Dr. Shaji Jacob v. Sree Sankaracharya University of Sanskrit & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 18[TH] DAY OF JULY 2022 / 27TH ASHADHA, 1944 ``` ``` WP(C) NO. 13018 OF 2014 ``` ## **`PETITIONER:`** ``` DR.SHAJI JACOB, ASSOCIATE PROFESSOR, MALAYALAM DEPARTMENT, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, ERNAKULAM DISTRICT-683574, NOW DEMOTED AS ASSISTANT PROFESSOR AND TRANSFERRED TO THE REGIONAL CENTRE, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, THURAVOOR, ALAPPUZHA-688532. ``` ``` BY ADVS. P.MOHANDAS (ERNAKULAM) K.SUDHINKUMAR S.K.ADHITHYAN SABU PULLAN GOKUL D. SUDHAKARAN ``` ## **`RESPONDENTS:`** - `1 SREE SANKARACHAYRA UNIVERSITY OF SANSKRIT KALADY, ERNAKULAM DISTRICT-683574, REPRESENTED BY ITS REGISTRAR.` - `2 VICE CHANCELLOR, SREE SANKARACHARYA UNIVESITY OF SANSKRIT, KALADY, ERNAKULAM DISTRICT-683574.` ``` 3WOMENS COMPLAINT COMMITTEE SREE SANKARACHARYA UNVERSITY OF SANSKRIT, KALADY, ERNAKULAM DISTRICT-683574, REPRESENTED BY ITS CONVENER ``` ``` BY ADVS. SRI.ARUN B.VARGHESE,SC SHRI.DINESH MATHEW J.MURICKEN, SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WPC 13018/14 2 ## **`JUDGMENT`** While the petitioner was working as an Associate Professor in the Department of Malayalam of ‘Sree Sankaracharya University of Sanskrit’ (hereinafter referred to as ‘University’ for short), an allegation was imputed against him that he had behaved in an inappropriate manner with certain girl students. 2. Interestingly, the genesis of the proceedings against the petitioner was an oral complaint made by a male student, which led to a preliminary enquiry to be conducted; and thereafter, the constitution of a ‘Women Complaints Committee’ (‘WCC’) – as is evident from Ext.P2 - with a Technical Assistant of the College being its Chairperson and an Assistant Professor, a Lawyer of this Court, an NCC Officer, a Research Scholar and two other ladies as its members. 3. The ‘WCC’ appears to have conducted an enquiry thereafter, recording the statements of various girl students, as also the boy who made the oral complaint; and then issued Ext.P5 notice to the petitioner, asking to furnish his version before them. WPC 13018/14 3 This notice records unequivocally that the statements of the girl students and other witnesses had already been taken, which would, prima facie, indicate that the petitioner was not given any opportunity of either being there when the same was taken or of cross-examining the witnesses. However, when the report was settled by the ‘WCC’, namely Ext.P8, it recorded therein that the petitioner did not have ‘intention to cross them’ (sic), meaning that he had refused to cross-examine the witnesses. 4. Thereafter, on an analysis of all statements obtained by the ‘WCC’ and finding the petitioner’s conduct in using ‘sexually coloured remarks’, ‘unwelcome, non verbal conduct of sexual nature’; ‘interference with the work of students or creating an intimidating or offensive or hostile work environment for the students’, ‘humiliating treatment against the students’; and the violation of professional ethics’, the following recommendations were made: > a) Transfer the respondent from the main Centre of the University with immediate effect to a station where the number of female students under him is the least. > b) Debar the respondent from guiding the female students in seminars and research works for the next three years. WPC 13018/14 4 c) Exclude him from all additional/preferential powers and privileges in the department than normally enjoyed by any other teacher in his rank. d) Initiate Disciplinary Action against him inflicting major penalties as prescribed by relevant rules, and in case no such rule is prescribed, by awarding a punishment of barring of two increments with cumulative effect. 5. The University, on the basis of the afore report, issued Ext.P9 Memo to the petitioner, asking to Show-Cause why further action be not taken against him, to which, he made his objections through Ext.P10. Thereafter, without any further proceedings, the University issued Ext.P11 order dated 15.05.2014, stating that its Syndicate had discussed the matter in detail and resolved to accept the report of the ‘WCC’, except the recommendation for imposing a punishment. However, they then ordered to demote him to the post of Assistant Professor, simultaneously transferring him to another centre of the University. 