Eugine Nazarath v. University of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 18TH DAY OF FEBRUARY 2016/29TH MAGHA, 1937 ## W.P.(C).No.35877 of 2005 (U) -------------------------------------------------- PETITIONER(S):- -------------------------- EUGINE NAZARATH, PROFESSOR AND HEAD OF THE DEPARTMENT, DEPARTMENT OF ARCHITECTURE, T.K.M. COLLEGE OF ENGINEERING, KOLLAM-5. BY ADVS.SRI.C.P.SUDHAKARA PRASAD (SENIOR ADVOCATE) SRI.ELVIN PETER P.J. RESPONDENT(S):- ---------------------------- 1. UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM. ## 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. ## 3. THE CHAIRMAN, GOVERNING BODY, T.K.M. COLLEGE OF ENGINEERING, KOLLAM-5. ## 4. P.A. ZAINUL ABIDEEN, KHADERIA MANZIL, THENHIPALAM P.O. MALAPPURAM DISTRICT, PIN - 673 635. ## ADDITIONAL RESPONDENTS 5 TO 7 IMPLEADED: ---------------------------------------------------------------------- ADDL.R5. ACHAMMA KRIPA GEORGE, S.B.P.M.J. TOWERS, PANAMPALLY LINK ROAD, ERNAKULAM-20. ADDL.R6. FEROZ SHAH FARID, KATTAMPILLY HOUSE, EDAYAPPURAM, ALUVA. W.P.(C) NO.35877 OF 2005-U - 2 - ADDL.R7. SREEJITH.I.S., INDIRA BHAVAN, PALAYAMKUNNU P.O., VARKALA. [ADDITIONAL RESPONDENTS 5 TO 7 ARE IMPLEADED AS PER ORDER ON I.A.NO.394 OF 2006 DATED 18.02.2006]. R1 BY STANDING COUNSEL SRI.PAUL JACOB. R2 BY GOVERNMENT PLEADER SRI.S.JAMAL. R3 BY ADVS. SRI.N.SUGATHAN SMT.VARSHA BHASKAR SRI.S.PRASANTH (AYYAPPANKAVU) R4 BY ADVS. SRI.M.K.DAMODARAN (SENIOR ADVOCATE) SRI.P.K.VIJAYAMOHANAN. ADDL.R5 TO R7 BY ADVS. SRI.K.GOPALAKRISHNA KURUP (SENIOR ADVOCATE) SRI.P.A.MOHAMMED SHAH R1 BY ADV. SRI.S.GOPAKUMARAN NAIR, SC KERALA UTY. R1 BY ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. R1 BY ADV. SRI.GEORGE POONTHOTTAM,SC,KERALA UTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- ## W.P.(C) NO.35877 OF 2005-U ## **APPENDIX** PETITIONER'S EXHIBITS:------------------------------------EXT.P1 TRUE COPY OF ORDER NO.AC.AIII. DATED 23.1.1996 ISSUED BY THE UNIVERSITY OF KERALA. EXT.P2 TRUE COPY OF ADMISSION SLIP DATED 24.1.1996 ISSUED BY THE COLLEGE. EXT.P3 TRUE COPY OF INTERIM ORDER DATED 14.5.1996 IN CMP.13025/96 IN O.P.NO.7696/96 OF THIS HON'BLE COURT. EXT.P4 TRUE COPY OF JUDGMENT DATED 24.6.1996 IN O.P.7696/96 OF THIS HON'BLE COURT. EXT.P5 TRUE COPY OF JUDGMENT DATED 26.3.1998 IN O.P.NO.5918/98 OF THIS HON'BLE COURT. EXT.P6 TRUE COPY OF ORDER NO.ACD.A.III/3/98 DATED 29.5.1998 ISSUED BY THE UNIVERSITY. EXT.P7 TRUE COPY OF REPRESENTATION DATED 6TH JULY, 1998 FILED BEFORE THE VICE CHANCELLOR. EXT.P8 TRUE COPY OF COMMUNICATION DATED 28.10.2002 ISSUED BY THE PRINCIPAL TO THE REGISTRAR. EXT.P9 TRUE COPY OF COMMUNICATION NO.AC.A.III/3/13440/02 DATED 18.2.2005 ISSUED BY THE UNIVERSITY TO THE PRINCIPAL. EXT.P10 TRUE COPY OF COMMUNICATION DATED 9.3.2005 SENT BY THE PETITIONER. EXT.P11 TRUE COPY OF ORDER NO.AC.A.III. DATED 28.3.05 ISSUED BY THE VICE CHANCELLOR. EXT.P12 TRUE COPY OF COMMUNICATION NO.AC.III/3/05 DATED 7.6.05 ISSUED BY THE UNIVERSITY OF KERALA. EXT.P13 TRUE COPY OF COMMUNICATION NO.AC.A.III/3/05 DATED 23.7.05 ISSUED BY THE UNIVERSITY OF KERALA. EXT.P14 TRUE COPY OF COMMUNICATION NO.AC.A.III/3/05 DATED 25.7.05 ISSUED BY THE UNIVERSITY OF KERALA. EXT.P15 TRUE COPY OF COMMUNICATION NO.AC.A.III/3/05 DATED 6.9.05 ISSUED BY THE UNIVERSITY OF KERALA. - 2 - W.P.(C) NO.35877 OF 2005-U EXT.P16 TRUE COPY OF REPLY DATED 5.10.05 SUBMITTED BY THE PETITIONER. EXT.P17 TRUE COPY OF COMUNICATION NO.AC.A.III/3/05 DATED 29.10.2005 ISUED BY THE UNIVERSITY OF KERALA. EXT.P18 TRUE COPY OF COMMUNICATION DATED 7.11.05 SUBMITTED BY THE TEACHING STAFF OF ARCH. DEPT. EXT.P19 TRUE COPY OF COMMUNICATION NO.33813/J3/05/H.EDN. DATED 1.12.05 ISSUED BY THE GOVERNMENT ALONG WITH THE PETITION OF THE 4TH RESPONDENT. EXT.P20 TRUE COPY OF NOTICE NO.C1-3489/2004 DATED 4.12.05 ISSUED BY THE 3RD RESPONDENT. EXT.P21 TRUE COPY OF THE COMMUNICATION DT.26.2.2005 ISSUED BY THE PRINCIPAL. EXT.P22 TRUE COPY OF COMMUNICATION DT.7.3.2005 ISSUED BY THE PRINCIPAL. EXT.P23 TRUE COPY OF COMMUNICATION DT.7.3.2005 ISSUED BY THE PRINCIPAL. EXT.P24 TRUE COPY OF COMMUNICATION DT.23.3.2005 ISSUED BY ' THE PRINCIPAL ALONG WITH UNIVERSITY LETTER DATED 18.3.2005. EXT.P25 TRUE COPY OF REPLY DATED 24.12.2005 SUBMITTED BY THE PETITIONER TO EXT.P20. EXT.P26 TRUE COPY OF REPLY DATED 23.01.2006, SUBMITTED BY THE PETITIONER. EXT.P27 TRUE COPY OF MEMO OF CHARGES DATED 16.1.2006 ALONG WITH THE STATEMENT OF ALLEGATIONS. EXT.P28 TRUE COPY OF REPLY DATED 1.3.2006 SUBMITTED BY THE PETITIOENR TO THE MEMO OF CHARGES. EXT.P29 TRUE COPY OF ORDER DATED 22.5.2006 ISSUED BY THE 3RD RESPONDENT. EXT.P30 TRUE COPY OF NOTICE DATED 17.06.2006 ISSUED BY RTHE ENQUIRY OFFICER. EXT.P31 TRUE COPY OF THE COMMUNICATION DATED 10.2.2006 ISSUED BY THE PRINCIPAL OF THE COLLEGE. EXT.P32 TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER. - 3 - W.P.