Mahatma Gandhi University v. M.R. Unni and K.U. Abraham (WA No. 644 of 2013 in WP(C) No. 8907/2013)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 23RD DAY OF JULY 2013/1ST SRAVANA, 1935 WA.No. 644 of 2013 IN WP(C).8907/2013 -----------------------------------------AGAINST THE ORDER IN WP(C) 8907/2013 DATED 12-04-2013 ................... APPELLANTS/RESPONDENTS 1 TO 5: ----------------------------------------- 1. MAHATMA GANDHI UNIVERSITY, REPRESENTED BY THE VICE CHANCELLOR MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS ATHIRAMPUZHA, KOTTAYAM-686 560. 2. THE VICE CHANCELLOR, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS ATHIRAMPUZHA, KOTTAYAM-686 560. 3. THE SYNDICATE, MAHATMA GANDHI UNIVERSITY, REPRESENTED BY THE VICE CHANCELLOR PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686 560. 4. DR.A.V.GEORGE, VICE CHANCELLOR, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686 560. 5. DR.C.V.THOMAS, MEMBER OF SYNDICATE, MAHATMA GANDHI UNIVERSITY PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686 560. BY ADV. SRI.P.C.SASIDHARAN RESPONDENTS/PETITIONER AND R6 : ------------------------------------------ 1. M.R UNNI, REGISTRAR (UNDER ORDER OF SUSPENSION) MAHATMA GANDHI UNIVERSITY PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686 560. 2. K.U.ABRAHAM, KATTUPARA, - SRIKANDAMANGALAM P.O., KOTTAYAM-686 562. R1 BY ADV. SRI.MURALI PURUSHOTHAMAN R2 BY ADV. SRI.S.SREEKUMAR (SR.) SRI.A.G.BASIL THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11-07-2013, THE COURT ON 23-07-2013, DELIVERED THE FOLLOWING: ## **Manjula Chellur, C.J. & K. Vinod Chandran, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## W.A. No. 644 OF 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of July, 2013 ## **JUDGMENT** ## **Manjula Chellur, C.J.** This Writ Appeal is filed aggrieved by the order of stay granted by the learned Single Judge in W.P.(C) No. 8907 of 2013 by order dated 12.04.2013. In brief the relevant facts necessary for considering this appeal are placed as under: 2. The writ petitioner/respondent was appointed as Registrar of Mahatma Gandhi University(hereinafter referred to as 'the University' for short) by order dated 09.03.2005 as per Ext.P1. He was placed under suspension on 18.03.2013 and the writ petition came to be admitted on 03.04.2013. After hearing all the parties, the above said order came to be made. Subsequent to writ petitioner joining the service in 2005, in 2011, one Mr.K.U.Abraham Kattupara filed a complaint before the Hon'ble Chief Minister and Hon'ble Minister for Education and also Hon'ble Minister for Home alleging that the writ petitioner had secured his appointment as Registrar by W.A. No. 644 of 2013 ## -:2:- producing fake and fabricated certificates regarding his qualification. Minister for Education who is the Pro Chancellor of the University forwarded the said complaint to the Director of Collegiate Education who in turn conducted an enquiry through the Deputy Director of Collegiate Education, Kottayam and submitted a report as per Ext.P7 dated 02.12.2011 after examining all the certificates. The Director of Collegiate Education forwarded the said report to the Principal Secretary to Government, Higher Education Department, along with a covering letter as indicated at Ext.P7. In the said letter he opined that from the report of Deputy Director of Collegiate Education, the allegations levelled in the complaint against the writ petitioner are all false. 3. It is also brought on record that before approaching the authorities, a private complaint came to be filed before the Judicial First Class Magistrate, Ettumanoor by the 6[th] respondent alleging that the writ petitioner committed offences punishable under Sections 468, 471 and 420 of the Indian Penal Code by fabricating the certificates regarding his qualification. The W.A. No. 644 of 2013 ## -:3:- Magistrate has referred the said complaint under Section 156(3) of the Criminal Procedure Code for investigation to the police concerned. Crime No.1034/2011 also came to be registered. The police, after investigation, filed a report to the effect that all the allegations levelled in the complaint against the writ petitioner are false and they have further said, they would proceed against the 6[th] respondent for offences punishable under Section 211 of IPC. The complainant in the said case who is the 6[th] respondent has filed a protest memo. 4. Meanwhile, one Jacob Vargheese moved the Kerala Lok Ayukta by filing a complaint again raising the complaint of fabricated certificates regarding qualification of the writ petitioner to secure the appointment. This was also referred for investigation to the investigating wing of Lok Ayukta. It is also brought on record that the Syndicate of the University had conducted its own preliminary