Dr. S. Babu Sundar v. Cochin University of Science and Technology

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 3RD DAY OF APRIL 2018 / 13TH CHAITHRA, 1940 WP(C).No. 2200 of 2015** **PETITIONER/APPELLANT:** **DR.S.BABU SUNDAR, AGED 58 YEARS, S/O P.SANKARAN, PROFESSOR AND HEAD OF DEPARTMENT OF COMPUTER APPLICATIONS, CUSAT,( NOW UNDERGOING THE MAJOR PENALTY OF REMOVAL FROM SERVICE) HAVING RESIDENTIAL ADDRESS AT KARUNNYAM, PEEDIKAPADY, WEST KADUNGALOOR, P.O.ALUVA-683 110** **BY ADVS.SRI.S.RADHAKRISHNAN SRI.S.RAJ MOHAN** ## **RESPONDENT/RESPONDENT:** **COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, REPRESENTED BY THE REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY P.O., COCHIN-682 000** **BY SRI.S.KRISHNAMOORTHY, SC, SRI.MILLU DANDAPANI SRI.M.R.HARIRAJ, SC, SRI.V.S.AFSAL KHAN, SC,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-02-2018,THE COURT ON 03-04-2018 DELIVERED THE FOLLOWING:** **sts 5/4/2018** ## **WP(C).No. 2200 of 2015 (Y)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **EXHIBIT P1: A TRUE COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS NO.AD.D3/4599/83 DATED 4.7.2007 ISSUED TO THE PETITIONER** - **EXHIBIT P2: A TRUE COPY OF THE REPLY TO THE MEMO OF CHARGES SUBMITTED BY THE PETITIONER ON 19.7.2007** - **EXHIBIT P3: A TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER** - **EXHIBIT P3(a): A TRUE COPY OF THE TABULATION SHEET OF 10 CANDIDATES IN 36 PAPERS, PREPARED BY THE REVALUATION SECTION** - **EXHIBIT P4: A TRUE COPY OF THE WRITTEN SUBMISSION DATED 30.4.2008 SUBMITTED BY THE PETITIONER BEFORE THE ENQUIRY COMMISSION** - **EXHIBIT P5: A TRUE COPY OF THE ORDER NO.AD.D3/4599/83(VOL.1) DATED 12.8.2009** - **EXHIBIT P6: A TRUE COPY OF MEMORANDUM OF APPEAL NO.14 OF 2009 FILED BY THE PETITIONER BEFORE THE UNIVERSITY APPELLATE TRIBUNAL, TRIVANDRUM UNDER SECTION 30(1) OF THE CUSAT 1986** - **EXHIBIT P7: A TRUE COPY OF THE WRITTEN STATEMENT DATED 24.3.2010 FILED BY THE REGISTRAR CUSAT** - **EXHIBIT P8: A TRUE COPY OF THE JUDGMENT DATED 29.9.2014 PASSED BY THE COCHIN UNIVERSITY APPELLATE TRIBUNAL IN UNIVERSITY APPEAL NO. 14/2009** ## **RESPONDENT'S EXHIBITS:** ## **NIL** **/TRUE COPY/** **P.A.TO JUDGE** **sts 5/4/2018** ## **P.V.ASHA, J.** ## **W.P.(C) No.2200 of 2015** ## **Dated this the 3[rd] day of April, 2018** ## **JUDGMENT** The petitioner, who was given full additional charge of Controller of Examinations of Cochin University of Science and Technology (CUSAT for short), is aggrieved by Ext.P5 order by which he was removed from service and Ext.P8 order by which the University Appellate Tribunal dismissed his appeal. 2. While working as Professor and Head of the Department of Computer Applications in CUSAT, petitioner was given additional charge of Controller of Examinations with effect from 5.12.2005. He was thereafter relieved from that post on 22.5.2007. On 16.6.2007, the Vice Chancellor in charge placed him under suspension in contemplation of disciplinary action on allegations relating to the duties in his capacity as Controller of Examinations. Ext.P1 memo of charge was issued on 4.7.2007, along with statement of allegations. The allegations against him were: he as the Controller of Examination passed an unusual order to the effect that revaluation of an answer paper will include the revaluation of the answer script of Multiple Choice Questions Response (MCQR) also; he passed an order in W.P.(C) No.2200/15 :2: August 2006 that multiple choice questions (MCQ) answer books in respect of 1[st] year MBBS examination be sent for revaluation to examiners outside the panel approved by the Board of Studies, without stating any exceptional circumstances for resorting to the said step and without getting approval from higher authorities including Pro-Vice Chancellor and Vice Chancellor, in violation of Statute 1(d) of the Cochin University 1[st] Statute, 1975; the two examiners who were appointed by the petitioner were not provided with correct answer key for valuation and MCQ answer scripts were already tampered before they got them for revaluation. It was alleged that there is no practice of revaluation of MCQR answer scripts as possibilities of tampering are large. The allegations and omissions on his part were alleged to have constituted violation of statute 8 of Cochin University First Statutes, 1991 and the relevant examination rules which entails disciplinary action under section 18 (xii) read with section 47 of the Cochin University Act 1986 (Act 31 of 1986). Petitioner was directed to show cause against the proposal to take disciplinary action against him under the University Act and Statutes within 15 days. He was also permitted to peruse the relevant record and to take down extracts. 3. Petitioner submitted Ext.P2 reply on 19.7.2007. Petitioner submitted that the First Statute 1975 was already replaced by CUSAT W.P.