Dr. P.K. Pokker v. University of Calicut, Vice-Chancellor & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 WP(C).No. 23034 of 2011(D) -------------------------CRMP.8/2010 of ENQ.COMMR. & SPL.JUDGE,TRIVANDRUM .................... PETITIONER(S): - --------------- DR.P.K.POKKER, PROFESSOR, DEPARTMENT OF PHILOSOPHY, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., MALAPPURAM. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): --------------- 1. THE UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, THENHIPALAM, MALAPPURAM-676 505. 2. THE VICE CHANCELLOR, UNIVERSITY OF CALICUT, THENHIPALAM, MALAPPURAM-676 505. 3. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, CULTURAL AFFAIRS @ DEPARTMENT, THIRUVANANTHAPURAM-695001. 4. THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM-695001. ADV. SRI.SANTHOSH MATHEW,SC,CALICUTY UNIVERS FOR R1-2 GOVERNMENT PLEADER FOR R3 & 4 SHRI P. FAZIL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/11/2011, THE COURT ON 12/12/2011 DELIVERED THE FOLLOWING: ## APPENDIX EXT.P1-TRUE COPY OF THE ORDER ISSUED BY GOVERNMENT DT.1.11.2006 EXT.P2-TRUE COPY OF PROFILE OF THE PETITIONER's EXT.P3-TRUE COPY OF THE BROCHURE OF THE BOOK FESTIVAL EXT.P4-TRUE COPY OF REPORT RECEIVED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT. EXT.P5-TRUE COPY OF ORDER DATED 29.10.2007 EXT.P6-TRUE COPY OF ORDER IN CRL.M.P. 8/2010 EXT.P7-TRUE COPY OF THE COMMUNICATION ISSUED BY R3 DT.25.6.2011 EXT.P8-TRUE COPY OF LETTER ISSUED BY R3 DATED 29.6.2011 EXT.P9-TRUE COPY OF ORDER ISSUED BY THE UNIVERSITY DT.19.8.2011 EXT.P10-TRUE COPY OF NEWS ITEM APPEARED IN THE MALAYALA MANORAMA DAILY EXT.P11-TRUE COPY OF LETTER ISSUED BY THE GOVERNMENT DT.18.5.2010 RESPONDENTS' EXTS: EXT.R1(1)-TRUE COPY OF JUDGMENT IN WPC 16372/2007 OF THIS COURT EXT.R1(2)-TRUE COPY OF NOTE OF THE UNIVERSITY RELATING TO THE SUBJECT MATER. EXT.R4(A)-TRUE COPY OF COMPLAINT IN CRL.MP 8/2010 EXT.R4(B)-TRUE COPY OF LETTER DATED 4.3.2011 OF THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU ANNEXURE R1(1)-TRUE COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE, CALICUT UNIVERSITY HELD ON 23.9.2011 // TRUE COPY // P.S. TO JUDGE ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 23034 of 2011-D** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 12th day of December, 2011.** ## **JUDGMENT** The legality of the order of suspension issued by the first respondent University as per Ext.P9, is under challenge in this writ petition. 2. The petitioner, at the time of suspension, was working as Professor in the Department of Philosophy under the first respondent University. The petitioner had a stint as Director of the Kerala State Institute of Languages, when he was appointed as such on 11.11.2006 by way of deputation. He took charge therein on 1.12.2006. He rejoined the University on 1.6.2011. 3. According to the petitioner, the order of suspension is vitiated on several grounds: (a) Due to lack of power for the Vice Chancellor who invoked the power under Section 10(13) of the Calicut University Act; and (b) Non consideration of relevant materials and consideration of irrelevant materials. 3. The background under which the order of suspension is issued, show that a complaint was filed in the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram, against him and the Assistant Director and another, which was subjected to an enquiry. Ext.P6 is the order passed wpc 23034/2011 2 by the Enquiry Commissioner and Special Judge, finally. It is pointed out that after considering the report Ext.P4, submitted by the Enquiry Officer, the Court finally concluded that it is not necessary to initiate any prosecution steps against the petitioner. My attention was invited to Ext.P4 report containing seven allegations. It is submitted that except allegation No.5, the other allegations were reported to be not substantiated. Even with regard to allegation No.5, it is pointed out that the only recommendation was to take disciplinary action. 4. Learned counsel for the petitioner submitted that Exts.P7 and P8 communications issued by the Government which were relied upon by the Vice Chancellor in passing Ext.P9 order, also cannot advance the case of the respondents. Ext.P8 refers to the observations made by this Court in the judgment in W.P.(C) No.16372/2007. It is submitted that the petitioner has filed an appeal against the said judgment. 5. The respondents have filed separate counter affidavits justifying the action. 6. Heard learned counsel for the petitioner, Shri P.C. Sasidharan, learned Standing Counsel for the University Shri Santhosh Mathew and learned Government Pleader, Shri P. Fazil. wpc 23034/2011 3 7. Learned counsel for the petitioner elaborated the contentions and submitted the following: It is submitted that Ext.P4 report will show that the allegations were raised when the State Institute of Languages organised a Text Book Mela at Kozhikode in 2007. The event was an International Book Festival and was conducted in a proper manner. It is submitted that the petitioner and the Assistant Director were named in the report, but a close reading of the report will show that the allegations have been unsubstantiated. 