Muhammed Shamnaj C. v. The Principal, Sir Syed Institute for Technical Studies, Kannur University & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 17TH DAY OF DECEMBER 2014/26TH AGRAHAYANA, 1936** ## **WP(C).No. 27724 of 2014 (M)** **-------------------------------------------** ## **PETITIONER(S) :** **------------------------** **MUHAMMED SHAMNAJ.C, AGED 20 YEARS, S/O.MUSTHAFA, DARUL HUDA, CHOOLIYAD, MALAPPATTAM P.O., SREEKANDAPURAM (VIA), TALIPARAMBA TALUK, KANNUR DISTRICT-670 631.** **BY ADVS.SRI.V.A.SATHEESH SRI.V.T.MADHAVAN UNNI** ## **RESPONDENT(S) :** - **----------------------------** **1. THE PRINCIPAL, SIR SYED INSTITUTE FOR TECHNICAL STUDIES, KARIMBAM P.O., TALIPARAMBA, KANNUR DISTRICT-670 142.** ## **2. THE CHAIRMAN,** - **BOARD FOR ADJUDICATION OF STUDENTS' GRIEVANCES, KANNUR UNIVERSITY, THAVAKKARA, KANNUR-670 002.** ## **3. KANNUR UNIVERSITY,** **REPRESENTED BY REGISTRAR, KANNUR UNIVERSITY, THAVAKKARA, KANNUR-670 002.** ## *** ADDITIONAL R4 IMPLEADED** **4. THE CONTROLLER OF EXAMINATIONS, KANNUR UNIVERSITY, THAVAKKARA, KANNUR- 670 002.** - **ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED 17.12.2014 IN I.A.NO.14628 OF 2014.** **R1 BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH** **R2 & R3 & ADDL.R4 BY ADV. SRI.V.A.MUHAMMED, S.C** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-12-2014, ALONG WITH W.P.(C).NO.28925 OF 2014 AND W.P.(C).NO.28931 OF 2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 27724 of 2014 (M) ------------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -------------------------------------** **EXHIBIT P1 : TRUE COPY OF THE STUDENT IDENTITY CARD ISSUED TO THE PETITIONER FROM SIR SYED INSTITUTE FOR TECHNICAL STUDIES.** **EXHIBIT P2 : TRUE COPY OF THE SUSPENSION ORDER ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 17-09-2014. EXHIBIT P3 : TRUE COPY OF THE DISMISSAL ORDER ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATE 17-10-2014. EXHIBIT P4 : TRUE COPY OF THE DISMISSAL ORDER ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 17-10-2014. EXHIBIT P5 : TRUE COPY OF THE REQUEST SENT BY THE PETITIONER TO THE 2ND RESPONDENT.** **EXHIBIT P6 : TRUE COPY OF THE POSTAL RECEIPT ISSUED BY THE POSTAL AUTHORITIES TO THE PETITIONER DATED 20-10-2014.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------------------------** **EXHIBIT R1(A): THE TRUE COPY OF THE INQUIRY REPORT DATED 09.10.2014 BY INQUIRY COMMITTEE. EXHIBIT R1(B): TRUE COPY OF THE INQUIRY REPORT DATED 07.10.2014 BY INQUIRY COMMITTEE. EXHIBIT R1(C): THE TRUE COPY OF THE APPLICATION FILED BEFORE THE SUB INSPECTOR OF POLICE, THALIPARAMBA POLICE STATION BY THE 1ST RESPONDENT.** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **K. VINOD CHANDRAN, J. ===================== W.P.(C) No.27724 of 2014 -M, 28925 of 2014 - M & 28931 of 2014 - N** ## **====================== Dated this the 17[th] day of December, 2014** ## **J U D G M E N T** The petitioners are all aggrieved with the dismissal of the petitioners from the respondent college. The dismissal of the respective petitioners were on the basis of two incidents, which happened on 05.09.2014 and 17.09.2014. The petitioner in W.P.(C) No. 27724 of 2014 was involved in both the incidents and hence reference to the documents are made from the said writ petition. 2. Ext.P3 in W.P.(C) No. 27724 of 2014 and Ext.P4 in W.P.(C) Nos.28925 of 2014 and 288931 of 2014 are the proceedings of the Principal, with respect to the two incidents and by which the petitioners were dismissed from the college and their names were removed from the rolls. Admittedly, the petitioners were suspended prior to such dismissal. W.P.(C) No.27724 of 2014 -M, 28925 of 2014 - M & 28931 of 2014 - N **2** 3. An enquiry is also said to have been conducted. The enquiry reports are seen produced at Ext.R1(a) and R1(b). Ext.R1(a) is the enquiry report with respect to the incident, which happened on 05.09.2014, in which the petitioner in W.P.(C) No. 27724 of 2014 and the petitioners in W.P.(C) No.28925 of 2014 were involved. Ext.R1(b) is the enquiry report with respect to the incident that happened on 17.09.2014, in which the petitioner in W.P.(C) No.27724 of 2014 and the petitioners in W.P.(C) No. 28931 of 2014 were involved. The petitioners' contention related to such enquiry having been carried on, without any notice to them and without raising any specific charges against them and proceeded with by merely examining the witnesses, without affording any opportunity to cross-examine and absolute lack of opportunity to defend the allegations in an appropriate manner. 4. The petitioners admittedly have approached the Students Grievance Redressal Board of the respondent University, which application is pending. The petitioners W.P.(C) No.27724 of 2014 -M, 28925 of 2014 - M & 28931 of 2014 - N **3** contend that the enquiry has been carried out behind their back by merely recording statements, without giving them a fair opportunity to cross-examine the teachers who deposed against them. The petitioners in the above writ petitions, seek for setting aside of the dismissal order. This Court would not normally interfere with the orders passed, by a disciplinary authority, especially when a statutorily permissible challenge is pending. It is also to be noticed that very serious charges have been alleged, against the petitioners of misbehavior with the Principal and other teachers of the college as also destruction of college property. 