enquiry and considered the issue in the meeting held on 29.10.2011 and concluded that the documents produced by the Registrar/writ petitioner would prove undoubtedly that his credentials were genuine. W.A. No. 644 of 2013 -:4:- 5. One Adv.P.K. Harikumar and Dr.R. Sasikumar both members of the Syndicate were directed to go to Raipur for investigation. Again the matter was taken up for consideration on 29.01.2013. On that day Dr.C.V. Thomas a member of the Syndicate demanded that the writ petitioner should be kept out of office in view of the pendency of the complaint before the Lok Ayukta. The matter was discussed in the meeting and after deliberations the Registrar was asked to explain the matter. The Registrar offered explanation and the relevant portion reads as under: “Dr.C.V.Thomas, Member Syndicate, demanded that Mr.Unni shall be kept out of office of the Registrar for the time being since a petition filed against the Registrar is pending before the Lok Ayukta. Dr.C.V.Thomas tabled a copy of the petition and the orders of the Lok Ayukta thereon before the Chair. The Vice-Chancellor left the matter open to the House for discussion and after deliberations the ViceChancellor directed the Registrar to explain the matters related to the complaint. The Registrar explained the matter in detail.” ## 6. Earlier an incident occurred on 14.08.2012 in the chambers of the writ petitioner/Registrar leading to some W.A. No. 644 of 2013 ## -:5:- complications and certain employees lodging complaints of misbehaviour against the Registrar. According to the University, the Registrar abused the male employees of the University and an enquiry committee came to be constituted consisting of Prof. B.Suseelan and Dr.C.V.Thomas, two members of the Syndicate. A preliminary enquiry was conducted and a report submitted to the Vice Chancellor recommending a detailed enquiry. Petitioner was called upon to be present before the Syndicate hall on 01.11.2012 for the preliminary enquiry to consider the complaint levelled against him. At this point of time petitioner approached this Court in W.P.(C) No.25431 of 2012 challenging the steps taken to conduct an enquiry contending that there is no justification in the act of the appellant authorities in not considering the complaint lodged by him which led to registration of criminal case against the employees who ransacked his chambers. This Court stayed further proceedings pursuant to Exts.P2 and P4 which came to be extended from time to time. 7. Again 6[th] respondent had filed one more representation dated 03.02.2013 before the Pro W.A. No. 644 of 2013 -:6:- Chancellor/Hon'ble Minister of Education requesting him to initiate criminal action regarding the alleged fake qualification of the writ petitioner. This representation was forwarded to the Vice Chancellor for necessary action by the Syndicate. 8. On 16.03.2013 Syndicate considered Ext.P13 complaint though the item was not in the agenda and proceeded to resolve as follows: “Consequent to the letter from Shri.K.U Abraham forwarded by the Minister for Education it is resolved to constitute an enquiry committee to conduct an enquiry on the qualifications of the Registrar Shri.M.R.Unni. Dissent Note: Since the Higher Education Department of Government of Kerala and Police Department has already conducted an enquiry against the qualifications possessed by Shri.M.R.Unni and the findings are with the Government any further enquiry by the Syndicate should be proceed only after getting the copy of the reports. Hence we dissent. 1. Shri.George Varughese, 2. Prof.N.Jayakumar, 3. Dr.M.C.Dileep Kumar. Dr.S.Sujatha and Shri.Abraham Kalamannil abstained from voting. Further resolved to appoint an enquiry committee consisting of the following members to conduct the enquiry. 1.Prof.(Dr.)P.K.Somasekharan Unny 2.Prof.Satheesh Kochuparambil 3.Prof.C.H.Abdul Lathif Following members dissented: W.A. No. 644 of 2013 -:7:- - 1.Shri.George Varughese. 2.Prof.N.Jayakumar 3.Dr.M.C.Dileep Kumar Further resolved to direct Shri.M.R.Unni, Registrar to proceed on leave until the completion of the enquiry or six months whichever is earlier with effect from 18.3.2013 F.N. Following members dissented: - 1.Shri.George Varughese, 2.Prof.N.Jayakumar and 3.Dr.M.C.Dileep Kumar Also resolved that in the temporary vacancy of the Registrar Smt.Valsamma Karunakaran, the senior most Joint Registrar shall exercise the powers and perform the duties of the Registrar”. It is clear from the said resolution that an enquiry committee consisting of three members was constituted to conduct an enquiry into the qualification possessed by the petitioner and he was directed to proceed on leave until completion of the enquiry or for six months whichever is earlier. This order had to take effect from 18.03.2013 as 16.03.2013 was a Saturday. Therefore only on Monday in W.P.