Dr. M.P. Anitha v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** **& THE HONOURABLE MRS. JUSTICE SHIRCY V.** ## **WEDNESDAY, THE 16TH DAY OF NOVEMBER 2016/25TH KARTHIKA, 1938** ## **WA.No. 881 of 2015 () IN WP(C).4388/2015** **------------------------------------------** ## **AGAINST THE ORDER/JUDGMENT IN WP(C) 4388/2015 of HIGH COURT OF KERALA DATED 1.4.2015** ## **APPELLANT/PETITIONER:** **-----------------------** ## **DR.M.P.ANITHA** **PRINCIPAL (UNDER SUSPENSION) SNM TRAINING COLLEGE MOOTHAKUNNAM, ERNAKULAM - 683 516, RESIDING AT 'AJAY', PERIYAR ENCLAVE, MOOTHAKUNNAM P.O., N. PARAVUR, ERNAKULAM DISTRICT 683 516.** ## **BY ADV. SRI.M.P.PRAKASH** ## **RESPONDENTS/RESPONDENTS:** - **--------------------------** **1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM - 695 001.** **2. VADAKKEKKARA HINDU MATHA DHARMA PARIPALANA SABHA MOOTHAKUNNAM, NORTH PARAVUR, ERNAKULAM - 683516 REPRESENTED BY IT'S SECRETARY.** **3. MANAGER SNM TRAINING COLLEGE, MOOTHAKUNNAM, ERNAKULAM - 683516.** **4. SNM TRAINING COLLEGE MOOTHAKUNNAM REPRESENTED BY IT'S PRINCIPAL IN CHARGE, NORTH PARAVOOR, ERNAKULAM - 683 516.** **5. MAHATMA GANDHI UNIVERSITY PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM, REPRESENTED BY ITS REGISTRAR.** **6. VICE CHANCELLOR MAHATMA GHANDHI UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM.** **WA.No. 881 of 2015 () IN WP(C).4388/2015** **-2-** **7. MR.K.S.BALASUBRAMANIAN S/O. SANKARA NARAYANAN, MANAGER, SREE NARAYANA MANGALAM GROUP OF EDUCATIONAL INSTITUTION, MOOTHAKUNNAM, NORTH PARAVOOR, ERNAKULAM - 683 516.** **8. MR.PRATAP ABRAHAM VARGHESE ADVOCATE AND ENQUIRY OFFICER, MANGATHAMCHERIL HOUSE, NO.. 1, SUBASH NAGAR, EDAPALLY, KOCHI - 682 024.** **R2-R 4,R 7 BY ADV. SRI.K.JAJU BABU (SR.) R2 -R 4,R 7 BY ADV. SMT.M.U.VIJAYALAKSHMI R5,R 6 BY ADV. SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY R5,R 6 BY ADV. SRI.VIVEK VARGHESE P.J., SC, M.G.UNIVERSITY R8 BY ADV. ADV PREETHY RAMAKRISHNAN (B/O) R5,R6 BY ADV. SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY R BY GOVERNMENT PLEADER SR PAUL ABRAHAM VAKKANAL R BY SRI.P.RAMAKRISHNAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WA.No. 881 of 2015 () IN WP(C).4388/2015** ## **APPENDIX** ## **PETITIONERS ANNEXURES** ## **ANNEXURE A1** **COPY OF LETTER DATED 16.4.2015 OF THE THIRD RESPONDENT.** ## **RESPONDENTS ANNEXURES** **NIL** **TRUE COPY** **P.A TO JUDGE** ## **SMM** ## **ANTONY DOMINIC & SHIRCY.V,JJ -----------------------------------** ## **W.A.No. 881 of 2015** **-----------------------------------------------Dated this the 16[th] day of October, 2016** ## **JUDGMENT** ## Antony Dominic,J While the appellant was the Principal of SNM Training College, Moothakunnam in Ernakulam District, on allegations of misconduct, by order dated 5.5.2014, she was placed under suspension. When the Manager proposed to impose the punishment of dismissal, the appellant approached this Court by filing W.P.(C) No.29124 of 2014. By Ext.P24 judgment, the writ petition was disposed of, giving liberty to the disciplinary authority to issue memo of charges in terms of the Mahatma Gandhi University Statutes, 1997 and proceed further by conducting an enquiry in compliance with the statutory rules. 2. Thereafter Ext.P25 memo of charges containing 6 allegations of misconducts along with the statement of allegations was issued to the appellant. She submitted W.A.No.881 of 2015 2 her written statement. By Ext.P28, the disciplinary authority rejected her written statement of defence and conveyed its decision to proceed further with the disciplinary action. It was at that stage the appellant filed W.P.(C)No.4388/2015. In the writ petition, among other reliefs, the appellant sought quashing of Exts.P25 and P28, as according to her, Ext.P25 contained only vague allegations which are not misconducts in terms of the Rules governing the conditions of her service. By the judgment under appeal, the writ petition was disposed of, leaving it open to the appellant to raise her contentions before the enquiry officer and directing that she be reinstated in service, subject to the condition that she shall not discharge duties and responsibilities of the Principal till the outcome of the disciplinary proceedings. 3. It is stated that subsequently, disciplinary proceedings were completed and the disciplinary authority imposed a punishment of barring two increments and the appellant has now been reinstated as Principal. It is W.A.No.881 of 2015 3 aggrieved by the aforesaid judgment, this appeal is filed. 4. We heard the counsel for the appellant, the learned Senior Counsel appearing for respondents 2 to 4 and 7, the learned standing counsel for the University and the learned counsel appearing for the eighth respondent, the enquiry officer. 5. At the outset itself, we may make it clear that in the writ petition and in this appeal neither the proceedings of the enquiry officer which culminated in his report finding the appellant guilty of the misconducts nor the order imposing punishment are under challenge. 6. The contention raised by the learned counsel for the appellant is that the misconducts that were alleged are not acts of misconducts as contemplated in the University Statutes justifying disciplinary action. According to him, misconducts attracting proceedings under Statute 75 of Chapter 45 are enumerated in Statute 39 thereof and that the allegations in Ext.P25 memo of charges do not contain any act attracting the misconducts W.A.No.881 of 2015 4 enumerated in Statute 39. Therefore according to him, since Ext.P25 memo of charges do not disclose any misconduct, Exts.P25 and P28 ought to be quashed. 