(C) NO.35877 OF 2005-U EXT.P33 TRUE COPY OF THE REPORT APPEARED IN THE KERALA SABDAM WEEKLY DT.18.06.2006. EXT.P34 TRUE COPY OF THE REPORT APPEARED IN THE KERALA SABDAM WEEKLY DT.30.7.2006. EXT.P35 TRUE COPY OF ENQUIRY REPORT. ## RESPONDENTS' EXHIBITS/ANNEXURES:- ----------------------------------------------------------- EXT.R3(a) TRUE COPY OF LETTER NO.PR.NO.2101047658/P-1/2/1010079623 DATED 30.1.10 OF THE ACCOUNTANT GENERAL, KERALA. EXT.R3(b) TRUE COPY OF LETTER DATED 14.6.2010 OF THE DIRECTOR OF TECHNICAL EDUCATION FORWARDING THE LPC TO SUB TREASURY OFFICER, PENSION PAYMENT TREASURY KOLLAM. EXT.R4(a) TRUE COPY OF THE REPORT AS TO THE INITIATION OF ACTION FROM THE OFFICE OF THE HON'BLE PRESIDENT OF INDIA, AS APPEARED IN THE HINDU DATED 31.12.2005. EXT.R4(b) TRUE COPY OF THE MINUTES OF SYNDICATE COMMITTEE DATED 11.1.2006. [ANNEXURES PRODUCED ALONG WITH I.A.NO.394/2006] ---------------------------------------------------------------------------------ANNEXURE A1 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE UNIVERSITY. ANNEXURE A2 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 2ND PETITIONER BEFORE THE UNIVERSITY. ANNEXURE A3 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 3RD PETITIONER BEFORE THE UNIVERSITY. ANNEXURE A4 TRUE COPY OF THE LIST OF STUDENTS WHO WERE SUBJECTED TO SUCH VICTIMISATION. ANNEXURE A5 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE STUDENTS F THE 4TH YEAR (LAST BATCH) BEFORE THE UNIVERSITY AND OTHER AUTHORITIES. vku/[ true copy ] **K. VINOD CHANDRAN, J. ---------------------------------W.P(C). No.35877 of 2005-U ---------------------------------Dated this the 18[th] day of February, 2016** ## **JUDGMENT** The disciplinary proceedings, which continued for about two years, with respect to alleged instances of victimization of students, which occurred more than a decade before the initiation of proceedings and the pendency of this writ petition in this Court again for a decade; makes it difficult to understand whether the petitioner was sinning or is more sinned against. The allegation has its genesis, in the 4[th] respondent, a student of the 3[rd] respondent College admitted to the B.Arch Course, being not recommended for the award of degree for reason of his not qualifying in the internal assessments. I heard the learned Counsel appearing for the petitioner,the 3[rd] respondent and the _W.P(C). No.35877 of 2005-U_ **2** learned Government Pleader, who alone were present at the time of hearing. 2. The learned Counsel for the petitioner would contend that the entire proceedings are vitiated for violation of statutory provisions and it is the petitioner who has been unnecessarily victimized on the dictates of the University. A teacher of an affiliated private college can be proceeded against only by the educational agency, and not at the dictates of the University argues the petitioner. The learned Counsel appearing for the 3[rd] respondent, however, would contend that no ground of statutory violation can be raised, since the entire proceedings were done on the instructions of the University as decided by the Syndicate. The University has over all control over the affiliated Colleges and when the University directs disciplinary action against a teacher, the same has to be complied with by the Educational Agency. The enquiry having been completed, it is contended that the decision may be left to the educational agency to decide as _W.P(C). No.35877 of 2005-U_ **3** to what action has to be taken against the delinquent. The educational agency has also filed application before this Court, long before, seeking for orders to conclude the proceedings. 3. Before looking at the allegation of violation of statutory provisions, the rather complicated facts spread over a number of years have to be noticed. The 4[th] respondent was an admission of the year 1987 and ought to have completed the course, of four and a half years duration, by 1991- 1992. There seems to have been some difficulty in his promotion to the 5[th] year in the B.Arch. Degree course, for reason of he, having not cleared the internal assessment, which was mandatory. A writ petition was filed, by the 4[th] respondent before this Court. Eventually, the 4[th] respondent was re-admitted to the classes as per Ext.P1. Again, he failed to clear the internals and he was before this Court with OP No.7696 of 1996, wherein, he was directed to be allowed a further chance in the 3[rd] review improvement, by an interim order, produced herein as Ext. P-3. _W.P(C). No.35877 of 2005-U_ **4** 4. When the matter came up for final hearing, by Ext.P4 judgment, the submission of the University that no review improvement is permitted, was recorded. The submission of the student/petitioner, as recorded in Ext.P3 order, that many others were permitted to appear for the internals for more than four times, was specifically denied by the University. It was also contended by the University that the student (who is the 4[th] respondent herein) did not have the required attendance. As against the required attendance of 50 %, the student had only 38%. Considering the fact that the student was allowed to appear for the 3[rd] review examination, this Court by Ext.P4 dated 24.06.1996 directed that the results be published. Obviously, the 4[th] respondent did not qualify, even then, since again he was here with another OP No.5918 of 1998, which was disposed of by Ext.P5. In the said O.P., prayer was to consider a representation. The Registrar of the University, pursuant to Ext.P.5 directions heard the student and wrote to the Principal of _W.P(C). No.35877 of 2005-U_ **5** the College by Ext.P6, directing that the student be allowed to sit **-** for the final thesis and Viva voce Examination, if he has the required attendance. The Registrar in Ext.P6 also found that there was an allegation of victimization and that it is evident that the candidate was subjected to a bit of unfair treatment since by that time the course length of the student ran for an unreasonably long period of 11 years. It is not clear on what grounds the Registrar found the unfair treatment and as of now the only presumption is that it was an observation considering the fact alone that the student had not completed the course in 11 years. 