CRP(UTY) No. 3 of 2022; CRP(UTY) No. 5 of 2022, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 CRP(UTY) NO. 3 OF 2022** **AGAINST THE ORDER DATED 23.04.2022 IN UNIVERSITY APPEAL NO.2 OF 2021 OF** **M.G.UNIVERSITY APPELLATE TRIBUNAL, THIRUVANANTHAPURAM** ## **REVISION PETITIONERS (RESPONDENTS 3 AND 4 IN APPEAL):** - **1 THE CORPORATE MANAGER CORPORATE EDUCATIONAL AGENCY, DIOCESE OF KOTHAMANGALAM, BISHOP'S HOUSE, KOTHAMANGALAM, ERNAKULAM-686 691** - **2 THE PRINCIPAL, NIRMALA COLLEGE, MUVATTUPUZHA, ERNAKULAM DISTRICT-686 661** **BY ADVS. BABY ISSAC ILLICKAL ISAAC KURUVILLA ILLIKAL** ## **RESPONDENTS (APPELLANT & RESPONDENTS 1 & 2):** - **1 SOBHIN GEORGE AGED 36 YEARS S/O.GEORGE C.P., MECHANIC, NIRMALA COLLEGE, MUVATTUPUZHA, ERNAKULAM DISTRICT-686 661, RESIDING AT VENDERAMYALIL, MUVATTUPUZHA, ERNAKULAM DISTRICT-686 661** - **2 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **3 THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033** **BY ADVS. SAJJAD M V.A.MUHAMMED(K/124/1984) P.A.JENZIA(K/598/2003)** **THIS CRP (UNIVERSITY ACT) HAVING COME UP FOR HEARING ON 05.03.2024, ALONG WITH CRP(UTY).5/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRP(UTY) NO. 5 OF 2022** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 CRP(UTY) NO. 5 OF 2022** **AGAINST THE ORDER IN UNIVERSITY APPEAL NO.2 OF 2021 OF** **M.G.UNIVERSITY APPELLATE TRIBUNAL, THIRUVANANTHAPURAM** ## **REVISION PETITIONER/APPELLANT:** **SOBHIN GEORGE AGED 36 YEARS SON OF GEORGE V.P, MECHANIC NIRMALA COLLEGE, MUVATTUPUZHA, ERNAKULAM DISTRICT - 686 661. (RESIDING AT VENDERAMYALIL, MUVATTUPUZHA, ERNAKULAM DISTRICT - 686 661.** **BY ADVS. V.A.MUHAMMED M.SAJJAD** ## **RESPONDENTS/RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033.** - **3 THE CORPORATE MANAGER, THE CORPORATE EDUCATIONAL AGENCY, DIOCESE OF KOTHAMANGALAM, BISHOP'S (H), KOTHAMANGALAM, ERNAKULAM686 691.** - **4 THE PRINCIPAL, NIRMALA COLLEGE, MUVATTUPUZHA, ERNAKULAM DISTRICT - 686 661.** **BY ADVS. ISAAC KURUVILLA ILLIKAL BABY ISSAC ILLICKAL(B-38)** ## **THIS CRP (UNIVERSITY ACT) HAVING COME UP FOR HEARING ON** **05.03.2024, ALONG WITH CRP(UTY).3/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRP(UTY) NO. 5 OF 2022** **3** ## JUDGMENT ## Amit Rawal, J. 1. This order shall dispose of two CRPs preferred against the order of the University Appellate Tribunal dated 23.4.2022. 2. The Tribunal vide impugned order found that the enquiry conducted for the purpose of withholding the increments was vitiated in law on various grounds like non serving of the allegation of charges and material and set aside the order Exts.P10 and P16. Ext.P16 is the order of the Manager dated 30.4.2021 whereby subsequently on the basis of the report received by the Manager for the purpose of confirmation of the respondent, discharged from the service. 3. Learned counsel for the management submitted that the Tribunal while entertaining the appeal, did not adjudicate the merit and demerit of the order of discharge of the respondent who concededly was appointed on 6.6.2019 on probation for a period of one year. During the period of probation he was found to have indulged into insubordination, for, he was assigned the job of Mechanic in the laboratory of **CRP(UTY) NO. 5 OF 2022** **4** Physics and Chemistry but did not attend the the repair or maintenance works occurred from time to time. Challenged the previous order dated 2.6.2020, instead of availing the alternative remedy provided under the Act like Tribunal, approached the Director of Collegiate Education and Government. Thereafter, approached this Court for fixing time line for disposal of the appeal pending before the Tribunal. This Court had relegated the respondent, employee to avail the remedy. It is in that background, Appeal No.2 of 2021 was preferred. Instead of availing two appeals, the common appeal was preferred against the order of imposing punishment of withholding of increment as well as the discharge dated 30.4.2021, Ext.P16 as in the meantime, the aforementioned order was passed. The rules enjoins an obligation upon the Manager to receive a report from the Head of the Department for the purpose of confirmation. The report dated 10.3.2021 and 15.3.2021 did not recommend for confirmation. It is in that background, a show cause notice dated 7.4.2021 was served which was duly replied on 9.4.2021. After having affording an opportunity, was discharged from service. The Manager was required to record satisfaction and