7. On the other hand, the learned Senior Counsel appearing for the management referred us to the allegations contained in the memorandum of charges itself and contended that a reading of the memorandum of charges itself would show that the acts alleged against the delinquent are misconducts, entitling the disciplinary authority to proceed with the disciplinary action. 8. The second contention raised by the counsel for the appellant was that the allegations contained in the memorandum of charges were vague and incapable of effective defence and therefore, memorandum of charges is illegal. The counsel also contended that the documents relied on in the memorandum of charges were not supplied to the delinquent and that therefore, there was violation of principles of natural justice. 9. We have considered the submissions made. W.A.No.881 of 2015 5 10. We shall first deal with the contention of the learned counsel for the appellant that the allegations contained in Ext.P25 memorandum of charges do not disclose misconducts entitling the disciplinary authority to proceed with the disciplinary action. Section 63 of the Mahatma Gandhi University Act 1985 ('the Act 1985' for short), entitles the Educational Agency to place the teacher of a private college under suspension at any time, when any disciplinary proceedings is proposed to be initiated or when such disciplinary proceedings are pending. Section 73 of the Act provides that the government shall, in consultation with the University and the representatives of the teachers, frame a Code of Conduct to be observed by the teachers of the government and private colleges. Sub section (2) further provides that any teacher of a Government or private college who contravenes any of the provisions of the Code of conduct shall be liable for disciplinary action which may involve the imposition of major penalty. Chapter 45 of W.A.No.881 of 2015 6 the Mahatma Gandhi University Statutes, 1997 incorporate the conditions of service of teachers and members of non teaching staff in private colleges. Statute 39 states that the lapses of the teachers in a private college mentioned therein shall constitute improper conduct inviting disciplinary action. Statute 39 reads thus:- “39. Certain lapses of teachers to constitute improper conduct: The following lapses on the part of a teacher in a private college shall constitute improper conduct inviting disciplinary action- (1) failure to perform his academic duties such as coming to the class without preparation for conducting lecture classes demonstration, assessment, guidance, invigilation, etc; (2) gross partiality in assessment of students deliberately over marking or under marking or attempting at victimisation on any ground whatsoever; (3) inciting students against other students or colleagues or against the University or the State Government or the Central Government; Provided that expression of difference of opinion on principles at a seminar, or other place, where students are present shall not be deemed to constitute improper conduct; (4) raising questions of caste,creed, religion race W.A.No.881 of 2015 7 or sex in his relationship with his colleagues and trying to use the above consideration for the improvement of his prospects; (5) refusal to carry out the decisions by appropriate administrative or academic bodies or functionaries of the Univers ity which are not against the provisions of any law for the time being in force.” Part D of Chapter 45 prescribes the procedure to be followed in disciplinary action against the teachers of the private colleges. 11. Statute 73 states that the penalties provided therein may, for good and sufficient reasons and as provided therein, be imposed on teachers of private colleges. Statute 75 (1) provides that no order imposing any of the penalties specified in items (iv) to (vii) of Statute 73 shall be passed except after an enquiry held in accordance with the provisions of the Statute. As per Statute 75(2), whenever a complaint is received or on consideration of the report of an investigation or for other reasons, the Educational Agency is satisfied that there is a prima facie case for taking action against the teacher of a private college, the authority shall frame definite charge W.A.No.881 of 2015 8 or charges which shall be communicated to the teacher of a private college, together with the statement of allegations on which each charge is based, and of any other circumstance which it is proposed to take into consideration. Statute 75(2) reads thus: “Whenever a complaint is received or on consideration of the report of an investigation or for other reasons, the Educational Agency is satisfied that there is a prima facie case for taking action against the teacher of a private college, such authority shall frame definite charge or charges which shall be communicated to the teacher of a private college, together with the statement of the allegations on which each charge is based, and of any other circumstance which it is proposed to take into consideration in passing orders on the case. The teacher concerned