8. My attention was invited to the details of Ext.P4. Allegation No.5 is regarding the expenditure towards the transportation charges, food and accommodation to delegates, etc. A total amount of Rs.41,862/- was incurred towards conveyance charge of vehicles. The allegation was that the vouchers submitted by the travel agency did not contain the registration number of the vehicles and the date of trips performed and that the petitioner sanctioned the amount without examining those details. It is pointed out that regarding accommodation charges also, no serious irregularities have been found. Learned counsel for the petitioner explained that being the Director, he was only sanctioning the payment as cleared by the section concerned. He need not go through the details of the voucher or wpc 23034/2011 4 other details as it is put up before him by the section concerned after processing. It is stated that it is a bonafide act without any criminal intention. As regards allegation No.5, the recommendation by the enquiry officer is to initiate disciplinary action. 9. A reading of Ext.P6 order passed by the Enquiry Commissioner and Special Judge, learned counsel submitted, will show that the learned Judge concluded that there is no criminal intention on the part of the petitioner herein. My attention was invited to para 13 of the order. It is therefore submitted that the letter forwarded by the Government as per Ext.P7 referring to the vigilance enquiry and alleging misappropriation of finds, cannot have any legs to stand. 10. With regard to the observations by this Court in Ext.R1(1) judgment in W.P.(C) No.16372/2007, learned counsel explained that the petitioner who was the third respondent therein, had only signed the counter affidavit and even if it is true that some criticism have been levelled against him, he has filed appeal against it and the same will not warrant any disciplinary action. It is pointed out that the Vice Chancellor invoked the emergency powers under Section 10(13) of the Act and no such situation was available. By referring to the Note file it is pointed out that the notes wpc 23034/2011 5 therein will show that actually the details of the writ petitions concerned were not available and without getting any further details in the matter, the Vice Chancellor passed an order in the file placing the petitioner under suspension. It is therefore submitted that there is total non application of mind in the matter. 11. Reliance is placed on various judgments of this Court to contend for the position that the suspension is beyond jurisdiction; there is no basis for invoking the emergency power and as the Syndicate is the appointing authority, it should have been left to the Syndicate to take a decision. The judgments relied upon are: The unreported judgment in O.P. No.4081/2003, **Dr. Leelakrishnan v. Cochin University** (1997 (1) KLT 281), **State of Orissa v. Bimal Kumar Mohanty** {(1994) 4 SCC 126}, **Surendran v. State of Kerala** (1999 (2) KLJ 1082), **Surendran K. v. Government of Kerala and others** (ILR 2008 (3) Ker. 587) and G **eorge Thomas v. Mahatma Gandhi University** (2009 (2) KLT 591). 12. Learned Standing Counsel for the University submitted that even though the Enquiry Commissioner and Special Judge did not find reasons to initiate criminal prosecution, Ext.P4 will show that there is a recommendation to initiate disciplinary action. It is pointed out that the wpc 23034/2011 6 Government, by Ext.P7, communicated the details of the financial irregularities and requested to expedite steps to initiate departmental action against the petitioner and report compliance about the same. By Ext.P8, after referring to the directions of this Court in a judgment, action was sought in the matter. It is submitted that the contention raised by the petitioner that the details of the judgment were not available, is not correct. A reading of the Note file will show that the Government has forwarded a copy of the judgment along with the letter Ext.P8. Therefore, materials were placed before the Vice Chancellor inviting his attention in the matter. It is submitted that the observations of this Court against the petitioner in Ext.R1(1) judgment are really of very serious nature. This Court had directed strong action to be taken against the petitioner by the Government and when the same is communicated to the University, the University could not have remained idle in the matter. It is therefore submitted that the seriousness of the issue, when informed to the University, the Vice Chancellor exercised the emergency powers. It is also submitted that the Syndicate of the University by Annexure R1(1), has approved the action of the Vice Chancellor. 13. Learned Government Pleader also submitted that the financial wpc 23034/2011 7 irregularities reported before the Government by the Director, Vigilance and Anti-corruption Bureau, recommended action against the petitioner. This was communicated to the University as per Ext.P7. The finding of this Court in Ext.R1(1) judgment and the directions therein required appropriate action. Therefore, the Vice Chancellor has exercised his powers in the matter. It is therefore, pointed out that the action based on the criticism made by this Court against the petitioner in Ext.R1(1) judgment could not have been delayed. 