CRP(UTY) Nos. 2 & 4 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941** ## **CRP(UTY).No. 2 of 2019** **JUDGMENT DATED 30.11.2018 IN UNIVERSITY APPEAL NO.9/2017 of CALICUT UNIVERSITY APPELLATE TRIBUNAL, THIRUVANANTHAPURAM** ## **REVISION PETITIONERS/RESPONDENT NOS.1 AND 2:** - **1 MANAGER, (PROF.S.K.KRISHNAN NAMPOOTHIRI), SREEKRISHNAPURAM V.T.BHATTATHIRIPAD COLLEGE, MANNAMPATTA, PALAKKAD-679 517** - **2 CHAIRMAN IN CHARGE (SRI.P.M. NARAYAN NAMBOODIRIPAD), SREE SANKARA TRUST, EDUCATIONAL AGENCY OF SREEKRISHNAPURAM V.T.BHATTATHIRIPAD COLLEGE, PERUMBAVOOR, ERNAKULAM-683 556** **BY ADVS. SRI.T.B.HOOD SMT.M.ISHA** ## **RESPONDENTS/APPELLANT & RESPONDENT NO.3:** - **1 LIJO ANTO.M.A, S/O. M.C.ANTONY, ASSISTANT PROFESSOR, SREEKRISHNAPURAM, V.T.BHATTATHIRIPAD COLLEGE, MANNAMPATTA, PALAKKAD (UNDER ORDER OF REMOVAL) RESIDING AT MANJALY HOUSE, PLOT-117, PRIYADARSHINI NAGAR, PARAVATTANY, THRISSUR-680 005** - **2 THE REGISTRAR,UNIVERSITY OF CALICUT, THENJIPALAM, MALAPPURAM-673 636** ## **BY ADV. SRI.KALEESWARAM RAJ** **THIS CRP (UNIVERSITY ACT) HAVING BEEN FINALLY HEARD ON 25.03.2019, ALONG WITH CRP(UTY).4/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** C.R.P.(UTY) Nos.2 & 4 of 2019 -2- **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941 CRP(UTY).No. 4 of 2019** **JUDGMENT DATED 30.11.2018 IN UNIVERSITY APPEAL NO.9/2017 of CALICUT UNIVERSITY APPELLATE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/APPELLANT:** 1 **LIJO ANTO.M.A., AGED 39 YEARS S/O.M.C.ANTONY, ASSISTANT PROFESSOR, SREEKRISHNAPURAM V.T.BHATTATHIRIPAD COLLEGE, MANNAMPATTA, PALAKKAD(UNDER ORDERS OF REMOVAL) RESIDING AT MANJALLY HOUSE, PLOT117, PRIYADHARSANI NAGAR, PARAVATTANY, THRISSUR-680005.** **BY ADVS. SRI.KALEESWARAM RAJ KUM.A.ARUNA SMT.MAITREYI SACHIDANANDA HEGDE SRI.VARUN C.VIJAY** ## **RESPONDENTS/RESPONDENTS:** **1 THE MANAGER (PROF.S.K.KRISHNAN NAMPOOTHIRI), SREEKRISHNAPURAM V.T.BHATTATHIRIPAD COLLEGE, MANNAMPATTA, P.O MANNAMPATTA, PALAKKAD679517. 2 CHAIRMAN IN CHARGE. (SRI P.M. NARAYANA NAMBOOTHIRIPAD), SREEKRISHNAPURAM V.T.BHATTATHIRIPAD COLLEGE, PERUMBAVOOR, ERNAKULAM-683556.** C.R.P.(UTY) Nos.2 & 4 of 2019 -3- - **3 THE REGISTRAR, UNIVERSITY OF CALICUT, THENJIPALAM, CALICUT UNIVERSITY P.O, MALAPPURAM-673636.** **BY ADVS. SRI.T.B.HOOD SRI.AMAL KASHA** **THIS CRP (UNIVERSITY ACT) HAVING BEEN FINALLY HEARD ON 25.03.2019, ALONG WITH CRP(UTY).2/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** C.R.P.(UTY) Nos.2 & 4 of 2019 -4- ## **ORDER** ## **K.VINOD CHANDRAN, J.** Separate Civil Revision Petitions filed by the Manager of an aided college and the delinquent-teacher, from the order of the University Appellate Tribunal. On the allegations raised against the delinquent, we need only say that it involved outraging the modesty of a lady teacher. The said incident is said to have occurred on 11.12.2015 and a formal complaint was lodged by the lady teacher on 23.12.2015. Immediately on receipt of the complaint, a preliminary enquiry was conducted through MW1, the Assistant Manager of the College to ascertain the genuineness of the complaint. On the basis of statements taken from two witnesses; fellow teachers in the college, _prima facie_ the complaint was found justified and the delinquent was suspended on 28.12.2015. Later to the suspension, a charge memo was issued with a C.R.P.(UTY) Nos.2 & 4 of 2019 -5- statement of allegations on 4.3.2016 and served on the delinquent on 14.3.2016. An enquiry was conducted, in which, both the persons who were examined at the time of preliminary enquiry, were also proffered as witnesses by the management being MW3 and MW4. 2. Accepting the findings in the enquiry report, the Disciplinary Authority found the misconduct alleged to have been proved and imposed the maximum penalty, ie: removal from service. The delinquent challenged the order of the disciplinary authority before the University Appellate Tribunal, in which, the impugned judgment was passed, which is challenged both by the delinquent and the Management. The University Appellate Tribunal considered the contentions of the delinquent and found the suspension to be not in accordance with Section 60 (2) of the Calicut University Act, relying on a decision of a learned Single Judge C.R.P.