Muhammed Basheer v. Mahatma Gandhi University and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **TUESDAY, THE 7TH DAY OF MARCH 2017/16TH PHALGUNA, 1938** ## **WP(C).No. 26484 of 2015 (I)** ## **------------------------------------------** ## **PETITIONER(S) :** **-------------------------** **MUHAMMED BASHEER, S/O. P.O.SAHIB, AGED 53 YEARS, PALLINADAKKAL HOUSE, ATHIRAMPUZHA, KOTTAYAM, WORKING AS HEAVY DUTY DRIVER UNDER M.G UNIVERSITY, ATHIRAMPUZHA, KOTTAYAM.** **BY ADVS. SRI.C.S.MANILAL SRI.S.NIDHEESH** **RESPONDENT(S) :** - **----------------------------** **1. THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY THE REGISTRAR, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM 686 560.** **2. THE REGISTRAR, THE MAHATMA GANDHI UNIVERSITY PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM 686 560.** **3. THE ASSISTANT REGISTRAR -I (ADMN), THE MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM 686 560.** **BY ADV. SRI.ASOK M. CHERIAN, S.C** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-03-2017, ALONG WITH W.P(C).NO. 23556 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 26484 of 2015 (I)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 25.08.2015.** - **EXHIBIT P2 TRUE COPY OF THE RELEVANT PORTION OF THE BUDGET ESTIMATE 2014-15 OF THE MAHATMA GANDHI UNIVERSITY.** - **EXHIBIT P3 TRUE COPY OF THE RELEVANT PORTION OF THE BUDGET ESTIMATE 2014-15 OF THE SELF FINANCING INSTITUTIONS UNDER THE MAHATMA GANDHI UNIVERSITY.** - **EXHIBIT P4 TRUE COPY OF THE CIRCULAR DATED 08.02.2010.** - **EXHIBIT P5 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT DATED 05.09.2016 IN R.P.NO. 151/2016 IN W.A.NO. 442/2014.** ## **RESPONDENT(S)' EXHIBITS :** **EXHIBIT R1(A): TRUE COPY OF U.O.NO. 4352/AI/2009/ADMN DATED 06.10.2009. EXHIBIT R1(B): TRUE COPY OF U.O.NO. 1509/AI/2010/ADMN DATED 25.03.2010.** **EXHIBIT R1(C): TRUE COPY OF U.O.NO. 1601/AIV/2012/ADMN DATED 30.03.2012.** **EXHIBIT R1(D): TRUE COPY OF REPORT OF ENQUIRY NO. JR.II ADMN.ENQUIRY/09. EXHIBIT R1(E): TRUE COPY OF THE APPLICATION DATED 31.08.2015 SUBMITTED BY THE APPLICANT. EXHIBIT R1(F): TRUE COPY OF RELIEVING ORDER U.O. NO. 5025/AIV.2015/ADMN. DATED 31.08.2015.** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **P.V.ASHA, J.** ## **--------------------------------------------W.P.(C). Nos. 26484 of 2015 & 23556 of 2016 ----------------------------------------------** Dated this the 7[th] day of March, 2017 ## **JUDGMENT** Both these writ petitions are filed by the same petitioner against the same respondents. One relates to his transfer and the other relating to the proceedings taken against him thereafter. 2. The petitioner who is a driver in the 1[st] respondent University, has filed this writ petition challenging his transfer as per Ext.P1 order from the Examination Wing of the University, at Kottayam to SME at Nedumkandam, pending enquiry into allegations as to willful disobedience and dereliction of duty. 3. The case of the petitioner is that SME, Nedumkandam is a Self Financing Institution, outside the service of the University. The petitioner is an employee of the University covered by the University service, within the definition of the 'employee' of an University under Section 9 (vi) of the M.G University Act, under the service of the University, which is also as defined under the Act. Section 9 (vi) covers 'such other Officers' in the service of the University **2** ## **W.P.(C). Nos. 26484 of 2015 & 23556 of 2016** who can be declared by the Statute as Officers of the University **.** Statute 2 in Chapter 1 of MG University Statute 1997, defines a Salaried Officer as an employee of the University in class I or class II or class III as specified in Statute 6, Part II of Chapter IV of these Statutes. 4. University employee is defined under Statute 2(s) and University service is defined under Statute 2(u) and service under the MG university other than teacher comes under the same. Chapter IV of the University Statute 1997 deals with the non-teaching staff. 'Drivers' come under Clause 3. Statute 22 provides that all University employees are bound to serve throughout the University area. According to the petitioner, he can be transferred to the Self Financing Institution, only after obtaining his willingness as required under Rule 140(a) of Part I KSR, because service under Self Financing Institution will amount to foreign service. The petitioner also relies on Ext.P4 circular issued by University on 08.02.2010, by which the University had called for willingness from certain categories of staff like Library Assistants, Librarian etc, for transfer to the Self Financing Institutions. This circular also shows that willingness is required in case the University wanted the petitioner's service in any of the self financing centres. It is also the case of the **3** ## **W.P.