Nagesh Kumar B.R. v. Kerala Veterinary and Animal Sciences University & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURSDAY, THE 14TH DAY OF MARCH 2024 / 24TH PHALGUNA, 1945 WP(C) NO. 14794 OF 2023`** ## **`PETITIONER :-`** ``` NAGESH KUMAR.B.R., AGED 36 YEARS S/O R. BHANU, CHRISTU BHAVAN, KURUNNAPPENKAVU, CHANGA, CHANGA.P.O., THIRUVANANTHAPURAM,, PIN – 695542 ``` ``` BY ADVS. R.T.PRADEEP M.BINDUDAS ``` - **`K.C.HARISH`** ## **`RESPONDENTS :-`** - **`1 KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY, REPRESENTED BY ITS REGISTRAR, POOKODE, WAYANAD,, PIN – 673576`** - **`2 VICE-CHANCELLOR KERALA VETERINARY & ANIMAL SCIENCES UNIVERSITY, POOKODE, WAYANAD,, PIN – 673576`** - **`3 DEAN COLLEGE OF VETERINARY & ANIMAL SCIENCES, KERALA VETERINARY & ANIMAL SCIENCES UNIVERSITY, POOKODE, LAKKIDY P.O., WAYANAD,, PIN – 673576`** ## **`BY ADV Manu Govind`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2024, ALONG WITH WP(C).19529/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ## **`WP(C) NOs. 14794 & 19529 OF 2023`** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. ``` ``` THURSDAY, THE 14THDAY OF MARCH 2024 / 24TH PHALGUNA, 1945 ``` ## **`WP(C) NO. 19529 OF 2023`** ## **`PETITIONER :-`** ``` NAGESH KUMAR.B.R., AGED 36 YEARS S/O R. BHANU, CHRISTU BHAVAN, KURUNNAPPENKAVU, CHANGA, CHANGA.P.O., THIRUVANANTHAPURAM,, PIN – 695542 ``` ``` BY ADVS. R.T.PRADEEP M.BINDUDAS P.BIJIMON ``` ## **`RESPONDENTS :-`** - **`1 KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY, REPRESENTED BY ITS REGISTRAR, POOKODE, WAYANAD,, PIN – 673576`** - **`2 VICE-CHANCELLOR KERALA VETERINARY & ANIMAL SCIENCES UNIVERSITY, POOKODE, WAYANAD,, PIN – 673576`** - **`3 DEAN COLLEGE OF VETERINARY & ANIMAL SCIENCES, KERALA VETERINARY & ANIMAL SCIENCES UNIVERSITY, POOKODE, LAKKIDY P.O., WAYANAD,, PIN – 673576`** ``` BY ADV Manu Govind ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2024, ALONG WITH WP(C).14794/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NOs. 14794 & 19529 OF 2023 ``` ``` 3 ``` ## **JUDGMENT** The petitioner while being employed as a Livestock Inspector GradeII got admission to the Bachelor of Veterinary and Animal Science course conducted by the 1st respondent – University. He took leave without allowance for 5 years and joined the course on 17.01.2023. An allegation was made against the petitioner by a female student about sexual harassment on 19.01.2023. Following the allegation and complaint lodged, the petitioner was suspended from the studies and an enquiry by the Internal Complaints Committee found the petitioner guilty and directed his expulsion from the College. 2. The petitioner had earlier filed a writ petition challenging the order of expulsion. By Ext.P10 judgment, recorded the submission of the University that the proceedings ought to have been taken under the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015, and accordingly, they decided to withdraw the earlier proceedings initiated under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. ``` WP(C) NOs. 14794 & 19529 OF 2023 ``` ``` 4 ``` Therefore, the University submitted that fresh proceedings would be initiated in terms of the UGC regulations. 3. This Court directed the University to consider revocation of the suspension imposed on the petitioner on 21.01.2023 and ordered that the enquiry under the UGC regulations shall also be completed expeditiously. The learned counsel for the petitioner submits that pursuant to the directions of this Court in Ext.P10, the suspension of the petitioner was not revoked, and that is challenged in W.P.