6. The petitioner asserts that Ext.P11 has thus imposed the most grievous form of punishment upon him, without any enquiry being conducted and relying on a procedure which is unheard in law. 7. I have heard Dr.K.P.Satheesan – learned Senior WPC 13018/14 5 Counsel, instructed by Sri.Sudhin Kumar – learned counsel for the petitioner and Sri.Dinesh Mathew J. Muricken, learned Standing Counsel appearing along with Smt.Nayana Varghese – learned counsel for the University. 8. I must say upfront that I cannot find favour with Ext.P11 and I will record the reasons for my view presently. 9. As I have already said above, the proceedings against the petitioner began with an oral complaint made by a boy student and a preliminary enquiry was conducted. Finding merit in the allegations against the petitioner, the ‘WCC’ was constituted, which finally settled Ext.P8 report. 10. Dr.K.P.Satheesan – learned Senior Counsel appearing for the petitioner, argued that the ‘WCC’ cannot be construed to be a Statutory Internal Complaints Committee, under the provisions of the relevant Statutes, particularly because it is not headed by a senior woman employee of the University. He then argued that, whatever be the findings of the WCC, his client could not have been imposed with any punishment, particularly because the said Committee did not recommend so and the WPC 13018/14 6 Honourable Supreme Court has declared affirmatively in Vijayakumaran C.P. (Dr.) v. Central University of Kerala and Others [2020 (1) KHC 982] that even the report of an ICC cannot automatically lead to a punishment and that such action has to be edificed on a proper enquiry to be constituted thereafter. He argued that, in the absence of any such enquiry - which is manifest from the fact that Ext.P11 merely goes on to accept Ext.P8 report of the ‘WCC’ - the punishment of reverting his client to the post of Assistant Professor was impermissible and illegal. 11. Dr.K.P.Satheesan added that this is more so because, the ‘WCC’ was also aware that no punishment can be imposed against the petitioner without proper disciplinary action, as is perspicuous from their own recommendations afore extracted and that the University also did not find reason to differ from this, which is evident from the fact that, in Ext.P11, the Syndicate adopted the recommendations of the ‘WCC’ except for imposing punishment. He submitted that in such circumstances, it is baffling how the Registrar could have issued Ext.P11 Memo to his client WPC 13018/14 7 which, going by any manner of reasoning, can only be construed as a punishment. He, therefore, prayed that Exts.P8 and P11 be set aside. 12. In response, Sri.Dinesh Mathew J. Muricken – learned Standing Counsel for the University, submitted that, as one can see from Ext.P8, the allegations against the petitioner are extremely grave and serious. He submitted that the conduct of the petitioner proven in the enquiry was to such level that the girl students were even afraid to be in his presence and that they were uncomfortable by the way he looked at them and his choice of words. He submitted that, therefore, the ‘WCC’ was completely justified in having settled Ext.P8 report and consequently that the Syndicate of the University decided to accept it and authorised issuance of Ext.P11 communication. He thus prayed that this Writ Petition be dismissed. 13. As I have said earlier, there are several legal impediments for the University in Ext.P11 being approved by this Court. It is undisputed that Ext.P8 enquiry was conducted by the ‘WCC’, without affording any opportunity of presenting the WPC 13018/14 8 witnesses before the petitioner or of cross-examining them. The statements of the witnesses were initially recorded and Ext.P5 notice was issued to the petitioner asking him whether he had anything to say against it. Such a procedure cannot be construed to be a disciplinary action in any manner and, at the best, can be construed in the nature of an internal enquiry. 