Dr. Sajan v. Cochin University of Science and Technology (CUSAT)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942** ## **WP(C).No.17990 OF 2020(W)** ## **PETITIONER/S:** **DR.SAJAN** **S/O. (LATE) K.VKURIAN, HOUSE NO.122, KARYAKULAM, MATHER NAGAR, CHANGAMPUZHA NAGAR P.O., KOCHI-682 033, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, DR.NISH N.R., AGED 47 YEARS, D/O. (LATE) N.RAVINDRAN, FLAT NO.1108, OCEANUS MAPLE, VAYANASALA JUNCTION, VATTEKKUNNAM, BP MARAKKAR ROAD, EDAPPALLY TOLL, KOCHI-682 024** **BY ADVS. SRI.K.JAJU BABU (SR.) SHRI.AYESHA MARIA JOHN SRI.MANU GOVIND** ## **RESPONDENT/S:** **1 THE COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY (CUSAT) COCHIN UNIVERSITY P.O., SOUTH KALAMASSERY, ERNAKULAM682 022, REPRESENTED BY THE REGISTRAR 2 THE REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY P.O., SOUTH KALAMASSERY, ERNAKULAM-682 022,** **R1-2 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-122020, THE COURT ON 18-12-2020 DELIVERED THE FOLLOWING:** ## **JUDGMENT** ## **Dated this the 18th day of December 2020** The petitioner in this writ petition has laid challenge to the order dated 10.7.2000, Ext.P11 and P12, inter alia on the premise that petitioner was the Professor and Head of Department of Marine geology and Geo-Physics as well as the Director of Director of School of Marine Sciences at the first respondent. He was, while in service, suspended on 17.11.2017. The aforementioned order was challenged before this Court by filing W.P (C) No.37616/2017. This Court vide judgment delivered on 15.12.2017, disposed of the writ petition granting liberty to the petitioner to make a request for revocation of suspension. It was also ordered that request if any to be made should be considered with an outer time limit of six weeks. It was also directed that in case the University intends to conduct any disciplinary proceedings, the same shall be completed before 30.4.2018. 2. The Syndicate of the University in a meeting held on 21.10.2017, ie. Prior to the passing of order of suspension, heard the complaint of Dr.J.Sundaresan Pillai, the father of a girl student and constituted an Enquiry committee with Dr.P.G.Sankar, Pro-Vice Chancellor as Convener and Dr.Poornima Narayan, Member of Syndicate and Dr.A.N.Balchand, Dean, Faculty of Marine Sciences as members to look into the matter. Based on the report submitted dated **WP(C).No.17990 OF 2020(W)** **3** 13.11.2017, the Syndicate suspended three teachers including the petitioner subject to a detailed enquiry by a woman Judicial Officer, who was appointed by the Vice Chancellor. The Syndicate at its meeting held on 10.1.2018 resolved to approve the memo of charges and Statement of Allegations framed against the petitioner and two other Asst.Professors. The directions contained in the order dated 30.7.2018, Ext.P2 were assailed in writ appeal No.194,210 and 216 of 2018. This Court vide interim order stayed the operation of suspension order issued by the University. Vide judgment dated 23.3.2018, Ext.P3 this Hon’ble Court directed the Vice Chancellor to immediately consider the report of the enquiry committee, which was constituted to look into the allegations raised by Dr.J.Sundaresan Pillai regarding harassment of his daughter by the Faculty of the Department of Marine Geology and Geo Physics on merits and initiate action, if required, by appropriate orders, to put remedial measures in place, so as to ensure that the unfortunate events should not be allowed to repeat in the future. It was also directed that the University will be entitled to pursue and conclude and appropriate action against the appellants, either in terms of the University Order or in terms of any other order that may be in future issued. The Judgment of this Court was placed before the Syndicate and the Syndicate at its meeting held on 23.6.2018 resolved to conduct an **WP(C).No.17990 OF 2020(W)** **4** orientation programme every year for teachers of the University and expedite the enquiry initiated against the petitioner and two other teachers. 3. Accordingly, on 20.7.2018 the memo of charges with statement of allegations were issued to the petitioner and the other two delinquent teachers on 20.7.2018. As resolved by the Syndicate the enquiry was entrusted with Smt.N.Leelamani (Retd. District Judge). The enquiry began on 22.5.2019. The University as well as the delinquent officers were represented by Advocates. The petitioner filed Ext.P5 preliminary objection opposing the enquiry proceedings on the ground that there was no provision to proceed against a retired employee. The Enquiry Officer vide order dated 18.1.2020, Ext.P10 held that the enquiry cannot continue against him as the memo charges was issued subsequent to his retirement. 