(C). Nos. 26484 of 2015 & 23556 of 2016** petitioner that, the Self Financing College does not come under the University Departments as defined under Chapter 42 of the Statutes. The petitioner also relies on a counter affidavit filed by an University in W.P.(C) 26484/2015 in which it was contended that Self Financing Institutions are not part of the Universities and it does not come under the University Department; the staff in the Self Financing Institutions are not governed by the provisions contained in the Act or Statute and the Self Financing Institutions are run out of the funds generated by itself. 5. Apart from these it is the further case of the petitioner that the transfer is vitiated by malafides, because the Registrar is nursing longstanding grudge against him since petitioner filed cases against him questioning the genuineness of the Degree certificates and the syndicate had in enquiry, found the contention of the petitioner correct. He stated that on account of these, he was placed under suspension thrice. He relies on the judgment of the Apex Court in the decision reported in **Somesh Tiwari v. Union of India & Ors. [2009(SC)1399],** and submits that the transfer cannot be permitted as part of the disciplinary action. 6. The respondent University has filed a counter affidavit refuting the contentions regarding the transferability **W.P.(C). Nos. 26484 of 2015 & 23556 of 2016** **4** of the employees of Universities to self financing institutions. It is stated that petitioner was transferred pending enquiry following wilful disobedience and dereliction of duty reported from the examination branch. It is stated that petitioner was suspended and punished thrice on the very same charges of dereliction of duty and disobedience, as per orders dated 6.10.2009, 25.3.2010 and 30.3.2012 respectively. Producing the inquiry report of 2009, it is stated that petitioner had undertaken to abide by all directions and orders of the Registrar in future and that being an employee of the University petitioner is bound to work within the University area. According to them, the employees of the University can be transferred to any institution within the area of the University. Nedumkandam is within the area of the University. In the counter affidavit, it is stated that the engagement of non-teaching staff of regular colleges in the self financing institutions are made by the University by transfer from among the University employees and all the Administrative staff are being paid from the University funds. It is further stated that Statute 13 and Chapter II,the M.G University Statutes, provides that the Vice Chancellor shall be competent to transfer any employee or post from one institution maintained by the University to another such institution. **5** ## **W.P.(C). Nos. 26484 of 2015 & 23556 of 2016** According to them, the Administrative staff in all the 34 Self Financing Departments/Centres of the University in various Departments are fully owned and managed by the University directly and transfers are made to these institutions from among University employees and the Administrative Staff are being paid from the University fund. Therefore, it is stated that, the transfer of the petitioner is in accordance with the provisions in the Acts/Statutes to an institution established and maintained by the University within the territorial jurisdiction of the M.G University. Moreover, it is stated that under Statute 22, the petitioner is bound to serve throughout the University area. 7. The learned Standing Counsel for the University relied on the judgment dated 07.12.2016 in WA 727/11, by which the Division Bench dismissed the Writ Appeal filed by the University, repelling the contentions of the University, as raised by the petitioner herein. It was found that the teachers of Self Financing Institutions were working in the departments in Self Financing Institutions established and maintained by the University, in terms of Sec.5(xxiii) of the University Act and that the Self Financing Institutions were established under the relevant statutory provisions. **6** ## **W.P.(C). Nos. 26484 of 2015 & 23556 of 2016** 8. I heard the learned counsel for the petitioner and the learned Standing Counsel and considered the rival contentions. 9. Serious contentions are raised by both sides as to the authority of the University to transfer the petitioner to a self financing institution. 