Dr. Manga P.J. v. Kerala Agricultural University & The Chancellor, Kerala Agricultural University

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **THURSDAY, THE 12TH DAY OF JUNE 2014/22ND JYAISHTA, 1936** ## **OP.No. 20361 of 2000 (Y)** **-------------------------** ## **PETITIONER:** **-----------------------** **DR.(MRS.) MANGA. P.J. ASSISTANT PROFESSOR, COLLEGE OF AGRICULTURE, NILESHWAR, RESIDING AT PERUNNEPARAMBIL HOUSE, VELLANIKKARA. P.O. THRISSUR** ## **BY ADV. SRI.K.P.DANDAPANI (SR.)** ## **RESPONDENT:** **----------------------** **1. KERALA AGRICULTURAL UNIVERSITY, REPRESENTED BY ITS REGISTRAR, VELLANIKKARA. P.O. THRISSUR DISTRICT** **2. THE CHANCELLOR, KERALA AGRICULTURAL UNIVERSITY, RAJ BHAVAN, THIRUVANANTHAPURAM** ## **BY ADV. SRI.N.D.PREMACHANDRAN, SC, AGRL.UNTY.** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP.No. 20361 of 2000** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **P1 : TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT ON 18.05.95** **P2 : TRUE COPY OF LEAVE APPLICATION SUBMITTED BY THE PETITIONER, DATED 18.05.95 ALONG WITH EXT.P1** **P3 : PHOTOCOPY OF REMINDER SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT ON 22.08.95** **P4 : PHOTOCOPY OF MEDICAL CERTIFICATE DATED 21.08.95 OF THE ASSISTANT SURGEON, DISTRICT HOSPITAL, THRISSUR, ISSUED TO THE PETITIONER.** **P5 : PHOTOCOPY OF LETTER DATED 01.09.95 OF THE SPECIAL OFFICER, KERALA AGRICULTURAL UNIVERSITY, PADNEKAD, NILESHWAR, ISSUED TO THE IST RESPONDENT VIDE REF. NO. CAN(B1) 23/95.** **P6 : PHOTOCOPY OF MEMO OF CHARGES NO.GA/D1/19087/95 DATED 23.11.1995 ALONG WITH STATEMENT OF ALLEGATIONS ISSUED BY THE IST RESPONDENT TO THE PETITIONER.** **P7 : PHOTOCOPY OF EXPLANATION SUBMITTED BY THE PETITIONER ON 28.12.1995 BEFORE THE IST RESPONDENT.** **P8 : PHOTOCOPY OF MEDICAL CERTIFICATE ISSUED BY DR. R. TESCHHKE, CITY HOSPITAL, HANAU, ON 1.11.95 TO THE PETITIONER.** **P9 : PHOTOCOPY OF MEDICAL CERTIFICATE DATED 27.12.1995 ISSUED BY DR. J. KONSTANTINIDIS TO THE PETITIONER.** **P10 : TRUE COPY OF ORDER NO. GA/D1/19087/95 DATED 14.02.1996 OF THE 1ST RESPONDENT ISSUED TO THE PETITIONER.** **P11 : TRUE COPY OF LETTER DATED 18.03.96 SUBMITTED BY THE PETITIONER TO DR. A. I. JOSE, ASSOCIATE DEAN, COLLEGE OF HORTICULTURE, VELLANIKKARA. P.O.** ## **OP.No. 20361 of 2000** **P12 : TRUE COPY OF SHOW-CAUSE NOTICE NO. GA/D1/19087/95 DATED 2.8.96 OF THE IST RESPONDENT ISSUED TO THE PETITIONER.** **P13 : PHOTOCOPY OF ENQUIRY REPORT VIDE NO. GA/D1/19087/95 DATED 22.7.96 BY DR. A.I. JOSE, ASSOCIATE DEAN, COLLEGE OF HORTICULTURE, VALLNIKKARA. P.O.** **P14 : TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT ON 25.8.96** **P15 : PHOTOCOPY OF ORDER NO. GA/D1/19087/95/D. DIS DATED 18.11.1996 OF THE IST RESPONDENT ISSUED TO THE PETITIONER.** **P16 : TRUE COPY OF APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 16.2.1997.** **P17 : TRUE COPY OF JUDGMENT DATED 8.9.97 IN O.P NO. 15798/1997 E OF THIS HONOURABLE COURT.** **P18 : TRUE COPY OF INTIMATION DATED 15.11.1997 RECEIVED BY SHRI. N. SUGATHAN, ADVOCATE FROM THE SECRETARY TO THE 2ND RESPONDENT, VIDE NO. GS5-800/97.** **P19 : TRUE COPY OF ARGUMENT NOTES SUBMITTED ON BEHALF OF THE PETITIONER BY HER COUNSEL BEFORE THE 2ND RESPONDENT ON 9.12.1997.** **P20 : TRUE COPY OF COVERING LETTER NO. GS5-800/97 DATED 15.1.1998 RECEIVED BY SHRI. N. SUGATHAN, ADVOCATE, FROM THE SECRETARY TO GOVERNOR, ENCLOSING ORDER DATED 7.1.1998.** **P21 : PHOTOCOPY OF ORDER DATED 7.1.1998 IN PETITION NO. GS5800/97 PRONOUNCED BY THE 2ND RESPONDENT.** **P22 : PHOTOCOPY OF ORDER NO. GA/A2/45431/95 DATED 12.3.1996 OF THE 1ST RESPONDENT UNIVERSITY ISSUED TO SHRI. A. SURENDRAN.** **P22(a) : PHOTOCOPY OF ORDER, GA/C3/30024/96 DATED 13.9.96 OF THE 1ST RESPONDENT ISSUED TO DR. S. RAMKUMAR** ## **OP.No. 20361 of 2000** **P22(b) : PHOTOCOPY OF ORDER NO. GA/C3/30024/96(ii) DATED 21.8.1996 OF THE 1ST RESPONDENT ISSUED TO DR. C.R. GIRIJA** **P22(c) : PHOTOCOPY OF ORDER NO. GA/C3/13927/96/K. DIS. DATED 28.6.1996 ISSUED BY THE IST RESPONDENT TO DR. SHYLA PRAKASH** **P22(d) : PHOTOCOPY OF ORDER NO. GA/C1/16506/95/K. DIS. DATED 25.6.1996 OF THE 1ST RESPONDENT ISSUED TO SHRI. C.P. MOHAMMED.** **P22(e) : PHOTOCOPY OF ORDER NO. GA/L(3)-49753/97 DATED 24.2.2000 OF THE IST RESPONDENT ISSUED TO DR. REENA GRITTLE PINHERO.** **RESPONDENTS' EXHIBITS : NIL** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **smv** ## **P.B.SURESH KUMAR, J.