5. The petitioner, who was the Head of the Department had been on long leave between 21.10.1997 to 10.10.2002, at the time when Exts.P6 was issued. The faculty of the College then wrote to the University, by Ext.P7, that the student had appeared repeatedly in the internals and failed. It was also pointed out that the decision taken by the University was unilateral, in so far as _W.P(C). No.35877 of 2005-U_ **6** the faculty having not been heard. It was pointed out that the repeated conduct of internal reviews goes against the regulations of the University and the superimposition of the will of the Registrar, over the conduct of the internals, undermines the faculty. The petitioner, it is to be reiterated, at that point of time was not working in the College, since he was on long leave. It is also to be noticed that despite the 4[th] respondent having approached this Court many a time as is evident from the orders and judgments produced herein, the petitioner was never made an _eo-nomine_ party, which indicates that there were no allegations raised against him personally. 6. On a further query from the University dated 17.07.2002 regarding the B.Arch. Examinations of the 4[th] respondent, the Principal of the College replied by Ext.P8. It was specifically informed that after Ext.P4 judgment of this Court, the results were intimated to the University and the 4[th] respondent failed to qualify in the internal reviews. It was pointed out that there is no _W.P(C). No.35877 of 2005-U_ **7** review pending and though the 4[th] respondent could have got himself re-admitted, in order to qualify the internal review with the subsequent regular batch, the 4[th] respondent had not pursued the Course. These facts, the Principal pointed out, were not brought to the notice of the Court when Ext.P5 judgment was passed. The Principal, by Ext.P8 categorically informed the University that there were no examinations or reviews pending in the case of the 4[th] respondent. 7. Long later, on 18.02.2005, on a complaint purportedly raised by the 4[th] respondent and forwarded to the Chief Minister’s Office, which was transmitted to the University, a further enquiry was ordered as per Ext.P9. The petitioner, who had joined back, preferred his remarks as per Ext.P10 to the Principal for onward transmission to the University. Again by Ext. P11 proceedings, in which the Vice Chancellor, the Chairman of Board Studies in Engineering, the Principal and the Head of the Department among others participated, there was a further opportunity given to the 4[th] respondent to complete the _W.P(C). No.35877 of 2005-U_ **8** remaining part of the course, either in the 3[rd] respondent College or the College of Engineering, Trivandrum. The 4[th] respondent, as is revealed from the records, qualified in the year 2006, that too from the 3[rd] respondent. 8. As per Ext.P11, the 4[th] respondents case was dealt with by a committee with high functionaries from the University and it was decided to offer a fresh opportunity to the student to complete his course. The proceedings noticed the allegations of victimization and despairingly noticed that the student admitted in the year 1987 had not completed the course after 18 years. Pausing here for a moment, it cannot but be observed that if the allegations of victimization were true then it is the functioning of the University which has to be examined, since it was within the authority of the University to have taken action against the erring college and the faculty members. The University, in the earlier proceedings before this Court also had supported the stance of the College. A _volte-face_ was attempted only in Ext.P6,while _W.P(C). No.35877 of 2005-U_ **9** directing the Principal to conduct a review, but however without hearing the Principal or the faculty members. The University after that again remained silent for long, on receiving the negative reports about the 4[th] respondent from the Principal and the faculty members. 9. After Ext.P11 proceedings permitting yet another chance to the 4[th] respondent, after 18 years, suddenly the Registrar of the University came forward with a communication at Ext.P12 dated 07.12.2005, in which the victimization of the 4[th] respondent was pointed out and the Management was directed to initiate disciplinary action against the petitioner and report to the University within a month. The Registrar, by Ext.P13, directed the conduct of a 3[rd] review and subsequent Viva-voce for the 4[th] respondent. The Registrar of the University had consistently coerced the educational agency to take action against the petitioner by Exts.P14 & P15. The petitioner had submitted an explanation as per Ext.P16. The petitioner in _W.P(C). No.35877 of 2005-U_ **10** Ext.P16 pointed out the earlier instances of the 4[th] respondent having consistently failed in the thesis, which forms an important part of the B.Arch course, passing in which is essential for the award of the Degree. The 4[th] respondent failed to complete his thesis in the regular course or when he was re-admitted and then again in the improvement chance. A further opportunity offered by the High Court, though against the University regulations, also did not yield a positive result. The Course had been subjected to substantial changes in the curriculum over the years and the petitioner himself requested that the 4[th] respondent be permitted to enroll for the thesis as per the earlier course structure. The further communication from the Registrar to permit the 4[th] respondent to complete his thesis, by Ext.P17 dated 29.10.2005 was replied to by the faculty by Ext. P18, requesting that they be not forced to act against the regulations. 