Bindhu K v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 5[TH] DAY OF DECEMBER 2022 / 14TH AGRAHAYANA,** ## **1944** ## **WP(C) NO. 32631 OF 2022** ## **PETITIONER:** **BINDU K AGED 46 YEARS D/O. N. KARUNAKARAN, ASSOCIATE PROFESSOR, DEPARTMENT OF PHARMACEUTICAL SCIENCES, CENTRE FOR PROFESSIONAL & ADVANCED STUDIES, PUTHUPPALLY CAMPUS, RUBBER BOARD P.O., KOTTAYAM , RESIDING AT 'KARUNA', PARAPPURAM, KANAKKARY POST, KOTTAYAM PIN - 686632** **BY ADV BINDU K(Party-In-Person)** ## **RESPONDENTS:** **1 STATE OF KERALA DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - REPRESENTED BY ITS SECRETARY PIN - 695001 2 MAHATMA GANDHI UNIVERSITY PRIYADARSHINI HILLS P.O., KOTTAYAM, REPRESENTED BY ITS REGISTRAR, PIN - 686560 3 THE CENTRE FOR PROFESSIONAL & ADVANCED STUDIES SCHOOL OF MEDICAL EDUCATION, GANDHI NAGAR, KOTTAYAM - REPRESENTED BY ITS DIRECTOR., PIN - 686008 4 THE PRINCIPAL DEPARTMENT OF PHARMACEUTICAL SCIENCES, CENTRE FOR PROFESSIONAL & ADVANCED STUDIES, RUBBER BOARD P.O., KOTTAYAM PIN - 686009 5 KERALA UNIVERSITY OF HELATH SCIENCES THRISSUR -** **WP(C) NO. 32631 OF 2022** **2** **REPRESENTED BY ITS REGISTRAR. PIN - 680596** **6 THE PHARMACY COUNCIL OF INDIA NBCC CENTRE, 3RD FLOOR, PLOT NO. 2, COMMUNITY CENTRE, MAR ANANDMAI MARG, OKHLA PHASE - I, NEW DELHI REPRESENTED BY ITS REGISTRAR, PIN - 110020 BY ADVS. SHRI.SURIN GEORGE IPE, SC, M.G.UNIVERSITY P.C.SASIDHARAN P.SREEKUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 32631 OF 2022** **3** ## **DEVAN RAMACHANDRAN, J. ------------------------------------------W.P(C) No. 32631 of 2022 --------------------------------------------------** Dated this the 05[th] day of December, 2022 ## **JUDGMENT** The petitioner, who is appearing party-in-person, has approached this Court impugning Ext.P7 proceedings of the 3[rd] respondent – The Centre for Professional & Advanced Studies ('CPAS' for short), whereby, her contract of engagement has been terminated, alleging that she has acted in contravention of Clause 5 thereof. 2. Smt.Bindhu K., party-in-person, explained that she was engaged by the CPAS on contract in its Department of 'Pharmaceutical Sciences', knowing fully well that she is qualified to be an Associate Professor in 'Pharmaceutics'; but that, however, in Ext.P4, she was directed to enter her designation in the portal of the Kerala University of Health Sciences (KUHS) as being Associate Professor in 'Pharmacognosy', which is impossible; and therefore, that she replied, through Ext.P5, expressing her inability to do so. She alleges that, instead of considering her representation in its proper perspective, the CPAS has now issued Ext.P7, **WP(C) NO. 32631 OF 2022** **4** terminating her contract, alleging that she had acted in defiance of Clause 5 thereof; and thus prays that Ext.P7 be set aside. 3. Sri.P.C.Sasidharan – learned Standing Counsel for the CPAS, on the contrary, submitted that a counter affidavit has been filed by his client, producing certain documents therewith, including Exts.R1(a) to R1(g). He added that a Memo had been filed by him on 10.11.2022, bringing on record the agreement dated 01.01.2022, between the parties. 4. Sri.P.C.Sasidharan, thereafter, pointed out that, in the agreement between the parties dated 01.01.2022, the petitioner had been shown as an Associate Professor on contract basis in the Department of 'Pharmaceutical Sciences'; but that, as is evident from Exts.R1(a) to R1(g) – the certificates issued by the Mahatma Gandhi University (M.G.University), where she was earlier working - she has been shown to be a Senior Lecturer in the Department of ''Pharmacognosy''. He submitted that, therefore, on a parity of reasoning, she can only be construed to be an Associate Professor in ''Pharmacognosy'', and that this was all which she was asked to be done, by entering such designation in the portal of the KUHS, which she refused through Ext.P5. He **WP(C) NO. 32631 OF 2022** **5** predicated that, therefore, going by Clause 5 of the agreement, the petitioner's action can only be seen to be an affront to the co-operation which she was expected to offer; and hence, that his client was justified in having issued Ext.P7, terminating her, which is permitted as per its terms, by giving her a months' notice in writing. 