Dr. K. Shree Krishna Kumar v. Mahatma Gandhi University and Centre for Professional and Advanced Studies

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **TUESDAY, THE 5TH DAY OF DECEMBER 2017/14TH AGRAHAYANA, 1939** ## **WP(C).No. 34601 of 2017 (A)** **----------------------------** ## **PETITIONER :** **----------------------** **DR.K.SHREEKRISHNA KUMAR, REGIONAL DIRECTOR, SCHOOL OF TECHNOLOGY AND APPLIED SCIENCES, MAHATMA GANDHI UNIVERSITY, PULLARIKKUNNU CAMPUS, KOTTAYAM (UNDER SUSPENSION).** ## **BY ADV. SRI.GEORGE POONTHOTTAM** **RESPONDENT(S):** **-----------------------------** **1. THE MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS P.O., KOTTAYAM -686 560 REPRESENTED BY ITS REGISTRAR.** **2. CENTRE FOR PROFESSIONAL AND ADVANCED STUDIES, SCHOOL OF MEDICAL EDUCATION, GANDHI NAGAR, KOTTAYAM -686 008 REPRESENTED BY ITS DIRECTOR.** **R1 BY SRI.SURIN GEORGE IPE, SC, R2 BY ADV. SRI.P.C.SASIDHARAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 34601 of 2017 (A)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **----------------------------------------** - **EXHIBIT P1 TRUE COPY OF THE ORDER NO.SF.I/STAS/MCA/1748/97 DATED 15/5/1998 PASSED BY THE UNIVERSITY** - **EXHIBIT P2 TRUE COPY OF THE NOTIFICATION NO.SF.I/STAS/1748/97 DATED 04/06/1997 ISSUED BY THE UNIVERSITY** - **EXHIBIT P3 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 9/3/1998 FILED BY THE UNIVERSITY BEFORE THIS HON'BLE COURT IN O.P NO.742/1998** - **EXHIBIT P4 TRUE COPY OF THE G.O.(MS) NO.101/2017/H.EDN. DATED 6/4/2017** - **EXHIBIT P5 TRUE COPY OF THE G.O.NO.2220/SFI/2017 ADMN. DEPT. DATED 21/4/2017 PASSED BY THE UNIVERSITY** - **EXHIBIT P6 TRUE COPY OF THE G.O.NO.2589/S.F.3/2017 ADMN. DATED 5/5/2017 PASSED BY THE UNIVERSITY** - **EXHIBIT P7 TRUE COPY OF THE GO.NO.3490/A1/2/2017 ADMN. DEPT. DATED 12/6/2017 PASSED BY THE UNIVERSITY** - **EXHIBIT P8 TRUE COPY OF THE G.O.NO.S.F.1/2017 ADMN. DEPT. DATED 15/5/2017 PASSED BY THE UNIVERSITY** - **EXHIBIT P9 TRUE COPY OF THE ORDER NO.4477/S.F.1/2017 ADMN. DEPT. DATED 20/7/2017 PASSED BY THE UNIVERSITY** - **EXHIBIT P10 TRUE COPY OF THE AFFIDAVIT DATED 25/7/2017 FILED BY THIS HON'BLE COURT IN WPC NO.21861/2017, WITHOUT EXHIBIT** - **EXHIBIT P11 TRUE COPY OF THE ORDER DATED 28/7/2017 IN WPC NO.21861/2017 PASSED BY THIS HON'BLE COURT** - **EXHIBIT P12 TRUE COPY OF THE MEMO BEARING NO.6005/10/2/S.M.E/S.F.1 DATED 1/8/2017 ISSUED BY THE UNIVERSITY** - **EXHIBIT P13 TRUE COPY OF THE AFFIDAVIT DATED 7/8/2017 FILED BEFORE THIS HON'BLE COURT IN WPC NO.21861/2017, WITHOUT EXHIBITS** - **EXHIBIT P14 TRUE COPY OF THE ORDER DATED 11/8/2017 IN WPC NO.21861/2017 ISSUED BY THIS HON'BLE COURT** - **EXHIBIT P15 TRUE COPY OF THE COMMUNICATION NO.12866/S.F.I/2012/ADMN. DEPT. DATED 9/8/2017 ISSUED BY THE UNIVERSITY** - **EXHIBIT P16 TRUE COPY OF THE COMMUNICATION DATED 19/8/2017 ISSUED BY THE 2ND RESPONDENT** **2/-** **-2-** ## **WP(C).No. 34601 of 2017 (A)** - **EXHIBIT P17 TRUE COPY OF THE AFFIDAVIT DATED 22/8/2017 FILED BEFORE THIS HON'BLE COURT IN WPC. NO.21861/2017, WITHOUT EXHIBITS** - **EXHIBIT P18 TRUE COPY OF THE ORDER DATED 24/8/2017 IN WPC NO.21861/2017 ISSUED BY THIS HON'BLE COURT** - **EXHIBIT P19 TRUE COPY OF THE COMMUNICATION DATED 2/9/2017 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P20 TRUE COPY OF THE AFFIDAVIT DATED 12/9/2017 FILED BEFORE THIS HON'BLE COURT IN WPC NO.21861/2017, WITHOUT EXHIBITS** - **EXHIBIT P21 TRUE COPY OF THE ORDER IN I.A 14371/17 DATED 19/9/2017 IN WPC NO.21861/2017 ISSUED BY THIS HON'BLE COURT** - **EXHIBIT P22 TRUE COPY OF THE PROCEEDINGS NO.29/CPAS/EST/STAFF/2017 DATED 13/9/2017 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P23 TRUE COPY OF THE AFFIDAVIT DATED 18/9/2017 FILED BEFORE THIS HON'BLE COURT IN WPC NO.21861/2017, WITHOUT EXHIBITS** - **EXHIBIT P24 TRUE COPY OF THE ORDER IN I.A 14746/17 DATED 27/10/2017 IN WPC NO.21861/2017 ISSUED BY THIS HON'BLE COURT** - **EXHIBIT P25 TRUE COPY OF THE NOTICE DATED 12/10/2017 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P26 TRUE COPY OF THE EVENT DETAILS OF EXT.P25 AS OBTAINED FROM THE WEBSITE** - **EXHIBIT P27 TRUE COPY OF THE PROCEEDINGS NO.29/CPAS/EST/STAFF/2017 DATED 24/10/2017 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P28 TRUE COPY OF THE PRINT OUT OF THE E-MAIL ADDRESSED TO THE PETITIONER DATED 27/10/2017** - **EXHIBIT P29 TRUE COPY OF THE COMMUNICATION ADDRESSED TO THE 2ND RESPONDENT BY THE PETITIONER** **RESPONDENT(S)' EXHIBITS -----------------------------------------EXHIBIT R2(A) TRUE COPY OF THE WORKLOAD ASSESSMENT.