Dr. R. Suresh v. The Chairman, Athurasramam NSS Homeo Medical College; Controlling Officer (Principal), Government Homeo Medical College; State of Kerala; Mahatma Gandhi University; Kerala University of Health Sciences

**WP(C) NO. 22745 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 15[TH] DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943** ## **WP(C) NO. 22745 OF 2021** ## **PETITIONER:** DR. R.SURESH S/O RAGHAVAN NAIR, INDEEVARAM HOUSE, HOUSE NO. 45/XX/13,AZHOOR ROAD, PATHANAMTHITTA P.O.PIN-689 645 (PRESENTLY RESIDING AT SAI KRUPA, ELANJIMEL P.O.,CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689 511) (LECTURER, COMMUNITY MEDICINE, ATHURASRAMAM, N S S HOMOEO MEDICAL COLLEGE, S PURAM P.O.KURICHY, KOTTAYAM-686 532) BY ADVS. SAJEEV KUMAR K.GOPAL G.GOPAKUMAR (MAVELIKARA) ## **RESPONDENTS:** 1 THE CHAIRMAN, ATHURASRAMAM N.S.S. HOMOEO MEDICAL COLLEGE, ADMINISTRATIVE OFFICE, N.S.S.HEAD OFFICE, PERUNNAI P.O.,CHANGANACHERY, KOTTAYAM-686 532. 2 THE CONTROLLING OFFICER (PRINCIPAL), GOVERNMENT HOMOEO MEDICAL COLLEGE, IRANIMUTTOM, MANACAUD, THIRUVANANTHAPURAM-695 101 3 STATE OF KERALA REPRESENTED BY THE SECRETARY (AYUSH) HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 4 MAHATMA GANDHI UNIVERSITY REPRESENTED BY ITS REGISTRAR, PRIYADARSINI HILLS P.O.,KOTTAYAM-685 101 5 KERALA UNIVERSITY OF HEALTH SCIENCES REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P.O.,THRISSUR-680 596. **WP(C) NO. 22745 OF 2021** **2** BY ADVS. S.P.ARAVINDAKSHAN PILLAY N.SANTHA V.VARGHESE S.A.ANAND PETER JOSE CHRISTO SRI P SREEKUMAR, SC SRI SURIN GEORGE IPE, SC SMT SURYA BINOY, SR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 22745 OF 2021 3** **“CR”** ## **JUDGMENT** Whether the imposition of penalty by way of reduction to a lower rank in the seniority list of a teacher of a private college as per the provisions of Chapter 45 of the Mahatma Gandhi University Statutes, 1997, (hereinafter referred to as ‘MGU Statutes, 1997’) would be a permanent one or whether the same would be only as one for a period of six months. While the petitioner asserts that the reduction to a lower rank can only be for six months, the University contends otherwise. This is the question that needs a resolution. ## 2. A thumbnail sketch of the facts involved are as under: While working as a Tutor in the Athurasramam NSS Homeo Medical College, disciplinary proceedings were initiated against the petitioner for falsely designating himself as a Professor and Head of the Department of Community Medicine of the College despite the fact that he was only a Tutor. Among other allegations, he is stated to have produced a forged document to gain illegible promotion. A memo of charges was issued on 28.5.2009 and after complying with the formalities, an enquiry officer was appointed. The enquiry officer found the petitioner guilty of all misconduct. Later, the explanation offered by the petitioner was rejected and the disciplinary authority decided to accept the findings of the enquiry officer. The disciplinary authority later **WP(C) NO. 22745 OF 2021** **4** issued an order dated 18.8.2010 confirming the provisional decision to dismiss the petitioner from service with immediate effect. The petitioner invoked the appellate remedy and approached the University Appellate Tribunal. By order dated 30.1.2011, the Tribunal after evaluation of the facts and circumstances, held that the punishment of dismissal was disproportionate and reduced the same to compulsory retirement from service as envisaged in section 63 (6) (ccc) of the Mahatma Gandhi University Act, 1997 (‘the Act’ for short). The order passed by the Tribunal was taken up before this Court and by Ext.P10 judgment, this Court took the view that considering the nature of allegations, the punishment of dismissal which was reduced to compulsory retirement by the Tribunal was disproportionate and the matter was remitted back to the disciplinary authority with liberty to impose any of the punishment as provided in Section 63(6)(a), (b) or (c) of the Act among the five charges levelled against the petitioner. 3. The petitioner contends that in obedience to the directions issued by this Court, the 1st respondent reinstated him in service. The matter was however taken up by the petitioner before the Hon’ble Supreme Court by preferring SLP (Civil) No.3247/2015. While the matter was pending before the Hon’ble Supreme Court, the 1st respondent by proceedings dated 4.11.2014 imposed fresh punishment under Section 63 (6) (c) of the Act by reduction of rank in the seniority as junior most Lecturer in the Department of Community Medicine in the college. It was also ordered as per Ext.P12 proceedings that **WP(C) NO. 22745 OF 2021** **5** the petitioner shall not be entitled to get back wages during the period from 2010 to 2014 since he has not been fully exonerated from the charges framed against him in the enquiry. Later, by