14. To add to the above, the Committee is called the ‘WCC’ and is not a statutory ICC; and even if this Court is to assume that both are same - as far as the University is concerned, the imperative requirement for its procedure also does not appear to have been fully followed. Hence, Ext.P8 report of the ‘WCC’ can, at the best, be construed only to be an internal one, which ought to have led to a further enquiry and disciplinary action against the petitioner, if the University was so interested. This is indubitable because even the ‘WCC’, in Ext.P8, recommended the initiation of disciplinary action against the petitioner, so that major penalties as prescribed by the applicable Rules and Regulations, could have been imposed against him. 15. Therefore, when the University says that they have WPC 13018/14 9 accepted Ext.P8 report of the ‘WCC’, along with all its findings and recommendations save that to impose punishment on the petitioner, one certainly fails to gather how the said order could have then ordered his ‘demotion’. This is indubitable because, after saying that the recommendation for imposing punishment is not being accepted, the University strangely orders reversion of the petitioner to the post of Assistant Professor, as if this is a routine affair. Such a ‘demotion’ can only be construed to be a major penalty by the yardstick of any applicable Regulation; and obviously, therefore, this Court cannot approve Ext.P11 to that extent, in any manner whatsoever. 16. To paraphrase, if the University wanted to impose any such drastic action on the petitioner, they ought to have accepted the recommendation of the ‘WCC’ to conduct a proper disciplinary enquiry, leading to the imposition of punishment, depending upon the findings in such processes, after following due procedure. This having been not done, certainly Ext.P11, to the extent to which the petitioner has been demoted, can never find the imprimatur of this Court. WPC 13018/14 10 Resultantly, I order this Writ Petition and set aside Ext.P11 to the extent to which the petitioner has been demoted to the post of Assistant Professor; however, leaving full liberty to the University, to initiate and complete any action against the petitioner, if they are so interested, following due procedure; in which event, same shall be completed de hors Ext.P8 report of the ‘WCC’ and independent of the same, as is required under the declaration of law by the Honourable Supreme Court in Vijayakumaran C.P. (supra). ``` RR ``` ``` Sd/- DEVAN RAMACHANDRAN JUDGE ``` WPC 13018/14 11 ## **`APPENDIX OF WP(C) 13018/2014`** ## `PETITIONER EXHIBITS` ``` EXHIBIT P1- TRUE COPY OF THE REPORT DATED 27-01-2014 SUBMITTED BY THE HEAD OF THE DEPARTMENT,MALAYALAM TO THE VICE CHANCELLOR OF THE UNIVERSITY. EXHIBIT P2- TRUE COPY OF THE UNIVERSITY ORDER DATED 09-04-2013 CONSTITUTING THE 3RD RESPONDENT COMMITTEE. ``` ``` EXHIBIT P3- TRUE COPY O THE PRELIMINARY REPORT DATED 17-02-2014 SUBMITTED BY THE 3RD RESPONDENT COMMITTEE. ``` ``` EXHIBIT P4- TRUE COPY OF THE UNIVERSITY ORDER DATED 18-02-2014 SUSPENDING THE PETITIONER FROM SERVICE. ``` ``` EXHIBIT P5- TRUE COPY OF THE NOTICE DATED 21-02-2014 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT COMMITTEE. ``` ``` EXHIBIT P6- TRUE COPY OF THE EXPLANATIONA DATED 01-03-2014 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT COMMITTEE. ``` ``` EXHIBIT P7- TRUE COPY OF THE NOTICE DATED 17-03-2014 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT COMMITTEE. ``` ``` EXHIBIT P8- TRUE COPY OF THE REPORT DATED 20-03-2014 SUBMITTED BY THE 3RD RESPONDENT COMMITTEE. ``` ``` EXHIBIT P9- TRUE COPY OF THE MEMO DATED 04-04-2014 ISSUED TO THE PETITIONER. EXHIBIT P10- TRUE COPY OF THE EXPLANATION DATED 22-04-2014 SUBMITTED BY PETITIONER. ``` ``` EXHIBIT P11- TRUE COPY OF THE UNIVERSITY ORDER DATED 15-05-2014 REVOKING SUSPENSION AND IMPOSING PUNISHMENT ON THE PETITIONER. ``` ``` RESPONDENT EXHIBITS Exhibit R1aTRUE COPY OF THE REPRESENTATION DATED 7/2/14 SUBMITTED BY THE UNIT SECRETARY OF AISA TO THE 2ND RESPONDENT. ``` ``` Exhibit R1 bTRUE COPY OF THE RECORDS SUBMITTED BY THE HEAD OF THE DEPARTMENT BEFORE THE ``` WPC 13018/14 12 ``` 3RD RESPONDENT. Exhibit R1 cTRUE COPY OF THE REPRESENTATION DATED 13.02.14 SUBMITTED BY THE SYNDICATE MEMBER BEFORE THE 2ND RESPONDENT. Exhibit R1 dTRUE COPY OF THE REPORT SUBMITTED BY THE 3RD RESPONDENT BEFORE THE UNIVERSITY. ```