Dr. Joshy C.L. v. Principal Secretary, Higher Education Department, Govt. of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON** **FRIDAY, THE 17TH JUNE 2011 / 27TH JYAISHTA 1933** ## **WP(C).No. 16089 of 2011(I)** **-------------------------------------** **PETITIONER:** ## **-------------------** **DR.JOSHY.C.L., S/O.C.V.LUIS, 45 YEARS, 'SAROVARAM', CHIRIYANKANDATH HOUSE, PAVARATTY.P.O., (SYNDICATE MEMBER OF CALICUT UNIVERSITY).** **BY ADV. SRI.RENJITH THAMPAN.** **RESPONDENTS:** ## **------------------------** **1. PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. PIN-695 001.** **2. VICE CHANCELLOR (IN CHARGE), UNIVERSITY OF CALICUT, CALICUT UNIVERSITY.P.O., MALAPPURAM DISTRICT. PIN-673 635.** **3. THE CHANCELLOR, UNIVERSITY OF CALICUT, RAJ BHAVAN, THIRUVANANTHAPURAM. PIN-695 001.** **4. REGISTRAR (IN CHARGE), CALICUT UNIVERSITY, CALICUT UNIVERSITY.P.O., MALAPPURAM DISTRICT. PIN-673 635.** ## **5. P.P.MOHAMMED,** **B 5 QUARTERS, CALICUT UNIVERSITY POST, CALICUT UNIVERSITY, MALAPPURAM DISTRICT. PIN-673 635.** **R1 & R3 BY ADVOCATE GENERAL SRI. K.P. DANDAPANI, GOVT. PLEADER SRI. M.H. HANILKUMAR, R5 BY ADV. SRI.GEORGE POONTHOTTAM.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C). NO.16089/2011-I:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE REPORT NO.2752/2005 OF LOK AYUKTHA.** **EXT.P.2: COPY OF THE SHOW CAUSE MEMO ALONG WITH THE COVERING LETTER ISSUED BY THE VICE CHANCELLOR DTD. 30/06/2007.** **EXT.P.3: COPY OF THE EXTRACT OF THE MINUTES OF MEETING OF THE SYNDICATE AND THE UNIVERSITY ORDER DTD. 19/07/2007.** **EXT.P.4: COPY OF THE MEMO OF CHARGES WITH STATEMENT OF ALLEGATIONS DTD. 13/11/2007.** ## **EXT.P.5: COPY OF THE UNIVERSITY ORDER DTD. 21/03/2009.** **EXT.P.6: COPY OF THE REPORT SUBMITTED BY THE COMMITTEE DTD. 25/04/2009.** **EXT.P.7: COPY OF THE LETTER DTD. 18/05/2009 OF THE VICE CHANCELLOR INTIMATING THE DECISION OF THE SYNDICATE.** ## **EXT.P.8: COPY OF THE ORDER DTD. 27/08/2009 OF THE UNIVERSITY.** **EXT.P.9: COPY OF THE ADVICE OF THE UNIVERSITY APPELLATE TRIBUNAL DTD. 13/05/2011.** **EXT.P.10: COPY OF THE COMMUNICATION ISSUED BY THE CHANCELLOR TO THE REGISTRAR.** **EXT.P.11: COPY OF THE LETTER DTD. 12/06/2011 FILED BY THE PETITIONER.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **P.R.RAMACHANDRA MENON, J -------------------------------------W.P.(C) No.16089 OF 2011** **-------------------------------------------------Dated this the 17[th] day of June 2011** ## **JUDGMENT** The petitioner, who is a member of the Syndicate of the Calicut University constituted under Section 21 of the Calicut University Act, 1955 is mainly seeking for a direction to the 2[nd] respondent, the Vice Chancellor-in-charge to convene the Syndicate of the University, for discussing the 'advice' rendered by the Appellate Tribunal in a reference sought for by the Chancellor, in connection with the Statutory Appeal preferred by the 5[th] respondent, a copy of which advice has been forwarded to the 4[th] respondent Registrar vide Ext.P10 dated 24-05-2011 intimating the date of hearing as scheduled on 16-06-2011. The specific case of the petitioner is that a decision has to be taken by the University on the advice furnished, which can be only done by the Syndicate and as such, the Registrar, without taking the opinion of the Syndicate cannot effectively represent the University before the Chancellor, as to the merits of the appeal. 2. The learned counsel for the petitioner submits that the case has got a long history and the 5[th] respondent herein, who was earlier functioning as the Registrar of the University got W.P.