Dr. K. Prathapan S/o Sri T. Kesava Pillai v Union of India and Others

PETITIONER: DR. K.PRATHAPAN S/O. SRI. T. KESAVA PILLAI,AGED 53 YEARS, PROFESSOR(AGRONOMY), (UNDER SUSPENSION) COCONUT RESEARCH STATION, KERALA AGRICULTURAL UNIVERSITY, BALARAMAPURAM, THIRUVANANTHAPURAM-695 501. RESIDING AT 'SABARI' TC 17/809, ARYA SCHOOL LANE, PATTAM P.O, THIRUVANANTHAPURAM 695 004. BY SRI.O.V. RADHAKRISHNAN, SENIOR ADVOCATE. BY ADVS.SRI.K.SIJU SRI.PRATHEESH.P SMT.S.SEETHA SMT.RENY ANTO RESPONDENTS: 1. UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF AGRICULTURE AND FARMERS WELFARE, DEPARTMENT OF AGRICULTURE, CO-OPERATION AND FARMER'S WELFARE, KRISHI BHAVAN, RAJENDRA NAGAR, NEW DELHI - 110 001. 2. EXECUTIVE COMMITTEE, HEADED BY THE SECRETARY, DEPARTMENT OF AGRICULTURE, CO-OPERATION AND FARMERS' WELFARE, KRISHI BHAVAN, RAJENDRA NAGAR, NEW DELHI - 110 001. 3. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 4. SECRTARY, AGRICULTURE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. 5. DIRECTOR, - DIRECTORATE OF AGRICULTURE DEVELOPMENT AND FARMER'S WELFARE DEPARTMENT, THIRUVANANTHAPURAM - 695 033. 6. VIGILANCE OFFICER(FINANCE) AND SECRETARY, SPECIAL VIGILANCE CELL, DIRECTORATE OF AGRICULTURE DEVELOPMENT AND FARMERS' WELFARE DEPARTMENT, THIRUVANANTHAPURAM - 695 033. 7. KERALA AGRICULTURAL UNIVERSITY, REPRESENTED BY THE REGISTRAR, MAIN CAMPUS, VELLANIKKARA, KERALA AGRICULTURAL UNIVERSITY P.O, THRISSUR-680 656. WP(C).No. 20810 of 2018 8. VICE-CHANCELLOR, KERALA AGRICULTURAL UNIVESITY, MAIN CAMPUS, VELLANIKKARA, KERALA AGRICULTURAL UNIVERSITY P.O, THRISSUR - 680 656. 9. REGISTRAR-IN-CHARGE, KERALA AGRICULTURAL UNIVERSITY, MAIN CAMPUS, VELLANIKKARA, KERALA AGRICULTURAL UNIVERSITY P.O, THRISSUR 680 656. R7-R9 BY ADV.SRI.ROBSON PAUL, SC, KERALA AGRICULTURAL UNIVERSITY R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2-R6 BY SRI.B. UNNIKRISHNA KAIMAL, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20810 of 2018 (A) APPENDIX ## PETITIONER(S)' EXHIBITS EXHIBIT P1 A PHOTOCOPY OF THE G.O(RT) NO. 2280/07/AD DATED 12-12-2007 EXHIBIT P2 A TRUE COPY OF THE RELEVANT PAGES OF NATIONAL HORTICULTURE MISSION OPERATIONAL GUIDELINES ISSUED BY THE MINISTRY OF AGRICULTURE, DEPARTMENT OF AGRICULTURE AND CO-OPERATION, GOVERNMENT OF INDIA EXHIBIT P3 A TRUE EXTRACT OF RELEVANT BYE-LAWS OF THE MEMORANDUM OF ASSOCIATION OF STATE HORTICULTURE MISSION, KERALA EXHIBIT P4 A PHOTOCOPY OF THE G.O(MS) NO. 85/10/AD DATED 31-3-2010 EXHIBIT P5 A PHOTOCOPY OF THE G.O(RT) NO. 2443/12/AD DATED 20-12-2012 EXHIBIT P6 A PHOTOCOPY OF THE GOVERNMENT OF INDIA LETTER DATED 18-5-2012 EXHIBIT P6(a) A PHOTOCOPY OF THE GOVERNMENT OF INDIA LETTER DATED 10-06-2013 EXHIBIT P7 A PHOTOCOPY OF THE LETTER DATED 19-06-2013 ALONG WITH ANNUAL ACTION PLAN 2013-14 DISTRICT -WISE ALLOTTED TARGETS EXHIBITS P8 A PHOTOCOPY OF THE GO(MS) NO. 107/09/AD DATED 05-06-2009 EXHIBIT P9 A PHOTOCOPY OF THE GO(RT) NO. 654/16/AD DATED 30-07-2016 EXHIBIT P10 A PHOTOCOPY OF THE LETTER DATED 29-07-2017 OF THE 6TH RESPONDENT - EXHIBIT P11 A PHOTO COPY OF THE PROCEEDINGS OF THE KERALA AGRICULTURE UNIVERSITY DATED 7-6-2012 SHOWING REVISION OF SALE PRICE OF TC BANANA PLANTS EXHIBIT P12 A PHOTOCOPY OF THE PROCEEDINGS SHOWING THE SALE PRICE PREVAILING IN THE VFPCK (VEGETABLES AND FRUITS PROMOTION COUNCIL, KERALA) DURING 2012-13 - EXHIBIT P13 A PHOTO COPY OF THE REPLY/EXPLANATION DATED 9-08-2017 - EXHIBIT P14 A PHOTOCOPY OF THE ORDER DATED 10-04-2018 PLACING THE PETITIONER UNDER SUSPENSION BY THE VICECHANCELLOR - EXHIBIT P15 A PHOTOCOPY OF THE GOVERNMENT LETTER NO. 78/AF2/2018/AGRI DATED 7-4-2018 OF THE SECRETARY, AGRI(FARMS) DEPARTMENT, GOVERNMENT OF KERALA. WP(C).No. 20810 of 2018 EXHIBIT P16 A PHOTOCOPY OF THE GOVERNMENT LETTER NO AGRI-AF2/78/2018/AGRI DATED 10-04-2018 OF THE SECRETARY, AGRI(FARMS) DEPARTMENT, GOVERNMENT OF KERALA EXHIBIT P17 A PHOTOCOPY OF THE ORDER NO.GA/L3/2018/101/6047 DATED 2-5-2018 EXHIBIT P18 A PHOTOCOPY OF THE ORDER APPLICATION SUBMITTED BY THE PETITIONER DATED 17-04-2018 UNDER RTI ACT EXHIBIT P19 A PHOTO COPY OF THE REPLY LETTER DATED 16-05-2018 GIVEN TO THE PETITIONER EXHIBIT P20 A PHOTOCOPY OF THE APPEAL PETITION SUBMITTED BY THE PETITIONER DATED 17-05-2018 EXHIBIT P21 A PHOTOCOPY OF THE CHARGE MEMO ALONG WITH THE STATEMENT OF IMPUTATION EXHIBIT P22 A PHOTOCOPY OF THE ORDER NO. GA/C1/13562/2016 DATED 31-5-2018 EXHIBIT P23 A PHOTO COPY OF THE ORDER PASSED BY THE CONSUMER DISPUTES REDDRESSAL FORUM, KASARAGOD IN