(C) No.14794 of 2023. By an interim order granted in the said writ petition on 12.05.2023, the petitioner was permitted to attend the classes under the strict surveillance of the 3rd respondent, the Dean. It is also stated that an enquiry under the UGC regulations has been completed and the report is marked as Ext.P20 in W.P. (C) No.19529 of 2023. The petitioner had filed an appeal against Ext.P20 enquiry report through Ext.P21, which was rejected as per Ext.P22. 4. Ext.P22 is challenged in W.P.(C) No.19529 of 2023 along with Ex.P20 enquiry report. The learned counsel for the petitioner further submitted that there is no basis for taking the initial action as there was no ingredient constituting sexual harassment within the meaning of the POSH act in the complaint preferred by the student who alleged harassment. ``` WP(C) NOs. 14794 & 19529 OF 2023 ``` ``` 5 ``` 5. The learned Standing Counsel for the University submits that the petitioner has since been issued with a show cause notice pursuant to Exts.P20 and P22, calling for an explanation on the proposed punishment. The learned counsel for the petitioner apprehends that since Ext.P20 enquiry report suggests the harshest punishment possible, the explanation given by the petitioner, which is produced as Ext.P24 will not be considered as there is a predetermination with respect to the punishment in the enquiry report itself. However, the same cannot bind the Executing Authority of the Higher Education Institution, the appellate authority. According to the petitioner, the authority considering his objections will be influenced by the observations in the enquiry report and therefore, the appeal will not serve any purpose. 6. The learned counsel for the University submits that the consideration of the appeal is strictly following the regulations, Ext.P15 and therefore, the challenge against Exts.P20 and P22 is to be considered independent on its merits and not by any of the observations in Ext.P20 enquiry report. 7. The appellate authority has not considered the contention of the petitioner that in Ext.P20, the Internal Complaints Committee had ``` WP(C) NOs. 14794 & 19529 OF 2023 ``` ``` 6 ``` already indicated a punishment of removal from the College and its impact. He also cited the judgment of the Apex Court in **State of Uttaranchal and Others v. Kharak Singh [(2008) 8 SCC 236]** , particularly paragraph 14, which reads as follows :- 14. In regard to the question whether an enquiry officer can indicate the proposed punishment in his report, this Court, in a series of decisions has pointed out that it is for the punishing/disciplinary authority to impose appropriate punishment and enquiry officer has no role in awarding punishment. It is useful to refer to the decision of this Court in A.N.D’Silva v. Union of India [AIR 1962 SC 1130 : 1962 Supp (1) SCR 968] wherein it was held : ((AIR p. 1134 para 6) “6. In the communication addressed by the enquiry officer the punishment proposed to be imposed upon the appellant if he was found guilty of the charges could not properly be set out. The question of imposing punishment can only arise after enquiry is made and the report of the enquiry officer is received. It is for the punishing authority to propose the punishment and not for the enquiring authority.” 