14. A reading of Ext.P4 report submitted by the Vigilance and Anticorruption Bureau will show that only against allegation No.5, recommendation has been made to take disciplinary action against the petitioner. The Enquiry Commissioner and Special Judge, after considering various aspects, held in Ext.P6 order that materials are not there warranting to register a case against the accused persons for the offences punishable under the provisions of Prevention of Corruption Act. The verification report submitted by the officer concerned was accepted. 15. Since learned counsel for the petitioner vehemently argued that Ext.P6 order gives a finality in the matter and the Government letters Exts.P7 and P8 could not have been relied upon, I will refer to the wpc 23034/2011 8 contents in Ext.P7 Government letter addressed to the Registrar of the University which is dated 25.6.2001. It is stated therein as follows: “During his tenure as Director, State Institute of Languages, it has come to the notice of the Government that he has committed financial misappropriations and upon a private complaint before the Honourable Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram, a Vigilance Enquiry into the allegations against Dr. Pokker and two others was conducted.” In para 2 it is stated that “Examining the evidences, the Vigilance and Anti Corruption Bureau has recommended for departmental action against Dr. . K. Pokker.” Accordingly, the Government, after examining it, decided to recommend disciplinary action against the petitioner. The Government, in the operative portion of the above letter, requested the University to expedite measures to initiate disciplinary action against the petitioner and report compliance urgently. 16. It is explained in the counter affidavit filed on behalf of the third respondent that apart from the vigilance enquiry, there was a detailed report of the audit. The details of the same are referred to in paragraphs 3 and 4 of the counter affidavit. It is stated in para 4 as follows: “The Audit Department, while examining the accounts of Book Fairs for the year 2007 and 2008 have put forth grave remarks on wpc 23034/2011 9 the misconduct of Dr.P.K. Pokker as Director, State Institute of Languages, in countersigning vouchers and quoting tenders, the Audit had remarked that it was deplorable to watch public money being squandered and misused such lavishly that the two Book Fairs conducted by State Institute of Languages in the year 2007 and 2008 have caused a huge pecuniary loss of Rs.10,65,818/- and Rs.13,12,228/- in the respective years. The Audit Department has entrusted the responsibility on the then Director, Dr. P.K. Pokker. The financial misappropriation cannot be defined in terms of embezzling of money in physical entities, but in terms of misuse and squander of public money, which, to a very extend could have been avoided, had Dr. Pokker sought for the advice of financial representatives of Government, who were employed in that Institute on deputation basis.” Thereafter, in para 7 it is stated as follows: “The Government, while issuing the letter seeking disciplinary action against Dr. Pokker had not described all the above facts in details, but has categorically stated that the financial misappropriation was committed. This charge was made in view of all the Audit Reports received in Government regarding the Book Fairs conducted in 2007 and 2008.” Finally, it is mentioned that Ext.P8 was issued pointing out the judgment of this Court in W.P.(C) No.16372/2007, showing strong disapproval of the petitioner's conduct in submitting a counter affidavit. wpc 23034/2011 10 17. Therefore, apart from the vigilance enquiry, another material against the petitioner in the form of an audit report is relied on and the letter Ext.P7 referred to the contents of the audit report, when action was sought against the petitioner. 18. Of course, the Enquiry Commissioner and Special Judge has found that grounds are not there to prosecute the petitioner under the Prevention of Corruption Act. The report of the Enquiry Officer recommends disciplinary action, which cannot be disputed. 19. The first question to be considered is whether the invocation of the emergency power by the Vice Chancellor in the above background, is without jurisdiction. Section 10(13) of the Act confers such a power on the Vice Chancellor to act when the Syndicate or Academic Council is not in session. He is empowered to exercise any power vested in the Syndicate or Academic Council and will have to report the action taken by him at the next session of the Syndicate or Academic Council, for such action as he may consider necessary. The power conferred for issuing an order of suspension is under Statute 19 of the Calicut University First Statutes. The same reads as follows: ## “19. _**Suspension**_ (1) The appointing authority or any authority to which it is wpc 23034/2011 11 subordinate or any other authority empowered by the Syndicate in that behalf may, at any time, place a University employee under suspension.