Mathew K. M. v. Mahatma Gandhi University and The Chancellor

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** # **MONDAY, THE 26TH DAY OF MARCH 2012/6TH CHAITHRA 1934** ## **WP(C).No. 30423 of 2011 (C)** **---------------------------------------** **PETITIONER** **------------------** **MATHEW.K.M, SELECTION GRADE ASSISTANT, OFFICE OF THE CONTROLLEROF EXAMINATIONS, MAHATHMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS.P.O, KOTTAYAM - 686 560.** **BY ADVS.SRI.T.B.HOOD SMT.M.ISHA** **RESPONDENTS** **-----------------------** **1. MAHATHMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS.P.O, KOTTAYAM - 686 560.** **2. THE CHANCELLOR, MAHATHMA GANDHI UNIVERSITY, KERALA RAJ BHAVAN, THIRUVANANTHAPURAM - 695 099.** **BY ADV. SRI. M.V. SHAJI, SC, M.G.UNIVERSITY BY ADV. GOVERNMENT PLEADER SRI.TOM K.THOMAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MG** ## **WP(C).No. 30423 of 2011 (C)** ## **---------------------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXT.P1:-**|**COPY OF THE NOTE DATED 05.09.2005.**| |---|---| |**EXT.P2:-**|**COPY OF THE SUSPENSION ORDER DATED 07.09.2005.**| |**EXT.P3:-**|**COPY OF THE MEMO OF CHARGES DATED 20.10.2005.**| |**EXT.P4:-**|**COPY OF THE WRITTEN STATEMENT OF DEFENCE DATED 09.11.2005.**| |**EXT.P5:-**|**COPY OF THE ENQUIRY REPORT.**| |**EXT.P6:-**|**COPY OF THE ENQUIRU REPORT DATED 28.10.2005.**| |**EXT.P7:-**|**COPY O THE ORDER DATED 20.03.2006.**| |**EXT.P8:-**|**COPY OF THE MEMO DATED 20.03.2006.**| |**EXT.P9:-**|**COPY OF THE REPRESENTATION DATED 24.04.2006.**| |**EXT.P10:-**|**COPY OF THE POSTING ORDER DATED 16.05.2006.**| |**EXT.P11:-**|**COPY OF THE ORDER DATED 16.05.2006 IMPOSING MINOR PENALTY ON**| ||**THE PETITIONER.**| |**EXT.P12:-**|**COPY OF THE REPRESENTATION DATED 15.07.2006.**| |**EXT.P13:-**|**COPY OF THE REPRESENTATION DATED 19.12.2006.**| |**EXT.P14:-**|**COPY OF THE REPRESENTATION DATED 07.03.2007.**| |**EXT.P15:-**|**COPY OF THE LEAVE APPLICATION WITH SUBMISSION DATED 23.03.2007.**| |**EXT.P16:-**|**COPY OF THE MEMO DATED 11.12.2007.**| |**EXT.P17:-**|**COPY OF THE ORDER DATED 30.01.2009.**| |**EXT.P18:-**|**COPY OF THE ORDER DATED 07.08.2009.**| |**EXT.P19:-**|**COPY OF THE MEMO DATED 12.01.2010.**| |**EXT.P20:-**|**COPY OF THE LEAVE APPLICATION DATED 27.01.2010.**| |**EXT.P21:-**|**COPY OF THE MEMO DATED 01.07.2010**| |**EXT.P22:-**|**COPY OF THE APPEAL SUBMITTED BY THE PETITIONER.**| |**EXT.P23:-**|**COPY OF THE ORDER DATED 16.08.2011.**| ||**//TRUE COPY//**| |**MG**|**PA TO JUDGE**| ## **T.R. RAMACHANDRAN NAIR, J.** **--------------------------------------W.P.(C) No.30423 OF 2011 --------------------------------------Dated this the 26[th] day of March, 2012.** ## **J U D G M E N T** This writ petition is filed by the petitioner who is working as Selection Grade Assistant under the 1[st] respondent University. Various contentions have been raised in the writ petition while challenging the impugned orders whereby a punishment was imposed on the petitioner and the appeal filed by the petitioner was also disposed of by Ext.P23, against him. Learned counsel for the petitioner submitted that the appeal has been disposed of not in tune with Statute No.72 of Mahatma Gandhi University Statutes. Therefore, it is prayed that the same may be directed to be reconsidered. ## 2. The relevant facts show the following: The petitioner was assigned with the duty of the Camp Officer of the centralized camp held from 15.06.2005 till 08.07.2005 for revaluation of the answer scripts of B.Sc Degree 1[st] and 2[nd] year March/April and Supplementary Examinations of **W.P.(C) No.30423/2011** **2** 2004. One Sri.B.Sasidharan Pillai was the Assistant Camp Officer in the revaluation camp. His son was also an applicant for revaluation and according to the petitioner Sri.Sasidharan Pillai was included in the revaluation camp without knowing that his son had also applied for revaluation. This resulted in initiation of disciplinary action against the petitioner as well as Sri.B.Sasidharan Pillai. Ext.P3 is the copy of the memo of charges issued to the petitioner and Ext.P4 is the copy of the written statement of defence. 3. Dr.Baby Thomas, Director, School of Distance Education was appointed as the enquiry officer and Ext.P5 is the report submitted by the enquiry officer and during the enquiry, the petitioner was placed under suspension. It appears that the petitioner was reinstated by Ext.P7 order on 20.03.2006. By Ext.P8, he was informed that the University has decided to impose a minor penalty of temporary withholding of one increment for three months on him. 4. The petitioner thereafter filed a representation as per Ext.P9 and the final order imposing penalty is evident from **W.P.