Dipu Joseph v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MR. JUSTICE EASWARAN S.** **THURSDAY, THE 4**[TH] **DAY OF APRIL 2024 / 15TH CHAITHRA, 1946** ## **CRP(UTY) NO. 2 OF 2023** **AGAINST THE JUDGMENT DATED 31.03.2023 IN UNIVERSITY APPEAL NO.1 OF 2022 OF KERALA UNIVERSITY APPELLATE TRIBUNAL AND ADDITIONAL DISTRICT COURT-III, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS 3 & 4:** - **1 THE MANAGER, BISHOP MOORE COLLEGE MAVELIKKARA P.O., ALAPPUZHA DISTRICT, PIN – 690110** - **2 THE PRINCIPAL, BISHOP MOORE COLLEGE MAVELIKKARA P.O., ALAPPUZHA DISTRICT, PIN - 690110** - **BY ADVS. ABRAHAM GEORGE JACOB C.MURALIKRISHNAN (PAYYANUR) P.I.RAHEENA** ## **RESPONDENTS/APPELLANT AND RESPONDENTS 1,2 & 3 :** **1 DIPU JOSEPH AGED 42 YEARS, SON OF LATE K.M. JOSEPH ASSISTANT PROFESSOR IN POLITICAL SCIENCE, BISHOP MOORE COLLEGE, MAVELIKKARA, ALAPPUZHA DISTRICT RESIDING AT KONNAKKAL HOUSE, KOLAGAPPARA P.O., MEENANGADI VIA, S. BATHERY, WAYANAD DISTRICT, PIN - 673591** **2 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, IN THE DEPARTMENT OF HIGHER EDUCATION,** C.R.P. (UTY) No.2 of 2023 2 **GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** **3 THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN - 695033** **4 XXX XXX, PIN - 690103** **BY ADVS. R.REJI M.V.THAMBAN(T-12) THARA THAMBAN(T-209) B.BIPIN(K/297/2007) ARUN BOSE(K/140/2013) JEENA A.V.(K/1146/2006) THOMAS THOMAS(K/001181/2023)** **SR GP SRI BIMAL K NATH** **THIS CRP (UNIVERSITY ACT) HAVING COME UP FOR ADMISSION ON 04.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** C.R.P. (UTY) No.2 of 2023 3 ## **AMIT RAWAL & EASWARAN S. , JJ.** ## **------------------------C.R.P. (UTY) No.2 of 2023 ----------------------------------Dated this the 4th day of April 2024** ## **ORDER** ## AMIT RAWAL, J. Against the order of dismissal without any embargo of seeking re-employment, the 1[st] respondent/teacher had invoked the jurisdiction of the Appellate Tribunal established under Section 60(7) of the Kerala University Act, 1974. It was based on the complaint dated 17.4.2021 submitted by a student alleging sexual harassment that, the management, after conducting a full-fledged enquiry, removed the 1[st] respondent/teacher from service of the college. 2. Since the parties were at variance, the Tribunal framed the following issues and, in the penultimate paragraph, allowed the appeal by ordering re-instatment. 1. Whether the complaint Exhibit P2 is barred by C.R.P. (UTY) No.2 of 2023 4 ## limitation? 2. Whether the disciplinary authority had followed the procedure prescribed by the University Grants Commission (Prevention, Prohibition and Redressal of Sexual harassment of Women employees and Students of women employees at workplace (Prevention, Prohibition and Redressal) Act and Rules 2013? 3. Whether the findings rendered by the enquiring authority are passed, have been established? 4. Whether there is a sufficient ground for taking action against the appellant herein? 5. Whether the findings rendered by the enquiring authority are justified? 6. Whether Exhibit P15 order passed by the disciplinary authority called for any interference? 7. Regarding reliefs? 3. It is pertinent to mention here that, as an interim measure, during the pendency of the appeal before the Tribunal, the delinquent was permitted to continue in service. However, this Court also, vide order dated 11.01.2024, granted an interim order of status quo. 4. The learned counsel appearing on behalf of the petitioners C.R.P. (UTY) No.2 of 2023 5 submitted that as per the certificate dated 08.02.2010 produced as Annexure A1, along with I.A. No.2 of 2023, the Bishop Moore College has been granted Minority Status Certificate as per the provisions of Section 11 of the National Commission for Minority Educational Institutions Act, 2004. 