- (a) Where a disciplinary proceeding against him is contemplated or is pending; or (b) Where a case against him in respect of any criminal offence is under investigation or trial; or (c) Where in the opinion of the authority aforesaid he has engaged himself in activities prejudicial to the interests of the University. (d) Where final orders are pending in the disciplinary proceeding, if the appropriate authority considers that in the then prevailing circumstances it is necessary, in the interest of the University, that the University employee should be suspend from service of the University.” The power of suspension can be invoked where disciplinary proceedings is contemplated. Shri P.C. Sasidharan, learned counsel for the petitioner argued that herein prior to the order of suspension, no notices or memo of charges were issued to the petitioner by the University. It is therefore submitted that it is too premature to place the petitioner under suspension. 20. I will now come to the decisions relied upon by the learned counsel for the petitioner to contend for the position that the order lacks jurisdiction, as there was no emergency situation for action under Section wpc 23034/2011 12 10(13) of the Act. In **Dr. Leelakrishnan v. Cochin University** (1997 (1) KLT 281), the Division Bench considered a similar provision under the Cochin University of Science and Technology Act. Therein, exercising the emergency powers, the Vice Chancellor passed an order denying permission to some members to take part in the meeting of the Syndicate or other bodies. This Court considered mainly two aspects, one whether there is a power conferred on the Syndicate itself to suspend a member and secondly, whether the action of the Vice Chancellor is valid or not. It was after analysing Section 18 of the Act the Division Bench held that there is no such power is conferred on the Syndicate. Thus, the view taken is that the Vice Chancellor was not right in taking action to deny permission to the nominated members to participate in the meeting of the Syndicate. The relevant findings in paragraphs 17 and 18 reads thus: “The question for consideration is whether the action of the Vice Chancellor in not permitting the petitioners to take part in the proceedings of the Syndicate and other bodies of the University as confirmed by the Syndicate is legal. Petitioners were nominated as members of the Senate by the Chancellor. The Government of Kerala then nominated them to the Syndicate and they can continue as members of the Syndicate till 13.2.1999. Being members of the Senate and Syndicate, they are as a matter of right entitled to the wpc 23034/2011 13 notice of the meeting of the bodies and are entitled to attend the meetings of the bodies and participate in the proceedings. Their right to continue as members cannot be interfered with excepting in the circumstances mentioned in S. 46 of the Act. Admittedly, the power under S. 46 has not been exercised and the circumstances under S. 46 are not existing in the case. The Vice Chancellor has invoked the power under S. 11(11) of the Act. This power can be exercised only in an emergency when the Syndicate and academic council is not in session. S. 18 deals with the power of Syndicate and S. 24 deals with the power and duties of the academic council. Similarly, Statute 73 of the Cochin University First Statute deals with the power and duties of the Syndicate. Among the duties S. 18, Chapter XIII deals with suspension, discharge, dismissal and disciplinary action against teachers and other employees of the University and above the rank of Assistant Registrar. A power to suspend a member is not seen enumerated in S. 18 and in the Statute. As already stated, the only other provision is S. 46. Of course, the conditions precedent mentioned in S. 46 are not existing in the case. Further the power under S. 11(11) is to be exercised only when an emergency arises. It is to be exercised sparingly and only when the proposal will not brook the delay till the Syndicate meets. Now, we come to the approval of the action of the Vice Chancellor by the Syndicate. We have already held that there was no circumstance existing for the Vice Chancellor to exercise the power under S. 11 (11) and it was illegal. Thus, the approval by the Syndicate cannot validate the same.” wpc 23034/2011 14 21. Evidently, this Court was considering a case where there was no power for the Syndicate itself to pass such an order. Apart from that, it was found that there was no emergency situation. The finding on the said aspect is contained in para 18 of the judgment as noted already. The view taken is that the Vice Chancellor could have convened a meeting of the Syndicate before he directed to issue the order. The above conclusion was arrived at stating that in the counter affidavit, the facts which led to the emergency situation were not stated. It is on that premise the above findings were rendered. 