5. Pertinently, Sri.P.Sreekumar – learned Standing Counsel for the KUHS, submitted that attempt of the CPAS to register the petitioner as an Associate Professor in Pharmacognosy on the online portal of his client is malafide, since she is not eligible for such post. He submitted that this has been clearly stated so in Ext.P8 letter issued by his client to the CPAS, making it indubitably clear that petitioner is _“ineligible to be an Associate Professor in Pharmacognosy_ '' (sic). He argued that, therefore, if the petitioner is still directed by the CPAS to enter the portal of the KUHS and show such designation, it would be not merely illegal, but impossible. 6. Sri. Surin George Ipe - learned Standing Counsel appearing for the Mahatma Gandhi University, submitted that his client has no role to play in the controversy projected in this case because, it is between her and the CPAS. He, however, added that, as per the direction of the Honourable Supreme Court in Ext.P2 **WP(C) NO. 32631 OF 2022** **6** judgment, the petitioner was offered retrenchment compensation by his client, but which she has not accepted until now and has moved the Honourable Court through a contempt application. He argued that, therefore, the agreement between the petitioner and the CPAS, entered on 1.1.2022, has nothing to do with and has no connection with his client whatsoever; concludingly saying that the consequences of the said agreement on the parties are not something which his client can speak about. 7. In reply, Smt.Bindu K. – party-in-person, submitted that the action against her by the CPAS is not as simple, as has been made out by Sri.P.C.Sasidharan – their learned counsel. She explained that she has never refused to take any class as instructed; nor has she acted in defiance of any lawful directions; but that, what has been asked of her, through Ext.P4, was an impossibility and which is now seen to be even illegal, going by the submissions of the learned Standing Counsel for the KUHS. She argued that, therefore, when Ext.P7 alleges that she has failed to “ _ensure compliance with clause 5 of the agreement and to have adopted postures not differential to the commands of the authorities_ ”(sic), it becomes stigmatic, particularly when the same imputes misconduct from her side. She pointed out **WP(C) NO. 32631 OF 2022** **7** that, going by the terms of the Agreement, though either of the parties can terminate it on a month's notice, Ext.P7 causes a stigma on her, since it makes an unfair imputation against her; and hence cannot be taken lightly, as is now attempted to be done by them. She further submitted that even when the Agreement authorises the CPAS to terminate her services without notice on the grounds of proven misconduct, dereliction of duty or violation of contractual terms, the fact that Ext.P7 serves her a month's notice, would establish that they themselves are aware that such are baseless and untrue. 8. I have examined the materials on record and have tested them against the rival submissions made at the Bar. 9. There can be no doubt that the genesis of the controversy in this case is that, through Ext.P4, the petitioner was directed by the CPAS to enter her designation, in the portal of the KUHS, as being Associate Professor in Pharmacognosy. There is no other allegation made against her at any point of time and this is admitted. The petitioner replied to this through Ext.P5, saying that this is impossible, since she is an Associate Professor in Pharmaceutics and that she was appointed by the CPAS after her credentials to such **WP(C) NO. 32631 OF 2022** **8** effect were verified and found to be acceptable. 10. Very pertinently, the KUHS wrote to the CPAS vide Ext.P8 that petitioner is ineligible to be an Associate Professor in Pharmacognosy. 11. Obviously, the petitioner was faced with an impossible condition attempted to be imposed by the CPAS through Ext.P4. 