(C) No.2200/15 :3: First Ordinance, 2001 framed under CUSAT Act, 1986. The duties and functions of Controller of Examinations and conduct of various examinations are provided in CUSAT First Ordinance, 2001; the post of Controller of Examinations was created in the University only in 1991 and therefore the First Statutes, 1975 could not have regulated the powers and functions of Controller of Examinations. He further stated that in exceptional circumstances the Controller of Examinations is empowered to appoint persons not included in the panel approved by the Board of Studies as provided in Regulation 2 (a) of 2001 Ordinance. Petitioner stated that appointment of examiners was found necessary as there was no panel of examiners approved by the Board of Studies; it was also necessary to avoid the examiners who had valued the papers at the first instance. Petitioner stated that since it was found that there was no examiner available other than those who had valued the answer books at the first instance and the results were to be published urgently it was decided to appoint examiners who volunteered for such appointment. Petitioner stated that the examiners Dr.Latha Sreedhar and Dr.Padmanabhan Nair were appointed by him in his capacity as the Controller of Examinations under clause 2(a) of CUSAT First Ordinance, 2001. Petitioner also pointed out that there had been several instances of such appointments of examiners for W.P.(C) No.2200/15 **==> picture [14 x 9] intentionally omitted <==** revaluation. He stated that those examiners had not complained to him or intimated him that they had not received the answer key for the revaluation, as it is the usual practice to forward the answer key for revaluation, it could have been only an inadvertent mistake. Petitioner stated that the examiners had not informed him that the answer scripts were found tampered and that they should have reported it to the Controller of Examinations before valuing it. It was stated that the the answer scripts were not handled by Controller of Examinations personally and that the allegation about his instigation was baseless. He stated that he had directed to revalue 36 MCQR answer scripts of 18 papers of 10 candidates who had applied for revaluation. He had directed the revaluation of all the three portions of a particular paper on application for revaluation and the decision to revalue MCQR answer script was taken in tune with the provisions in the CUSAT First Ordinance, 2001 for which approval is not required from Vice Chancellor. He also pointed out that the allegations that revaluation was directed in the case of only three candidates was totally incorrect. But the fact was that only three candidates came out successful in the revaluation, though there were changes in the marks with respect to others. 4. Thereafter a District Judge was appointed as Enquiry W.P.(C) No.2200/15 **==> picture [14 x 9] intentionally omitted <==** Commission. 14 witnesses were examined and 10 documents were marked on behalf of the University. Apart from that the Commission summoned 8 witnesses and called for production of 9 documents. Petitioner submitted his written submission Ext.P4 before inquiry Commission on 30.4.2008. Ext.P3 enquiry report was submitted thereafter finding the petitioner guilty of all the charges and recommending exemplary punishment. The Commission stated that it could not come to a conclusion as to when or by whom the answer books were tampered. The syndicate in its meeting held on 20.9.2008 resolved to seek explanation from the petitioner on the findings of the Commission and resolved to constitute a committee to study the report and the explanation offered by the petitioner. Thereafter in the meeting held on 30.12.2008 it was resolved to accept the recommendation of the Committee to remove the petitioner from service and to issue a show cause notice against the proposed punishment. Even though petitioner submitted his explanation pointing out that allegations against him were baseless, the Syndicate confirmed its decision and Ext.P5 order was passed on 12.08.2009 awarding the petitioner a punishment of removal from service which shall not be a disqualification for future employment. Petitioner submitted Appeal No.14 of 2009 (Ext.P6) before the University W.P.(C) No.2200/15 :6: Appellate Tribunal. However the appeal was dismissed as per Ext.P8 judgment dated 29.9.2014. The Tribunal found that there was no challenge against the inquiry report and the punishment awarded was based on the charges proved against the petitioner. The writ petition is filed in the above circumstances. 