JALAJA.G.PRABHU v. BOARD OF TRUSTEES, DR.PADIAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA, ERNAKULAM & ORS

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **&** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 1ST DAY OF JUNE 2018 / 11TH JYAISHTA, 1940** **WA.No. 653 of 2015** **-----------------AGAINST THE JUDGMENT IN WP(C) 6476/2012 DATED 04-12-2014** **-----------** ## **APPELLANT(S)/PETITIONERS** **------------------------** **JALAJA.G.PRABHU, LOWER DIVISION CLERK, DR.PADIAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA,ERNAKULAM 682 312** **BY ADVS.SRI.P.SANKARANKUTTY NAIR SRI.K.SANDESH RAJA** ## **RESPONDENT(S)/RESPONDENTS:** **-------------------------** ## **1. BOARD OF TRUSTEES,** **DR.PADIAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA,ERNAKULAM, REPRESENTED BY THE PRESIDENT T.D SHOPPING COMPLEX, T.D WEST ROAD,KOCHI 682 035** **2. DR.PADIAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE, RPERESENTED BY THE SECRETARY,CHOTTANIKKARA 682312 ERNAKULAM DIST** **3. THE PRINCIPAL,** **DR.PADIAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA,ERNAKULAM 682 312** **4. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM 695 001** **5. THE PRINCIPAL & CONTROLLING OFFICER, GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE, THIRUVANANTHAPURAM-695001.** **R1-R3 BY ADVS. SRI.N.NAGARESH** **SRI.SHAJI THOMAS** **SRI.BINU PAUL** **SRI.T.V.VINU** **R4,R5 BY SENIOR GOVERNMENT PLEADER SRI P.N.SANTHOSH** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **CR** P.R.Ramachandra Menon & Devan Ramachandran, JJ. ------------------------------------------------------- ## W.A.No.653 of 2015 ------------------------------------------------------Dated this the 1[st] day of June, 2018 ## **JUDGMENT** ## **Devan Ramachandran, J.** The foundational basis of the issues in this appeal rests on an order issued by the first respondent - Board of Trustees of Dr.Padiar Memorial Homeopathic Medical College, Chottanikkara, Ernakulam. The order impugned is placed on record as Exhibit P13, which is dated 08.02.2012, under which the appellant herein, who is working as a Lower Division Clerk in the said College, was imposed with the punishment of barring of one increment with cumulative effect and reduction of pay by one stage on a permanent basis. 2. As is clear from Exhibit P13 order, the two punishments imposed are not with relation to one incident but with regard to two separate sets of allegations and accusations. Even though the allegations against the appellant relate to two different dates, they are, in its essence, WA 653/15 2 analogous in nature, which is that she has been accused of indiscipline and insubordination, in refusing to comply with the directions issued by the Principal of the College. 3. The records available on file would show that the appellant was initially proceeded against in the year 2002 on the accusation that she had committed gross insubordination by refusing to discharge her duties in the hospital, which led to Exhibit P4 order imposing punishment of barring of two increments. The appellant appears to have filed an appeal against this and by Exhibit P9 order dated 02.06.2004 the punishment earlier imposed was reduced to barring of one increment for a year without cumulative effect. 4. While matters stood so, she was proceeded against by another charge memo dated 04.08.2004, which is produced on record as Exhibit P7. In this memo, it was alleged that she failed to discharge her duties in the hospital attached to the college on 25.06.2004, thereby acting in breach of office indiscipline, in abstaining wilfully from the assigned duties and thus exhibiting insubordination. Even though the appellant denied these allegations on the assertion that she is WA 653/15 3 not liable to be assigned duties or to discharge functions in the hospital, she being appointed as a Clerk in the college, Exhibit P8 order was issued against her finding her guilty of the charges imputed against her. 5. As is clear from Exhibit P8, the said order has been issued after an enquiry, wherein the appellant was also given an opportunity of defending the charges and she was imposed with the punishment of reduction of one stage of salary without cumulative effect. When this order was issued against her, she preferred an appeal before the fifth respondent - The Principal & Controlling Officer, Government Homeopathic Medical College, Thiruvananthapuram, who, however, took the view since the direct payment system has been established in the college by the Government of Kerala, the appeal will have to be decided by the competent authority of the Government and not by him. The appeal, thereafter, appears to have been considered by the competent Secretary of the Government of kerala, who issued Exhibit