22. The next decision relied upon is **George Thomas's case** (2009 (2) KLT 591). Therein, the view taken is that the power under Section 10 (17) of the Mahatma Gandhi University Act, 1985 is to be exercised only when an emergency arises and only when proposal will not brook delay till Syndicate meets. That was a case where the Vice Chancellor amended the promotion procedure contained under the syllabus for B.Pharm Course. In para 10 of the judgment, it was held as follows: “Therefore, in the light of statutory provisions contained in S.10 (17) of the Act, I am of the view that law laid down in the aforesaid two judgments fully applies to the facts of this case. If that be so, question is whether there was any circumstance justifying the wpc 23034/2011 15 exercise of power under S.10(17) by the Vice Chancellor. Answer to this question has to be found in the counter affidavit filed by the University, where all that is stated in para 10 is that the Academic Council of the University had constituted a Sub committee to discuss the amendment of regulation and the Committee has recommended amendment, which was approved by the Vice Chancellor subject to ratification by the Academic Council. It is stated this is the usual procedure followed by the University. In my view this explanation is totally unsatisfactory and at any rate does not answer the requirement of S.10(17) of the Act to sustain Ext. P28.” The said decision also turned on the facts of the case and the lack of averments in the counter affidavit drawing support for the action and this Court held that the explanation is totally unsatisfactory. 23. In the unreported judgment in O.P.No.4081/2003 also, a similar question was considered. Therein, the petitioner was removed from the service of the University as Professor in Library Science, by the Vice Chancellor. In para 16, the legal position was analysed thus: “16. The situation of emergency contemplated in Section 10(13) is such a nature that if allowed to continue even for a few days, the same would jeopardise the day to day working of the University. If postponement of the decision regarding such situation can, without affecting the day to day working of the University, wait till the next wpc 23034/2011 16 meeting of the Syndicate, certainly the powers under Section 10(13) cannot be invoked. In this case even going by the reasons given in Ext.P14, the situation arose as early as on 8.11.2001 and continued till 30.1.2003, during which period the Syndicate was actually in session at least once. If the situation could be tackled for more than a year without affecting the working of the University, it cannot be stated to be an emergency coming within the ambit of Section 10 (13). I have no hesitation to hold that absolutely no emergency had arisen in January 2003 warranting invocation of powers under Section 10(13) as claimed by the 2[nd] respondent in Ext.P14.” Therein also, the situation was that for more than one year, no action was taken and therefore it was held that there was no emergency. 24. Herein, the University relies upon Exts.P7 and P8 and the judgment of this Court in Ext.R1(1). In Ext.R1(1) judgment, various findings were rendered against the petitioner. The relevant findings are contained in paragraphs 15, 17 and 26, which are as follows: “15..........It is appalling to note that the Director of the Institute is either not aware of the service rules applicable to the two different units under him or is feigning ignorance about the same, both of which would show him in very bad light. Even when the correct rules were brought to the notice of the Director by the petitioner in her reply affidavit, without any regard for truth, the Director had the audacity of filing a false affidavit denying the wpc 23034/2011 17 same, which goes to show the extent to which the Director is prepared to go, simply for wining a case, which does not have any consequences to the Institute as such. Such an attitude shows that the Director is unable to view service matters of the employees of the Institute dispassionately in accordance with the rules and is prone to succumb to his ego even to the extent of disregarding statutory rules and filing false affidavits before this court contrary to the statutory rules. I further find that the Director had not even gone through the admitted service rules, in his anxiety to somehow or other deny the claim of the petitioner, and support the 4[th] respondent, without noticing that the petitioner could have been validly denied the relief claimed by her, legally, based on the rules themselves, at least till 11.1.2011...............To top it all, the Institute has granted the employees of the Institute exemption from test qualification even against the service rules applicable, that too without prior permission from the Government. I am of opinion that such conduct of a Chief Executive and the Governing Body of a Government Organization is not good for the well-being of the Institution. 17........... Strangely in the very same affidavit, he had the audacity to contend that all the employees of the Press and SIL form a common service and they are governed by the Special Rules for the State Institute of Languages. Perhaps he deliberately took the stand knowing well that otherwise he cannot defend the appointment of the 4[th] respondent. Either way the 3[rd] respondent has done what he ought not to have done as the Chief Executive Officer wpc 23034/2011 18 of a Government Organization, namely, knowingly filing a wrong affidavit before a court of law, suppressing material facts relating to service rules and repeatedly trying to mislead this court in respect of the same. 26............... Before parting with these two cases I place on record my strong disapproval of the conduct of the 3[rd] respondent, which I have dealt with elaborately while dealing with W.P.