Ext.P13 order dated 9.12.2014, the management proceeded to confirm the decision to regularize the period of absence of Dr. R. Suresh from 26.8.2010 to 15.10.2014 as a duty only for the limited purpose of pension by treating the period of absence from 26.8.2010 to 15.10.2014 as Leave Without Allowance in view of Rule 56(5) r/w. Rule 88(1)(a) of Part I of Kerala Service Rules r/w. Statute 42 of the Mahatma Gandhi University First Statute. In view of Exts. P12 and P13, the Special Leave Petition filed by the petitioner was disposed of by Ext.P14 order dated 20.2.2015 with liberty to the petitioner to work out his remedy as regards the denial of back wages in accordance with the law. Later, based on a review petition filed by the petitioner, Ext.P15 order was passed leaving open the right of the petitioner to challenge the order of punishment in accordance with the law. 4. Being aggrieved by the order reducing the rank and in denying the back wages, the petitioner preferred University Appeal No.8 of 2016 before the University Appellate Tribunal. The Tribunal by Ext.P16 order evaluated the entire facts and circumstances and came to the conclusion that the reduction to a lower rank in the seniority list was not liable to be interfered with. However, the respondents were directed to pay ⅗ portion of the entire back wages to the petitioner herein. The petitioner challenged the order passed by **WP(C) NO. 22745 OF 2021** **6** the University Tribunal before this Court by preferring C.R.P. (Uty) No.256/2017. A Division Bench of this Court, after considering the facts and circumstances, passed Ext.P17 order observing that the petitioner has not made out any case for interfering with the order passed by the Tribunal. Though the order was challenged before the Apex Court, the Special Leave Petition filed by the petitioner was rejected. 5. The petitioner contends that the respondents have imposed the punishment to a lower rank in terms of Statute No.73 in Chapter 45 of the MGU Statutes, 1997’. According to the petitioner, the punishment of reduction to a lower rank in the seniority list cannot be of a permanent nature and it can only be for a period of six months at the most. In the said circumstances, the petitioner approached the 1st respondent and submitted Ext.P18 representation seeking to restore the seniority which he was holding at the time of imposition of the punishment with effect from 4.5.2015, the date on which the period of six months from the date of the order of punishment imposed as per Ext.P12 was completed. When no action was taken, Ext.P19 representation was submitted. However, the respondents did not pass any orders. Left with no alternative, the petitioner approached this Court and pursuant to Ext.P21 judgment, the 1st respondent considered the representation and passed Ext.P22 order rejecting the request. The 1st respondent took the view that the reduction to a lower rank in the seniority list shall be permanent. To hold as aforesaid, the 1st respondent relied on Statute **WP(C) NO. 22745 OF 2021** **7** No.35 of Chapter 4 of the MGU Statutes, 1997. According to the petitioner, Statue No.35 of Chapter 4 of the MGU Statutes, 1997 would not apply to the petitioner as the said provision pertains to the terms and conditions of service of the non-teaching staff of the University other than University teachers. It is on these contentions that the petitioner has approached this Court seeking the following reliefs: - (i) issue a writ of certiorari or other appropriate writs, directions or orders calling for the records leading to Ext.P22 and quash the same; - (ii) Issue a writ of mandamus or other appropriate writs, directions or orders directing the 1st respondent to restore the seniority of the petitioner to the original position which the petitioner was holding at the time of imposition of punishment through Ext.P12 and give all consequential benefits including promotion to the petitioner forthwith; - (iii) Declare that as long as no period is specified while imposing punishment of reduction in lower rank in Ext.P12, then the period can only be six months and after that the petitioner is entitled to be promoted to the original post which he was holding at the time of imposition of punishment. 6. A counter affidavit has been filed by the 1st respondent. It is stated that it was by Ext.P12 order that the penalty of reduction of rank in the seniority list as junior most tutor (now redesignated as a Lecturer) in the Department of Community Medicine in the college was imposed on the petitioner. It is contended that Chapter 45 Statute 73 of the MGU Statutes, 1997 does not contain a provision as contended by the petitioner to limit the period of reduction to a lower rank to six months. It is further contended that the 1st respondent, by an inadvertent error had quoted Statute 35B in Chapter **WP(C) NO. 22745 OF 2021** **8** 4 of Part III of MGU Statutes 1997, in Ext.P22 order. This provision is applicable only to non-teaching staff and not to the petitioner, who is working as a tutor. It is further contended that the reliance placed by the petitioner on Rule 11 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 will not come to his assistance as the said provision also says that in case of reduction of rank in the seniority list, such reduction shall be permanent. 