10. The University then threatened the withdrawal of affiliation for the B.Arch. course by Exts.P19. Obviously then the _W.P(C). No.35877 of 2005-U_ **11** 4[th] respondent seems to have been awarded the degree and the petitioner proceeded with by Ext.P20. The surprising aspect is that the University has filed a counter affidavit contending that the 4[th] respondent could not complete the course “due to the biased and inhuman behaviour of the petitioner” without any enquiry being conducted.. None appeared for the University,when the matter was taken up for hearing. The proceedings which resulted in the filing of the above writ petition was at the 'instigation' of the University. This Court uses that word fully understanding the purport it intends to convey, for the reason that it is not clear how the University came to the conclusion that there was victimization involved in the case of the 4[th] respondent. The documents produced herein reveal that the proceedings were only after hearing the alleged victim and not once looking into the mark sheets or conducting an enquiry into what actually transpired. 11. The petitioner was issued with Ext.P20 dated _W.P(C). No.35877 of 2005-U_ **12** 04.12.2005 by the educational agency, as found above, at the instigation of the University, calling upon him to show-cause why disciplinary action should not be taken against him for the victimization of the 4[th] respondent. Even in Ext.P20 dated 04.12.2005, no specific instance of victimization was pointed out and obviously the same was initiated only since the University had threatened withdrawal of affiliation. The petitioner was before this Court, challenging the same by the above writ petition. Subsequently, the petitioner was issued with Ext.P27 Memo of Charges dated 16.01.2006, which in fact contained further allegations also. The said proceedings were issued on the basis of a resolution of the University, which is produced as Ext.R4(b), by the 4[th] respondent, being the Minutes of the Syndicate Committee dated 11.01.2006, wherein it was decided to proceed against the petitioner. 12. By that time, it is also alleged that there were other complaints raised by the students of the 3[rd] respondent and _W.P(C). No.35877 of 2005-U_ **13** there was also an association of students formed, called “Forum for Aggrieved Students in Architecture”, who had addressed the President of India regarding the allegations of victimization in the B.Arch. Course carried on in the 3[rd] respondent College. By Ext.P27 dated 16.01.2006, the petitioner was issued with a Charge-sheet and suspended on that day itself. The petitioner moved this Court and on 10.07.2006; an order was passed, directing that the proceedings initiated as per Ext.P27 be continued, but final orders shall be passed only with the permission of the Court. Ext.P27 proceedings initiated, is said to have culminated with Ext.P35 report dated 24.09.2007. The learned counsel appearing for the educational agency,contends that they were before this Court with a petition as early as on 01.12.2008, I.A.No.15391 of 2008, for further orders in the writ petition and the same was posted for final hearing, which had not materialized till now. The petitioner, in the meanwhile, superannuated on 31.03.2009. The petitioner was also granted _W.P(C). No.35877 of 2005-U_ **14** provisional pension, on which he is surviving for the last few years. So much for the facts. 13. The specific violation alleged is of the provisions of the Kerala University Act, 1974. Chapter VIII, deals with “Private Colleges and Affiliation of Colleges”, and provides for the conditions of service of teachers of private colleges. By Section 60 (2) it is mandated that no teacher of a private college be kept under suspension, by the educational agency, except when disciplinary proceedings are initiated against him. Sub-section (3) provides that when the teacher of a private college is suspended for a period exceeding fifteen days, then the matter shall be reported to the Vice-Chancellor. Any disciplinary proceedings initiated under sub-section (2) has to be completed within a period of three months or within such further period as may be allowed by the Vice-Chancellor after hearing the parties concerned, as per sub-section (4). Sub-section (5) also provides an appeal to the Appellate Tribunal from the orders of the _W.P(C). No.35877 of 2005-U_ **15** Vice-Chancellor. It is the contention of the petitioner that, none of the conditions prescribed in section 60 were complied with. 14. Admittedly the petitioner was placed under suspension and issued with memo of charges on 16.01.2006. The contention of the learned counsel for the 3[rd] respondent is that such statutory prescriptions are not applicable in the present case, since the direction to suspend the teacher and to conduct enquiry, emanated from the decision of the Syndicate, seen at Exhibit R4(b). 