10. Apart from that petitioner has alleged malafides on the part of the Registrar in transferring him. Ext P1 would show that petitioner is transferred pending disciplinary action for dereliction of duty and disobedience, simultaneously appointing an inquiry officer. In the counter affidavit, the respondents admit that petitioner was suspended thrice. But the allegation that those suspensions and punishments were because of the personal grudge of the Registrar is not denied. Though petitioner stated that he had questioned the genuineness of the Degree certificates and experience certificates issued by the registrar and his contentions were found proved in the fact finding enquiry, there is no denial of those assertions. There is no explanation for the requirement of a transfer when disciplinary proceedings are initiated and inquiry officer is already appointed. That would show that the transfer is punitive, though transfer is not an enumerated punishment. Even before the inquiry is held the petitioner is **7** ## **W.P.(C). Nos. 26484 of 2015 & 23556 of 2016** sent to remote and hilly place, which can only be found as punitive. It is not explained how the respondents are conducting the inquiry after transferring the petitioner to Nedunkandam. The respondent University cannot adopt such punitive measures even before the inquiry is made. Absence of any answer to the allegations in paragraph 10 of the writ petition regarding the malafides and previous suspensions on account of that coupled with reason for transfer stated in Ext P1 order would show that the respondent have acted arbitrarily. In the light of the judgement of the apex court in Somesh Tiwari's case the order of transfer is therefore liable to be set aside. ## 11. The Apex Court while considering the **Somesh Tiwari's** case(supra) held as follows: “20. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside wholly illegal..” **W.P.(C). Nos. 26484 of 2015 & 23556 of 2016** **8** 12. As in the case considered by the Apex Court, the petitioner's transfer was also to a remote station, which is in harsh time. He is due to retire from service on 31.03.2018. 13. As I have found that the order of transfer is bad, it is not necessary to go into the other contentions raised regarding the authority to transfer to the self financing institution. 14. In the above circumstances, the order of transfer Ext.P1 is set aside. It is made clear that the University will be free to proceed with the disciplinary action in accordance with law. ## **WPC 23365/2016** The petitioner challenges Ext.P15, which is an order signed by the Assistant Registrar on the basis of the sanction accorded by the Vice Chancellor. It is stated that the Principal had reported that the petitioner disobeyed the directions to ply the vehicle. Seeing that the action of the petitioner warrants disciplinary action, the Vice Chancellor accorded sanction for the following: “a) Finance Officer is instructed to with hold the salary of Sri.Muhammed Basheer P.O for those days on which the Principal has reported that he has not attended duty. b) The Principal, UCN, Nedumkandam **W.P.(C). Nos. 26484 of 2015 & 23556 of 2016** **9** is permitted to engage a coolie Driver only on those days on which Sri Muhammed Basheer P O does not attend his duty. On such occasions, the Principal should mark absent in the attendance register of Muhammed Basheer P O and report the matter to the University on the same date. Such days of absence should also be marked in the monthly absentee statement. c) Strict directions is issued to Muhammed Basheer P O to ply the vehicle of UCN, Nedumkandam as per instructions of the Principal. d) The case of insubordination reported by the Principal on 22.06.2016 is also brought to the notice of the Enquiry Committee constituted vide paper read (2) above.” 2. The learned counsel for the petitioner points out that the Vice Chancellor is the Appellate Authority and Registrar is the authority competent to award punishment on him. Even otherwise there is no provision to withhold salary in this manner (these facts are not disputed by the respondents). Therefore, the order passed by the Vice Chancellor directing to withhold salary takes away the opportunity of the petitioner to avail statutory remedy of appeal against the punishment. Moreover, it is pointed out that the direction to withhold the salary of the petitioner is issued without any notice or opportunity of hearing. **10** ## **W.P.(C). Nos. 26484 of 2015 & 23556 of 2016** 3. On consideration of the rival contention on either side, it is seen that the direction to withhold salary in the order Ext.P15 is issued without notice that too by the Appellate Authority and hence in violation of the principles of natural justice and hence liable to be set aside. Moreover Ext P15 is issued by the Vice Chancellor who is the appellate authority. Therefore Ext P15 proceedings are liable to be set aside as it takes away the statutory right of petitioner to place his grievances before the appellate authority. Under the above circumstances, Ext.P15 is quashed. Thus both the writ petitions are allowed. Sd/- **P.V.ASHA, Judge** lsn