5. The learned Counsel for the respondent College places before this Court a number of decisions reported in **Nandakumaran** v. **Principal, Govt. Victoria College, Palghat [1965 KHC 10]** , **Suresh Koshy Geroge** v. **University of Kerala and Others [1969 KHC 65]** , **Headmaster, Poilkavu H.S.** v. **Murali [1994 KHC 380]** and **Indulekha Joseph** v. **Vice Chancellor (Chairman)** W.P.(C) No.27724 of 2014 -M, 28925 of 2014 - M & 28931 of 2014 - N **4** **and Others [2008(3) KHC 355],** to contend that a strait jacket approach cannot be countenanced especially when an educational institution proceeds against students for gross misdemeanour, acts of violence and serious instances of breach of discipline. 6. **Nandakumaran** (supra) was a case, in which an enquiry was initiated against a student on a complaint made by one of the teachers. A memo of charges was issued and on consideration of the petitioner's statement in explanation, two Professors were appointed to conduct an enquiry into the charges. The delinquent student's statement was also forwarded to the Enquiry Committee. The delinquent was directed to appear before the Enquiry Committee, who explained the charges levelled and on his denial, a statement from the complainant was recorded. An oral hearing was given by the Committee to the delinquent, in which the allegations, as corroborated by the statement of the complainant was explained to him. The delinquent was again permitted to submit an explanation and the Committee also **5** W.P.(C) No.27724 of 2014 -M, 28925 of 2014 - M & 28931 of 2014 - N took the statement of some other students and a few other members of the staff. On a consideration of the materials before the Committee, the Committee came to the conclusion that the charges against the petitioners had been fully proved on the basis of which the College Council advised the Principal to suspend the delinquent which order of the Principal was challenged before Court. 7. This Court found that strict rules of natural justice, as applicable to Courts and Tribunals, cannot be imported into the instant enquiry especially since the Academic Bodies should be given some leeway in the matter of such enquiry; especially since it has a bearing on the discipline which has to be enforced among the students. Though the challenge against denial of cross-examination and the statement of the other students and staff being not put to the delinquent, for him to contradict; were held to be not of any weight, this Court nevertheless held so:- 9. The difficulty of identifying the peg on which the aggrieved could hang a justiciable claim need not deter me from holding that the W.P.(C) No.27724 of 2014 -M, 28925 of 2014 - M & 28931 of 2014 - N **6** investigation into the charges must be conducted in conformity with natural justice. It is true that it is difficult to find any consistent principle for determining the situations in which a duty to observe the rules of natural justice will be held to arise by implication. Nevertheless the governing principle ought to be that authorities empowered to make decisions determinental to the liberty, proprietary rights, livelihood, status or reputation of individuals should be required to give prior notice and an opportunity of being heard to those who are directly affected especially when the adjudicative facts are in controversy unless the imposition of such duties would be impracticable or manifestly injurious to public interest. The key is not the characterization of the proceeding as quasi judicial or administrative, but whether a finding on adjudicative facts is necessary for a decision which affects a person in relation to his property, status, livelihood or reputation. Normally adjudicative, as distinguished from legislative facts, ought not to be found without allowing a party a chance to explain and rebut. It is therefore difficult to accept the contention of counsel that the order impugned being passed in the exercise of the disciplinary jurisdiction of the Principal, is purely administrative, and is not liable to be corrected by certiorari. Even if the ultimate decision is administrative in character, the process for arriving at that decision required a quasi judicial approach at some stage, and if there is failure to conform to the principles of natural justice at that stage, then this court certainly has got the right and the duty to interfere with the decision. ## 8. **Suresh Koshy Geroge** (supra) was a case, in which an enquiry was conducted against a student as per the provisions of the Rule framed under the Kerala University W.P.(C) No.27724 of 2014 -M, 28925 of 2014 - M & 28931 of 2014 - N **7** Act. The mere fact that an enquiry officer's report, which led to the initiation of the proceedings, having not been supplied to the delinquent was held to be not an inviolable rule of natural justice. There was no requirement that there should be two enquiries; one prior to the issuance of show-cause notice and the other after such issuance, was the finding. The Hon'ble Supreme Court also held so with respect to the enquiries conducted in colleges. Enquiries held by domestic Tribunals in such cases must, no doubt, be fair and students against whom charges are framed must be given adequate opportunities to defend themselves, and in holding such enquiries, the Tribunal, must scrupulously follow rules of natural justice; but it would, we think, not be reasonable to import into these enquires all considerations which govern criminal trials in ordinary courts of law. 9. A student who had conducted a Sathyagraha in front of the Principal's room and the resultant enquiry and dismissal was the subject of challenge in **Indulekha Joseph** (supra). The Sathyagraha was on the allegation of the Principal's act of oppression and vendetta against herself and her father; a teacher in the very same institution. The student attempted to justify her actions equating it to the **8** W.P.