of the private college shall be required to submit within a reasonable time to be specified in that behalf a written statement of his defense and also to state whether he desires to be heard in person. The teacher of the private college may, on his request, be permitted to peruse or take extract from the records pertaining to the case for the purpose of preparing his written statement, provided that the Educational Agency, may, for reasons to be recorded in writing, refuse him such access if in its opinion such records are not strictly relevant to his case. After the written statement is received within the time allowed, the Educational Agency is satisfied that a formal inquiry shall be held into the W.A.No.881 of 2015 9 conduct of the teacher of the private college, it may pass an order accordingly.” 12. In so far as this case is concerned, as we have already stated that the contention raised by the learned counsel for the appellant is that the allegations contained in Ext.P25 are not acts of misconducts enumerated in Statute 39 of Chapter 45 and that therefore, the disciplinary action is illegal. In order to better appreciate this contention, the allegations contained in Ext.P25 are extracted below for reference “1) That you Smt.M.P. Anitha while working as Principal, SNM Training College, Moothakunnam, without any authority and also without the knowledge and consent of the management permitted the Alumni Association (Old Students Association) to conduct meeting in the College Seminar Hall on 11.1.2014, which amounts to dereliction of duty, negligence and insubordination. 2) That you Smt.M.P. Anitha while working as Principal, SNM Training College, Moothakunnam, unauthorizedly kept in your custody from 6.7.2011 till 6.3.2014, Bankers Cheque No.418704 dated 21.3.2011 for Rs.1,86,600/- issued by Bank of Baroda, Alwaye in favour of the college and thereby committed grave misconduct of temporary misappropriation and financial W.A.No.881 of 2015 10 irregularity causing huge loss and damage to the College/Management.” 3) That you Smt.M.P.Anitha while working as Principal, SNM Training College, Moothakunnam, unauthorizedly kept in your custody from 25.11.2011 to 6.3.2014, bankers Cheque No.648042 dated 28.9.2011 for Rs.1,95,000/- drawn by State Bank of Travancore, Ambalamugal in favour of the Secretary, HMDP Sabha, thereby committed gross misconduct of temporary misappropriation and financial irregularity causing huge loss and damage to the College/Management.” 13. A reading of the allegations of misconducts contained in Ext.P25, would prima facie show that these allegations would not come within the scope of any of the acts enumerated in Statute 39. To substantiate this contention, the learned counsel for the appellant relied on the judgment of the Apex Court in _**A.L.Kalra vs. Project and Equipment Corporation of India Ltd. (1984 (3) SCC 316)**_ wherein paragraph 22 of the judgment, it is inter alia held thus. “Rule 4 bears the heading 'General'. Rule 5 bears the heading 'Misconduct'. The draftsmen of the W.A.No.881 of 2015 11 1975 Rules made a clear distinction about what would constitute misconduct. A general expectation of a certain decent behaviour in respect of employee keeping in view Corporation culture may be a moral or ethical expectation. Failure to keep to such high standard of moral, ethical or decorous behaviour befitting an officer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of the enumerated misconduct in Rule 5. Any attempt to telescope Rule 4 into Rule 5 must be looked upon with apprehension because Rule 4 is vague and of a general nature and what is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. It is not necessary to dilate on this point in view of a recent decision of this Court in Glaxo Laboratories (I)Ltd. v. Presiding Officer, Labour Court, Merrut where this Court held that “everything which is required to be prescribed has to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into W.A.No.881 of 2015 12 account as varying what is prescribed. In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to to be enumerated in the relevant standing order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty.” Rule 4 styled as 'General' specifies a norm of behaviour but does not specify that its violation will constitute misconduct. In Rule 5, it is nowhere stated that anything violative of Rule 4 would be per se a misconduct in any of the sub-clauses of Rule 5 which specifies misconduct. It would therefore appear that even if the facts alleged in two heads of charges are accepted as wholly proved, yet that would not constitute misconduct as prescribed in Rule 5 and no penalty can be imposed for such conduct. It may as well be mentioned that Rule 25 which prescribes penalties specifically provides that any of the penalties therein mentioned can be imposed on an employee for misconduct committed by him. Rule 4 does not specify a misconduct.” 14. Counsel also referred us to the judgments of Apex Court in _**Vijay Singh vs. State of Uttar Pradesh and others [2012 (5) SCC 242]**_ and _**Vinod Kumar vs. State of Haryana and Others [2013(16)SCC**_ W.A.No.881 of 2015 13 _**293** ]_ . Reference was also made to the judgment of this Court in _**Fr.Augustine Mathew vs. Devamatha College**_ _**[2002 (3)KLT 509]**_ . A reading of these judgments would show that the Apex Court and this Court has in fact followed the principles laid down in the judgment in A.N.Kalra's case (supra) in these judgments. 