K. Chandapilla Panicker v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 14TH DAY OF MARCH 2018 / 23RD PHALGUNA, 1939 WP(C).No. 8964 of 2016** ## **PETITIONER(S)** **K.CHANDAPILLA PANICKER, S/O.C.KOSHI PANICKER, VYRAMON PANAYIL, NO.37, NAVAJYOTHI NAGAR, TOWN LIMIT, KADAPPAKKADA, KOLLAM DISTRICT.** **BY ADVS.SMT.SURYA BINOY SMT.P.R.REENA** ## **RESPONDENT(S) :** **1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695 001.** **2. DIRECTOR OF TECHNICAL EDUCATION, OFFICE OF DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM, PIN - 695 023.** **3. T.K.M. COLLEGE OF ENGINEERING, KOLLAM, REPRESENTED BY ITS CHAIRMAN, GOVERNING BODY, T.K.M. COLLEGE OF ENGINEERING, KOLLAM, PIN - 691 005.** **4. PRINCIPAL, T.K.M. COLLEGE OF ENGINEERING, KOLLAM, PIN - 691 005.** **5. UNIVERSITY APPELLATE TRIBUNAL, OFFICE OF THE UNIVERSITY APPELLATE TRIBUNAL, THIRUVANANTHAPURAM, PIN - 695 001.** **R1 & R2 BY GOVERNMENT PLEADER SRI.RON BASTIAN R3 & R4 BY ADV. SRI.GEORGE POONTHOTTAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-03-2018, ALONG WITH W.P.(C)NO. 38019 OF 2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **23.03.2018** **WP(C).No. 8964 of 2016 (U)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE ENQUIRY REPORT OF THE VIGILANCE OFFICER DATED 24.11.2008 IN COMPLAINT NO.315/2008.** **EXHIBIT P1(A) TRUE COPY OF THE INFORMATION OBTAINED UNDER RTI ACT DATE 01.02.2016 REGARDING THE COMMUTED LEAVE OF THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE CHARGE MEMO DATED 24.06.2008. EXHIBIT P2(A) TRUE COPY OF THE STATEMENT OF ALLEGATION DATED 24.06.2008. EXHIBIT P2(B) TRUE COPY OF THE COMPLAINT FILED BY ANTONY BEN DATED 19.12.2007.** **EXHIBIT P3 TRUE COPY OF THE ENQUIRY REPORT ISSUED BY 3RD RESPONDENT TO THE PETITIONER.** **EXHIBIT P3(A) TRUE COPY OF THE FORWARDING LETTER DATED 04.02.2014 ISSUED BY 3RD RESPONDENT TO THE PETITIONER ALONG WITH ENQUIRY REPORT. EXHIBIT P4 TRUE COPY OF THE OBJECTION TO THE ENQUIRY REPORT FILED BY THE PETITIONER DATED 03.03.2014. EXHIBIT P5 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 10.03.2014. EXHIBIT P6 TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER DATED 11.04.2014. EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS DATED 19.04.2014 OF THE 3RD RESPONDENT. EXHIBIT P7(A) TRUE COPY OF THE CERTIFICATE DATED 10.02.2009. EXHIBIT P7(B) TRUE COPY OF THE CERTIFICATE DATED 12.02.2009. EXHIBIT P7(C) TRUE COPY OF THE CERTIFICATE DATED 10.02.2009. EXHIBIT P7(D) TRUE COPY OF THE LETTER DATED 10.02.2009 OF THE CO-SYNDICATE MEMBER. EXHIBIT P8 TRUE COPY OF THE LETTER NO.11220/D2/04/H.EDN. DATED 31.07.2004. EXHIBIT P9 TRUE COPY OF THE LETTER ISSUED BY THE DIRECTOR OF COLLEGIATE EDUCATION TO THE REGISTRAR, UNIVERSITY OF CALICUT DATED 17.11.2004. EXHIBIT P10 TRUE COPY OF THE RTI QUERY DATED 30.05.2012. EXHIBIT P10(A) TRUE COPY OF THE RESPONSE DATED 10.07.2012 TO THE RTI QUERY.** **WP(C).No. 8964 of 2016 (U)** **EXHIBIT P11 TRUE COPY OF THE RESPONSE ISSUED BY THE UNIVERSITY TO AN RTI QUERY DATED 10.07.2012. EXHIBIT P12 TRUE COPY OF THE AFFIDAVIT FILED BY THE PROFESSOR IN CHARGE OF PRINCIPAL.** **EXHIBIT P13 TRUE COPY OF THE AFFIDAVIT FILED BY THE PROFESSOR IN CHARGE OF PRINCIPAL 17.07.2013.** **EXHIBIT P14 TRUE COPY ORDER OF THE TRIBUNAL DATED 26.12.2015 IN APPEAL NO.1/2014.** - **EXHIBIT P15 TRUE COPY OF THE MEMO DATED 24.01.2011 AND PUNISHMENT DETAILS OF NOUSHAD.** **EXHIBIT P16 TRUE COPY OF THE DETAILS OF CRIME IMPOSED ON MOHAMMED IQBAL DATED 23.07.2012.** - **EXHIBIT P17 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY UNDER THE REVISED AICTE SCHEME.** - **EXHIBIT P18 TRUE COPY OF THE PROCEEDINGS DATED 28.08.2014 ISSUED BY THE PROFESSOR-IN-CHARGE AT THANGAL KUNJU MUSALIAR COLLEGE.** - **EXHIBIT P19 TRUE COPY OF THE PROCEEDINGS DATED 04.09.2014 ISSUED BY THE PROFESSOR-IN-CHARGE AT THANGAL KUNJU MUSSALIAR COLLEGE.** ## **RESPONDENT(S)' EXHIBITS :** - **EXHIBIT R3(A): TRUE COPY OF THE G.O(P)NO.389/2010/H.EDN. DATED DECEMBER 7,2010.** - **EXHIBIT R3(B): TRUE COPY OF THE G.O(P)NO.1940/2012/H.EDN. DATED SEPTEMBER 18, 2012.** - **EXHIBIT R3(C): TRUE COPY OF THE ORDER NO.C1-3489/2004 DATED MARCH 02,2009 PASSED BY THE 3RD RESPONDENT.** - **EXHIBIT R3(D): TRUE COPY OF THE ORDER NO.E2/2468/2010 DATED 05.06.2012 PASSED BY THE 3RD RESPONDENT.