(UTY) Nos.2 & 4 of 2019 -6- of this Court in _**Sobha S.N v. State of Kerala [2015 KHC 602]**_ . The reliance placed by the Management on _**Hariharan**_ was _**Pillai v. Sree Kerala Varma College [2007(4) KLT 413]**_ negatived on the basis of the decision in _**Sobha S.N**_ , (supra) which relied on a decision of the Honourable Supreme Court in _**P.R.Nayak v. Union of India [(1972) 1 SCC 332]**_ **.** The suspension without initiation of the disciplinary proceedings was held to be bad. The further contention raised by the delinquent before the Tribunal of violation of _principles of natural justice_ for reason of not permitting the witnesses to be examined, was also found in favour of the delinquent. The learned Tribunal, hence, directed commencement of proceedings from the stage in which the violation was occasioned, which was at the stage of rejection of the appellant's prayer for examination of witnesses. All the other contentions raised against the enquiry, by the C.R.P.(UTY) Nos.2 & 4 of 2019 -7- delinquent was negatived by the Tribunal. 3. The learned counsel appearing for the delinquent would contend that there was serious discrepancy in the evidence of the complainant and that there was no FIR lodged as against the allegations raised nor a proceeding initiated under the Sexual Harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act, 2013. There was also considerable delay in making the complaint; which raises serious suspicion about the credibility of the allegations raised. It is the specific contention of the learned counsel that if proceedings were initiated under the Act of 2013, there was a measure of conciliation and also a remedy against vexatious complaints, which remedy, the delinquent was denied of. Further the enquiry is assailed on the ground of the Enquiry Officer having made some recommendations as to the punishment. C.R.P.(UTY) Nos.2 & 4 of 2019 **==> picture [16 x 9] intentionally omitted <==** It is also argued that despite the list of witnesses being submitted, the same was not permitted by the enquiry officer. 4. The learned counsel for the Management would specifically refer to Statues 71 (8) of the University (Conditions of Service of Teachers and Members of the NonTeaching Staff) First Statutes, 1979 (Calicut), which speaks about the right of a teacher of a private college, against whom disciplinary proceedings have been initiated. The teacher, definitely, has a right to present to the enquiring authority, the list of witnesses, which however, the enquiring authority has to consider on the aspect of relevance and there could always be a rejection of the same, finding the examination of witnesses as sought for by the delinquent to be irrelevant. Since the consideration of the relevance of examining witnesses has been specifically conferred on the C.R.P.(UTY) Nos.2 & 4 of 2019 -9- enquiring authority, necessarily, the delinquent would have to state before the enquiry officer the reason for examining such witnesses. In the present case, the enquiry officer had given an opportunity to produce the said witnesses and on failure to produce them, had rejected the prayer. The enquiry officer was not appraised of the relevance of examining such witnesses and in any event, he does not have the authority to enforce presence of witnesses summoned, as is available under the Code of Civil Procedure. Strong reliance is placed on _**Hariharan Pillai**_ (supra). 5. _**Hariharan Pillai**_ and _**Sobha S.N**_ (both supra) are by learned Single Judges of this Court. The delinquent has placed reliance on a Division Bench judgment of this Court reported in _**K.T.Rev.Dr.M.M.John v. Government of Kerala**_ **.** _**and others [1971 KHC 193]**_ We specifically extract paragraph 12 of the said judgment, which reads as follows:“12. We do not think that this contention of the C.R.P.