5. The contention of the petitioner is that the charges alleged against him in Ext.P1 are unsustainable. The first charge against the petitioner is violation of Statute 1(d) of the First Statute 1975. The First Statute 1975, was no longer in force when Ext.P1 memo of charge was issued. But the syndicate had already framed CUSAT First Ordinance under section 18(4) of the CUSAT Act, 1986 which was published in official gazette on 24.11.2001. The rules relating to the conduct of University Examinations are governed by CUSAT First Ordinance, 2001. Therefore it is contended that from 24.11.2001 onwards, the date on which the ordinance was published, the procedure for examination, valuation, revaluation etc. in CUSAT are governed by the said ordinance and consequent to that the First Statute, 1975 had already become non-est and therefore the charge that he violated statute 1(d) of the First Statute, 1975 will not lie. 6. It is pointed out that the University was not maintaining a panel of examiners for external examinations, as far as MBBS W.P.(C) No.2200/15 **==> picture [14 x 9] intentionally omitted <==** examination is concerned and there was no approved panel of examiners for MBBS examination. According to the petitioner, it was in the above circumstances, that he engaged examiners who had submitted their bio-data for being empanelled as approved examiners. According to petitioner, Rule 2(a) of CUSAT First Ordinance, 2001 empowers the Controller of the Examination to appoint persons not included in the panel as examiners/paper setters in exceptional circumstances and no approval is required for the same. It is argued that Vice Chancellor alone is competent to cancel or modify any of the decisions taken by the Controller of Examinations relating to the examinations and hence against his decision to revalue MCQ answer scripts. According to him, for revaluation of one paper to be complete, MCQ answer scripts are also to be revalued. It is stated that as per rule 9(1) of the First Ordinance, on revaluation of answer books of University Examinations an application for revaluation of answer scripts would be considered only for examinations other than post graduate examinations, practical examinations, field works, sessional work, thesis submitted in lieu of a paper and such other examinations for which there is provision for double valuation. The MBBS examination papers are subjected to single valuation only. Therefore MCQ also was liable to be revalued. It is stated that the decision to revalue MCQ W.P.(C) No.2200/15 **==> picture [14 x 9] intentionally omitted <==** answer sheet was taken by the office of the Controller of Examinations after elaborate deliberation, application of mind with reference to the provisions in the First Ordinance 2001, not to perpetuate the mistakes committed till then. According to the petitioner, the candidates, who identified the papers, on application for rechecking, found that the MCQR answer scripts were not valued and when they submitted representations after further deliberations, it was decided to permit revaluation of MCQR answer books of first MBBS examination of 2006. Therefore it was stated that petitioner did not commit any misconduct. According to the petitioner no complaint was received by him with respect to the tampering of marks in MCQR and he is not in any way involved in the alleged tampering. The complaint of the petitioner is that the enquiry Commission did not look into these rules while entering in to conclusion against the petitioner. The enquiry officer also did not look into the contention of the petitioner that the University First Statute 1975 was not in existence and hence the charges framed against him were unsustainable. His further case is that the Appellate Tribunal rejected the appeal without going into the evidence on the ground that the enquiry report was not challenged. 7. In the counter affidavit filed by the respondent, it is stated that petitioner ordered revaluation of MCQ answer scripts in the W.P.(C) No.2200/15 **==> picture [14 x 9] intentionally omitted <==** absence of any exceptional circumstances, and he did not seek approval from higher authorities including Pro-Vice Chancellor & ViceChancellor, despite the fact that there is no practice of such revaluation; as per statute 1(d) of the First Statute 1975, Pro Vice Chancellor shall be in charge of the examination office of the University and he shall be responsible for the arrangement for conducting the examination, publication of results of the examination and all other matters connected with the examination. The contentions raised by petitioner before the Inquiry Commission was duly considered; it was found that since Vice Chancellor is conferred with supervisory power the petitioner was required to get approval from the Vice Chancellor for introducing any decision. It is stated that as per section 55(2) of the CUSAT Act, the Statutes, Ordinances, Regulations, Rules, Bye-laws and orders in force immediately before the commencement of the Act would continue to be in force in so far as they are not inconsistent with the provisions of the Act until they are replaced by Statutes, Ordinances, Regulations, Rules, Bye-laws and orders framed under the Act. It is stated that the First Statute 1975 is not replaced by the First Ordinance 2001 and it is not stated so anywhere. It is also pointed out that the First Statute 1975 was enacted by Government where as the First Ordinance 2001 is framed by the Syndicate. More over the W.P.