5. The question of jurisdiction of the Tribunal, though, inadvertently, was not raised, in view of Annexure A1 Certificate and the _ratio decidendi_ culled out by the Larger Bench of this Court in **Manager, St. Josephs Training College v. University Appellate Tribunal** [1980 KHC 19] wherein paragraph No.30, it was held that the Appellate Tribunal would not have the jurisdiction to entertain an appeal against the order of dismissal in case the college has been granted with a Minority Status Certificate. Paragraph No.30 of the said judgment reads as thus: “ 30. To sum up, the powers conferred on the appellate authority by sub-s.(5) and (7) of S.60 of the Act are uncanalised and unguided in the sense that no restrictions are placed on the exercise of the power. The extent of the appellate power is not defined; and indeed the powers of the C.R.P. (UTY) No.2 of 2023 6 appellate authority are unlimited. The grounds on which the appellate tribunal can interfere in such appeals are also not defined. The tribunal may not only set aside an order of dismissal of a teacher and order his reinstatement but may also interfere with every kind of order passed by the management in a disciplinary proceeding, inclusive of orders inflicting minor punishments. In the absence of any guidelines it is not possible to hold that the conferment of the appellate power by sub-s. (5) and (7) of S.60 was merely a check on maladministration. All the vitiating factors pointed out by the Supreme Court with respect to Ordinance S.33(4) of the Ordinances framed under S.19(j) of the Kerala University Act, 1969 which was held to offend Art. 30(1) of the Constitution are present in the impugned sub-sections of S.60. We would accordingly hold that sub-s. (5) and (7) of S.60 of the Act are inconsistent with the fundamental right guaranteed to religious and linguistic minorities by Art.30(1) of the Constitution and hence they cannot be applied to an educational institution established and managed by a religious or linguistic minority like the St. Joseph's Training' College for Women, Ernakulam. With great respect we must express our disagreement with the observations to the contrary contained in Benedict Mar Gregorios v. State of Kerala and Others 1976 KLT 458(FB).” 6. The aforementioned legal contention, in our considered view, ought to have been taken before the Tribunal. But since it C.R.P. (UTY) No.2 of 2023 7 pertains to the jurisdiction of the Tribunal, we allow the same to be raised in C.R.P. 7. Faced with the said situation, the learned counsel appearing on behalf of the 1[st] respondent seeks the liberty of this Court to permit him to challenge the order of dismissal by availing alternative remedy either in a Suit or under Article 226 of the Constitution of India with a further request to maintain the status quo order granted by this Court. 8. The learned counsel appearing for the petitioners does not dispute the aforesaid request. In that view of the matter, we hold that, in view of the _ratio decidendi_ culled out by the Larger Bench of this Court in **Manager,** ## **St. Josephs Training College v. University Appellate Tribunal** [1980 KHC 19], as extracted above, the Tribunal did not have the jurisdiction to entertain an appeal against the order of dismissal, especially, owing to the fact that the institution mentioned in this petition is having the Minority Status in view of Annexure A1. C.R.P. (UTY) No.2 of 2023 8 Accordingly, owing to the impending vacation, we grant the 1[st] respondent, two months time to avail the alternative remedy. In the meantime, staus quo order passed by this Court shall continue. Sd/- **AMIT RAWAL JUDGE** Sd/- **EASWARAN S. JUDGE** NS C.R.P. (UTY) No.2 of 2023 9 ## **APPENDIX OF CRP(UTY) 2/2023** **PETITIONER ANNEXURES** **Annexure A1** **TRUE COPY OF THE CERTIFICATE ISSUED BY GOVERNMENT OF INDIA; NATIONAL COMMISSION OF MINORITY EDUCATIONAL INSTITUTIONS DATED 08/02/2010**