(C) No.16089/2011 2 involved in so many delinquencies involving corruption as well. It is stated that as per Ext.P1, the Lokayukta found the functioning of the said respondent as liable to be deprecated and ordered a vigilance inquiry against the 5[th] respondent and also against the then Vice Chancellor. In the course of events, the Syndicate issued Ext.P2 show-cause notice to the 5[th] respondent pointing out the specific allegations calling for the explanation, who in turn ordered suspension of the 5[th] respondent as per Ext.P3. This was followed by Ext.P4 and after considering the same, the University, as per Ext.P5 ordered to constitute a committee and to call for a report. Pursuant to this, as per Ext.P6 report, a domestic inquiry was conducted and the inquiry commission submitted the inquiry report after referring to nearly 206 documents and deposition of several witnesses. As per the said report, most of the charges levelled against the 5[th] respondent were held as proved. A copy of the inquiry report was forwarded to the 5[th] respondent calling for his explanation. After considering the matter, the Syndicate opposed the inquiry report and arrived at a finding on guilt. Accordingly, Ext.P7 notice was issued, calling for the version of the proposed punishment of compulsory retirement. After considering the version W.P.(C) No.16089/2011 3 of the delinquent employee, the matter was considered by the Syndicate and the punishment of compulsory retirement was imposed on the 5[th] respondent. 3. Being aggrieved of the order passed by the Syndicate as above, the 5[th] respondent preferred a statutory appeal before the Chancellor, who is the Appellate Authority. The Chancellor considered the matter and the appeal was dismissed, which however was subjected to challenge by approaching this Court by the aggrieved party. The order passed by the Chancellor was set aside and the Chancellor was directed to reconsider the matter in the light of the observations therein, after giving an opportunity of hearing to the parties concerned. This has been reported in **“Mohamed v Chancellor, University of Calicut” 2011(1) KLT** **52** . It appears that the matter was taken up in appeal by approaching the Division Bench in W.A No.193/2011, wherein interference was declined and the same was dismissed on 09-02-2011, confirming the direction given by the learned single Judge and directing the Chancellor to finalise the matter. During the pendency of the proceedings before the Division Bench, it was pointed out by the University that the Chancellor was to take the W.P.(C) No.16089/2011 4 decision in the appeal only after getting the opinion of the Tribunal as contemplated under Section 7(8) of the Calicut University Act, 1975, which aspect was however left to be considered by the Chancellor, but no time limit was prescribed. It was in the said circumstance that the 5[th] respondent chose to approach the Division Bench by filing a Revision Petition, which was disposed of on 14-03-2011 directing that the opinion was to be rendered within two months and to have the matter considered accordingly. 4. Pursuant to the verdict as abovesaid, the Chancellor considered the matter, also with regard to the necessity to have referred the matter for advice of the Tribunal. Both the parties heard in detail. After hearing, it was observed by the Chancellor that, eventhough the appeal filed was not against “dismissal” as contemplated under Section 7(6), but by virtue of the statute 52(b) of the 1[st] statutes and though, it was not mandatory, sought for the opinion of the Tribunal, to have transparency. Accordingly, the matter was referred to the Tribunal and the Tribunal, as per Ext.P9 dated 13-05-2011, rendered the necessary advice. It is pointed out that, as per the said opinion, the Tribunal came to a conclusion that none of the charges levelled against the 5[th] respondent stood W.P.(C) No.16089/2011 5 proved and hence was not sustainable. The Chancellor, on receipt of Ext.P9 advice forwarded a copy of the same to the University as well, when the date of hearing of the appeal scheduled on 18-06-2011 was intimated to the 4[th] respondent Registrar, asking the Registrar to make it convenient to be present on that day along with the relevant records. 