(C) No.2200/15 **==> picture [20 x 9] intentionally omitted <==** matters covered by First Ordinance, 2001 and those covered by the First Statute 1975 are different. It is stated that statutes modifying the power of Pro Vice Chancellor are yet to be issued. It is also pointed out that the Controller of Examinations does not figure in the list of statutory officers of the University under section 10 of Chapter 3 of CUSAT Act. When the enquiry commission has conducted a detailed enquiry and on the basis of evidence adduced found the charges proved against the petitioner, the contention of the petitioner cannot be looked into and are only liable to be rejected. Petitioner being a responsible superior officer is not expected to do any act lowering the reputation of the University. 8. I heard Sri.S.Radhkrishnan, learned Counsel appearing for the petitioner and Sri. S.Krishnamurthy, the learned Standing Counsel for the respondent. In the light of the contentions advanced on both sides, it is necessary to examine whether Statute 1(d) of Cochin University First Statute 1975 continues to be in force even after the 1986 Act and the Ordinance 2001 which exclusively deals with examinations and related matters came into force and whether the charges as to violation of the provisions in 1975 Statute would lie against the petitioner. 9. The Cochin University Act 1971 was notified on 24.8.1971. W.P.(C) No.2200/15 **==> picture [19 x 9] intentionally omitted <==** The First Statute 1975, which was notified on 10.6.1975, was framed by Government of Kerala in exercise of powers conferred under Section 31 of the Cochin University Act, 1971. Section 31 of the Act, 1971, provides for the procedure to be followed for making statutes. Subsection 1 of Section 31 read as follows: _“31. Procedure for making Statutes: (1) The first statutes of the University shall be made by the Government, by notification in the official gazette and shall continue to be in force until amended or superseded by Statutes made by the Senate in accordance with the provisions of this section.”_ Subsections 2 to 7 of Section 31 provides for the procedure to be followed by the senate. Subsection 8, which is relevant in this context reads as follows: _“(8) No statute passed by the Senate shall have validity until assented to by the Chancellor and it shall come into force on the date of its publication in the official gazette or such other date as the Chancellor may fix.”_ The First Statute 1975 provides for various officers/authorities under the Act, 1971 i.e “the Vice Chancellor, Pro-Vice Chancellor, Registrar, Finance Committee and Finance and their powers and functions. Chapter II under the First Statute 1975, deals with the powers and functions of the Pro vice Chancellor. As per clause (a) of Statute 1 of Chapter II of this First Statute, the Pro-Vice Chancellor shall be the Principal Adviser to the Vice Chancellor in all matters, both administrative and academic, and shall perform such functions as may W.P.(C) No.2200/15 **==> picture [20 x 9] intentionally omitted <==** be assigned to him by the Vice Chancellor or by or under the Act, Statute, ordinances, the Regulations and the byelaws. Clause (d) provides that he shall be in charge of the examination office and shall be responsible for the conduct of the examinations and all other matters connected with examination under the First Statute 1975. When the 1971 Act empowered the Senate to make statutes, Section 33 empowered the Syndicate to make ordinances. 10. Cochin University of Science and Technology Act, 1986 (CUSAT Act 1986) came into force on 30.11.1986, repealing the Cochin University Act 1971. Section 40 of the 1986 Act provides that subject to the provisions of the Act and Statute, the Ordinances of the University may provide for (1) fee to be charged for the courses of study and for admission to the examinations, degrees and diplomas to the University; in clause (3) for the conduct of examinations including the term of office, manner of appointment and the duties of examining bodies, examiners and moderators. Section 18(iv) empowers it to make Ordinances and Rules and to amend and repeal the same. Clause (xix) of Section 18 empowers it to conduct examinations and approve and publish the results thereof. Clause (xxi) empowers it to approve panels of examiners and to fix their remuneration; clause (xxiv) to withhold or cancel the result of any candidate at any examination. It is W.P.