4. Learned Counsel appearing on behalf of the petitioner submitted that the respondent-University did not accept the report. Ext.P11 refers to a resolution dated 5.6.2020 of the Syndicate to conduct a fresh enquiry against the petitioner. However, petitioner has not been given any notice in this regard other than reference in Ext.P11. 5. On the other hand, Sri.S.P.A.Pillay, learned Standing **WP(C).No.17990 OF 2020(W)** **5** Counsel for the University raised objection qua maintainability of the writ petition submitted that the allegations made against the respondent are not correct as the Enquiry Officer has no power to look into the matter, except decide the memo charges as his appointment was for holding enquiry with regard to the statement of allegation and charge sheet. Even otherwise the provisions of the Rules 3 (2) Part II of the KSR permits that the enquiry can continue against the persons by relating back to the date of suspension, which was prior to the retirement. The Syndicate at its meeting held on 22.02.2020 resolved to overrule the decision of the Enquiry Officer and direct her to go ahead with the enquiry and complete the Enquiry within three months time. When the decision of the Syndicate was communicated to Smt.N.Leelamani, as per letter dated 4.3.2020 informed that she had withdrawn her consent to continue as the Enquiry Officer with immediate effect as she was not inclined to accept the resolution of the Syndicate. It is submitted that in view of Ext.R1 (C) the Syndicate at its meeting held on 5.6.2020 resolved that a fresh enquiry be conducted by appointing a retired Judicial Officer and accordingly a new Enquiry Officer was appointed. 6. The aforementioned action has been done in terms of the findings rendered in Paragraph 25 of the judgment in writ appeal dated 23.3.2018. **WP(C).No.17990 OF 2020(W)** **6** 7. In rebuttal learned Counsel for the petitioner relied on the judgment in **Xavier vs. KSE [1979 KHC 24]** to the extent that Rule 3 of Part III of the KSR do not envisage continuation of the disciplinary proceedings of the government servant after retirement as it permits only limited type of proceedings, i.e. regarding holding/ recovery of pension. The respondents are not prevented from conducting enquiry while the petitioner was in service. 8. I have heard learned Counsel on both sides and appraised the paper books. 9. For understanding the controversy, it would be appropriate to produce Rule 3 of Part III of KSR, the same read as under: “3. The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to government if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement: Provided that – (a) such departmental proceeding, if instituted while the employee was in service, whether before his retirement or during his re-employment, shall after the final retirement of the employee, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service; (b) such departmental proceeding, if not instituted while the employee was in service, whether before his retirement or during his re-employment,- (i) shall not be instituted save with the sanction of the Government; **WP(C).No.17990 OF 2020(W)** **7** (ii) shall not be in respect of any event which took place more than four years before such institution; and (iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceeding in which an order of dismissal from service could be made in relation to the employee during his service; (c) no such judicial proceedings, if not instituted while the employee was in service whether before his retirement or during his re-employment, shall be instituted, save with the sanction of the Government, in respect of a cause of action which arose or an event which took place more than four years before such institution and; This amendment takes effect from 14[th] November 1966] ## **Explanation:** - For the purpose of this rule – (a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the employee or pensioner or if the employees has been placed under suspension from an earlier date, on such date; and 11 (b) a judicial proceeding shall be deemed to be instituted- (i) in the case of a criminal proceeding, on the date on which the complaint or report of police officer on which the Magistrate takes cognizance, is made, and (ii) in the case of a civil proceeding, on the date of presentation of the plaint in the Court.” 