for that **CRP(UTY) NO. 5 OF 2022** **5** purpose the reports from the various heads were sought which was the point of consideration of non confirmation of the respondent. In support of the contentions relied upon judgment of the Supreme Court in State of Punjab and Others v. Sukhwinder Singh [2005 (5) SCC 569] and Chairman, Life Insurance Corporation of India and Others v. A.Masilamani (2013) 6 SCC 530 to contend that Tribunal while remanding the matter to start enquiry from the date of service of the charge sheet, could not have in law ordered for reinstatement despite the fact that the backwages have been denied. It is in that background, this Court while admitting the CRP stayed the order of the Tribunal. 4. Order of discharge cannot be termed to be punitive requiring to be proceeded by an enquiry. The rules only envisage recording of satisfaction which was adhered to. 5. On the other hand, learned counsel appearing on behalf of the respondent, employee supported the order of the Tribunal and submitted that no doubt, the appellate Tribunal had in extenso dealt with the action taken by the Management, resulting into punishment of withholding of increment and **CRP(UTY) NO. 5 OF 2022** **6** noticed that not only the allegation of charges, was accompanied by memo but the witnesses were also not permitted to be cross examined. In fact, the management had acted against the employee with a predetermined mind, for, the respondent was not adhering to the request, which he could not have discharged as Mechanic but the role was of for cleaning the overhead tanks and also repairing of the water pipes. No harm and prejudice would be caused in case the management is permitted to initiate the enquiry with regard to non confirmation/discharge. No explanation has also not comeforth in not holding the enquiry for the purpose of discharge when during the period of probation, Management on the allegation of insubordination conducted the enquiry. Considering the predicament of the employee, order of reinstatement had been passed as the respondent would not be able to sustain and feed the family 6. We have heard the learned counsel for the parties and appraised the paper book. Series of the facts as culminated from the respective submissions of the counsel would reveal that the respondents was on 6.6.2019, appointed as Mechanic in the laboratories of Physics and Chemistry. His **CRP(UTY) NO. 5 OF 2022** **7** role was to correct the faults occurred in the machinery and various other equipment used by the students. As per the allegations and cross allegations, it is found that the respondent was made to work, which he could not have done, being beyond his knowledge and competence resulted into a serving of a charge sheet dated 4.5.2020. As per the findings of the Tribunal, the department did not permit the employee to cross examine the witnesses or supply any material ie., the allegation of charges for holding the enquiry. If the department had audacity of conducting the enquiry with regard to that allegations for the consideration of confirmation that the Manager sought report from the Heads dated 10.3.2021 and 15.3.2021 could have been confronted the employee with the same and sought his comments. The contents of the show cause notice do not reveal the supply. However, the reply submitted by the employee reveals that it was in a set of format. In another words, it was an eye wash. The ratio decidendi culled out in the judgment State of Punjab and Others v. Sukhwinder Singh (supra) was in respect of a case where a Punjab Police officer had continuously remained absent and when discharged from the service without holding **CRP(UTY) NO. 5 OF 2022** **8** enquiry, assailed the said impugned action. It is on that context, Supreme Court found that the demeanor and the conduct of the employee warranted action, which could not be treated to be punitive for the purpose of discharge of the service, enquiry could be dispensed with. However in the instant case, when the department had initiated steps for holding the enquiry with regard to the conduct, no explanation has comeforth in not following the same procedure for the purpose of discharge. Thus we do not find any illegality in the order of the Tribunal remitting the matter for holding the enquiry from the stage of charge. We put a caveat that the department would also serve the chargesheet upon the employee with regard to the contents of the report dated 10.3.2021 and 15.3.2021 obtained from the heads of the department and jointly conduct the enquriy with regard to two sets of purported action; one for the insubordination and other for the purpose of discharge. 