15. Whether such a decision binds the educational agency has to be understood from Chapter 4 of the _**“Conditions of service of Teachers & Members of Non-Teaching Staff First Statutes, 1979”**_ , which speaks of disciplinary action against teachers of private colleges. Statute 70 confers disciplinary authority in respect of the teacher of a private college, on the educational agency. True, the University has a supervisory jurisdiction; but, however, the same has to be exercised with _W.P(C). No.35877 of 2005-U_ **16** circumspection and cannot lead to the University dictating terms to the disciplinary authority to act in a particular fashion, especially when the same is with respect to disciplinary proceedings initiated against a teacher. 16. The learned Counsel for the 3[rd] respondent points out that the University has invoked the powers under Section 23(xx) of the Kerala University Act, 1974 and Statute 5 of Chapter 6 of the Kerala University First Statutes, 1977. The university also relies on the above in its counter affidavit. The same are extracted hereunder: ## **Act of 1974** **“23. Powers of Syndicate:-** Subject to the provisions of this Act and the Statutes, the executive power of the University including the general superintendence and control over the institutions of the University shall be vested in the Syndicate and subject likewise the Syndicate shall have the following powers, namely:- xx xx xx (xx) to arrange for and direct the investigation into the affairs of private colleges, to issue _W.P(C). No.35877 of 2005-U_ **17** instructions for maintaining their efficiency, for ensuring proper conditions of employment of members of their staff and payment of adequate salaries to them, and in case of disregard of such instructions to modify the conditions of affiliation or recognition or take such other steps as it deems proper in that behalf. xx xx xx”. ## **First Statutes:** - “5. Investigation into the affairs of Private Colleges.- - (1) The Syndicate shall, under clause (xx) of Section 23 of the Act, direct investigation into the affairs of a Private College, if it is satisfied that there is a prima facie case for such investigation; or - (2) If a complaint in writing is received from any of the teachers or students or the Managing Council or Governing Body of a Private College upon any matter relating to that college; or - (3) If it is so required by the Senate”. Both the extracted provisions deal with the investigation into the affairs of private colleges. An investigation having been initiated against a private college if certain misconducts are _W.P(C). No.35877 of 2005-U_ **18** noticed, then probably the University could issue necessary orders, even requiring initiation of disciplinary proceedings. It has already been noticed that the University has not initiated any enquiry in the present case. An association of students represented the President of India, whose office, transmitted the complaint to the State Government, which had intimated the University. As revealed from the records by reason only of the allegations of victimization raised by certain students, the Syndicate of the University had taken a resolution in the manner indicated at Exhibit R4(b). This Court does not find any authority on the University to issue such an order directing disciplinary action especially in the context of the University having not conducted any investigation into the affairs of the private college or with respect to the specific allegations raised. 17. The complaint of the students, was against certain teachers of the institution and the University could very well have initiated an investigation into the affairs of the college, which the _W.P(C). No.35877 of 2005-U_ **19** University failed to do. The decision of the Syndicate is not supported by any reasonable cause but for the fact that a number of students have formed an association and raised a complaint before various authorities, including the President of India. 18. Considerable arguments were addressed on Section 60 of the Kerala University Act, 1974. The petitioner and the respondents have, alternatively placed reliance on two decisions of this Court. _**Leelamani v. S.N. Trust [2012 (2) KLT 632]**_ was a case, in which petitioner/teacher contended, based on Section 60(4), that a disciplinary proceeding initiated has to be finished within a period of three months. Therein, there was no suspension effected and the disciplinary proceedings took about an year to be completed. A Division Bench of this Court found that Section 60(4) does not apply as a restriction in cases where the Teacher is not placed under suspension. Hence, the disciplinary proceedings carried on in the aforesaid case, _W.P(C). No.35877 of 2005-U_ **20** beyond the period of three months, was found to be not improper;for reason only of it having extended beyond three months. The learned counsel for the petitioner would contend that the intention of the provision as noticed by the Division Bench, being to ensure that no Teacher is continued under suspension for a period of not more than three months in connection with the disciplinary proceedings, without the further approval of the Vice Chancellor; would help the petitioner in challenging the instant disciplinary proceedings. 