** ----------------------------------------------O.P. No.20361 of 2000 ----------------------------------------------Dated this the 12[th] day of June, 2014 ## **J U D G M E N T** The grievance voiced by the petitioner in this writ petition concerns the disciplinary proceedings initiated against her by the first respondent, hereinafter referred to as 'the University', for short. Petitioner was an Assistant Professor in the College of Agriculture at Nileshwar, under the University. She was attached to the Department of Physical Education. On 18.05.1995, she applied for leave without allowance for a period of 3 years from 01.07.1995, to join her spouse abroad. The leave sought for by the petitioner was not granted. Immediately thereafter, she again applied for leave without allowance for a period of 3 years from 01.09.1995, for the very same purpose. While the said application was pending, without awaiting for the sanction of the leave, she proceeded to Germany on 01.09.1995. When the petitioner left the country, disciplinary proceedings have been initiated against her and Exhibit P6 memo of charges was issued. The following were the charges levelled against the O.P. No.20361 of 2000 2 petitioner; 1. Unauthorisedely left the country on 01.09.1995. 2. Staying abroad from 01.09.1995 without proper sanction and permission of the University warranting the punishment of termination of service in the University. As the explanation offered by the petitioner to the memo of charges was not satisfactory, the University ordered an enquiry and an Enquiry Officer was appointed. The petitioner did not participate in the enquiry. Instead, she sent Exhibit P11 explanation to the Enquiry Officer. The Enquiry Officer, in the circumstances, based on the material placed before him, came to the conclusion that the petitioner is guilty of the charges levelled against her. Despite the said finding, the Enquiry Officer has recommended that the petitioner be given an opportunity to rejoin duty. It was also recommended that if she is not rejoining duty, within the time granted to her, she may be terminated from service. 2. The University accepted the report of the Enquiry Officer and directed the petitioner to report for duty within six O.P. No.20361 of 2000 3 weeks. Petitioner did not join duty, even thereafter. Instead, she again sought for time to rejoin duty. The University, in the circumstances, issued Exhibit P15 order, by which the service of the petitioner was terminated with effect from 01.09.1995. Petitioner challenged Ext.P15 order before the second respondent by way of an appeal, invoking the powers of the second respondent under statute 54 of the Kerala Agricultural University Statutes, the same was dismissed as per Exhibit P21 order. Exhibits P15 and P21 orders are impugned in this writ petition. 3. A counter affidavit has been filed by the University stating that since the petitioner did not dispute the fact that she left India and stayed abroad without her application for leave being sanctioned, it is a case where the charges are admitted and therefore, she cannot be heard to contend that she did not commit any misconduct at all. It was also stated by the University in the counter affidavit that since she did not join duty, even after she was found guilty of the charges, Exts.P15 and 21 do not call for any interference at all. O.P. No.20361 of 2000 4 4. Learned counsel appearing for the petitioner contended, relying on the decision of the Supreme Court in **State Bank of India and others v. Narendra Kumar Pandey** [(2013) 2 Supreme Court Cases 740], that there is no material on record before the Enquiry Officer to arrive at a conclusion that the petitioner is guilty of the charges levelled against her and that even in an ex parte enquiry, some evidence is necessary to establish the charges. He has also relied on the decision of the Supreme Court in **State of Uttar Pradesh and others v. Saroj Kumar Sinha** [(2010) 2 SCC 772] and contended that the Enquriy Officer did not fix any date for appearance to answer the charges and therefore the enquiry is vitiated. 