** - **EXHIBIT R3(E): TRUE COPY OF THE OFFICE LETTER NO.E1/3092/2007 DATED 15.02.2008 ISSUED BY THE PRINCIPAL.** **EXHIBIT R3(F): TRUE COPY OF THE LETTER NO.RT1/11388/2008 DATED 18.07.2008 ISSUED FROM THE UNIVERSITY.** **EXHIBIT R3(G): TRUE COPY OF THE ATTENDANCE REGISTER FROM THE MONTH OF AUGUST 2007.** **//TRUE COPY//** **P.S.TO JUDGE** **Msd. 23.03.2018** ## _**P.V.ASHA, J.**_ -------------------------- **==> picture [164 x 43] intentionally omitted <==** ------------------------------------------- _Dated this the 14[th] day of March, 2018_ ## _**JUDGMENT**_ ## W.P(C) Nos.8964 of 2016 Petitioner, who retired from service from TKM College of Engineering on 31.5.2014, is challenging Ext.P7 order by which a punishment of reversion to the post of Assistant Professor was ordered for a period of six years or till his retirement. He seeks a declaration that he is entitled to all benefits including promotion as Cadre Professor w.e.f 1.4.2013 and for all other consequential benefits. 2. The petitioner had joined the TKM College of Engineering - the 3[rd] respondent (hereinafter referred to as `the college') as Lecturer on 12.9.1980. While working as Professor, on career advancement promotion from 01.01.2006 onwards, he was elected to the Syndicate of the University of Kerala and he functioned as a member of the Syndicate during the period W.P(C) Nos.8964/16 & 38019/15 2 from 2006 to 2010. While so, one Sri Antony Ben, a teacher in the college and office bearer of a rival association of teachers, filed a complaint before the Lok Ayukta alleging that the petitioner was drawing salary without attending to duties in the college under the guise of his attendance in the University in his capacity as a Syndicate Member. He alleged that the petitioner was on such unauthorised absence for 67.5 days. In that complaint No.315/2008, the Lok Ayukta ordered an enquiry by its investigating agency. The Deputy Superintendent of Police, the Investigating Officer of the Lok Ayukta, submitted Ext.P1 enquiry report on 24.11.2008. The complaint was to the effect that the petitioner skipped his academic duties for 67.5 days during the period from July, 2006 to August, 2007 and claimed salary illegally for those days. It was further alleged that the petitioner was nominated as a member of the Syndicate from the field of Information Technology though he did not have any qualification or experience in that field. As against the complaint regarding absence of 67.5 days, the Investigating Officer found that there was no document to support his absence of 2½ days i.e there was no document to support the claim of the petitioner that he performed duty as member of syndicate on 5.1.2007 and the afternoon of 19.3.2007, 2.8.2007 and 3.8.2007 and duty leave was 3 W.P(C) Nos.8964/16 & 38019/15 seen marked in the attendance register against those days and had claimed salary for those days.. The other allegations were found baseless. 3. In the meanwhile, the 3[rd] respondent-the College, issued Ext.P2 memo of charge to the petitioner on 24.06.2008, on the basis of a complaint from the very same Sri. Antony Ben, who was an Assistant Professor of the very same College and President, Kerala Private College Teachers Association, Kerala University Region. It was alleged that the petitioner had unauthorisedly withdrawn from duty during 30 days mentioned therein between 18.07.2006 and August 2007, (out of which 4 days only in the afternoon) and submitted applications for duty leave purportedly for attending duties in the University in his capacity as Syndicate Member on those days; on verification of records obtained from the University and also on information received on the representation of the President KPCTA (complainant before the Lok Ayukta), it was found that the petitioner had not attended any other duty in the University and hence he was unauthorisedly absent on those days. It was further alleged that the petitioner had not submitted any duty certificate for such absence despite repeated memos and he received salary for the aforesaid days submitting application for duty leave on the sole recommendation of the Head of the 4 W.P(C) Nos.8964/16 & 38019/15 Department by misrepresenting facts for claiming salary. It was alleged that the petitioner did not comply with Statute 27 of Chapter 2 of the Kerala University (Conditions of service of teachers and members of non teaching staff) First Statutes, 1979 for his absence of duty in the college and hence his absence and drawal and receipt of salary were unauthorised. It was further alleged that the petitioner's action resulted in adverse publicity against the college in the print and visual media and it adversely affected the interest of the students in the Electrical and Electronics Engg. Department and it also tarnished the image and esteem of the college. The petitioner was therefore directed to show cause why action under Chapter 4 of the Kerala University (Conditions of service of teachers and members of non teaching staff) First Statutes, 1979 should not be taken against him. He was required to state whether he desired to be heard in person. He was permitted to peruse the records and take down extracts prior to the submission of his written statement of defense. The memo of charge was accompanied by a statement of allegations. 4. The case of the petitioner is that the memo of charges and the statement of allegations are in tune with Ext.P2(b) complaint of Sri Antony Ben before the Lok Ayukta filed on 19.12.2007. The petitioner submitted 5 W.P(C) Nos.8964/16 & 38019/15 Ext.P3 reply to the memo of charges on 14.7.2008 denying the allegations. 5. The College proceeded with an enquiry by appointing an Advocate as enquiry officer. In Ext.P3 enquiry report the enquiry officer stated that based on Ext.P1 inquiry report of the Investigating Officer before the Lok-Ayukta on 24.11.2008, the College had limited the charges against the petitioner from 30 days to 5.1.2007 and on the afternoon of 19.3.2007, 2.8.2007 and 3.8.2007. (but 03.08.2007 was not one covered by the memo of charge). The inquiry Officer considered 6 points. The first 4 points were with respect to the absence of the petitioner on the aforesaid 2½ days. The 5[th] point was whether the petitioner misrepresented facts for claiming salary and whether he complied with Statute 27 of Chapter 2 of the First Statute for his absence and whether his absence was unauthorised and the 6[th] point was whether the action of the petitioner resulted in adverse publicity against the college and whether it adversely affected the interest of the students in the Department and tarnished the image and esteem of the management institution. Regarding the points 1 to 4, the enquiry officer found that Management cannot be faulted with their stand in insisting for a certificate countersigned by the University or any officer authorised for that purpose to prove the attendance of the syndicate member on those 2 ½ days. On the W.P(C) Nos.8964/16 & 38019/15 6 fifth point the enquiry officer found that while attending meeting in the University as a member of Syndicate, one has entirely different duty than that of ordinary teacher and hence statute 27 has no application in the matter of availing duty leave by a member of syndicate. However, it was found that inapplicability of statute 27 will in no way absolve the liability of the petitioner in complying with the guidelines Ext.P9 letter of the Director of Collegiate Education read with his letter dated 23.03.2012, (issued years after the alleged incidents) which were marked as M4 and M20 respectively in the inquiry. 6. Regarding point No.6 it was found that there was no occasion for any adverse publicity against the college and it has not adversely affected the interest of the students and it has not tarnished the image of the institution. The inquiry report was forwarded as per Ext.P3(a) letter dated.14.2.2014. 7. Even though the finding regarding the unauthorised absence for 2 ½ days was agreed to, the college disagreed with the findings of the enquiry officer on applicability of Statute 27 in which the inquiry officer had stated that Statute 27 cannot be made applicable to members of syndicate like an ordinary teacher stating that the provisions of the Statute W.P(C) Nos.8964/16 & 38019/15 7 are applicable to all the teachers. It was also stated that acceptance of the report of the enquiry officer, Lok Ayukta would not stand in the way of agreeing with the finding of inquiry officer that the delinquent was unauthorisedly absent for 2 ½ days, as there can be no estoppel in respect of law. The college also disagreed with the observations of the inquiry officer that in accepting the letters/documents signed by other syndicate members based on which it was observed that those letters prove the presence of the delinquent for the university duties, pointing out that it was contrary to Statute 27. The Chairman, governing body of the college therefore called for the remarks of the petitioner in the light of the disagreement with the inquiry report. 