(UTY) Nos.2 & 4 of 2019 -10- petitioner can be sustained. We feel that the provision, that a teacher could be kept under suspension only on initiating disciplinary proceedings against him, should be construed as one in the interest of the teacher as well as in the interest of the public. And we do not think that this provision will so affect disciplinary control as to be subversive of discipline in the college. The period of three months provided in sub-s.(2B) may not also be unduly short. We are sure that no Vice Chancellor, who knows or has experience of administrative delays, will be unreasonably chary in extending the time in appropriate cases: still, the time prescribed should be short, in the interest of the teacher and the public. Moreover, an appeal is also provided from the order of the Vice Chancellor declining to extend time. Therefore, if the Appellate Tribunal, the ultimate authority, is properly constituted, we do not think that the provisions in sub-s.(2) and (2B) can be said to interfere with the right of management. The other sub-sections of the section provide for giving a reasonable opportunity to a teacher for showing cause, etc. In our opinion, none of these sub-sections offend any constitutional right guaranteed to the management; and no objection is taken against them either.” C.R.P.(UTY) Nos.2 & 4 of 2019 -11- 6. The principle expounded, we respectfully agree with, and it has to be found; in the case of a suspension under Section 60 (2), there has to be prior or simultaneous initiation of disciplinary proceedings. The specific Statute as has been found in _**P.R.Nayak**_ (supra) mandates that the suspension order should be passed only after the commencement of disciplinary proceedings. In such circumstances, we find that the decision in _**Hariharan Pillai** (supra)_ going by the specific words employed in the statute, is not good law. We, hence, agree with the Tribunal that the suspension itself was not proper and till the date of issuance of charge memo, the delinquent is to be deemed to have continued in service. But the said finding will not render bad, the suspension after the initiation of disciplinary proceedings and it cannot also result in an automatic order of reinstatement while the enquiry is recommenced on the C.R.P.(UTY) Nos.2 & 4 of 2019 **==> picture [23 x 8] intentionally omitted <==** remand made by the Tribunal; especially looking at the seriousness of the allegations raised 7. We cannot countenance the contention raised by the delinquent that the preliminary enquiry report has to be necessarily furnished. The preliminary enquiry is only to ascertain the genuineness of the complaint. As found by the Tribunal no reliance is placed on any such report in the and moreover both the who enquiry persons gave statements at the time of preliminary enquiry were proffered as management-witnesses and the delinquent permitted to cross-examine them. As to the delay caused in registering a complaint; looking at the allegation, we are of the opinion that a delay of 12 days is not fatal since a woman may not easily come out in the open to make such an allegation especially considering the public shaming she may be subjected to. Further the registration of an FIR to set C.R.P.(UTY) Nos.2 & 4 of 2019 -13- in motion the criminal law is the option of the victim and so is the right to demand a proceeding under the Act of 2013. Merely for reason of the element of conciliation spoken of in the Act of 2013 or the penal action proposed as against a vexatious complaint, will not confer any right on the alleged offender to so demand a proceeding under the Act of 2013. It is the choice of the victim to decide on the course of action and if eventually the complaint is found vexatious; it is for the alleged offender to take appropriate proceedings against the so-called complainant as available under common law. 8. The alleged discrepancy in the evidence of the Complainant is also in so far as her assertion that there were none in the verandah when she ran out of the lab, after being subjected to molestation; while in the same breath she claimed that MW4, who was standing in the verandah saw her running away in tears. Having read the vernacular C.R.P.