7. I have heard the submissions of Sri. Sajeevkumar K Gopal, the learned counsel appearing for the petitioner and Sri. Peter Jose Christo, who advanced arguments for and on behalf of the respondents. 8. From the pleadings and submissions made by the learned counsel, it is apparent that the contention of the petitioner is that the absence of stipulation of a definite period in the order dated 4.11.2014 by which reduction of his rank in the seniority as junior most tutor/ lecturer was made, the petitioner would be entitled to be restored to the position which he was holding with effect from 4.5.2015, the date on which, the petitioner has completed the period of six months. Obviously, the aforesaid contention is advanced by relying on the provisions of the MGU Statutes, 1997 and the relevant provisions of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. 9. I find that in Ext.P22 order passed by the 1st respondent, they had relied on Statute 35B in Chapter 4 Part III of the MGU Statutes, 1997. It **WP(C) NO. 22745 OF 2021** **9** has to be immediately noticed that Chapter 4 deals with the terms and conditions of service of the non-teaching staff of the University other than University teachers. The respondents in their counter affidavit have stated that they had wrongly relied on the said provision. According to them, the relevant provision would be Chapter 45 of the MGU Statutes, 1997 which deals with the Conditions of Service of Teachers and Members of Non-Teaching Staff in Private Colleges. Statute 73 in Part D, Chapter 45 deals with disciplinary action against the teachers of private colleges. Statute 73 reads as follows: 73. Penalties: The following penalties may, for good and sufficient reasons and as hereinafter provided. be imposed on teachers of private college, namely: - (i) Censure: (ii) Withholding of increments or promotion: (iii) (a) Recovery from pay of the whole or part of any pecuniary loss caused to the private college by his negligence or breach of orders: (b) Recovery from pay to the extent necessary of the monetary value equivalent to the amount of increments ordered to be withheld where such an order cannot be given effect to. Explanation. In cases of stoppage of increments with cumulative effect, the monetary value equivalent to three times the amount of increments ordered to be withheld may be recovered. **WP(C) NO. 22745 OF 2021** **10** (iv) Reduction to a lower rank in the seniority list or to a lower grade or post or time scale or to a lower stage in a time-scale: (v) Compulsory retirement: (vi) Removal from the private college which shall not be a disqualification for future employment: (vii) Dismissal from the private college which shall be a disqualification for any of the institutions maintained by or affiliated to the University. 10. As is evident from the provision extracted above, Statute 73(iv) does not stipulate that reduction to a lower rank in the seniority list shall be for a specified period. 11. Sri. Sajeev Kumar Gopal, the learned counsel would rely on the provisions relating to the non-teaching staff to bring home his point that the reduction to a lower rank can only be for a period of six months. Though the said provision has nothing to do with teachers like the petitioner, in order to appreciate his contentions, the relevant provisions can be looked into. 12. Statute 35 (B)(v) of Part III of chapter 4 reads as follows: B. Major Penalties (v) **Reduction to a lower rank** in the seniority list or to a lower grade or post or time scale: **WP(C) NO. 22745 OF 2021** **11** ## **Provided that in the case of reduction of rank in the seniority list such reduction shall be permanent.** Note: (1) The period of reduction shall not be less than six months and not more than five years. If the period is not specified in the order, the period of reduction shall be deemed to be six months. (2) Reduction to a lower stage in the time scale can be with or without the effect of postponing future increments. If no mention is made about this in the order, the reduction shall be deemed to be without the effect of postponing future increments: ( emphasis supplied ) 13. The contention of the learned counsel revolves around Note 1 which says that the period of reduction shall not be less than 6 months and not more than five years and if no period is specified in the order, the period of reduction shall be deemed to be six months. However, the proviso to Statute 