(C) No.2200/15 **==> picture [20 x 9] intentionally omitted <==** pertinent to note that while Section 18 (iii) of the Act 1986, empowers the Syndicate to make Statutes for the consideration of the Chancellor, Section 38 provides that the Statutes may provide for (1) constitution, functions and powers of the authorities of the University and such other bodies as may be declared to be authorities of the University from time to time; (2) appointment, conditions of service, powers and duties of the officers, teachers and other employees of the University. Section 10 of the Act 1986 provides that (i) Vice Chancellor (ii) proVice-Chancellor (iii) Registrar (iv) Finance Officer; and (v) such other officers in the service of the University as may be declared by the Statutes to be Officers of the University. Under Section 12(3) the powers and functions of the Pro-Vice-Chancellor shall be as determined by the Vice Chancellor. 11. CUSAT First Ordinances, 2001 was issued on 24.11.2001 which is framed under Section 18 (iv) of the CUSAT Act 1986 and it provides for the rules regarding conduct of various University examinations. Thus all matters relating to University examinations are covered by the 2001 ordinance, which is self contained. On the other hand the provisions relating to conduct of examinations in the First Statute 1975 are those contained in Clause (d) of Statute 1 of Chapter II. The First Statute which deals with Pro-Vice Chancellor read infra: W.P.(C) No.2200/15 **==> picture [20 x 9] intentionally omitted <==** _“1. The Pro-Vice-Chancellor shall exercise the powers and following functions:-_ _(a)xxx_ _(d) He shall be in charge of examination office of the University and shall be responsible for the arrangement for the preparation, scheduling, marking and reporting of all examinations and publication of of results of all such examinations and all other matters connected with such examinations._ _He shall be competent_ _(i) to accept, in deserving cases, applications from candidates for admission to University Examinations, who could not remit the examination fees within the prescribed time limit._ _(ii) to sanction plane fare as a special case to the University examiners and other non-official members of the authorities of the University._ _(iii) to sanction payment of remuneration and T.A to examiners, question paper setters and members of the Board of examiners,_ _(iv) the Pro-Vice Chancellor shall be competent to sanction purchase and proper maintenance of all appliances apparatus and other stores by or various Departments, in accordance with Store Purchase Rules applicable to Government of Kerala._ 12. Clause 2 of 2001 Ordinance deals with appointment of question paper setters and examiners by the Controller of Examinations, the cancellation of such appointments, the qualification for inclusion in the panel by Board of Studies, the period of appointment of examiners, constitution of question paper setters, board of examiners, liability of University to pay the remuneration to examiners/paper setters, constitution of viva Board, etc. Clause 3 provides for the conduct of examination; clause 4 for valuation of answer books of Post Graduate examination; clause (5) for valuation of answer books of undergraduate examinations; appointment of Chief Examiners, _subclause (c) provides that the Vice-Chancellor may order_ W.P.(C) No.2200/15 **==> picture [20 x 9] intentionally omitted <==** conduct of centralised valuation which shall be arranged by Controller of Examinations; clause (6) relating to constitution of passing Board by Controller of Examination and the method to be adopted by it and for publication of results by Controller of examinations based on the report of that Board; clause 7 provides interalia for the powers of Vice Chancellor to cancel or modify the decisions of Controller of examinations and to assign the powers of Controller of examinations to other officer; issuance of provisional certificate; facility for scrutiny of marks, communication of its results; clause 8 provides for centralised valuation; clause 9 and 10 for re-valuation. 13. The 2001 Ordinance does not mention any role of Pro-ViceChancellor in respect of matters provided therein. On several aspects the Controlling Officer is to report to the Vice Chancellor. Power is conferred on Vice Chancellor to modify or annul any decision of the Controller of examinations. Controller of Examination is not an officer covered by the Act 1986 or the Statutes thereunder. When Statute 1 (d) of First Statute 1975 is general in nature while providing that ProVice Chancellor shall be in charge of the examination office of the University and preparation, scheduling, marking and reporting of all examination and publication of all such examinations and all other matters connected with it and confers power on Pro-vice chancellor to W.P.