8. In view of the fact that the appellate authority did not consider the specific contentions of the petitioner that the Enquiry Committee was wrong in suggesting the punishment, the order passed in appeal as Ext.P22 has to be set aside. ``` WP(C) NOs. 14794 & 19529 OF 2023 ``` ``` 7 ``` 9. Given the fact that the petitioner has given his explanation to Ext.P23, there will be a direction to the Executing Authority of the 1st respondent University to consider the contentions raised by the petitioner in Ext.P24 untrammelled by any of the findings either in the enquiry report or in Ext.P22 while rejecting the appeal against Ext.P20 order. As going by the regulations the appeal against Ext.P20 ought to have been considered by the Executing Committee of Higher Education Institution, the Executing Committee will hear the petitioner and the affected parties, if any, and pass appropriate orders dealing with the contentions raised by the petitioner in the appeal preferred. This shall be done at the earliest, at any rate, within a period of six weeks from the date of receipt of a copy of this judgment. Further proceedings will depend on the decision to be taken by the Executing Committee as directed above. Till the final orders are passed, the petitioner will be permitted to attend the classes as is now being done. These writ petitions are disposed of as above. Sd/- ## **MOHAMMED NIAS C.P. JUDGE** **SMA** ## **`WP(C) NOs. 14794 & 19529 OF 2023`** ``` 8 ``` ## **`APPENDIX OF WP(C) 19529/2023`** ## **`PETITIONER EXHIBITS :-`** ``` Exhibit P1 ``` ``` TRUE COPY OF ALLOTMENT MEMO DATED 11.1.2023 BY THE COMMISSIONER FOR ENTRANCE EXAMINATION ISSUED TO THE PETITIONER ``` - **`Exhibit P2 TRUE COPY OF ORDER DATED 17.1.2023 BY THE DISTRICT ANIMAL HUSBANDRY OFFICER RELIEVING THE PETITIONER FROM DUTY`** - **`Exhibit P3 TRUE COPY OF AADHAAR CARD OF DAUGHTER OF PETITIONER DATED 28.2.2019 BEARING NO.454755354398`** - **`Exhibit P4 TRUE COPY OF IDENTITY CARD OF DAUGHTER OF PETITIONER ISSUED FROM LAYOLA ICSE SCHOOL, MUKUNDARA`** - **`Exhibit P5 TRUE COPY OF WRITTEN APOLOGY OF PETITIONER DATED 21.1.2023 GIVEN TO 3RD RESPONDENT`** - **`Exhibit P6 TRUE COPY OF ORDER OF SUSPENSION DATED 21.1.2023 BY 3RD RESPONDENT NO.COVAS/PKD/ACAD(1)/3986(A)/2022`** - **`Exhibit P7 TRUE COPY OF REPORT DATED 1.2.2023 FURNISHED TO THE PETITIONER BY 3RD RESPONDENT`** - **`Exhibit P8 TRUE COPY OF ORDER DATED 2.3.2023 OF THE 3RD RESPONDENT BY WHICH THE PETITIONER WAS EXPELLED FROM THE COLLEGE DENYING READMISSION UNDER THE REGULATIONS`** ``` Exhibit P9 ``` - **`TRUE COPY OF ORDER NO.CVAS/PKD/ACAD (1)/400/2023 DATED 3.4.2023 BY 3RD RESPONDENT WITHDRAWING EXHIBIT-P8 ORDER AND RETAINING SUSPENSION OF PETITIONER`** ## **`WP(C) NOs. 14794 & 19529 OF 2023`** ## **`9`** ``` Exhibit P10 ``` - **`TRUE COPY OF JUDGMENT DATED 4.4.2023 IN W.P. (C) NO.6044/2023 OF THE HON'BLE HIGH COURT OF KERALA`** - **`Exhibit P11`** - **`TRUE COPY OF REPRESENTATION DATED 10.4.2023 BY PETITIONER BEFORE 3RD RESPONDENT`** - **`Exhibit P12 TRUE COPY OF NOTICE DATED 10.4.2023 WITH THE COMPLAINT OF VICTIM DATED 21.1.2023 WHICH IS FORWARDED BY THE INTERNAL COMPLAINTS COMMITTEE UNDER THE REGULATIONS`** - **`Exhibit P13 TRUE COPY OF REPLY DATED 18.4.2023 GIVEN BY PETITIONER TO THE INTERNAL COMPLAINTS COMMITTEE UNDER THE REGULATIONS IN RESPONSE TO EXHIBIT-P12`** - **`Exhibit P14 TRUE COPY OF ORDER DATED 20.4.2023 BY 3RD RESPONDENT BY WHICH THE SUSPENSION IS SUSTAINED`** - **`Exhibit P15 TRUE COPY OF THE UNIVERSITY GRANTS COMMISSION (PREVENTION, PROHIBITION AND REDRESSAL OF SEXUAL HARASSMENT OF WOMEN EMPLOYEES AND STUDENTS IN HIGHER EDUCATION INSTITUTIONS) REGULATIONS, 2015`** - **`Exhibit P16 TRUE COPY OF F.I.R. DATED 24.4.2023 IN CRIME NO.236/2023 OF VYTHIRI POLICE STATION`** - **`Exhibit P17 TRUE COPY OF ORDER DATED 12.5.2023 IN W.P. (C) NO.14794/2023 OF THE HON'BLE HIGH COURT OF KERALA`** - **`Exhibit P18 TRUE COPY OF ORDER DATED 17.5.2023 BY 2ND RESPONDENT BY WHICH PETITIONER WAS PERMITTED TO ATTEND THE CLASSES`** - **`Exhibit P19 TRUE COPY OF ORDER DATED 8.6.2023 IN W.P.