35B(v) says in emphatic terms that in case of reduction in rank in the seniority list, such reduction shall be permanent. The well established rule of interpretation of a proviso is that a proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment nor can it be used to nullify or **WP(C) NO. 22745 OF 2021** **12** set at naught the real object of the main enactment. In other words, a reading of the provision would show that Note 1 would apply only in cases of reduction to a lower grade or post or time scale and not in the case of reduction to a lower rank. 14. The learned counsel would refer to the judgment of a learned Single Judge of this Court in **Abdul Rahiman v. State of Kerala** [2005 (3) KLT 250], to contend that as long as no time period is fixed for reduction of a lower rank in the seniority, the period of reduction can only be for a period of six months. However, I find that the said judgment was rendered in the content of Note appended to Rule 65 of the KER. As per the note, the reduction in rank may be either permanent or temporary and a temporary period of reduction shall not be less than six months and not more than two years. However, if no period is specified in the order, the period of reduction shall be deemed to be six months. The principles laid down in the said judgment cannot be applied to the petitioner. 15. The learned counsel would then refer to Rule 11 of the Kerala Civil Service (Classification Control and Appeal) Rules and it was argued that as per the said provisions if no period is specified, the reduction has to be restricted to six months. Rule 11(v) of the KCS ( CC and A) Rules read thus: - (v) Reduction to a lower rank in the seniority list or to a lower grade or post or time scale whether in the same service or in another **WP(C) NO. 22745 OF 2021** **13** service, State or Subordinate, or to a lower stage in a time scale; Note:- (1) The period of reduction shall not be less than six months and not more than five years. If the period is not specified in the order, the period of 7 reduction shall be deemed to be six months: Provided that in the case of reduction of rank in the seniority list, such reduction shall be permanent. The Proviso to the above Rule states in clear terms that in the case of reduction of rank in the seniority list, such reduction shall be permanent. 16. In view of the discussion above, I am of the considered opinion that the petitioner has not made out any grounds for interfering with Exhibit P22 order. This Writ Petition will stand dismissed. There will be no order as to costs. ## **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** PS/15/2/2022 **WP(C) NO. 22745 OF 2021** **14** ## **APPENDIX OF WP(C) 22745/2021** PETITIONER'S EXHIBITS: Exhibit P1 TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT UNIVERSITY DATED 9.10.2007 Exhibit P2 TRUE COPY OF THE RECEIPT ISSUED BY THE PRINCIPAL DATED 15.10.2007 - Exhibit P3 TRUE COPY OF THE OFFICE ORDER ISSUED BY THE PRINCIPAL DATED 14.7.2006 - Exhibit P4 TRUE COPY OF THE MEMO GIVEN TO THE PETITIONER BY THE 4TH RESPONDENT DATED 17.10.2007 - Exhibit P5 TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 17.10.2007 Exhibit P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 1.11.2008 Exhibit P7 TRUE COPY OF THE MEMO OF CHARGES ALONG WITH STATEMENT OF ALLEGATIONS DATED 28.5.2009 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER - Exhibit P8 TRUE COPY OF THE WRITTEN STATEMENT OF DEFENSE FILED BY THE PETITIONER DATED 18.6.2009 Exhibit P9 TRUE COPY OF THE ORDER NO.E/2997/2009 DATED 18.8.2010 - Exhibit P10 TRUE COPY OF THE JUDGMENT DATED 23.9.2014 IN CRP NO.160/2011 Exhibit P11 TRUE COPY OF THE ORDER ISSUED BY THE FIRST RESPONDENT DATED 13.10.2014 - Exhibit P12 TRUE COPY OF THE PROCEEDINGS VIDE ORDER NO E/2997/2009 DATED 4.11.2014 ISSUED BY THE 1ST RESPONDENT Exhibit P13 TRUE COPY OF THE ORDER NO.E2997/2009 DATED 9.12.2014 ISSUED BY THE FIRST RESPONDENT **WP(C) NO. 22745 OF 2021 15** - Exhibit P14 TRUE COPY OF THE ORDER OF THIS HON'BLE SUPREME COURT DATED 20.2.2015 IN SPECIAL LEAVE TO APPEAL (C) CC NO.3247/2015 - Exhibit P15 TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT DATED 5.5.2015 SPECIAL LEAVE TO APPEAL (C) CC NO. 3247/2015 - Exhibit P16 TRUE COPY OF THE ORDER DATED 24.4.2017 IN UNIVERSITY APPEAL NO.8/2016 - Exhibit P17 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN CRP (UTY) NO.256/2017 - Exhibit P18 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ON 3.12.2015 - Exhibit P19 TRUE COPY OF THE REPRESENTATION DATED 10.1.2020 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT - Exhibit P20 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 3.8.2020 - Exhibit P21 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.3187 OF 2021 - Exhibit P22 TRUE COPY OF THE ORDER NO.E/1485/21 DATED 31.3.2021 PASSED BY THE 1ST RESPONDENT REJECTING THE REQUEST OF THE PETITIONER RESPONDENTS' EXHIBITS: NIL