7. As far as order of reinstatement is concerned, we are in agreement with the argument of the counsel for the petitioner in view of the ratio decidendi culled out in the judgment of Chairman, Life Insurance Corporation of India and **CRP(UTY) NO. 5 OF 2022** **9** ## Others v. A.Masilamani (supra) wherein paragraph Nos.16 to ## 19 was held as under: _16. It is a settled legal proposition, that once the Court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the Court cannot reinstate the employee. It must remit the concerned case to the disciplinary authority, for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide: Managing Director, ECIL, Hyderabad etc.etc. v. B. Karunakar etc.etc. AIR 1994 SC 1074; Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls & Ors., (2002) 10 SCC 293; U.P. State Spinning C. Ltd. v. R.S. Pandey & Anr., (2005) 8 SCC 264; and Union of India v. Y.S. Sandhu, Ex-Inspector AIR 2009 SC 161)._ _17. The second question involved herein, is also no longer res integra. Whether or not the disciplinary authority should be given an opportunity, to complete the enquiry afresh from the point that it stood vitiated, depends upon the gravity of delinquency involved. Thus, the court must examine, the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals, are not competent to quash the chargesheet and related disciplinary proceedings, before the same are concluded, on the aforementioned grounds._ _18. The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that, the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, have to be examined, taking into consideration the gravity/magnitude of charges involved therein. The essence of the matter is that the court must take into consideration, all relevant facts and to balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion. (Vide: State of U.P. v. Brahm Datt Sharma & Anr., AIR 1987 SC 943; State of Madhya Pradesh v. Bani Singh & Anr., AIR 1990 SC 1308; Union of India & Anr. v. Ashok Kacker, 1995 Supp (1) SCC 180; Secretary to Government, Prohibition & Excise Department v. L. Srinivasan, (1996) 3 SCC 157; State of Andhra Pradesh v. N. Radhakishan, AIR 1998 SC 1833; M.V. Bijlani v. Union of India & Ors., AIR 2006 SC 3475; Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906; and The Secretary, Ministry of Defence & Ors. v. Prabash Chandra Mirdha, AIR 2012 SC 2250)._ **CRP(UTY) NO. 5 OF 2022** **10** **19.** _The word “consider”, is of great significance. Its dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that, there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority, should reflect intense application of mind with reference to the material available on record. The order of the authority itself, should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority, and proceed to affirm its order. (Vide: Indian Oil Corpn. Ltd. & Anr. v. Santosh Kumar, (2006) 11 SCC 147; and Bhikhubhai Vithlabhai Patel & Ors. v. State of Gujarat & Anr., AIR 2008 SC 1771)._ 8. In case, an employee on probation is ordered to be reinstated, it would tantamount to granting a relief, as if the eqnuiry would be in his favour. Thus we set aside the order of reinstatement. Revision petitions are allowed in part. There will be a directions to the Enquiry officer to conduct an enquiry by serving a charge sheet/allegation of charges with regard to two set of acts regarding discharge and insubordination and conduct the same, in accordance with law, by affording an opportunity of hearing and cross examination to the delinquent within a reasonable period not later than four (4) months. SD/- ## AMIT RAWAL JUDGE SD/- sab C.S. SUDHA JUDGE **CRP(UTY) NO. 5 OF 2022** **11** ## **APPENDIX OF CRP(UTY) 3/2022** ## **PETITIONER ANNEXURES** **Annexure I PHOTOCOPY OF THE LETTER OF THE MANAGER TO THE PETITIONER DT 30.04.2021 (MARKED AS EXT P16 IN THE IMPUGNED JUDGMENT) Annexure II PHOTOCOPY OF THE LETTER OF THE MANAGER TO THE PETITIONER DT 02.06.2020 (MARKED AS EXT P10 IN THE IMPUGNED JUDGMENT) Annexure III PHOTOCOPY OF THE SHOW CAUSE NOTICE FOR TERMINATION DT 07.04.2021 (MARKED AS EXT P13 IN THE IMPUGNED JUDGMENT) Annexure AIV PHOTOCOPY OF THE REPLY TO THE SHOW CAUSE NOTICE ISSUED BY THE 1ST RESPONDENT DT NIL, (MARKED AS EXT P15 IN THE IMPUGNED JUDGMENT)**