8. The petitioner thereupon submitted Ext.P4 explanation contending that the disagreement with the inquiry report was baseless pointing out that the management's action was only to harass the petitioner and to wreak vengeance; whereas he stood for the interest of the students and the college. He therefore requested to drop further proceedings, considering the evaluation report and the statement of the H.O.D and his dedicated services rendered since 1980. Being dissatisfied with the explanation the respondent college issued Ext.P5 show cause notice W.P(C) Nos.8964/16 & 38019/15 8 proposing a punishment of reduction to a lower post of Assistant Professor w.e.f 24.6.2008, the date of the memo of charges. The petitioner was asked to submit explanation if any against the proposal. The petitioner thereupon submitted Ext.P6 explanation pointing out that the findings of the disciplinary authority was contrary to law and requesting to cancel the proposed punishment. He also sought for a personal hearing. Ext.P7 order was thereafter issued confirming the proposal for reduction to lower post of Assistant Professor w.e.f 24.6.08 for a period of 6 years or till the date of superannuation, whichever is earlier. The writ petition is filed under the above circumstances. 9. The petitioner's contention was that he had drawn salary on the basis of self declaration signed by the Principal and it was on the basis of Ext.P8 letter issued by the Secretary to Government on 31.07.2004 addressed to the Director of Collegiate Education, wherein it was stated that the private aided college teachers nominated to syndicate shall be allowed duty leave for the days they attend official duties in the capacity as syndicate members and that their salary bills shall be honoured on the basis of the self declaration of the days of duty countersigned by the Principal of the college where the teacher is working. It is argued that there is no charge W.P(C) Nos.8964/16 & 38019/15 9 alleged in Ext.P2 with respect to 03.08.2007 and a finding in the absence of charge is without authority. The petitioner submits that Statute 27 is not applicable to the petitioner, as found by the inquiry officer. The petitioner also submits that the charge alleged against him cannot amount to misconduct within the meaning of statute 36 of the First Statute. The head of the department, who was the Dean then, had specifically stated that the petitioner was a dedicated teacher and he had obtained 97 to 98% range in the teacher student evaluation index and he was the most acceptable teacher to the students. The allegation was raised against the petitioner at a time when the petitioner was having large number of earned leave and commuted leave in his credit. It was further alleged that there was no provision for a retrospective reversion. The petitioner will not come under the definition of `teacher' as defined under Sect.2(27) of the University Act, 1974 while he was acting in his capacity as a member of the syndicate and therefore statute 27 would not apply in the case of the petitioner, especially in the light of Ext.P8 letter issued by the Government. Respondents are relying on Ext.P9 letter where the Director of Collegiate Education had on 17.11.2004 informed the Registrar of the University of Calicut that the private college teachers who are functioning as syndicate members shall be given 10 W.P(C) Nos.8964/16 & 38019/15 instructions to produce certificate for attending other duties in their capacity as syndicate members duly countersigned by the Registrar/Pro Vice Chancellor/Chancellor or any officer authorised for the purpose by the Vice Chancellor of the University. 