** ## **/TRUE COPY/** **P.S.TO JUDGE** **sts** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.34601 of 2017-A ------------------------------------------- _Dated this the 5[th] day of December, 2017_ ## _**JUDGMENT**_ Petitioner, who was the Regional Director of the School of Technology and Applied Sciences ('STAS' for short), Pullarikkunnu, which is presently under the 2[nd] respondent, has filed this writ petition challenging Ext.P27 order by which he was placed under suspension. The petitioner was appointed as a Lecturer in Physics in the STAS, Mahatma Gandhi University as per Ext.P1 order dated 15.05.1998. Later he was appointed as the Regional Director of STAS, Pullarikkunnu. While continuing so, the Government issued Ext.P4 order by which the 2[nd] respondent society, i.e, the Centre for Professional and Advanced Studies ('CPAS' for short) was formed under the Travancore Cochin Literacy Scientific and Charitable Societies Act, 1955, for the coordination, management, administration, etc. of all the self financing institutions run by the Mahatma Gandhi University ('University' for short). On the formation of the society, the University issued Ext.P9 order dated 20.7.2017 disengaging the teaching and other staff of the self financing institutions. The petitioner along with others filed 2 W.P(C) No.34601 of 2017-A W.P(C).No.21861 of 2017 challenging the formation of society and the orders of disengagement which is pending consideration of this Court. On 28.7.2017, as per Ext.P11 interim order, this Court directed the respondents to see that the petitioners are not denied any service benefits and that undertaking, if any, required to be given by them shall be subject to the contentions in the writ petition with a further direction to ensure payment of salary to the petitioners. The University thereafter issued memos like Ext.P12 on 01.08.2017, informing the petitioner and others that their services under the University were discontinued from 17.07.2017. As per Ext.P14 order dated 11.08.2017, this Court directed that the memo shall not stand in the way of granting of any of the service benefits or the continuance of the petitioner and others in the respective posts. 2. As per Ext. P15 letter dated 09.08.2017, the University informed that salary bills have to be submitted before the 2[nd] respondent. The 2[nd] respondent called for option from those interested to serve under the 2[nd] respondent fixing the last date as 19.08.2017. As per Ext.P16 letter dated 19.08.2017, the 2[nd] respondent directed the Regional Directors and Head of the Departments to collect the options received and furnish them to the 2[nd] respondent. It was also directed that those who submitted options 3 W.P(C) No.34601 of 2017-A shall be informed that they have to report before the 2[nd] respondent as per the schedule annexed therein along with their certificates. This Court by Ext.P17 order stayed further proceedings based on that letter. 3. Even though the petitioner and others had submitted their option, it was on certain conditions and not in the prescribed form. On 02.09.2017, the 2[nd] respondent issued Ext.P19 order stating that the petitioner and others, who had not exercised their option or willingness would be deemed that they are not interested to be engaged in the service of the 2[nd] respondent and the 2[nd] respondent would not be able to continue with their engagement. By Ext.P21 order in I.A.14371/2017, the 2[nd] respondent was directed to accept the willingness submitted by the petitioners, provisionally and not to deny them salary for want of willingness. 