(UTY) Nos.2 & 4 of 2019 -14- deposition we are not convinced that there is any such discrepancy. The Complainant had said that there was none other in the verandah, which clearly indicates that there was none other than MW4. She also immediately stated that she did not say anything to MW4. 9. Violation of _principles of natural justice_ was found insofar as witnesses proffered by the delinquent having not been examined by the enquiry officer. We have seen Annexure A16 which is available in the records of the case produced before us. We see that four persons were sought to be examined, all of whom are working in the very same college. The purpose of examination of witnesses as seen from Ann: A16, is to “prove the case of the delinquent”. We are convinced that there is violation of _principles of natural justice_ insofar as the enquiry officer having directed production of the witnesses and rejected the prayer to issue C.R.P.(UTY) Nos.2 & 4 of 2019 -15- summons on refusal to produce such witnesses. Though we agree with the learned counsel for the Management that the enquiry officer does not have the power to enforce presence of witnesses, it was only proper to summon the witnesses. In the present case, we find that all the witnesses who were sought to be examined are persons who are in the service of the college itself. We also see from Annexure A16, that the appellant though has made a laconic statement of “To prove the case of the delinquent”; as to the relevance of the witnesses , the same would suffice and it would be too technical to demand a statement on what they could depose. 10. On the validity of the suspension the learned Counsel for the Management submits that there was a specific challenge made to the suspension, which was negatived by a learned Single Judge of this Court in W.P.(C) No.17738 of 2016. The delinquent filed an appeal in which C.R.P.(UTY) Nos.2 & 4 of 2019 -16- the Division Bench reserved the liberty of the delinquent to urge the contentions raised by him in the appeal before the Appellate Tribunal. The Management has a contention that there was no ground raised in the appeal memorandum before the Tribunal and there was no amendment to the memorandum filed before the Tribunal. Considering the fact that the Division Bench had specifically reserved liberty to urge all contentions before the Appellate Tribunal; the appellant having urged it before the Tribunal at the time of hearing and the Tribunal having entered a finding on that aspect, we are of the opinion that the Tribunal proceeded properly in considering such contentions raised before it. It is also pointed out by the learned Counsel for the delinquent that there was a specific ground raised against the suspension as per paragraph 8-B of the Appeal Memorandum. C.R.P.(UTY) Nos.2 & 4 of 2019 -17- 11. The Tribunal having found the suspension to be bad and remanded the matter to the Enquiry Officer for reason of violation of _principles of natural justice;_ directed the enquriy to be recommenced from the stage at which the defect occurred. The Tribunal also directed reinstatement of the delinquent. We have already held that the suspension from the time of issuance of charge sheet is proper, especially, considering the gravity of the allegations raised against the delinquent. We are also informed that the Management had taken prior permission from the Vice Chancellor to continue the order of suspension. In such circumstances, we are of the opinion that in recommencing the proceedings, the delinquent has to be continued on suspension, but however entitled to subsistence allowance. We interfere with the order of the Tribunal to that extent. 12. We are of the further opinion that in the C.R.P.(UTY) Nos.2 & 4 of 2019 -18- circumstances of the case, the enquiry officer has to issue summons to the four witnesses sought to be examined by the delinquent as per the list submitted before the Enquiry Officer, produced as Ann: A16 before the Tribunal. We, hence, direct the Enquiry Officer to issue summons through the Management to secure the presence of the four teachers shown in Ann: A-16. The Management shall also ensure the presence of the said persons before the enquiry officer; if they do not personally object to such appearance. If the witnesses so appear, the enquiry proceedings are to be recommenced only for the examination of these four persons. The enquiry proceedings shall also be completed within a period of two months from the date of receipt of a certified copy of this judgment. 