10. Respondents 3 and 4 filed counter affidavit in tune with their stand in the impugned orders. According to them, the petitioner was only designated as Professor under career advancement scheme, as he had completed 3 years of service as cadre Associate professor on 1.1.2006. It is stated that the petitioner had the habit of skipping from his duties under the pretext of his work at the University being a syndicate member without filing any proper application. Since the college received complaint about the unauthorised absence of the petitioner in July, 2006 and August 2007, records were verified and found that the petitioner skipped his duties for 30 days. On verification with the Registrar of the University, it was informed in the letter dt.18.7.2008 that the petitioner had various duties in University except for 2 ½ days. Thereafter, memo of charge was issued and an enquiry was conducted. It was also stated that similar punishment of reversion was awarded to other teachers of the college and the petitioner was awarded with the punishment of reduction to a lower post on account of the W.P(C) Nos.8964/16 & 38019/15 11 misconduct. It is stated that the punishment is already implemented reverting the petitioner to the lower post of Assistant Professor with effect from 24.6.2008 and the Director of Technical Education has fixed his pay based on his reversion. It is stated that Ext.P8 only provides that syndicate members are eligible for duty leave and that their salary bills shall be honoured on the basis of self declaration countersigned by the Principals of the respective colleges. In the present case, the petitioner claimed salary and allowances for the days on which he did not perform his duties either in his capacity as syndicate member or in the capacity as teacher. The Investigation agency of the Lok Ayukta had also found that the petitioner had not performed his duties for 2 ½ days in the capacity as syndicate member, against which the petitioner claimed duty leave and received salary and other allowances. Therefore, according to them, there is nothing illegal in the action taken against the petitioner. The respondents produced Ext.R3(e) to R3(g) along with I.A.19940/2017. Ext.R3(e) is a letter dt.15.2.2008 by which the enquiry officer had requested the Registrar of the University to verify and inform whether the petitioner had any official duty in the university for the 30 days for which he had taken leave. By Ext.R3(f) letter dated.18.7.2008 the University informed that out of the 30 days 12 W.P(C) Nos.8964/16 & 38019/15 pointed out, the petitioner had various duties in the University for 24 days. Therefore, it was stated that the petitioner claimed duty leave for the six days indicated and received salary and allowances for the same. Producing Ext.R3(g) attendance register for the month of August, 2007, it was alleged that there were no documents to prove that the petitioner had performed duty on 5.1.2007, 19.3.2007, 2.8.07 and 3.8.07. 11. I have carefully considered the pleadings on record and the arguments advanced by Smt. Surya Binoy - the learned Counsel for the petitioner, Sri. George Poonthottam - the learned Counsel for respondents 2 and 3 and Smt. Beena Mary Joseph - the learned Senior Government Pleader. 12. There cannot be any finding of guilt in the absence of a charge in the memo of charge. As Ext.P2 memo of charge does not contain any allegation with respect to 03.08.2007, there cannot be any finding or any punishment based on such a finding. Then the finding can only be with respect to the remaining day which is a total of 2 days (one full day and 2 half days). 13. The questions to be considered are whether Statute 27 would apply in the case of petitioner and which among Ext.P9 letter issued by the W.P(C) Nos.8964/16 & 38019/15 13 Director of Collegiate Education on 17.11.2004 and the letter issued by the Govt. on 31.7.2004 to the Director of Collegiate Education, shall be applicable in the case. Ext.P9 letter does not refer to Ext.P8 letter of the Govt. where it was stated that self declaration alone is sufficient. 