12. To exacerbate the issue, without causing any enquiry at all, the CPAS issued Ext.P7 notifying her of their intention to terminate the agreement, alleging that she had refused to comply with clause 5 of the agreement and “has adopted postures not deferential to the command of the authorities” (sic). 13. Turning to the agreement in question, as rightly pointed out by Smt. Bindu K., party-in-person, clause 9 thereof reads as under: _“9. Either party hitherto shall be at liberty to terminate this agreement on giving the other party one month's notice in writing, provided also that in cases of gross misconduct, dereliction of duty or violation of any terms of this agreement, the CPAS may terminate this agreement forthwith without any notice or compensation in lieu of notice on paying the_ **WP(C) NO. 32631 OF 2022** **9** _first party the proportion of consolidated remuneration due up to the date of termination. In respect of any matter in regard to which no provision has been made in this agreement, the decisions of the CPAS as to their applicability shall be final”._ 14. Obviously, though either of the parties can terminate the agreement on a month's notice without assigning any reason; in the case of proven misconduct, dereliction of duty or violation of any terms of the agreement, the CPAS is authorised to do so even without any such notice. That said, even going by the counter affidavit filed by the CPAS, there is not even a whisper that petitioner had committed any act of misconduct, except that she had not complied with their demand in Ext.P4. 15. As seen above, in Ext.P4, the petitioner was asked to enter her designation in the portal of the KUHS as being Associate Professor in Pharmacognosy, but which has been expressly proscribed to be done by the said University in Ext.P8. 16. Axiomatically, therefore, any allegation of violation of clause 5 of the Agreement could have been brought against the petitioner by the CPAS only after evaluating **WP(C) NO. 32631 OF 2022** **10** whether the “command made on her” in Ext.P4 was justified and was possible of being complied with . 17. In this context, a glance through clause 5 of the agreement is also necessary; for which purpose, it is extracted as under: _“5. The first party will assist the Director/Principal/HOD of the institution Department of Pharmaceutical Sciences, CPAS, Cheruvandoor, Ettumanoor, Kottayam -686631 with zest and zeal in all matter pertaining to instruction and discipline and will in addition perform, when called up on to do so, any other such service connected with the engagement as may reasonably be required of him/her by the Director(Principal/HOD) and entrusted with the work of co-ordination, maintenance of discipline and in all aspects in furtherance of the interest of the CPAS.”_ 18. As evident from the afore, the petitioner is expected to act with “zest and zeal” in all matters pertaining to the instructions and discipline; and must be willing to take up the responsibilities entrusted to her relating to coordination, maintenance of discipline and in every other manner, for furtherance of the interests of the CPAS. 19. As is already seen above and perspicuous from the pleadings on record and Ext.P7, the only allegation against **WP(C) NO. 32631 OF 2022** **11** the petitioner is that she had failed to comply with Ext.P4, whereby, she was 'instructed and commanded‘ to enter her designation in the portal of the KUHS as being Associate Professor in Pharmacognosy. This, however, was impossible, unequivocally demonstrated by Ext.P8 letter issued by the KUHS to the CPAS. 20. Undoubtedly, therefore, the petitioner's service could not have been terminated, as has been attempted to be done through Ext.P7, on the allegation of misconduct, dereliction of duty or violation of the terms of the agreement, since she could not have complied with what was “commanded” in Ext.P4. 