5. Before I deal with the arguments advanced by the learned counsel for the petitioner, it is worth mentioning that under Statute 54 of the Statutes, an appeal should be filed within 60 days. The appeal of the petitioner was sent beyond the time limit prescribed in the Statues. Nevertheless, the appellate authority considered the appeal, on its merits and came to the conclusion that Exhibit P15 order is in order. Exhibit P21 is the O.P. No.20361 of 2000 5 order issued by the appellate authority. In Exhibit P21, it is found by the appellate authority that the petitioner had gone to Germany without the permission of the University and stayed there without getting the leave sanctioned. It is also found by the appellate authority in Exhibit P21 order that the petitioner had not been diligent at all in attending her duties and since she was the Physical Education Teacher, the interests of the students have been affected on account of her absence in the college. The appellate authority took note of the fact that the petitioner, after she joined the college on 30.01.1991, has been continuously absent and she reported for duty only occasionally. The appellate authority also took note of the fact that the petitioner was earlier sanctioned leave without allowance for a period of 3 years and 9 months to join her spouse abroad and while she was continuing on the said leave, she had to be recalled, in the exigencies of service and therefore the University cannot be found fault with for having not sanctioned the leave applied for by the petitioner. The appellate authority found that the absence of the Physical Education Teacher in the college affected the academic O.P. No.20361 of 2000 6 programmes of the students in the college. The appellate authority also observed that the medical certificates produced by the petitioner in the disciplinary proceedings did not indicate that there was an urgent need for the petitioner to leave India, without waiting for a decision on an application for leave. 6. At the outset, I may point out that despite the finding that the charges levelled against the petitioner were established in the enquiry, the University on the basis of the recommendation of the Enquiry Officer, gave yet another chance to the petitioner to join duty. Ext.P12 is the communication issued to the petitioner for joining duty. In the nature of the charges levelled against the petitioner, in view of Exhibit P12 communication, petitioner cannot be heard at all to contend that the enquiry is vitiated in any manner whatsoever, as the said communication would have had the effect of exonerating the petitioner from the charges, if she had joined duty pursuant to the same. It is thus evident that the petitioner is only finding one or other reason to stay back in Germany and her attempt is only to protect her employment in some or other O.P. No.20361 of 2000 7 way till she decides to come back to India. In Exhibit P21, the appellate authority, dealt with each and every contention raised by the petitioner. Exhibits P15 and P21 orders, in the circumstances, do not suffer from any infirmity in law. 7. The contention of the petitioner that she was not given the date of appearance before the Enquiry Officer is also unsustainable. The petitioner had no case before the appellate authority that she was not given the date of appearance by the Enquiry Officer and therefore she could not appear before the Enquiry Officer. Further, Ext.P11 letter addressed by the petitioner to the Enquiry Officer indicates that the petitioner was aware of the proceedings initiated against her and that she was not prepared to participate in the enquiry. The contention of the petitioner that there is no material on record before the Enquiry Officer to arrive at a conclusion that the petitioner is guilty of the charges levelled against her and that even when an enquiry is conducted ex parte, the Enquiry Officer is bound to render his finding based on materials on record, is also not sustainable in law. As I indicated earlier, O.P. No.20361 of 2000 8 the charges framed against the petitioner are that she left India unauthorisedely on 01.09.1995 and that she stayed abroad from 01.09.1995, without proper permission from the University. Petitioner does not dispute those charges at all. In other words, she admits the charges, and the substance of her contentions is only that her absence from the college was not deliberate and that it was on account of her ailments. As such there is no substance in the contention. For all these reasons, I find no merit in the writ petition. The writ petition is accordingly dismissed. **P.B.SURESH KUMAR, JUDGE** Smv