14. The case of the petitioner is that the University does not issue any duty certificate to any of the syndicate members. The proceedings are initiated against the petitioner when he had 100 days of accrued commuted leave as on 2007. It is stated that 74 days of commuted leave in 2007 lapsed when he retired on 31.5.2014. In addition to that, 1 ½ days of casual leave had also lapsed in that year. According to the petitioner, the nonexamination of the complainant, on whose complaint the memo of charge was issued, has vitiated the enquiry proceedings. It is the further case of the petitioner that none of the charges levelled against the petitioner come under any of the enumerated misconduct in statute 36 of the first statutes. It is the further case of the petitioner that the punishment is highly disproportionate to the gravity of offence and that the punishment of reduction to the lower post for 6 years to a teacher who would have got regular promotion as Professor, but for the alleged absence of 2.5 days is unreasonable and is liable to be interfered with. It is further pointed out that a member of W.P(C) Nos.8964/16 & 38019/15 14 syndicate cannot be treated as a teacher for all purposes and would not come within the definition of teacher under Section 2(27) of the Kerala University Act 1974, while he is acting as a member of the syndicate. Statute 27 does not relate to the members of the syndicate. Therefore, the order which is applicable to the petitioner is Ext.P8 and not Ext.P9. 15. The essential question involved in this case is which is the Government order applicable in the case of the petitioner. If it is Ext.P8 letter issued by the Government, there need only be the self declaration. If it is the letter of the Director of Collegiate Education, there should be duty certificates from the University. Both Exts.P8 and P9 are letters. When the Director of Collegiate Education cannot be superior to the Government, the letter issued by Government itself should govern the field; the Director of Collegiate Education has no power to supersede the directions issued by Government. The learned Government Pleader also, on instructions submitted that the order Ext.P8 would prevail over Ext.P9 order; in the above circumstances, the petitioner could have very well claimed the salary on the basis of self declaration. The enquiry officer has not considered the effect of Ext.P8 order, which was produced as M3 in the inquiry, On the other hand, he found that Ext.P9 order and M20 order would apply. The W.P(C) Nos.8964/16 & 38019/15 15 finding that the manner in which duty leave which was claimed in 2007 should have been in accordance with guidelines issued in 2012 can be nothing but absurd. The findings of the inquiry officer, if are based on interpretation/misinterpretation of orders or rules, can very well be interfered with by this Court. The order Ext.P8 was marked as M3 through the Principal of the College. Going by Ext.P8 order, the petitioner has claimed the salary in accordance with law. Once it is found so, there is no unauthorised withdrawal of salary, there cannot be any finding of guilt on the petitioner on first charge and there is no unauthorised withdrawal of salary. Admittedly, the petitioner has claimed salary based on his self declaration as provided in Ext.P8 order. 16. Next question is regarding applicability of Statute 27 of the Kerala University (Conditions of Service of Teachers and Members of NonTeaching Staff) First Statutes 1979 which reads as follows: _**“Absence of Duty** - A teacher attending any meeting of any University Body or Committee in his official capacity or any educational conference, Seminar etc., approved by the college, or superintending or conducting any public examination, or engaging in any other activity in which the college is interested, or attending a civil or criminal court as witness in obedience to a summons from a court, or attending a conference or committee convened by the central or State Government shall, be considered to be on duty and be entitled to draw his full salary during his absence._ _Provided that the previous sanction of the Principal shall be obtained for any absence of duty under this Statute.”