15. In the aforesaid factual background, the question to be considered is whether the allegations contained in Ext.P25 are acts of misconducts entitling the disciplinary authority to initiate the disciplinary action against the first respondent. While it is true that the delinquent facing a disciplinary action is entitled to know the specific acts that are alleged against him as misconducts, this court cannot ignore the fact, that the term misconduct is incapable of precise definition, and that, on reflection it receives its connotation from the context, the delinquency in its performance and its effect on the discipline in the workplace. It may involve moral turpitude, improper or wrong transgression of established W.A.No.881 of 2015 14 and definite rule of action or code of conduct, but not mere error of judgment, carelessness or negligence in performance of the duty. The act complained should bear forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. (See in this connection judgment in _**State of Punjab and Others vs. Ram Singh Ex-constable [1992 4SCC 54 and Radhakrishnan M. vs. Kerala State Civil Supplies Corporation, Kochi and Another [2015 (4) KHC 652].**_ 16. It also needs to be mentioned that, in the Apex Court judgment in _**Bank of India and T.S. Kelawala and others vs. S.U.Motors(P) Ltd and their workmen (1990 (2) LLJ 39(SC))**_ it was held that the service conditions are not expected to visualise and provide for all situations and hence, when they are silent on unexpected eventualities, the management should be deemed to have W.A.No.881 of 2015 15 the requisite power to deal with the situation consistent with law and the other service conditions and to the extent it is reasonably necessary to do so. The principles laid down in T.S.Kelawala (supra) was affirmed by the constitution bench in its judgment in _**Syndicate Bank vs. K.Umesh Nayak [1994 (5)SCC 572]**_ Therefore, even if it is accepted that the acts alleged in Ext.P25 are not enumerated in Statute 39 of Chapter 45, that by itself such acts are not subversive of discipline and would not deprive the disciplinary authority of its inherent power to initiate disciplinary action against employee. Therefore, we are not prepared to hold that the allegations in Ext.P25 did not entitle the disciplinary authority to initiate disciplinary action against the first respondent. 17. In our view Statute 39 is not exhaustive. This is evident from statute 73, which entitles the disciplinary authority to impose the punishment mentioned therein for “good and sufficient reasons”. This position is also clarified in Statute 75(2) which provides that whenever a W.A.No.881 of 2015 16 complaint is received on or consideration of the report of the investigation and for other reasons, the Educational Agency is satisfied that there is a prima facie case against the teacher, it shall frame definite charges. This therefore means that even for misconducts which are not enumerated in Statute 39, the disciplinary authority is entitled to proceed against the delinquent. On the other hand, if the narrow construction of the provisions of the Statute canvassed before us is accepted that would lead to illogical results and the disciplinary authority would be virtually prevented from initiating against delinquent teachers for various misconducts, for the reason that they are not enumerated in Statute 39. Since that cannot be intention of the Statutes, we are not prepared to accept the restricted and narrow interpretation pressed into service by the learned counsel for the appellant. 18. The second contention raised by the learned counsel for the appellant was that the charges contained in Ext.P25 are vague and incapable of defence. It is true W.A.No.881 of 2015 17 that from the memorandum of charges and statement of allegation served, the delinquent is entitled to know the specific charges which he is called upon to answer. It is therefore that Statute 75 provides that the disciplinary authority should frame definite charges against the delinquent. However, the question whether the charge is vague and incapable of defence, causing prejudice to the delinquent are matters which are required to be pleaded and proved by the delinquent before the Enquiry Officer. In so far as this case is concerned, as we have already stated, enquiry has already been completed and punishment has also been imposed. The validity of the enquiry is not challenged before us and at any rate, appellate remedies are to be pursued by the appellant. Therefore, it is upto the delinquent to urge this contention before the appellate authority. 19. The other contention raised by the learned counsel for the appellant was with respect to the non supply of documents relied on and the consequent W.A.No.881 of 2015 18 violation of principles of natural justice. This, according to us, is also not an issue which can be decided, at least at the first instance, in a proceedings under Article 226 of the Constitution of India. For all these reasons, we reject the first contention and leave it open to the appellant to urge the second and third contentions before the appellate authority. Appeal fails and is dismissed. **ANTONY DOMINIC JUDGE** **SHIRCY.V JUDGE** smm