(C) No.30423/2011** **3** Ext.P11. The petitioner filed an application to review the decision as per Ext.P12 and Ext.P13 is a further representation requesting to treat his suspension period as duty. Ext.P14 is also a representation filed by the petitioner requesting to review the decision already taken. By Ext.P16, the petitioner was informed that his request for conversion of the suspension period as eligible leave has been rejected by the Syndicate. But, the University by Ext.P17 regularised the period of suspension with eligible leave as detailed therein. By Ext.P18 order, the University cancelled 90 days leave not due, sanctioned to the petitioner and converted the same as Leave Without Allowance. Certain other developments have also been mentioned by the petitioner. 5. The petitioner is challenging Exts.P3, P5, P8, P11, P16 to P19, P21 and P23 before the Chancellor of the University under Statute 61 of the M.G. University Statute. Copy of the appeal is produced as Ext.P22 which has been rejected by Ext.P23. 6. Heard the learned counsel for the petitioner Sri.T.B.Hood, learned Standing Counsel for the M.G. University Sri.T.A. Shaji **W.P.(C) No.30423/2011** **4** and the learned Special Government Pleader Sri.Tom K.Thomas. 7. Learned counsel for the petitioner submitted that Statute 72 of the M.G. University Statutes, specifically Statute 72 (1)(a) to (e), prescribes the manner in which the appeal has to be disposed of. Learned counsel submitted that the procedures under Statute 72(1)(a) to (e) have been prescribed in respect of appeal against any of the penalties prescribed in Statute 35 and in respect of appeal against an order specified in Statute 62, Statute 72(2) states that the appellate authority shall consider all the circumstances of the case and pass such orders as it may deem just and equitable. It is, therefore, submitted that all the provisions of Statute 72 (1)(a) to (e) are important and therefore it requires compliance in true letter and spirit. 8. It is submitted by the learned counsel for the petitioner, by relying upon various judgments of the Apex Court, that the word 'shall consider' in Statute 72 (1) is of much importance. In the light of the various decisions of the Apex Court, the learned counsel points out that the appellate authority will have to apply its mind to all the contentions and take an appropriate decision. **W.P.(C) No.30423/2011** **5** ## 9. For easy reference, I shall reproduce Statute 72(1) and ## 72(2). “72. Powers of an Appellate Authority:(1) In the case of an appeal against an order imposing any of the penalties specified in statute 35, the appellate authority shall consider- - (a) whether the facts on which the order was based have been established; - (b) whether the facts established afford sufficient grounds for taking action; - © whether the procedure prescribed in these Statutes have been complied with and if not, whether such non-compliance has resulted in violation of any laws of the University or in failure of justice; - (d) whether the findings are justified; and - (e) whether the penalty imposed is excessive, adequate or inadequate and pass orders- - (i) setting aside, reducing, confirming or enhancing penalty; - (ii) permitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case; Provided that- **W.P.(C) No.30423/2011** **6** - (i) the appellate authority shall not impose any enhanced penalty which neither such authority nor the authority which made the order appealed against is competent in the case to impose; - (ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such an enhanced penalty; and (iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in items (v) to (viii) of statute 35 and an inquiry under statutes 40 to 53 has not already been held in the case, the appellate authority shall, subject to the provisions of statute 58, itself hold such inquiry or direct that such inquiry be held and thereafter on consideration of the proceedings of such inquiry and after giving the appellant an opportunity of making any representation which he may wish to make against such penalty, pass such orders as it may deem fit. (2) In the case of an appeal against an order specified in statute 62 the appellate authority shall consider all the circumstances of the case and pass such orders as it may deem just and equitable. (2) **W.P.(C) No.30423/2011** **7** 10. Statute 72(1)(a) obliges the appellate authority to consider whether the facts on which the order was passed have been established and Statute 72(1)(b) obliges the authority to consider whether the facts established afford sufficient grounds for taking action. The other important one is sub clause (d) of Statute 72(1) which requires a consideration whether the findings are justified. Another important aspect to be considered is whether the penalty imposed is excessive, adequate or inadequate. Therefore, these required proper consideration of the charges framed, the findings of the enquiry report, discussion of the evidence and the sufficiency or otherwise of the reasons stated by the disciplinary authority for imposing the punishment and finally the grievance regarding the punishment imposed. 