_ W.P(C) Nos.8964/16 & 38019/15 16 What is provided is a teacher if attends a university body in his official capacity, his absence should be with prior permission of Principal. The absence of the petitioner was found with the approval of the HOD. A teacher who is a member of syndicate would attend a university body, in his official capacity as a member of the syndicate. He is a teacher as well as a member of the syndicate. In order to seek prior permission, the meetings should be fixed well in advance. As the inquiry officer found, the provision can be applied only in cases where the meetings/programmes are fixed well in advance and not others. Ext.P8 order can only be one issued after taking notice of the situation. The pay master being Government, Ext.P8 order issued by Government, specifically dealing with the syndicate members, would govern the field. Therefore, there was no reason to disagree with the findings of the inquiry officer and come to a different conclusion. At any rate, violation of statute 27 does not entail in any penal consequences. That is not a misconduct or improper conduct which is enumerated under Statute 36. 17. Even assuming that both these charges are found proved against the petitioner, there could not have been any reversion with retrospective effect. It is also relevant to note that the punishment awarded 17 W.P(C) Nos.8964/16 & 38019/15 to the teacher for the unauthorised withdrawal of salary under the guise of duty leave for 2½/2 days at a time when he was having even large number of commuted leave, earned leave and even casual leave, which ultimately lapsed, which would be much more in excess than the alleged absence, is highly disproportionate to the gravity of the charges. There cannot be any justifiable reason for proceeding against such a teacher. When the acceptance of the teacher among the students and the high percentage of results in the department, would only indicate the quality of a teacher; to award him such very severe and unheard of punishments would also not only arbitrary but shocking. 18. It is to be noted that the proceedings were initiated against the petitioner on the basis of a complaint submitted by the office bearer of an association of teachers from a rival union. The college does not have any complaint as against the quality or standard of teaching of the petitioner. On the other hand, the enquiry officer himself found that the petitioner is having very high acceptance among the students and there is absolutely no complaint regarding the marks scored in the subject which the petitioner is teaching. 19. It is settled law that there cannot be any reversion with W.P(C) Nos.8964/16 & 38019/15 18 retrospective effect. Punishment can only be substantive, which can be ordered only prospectively. A reversion can only be with respect to regular promotion, that too, with prospective effect and such a reversion is imposed as punishment can only be from substantive post which the employee physically holds. 20. Now the question is whether it can be enforced prospectively. The respondents themselves say that the petitioner was only placed as Professor on career advancement promotion. There is no provision in the University Statutes or even under the UGC Scheme, which permits the respondents to withdraw the career advancement promotion or to reverse the career advancement granted to the petitioner as Associate Professor and thereafter as Professor on completion of requisite number of years. The punishment awarded to the petitioner is thus one not enumerated or workable; there cannot be any reversion in a case where one is placed on career advancement. It is a case where the respondent management has imposed a punishment which is not only not enumerated but also for which there is no provision in the staute enabling the management to award a punishment with retrospective effect or to effect any reversion from a post notionally occupied by the petitioner on placement. The pleadings would 19 W.P(C) Nos.8964/16 & 38019/15 show that the petitioner, who got promotion as Assistant Professor, was placed as Associate Professor and thereafter as Professor under career advancement scheme. The University statutes issued in 1979 which provides for a punishment of reversion to the next lower post, would not have envisaged a reduction in the placements being given under the AICTE scheme. Therefore, Ext P7 order issued on 19.04.2014 awarding a punishment of reversion to the cadre of Assistant Professor with retrospective effect from 24.06.2008 for 6 years and the consequential refixation of pay, are without authority. Reversion is a substantive punishment which can be effected and imposed on a person holding a substantive post with prospective effect . 