(C) No.2200/15 **==> picture [20 x 9] intentionally omitted <==** accept examination fee in certain cases and to sanction payment of remuneration, such powers are not seen conferred on Controller of Examinations. The Controller of examinations is not a conferred authority to be in charge of the examination office of the University, as in the case of Pro Vice Chancellor in Statute 75. However under 2001 Ordinance, the Controller need report before the Vice Chancellor and Vice Chancellor is conferred power even to annul the action or even to induct another officer in his place. 14. Senate has not made any statute as provided in subsection (1) of section 31 of the Cochin University Act 1971. Going by that subsection the First Statute 1975 shall continue to be in force until it is replaced by the statute made by Senate. Under section 39 of CUSAT Act 1986 also it is for the Government to make the First Statute by notification in the gazette; but it shall continue to be in force until it is amended or superseded by Statutes made by Syndicate. When the 1971 Act empowered the Senate to make statutes, section 33 empowered the Syndicate to make ordinances. The 1986 Act, empowers the Syndicate to make statute as well as Ordinances. The 1971 Act was repealed by Section 58 of the CUSAT Act 1986. In order to examine the effect of the new enactment it is necessary to have a look at Section 55(2) of the CUSAT Act 1986 -the transitory provision. W.P.(C) No.2200/15 :17: _“55. Transitory Provisions: (1) xxxx_ _(2) The Statutes, Ordinances, Regulations, Rules, Bye-laws and Orders in force immediately before the commencement of this Act shall, in so far as they are not inconsistent with the provisions of this Act, continue to be in force until they are replaced by the Statutes, Ordinances, Regulations, Rules, Bye-laws or Orders framed under that Act._ 15. There is no first statute framed by Government under the 1986 Act, relating to the powers and functions of the officers and authorities under the Act as in the case of the First Statute 1975. Government of Kerala by virtue of the powers conferred under S.39(1) of Act 31 of 1986 framed the Cochin University of Science and Technology First Statute, 1991. But that First Statute is on service conditions of teachers and other staff of the University, which was governed by the Cochin University First Statute 1981. There is no statute framed under the provisions of the new Act which can replace the First Statute 1975, as provided in Section 31(1) of the Act 71 read with Subsection 2 of Section 55 of the Act 1986. 16. On a comparative analysis of the provisions contained in Statute 1(d) of the First Statute 1975 and those in the Ordinance 2001, it can be seen that the 1975 Statute is general in nature, whereas the Ordinance 2001 exclusively deals with proceedings relating to the conduct of examinations till its publication of results and even thereafter relating to re-valuation and publication of its results. Certain powers which were conferred on the Pro-Vice Chancellor in W.P.(C) No.2200/15 **==> picture [20 x 9] intentionally omitted <==** Statute 1 (d) are also included in this, more elaborately; however it does not mention anything about Pro-Vice-Chancellor; but only the Controller of Examinations, with supervisory powers on Vice Chancellor. If the provisions in the First Statute 1975 are examined with reference to Section 55(2) of the 1986 Act, it can be seen that certain provisions in the 2001 Regulations overlap certain provisions in the First Statute 1975. It can be said that the First Statute to the extent it does not confer any power on the Controller of Examinations and the 2001 Regulation to the extent it does not mention the authority of Pro-Vice-Chancellor are inconsistent. In 2001 Ordinance, the Vice Chancellor is the controlling/reporting authority of the Controller of Examinations. But there is no inconsistency with respect to certain matters covered by Statute 1, which are not covered by 2001 Ordinance. At any rate, the contention of the petitioner that the First Statute 1975 ceased to be in force, cannot be accepted as long as there is no First Statute framed under the provisions of 1986 Act in respect of matters covered by the 1975 Statute. Moreover there is no First Statute framed by the Senate also as provided in section 31 of the 1971 Act. 17. The dictum laid down in the judgment in _**Babu Sunder v. Cochin University : 2001 (2) KLT 321,**_ relied on by the learned W.P.(C) No.2200/15 **==> picture [20 x 9] intentionally omitted <==** counsel for the petitioner, where petitioner himself was a party, is not applicable in this case, since in that case the dispute was with respect to First Statute, 1981 and First Statute 1991, both relating to the service conditions and code of conduct of teachers and this Court found that the 1981 Statute was replaced by 1991 Statute. In this case there is no such First Statute framed by Government which could replace the provisions contained in chapter 2 of the First Statute 1975. Therefore, in the light of Section 31(1) of the repealed Act 1971 read with section 55(2) of the 1986 Act, it cannot be said that the provisions in the First Statute 1975 ceased to be in force, to the extent there are no inconsistencies. 