Dr. R. Janardhanan v. Board of Trustees, Padiyar Homoeopathic College & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** ## **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **THURSDAY, THE 6[TH] DAY OF JANUARY 2022 / 16TH POUSHA, 1943** ## **CRP(UTY) NO. 626 OF 2017** **AGAINST THE JUDGMENT DATED 21.10.2017 IN UNIVERSITY APPEAL NO.2/2016 OF THE KERALA HEALTH UNIVERSITY APPELLATE TIBUNAL (III ADDITIONAL DISTRICT JUDGE)** ## **PETITIONER/APPELLANT:** **DR.R. JANARDHANAN, AGED 56 YEARS S/O. LATE RAMACHANDRAN SHENOYPANAKKAPARAMBIL, CHANDIROOR P.O,ALAPPUZHA DISTRICT 688 547** **BY ADVS.SRI.K.SHRIHARI RAO SMT.N.SHOBHA** ## **RESPONDENTS/RESPONDENTS:** - **1 THE BOARD OF TRUSTEES PADIYAR HOMOEOPATHIC COLLEGEDOOR NO 58/6168,FIRST FLOOR, T.D SHOPPING COMPLEXT.D WEST ROAD, ERNAKULAM 682 035** - **2 THE VICE CHANCELLOR KERALA UNIVERSITY OF HEALTH SCIENCESMEDICAL COLLEGE, THRISSUR 680 596** **3 THE SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM 695 001** **4 THE CONTORLLING OFFICER9THE PRINCIPAL GOVERNMENT HOMOEO MEDICAL COLLEGEIRANIMUTTOM, MANACAD P.O,THIRUVANANTHAPURAM 695 009 5 THE KERALA HEALTH UNIVERSITY APPELLATE TRIBUNAL IIIRD ADDITIONAL DISTRICT JUDGEVANCHIYOOR, THIRUVANANTHAPURAM 695 035** **BY ADVS.SRI.R.LAKSHMI NARAYAN SRI.P.SREEKUMAR,SC, SMT.R.RANJINI BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN** **THIS CRP (UNIVERSITY ACT) HAVING COME UP FOR ADMISSION ON 06.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** :2: CRP(UTY) No.626 of 2017 ## **ORDER** ## **A.K.Jayasankaran Nambiar, J.** This Revision Petition impugns the order dated 21.10.2017 of the Kerala Health University Appellate Tribunal in University Appeal No.2 of 2016, whereby an appeal preferred by the petitioner herein, against an order of the Board of Trustees of the Padiyar Homeopathic College dismissing him from service with a disqualification for future employment in any of the institutions maintained or affiliated to the University, was dismissed by the Appellate Tribunal. 2. The brief facts necessary for a disposal of this Revision Petition are as follows: The petitioner entered into the service of the 1[st] respondent institute in the year 1989 as a Tutor and his career progression saw him being promoted as Lecturer in 1992, as Professor in 1999 and Principal with effect from 2000. While he was continuing as such, on 12.04.2013 he was placed under suspension pursuant to criminal offences that were charged against him, as also on the ground of alleged unauthorised absence. Annexure-A1 is the order of the respondent :3: CRP(UTY) No.626 of 2017 institution placing the petitioner under suspension. Immediately thereafter, by Annexure-A2 communication dated 24.10.2013, the petitioner was also served with a memorandum of charges together with a statement of allegations. The petitioner submitted a detailed explanation refuting the said charges on 11.11.2013 (Annexure -A3). The explanation preferred by the petitioner was not found satisfactory, and therefore, the respondent proceeded to appoint an Enquiry Officer to conduct an enquiry into the charges levelled against the petitioner. Annexure-A4 dated 07.03.2015 is the report containing the findings of the Enquiry Officer, wherein 11 charges raised against the petitioner were found proved and two charges, namely, charges Nos.5 and 10 were found not sustainable, and the petitioner exonerated of the said charges. Thereafter, the Enquiry Report was forwarded to the petitioner and the petitioner was asked to show cause against the acceptance of the Enquiry Report and the imposition of the penalty proposed against him for the charges proved against him in the enquiry. To that communication, the petitioner submitted Annexure -A5 explanation dated 12.05.2015. The respondent institution, however, by AnnexureA6 final order dated 03.02.2016 rejected the explanation of the petitioner and imposed the punishment of dismissal from service with immediate effect, adding that the dismissal would also be a disqualification for future employment in any of the institutions :4: CRP(UTY) No.626 of 2017 maintained or affiliated to the University. 