5. The petitioner is before this Court stating that, before having the matter finalised by the Chancellor, it is mandatory on the part of the respondents 2 and 4 to have the matter placed for consideration before the Syndicate as well. The 2[nd] respondent has been sought to be directed to convene a meeting of the Syndicate and to have the appeal proceedings adjourned accordingly, to obtain the sanction/version of the Syndicate. 6. The prayer of the petitioner is sought to be resisted by the concerned respondent on many a ground. 7. The learned Advocate General, who entered appearance on behalf of the Chancellor confined himself to the limited question of maintainability, without encroaching into the facts or other disputes. It was pointed out that the petitioner, who is only a member of the Syndicate, has no 'locus standi', particularly since there is no W.P.(C) No.16089/2011 6 pleading in the Writ Petition that the Syndicate has authorised the petitioner to file the present Writ Petition. No such averment is there anywhere in the affidavit or in the Writ Petition. It is also stated that the Chancellor is not bound to have an opinion to be sought for from the Advisory Board nor is bound to follow the same and that an independent decision is to be taken after considering the merits. The learned counsel appearing for the 5[th] respondent submits that the idea and understanding of the petitioner as to the necessity to call for an opinion and the need to have it placed before the Syndicate is wrong and misconceived. The learned counsel also submits that the opinion of the advisory committee itself has been sought for at the instance of the University. The learned counsel made arguments at length with regard to the merits involved. This Court does not find it necessary to go into the merits at all, since the matter is pending before the Chancellor. 8. As mentioned hearinbefore, the necessity to have sought for an opinion from the Tribunal during the pendency of the Writ Appeal was brought to the notice of the Court; but the issue was left by the Division Bench to be considered by the Chancellor. Then, the question is whether the advice given by the Tribunal is necessarily W.P.(C) No.16089/2011 7 to be placed before the Syndicate to take any decision; though a copy of the same has been forwarded to the 4[th] respondent as well, intimating the date of hearing of the appeal, vide Ext.P10. It is also relevant to note that no remarks have been called for by the Chancellor, who just forwarded a copy of the same to the Registrar, who has been asked to come with all the relevant records, pleadings, evidence etc. The law does not contemplate any decision making process or forming of opinion by the Syndicate, on the advice tendered by the Tribunal, pursuant to reference made by the Chancellor. 9. In the above circumstances, this Court finds it difficult to accept the version of the petitioner that it was mandatory to have placed the advice before the Syndicate, before the matter was finalised. This Court finds that the appeal preferred by the 5[th] respondent, being a statutory appeal under Section 52(b) and further since the Chancellor is not bound to make a reference and above all, the Chancellor is not bound by the opinion to be rendered even in a circumstance covered by Section 7(8) of the Act, it is not at all necessary to have the same considered by the Syndicate before the proceedings are finalised by the Chancellor. It is open for W.P.(C) No.16089/2011 8 the Chancellor to go by the advice or reject the same. The advice given by the Tribunal only forms part of the records and it is for the Chancellor to consider the same. In any view of the matter, the decision has to be taken by the Chancellor on merits, with reference to all the pleadings on record and never as being carried away by the opinion given by Tribunal. No positive direction can be given to the petitioner as well. Appropriate decision can be taken by the Chancellor with reference to all the pleadings and materials on record. The Writ Petition fails and it is dismissed accordingly. vdv **P.R.RAMACHANDRA MENON, JUDGE**