(C) No.25431/12, an application came to be filed as I.A. No.4281 of 2013 where he had sought a relief directing the respondents not to disturb him from the office of the Registrar. W.A. No. 644 of 2013 -:8:- 9. As already indicated in the other appeal, an interim order came to be passed favouring the writ petitioner directing the appellant University not to disturb him from the office of the Registrar until further orders. On the very same day Vice Chancellor issued Ext.P18 memo dated 18.03.2013 directing the writ petitioner/Registrar to show cause why disciplinary action should not be taken against him. On the same day as per Ext.P21, a memo was issued to him as under: “That you were present in the Syndicate meeting held on 16.3.2013 and you are well aware of the decision in OA.No.4/13.03 of the Syndicate which directed you to proceed on leave for a period of six months with effect from 18.3.2013 forenoon onwards. The said Syndicate considered that you presence in the University would adversely affect the enquiry which is ordered against you. Therefore you are duty bound to comply with the decision of the Syndicate without fail. But you have not complied with the decision of the Syndicate till 11.30 today. So you are directed to submit your application for leave in accordance with the decision of the Syndicate before 1.00 p.m today.” 10. Again Ext.P22 order dated 18.03.2013 came to be issued which reads as under: W.A. No. 644 of 2013 ## -:9:- “The Syndicate at its Meeting held on 16.03.2013 vide item O.A.04/13.03 resolved the following. Consequent to the letter from sri.K.U.Abraham, forwarded by the Minister for Education, it is resolved to constitute an Enquiry Committee to conduct an Enquiry on the qualifications of the Registrar, Sri.M.R.Unni. Further resolved to appoint an Enquiry Committee consisting of the following members to conduct the Enquiry. 1. Prof.(Dr.)P.K.Somasekharan Unni. 2. Prof.Satheesh Kochuparambil 3. Prof.C.H.Abdul Latheef. Further resolved to direct Sri.M.R.Unni, Registrar to proceed on leave until the completion of the enquiry or six months whichever is earlier w.e.f. 18.03.2013 F.N. In the temporary vacancy of the Registrar, Smt.Valsamma Karunakaran, the senior most Joint Registrar shall exercise the powers and perform the duties of the Registrar. Orders are issued accordingly.” 11. At this point of time writ petitioner requested the Vice Chancellor to issue directions regarding the nature of leave to be applied. The Vice Chancellor placed the writ petitioner under suspension with immediate effect pending enquiry invoking emergency clause. With this background, the writ petition came to be filed. W.A. No. 644 of 2013 -:10:- 12. As per Ext.P24 suspension order, in spite of being aware of the decision of the Syndicate, directing the writ petitioner to proceed on leave, he did not record the minutes of the meeting as Secretary of the Syndicate. Further he had not submitted the explanation when called for. According to the writ petitioner, none of the circumstances warranted exercise of emergency powers by the Vice Chancellor of the University. So far as the factual situation, according to him, the question of recording the minutes of the decision referred to at Ext.P18 memo would not arise since the computerisation brought in ensures immediate feeding of decisions into the computer, by stenographers; which would also be displayed on the screen, which can be seen by all the Syndicate Members immediately. In view of interim orders of another learned Single Judge in W.P.(C) No. 25431 of 2012, there was no justification for issuing Ext.P24 and it amounts to contempt. 13. According to the appellant University, the petitioner being the Secretary of the Syndicate was bound to record the minutes of the Syndicate correctly and had W.A. No. 644 of 2013 ## -:11:- deliberately and knowingly failed to do his duty, by recording the minutes. After noticing this, the Vice Chancellor issued Ext.P18 memo but no reply was given and further, none of the reasons given by him now are sustainable. Apart from making certain noting in the minutes book, nothing was recorded which amounts to dereliction of duty. Under these circumstances he was kept under suspension; was the defence of the University. 14. It was further contended by the appellants that in order to have smooth functioning of the University and the continuance of the petitioner being detrimental to the interest of the University, such emergency power was exercised which is legal and regular. They tried to fortify the defence further by saying, on 06.04.2013, the Syndicate approved the action of the Vice Chancellor. 