3. Aggrieved by Annexure-A6 order of the respondent institution, the petitioner preferred an appeal before the Kerala Health University Appellate Tribunal. The said appeal was, however, dismissed by a detailed order dated 21.10.2017, which is impugned in this revision petition. 4. Learned counsel Sri.K.Srihari Rao, appearing for the revision petitioner, limits his submissions to merely the aspect of proportionality of the punishment imposed against the petitioner. It is his specific case that while he does not intend to question the legality of the findings of the Enquiry Officer and the respondent institution regarding the misconducts alleged and proved against him, he confines his submissions only to the proportionality of the punishment imposed on the petitioner based on the findings in the Enquiry Report. He would point out that he had entered the service of the 1[st] respondent institution in 1989, and thereafter, had 24 years of unblemished service till 2013 when for the first time, while functioning as the Principal of the institution, he was served with Annexure-A1 order of suspension followed by the initiation of disciplinary proceedings through the issuance of a memo of charges and statement of allegations. It is his :5: CRP(UTY) No.626 of 2017 contention that even if the charges alleged against him stood proved, the punishment imposed for the said offences/misconducts could not have entailed an effacement of the 24 years of unblemished service put in by him in the institution. He would further submit that if the punishment imposed by the 1[st] respondent institution is sustained, then it would visit the petitioner with undue hardship because he would lose even those service benefits that flowed from said 24 years of unblemished service. The provisions of Rule 29 Part III Kerala Service Rules are also brought to our notice, which clearly indicate that an employee who is dismissed from service forfeits his right to pension in respect of past service 5. We have considered the submissions of the learned counsel for the revision petitioner, the submissions of Smt.Ranjini the learned counsel for the 1[st] respondent institution, the learned Government Pleader on behalf of the respondents 3 and 4 and also Sri.P.Sreekumar the learned Standing counsel for the 2[nd] respondent. 6. Taking note of the submission of Smt.Ranjini appearing on behalf of the 1[st] respondent college that the punishment of dismissal was imposed on the petitioner based on the finding that he was found unfit to continue in the services under the 1[st] respondent institution and :6: CRP(UTY) No.626 of 2017 that his continuance would cause undue prejudice to the interest of the institution, we feel that since the concern of the employer in the instant case was only with regard to the continuance of the employee in service beyond the period when he was found guilty of the offences/misconduct alleged against him, the institution will not be prejudiced if we modify the punishment for the limited purpose of giving him the benefit of 24 years of unblemished service put in by him before the charges were levelled against him in 2013. We note from Annexure-A6 final order passed by the respondent institution, as also from the impugned order of the Appellate Tribunal, that the aspect of dis-proportionality in the punishment imposed on the petitioner was not seriously considered by either of the said authorities. On an overall