21. That being said, Sri.P.C.Sasidharan – learned counsel for the CPAS, tried to explain that Ext.P4 did not ask the petitioner to change her designation in the portal of KUHS, but only asked to enter her present designation as being Associate Professor in Pharmacognosy. He explained that this is because, she was engaged by the CPAS in Pharmacognosy; and therefore, that it was incumbent upon her to disclose so on the portal of the KUHS. He further submitted that petitioner is fully expected to do so, because, in the absence of a teacher in the said discipline, the CPAS **WP(C) NO. 32631 OF 2022** **12** would even face consequences of not being granted recognition by the KUHS. 22. This Court certainly recognises the problems faced by the CPAS because, for obtaining recognition of their courses, they will have to show sufficient number of teachers on their roll in the discipline concerned. However, when the KUHS makes it clear that petitioner is ineligible to be an Associate Professor in Pharmacognosy, it is needless to say that the demand made on her through Ext.P4 becomes an impossibility. How the petitioner can be then accused of acting in violation of the terms of the agreement or contrary to the “Commands of the Authorities” (sic) is beyond reasonable comprehension. 23. Having so found, the surviving question is if it was permissible for the CPAS to have “rescinded” the agreement with a month's notice to the petitioner, having accused her of acting against its terms and contrary to the “commands of the Authorities” (sic). 24. No doubt, the agreement allows termination simplicitor of the agreement by either of the parties, by offering a month's notice. **WP(C) NO. 32631 OF 2022** **13** 25. At first glance, Ext.P7 would make it appear that this is what the CPAS has done. But, looking closely, it has alleged misconduct and insubordination to the “commands” against the petitioner, thus casting a stigma on her – even when the imputations are, as seen above, untenable. 26. In such scenario, going by the Agreement, it was for the CPAS to have substantiated the allegations against the petitioner through a proper process; but instead of doing so, they have chosen to “rescind” it, holding her guilty. 27. Apodictically, a stigmatic termination or rescision of the agreement, as attempted to be done by the CPAS through Ext.P7, is impermissible. This can never be seen as a termination simplicitor, when the CPAS accuses the petitioner of serious misdemeanour. 28. The Honourable Supreme Court has spoken on the afore aspect several times in the past, including in **Vijayakumaran C.P.V. v. Central University of Kerala** ((2020) 12 SCC 426), **Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences** ((2002) 1 SCC 520) and **Managing Director, ECIL, Hyderabad v. Karunakar** ((1993) 4 SCC 727). **WP(C) NO. 32631 OF 2022** **14** 29. The position of law is, therefore, very limpid that, even in the case of a probationer, an order terminating service cannot be approved, without having been preceded by a proper enquiry, if it is stigmatic and levels allegations against him/her. 30. The tests for finding whether the order is stigmatic or otherwise have been very lucidly spoken in **Vijayakumaran C.P.V.** (supra); and applying the same, there can never be little doubt that Exhibit P7 in this case is stigmatic, since it levels very serious allegations against the petitioner, including that she had defied the 'command' of the Authorities. This becomes exacerbated when one understands that the 'command' made on the petitioner by the Authorities of the CPAS was impossible, if not illegal. 31. At this time, more in the nature of brinkmanship, Sri.P.C.Sasidharan - learned Standing Counsel for the CPAS, impelled a completely different argument in support of Exhibit P7 saying that, consequent to Exhibit P2 judgment and the afore stated submissions of Sri.Surin George Ipe - learned Standing Counsel for the M.G. University, since the petitioner has been offered retrenchment compensation by the said University, she should be construed to have been thrown out **WP(C) NO. 32631 OF 2022** **15** of service by them. He argued that, therefore, Exhibit P7 agreement would fail, since it was entered into by the CPAS based on the impression that the petitioner ought to be deemed to be deployed by the University, as mentioned in Exhibit P2 judgment. He submitted that hence the agreement in question can only be seen to be a nullity. 