4. While so, the 2[nd] respondent issued Ext.P22 order on 13.9.2017 removing the petitioner from the post of Regional Director and handing over charge to one Sri Rajendran. It was stated that the petitioner did not furnish willingness to work under the 2[nd] respondent and that there was emergent requirement of a Chief Superintendent to supervise the examinations. The petitioner immediately filed I.A.No.14746 of 2017 seeking a stay of the order Ext.P22. W.P(C) No.34601 of 2017-A 4 5. In the meanwhile, the petitioner and others complained that they were not paid salary despite the directions of this Court. The 2[nd] respondent thereafter pointed out that the petitioner submitted the bill before the University. There were disputes regarding the bill submitted by petitioner also. 6. Taking note of the statement that examinations were ongoing and that there was the requirement of Chief Superintendent, this Court on 27.10.2017 by Ext.P24 order in I.A. 14746 of 2017 ordered that Ext.P22 order cannot have any effect of replacing the petitioner for any purpose other than for ongoing examination. The order of suspension was issued on 24.10.2017. At the time of hearing of I.A.14746/2017, it was submitted on behalf of the 2[nd] respondent that disciplinary action was being initiated against the petitioner. 7. In the meanwhile, the 2[nd] respondent issued Ext.P25 memo dated 12.10.2017, directing the petitioner to show cause why action should not be taken against him for insubordination and indiscipline. It was stated that the charge of Regional Director was entrusted with Sri. Rajendran in view of the future of the students of CAPS, the conduct of their examinations and publication of their results. But the petitioner did not W.P(C) No.34601 of 2017-A 5 hand over charge to Sri. Rajendran and compliance report was not received. It was stated that the petitioner did not co-operate or comply with the order of the 2[nd] respondent. The petitioner was asked to submit his reply, if any, against the proposal within 7 days of its receipt. 8. Producing Ext.P26 consignment track of the postal article sent to the petitioner, from the official site of the Department of Posts, the petitioner claims that Ext.P25 memo, though dated 12.10.2017, was sent to the petitioner by registered post only on 19.10.2017 and it was delivered only on 20.10.2017. Even before the time granted had expired, the 2[nd] respondent issued Ext.P27 order dated 24.10.2017 placing the petitioner under suspension. The order of suspension was issued on 24.10.2017, referring to Ext.P22 proceedings dated 13.9.2017 and Ext.P25 memo dated 12.10.2017. It is stated that the Director of the 2[nd] respondent had entrusted the charge of Regional Director of STAS, Pullarikkunnu with Shri Rajendran R., Lecturer in TSOP in view of the future of the students of the CPAS, the conduct of their examinations and publication of their results in time, and directing the petitioner, the then Regional Director to hand over charge to Sri Rajendran, the newly designated Regional Director in charge, who was directed to submit a report on taking over charge. The petitioner W.P(C) No.34601 of 2017-A 6 did not co-operate or comply with the order, which amounts to insubordination and indiscipline. Hence he was directed to show cause within 7 days of the date of receipt of memo, as to why action should not be taken against him. But he did not submit any explanation. The action of the petitioner in not handing over the relevant records to the newly designated person was hindering the normal functioning of the centre and the disbursement of salary of the staff, which is a subject matter before this Court, has been delayed. It was further alleged that the day-to-day administration and the academic activities of the centre including the University examinations were also prejudicially affected. Alleging that the above act on the part of the petitioner was a serious misconduct warranting disciplinary action, the petitioner was placed under suspension. 9. Producing the print out of the email, the petitioner states that the order of suspension was communicated to him only on 27.10.2017. The petitioner submits that he sent a letter to the 2[nd] respondent informing that there is no point in submitting his reply to the memo, since he was already placed under suspension, even before the time granted to him was over. The petitioner has therefore challenged the order of suspension alleging that it is issued in malafide exercise of power. W.P(C) No.34601 of 2017-A 7 10. According to the petitioner, the memo Ext.P25 and the order of suspension Ext.P27 are liable to be set aside. It is pointed out that the orders Exts.P25 and P27 are issued in order to circumvent the orders of this Court.. The petitioner stated that the 2[nd] respondent wanted to see the ouster of the petitioner somehow or other. 