15. In the reply filed by the writ petitioner he denied all the allegations made against him in the counter affidavit of the Vice Chancellor stating that the blank page of the agenda book clearly indicate some scribblings and the normal procedure for recording the draft minutes are different. According to him, W.A. No. 644 of 2013 ## -:12:- the scribblings made on the blank page of the agenda are only for his personal use to refresh his memory. The stand of the writ petitioner was, earlier draft minutes had to be recorded in temporary minutes book and after preparation of the minutes manually it would be signed by the authorities concerned. The said procedure is dispensed with on the introduction of the LCD display system and the resolutions are recorded on computer and displayed on the LCD screen at the time of Syndicate meeting. The deliberations of the meeting later can be printed out by the Stenographers. After completion of the meeting on 16.03.2013, the stenographer 'Biju' was asked to prepare the draft minutes and he informed the Personal Assistant of the Registrar that the Vice Chancellor has instructed him not to touch the computers or to prepare the minutes of the meeting at the instance of the petitioner; without Vice Chancellor's consent till Monday. Therefore, the writ petitioner had no access to the computer to prepare the minutes. 16. The learned Single Judge rightly pointed out that the counter affidavit filed by the respondents did not challenge W.A. No. 644 of 2013 ## -:13:- the allegation that draft minutes were typed on the computer then and there and visible to all the members. Memo No.60 dated 18.03.2013 was not served on the writ petitioner prior to 18.03.2013. He also opined that it was physically impossible for the reason that the very resolution extracted therein was taken only on 16.03.2013. No time limit was mentioned in Ext.P18 memo to submit reply, having regard to the fact that the Syndicate has not taken disciplinary action, in the meeting on 16.03.2013. So far as this action of the Vice Chancellor, there was no such decision of the Syndicate and the decision of the Syndicate was only to direct him to proceed on leave, therefore, the action of the Vice Chancellor is improper, capricious and deliberate. 17. Then coming to the question of legality of the suspension, paragraphs 38 and 39 of the writ petition regarding the procedure now adopted to record the minutes electronically, clearly indicate that the minutes of the meetings are no longer prepared in hand and it is prepared on LCD screen which is visible to the members of the Syndicate present; with the assistance of W.A. No. 644 of 2013 ## -:14:- the Stenographers in the meeting. In the absence of denying such procedure in the counter affidavit, the statement of the writ petitioner has to be taken as correct. The learned Single Judge, after perusal of original of Ext.R1(a) Minutes and also minutes book maintained by the University for a period of one year prior to 16.03.2013, noted that two pages of Ext.R1(b) has some scribblings in the handwriting of the writ petitioner. The draft minutes runs to 121 pages including the index. The meeting commenced at 10.30 a.m. and learned Judge rightly opines that the Registrar of the University could not have prepared the entire draft minutes running to 122 pages in his hand and got it ready for circulation by 18.03.2013. Therefore, from the material on record and the attendant circumstances the practice of Registrar manually preparing the draft minutes was impossible. 18. Learned Judge further opines that though the writ petitioner was duty bound to prepare the draft minutes it was practically impossible to prepare it on 18.03.2013 on account of attending circumstances. However, the Vice Chancellor was preparing to fish for grounds to place the petitioner under W.A. No. 644 of 2013 -:15:- suspension. Except not preparing the minutes and not giving the explanation, no other grounds existed to suspend the writ petitioner. Further the Vice Chancellor could not have issued such an order as long as the interim order passed in another writ petition not to keep the Registrar away from his work was in force. 19. The learned Judge felt that the Vice Chancellor has committed Contempt of Court by placing the writ petitioner under suspension, in spite of having the knowledge of the interim order of the Court dated 18.03.2013 in the other writ petition and intentionally disobeyed the orders of the Court by interfering with the rights of the petitioner. There is justification for the learned Judge to opine that the writ petitioner was victimised on grounds which are not true and tenable and the technicality should not come in the way of rendering justice. Ratification of suspension order by Syndicate should not come in the way of the Court rendering justice was the finding and hence the learned Single Judge proceeded to set aside