19. The 3[rd] respondent relied on _**Dr. N. Raveendran v. The Manager, Sree Narayana College [2005 (1) ILR 338]**_ to contend that the provision under statute 60 is only directory and there is no mandate that on the disciplinary proceedings not being completed within three months, the entire proceedings would be vitiated. In _**Dr. N. Raveendran**_ [Supra], the suspension was intimated to the Vice Chancellor, as provided under Section 60(2) and the Vice Chancellor had also issued a _W.P(C). No.35877 of 2005-U_ **21** direction to complete the enquiry within a specified time. The said order was challenged by the petitioner before the Appellate Tribunal and again before this Court. This Court granted further time of two months, when the writ petition was disposed of, to complete the enquiry. Again a CMP was filed by the Manager for extension of time, wherein by order dated 01.11.2002, time was extended for further two months, but however directing the reinstatement of the petitioner. This Court noticed that the reinstatement of the petitioner cured the defects sought to be remedied by Section 60. 20 **.** _**Dr. N. Raveendran**_ [Supra] was a case in which the delinquent Teacher had not co-operated with the enquiry. Be that as it may, the binding precedent of the Division Bench in _**Dr. N. Raveendran**_ [Supra] is that, the Departmental proceedings having continued beyond the period prescribed under Section 60, the proceedings as such will not stand vitiated. _**Leelamani [Supra]**_ is to the effect that the delinquent teacher has a _W.P(C). No.35877 of 2005-U_ **22** valuable right not to be continued under suspension beyond three months, without orders from the vice Chancellor. 21. In the present case, the petitioner was suspended on 16.01.2006 when Ext.P27 Memo of charges was issued to him. The educational agency never informed the Vice Chancellor as provided under sub-section (2) of Section 60. The disciplinary proceedings continued over a period of one year, when the petitioner remained under suspension, without an order by the Vice-Chancellor. The enquiry report produced at Ext.P35 is dated 24.04.2007. The petitioner was kept out of service during the entire period. Even if the enquiry proceedings cannot be found to be vitiated, the suspension of the petitioner beyond the three month period, has to be found to be illegal, for reason of the procedure under Section 60 having been not complied with. 22. Accepting the contention of the learned Counsel for the 3[rd] respondent that the proceedings were initiated on the directions of the University, that does not absolve the 3[rd] _W.P(C). No.35877 of 2005-U_ **23** respondent from complying with the statutory mandate insofar as completing the enquiry within the time provided in the statute, when the delinquent teacher is under suspension. In the present case the petitioner was obviously continued on suspension beyond the period of three months and the same was not informed to the Vice-Chancellor. The enquiry proceedings also were not concluded within the three month period and no permission was taken by the 3[rd] respondent from the Vice-Chancellor for continuing it beyond that period. In the process, the petitioner also lost a valuable right of appeal provided under sub-section (5) of Section 60. 23. The petitioner ought to have been reinstated in service on completion of three months from the date of suspension, for reason of there being no orders obtained from the Vice Chancellor for proceeding with the enquiry after the said period. It is also to be noticed that after the enquiry report dated 24.09.2007 was filed, the educational agency again waited for _W.P(C). No.35877 of 2005-U_ **24** more than one year before I.A.No.15391 of 2008 dated 30.11.2008 was filed to permit finalization of the disciplinary proceedings. Four months from the filing of the said affidavit the petitioner retired from service. It is also trite that no action of the Court shall prejudice a litigant nor an inaction. In the totality of the facts explained above, the petitioner should be deemed to have been re-instated three months from 16.01.2006 and he should be deemed to have continued in service till his retirement. 24. Now the question arises as to the enquiry proceedings concluded as per Ext.P35. The 4[th] respondent and the first petitioner in the Impleading Petition, who are the aggrieved students, have deposed before the Enquiry Officer. The allegations against the petitioner were that the petitioner had violated the mandatory provisions of the revised regulations, scheme and syllabus issued by the University of Kerala vide: order dated 08.06.1998 by not awarding, reckoning, tabulating _W.P(C). No.35877 of 2005-U_ **25** or consolidating the component wise split up of marks. The second allegation was that the split up of marks submitted by the Teachers were manipulated and only lumpsum marks were awarded for the aggrieved students. The third allegation was that, the misconducts aforesaid resulted in a students forum,raising a complaint against the College, which, as alleged in the 4[th] charge, caused adverse publicity against the College in the print and visual media. The 5[th] charge was that, there was a discourteous letter dated 07.11.2005 to the University of Kerala, wherein the petitioner had requested the University not to pressurize the Teachers to do unethical things. The 6[th] allegation was that, the petitioner had not discharged his duties in taking classes as required and had used the B.Arch students for the private work of the petitioner. 