11. The respondents have filed counter affidavit stating that the 2[nd] respondent is not an authority under the State; it is not a creation of the Government and it is not guided or funded by the Government and therefore no writ will lie against the 2[nd] respondent. It is therefore stated that even assuming that it comes within 'State”, as none of the fundamental rights of the petitioner are violated, no writ petition will lie against the 2[nd] respondent society, in the light of a series of judgments **K.S.Sofhi v. Fertilisers and Chemicals Travancore Ltd. & Ors.** [1984 KLT 32], **G.Bassi Reddy v. International Crops Research Institute** [2003 (4) SCC 225], **K.K.Saksena v. International Commission on Irrigation and Drainage & Ors.** [(2015) 4 SCC 670] (paragraph.431, 432, 433), **Pradeep Kumar Biswas v. Indian Institute of Chemical Biology & Ors.** [(2002) 5 SCC 111], **Zee Telefilms Ltd. & anr. v. Union of India and Ors.** [(2005) 4 SCC 649], etc. It is also pointed out that the society is not performing any W.P(C) No.34601 of 2017-A 8 function on account of which it can be said that it is amenable to the writ jurisdiction of this Court. It is also stated that there is no post under the 2[nd] respondent, to accommodate the petitioner who is having post graduation in Physics and that there is no course run by the 2[nd] respondent with Physics as a subject. 12. As per the counter affidavit as well as the additional counter affidavit, the petitioner is placed under suspension pending enquiry into allegations of serious misconduct. According to the respondents, the petitioner is not eligible to be engaged in the centre and there is no post of Assistant Professor in Physics available in the centre. It is further stated that each centre has Superintendents for the conduct of the examination. Sri Rajendran was appointed as the Director of the Regional Centre in the place of the petitioner as person like the petitioner, who has not submitted option to work under the 2[nd] respondent, cannot be engaged as Superintendent of the examination. It is further stated that even after the removal of the petitioner from the post of Regional Director he refused to hand over the charge to the new incumbent and that he deliberately delayed the salary bills and presented the salary bills of July, 2017, only on 18.8.17, on account of which payment of salary to the staff of the Centre was delayed. Even in the 9 W.P(C) No.34601 of 2017-A salary bills when presented, he claimed escalated amounts for the teachers; the vehicle allotted to the centre is kept in the control and custody of the petitioner; it is stated that the memo was issued to the petitioner by mail as well as by hand. Since he refused either to give any explanation or to hand over the charge, the memo was sent by registered post on 17.10.2017. The order of suspension was issued as urgent steps were necessary to avoid any stalemate. It is pointed out that the order of suspension was already issued when I.A.No.14746/2017 was being heard. Pointing out Ext.P29 it is stated that the petitioner has accepted the misconduct alleged against him. 13. I heard the learned Counsel appearing for the petitioner as well as the learned Counsel appearing for the 2[nd] respondent. 14. The main reason for issuing the order of suspension is that the petitioner did not hand over charge to Sri Rajendran on the basis of Ext.P22 order dated 13.09.2017. Such an order was issued on the ground that the petitioner had not submitted his willingness to work under the 2[nd] respondent. As per Ext.P21 interim order dated 19.09.2017, the respondents were already directed to accept the willingness of the petitioner and others treating the conditional options they had submitted, on condition that they submit option in the prescribed form within 7 days. On the basis W.P(C) No.34601 of 2017-A 10 of that order, the 2[nd] respondent had provisionally accepted the options. Even though orders on application for stay of Ext.P22 order was issued only on 27.10.2017, the order Ext.P22, removing the petitioner from the post of Regional Director was issued at a time when all other orders passed by this Court from 28.07.2017 onwards were in force. 