18. It is also necessary to examine whether the dictum laid down in the judgment in _**Dharangadhra Chemical Works v. Dharangadhra Municipality, (1985) 4 SCC 92**_ **,** relied on by Sri.S.Radhakrishnan, the learned counsel for the petitioner, is applicable in this case. In that case the apex court was considering the effect of the Municipal Rules and bye-laws over the Rules framed by Government, where authorities empowered to levy of Octroi duty was different. The following discussion and conclusion in that judgment is relevant in this context: W.P.(C) No.2200/15 :20: _13. Counsel for the appellant also raised the question as to whether the Municipal Rules and Bye-laws being a subordinate piece of legislation could repeal either expressly or by implication the Ordinance promulgated by Rajpramukh and the Rules framed thereunder by the State Government and urged that the Municipal Rules or Bye-laws could not do so; he further urged that for effecting such repeal the Municipal Rules and Bye-laws, 1965 should have at least been raised to the status of parent legislation by deeming them to have been incorporated in the statute as is done in some cases like the town Planning Acts which provide that as soon as a final town planning scheme comes into force it shall be deemed to have been incorporated in the Act itself. The contention as formulated really misses the vital aspect that the effective charge and levy of the octroi is imposed by the Rules and not by the parent legislation, be it an Ordinance or the appropriate Municipal Act. The parent legislation merely confers power on the specified body or authority to frame rules for the purpose of levying and collecting octroi duty. Under the Ordinance of 1949 it was the State Government on whom such power had been conferred while under the appropriate Act such power has been conferred on the concerned municipality; in either case the levy and collection of the duty is by means of subordinate legislation and if such subordinate legislation is validly enacted by following the prescribed procedure under the parent legislation there is no reason why such subordinate legislation should not have the effect of impliedly repealing the earlier subordinate legislation and no question of one named body or authority being lower than the other can arise; in other words the status or character of the Rule-making body would be irrelevant. In this view of the matter there would be no necessity of raising the Municipal Rules and Bye-laws to a higher status of the parent legislation as contended by the counsel for the appellant. The first contention therefore fails._ On a reading of the judgment supra it would appear that a provision similar to section 55(2) of the 1986 Act or section 31(1) of the 1971 Act was not available in the rules/bye-laws which were under consideration before the Apex court. Therefore that judgment cannot be applied in this case. However, in the absence of any power conferred on the Pro-Vice-Chancellor in the 2001 Ordinance and in the absence of any provision which obligates the Controller of Examination to report to the Pro-Vice Chancellor, either in 751[st] Statute or in 2001 W.P.(C) No.2200/15 **==> picture [20 x 9] intentionally omitted <==** Ordinance, it cannot be said that there is violation of the provisions in Statute 1 (d) of Chapter II of the First Statute 1975. 19. Another contention of the petitioner is that the disciplinary proceedings initiated against him are under Statute 8 of the First Statute 1991 and sec.18 (xii) r/w sec.47 of the CUSAT Act, 1986. Section 18 (xii) of the CUSAT Act, 1986 deals with the powers of the Syndicate to suspend, discharge, dismiss or otherwise take disciplinary action against teachers and other employees of the University of and above the rank of Asst.Registrar. Section 47 on the other hand protects the acts of the employees for anything done by them in their official capacity in pursuance of the Act, Statute, Ordinance, Regulation, Rules, bye-laws and orders. Quoting of a wrong provision will not in anyway absolve the petitioner from the disciplinary action. 20. A perusal of Ext.P1 memo of charge will reveal that the charges against the petitioner are not mere violation of the provisions in First Statute 1975. The allegations are explained in detail; therefore even assuming that there is no violation of the provisions in 1975 First Statute, petitioner cannot be absolved on that ground. The charge no.1 against him is that he sent MCQ answer scripts for revaluation to examiners outside the panel without recording any exceptional circumstances for doing the same. The 2[nd] allegation against him is W.P.