11. Even though the learned Standing Counsel for the University submitted that as far as the petitioner is concerned, it is only a minor penalty and hence the plea herein is relevant, but going by Statute 72, no distinction is made in respect of minor penalty so that the requirement in Statute 72(1)(a) onwards cannot be dispensed with by the appellate authority. **W.P.(C) No.30423/2011** **8** 12. The first of the decisions relied upon by the learned counsel for the petitioner is in _**R.P.Bhatt** vs._ _**Union of India and others**_ ((1986) 2 SCC 651) and therein identical provisions under Rule 27(2) of Central Civil Services (Classification, Control and Appeal) Rules have come up for consideration. The relevant Rule is contained in paragraph 3 and I shall extract the said paragraph along with paragraphs 4 and 5 which discuss the legal principles. “3. Having heard the parties, we are satisfied that in disposing of the appeal the Director General has not applied his mind to the requirements of Rule 27(2) of the Rules, the relevant provisions of which read as follows: 27(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 11 or enhancing any penalty imposed under the said Rules, the appellate authority shall consider: - (a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; - (b) whether the findings of the disciplinary **W.P.(C) No.30423/2011** **9** authority are warranted by the evidence on the record; and - (c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders- - (i) confirming, enhancing, reducing, or setting aside the penalty; or - (ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case. 4. The word 'consider' in Rule 27(2) implies 'due application of mind'. It is clear upon the terms of Rule 27(2) that the appellate authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the appellate authority to consider the relevant factors set forth in clauses (a), **W.P.(C) No.30423/2011** **10** (b) and © thereof. 5. There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such noncompliance had resulted in violation of any of the provisions of the Constitution or in the failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of clause © of Rule 27(2), viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside”. 13. In paragraph 5 above, it was thus stated that in disposing of the appeal the Director General has not applied his mind to the requirements of Rule 27(2). Therein, the manner in which the appellate authority will have to consider the matter has been laid down. The infirmity found by the Apex Court therein is that the appellate authority namely, the Director General has not given any finding on the crucial question as to whether the **W.P.(C) No.30423/2011** **11** findings of the disciplinary authority were warranted by the evidence on record. This decision was followed in _**Ram Chander**_ vs. _**Union of India**_ ((1986) 3 SCC 103) wherein a similar Rule under Railway Servants (Discipline and Appeal) Rules, 1968 was considered. After referring to the relevant rules in paragraph 3 and by relying upon the judgment in _R.P.Bhatt's case_ (supra), in paragraph 9, it was held thus: “9. These authorities proceed upon the principle that in the absence of a requirement in the statute or the rules, there is no duty cast on an appellate authority to give reasons where the order is one of affirmance. Here, Rule 22(2) of the Railway Servants Rules in express terms requires the Railway Board to record its findings on the three aspects stated therein. Similar are the requirements under Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Rule 22(2) provides that in the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall 'consider' as to the matters indicated therein. The word 'consider' has different shades of meaning and must in Rule 22(2), in the context in which it appears, mean an objective consideration by the **W.P.(C) No.30423/2011** **12** Railway Board after due application of mind which implies the giving of reasons for its decision”. 14. In a recent judgment of the Apex Court in _**Kranti Associates Private Limited and another** vs._ _**Masood Ahmed**_ _**Khan and others**_ ((2010) 9 SCC 496), all the relevant decisions were considered including the above quoted decision and the Apex Court in paragraph 47 summarizes the discussion and it is held as hereunder: - “47. Summarising the above discussion, this - Court holds: - (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. - (b) A quasi-judicial authority must record reasons in support of its conclusions. - (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. - (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. - (e) Reasons reassure that discretion has been **W.P.