13. The learned counsel for the delinquent has a further prayer, considering the fact that the entire C.R.P.(UTY) Nos.2 & 4 of 2019 -19- proceedings are being recommenced at the enquiry stage; that the evidence could be adduced before the Tribunal itself as per Section 23 of the Calicut University Appellate Tribunal Regulations, 1978. We are of the opinion that considering the fact that the order of the disciplinary authority is set aside , there should be a direction to the enquiry officer to record evidence from the witnesses as sought to be examined by the delinquent. It is only proper that the disciplinary authority be given the opportunity to examine the evidence as recorded by the enquiry officer at the first instance and decide on the punishment; which essentially is the discretion of the employer. The parameters of interference with a punishment imposed by the employer; in an appeal also has its own limitations. Hence it would be highly improper to rely on the Procedural Rules of the Tribunal to divest the employer of his right to decide on the punishment. We, C.R.P.(UTY) Nos.2 & 4 of 2019 -20- hence, direct the enquiry officer itself to recommence the enquiry and finalise it with a fresh report, which has to be submitted to the disciplinary authority. The disciplinary authority shall also consider the same afresh, looking into the findings and the evidence as now recorded by the enquiry officer. 14. In the facts and circumstances of the case we have to set aside the order of the disciplinary authority, with a caveat, since there is the contingency of the witnesses not turning up, in which event there is no further evidence available. All the other contentions against the enquiry have been negatived by the Tribunal and we have affirmed such findings too. We also see that the Tribunal has considered the evidence on record and has found the allegations to be proved. We agree with the findings of the Tribunal that as the evidence now stands the charge is proved and the C.R.P.(UTY) Nos.2 & 4 of 2019 **==> picture [23 x 8] intentionally omitted <==** misconduct found warrants the punishment as awarded by the disciplinary authority. A different view need be taken only if there is any evidence upsetting that already led or putting to suspicion that available in the records of the enquiry. We hence set aside the order of the disciplinary authority, conditional to further evidence being proffered by the four witnesses now attempted to be produced before the Enquiry officer. It is made clear that if the witnesses summoned do not appear, then of course there is no scope for redoing the entire exercise especially since all other contentions have been held against the delinquent. If none turns up on their own volition nothing remains, and the order of the disciplinary authority would stand sustained. Both the Civil Revision Petitions are disposed of with the above direction. For expeditious disposal it is thought fit that the C.R.P.(UTY) Nos.2 & 4 of 2019 -22- Enquiry Files, produced before this Court from the records of the Tribunal be handed back to the Management through the Counsel for the Management, which the Registry shall comply with on receipt of acknowledgment from the learned Counsel. The delinquent and the Management shall appear before the Enquiry Officer at the earlier venue on 24.04.2019 and the Enquiry Officer shall hand over the summons to the Management for the presence of the witnesses within a week. If the witnesses are not produced by the delinquent or they do not appear voluntarily, then the Enquiry Officer shall close the matter and the termination of the delinquent would be affirmed. **Sd/K.VINOD CHANDRAN JUDGE sd/-** **V.G.ARUN** **JUDGE** Scl/18.3