the suspension order as the grounds were not true and tenable. ## W.A. No. 644 of 2013 ## -:16:- 20. Learned counsel for the appellant relies on two decisions of the Apex Court in **U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan** [1993 Supl. (3) SCC 6483] and **State of U.P. and others v. Ram Sukhi Devi** [(2005) 9 SCC 733] to contend that normally the Court should not interfere with the interim order unless the circumstance warrants so and further the Court should not grant interim order in the form of final relief. ## 21. Learned counsel for the appellant relies upon ## paragraph 8 of (2005) 9 SCC 733 which reads as under: “8. To say the least, approach of the learned Single Judge and the Division Bench is judicially unsustainable and indefensible. The final relief sought for in the writ petition has been granted as an interim measure. There was no reason indicated by learned Single Judge as to why the government order dated 26.10.1998 was to be ignored. Whether the writ petitioner was entitled to any relief in the writ petition has to be adjudicated at the time of final disposal of the writ petition. This court has on numerous occasions observed that the final relief sought for should not be granted at an interim stage. The position is worsened if the interim direction has been passed with stipulation that the applicable government order has to be ignored. Time and again this Court has deprecated the W.A. No. 644 of 2013 ## -:17:- practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that of a prima facie case having been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. No basis has been indicated as to why learned Single Judge thought the course as directed was necessary to be adopted. Even it was not indicated that a prima facie case was made out though as noted above, that itself is not sufficient. We, therefore, set aside the order passed by learned Single Judge as affirmed by the Division Bench and without expressing any opinion on the merits of the case we have interfered primarily on the ground that the final relief has been granted at an interim stage without justifiable reasons. Since the controversy lies within a very narrow compass, we request the High Court to dispose of the matter as early as practicable, preferably within six months from the date of receipt of this judgment.” ## 22. It is well settled that normally order of suspension need not be interfered with, unless such order is on account of malafides and arbitrary exercise of power. To arrive at such conclusion, one has to analyse the facts and circumstances of each case to understand under what circumstances the order of suspension came to be given. No doubt, normally an interim order in the form of main relief should not be passed. But in W.A. No. 644 of 2013 -:18:- order to render justice, if circumstances warrants so, it has to be done. The circumstances under which such interim order came to be granted are discussed at length above. In another writ petition, rightly or otherwise, when there was a specific direction not to keep the Registrar of the University away from discharging his functions as Registrar and in spite of having knowledge of such order, on the very same day, i.e. 18.03.2013, the Vice Chancellor on flimsy grounds passed the order of suspension. The two reasons for such an order are; non recording of minutes which was practically impossible to do on 18.03.2013 and having not given explanation to the show cause notice issued on 18.03.2013 itself. Without even giving sufficient time to reply, the order of suspension came to be passed. As a matter of fact, writ petitioner did approach the Vice Chancellor seeking clarification regarding the nature of leave he should apply. Later this Court also passed an order in the I.A. filed in the earlier Writ Petition; not to disturb the petitioner. 23. The circumstances discussed above clearly indicate that the Vice Chancellor was interested in harassing the writ W.A. No. 644 of 2013 ## -:19:- petitioner and somehow keep him out of office. On untenable grounds the order of suspension came to be passed and we are of the opinion, the learned Single Judge was justified in staying the suspension order. We are also aware of the consequences of such suspension order. We make it clear that the order of suspension is not justifiable and the consequences of the same resulting in continuance of the suspension order are also arbitrary and without any justification. In the light of above discussion, we confirm the order of the learned Single Judge staying the order of suspension and further hold that consequences of such suspension order also deserve to be set aside. The Writ Appeal is dismissed. **Manjula Chellur, Chief Justice.** **K. Vinod Chandran, Judge.** ttb ## W.A. No. 644 of 2013 -:20:-