(C) No.16372/2007 and his unbecoming of a Chief Executive Officer at the helm of affairs of any Government Institution. I am dismayed that a Chief Executive Officer of a Government Institution is prepared to stoop to such levels to have his way and to justify his illegal action in flagrant violation of the rules without any respect for truth. I am of opinion that, by his conduct, he has rendered himself unfit to hold the post. The Government would, if they have any sincere and genuine concern for the well-being of the Institute, and respect for our national motto “Sathyameva Jayathe”, do well to take appropriate action in that regard. I was also inclined to order exemplary costs to be paid by the 3[rd] respondent personally and to initiate prosecution proceedings against him for filing a false affidavit before this court, but exercising restraint I refrain from doing so. I leave the rest to the Government to act, if they have any real respect for truth and the welfare of the people of his State. Learned Standing Counsel for the University submitted that the operative portion of the judgment has directed the Government to take appropriate action against the petitioner and in the light of the above direction, this wpc 23034/2011 19 Court refrained from ordering exemplary cost and initiation of prosecution proceedings against him for filing a false affidavit before this Court. My attention was invited to the following sentence in the last paragraph: “I leave the rest to the Government to act, if they have any real respect for truth and the welfare of the people of this State.” It is submitted that when the Government by Ext.P8 forwarded the judgment and requested for action in the matter, the same could not have been delayed at all. It is submitted that the observations were so serious and they reflected on the falsity of the affidavit filed before this Court and this Court had directed the Government to take immediate action. The learned Government Pleader also supported the above argument. 25. The Note file Ext.R1(2) shows that in the Note dated 7.7.2011 it is recorded that “the details of W.P.(C) No.16372 and W.P.(C) No.29585/2010 are not available and hence the matter may be referred to legal cell.” This was heavily relied upon by Shri P.C. Sasidharan, learned counsel for the petitioner to show that without getting those details how the Vice Chancellor could have acted on the communication Ext.P8 alone. 26. It is explained by the learned Standing Counsel for the University that the judgment was available as it was communicated along with Ext.P8 wpc 23034/2011 20 and my attention was invited to the Note dated 2.7.2011 wherein mention is made about the communication Ext.P8 and the judgment in the said writ petition. 27. It is therefore evident that even though the copies of the writ petitions were not available, the contents of the judgment was available as a material before the Vice Chancellor. Therefore, it cannot be said that no material was available before the Vice Chancellor when the order is passed. The following is the order passed by the Vice Chancellor which is extracted in the counter affidavit filed by the University: “Dr.P.K. Pokker is placed under suspension with immediate effect in the light of the High Court judgment as well as instructions from Government. The Syndicate will appoint an enquiry officer of suitable rank to enquire into the allegations against Dr. Pokker, pending disciplinary action. These orders are issued exercising the powers of the VC u/s 10(13) of the Calicut University Act, 1975.” Evidently, the order is passed in the light of the judgment of this Court and the communications made by the Government. 28. The question is whether there is total lack of jurisdiction for the Vice Chancellor in passing the order. It cannot be said that there is total lack of jurisdiction as there is a specific conferment of power under Section 10(13) of the Act. Then the next aspect is regarding the emergency wpc 23034/2011 21 situation to invoke the power. 29. In this context, what is of importance, according to the learned Standing Counsel, is the requirement of an action in the light of the observations made and the scathing criticism made against the petitioner by the judgment of this Court. It is therefore pointed out that this Court directed the Government to take action and when the University itself is directed to take action by the Government, the matter could not have been kept pending. Evidently, the criticism made against the petitioner are really of serious nature, going by the extracted portions of the judgment. Herein, the argument made by the learned counsel for the petitioner is that the writ appeal is pending against the same, for expunging the remarks and being a service matter, the Director who was not conversant with the various niceties of the rules, could not have been targeted for filing such an affidavit. 