32. The afore submissions of Sri.P.C.Sasidharan, are rather startling because, the specific stand of the M.G.University - as argued by their learned Standing Counsel – is to the effect that the agreement between the parties has no bearing upon them. They have taken an unambiguous position that said agreement is an independent one – without any reference to the petitioner being deemed to be deployed by the University. 33. That apart, when one reads the agreement between the parties – which has been interestingly produced by the CPAS themselves – it does not even whisperingly mention that petitioner has been engaged by them because she should be deemed to be deployed by the University. It merely says that CPAS has agreed to engage the petitioner on contract basis as Associate Professor in the Department of Pharmaceutical Sciences, on a consolidated remuneration, **WP(C) NO. 32631 OF 2022** **16** and nothing else. 34. In such scenario, how the CPAS now tries to argue that the agreement is vitiated, solely because the petitioner has been offered retrenchment compensation by the University, escapes all reasonable and rational comprehension. 35. I do not, therefore, propose to speak any further on this. In the afore circumstances, I allow this Writ Petition and set aside Ext.P7; however leaving full liberty to the CPAS to take any action as may be permissible to them under the terms of the Agreement dated 01.01.2022, following due procedure. ## **Sd/- DEVAN RAMACHANDRAN, JUDGE** lsn **WP(C) NO. 32631 OF 2022** **17** ## **APPENDIX OF WP(C) 32631/2022** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF ORDER NO. 1046/04/2/SFI/SME DATED 15/04/2004 ISSUED BY THE SECOND RESPONDENT UNIVERSITY.** - **EXHIBIT P2 TRUE COPY OF COMMON ORDER DATED 11/05/2022 IN SPECIAL LEAVE PETITION (CIVIL) DIARY NO (S) 6378/2020 AND CONNECTED CASES OF THE HON'BLE SUPREME COURT.** - **EXHIBIT P3 TRUE COPY OF PROCEEDINGS NO. 1096/2021/ CPAS HO DATED 07/03/2022 ISSUED BY THE THIRD RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF LETTER NO. 3.8/DPS/PLY/FACULTY/DATA ENTRY/KUHS/2022 DATED 29/08/2022 ISSUED BY THE FOURTH RESPONDENT TO THE PETITIONER ALONG WITH ITS ENCLOSURE.** - **EXHIBIT P5 TRUE COPY OF LETTER DATED 30/08/2022 SUBMITTED BY THE PETITIONER TO THE THIRD RESPONDENT THROUGH THE FOURTH RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF CERTIFICATE AND THE TRANSCRIPT ISSUED BY THE BIRLA INSTITUTE OF TECHNOLOGY AND SCIENCE, PILANI TO THE PETITIONER.** - **EXHIBIT P7 TRUE COPY OF NOTICE NO. 1155/2021/CPAS HO DATED 14/09/2022 ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER.** - **EXHIBIT P8 TRUE COPY OF LETTER NO. 2021/31195/1/ ACII/PHARM/A2/KUHS DATED 16/09/2022 ISSUED BY THE FIFTH RESPONDENT TO THE FOURTH RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF ORDER NO. 6477/ACB/KUHS/ 2014 DATED 8.5.2015 ISSUED BY 5TH RESPONDENT** - **EXHIBIT P10 TRUE COPY OF REQUEST DATED 17/09/2022 SUBMITTED BY THE PETITIONER TO THE HONOURABLE VICE CHANCELLOR OF SECOND** **WP(C) NO. 32631 OF 2022** **18** ## **RESPONDENT UNIVERSITY.** ## **EXHIBIT P11** - **TRUE COPY OF LETTER DATED 20/09/2022 SUBMITTED BY THE PETITIONER TO THE THIRD RESPONDENT** - **EXHIBIT P12 TRUE COPY OF LETTER NO. 2021/19241/1/EX PHY/KUHS DATED 09/11/2021 ISSUED BY THE FIFTH RESPONDENT TO THE PETITIONER** ## **RESPONDENT EXHIBITS** - **Exhibit R3(A) TRUE COPY OF THE DISSRTATION SUBMITTED BY SMT. AKHILA S. UNDER THE GUIDANCE OF THE PETITIONER** - **Exhibit R3(B) TRUE COPY OF THE DISSERTATION SUBMITTED BY SRI. PRASANTH B. UNDER THE GUIDANCE OF THE PETITIONER** - **Exhibit R3(C) TRUE COPY OF THE DISSERTATION SUBMITTED BY SMT. DEEPTHI S.R. UNDER THE GUIDANCE OF THE PETITIONER** - **Exhibit R3(D) TRUE COPY OF THE DISSERTATION SUBMITTED BY SMT. SOUMAY A.P. UNDER THE GUIDANCE OF THE PETITIONER** - **Exhibit R3(E) TRUE COPY OF THE DISSERTATION SUBMITTED BY SRI. NAVEENKUMAR UNDER THE GUIDANCE OF THE PETITIONER** - **Exhibit R3(F) TRUE COPY OF THE DISSERTATION SUBMITTED BY SRI.ARAVIND R. UNDER THE GUIDANCE OF THE PETITIONER** - **Exhibit R3(G)** **TRUE COPY OF THE DISSERTATION SUBMITTED BY SRI.TIJI ANNIE ABRAHAM UNDER THE GUIDANCE OF THE PETITIONER** **TRUE COPY** **P.A TO JUDGE** **LSN**