10. On perusal of the explanation, it is evident that it deemed to have been instituted on the date on which the statement of charges were issued to the employee or petitioner, or if the employer was placed under suspension from earlier date, on such date. Concededly, the suspension, Ext.P1 is dated 17.11.2020, while the petitioner was in service. The suspension order was challenged in this Court and order came to be passed only on 15.12.2017, but directed to conclude the enquiry on 30.4.2018. The petitioner filed the writ appeal and the same was decided on 23.3.2018. Paragraph 25 of writ appeal No. 194/2018 and connected cases reads thus: **WP(C).No.17990 OF 2020(W)** **8** “With the afore liberty to the University and subject to the observations above, we deem it idoneous to close these writ appeals recording that the appellants have already been allowed to join duty on the strength of the interim order of this Court dated 22.01.2018, but with an added clarification that such interim order will not enure to their benefit in any manner if the disciplinary or such other action already initiated or to be initiated against them, concludes against them and they would be obliged to adhere to such proceedings, subject, of course, to their available remedies in law.” 11. On perusal of the aforementioned observation, the Division Bench clarified that the interim order will not enure the benefit to the petitioner or such other action already initiated or to be initiated’ and concluded against them, that the appellant would adhere to such proceedings, subject to the availment of remedy in law. The aforementioned observation, in such circumstances, did not preclude the University from taking action in accordance with law, rightly so, the Syndicate after having taken decision served petitioner with charge sheet 20.7.2018. The disciplinary Officer is required to look into matter with regard to the statement of allegations and cannot decide the jurisdiction of enquiry. Be that as it may, even if, it had jurisdiction, should have dealt charges in detail but not in isolation. The Syndicate did not find such findings to be correct in law, though the provisions of the Rules referred to above was discussed, but its applicability was not adverted to. The Enquiry Officer cannot ignore **WP(C).No.17990 OF 2020(W)** **9** such provisions and examine the technicalities, on account of the fact that petitioner was no longer in service. The factum of suspension was also not adverted to. In that back ground the Enquiry Officer was requested to hold a de novo enquiry on merits. On refusal to continue by previous enquiry officer Second Officer was appointed and called upon the petitioner to appear as per Ext.P12. 12. There is no dispute with the ratio decidendi culled out in judgment cited at Bar. But, it depends upon facts of each case for the reason that rule aforementioned would relate back to date of suspension and at the relevant point of time the petitioner was in service. I am of the view that Ext.P11 and consequential notice Ext.P12 do not suffer from any arbitrariness, irrationality much less fallacy. The writ petition is devoid of merits accordingly dismissed. ## **Sd/** **AMIT RAWAL JUDGE** **Jm/** **WP(C).No.17990 OF 2020(W)** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE ORDER NO AD.D1/MG AND GP /DISCIPLINARY PROCEEDINGS/2017 DATED 17.11.2017 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 15.12.2017 IN WPC NO.37616 OF 2017 (B) OF THIS HONOURABLE COURT** - **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 23.03.2018 IN W.A.NO.194 OF 2018 OF THIS HONOURABLE COURT** - **EXHIBIT P4 TRUE COPY OF ORDER NO.FIN IV/964/P/2018 DATED 19.07.2018** - **EXHIBIT P5 TRUE COPY OF THE PRELIMINARY OBJECTION DATED 01.06.2019 RAISED BY THE PETITIONER** - **EXHIBIT P6 TRUE COPY OF THE COUNTER STATE DATED 22.06.2019 FILED BY THE UNIVERSITY** - **EXHIBIT P7 TRUE COPY OF THE REPLY DATED 06.07.2019 FILED BY THE PETITIONER** - **EXHIBIT P8 TRUE COPY OF THE AFFIDAVIT AND PETITION DATED 19.10.2019 FILED BY THE PETITIONER** - **EXHIBIT P9 TRUE COPY OF THE PROOF AFFIDAVIT DATED 19.10.2019 FILED BY THE PETITIONER** - **EXHIBIT P10 TRUE COPY OF ORDER DATED 18.01.2020 PASSED BY THE ENQUIRY OFFICER** - **EXHIBIT P11 TRUE COPY OF THE ORDER NO.EA-1/ ENQUIRY / 2019 DATED 13.07.2020 ALONG WITH ITS RETYPED COPY** - **EXHIBIT P12 TRUE COPY OF THE NOTICE NO.DE/CUST/KMB/12020 DATED 17.08.2020 ISSUED BY THE ENQUIRY OFFICER** - **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R1 A TRUE COPY OF MEMO OF CHARGES NO. AD.D1/MG& GP/DISCIPLINARY PROCEEDING/2017 DATED 20.07.2018 ISSUED TO THE PETITIONER** **WP(C).No.17990 OF 2020(W)** **11** **EXHIBIT R1 B TRUE COPY OF RESOLUTION OF THE SYNDICATE HELD ON 22.02.2020 EXHIBIT R1 C TRUE COPY OF LETTER NO LA1/ ENQUIRY/2019 DATED 04.03.2020 EXHIBIT R1 D TRUE COPY OF LETTER NO. AD D2/209/84 DATED 27.04.2019**