(C) No.27724 of 2014 -M, 28925 of 2014 - M & 28931 of 2014 - N ## lives of Jesus Christ and Mahatma Gandhi. A Division Bench ## of this Court held so:- 23. Discipline is the paramount asset of an educational institution. If the said virtue is not inculcated among the students and the teaching and non teaching staff, it will have a disastrous and deleterious effect on the entire fabric of the society itself, because the educational institution is the breeding ground of the future generation. If any compromise is made in the matter of maintaining discipline in the institution, the result will be disastrous. The message should be loud and clear to all concerned that there is no premium in the matter of discipline in an educational institution. All other so called organisational and individual rights should be subject to the code of conduct prescribed by the institution. 10. **Murali** (supra) again considered the enforcement of discipline in educational institutions. Dealing with the specific Rules under Kerala Education Rules, 1958 Chapter IX Rule 6, the dismissal of the pupil was upheld and it was held that a proceeding under the said rule did not mandate an opportunity of hearing either to the delinquent student or guardian. 11. What comes to fore from the above discussion is that, if there is a rule provided regulating the procedure of W.P.(C) No.27724 of 2014 -M, 28925 of 2014 - M & 28931 of 2014 - N **9** disciplinary action, the requirements of the rule would prevail over the principles of natural justice. However, that is not to say that an educational authority can act in a despotic or autocratic manner. Arbitrariness cannot be excused even on the grounds of enforcement of discipline. Reference is apposite to the extract made in **Nandakumaran** (supra). However, an institution which professes to prepare youth for life in a democracy might wisely give them an example of fair play when it is conducting its own affairs.” (See Zechariah Chafee Jr. - “ The International Affairs of Associations Not for Profit” in 43 Harward Law Review 993, at 1026). 12. A large amount of elbow-room has to be conceded to the educational institutions; in the matter of enforcement of discipline. A gross act of indiscipline against the teachers by students cannot at all be condoned. A teacher's compliant has to be given due weightage and an action taken pursuant to that cannot be equated to a trial or even a discipinary enquiry taken by an employer against an employee. To permit the student to cross-examine the teacher would be diverting the course of justice, especially keeping in mind the exalted and venerated position a teacher occupies vis-a-vis W.P.(C) No.27724 of 2014 -M, 28925 of 2014 - M & 28931 of 2014 - N **10** a student. That is not the purpose intended at, in laying down the principles of natural justice. 13. Very serious allegations are raised against the students, the petitioners herein. But, however, this Court would not venture to say anything on it since this Court is of the opinion that even the rudimentary principles of natural justice have not been complied with in the present case. A suspension order was issued, an enquiry ordered and the students were dismissed, on the basis of the findings in the enquiry. The enquiry report definitely does not record the statement of the persons examined. It merely indicates the essence of the statements made by the teachers, staff members as also the students, as reduced to writing, in the report,by the Committee. No proceedings, as such are produced before this Court, nor is it contended by the college that any rule or regulation governed the enquiry carried on against the students. 14. It would have been proper that statements were obtained in writing, which would definitely enable a review W.P.(C) No.27724 of 2014 -M, 28925 of 2014 - M & 28931 of 2014 - N **11** by the Courts or by the Administrative Bodies set up by the University to look into such matters. In the present case but, for the enquiry report and the statements of the various persons examined; reduced to writing by the Committee nothing else is placed on record. 15. This Court is not inclined to permit the petitioners to continue the course in the respondent college, merely on the technical defect of non-compliance of principles of natural justice. It is also to be noticed that the respondent college would be closed for the Christmas vacation and that would be an appropriate time when the enquiry proceedings shall be resumed and continued after proper notice to the petitioners. 16. The petitioners shall appear before the Principal on 23.12.2014. The Principal shall constitute an Enquiry Committee and shall issue the petitioners with a proper charge sheet and the enquiry shall be commenced on 26.12.2014. The petitioners shall be granted sufficient opportunity to defend their case but it is made clear that the enquiry need be carried out only in accordance with the W.P.(C) No.27724 of 2014 -M, 28925 of 2014 - M & 28931 of 2014 - N **12** observations herein above, which observations are on the basis of the principles culled out from the binding precedents referred to above. Writ petitions are disposed of. Sd/- **K. VINOD CHANDRAN, JUDGE** SB // true copy // P.A To Judge.