(C) No.30423/2011** **13** exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) (g) (h) (i) Reasons have virtually become as indispensable a component of a decisionmaking process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. Reasons facilitate the process of judicial review by superior courts. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and **W.P.(C) No.30423/2011** **14** transparency. - (k) If a judge or a quasi-judicial authority is not candid enough about his/her decisionmaking process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. - (l) Reasons in support of the decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not be equated with a valid decisionmaking process. - (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decisionmaking not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in _Defence of Judicial Candor_ ). - (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See _Ruiz Torija_ v. _Spain_ EHRR, at 562 para 29 and _Anya_ v. _University of Oxford_ , wherein the **W.P.(C) No.30423/2011** **15** Court referred to Article 6 of the European Convention of Human Rights which requires, - “adequate and intelligent reasons - must be given for judicial decisions”. - (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”'. 15. Herein, a reference to Ext.P23 order is required to find out whether the same satisfies the prescriptions made in Statute 72. After referring to the arguments of the learned counsel for the parties concerned, conclusions have been arrived at in the following paragraphs. “Disciplinary action was initiated against the appellant in accordance with the procedure prescribed under Part III of the Mahatma Gandhi University Statutes, 1997 ( in short Statutes, 1997). The memo of charge was issued to the appellant on 20.10.05. He submitted his written statement of defence on 9.11.05. It is seen that disciplinary action was also simultaneously initiated against Sri.B.Sashidharan Pillai, Assistant, Revaluation Camp, along with the appellant who was the Camp Officer. **W.P.(C) No.30423/2011** **16** With regard to the 1[st] charge, the Enquiry Officer found the appellant guilty of belated reporting of the malpractice (without any malicious intention of helping anyone illegally or for hiding the malpractice). It was further found that he was guilty of the 2[nd] charge relating to disobedience of the orders of the senior officers and non-cooperation (partially). The charge that he kept the answer papers in personal custody was also found to be proved partially. The further charge that the appellant left the office without proper sanction is also found proved. After the formal enquiry, on 20.3.06, the University decided to impose a penalty of withholding of one increment for a limited period of three months, which is the minimum punishment under Statute 35 of Statutes 1997. The appellant was permitted to make representation which he made on 24.4.06. The punishment proposed was confirmed on 16.5.06. Of course, Shri Sashidharan Pillai was also imposed with the very same punishment. After initiating steps for a major punishment, Statute 52 of the Statutes 1997 empowers the Disciplinary Authority to impose a minor punishment. Under Statute 35, three months is the minimum temporary period prescribed for withholding of increments. Once the appellant is found to be liable for punishment, the University cannot be found fault **W.P.(C) No.30423/2011** **17** with for regularizing the period of suspension as leave. The plea of the appellant for treating the period of suspension as duty can be entertained only if he is exonerated of the charges leveled against him”. 16. True that the above gives a narration of the events leading to the punishment. Evidently, the prescriptions of Statute 72(1)(a) onwards have not been satisfied by the above order. It requires discussion of the charges, on the finding of the enquiry officer along with discussion of evidence, sufficiency of the reasons stated by the disciplinary authority and the reason for arriving at the punishment and the findings on the pleas raised in appeal. Accordingly, this writ petition is allowed. Ext.P23 is quashed. The appeal Ext.P22 will be re-heard with notice to the petitioner and the University and appropriate decision will be taken expeditiously. All the contentions of the respective parties are left open. No costs. ## **T.R. RAMACHANDRAN NAIR JUDGE** smp