21. Even assuming that the finding that 2½/2 days leave was claimed in excess, I find that the punishment of reduction for a period of 6 years, that too, with retrospective effect and at a time when the petitioner would have got further career advancements/promotions before his retirement, is highly disproportionate to even the charges alleged to have been found proved and it is one shocking the conscience of the Court. The very fact that a teacher had to suffer such a punishment on the face of the students as well as the colleagues, is sufficient penalty the petitioner had 20 W.P(C) Nos.8964/16 & 38019/15 already undergone and for which he cannot be compensated at all. Though it is settled law that the court would not interfere with the employer's decision unless it was illegal or suffered from procedural impropriety or in a case of no evidence, when it is found irrational being highly disproportionate to the gravity of even the charges found proved, this Court can definitely interfere with the punishment, as held by the Apex Court in **B.C.Chathurvedi v. Union of India** : _(1995)6SCC 749_ , _**Union of India**_ **v.** _**G. Ganayutham**_ , (1997) 7 SCC 463, etc. In **Jai** _**Bhagwan**_ **v.** _**Commr. of Police** : (2013)11SCC 187_ the Apex Court held as follows: “ _10_ . What is the appropriate quantum of punishment to be awarded to a delinquent is a matter that primarily rests in the discretion of the disciplinary authority. An authority sitting in appeal over any such order of punishment is by all means entitled to examine the issue regarding the quantum of punishment as much as it is entitled to examine whether the charges have been satisfactorily proved. But when any such order is challenged before a Service Tribunal or the High Court the exercise of discretion by the competent authority in determining and awarding punishment is generally respected except where the same is found to be so outrageously disproportionate to the gravity of the misconduct that the Court considers it to be arbitrary in that it is wholly unreasonable. The superior courts and the Tribunal invoke the doctrine of proportionality which has been gradually accepted as one of the facets of judicial review. A punishment that is so excessive or disproportionate to the offence as to shock the conscience of the Court is seen as unacceptable even when courts are slow and generally reluctant to interfere with the quantum of punishment. The law on the subject is well settled by a series of decisions rendered by this Court.” In that case the charge was that the delinquent employee used rude language against a superior officer, who had come to check the wireless cabin 21 W.P(C) Nos.8964/16 & 38019/15 21 provided to him, and that he was not in uniform and took more time to open the door. Dismissal from service was converted as reduction in rank. In this case the petitioner has already retired from service on 31.05.2014, whereas Ext.P7 order was passed on 19.04.2014. Now that no penalty can be imposed on a person who retired from service and no purpose would be served by directing the college to pass fresh orders. As I have already found that the punishment awarded is unworkable and not enumerated in the statute, Ext.P7 order is liable to be set aside. As the petitioner had already retired from service, no other punishment need be and cannot be imposed on him. 22. Therefore, I quash Ext.P7. All consequential action based on Ext.P7 would also stand set aside to the extent it denied/reduced the benefits due to the petitioner. It is declared that the petitioner would be entitled to all service benefits as if there was no punishment awarded to him. There shall be a further direction to disburse all the consequential benefits due to the petitioner, within a period of three months from the date of receipt of a copy of the judgment. The writ petition is allowed accordingly. W.P(C) Nos.8964/16 & 38019/15 22 W.P.(C) No.38019 of 2015 In view of the judgment in W.P(c).No.8964/2016, there shall be a direction to the respondents to grant all consequential benefits to the petitioner treating him as having continued in service without any reversion. The writ petition is allowed accordingly. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_