Lijo Anto M.A. v. University of Calicut and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 22ND DAY OF MAY 2018 / 1ST JYAISHTA, 1940** **WP(C).No. 17738 of 2016** ## **PETITIONER(S)** **------------** **LIJO ANTO M.A, ASSISTANT PROFESSOR (UNDER SUSPENSION), DEPARTMENT OF COMPUTER SCIENCE, SREEKRISHNAPURAM V.T.BATTATHIRIPAD COLLEGE, P.O.MANNAMPATTA, PALAKKAD-678633, RESIDING AT MANJALY HOUSE, PLOT-117, PRIYADHARSANI NAGAR, PARAVATTANY, THRISSUR-680005.** **BY ADVS.SRI.KALEESWARAM RAJ KUM.A.ARUNA** ## **RESPONDENT(S):** ## **-------------** **1. UNIVERSITY OF CALICUT, REPRESENTED BY THE REGISTRAR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., CALICUT-673635.** **2. THE REGISTRAR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., CALICUT-673635.** **3. THE MANAGER, SREEKRISHNAPURAM V.T.BHATTATHIRIPAD COLLEGE, P.O.MANNAMPATTA, PALAKKAD-678633.** **4. P.V.BHAVYA, ASSISTANT PROFESSOR, DEPARTMENT OF COMPUTER SCIENCE, SREEKRISHNAPURAM V.T.BHATTATHIRIPAD COLLEGE, P.O.MANNAMPATTA, PALAKKAD-678633.** ## **5. THE SECRETARY** **SREE SANKARA TRUST, VALAYANCHIRANGARA, PERUMBAVOOR,ERNAKULAM-683542.** **TS** **WP(C).No. 17738 of 2016 (N)** ## **--------------------------** **ADDL.R6 IMPLEADED** ## **6. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,THRISSUR.** **ADDL.R6 SUO MOTU IMPLEADED AS PER ORDER DATED 11.7.2016.** **R1 & R2 BY SRI.SANTHOSH MATHEW,SC R3 BY ADV. SRI.P.C.SASIDHARAN R4 BY ADVS. SRI.V.RAJENDRAN KUM.ANJU CLETUS** **R6 BY SENIOR GOVERNMENT PLEADER SRI.E.S.ASHRAF** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-02-2018, ALONG WITH WPC.NO.24137/2017,THE COURT ON 22.05.2018, DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 17738 of 2016 (N)** ## **--------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** - **P1 TRUE COPY OF THE SUSPENSION ORDER DATED 28-12-2015 ISSUED BY THE 3RD RESPONDENT. P2 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 11-01-2016. P3 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 4TH RESPONDENT. P4 TRUE COPY OF THE EXPLANATION DATED 27-01-2016 SUBMITTED BY THE PETITIONER. P5 TRUE COPY OF THE STATEMENT OF ALLEGATIONS AND CHARGE MEMO DATED 04-03-2016. P6 TRUE COPY OF THE EXPLANATION DATED 19-03-2016 SUBMITTED BY THE PETITIONER. P7 TRUE COPY OF THE REPRESENTATIONS DATED 08-03-2016. P8 TRUE COPY OF THE REPRESENTATIONS DATED 28-03-2016. P9 TRUE COPY OF THE LETTER DATED 15-04-2016. P10 TRUE COPY OF THE LETTER DATED 25-04-2016 ISSUED BY THE 2ND RESPONDENT. P11 COPY OF THE LETTER NO. 5328/GA-II-F3/2013 CU(I) DATED 25-04-2016. P12 TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE APPELLATE TRIBUNAL. P13 TRUE COPY OF THE LETTER SUBMITTED BY THE 4TH RESPONDENT. RESPONDENT(S)'EXHIBITS ----------------------** **R3(A) TRUE COPY OF THE MEMO OF CHARGES ISSUED TO THE PETITIONER. R3(B) TRUE COPY OF THE APPEAL NO.4 OF 2016.** **R3(C)IN I.A.NO.10768/2016:- TRUE COPY OF THE BILLS SO SUBMITTED WERE RETURNED BY THE DEPUTY DIRECTOR STATING THAT THE CLAIM IS NOT IN ACCORDANCE WITH THE GOVERNMENT ORDERS, AND HENCE A REVISED BILL IS TO BE SUBMITTED.** ## **TS** **WP(C).No. 17738 of 2016 (N) --------------------------** |**R3(D) **|**IN I.A.NO.10768/2016:-TRUE COPY OF THE COMMUNICATION DATED 1/7/2016**| |---|---| ||**ISSUED TO THE SPARK AUTHORITIES.**| |**R3(C)**|**TRUE COPY OF THE ORDER DATED 14/7/2017.**| |**R3(D)**|**TRUE COPY OF THE APPEAL MEMORANDUM NO.9/2017 BEFORE THE**| ||**UNIVERSITY APPELLATE TRIBUNAL.**| **/TRUE COPY/ PS TO JUDGE** **TS 22.05.2018** ## **ANU SIVARAMAN, J. ************************************************* ## **W.P.(C) No.17738 of 2016 and W.P.(C) No.24137 of 2017** ******************************************************* Dated this the 22[nd] day of May, 2018** ## **J U D G M E N T** W.P.(C) No. 17738 of 2016 is filed challenging Ext.P1 suspension order and seeking direction to 2[nd] respondent to reinstate the petitioner in service. W.P.(C) No.24137 of 2017 is filed challenging the order issued by the University Appellate Tribunal extending the time for completing the disciplinary proceedings against the petitioner and Ext.P2 order of the Tribunal dismissing the appeal. Parties and documents shall be referred to as described in W.P.(C) No.17738 of 2016. 2. Petitioner, who was an Assistant Professor in the 3[rd] respondent's College, was placed under suspension on 28.12.2015, on the basis of a complaint made by 4[th] respondent. A show cause notice was issued to the petitioner on 11.01.2016 with a copy of the complaint. Petitioner submitted Ext.P4 reply. The explanation was not accepted and Ext.P5 dated 04.03.2016 was issued to the petitioner enclosing memo of charges and statement of allegations and disciplinary W.P.