P10 order, holding that the proceedings of the fifth respondent had become null and void and that the revision petition of the appellant itself was WA 653/15 4 unnecessary. The appellant challenged this order by filing W.P. (C)No.2929/2010 before this Court and the said writ petition was disposed of by a learned Single Judge declaring that the statement in Exhibit P10 order that the revision petition had become null and void is unsustainable and consequently allowing the appellant to make an appropriate representation/ appeal against both the punishments before the first respondent. The appellant, it transpires, filed such an appeal before the first respondent, which finally led to Exhibit P13 order. In this order, the punishments were imposed on the appellant as has been already recorded above. 6. The appellant challenged Exhibit P13 order before the learned Single Judge, who, however, found that since the college and the hospital are integral part of one establishment, both being under the same management, the charges of insubordination against the appellant cannot be found to be without basis and therefore, confirmed the impugned order dismissing the writ petition. It is against the judgment of the learned Single Judge that the appellant has filed this appeal. WA 653/15 5 7. We have heard Sri.P.Sankarankutty Nair, learned counsel appearing for the appellant, Sri.N.Nagaresh, learned counsel appearing for respondents 1 to 3 and the learned Government Pleader appearing for respondents 4 and 5. 8. When we proceeded to examine the merits of Exhibit P13, we have to particularly keep in mind that the proceedings against the appellant was initiated by the Principal of the College on the allegation that she was guilty of insubordination. The reason why such an allegation was made against the appellant was that she had refused to attend certain duties assigned to her in the hospital attached to the college on the ground that, as per Exhibit P1 appointment order, she was appointed only as a Clerk in the college and not in the hospital. The stand taken by the appellant on the basis of her order of appointment is that she is entitled to refuse to work in the hospital and that she is required to work only in the college. The learned Single Judge, as we see from the impugned judgment, found that since the hospital and college are integrants of one establishment and being under the same management, the command of the Principal to the appellant to WA 653/15 6 work in the hospital for one or two days, on account of exigencies of service, cannot be found to be one issued without authority or jurisdiction and therefore, that the admitted action of the appellant in refusing to work in the hospital, in spite of such directions being given, would certainly amount to a case of insubordination. 9. The learned counsel for the appellant contends that the question whether the hospital and Medical College are two different entities is in fact covered by a judgment of the Hon'ble Supreme Court in **State of Kerala v. Naveena Prabhu and Others** (2009 KHC 4234). He relies on paragraph 13 of the judgment and asserts that the duties and responsibilities in the college have been declared by the Hon'ble Court to be distinctly different and separate from that in the hospital. We have examined this judgment and find that the observations of their Lordships in the said judgment have not been made in the factual circumstances as are presented in the present case. At present, what is before us is a case of admitted and proven insubordination of a person employed in the college when asked to discharge certain duties in the WA 653/15 7 hospital on a day or two. Even if the duties and responsibilities are distinct in the hospital and the college, as asserted by the appellant, the judgment cited would not come to the aid of the appellant to say that she should be entitled to violate and refuse to act as per the directions of the Principal, even though she admits that she is under his control. We are, therefore, of the view that the judgment in **Naveena Prabhu** (supra) would be of no consequence in the assessment of the situation involved in this case. 10. Further and in any event, even though the learned counsel for the appellant tries to draw a functional distinction between the college and the hospital by saying that even if they are under the same management, they cannot be construed to be part of one establishment, they being two distinct entities, we are of the view that such submissions cannot find favour in view of the concluded observations in Exhibit P11 judgment of this Court referred above, wherein the Board of Management of the College and Hospital was directed to consider the petitioner's appeal against the punishments imposed on