(C) No.2200/15 **==> picture [20 x 9] intentionally omitted <==** that the two examiners had stated that they were not given the answer key of MCQ examination and that the answer scripts were tampered before they got it for re-valuation. The 3[rd] allegation is that there is no practice or precedence of revaluation of MCQ answer scripts, as the possibility of tampering is large and of creping of mistakes in it is remote and that he adopted an unusual procedure without obtaining lawful orders of any higher authorities. 21. Regarding the powers of Controller of Examinations, it is true that section 2(a) of the 2001 Ordinance empowers the Controller of Examinations to appoint question paper setters and examiners from respective panels prepared on the basis of recommendation of the Board of Studies in the subject concerned. It also provides that he may appoint persons not included in the panel as examiners/paper setters in exceptional circumstances. Though it is true that clause 2(a) does not provide for approval or permission from anybody for appointment outside the panel, it mandates the existence of exceptional circumstances. Therefore it shall be incumbent on the person making such appointments to record those exceptional circumstances which compelled him to make such appointments. What is alleged is that nothing was stated in his note file in support of his action. Clause 7 (I) of the Ordinance provides that any action of the Controller of W.P.(C) No.2200/15 **==> picture [20 x 9] intentionally omitted <==** Examination can be interfered with by the Vice Chancellor and any or all the powers of the Controller of Examinations can be assigned to any other officer by the Vice Chancellor. Therefore the Controller of Examination is subject to the supervisory powers of the Vice Chancellor. Any of his decisions are subject to scrutiny. Therefore petitioner cannot get himself absolved of the charges of not recording the exceptional circumstances, which is the condition precedent for exercising his power to appoint examiners from outside the panel given under clause 2(a). The files shall reflect the reasons. 22. The case of the petitioner is that being the Controller of Examinations he is conferred with the authority to appoint examiners under Rule 2(a) of the 2001 ordinance. It is stated that the decision to send MCQ answer script was taken by him; he further stated that it is a collective decision. That issue cannot be said to be purely a legal question. The allegation is that there is no practice or precedent of sending MCQ answer scripts for revaluation. Inquiring authority and disciplinary authority found that such MCQ answer scripts cannot be sent for revaluation; there is no such practice or precedent and before taking such decision he did not seek approval from any of the higher authorities. Serious manipulations were found in those MCQ answer scripts, though the inquiry officer found himself handicapped in finding W.P.(C) No.2200/15 **==> picture [20 x 9] intentionally omitted <==** out when and where the manipulations were carried out in the answer scripts i.e whether it is before it was sent for revaluation or thereafter or whether it was given to the candidate himself for identification. 23. The case of the petitioner is that the external examiners were appointed in the absence of any panel of examiners. The inquiry officer found the petitioner guilty of the charges. This court is not supposed to re-appreciate the evidence. It is not a pure question of law also. I have already considered the question of law raised by the petitioner. 24. The charges alleged against the petitioner are already inquired into and he was found guilty of the same. The punishment is awarded on the basis of the findings in the inquiry. Petitioner does not have any complaint as to any procedural irregularity in the conduct of the inquiry. Interference by this Court in such matters in disciplinary action under Article 226 of the Constitution of India is too limited. 25. Though petitioner filed a statutory appeal before the Appellate Tribunal, it is seen that the Tribunal did not analyse the evidence, stating that petitioner has not challenged the inquiry report. Even without a separate challenge, the Tribunal, the statutory appellate authority is expected to consider all the contentions with reference to the evidence on record including the sufficiency or W.P.(C) No.2200/15 **==> picture [20 x 9] intentionally omitted <==** otherwise of the evidence to arrive at the finding and the adequacy and proportionality of punishment, in accordance with law. In the above circumstances, I set aside Ext.P8 order and remit the matter to the Appellate Tribunal for consideration of the appeal afresh, to pass fresh orders after hearing both sides, in accordance with law. The writ petition is disposed of accordingly. sd/- **P.V.ASHA JUDGE** rkc