25. The Enquiry Officer had primarily proceeded on the basis of the deposition of the aggrieved students and was also considerably led by the publicity in the print and visual media. As _W.P(C). No.35877 of 2005-U_ **26** to the first charge, it is to be noticed that the 4[th] respondent is a 1987 batch student, who ought to have completed the course by 1991-1992. The allegations were raised on the strength of a University Order of the year 1998. Further, the first and second charge regarding the tabulation and awarding of marks was enquired into, in detail by a Committee appointed by the Directorate of Collegiate Education, which would be noticed soon. The formation of a students' Association, the complaint against the College and the adverse publicity caused could be alleged as a misconduct, only if there is noticed any discrepancy in the awarding of marks. The allegation that, a discourteous letter was addressed to the University is misplaced, since the request was only; not to force the Teachers to do anything unethical. Here, it is to be noticed that, the University had before this Court, in the earlier litigation filed by the 4[th] respondent supported the actions of the College. This Court has also in this judgment specifically referred to the manner in which the student _W.P(C). No.35877 of 2005-U_ **27** of 1987 batch was allowed to complete his course after 18 years and the inaction of the University in taking any appropriate proceedings in the ensuing years. The allegations with respect to the failure to discharge duties and the B.Arch students being used for private work was not at all substantiated, other than the deposition of two students. 26. In this context, it is to be noticed that the enquiry report indicates one other student, other than the 4[th] respondent having deposed before the Enquiry Officer; who along with two other students have filed the impleading petition before this Court in I.A.No.394 of 2006. None appears for them when the matter was heard. A reading of the affidavit filed in support of the said application would indicate that but for broad allegations made, there is nothing specifically alleged against the petitioner, who was the Head of the Department. 27. The 4[th] respondent too has filed a Counter Affidavit dated 19.01.2006 in this writ petition, again none appear when _W.P(C). No.35877 of 2005-U_ **28** the matter was called for hearing. A reading of the Counter Affidavit would indicate that the 4[th] respondent has also made broad allegations and has not specified as to how he was victimized. No specific allegation is levelled against the petitioner herein, with respect to the failure in the internal assessment, at the initial stage and at the review stage. The 4[th] respondent has only stated that in addition to him, many others were victimized by the petitioner. The 4[th] respondent has filed a detailed Counter Affidavit, doubting the maintainability of the writ petition and the sustainability of a challenge against the enquiry report, in a petition under Article 226 of the Constitution of India. But for the broad allegations, nothing is seen in the Counter Affidavit to indicate that the petitioner was responsible for the failure of the 4[th] respondent in the internals. 28. Dealing with the findings in Ext.P35 report, the enquiry conducted at the instance of the Directorate of Collegiate Education assumes significance. The same is produced as _W.P(C). No.35877 of 2005-U_ **29** Ext.P32. Two Principals of other Engineering Colleges had conducted the said enquiry. A reading of the preliminary report and the final enquiry report would indicate that there was a conscious attempt on the part of certain people to expose issues before the media. The Committee having looked into the manner in which the internals were conducted as also the mark-sheets, found that the data available is not sufficient to prove or deny the specific complaints. It was specifically found that the complaints of manipulation of marks and influencing of external examiners were all difficult to prove after a prolonged time. The Committee observed that but for emotional outpourings and some xerox copies of sessional marks nothing was produced to substantiate the allegations. It is also pertinent to note that the Committee takes note of the fact that,no student, other than the 4[th] respondent, filed any complaint to the College, University or Government. The Association formed, first addressed the President of India and obviously the matter assumed out of _W.P(C). No.35877 of 2005-U_ **30** proportion significance, due to the media publicity. 29. The Committee appointed by the State Government found that, there was more significance for the internals in the subject of Architecture. The final year of the degree programme included 6 months' internal practical training and 6 months' thesis project. The high sessional marks prescribed on the basis of the internal practical training, which covers 8-14 hours per day, could have been the basis for the complaint raised, was the finding. There were certain discrepancies found, in so far as there being no proper review of the assessments made, rectification of which was recommended. However, the conclusions of the Committee appointed by the Directorate of Collegiate Education belied the allegations raised by the students. The Committee also emphasized that the assessment in architecture unlike other science subjects would be subjective. Architecture though intrinsically is Civil Engineering has an artistic angle to it and that aspect has as much _W.P(C). No.35877 of 2005-U_ **31** significance as the scientific precision required in the former. An objective assessment of art is often impossible for reason of the metaphysical elements involved. 