her. It is admitted that the appellant WA 653/15 8 did not challenge Exhibit P11 but was happy with the same and allowed the first respondent Board to consider her appeal and dispose it of in the manner it has been done. Obviously therefore, it becomes indubitable that the appellant does not have a case that the first respondent, who concededly controls the college as well as the hospital administratively, could not have considered her appeal on the ground that the institutions are two distinct entities but allowed the said Board to consider the appeal as being the authorised Appellate Authority. That being so and particular because Exhibit P11 has now become final, any contention to the contrary, in our view, would be out of place. The liberty given to the appellant was to prefer an appeal before the first respondent Board and she having taken that liberty and done so, now it would not be within her capacity to say that the first respondent cannot be seen to be the appropriate Appellate Authority. 11. That being said, the only surviving question is whether Exhibit P13 can be found to be vitiated in law or in any manner perverse, meriting our interference. WA 653/15 9 12. One of the contentions raised by the learned counsel for the appellant is that the barring of increment with cumulative effect is a major penalty and that such penalty could not have been imposed without first conducting a detailed enquiry. This submission of the learned counsel, however, goes contrary to the Mahatma Gandhi University Statutes, 1977, which is concededly applicable to the college, it being affiliated to the said University. The various penalties that can be imposed for proven indiscipline of teaching and non-teaching staff are enumerated in Statute 73 and when one reads it along with Statute 76, the penalties of censure, withholding of increments or promotion and recovery from pay are all prescribed to be only minor penalties. In fact, going by the Explanation to Statute 73(3) even a stoppage of increment with cumulative effect would be categorised among minor penalties only. That being so, going by the rigor of Statute 76, such penalty can be imposed even without conducting an enquiry but after offering an opportunity of being heard to the delinquent. This is exactly what has been done in this case and the appellant was heard and she was WA 653/15 10 given an opportunity of showing cause against the charge by the disciplinary authority before action was ordered against her in Exhibit P4 order. As regards the second charge of penalty of reduction of pay by one stage is concerned, it is admittedly a major penalty and we see that before that punishment was imposed through Exhibit P8, a detailed enquiry had been conducted and the appellant had been given an opportunity of leading evidence to substantiate her defence against the charges. In such view, the punishments imposed in Exhibit P13 order cannot be found to be vitiated either for non-compliance of the principles of natural justice or on account of statutory transgressions. 13. Once we find as above, we are also certain in our mind that if we are to grant any form of imprimatur to the contentions of the appellant, the very basis of discipline in the institution will stand compromised. The Hon'ble Supreme Court has often reminded us that in matters of breach of discipline the primary concern for any court ought to be whether the actions alleged would violate the basic tenets of discipline and would pose to be deleterious to the very being WA 653/15 11 of the institution. The Hon'ble Supreme Court has cautioned that when the courts have faced with such instances, it should be loath to interfere with proceedings that are intended to enforce discipline, especially in an educational institution. 14. Guided by the above principles, we cannot find that the directions of the Principal given to the appellant to work in the hospital on a day or two on account of need and exigency could be seen to be illegal or without jurisdiction. From such view, the conduct of the appellant is completely egregious and in gross violation of the imperative discipline to be maintained at the institution. These are, certainly, therefore, acts of indiscipline and insubordination, deserving the punishments that have been imposed against her in Exhibit P13 order. 15. We, therefore, cannot find anything wrong in the judgment of the learned Single Judge impugned before us and we are thus persuaded to find in favour of the order impugned, namely Exhibit P13. This appeal is thus dismissed but in the singular circumstances involved herein, we refrain from making any order as to costs and direct the parties to suffer their WA 653/15 12 respective costs. Sd/P.R.Ramachandra Menon, Judge Sd/Devan Ramachandran, Judge tkv