CC NO. 91/2014 DATED 13-5-2016. EXHIBIT P24 A TRUE COPY OF THE ENQUIRY REPORT EXHIBIT P25 THE TRUE COPY OF THE REPORT IN QV. 18/15 DATED 7-8-2017 ALONG WITH THE COVERING LETTER OF THE SUPERINTENDENT OF POLICE,VIGILANCE AND ANTI CORRUPTION BUREAU, SPECIAL INVESTIGATION UNIT II SUBMITTED TO THE DIRECTOR VIGILANCE EXHIBIT P26 A PHOTOCOPY OF THE LETTER NO.AGRI-PB1/9B/2016-AGRI DATED 4-8-2016 OF THE 4TH RESPONDENT SECRETARY. EXHIBIT P27 A PHOTO COPY OF THE LETTER NO. AGRI-PB1/85/2016-AGRI DATED 22-07-2016 OF THE 4TH RESPONDENT. RESPONDENT'S EXHIBITS: EXHIBIT R7(a) COPY OF HTE SRO- CLAUSE 23. EXHIBIT R7(b) COPY OF THE ORDER DISPOSING RTI APPEAL. EXHIBIT R7(c) COPY OF THE RECOMMENDATION OF THE ENQUIRY COMMITTEE. EXHIBIT R7(d) COPY OF THE DECISION OF THE EXECUTIVE COMMITTEE DTD.11.4.18. // TRUE COPY // P.S. TO JUDGE. smp ## **A. MUHAMED MUSTAQUE, J.** ------------------------------------ ## W.P. (C) No.20810 of 2018 ------------------------------------ Dated this the 19[th] day of July, 2018 ## **J U D G M E N T** The petitioner, a Professor in Kerala Agricultural University, has been suspended by the order of the Vice Chancellor produced as Ext.P14. The suspension was extended until further orders by the order of the Registrar. The order was passed by the Registrar along with a charge memo issued to the petitioner. The irregularity and misconduct alleged against the petitioner was in respect of the duties discharged by him as Mission Director of State Horticulture Mission. There are challenges in this writ petition in regard to the disciplinary proceedings initiated by the University in the sense that only the Borrowing Institution can initiate such proceedings and not a Lending Institution. The University tried to justify the disciplinary proceedings referring to Statute 47A(3) of the Kerala Agricultural University Statutes. 2. I am not adverting to this controversy for the simple **W.P.(C) No.20810/2018** **2** reason that the learned Senior Counsel appearing for the petitioner mainly confined his argument to reinstatement of the petitioner. The initial suspension was on 10.04.2018. The legality of the suspension order is questioned with reference to the power of the Registrar to extend the suspension order passed by the Vice Chancellor. It is seen from the original order itself that the suspension was not for a definite period. Nevertheless, the Registrar assumed that it was for a specific period and extended the suspension until further orders in the matter. 3. Learned Senior Counsel appearing for the petitioner challenged the suspension especially on three grounds; i) non application of mind while ordering initial suspension, ii) the authority to suspend a Professor is the appointing authority or any authority authorised by the appointing authority and iii) Statute 47A(1) states that suspension can be only effected by the Borrowing Authority and not by the Lending Authority. 4. In regard to the first question, it can be seen that the Government directed the Agricultural University to suspend the petitioner from service with immediate effect. This was taking note of the enquiry conducted by the Special Vigilance Cell of **W.P.(C) No.20810/2018** **3** the Agriculture Department. The Vigilance Cell charged serious irregularities on the part of the petitioner while discharging his duties as Mission Director of State Horticulture Mission on deputation from the Kerala Agricultural University. 5. As seen from Ext.P14 order of the Vice Chancellor, the Vice Chancellor simply acted on the dictate of the Government without any application of mind. It appears that the Vice Chancellor was satisfied with the directions. It is very clear that the Vice Chancellor had not made any independent satisfaction as to the requirement of suspension. However, considering Statute 17, I am of the view that the Vice Chancellor would be justified in suspending an employee in contemplation of the disciplinary proceedings if such disciplinary proceedings is proposed to be initiated against an employee. That being the position, I am of the view that even though the Vice Chancellor had passed an order based on the direction of the Government, that itself will not nullify the order of suspension. 6. In regard to the power for initiating disciplinary action, Statute 17 says that the appointing authority or any authority to which it is subordinate or any authority **W.P.