(C) No.17738 of 2016 & W.P.(C) No. 24137 of 2017 -:2:- action was proceeded with. 3. On the ground that the suspension order was one issued before any disciplinary proceedings was initiated against the petitioner and is therefore incompetent and illegal and that the suspension of the petitioner was not intimated to the Vice Chancellor as provided in Section 60(3) of the Calicut University Act, 1975, petitioner challenges the suspension order. It is also contended that in spite of assurances given to this Court, subsistence allowance is not disbursed to the petitioner. Allegations of malafide are also raised against the Assistant Manager of the College and Head of the Department (HOD). 4. The learned counsel for the petitioner places reliance on a decision of this Court in **Shobha S.N. v. State of Kerala and others** [ **2015 KHC 602** ] to contend that placing a teacher of a private college under suspension even before service of memo of charges is violative of the statutory provisions. It is stated that the provisions of the Calicut University Act are in _pari materia_ with the provisions of the Kerala University Act which is considered in the said decision W.P.(C) No.17738 of 2016 & W.P.(C) No. 24137 of 2017 -:3:- and therefore the decision applies on all focus to the instant case as well. 5. It is contended that the order of suspension rendered before initiation of a charge memo is not an order issued in a disciplinary proceedings and is therefore not an appealable order in terms of Section 60(7) of the Calicut University Act and the only remedy available to the petitioner is to approach this Court under Article 226 of the Constitution of India. 6. A counter affidavit has been filed by the 3[rd] respondent stating that a complaint alleging unwanted sexual advances against a teacher was received by the Principal which was forwarded to the Manager and a preliminary enquiry was conducted in which the allegations were _prima facie_ established. Therefore, an order of suspension was issued and disciplinary proceedings were also taken. When the enquiry could not be completed, extension of time was sought for, which was granted by the Vice Chancellor upto 28.06.2016. This order was taken in appeal by the petitioner before the University Appellate Tribunal as UA No.12/16 which was dismissed on 22.04.2017. It is stated that petitioner had also W.P.(C) No.17738 of 2016 & W.P.(C) No. 24137 of 2017 -:4:- filed UA No.4/16 against further orders of extension which was also dismissed by the Tribunal. 7. An additional counter affidavit was filed by the 3[rd] respondent on 11.01.2018 in W.P(C) No.17738 of 2016 stating that an order of dismissal from service was rendered against the petitioner on 14.07.2017 which has also been challenged by the petitioner before the University Appellate Tribunal by filing UA No.9/17. It is therefore contended that the present writ petition has become infructuous. 8. The 4[th] respondent has also filed counter affidavit contending that she had submitted complaint against the petitioner because of the sexual advances made by him and denying all allegations that the complaint was filed on any instigations. 9. The point which arises for consideration in these Writ Petitions is with regard to the legality of an order of suspension issued before a memo of charges was served. In the instant case, a complaint with regard to sexual advances made by the petitioner had been submitted by the 4[th] respondent to the Principal. Disciplinary proceedings were also initiated. By W.P.(C) No.17738 of 2016 & W.P.(C) No. 24137 of 2017 -:5:- interim order dated 27.06.2016 in W.P.(C) No.21658/16, the Manager was permitted to continue the disciplinary proceedings initiated against the petitioner even in the absence of extension of the period of enquiry. The enquiry has been completed and punishment imposed which is also under challenge before the Tribunal. In the facts and circumstances of the instant cases, I am of the opinion that the legal validity of the order of suspension cannot be considered at this juncture, in view of the fact that the disciplinary proceedings themselves have culminated in an order of dismissal which is under challenge before the statutory Tribunal. W.P.(C) No.24137/17 has also become infructuous, since the enquiry, which has permitted to go on, has since been completed. I, therefore, decline to interfere with the orders under challenge. These Writ petitions are dismissed. However, in case any amount due as subsistence allowance to the petitioner remains unpaid, the same shall be disbursed to the petitioner. Sd/- **ANU SIVARAMAN JUDGE** rmm