30. This Court cannot consider, in these proceedings the merits of the observations in the judgment or the defence of the petitioner. The University was not at all a party to the said litigation. When the judgment is forwarded by the Government, in the light of the direction therein to the Government to take action against the petitioner, the University could not wpc 23034/2011 22 have ignored the same or left it there as such. The scathing criticism made by this Court really alerted the Government in forwarding the same to the University. When this Court directed the Government itself to take action, the Government also could not have remained silent. The petitioner had rejoined on 1.6.2011, in the meanwhile. Therefore, actually the suspension is relying on the judgment of this Court also. 31. Therefore, it is not a case where the action is vitiated by irrelevant considerations, lack of materials or non application of mind. As noted already, apart form the vigilance report, there was an audit report also against the petitioner which was relied upon by the Government while forwarding Ext.P7 letter. Therefore, it cannot be said that when the Government issued Exts.P7 and P8 communications, there were lack of materials for such an action. Evidently, in Ext.P4 also, there was a recommendation to take disciplinary action. Therefore, the argument raised by Shri P.C. Sasidharan, learned counsel for the petitioner that there is total lack of materials and total non application of mind cannot be countenanced at all. 32. Then, the next question is whether the suspension is bad for other reasons. The principles stated by the Apex Court in **Bimal Kumar** wpc 23034/2011 23 **Mohanty's case** {(1994) 4 SCC 126} and **Surendran's case** (1999 (2) KLJ 1082) were relied upon by the learned counsel for the petitioner in that context. In para 13 of **Bimal Kumar Mohanty's case** (supra) their Lordships held that it is not an administrative routine or an administrative order to suspend an employee. The observations therein are as follows: “Normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. the Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf.” 33. In **Surendern's case** (1999 (2) KLJ 1082), a Division Bench of wpc 23034/2011 24 this Court held that the power to suspend a person is discretionary, going by Rule 10 of Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. It was held that there should be application of mind. the Bench also held as follows: “The power to suspend a person is discretionary as will be evident in the context it is used from the expression 'may' used in Rule 10. In passing an order of suspension, the authority is required to take into consideration the gravity of the misconduct sought to be enquired into or investigated and the nature of offence placed before the authority. There should be an application of mind. It should not be an administrative routine or an automatic order to suspend an employee. It is to be noted that such an order is an administrative order and not a quasi judicial order. The order of suspension does not put an end to service. The real effect of the order of suspension is that though the civil servant continues to be a member of the service, he is not permitted to work and is paid only subsistence allowance, which is less than the salary. Suspension merely suspends the claim to salary.” Another decision relied upon by the learned counsel for the petitioner is **Harish v. State of Kerala** (2002 (3) KLT SN Case No.108). Therein, the suspension was held as without jurisdiction, as the Director who issued the order of suspension, was not empowered by the Government to suspend an employee. wpc 23034/2011 25 34. Another Division Bench of this Court in **Surendrah K.'s case** (ILR 2008 (3) Ker. 587), considered a case where proceedings were initiated in a closed matter after along number of years and the petitioner was placed under suspension. It was held thus: “The disciplinary authority should consider whether it is necessary to keep the employee away from the post. A person who is alleged to have embezzled public funds, can be suspended immediately to prevent him from committing further embezzlement or doing something to cover up the fraud, but, it is not proper to suspend an employee posted elsewhere for an alleged irregularity committed nine years back, the like of which was closed.” It shows that the file was closed once and therefore this Court was of the view that the action is arbitrary and illegal. 35. As far as these aspects are concerned, it is well settled that each case will have to depend upon its own facts. Once it is held that there is no lack of jurisdiction, what is required is to see whether the authority has travelled beyond the jurisdiction to pass an order. The relevant principles as regards the power of suspension itself, has been discussed by a Division Bench of this Court in **State of Kerala v. Ivan Rathinam** (2009 (2) KLT 543). Therein, reversing the judgment which interfered with the order of suspension, a Division Bench of this Court allowed the appeal and held that wpc 23034/2011 26 the order of suspension cannot be lightly interfered with. In paragraphs 11 and 12, it was held as follows: “11. But, a public authority having jurisdiction to do something, while doing that something, may step outside its jurisdiction and the same will render its decision _ultra vires_ and therefore, it will become a nullity.......... 