consideration of the facts in the instant case, we find that since the objective of the institution while imposing the punishment would be achieved by keeping the delinquent employee out of service beyond the date of the final order passed by the 1[st] respondent institution, the said objective would not be frustrated through an order compulsorily retiring the petitioner. The principles on which an employee can be compulsorily retired from service have been laid down in the decisions in **Paradesi Thyagarajan v. High Court of Kerala [1998 (2) KLJ 414 (DB)** , **Pyare Mohanlal v. State of Jharkhand and Others [(2010) 10 Supreme Court Cases 693]** , **R.C.Chandel v. High Court of Madhya Pradesh and Another** :7: CRP(UTY) No.626 of 2017 **[(2012) 8 Supreme Court Cases 58]** , **Rajesh Gupta v. State of Jammu and Kashmir and Others [(2013) 3 Supreme Court Cases 514]** and **Rajasthan State Road Transport Corporation and Others** **v. Babu Lal Jangir [(2013) 10 Supreme Court Cases 551].** Taking cue from the said principles, and finding that the petitioner did have 24 years of unblemished service in the 1[st] respondent institution, which is admittedly a pensionary establishment, we deem it appropriate to modify the punishment imposed on the petitioner to read that the petitioner would stand compulsorily retired from service with effect from 03.02.2016 the date of Annexure-A6 order imposing the punishment on the petitioner. We might only add, by way of abundant caution, and taking note of the apprehension of the learned Government Pleader with regard to the financial burden that may arise to the Government, that the pensionary benefits due to the petitioner, consequent to his compulsory retirement from service with effect from 03.02.2016, shall become payable to the petitioner only from 01.04.2022, and the other retiral benefits flowing to the petitioner from the service rendered by him till 03.02.2016, shall be paid to him on or before 31.08.2022. We make it clear that the period from 03.02.2016 to 01.04.2022 will not count towards any service benefits or interest thereon for the petitioner. :8: CRP(UTY) No.626 of 2017 The the CRP(UTY) is thus allowed to the limited extent indicated above. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** Sd/- **MOHAMMED NIAS C.P. JUDGE** mns :9: CRP(UTY) No.626 of 2017 ## **APPENDIX** ## **PETITIONERS ANNEXURES** **ANNEXURE A1: TRUE COPY OF THE SUSPENSION ORDER DATED 12.04.2013** **ANNEXURE A2: TRUE COPY OF THE MEMO OF CHARGE DATED 24.10.2013** **ANNEXURE A3: TRUE COPY OF THE DETAILED EXPLANATION DATED 11.11.2013 SUBMITTED BY THE PETITIONER** **ANNEXURE A4: TRUE COPY OF THE ENQUIRY REPORT DATED 7.3.2015 OF THE ENQUIRY OFFICER** **ANNEXURE A5: TRUE COPY OF THE EXPLANATION DATED 12.5.2015 OF THE PETITIONER TO THE 1ST RESPONDENT** **ANNEXURE A6: TRUE COPY OF THE ORDER OF DISMISSAL DATED 3.2.2016 ISSUED BY THE 1ST RESPONDENT** ## **RESPONDENTS ANNEXURES:** **ANNEXURE R1: THE PHOTOCOPY OF THE JUDGMENT DATED 20.03.2015 IN W.P(C)NO.26296/2013** **ANNEXURE R2: THE PHOTOCOPY OF THE JUDGMENT DATED 10.12.2015 IN W.ANO.754/2015 AND 784/2015** **ANNEXURE R3: THE PHOTOCOPY OF THE ORDER DATED 19.1.2016 IN SPECIAL LEAVE PETITION NOS.809-810/2016** **ANNEXURE R4: THE PHOTOCOPY OF THE PRELIMINARY ORDER DATED 14.12.2015 ISSUED TO THE PETITIONER** **ANNEXURE R5: THE PHOTOCOPY OF THE JUDGMENT DATED 23.12.2015 IN W.P(C)NO.39086/2015** **ANNEXURE R6: THE PHOTOCOPY OF THE NOTICE DATED 26.12.2015** **ANNEXURE R7: THE PHOTOCOPY OF THE PROVISIONAL ORDER DATED 31.12.2015** **ANNEXURE R8: THE PHOTOCOPY OF THE JUDGMENT DATED 19.01.2016 IN UNIVERSITY APPEAL NO 1/2016** **ANNEXURE R9: THE PHOTOCOPY OF WRITTEN STATEMENT SUBMITTED BY THE 1ST RESPONDENT BEFORE THE UNIVERSITY TRIBUNAL WITHOUT ANNEXURES** **//TRUE COPY//** **P.A TO JUDGE**