==** to see that petitioner is not allowed to perpetuate further putting of posts in social media or other medias on matters involved in and incidental to the ongoing proceedings against him, pending enquiry. ## 16. The judgment in _**M.H. Devendrappa v. Karnataka State Small Industries Development Corpn: (1998) 3 SCC**_ _**732**_ relied on by the learned Counsel for the 3[rd] respondent is in a case where the appellant therein challenged his dismissal awarded in a disciplinary proceedings initiated on the basis of a press statement made by him where he claimed his right to freedom of speech and expression. In this case, though petitioner is claiming that his action was in accordance with Article 19(1)(g), the stage has not reached for adjudicating those issues, when the issue to be considered in this writ petition is only with respect to the suspension. The observations and findings in the judgment in _**Devandrappa's**_ case are therefore not relevant for deciding the issue involved in this writ petition. In the circumstances of the case, I find that the W.P.(C) No.16582/2019 **==> picture [18 x 8] intentionally omitted <==** petitioner who has been kept out of service since 03.06.2019 is entitled to be reinstated. Therefore respondents are directed to reinstate the petitioner without any delay, on receipt of the copy of the judgment. There shall also be a direction to the petitioner not to put any more posts in the social media or any other media with respect to or incidental to the ongoing disciplinary action against him pending finalisation of the disciplinary action against him. The writ petition is disposed of accordingly. ## **Sd/-** ## **P.V.ASHA** **JUDGE** W.P.(C) No.16582/2019 :17: ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF ORDER NO.2430/ADA1/2019/MGU DATED 03.06.2019.** **EXHIBIT P2 TRUE COPY OF FACEBOOK PAGE POST OF THE PETITIONER.** **EXHIBIT P3 TRUE COPY OF JUDGMENT DATED 28.09.2018 IN W.P.(C) NO.27355 OF 2018.** **EXHIBIT P4 TRUE COPY OF REPRESENTATION DATED 07.06.2019 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE VICE CHANCELLOR.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R3(A):** TRUE COPY OF THE ORDER DATED 27/06/2019 APPOINTING ENQUIRY OFFICER. **EXHIBIT R3(B):** TRUE COPY OF THE CIRCULAR DATED 31/01/2017 ISSUED BY THE GOVERNMENT. ANNX.I: A TRUE COPY OF THE LETTER DATED 22.5.19 OF THE PRINCIPAL SECRETARY OF HIGHER EDUCATION DEPARTMENT OF THE GOVT. OF KERALA ADDRESSED TO THE REGISTRAR OF MG UNIVERSITY ANNX.II: A TRUE COPY OF THE CHARGE MEMO DT.13.6.19 SERVED ON THE PETITIONER ANNX.III: A TRUE COPY OF THE ORDER DT.27.6.19 ISSUED BY THE UNIVERSITY UNDER THE ORDERS OF THE VICE-CHANCELLOR