12. Even if a public authority has jurisdiction to do something, if it acts in a manner, which no man in his senses will do, then its action can be safely described as _ultra vires_ and unauthorised. We cannot say Ext.P11 is so arbitrary or irrational or “so absurd that no sensible person could ever dream that it lay within the powers of the authority” (Lord Green M.R. in _Associated Provincial Picture House, Ltd. v. Wednesbury Corporation_ (1948 (1) KB 223).............” 36. Therefore, the question herein is also whether the Vice Chancellor has travelled outside the jurisdiction to pass the order of suspension and whether irrelevant materials were considered. As noticed already, the communication of the judgment by Ext.P8 by the Government and the letter Ext.P7 which preceded the same, requesting for action were placed before the Vice Chancellor. When these documents were relied on along with the judgment Ext.R1(1), to pass an order of suspension, it cannot be said that the jurisdiction was invoked in a manner unknown to law. wpc 23034/2011 27 37. The next question is whether the action itself could be termed as an absurd one, or that no reasonable person could have passed such an order. Herein, this Court in the above cited decision in **Ivan Rathinam's** case (supra), was of the view that when an administrative action is sought to be reviewed, the court cannot interfere even if on the same set of facts a different view is possible. These principles were restated thus in para 13 of the above decision: “13..............While reviewing an administrative action, the court should bear in mind that on the same set of facts, different views are possible. Even if the view taken by the Government is different from the view entertained by the Court, it is not a ground to interfere with the administrative action concerned. Lord Hailsham LC said: “Two reasonable persons can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable”. (In _Re W. v. An Infant_ (1971 AC 682). Lord Diplock in his speech in _Secretary of State for Education and Science v. Metropolitan Borough Counsel of Tameside_ (1977 AC 1014) said: wpc 23034/2011 28 “The very concept of administrative discretion involves a right to choose between more than one possible course of action, upon which, there is room for reasonable people to hold differing opinions as to which is to be preferred.” Our Apex Court in _U.P. Financial Corporation v. Gem Cup (India) Pvt.Ltd. & Ors._ ((1993) 2 SCC 299) held as follows: “In the matter of administrative action, it is well known, more than one choice is available to the administrative authorities. They have a certain amount of discretion available to them..... . The Court cannot substitute its judgment for the judgment of the administrative authority in such case.” 38. In fact, the Division Bench in the above judgment, was of the view that the Court cannot act as an appellate authority and review the facts to find out whether the order is justifiable or not. Therefore, the question is whether even on the available materials, a different view is possible and the action could be interfered with. In the light of the principles discussed above, this Court will be loathe to interfere even in such a contingency. When the Government by Exts.P7 and P8 informed various wpc 23034/2011 29 details including the details of the judgment Ext.R1(1) and the Vice Chancellor took a decision to act upon the same, it cannot be said that the decision is so unreasonable warranting interference under Article 226 of the Constitution of India. 39. Evidently, this Court cannot reassess the materials in the light of the principles stated in **Ivan Rathinam's case** (2009 (2) KLT 543) to find out whether another conclusion is possible on the set of facts. Judicial review is possible only to find out whether relevant materials were considered and whether irrelevant materials were relied upon. True that the Enquiry Commissioner and Special Judge found that no criminal prosecution is required, but on allegation No.5 disciplinary action was recommended. It is stated by the learned Government Pleader that the Assistant Director who was named along with the petitioner in the enquiry report, was also suspended from service and was on continued suspension for a period of ten months. He was suspended on 16.12.2009. Therefore, it cannot be said that the petitioner alone was singled out for an action like the one. 40. If the action is without jurisdiction, any ratification by the Syndicate will not help to make it valid which principle is clear from Dr. wpc 23034/2011 30 **Leelakrishnan's case** (1997 (1) KLT 281) and the judgment in O.P. No.4081/2003. But herein, it cannot be said that the Vice Chancellor has acted without jurisdiction. Already, the Syndicate had ratified the action as evident from the statement filed on behalf of the University. The minutes of the Syndicate has been produced as Annexure R1. In regard to the above, learned counsel for the petitioner submitted that it was a nominated body and therefore no credence can be made to it. But the said body is exercising the power of the Syndicate and therefore the said contention cannot be accepted at all. For all these reasons, the writ petition fails and the same is dismissed, but this will not stand in the way of the petitioner seeking a review of the suspension and the competent authority considering the same. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**