(C) No.20810/2018** **4** empowered by the appointing authority is competent to place the University employee under suspension. Under Section 16(g) of the Kerala Agricultural University Act, 1971, the power to appoint teachers and other employees of the University is vested on the Executive Committee and Section 16(i) states the power of the Executive Committee to suspend teachers or employees of the University and also to initiate disciplinary action. That means, the power to suspend a teacher or employee is solely vested on the Executive Committee. However, under Section 28(9A), the Vice Chancellor has power to suspend teachers or other employees and initiate disciplinary action subject to ratification by the Executive Committee. That means, only the authority other than the Executive Committee to suspend a teacher or an employee is the Vice Chancellor subject to ratification by the Executive Committee. No such power is given to any other authority. The Registrar may be competent if he is specifically empowered by the Executive Committee to suspend an employee or teacher. In this case, nowhere the Registrar in the subsequent order produced as Ext.P21 refers to any authorisation from the Executive Committee. The Registrar in **W.P.(C) No.20810/2018** **5** fact issued a charge memo. I am not entering into the validity of the charge memo. The procedure as set out in Statute 30 indicates the manner in which such charge memo has to be given. It is along with the charge memo, the Registrar extended the suspension indefinitely till further orders. As seen from the provisions as above, the Registrar has no power to suspend or order continuous suspension without any authorisation from the Executive Committee. Therefore, Ext.P21 to the extent ordering suspension of the petitioner till further orders will have to be interfered. 7. Learned Senior Counsel, referring to Statute 47A(1) argued that in respect of the alleged misconduct occurred during the period of service with the Borrowing Authority, suspension can be only effected by such authority. Learned Senior Counsel submits that Statute 47A(1) is only to initiate disciplinary proceedings. Nowhere it stipulates that such suspension can be imposed on a teacher or employee of Lending Institution. It is true that as referrable under Statute 47A(3), University can proceed in accordance with the Statute for disciplinary action and imposing penalty. The question that arises is whether a Lending Institution can suspend a teacher **W.P.(C) No.20810/2018** **6** or employee for the acts committed by the employee while serving under the Borrowing Institution. It is doubtful whether the Lending Institution has power for such suspension. 8. I am interfering with the suspension for the reasons above noted as the Registrar has no competency to extend the order of suspension until further orders. Apart from that, in a matter of suspension, in the absence of statutory provision prescribing maximum outer limit to keep a teacher or employee under suspension, reasonable time has to be considered taking note of the alleged misconduct. The Supreme Court, in _**Ajay Kumar Choudhary** vs._ _**Union of India through its Secretary and another**_ ((2015) 7 SCC 291), after referring to the Code of Criminal Procedure, had taken a view that suspended employees should not suffer suspension beyond 90 days if charge memo has not been served on the suspended employee. What is most importantly to be considered is the possibility of interfering with the enquiry proceedings and influencing the witnesses by the delinquent employee or teacher. In this case, the alleged irregularity is based on the misconduct related to corruption in respect of the duties with the State Horticulture Mission. In **W.P.(C) No.20810/2018** **7** such circumstances, the possibility of influencing any of the witnesses or interfering with the proceedings is remote. The petitioner is under suspension for more than three months. Taking note of the facts and circumstances, this Court is of the view that the petitioner shall be reinstated in service subject to the outcome of the disciplinary proceedings. The question of regularisation of the suspension period would depend upon the outcome of the disciplinary proceedings and also subject to the decision of the competent authorities. All other contentions are left open. This writ petition is disposed of as above. Sd/- **A. MUHAMED MUSTAQUE** **JUDGE** smp