30. As was initially noticed, it is difficult to understand as to who exactly was the victim, especially noticing the fact that the 4[th] respondent's case was taken up before various authorities intermittently, after sufficient passage of time, casting very serious aspersions on the eventual proceedings which are directed against the Head of the Department. It is natural that a student failing consistently in his course, especially in the internals of a professional degree course, develops a grudge against the teachers who conducted such assessment. But, here is a case where the student had consistently failed despite various opportunities being given, even by this Court in the writ petitions filed by the said student before this Court. After more than a decade and a half from the date of his expected completion of course, proceedings were initiated, which were _W.P(C). No.35877 of 2005-U_ **32** further sought to be strengthened by allegations raised subsequently by some other students studying in the same college. 31. The petitioner had been kept under suspension till his superannuation, which is already found to be in violation of the statutory provisions. The allegation at the first instance was only with respect to the incident of the 4[th] respondent having been victimized. As was noticed earlier, the 4[th] respondent had, at no point when he was before this Court with various writ petitions, impleaded the petitioner as a _eo-nomine_ party in which event alone allegations of victimization could be made, personally against the Head of the Department. The instances of victimization were of the period 1991-1992 which was agitated before this court as is revealed from Ext P3 & P4 in 1996 and then in 1998, evidenced by Ext.P5. The issue was again raked up in the year 2005 and revived so as to proceed against the petitioner. _W.P(C). No.35877 of 2005-U_ **33** 32. Further, the entire allegations have been dealt with by a committee on the basis of the petition addressed to the President of India by the Secretary, Forum of Aggrieved Students of Architecture.The conclusions of that enquiry, in Exhibit P32, are extracted hereunder: - “1. No one could produce any solid evidence to prove or deny the complaints. 2. The students who raised specific complaints have already been enjoyed the chances that offered to them by the University for the successful completion of their course. 3. Evaluation of various subjects of Architecture programme is quality based, which is subjective. The marks awarded for performance in the regular classes cannot be reassessed in a later stage. Hence, a system at the college level is very essential to inform the students about their performance level at fixed intervals and to attend their complaints, if any, in time. 4. A committee shall be constituted at the earliest as mentioned in their report to prepare a manual to _W.P(C). No.35877 of 2005-U_ **34** follow in Architecture Departments to overcome all possible disputes related to Sessional marks and other issues that can expect while conducting B.Arch Programme.” This fortifies the contention that the allegations levelled against the petitioner were more motivated by the agitation which resulted in a complaint being sent to the President of India and the adverse media publicity. In the enquiry report the allegations were found to be not substantiated. 33. In the above circumstances, this Court is convinced that there would be no purpose now in relegating the matter to the disciplinary authority, the educational agency. The disciplinary enquiry initiated by the educational agency is found to be motivated by extraneous reasons. The educational agency was only prompted by the threat of loss of affiliation. The findings too are not based on any evidence and is in conflict with the findings of the enquiry ordered by the State; that too with _W.P(C). No.35877 of 2005-U_ **35** two Principals, who are more competent to go into the allegations. The initiation of enquiry having been found to be bad; no consequence flows from the report. The petitioner is found to have been illegally kept out of service by the order of suspension. The petitioner is entitled to the entire pay and allowances for the period starting from three months after the date of his suspension till superannuation. Any subsistence allowance paid would be deducted from such computation of pay and allowances. The period of suspension shall be treated as leave without allowances. The petitioner shall also be entitled to full pension as determined by the appropriate authority. The arrears of pay and allowances and pension shall be computed and paid to the petitioner within a period of three months from the date of receipt of certified copy of the judgment. Whatever amounts disbursed to the petitioner, as per the interim orders of this Court, shall be deducted when computing the arrears to be paid. _W.P(C). No.35877 of 2005-U_ **36** The writ petition stands allowed, leaving the parties to suffer their respective costs. Sd/- **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. vku/sp/20/02/16