15. Therefore even though there was a direction to hand over charge to Sri Rajendran and that the petitioner did not hand over charge to him, all these directions were issued at a time when the conditional option submitted by the petitioner was already there. In case that was accepted, there would not have been an occasion for issuing the order Ext.P22 removing the petitioner from the post of Regional Director. In Ext.P24 order, though passed subsequent to the issuance of the memo initiating action against the petitioner, it is already directed that Ext.P22 order can have the effect of providing a Chief Superintendent in the light of the ensuing examination, in order to see that the examinations are in no way affected on account of the disputes between the 2[nd] respondent and the petitioner. Such an order was passed taking into account the action taken by the 2[nd] respondent at a time when the interim orders passed by this Court were in force. 11 W.P(C) No.34601 of 2017-A 16. Even though the respondents have stated that a person with the qualification of the petitioner in Physics, does not have any post in the Centre, the order of suspension is not passed on that ground. The question whether the petitioner is qualified or not is a matter to be considered separately. 17. As far as the present case is concerned, even if the order of suspension was issued before this Court passed Ext.P27 order, the circumstance leading to Ext.P22 order continues to be the same. As the very basis of the order for removing the petitioner from the post of Regional Director was that he did not submit his willingness to continue under the 2[nd] respondent. Such an order of removal cannot stand in view of the fact that this Court had already directed the continuance of the petitioner in his respective post. The allegations in Ext.P27 relate to the handing over charge of the post of Regional Director to Sri Rajendran. It also refers to the delay occurred in the disbursement of salary. In the counter affidavit it is stated that the petitioner continued to put signatures in the salary bills. When this Court had already found that the effect of the order removing him from the post of Regional Director will enable the respondents to allow Sri Rajendran as Chief Superintendent alone, for all other purposes, the W.P(C) No.34601 of 2017-A 12 petitioner will continue as Regional Director. In these circumstances, even if the order declaring the effect of Ext.P24 was passed at a time when the memo Ext.P25 was already issued or that the order of suspension also was issued before Ext.P24 interim order was passed, cannot change the circumstances. The respondents do not have a case that there was any hindrance to the conduct of the examination. It is also seen that the 2[nd] respondent did not wait even for the 7 days it chose to grant the petitioner to submit his explanation. 18. The 2[nd] respondent has taken action against the petitioner when various interim orders passed by this Court from 28.07.2017 onwards, were in force. While directing that the service conditions of the petitioner and others shall not be varied and the taking over shall not stand in the way of the petitioner and others in continuing in the respective posts, it was also ordered that the undertaking required from the petitioner and others shall be subject to all their contentions. The rejection of the conditional option and the removal of the petitioner from the post of Regional Director are all ordered when those orders were in force. Therefore, even without going into the question whether the 2[nd] respondent is a State or whether the fundamental right of the petitioner was violated by the suspension, when the 13 W.P(C) No.34601 of 2017-A order of suspension is ordered based on an order which should not have been passed when the aforesaid interim orders were in force, the 2[nd] respondent cannot be permitted to place the petitioner under suspension on that ground. 19. Ext.P27 order is quashed. It is made clear that this will not prevent the respondents from initiating any disciplinary action against the petitioner in accordance with law, if circumstances warrant. 20. The contention regarding the maintainability of writ petition against the 2[nd] respondent is left open. In the above circumstances, the writ petition is allowed to the above extent. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_