(C)`** ``` WP(C) NOs. 14794 & 19529 OF 2023 ``` ``` 10 ``` - **`NO.14794/2023 OF THE HON'BLE HIGH COURT OF KERALA`** - **`Exhibit P20 TRUE COPY OF ENQUIRY REPORT DATED 19.5.2023 BY THE INTERNAL COMPLAINTS COMMITTEE UNDER THE REGULATIONS`** - **`Exhibit P21 TRUE COPY OF APPEAL DATED 12.6.2023 FILED BY PETITIONER BEFORE THE 1ST RESPONDENT`** - **`Exhibit P22 TRUE COPY OF ORDER DATED 5.6.2023 BY WHICH EXHIBIT-P21 APPEAL WAS DISMISSED BY 2ND RESPONDENT`** - **`Exhibit P23 TRUE COPY OF SHOW CAUSE NOTICE DATED 5.6.2023 BY 2ND RESPONDENT`** - **`Exhibit P24 TRUE COPY OF REPLY OF PETITIONER TO EXHIBITP23 DATED 12.6.2023`** - **`Exhibit P25 TRUE COPY OF THE CONCILIATION APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 15.07.2023`** - **`Exhibit P26 TRUE COPY OF NOTIFICATION DATED 27.1.2024 BY WHICH THE RESULT OF FIRST YEAR OF BACHELOR OF VETERINARY SCIENCE & ANIMAL HUSBANDRY BY KERALA VETERINARY & ANIMAL SCIENCES UNIVERSITY`** ## **`RESPONDENT EXHIBITS :-`** - **`Exhibit R1(a) True copy of enquiry report dated 21.01.2023`** ``` Exhibit R1(b)Copyofthedecisionno. COVAS/PKD/ACAD(1)/3986(A)/2022dated 21.01.2023 of the Society ``` ## **`WP(C) NOs. 14794 & 19529 OF 2023`** ## **`11`** ## **`APPENDIX OF WP(C) 14794/2023`** ## **`PETITIONER EXHIBITS :-`** ``` Exhibit P1TRUE COPY OF ALLOTMENT MEMO DATED 11.1.2023 BYTHECOMMISSIONERFORENTRANCE EXAMINATION Exhibit P2TRUE COPY OF ORDER DATED 17.1.2023 FILE NO.DAHO/TVM/923/2022-B BY THE DISTRICT ANIMAL HUSBANDRY OFFICER RELIEVING THE PETITIONER FROM DUTY Exhibit P3TRUE COPY OF AADHAAR CARD OF DAUGHTER OF PETITIONER DATED 28.2.2019 Exhibit P4TRUE COPY OF IDENTITY CARD OF DAUGHTER OF PETITIONER OF THE SCHOOL WHERE SHE UNDERGOES STUDIES Exhibit P5TRUE COPY OF WRITTEN APOLOGY OF PETITIONER DATED 21.1.2023 GIVEN BEFORE THE 3RD RESPONDENT Exhibit P6TRUE COPY OF ORDER OF SUSPENSION DATED 21.1.2023 BY 3RD RESPONDENT Exhibit P7TRUE COPY OF COVERING LETTER OF 3RD RESPONDENT DATED 14.2.2023 ALONG WITH REPORT DATED 1.2.2023 FURNISHED TO THE PETITIONER BY 3RD RESPONDENT Exhibit P8TRUE COPY OF REPRESENTATION DATED 16.2.2023 BY PETITIONER BEFORE 1ST RESPONDENT Exhibit P9TRUE COPY OF ORDER DATED 2.3.2023 OF THE 3RD RESPONDENT BY WHICH THE PETITIONER WAS EXPELLED FROM THE COLLEGE DENYING RE- ADMISSION UNDER THE REGULATIONS ``` ## **`WP(C) NOs. 14794 & 19529 OF 2023`** ## **`12`** - **`Exhibit P10`** ``` TRUE COPY OF ORDER DATED 3.4.2023 BY 3RD RESPONDENT WITHDRAWING EXHIBIT-P9 ORDER AND RETAINING SUSPENSION OF PETITIONER ``` - **`Exhibit P11`** - **`TRUE COPY OF JUDGMENT DATED 4.4.2023 IN W.P.(C) NO.6044/2023 OF THE HON'BLE HIGH COURT OF KERALA`** - **`Exhibit P12 TRUE COPY OF REPRESENTATION DATED 10.4.2023 BY PETITIONER BEFORE 3RD RESPONDENT`** - **`Exhibit P13 TRUE COPY OF NOTICE DATED 10.4.2023 WITH THE COMPLAINT OF VICTIM DATED 21.1.2023 WHICH IS FORWARDED BY THE INTERNAL COMPLAINTS COMMITTEE UNDER THE REGULATIONS`** - **`Exhibit P14 TRUE COPY OF REPLY DATED 18.4.2023 GIVEN BY PETITIONER TO THE INTERNAL COMPLAINTS COMMITTEE UNDER THE REGULATIONS IN RESPONSE TO EXHIBIT-P13`** - **`Exhibit P15 TRUE COPY OF ORDER DATED 20.4.2023 BY 3RD RESPONDENT BY WHICH THE SUSPENSION IS SUSTAINED`** - **`Exhibit P16 TRUE COPY OF THE UNIVERSITY GRANTS COMMISSION (PREVENTION, PROHIBITION AND REDRESSAL OF SEXUAL HARASSMENT OF WOMEN EMPLOYEES AND STUDENTS IN HIGHER EDUCATION INSTITUTIONS) REGULATIONS, 2015`** - **`Exhibit P17 TRUE COPY OF F.I.R. DATED 24.4.2023 IN CRIME NO.236/2023 OF VYTHIRI POLICE STATION, WYNAD DISTRICT`** - **`RESPONDENT EXHIBITS :-`** - **`Exhibit R1(a) True copy of letter No. ICC 1/23-24/1 dated`** ## **`WP(C) NOs. 14794 & 19529 OF 2023`** ``` 13 ``` ``` 02.05.2023 from the office of the respondents ```