P. H. Subair v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **FRIDAY, THE 20TH DAY OF NOVEMBER 2020 / 29TH KARTHIKA, 1942** ## **WP(C).No.20910 OF 2015(K)** ## **- PETITIONER :** ## **P.H.SUBAIR** **HEAD OF ELECTRONICS ENGINEERING SECTION, SEETHI SAHIB MEMORIAL POLYTECHNIC COLLEGE, TIRUR, MALAPPURAM – 676 105.** ## **BY ADV. SRI.KALEESWARAM RAJ** ## **- RESPONDENTS :** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT,**| ||**THIRUVANANTHAPURAM – 695 001.**| |**2**|**DIRECTOR OF TECHNICAL EDUCATION**| ||**THIRUVANANTHAPURAM – 695 001.**| |**3**|**JOINT DIRECTOR OF TECHNICAL EDUCATION**| ||**KOZHIKODE.**| |**4**|**GOVERNING BODY**| ||**SEETHI SAHIB MEMORIAL POLYTECHNIC COLLEGE,**| ||**REPRESENTED BY THE CHAIRMAN, TIRUR,**| ||**MALAPPURAM – 676 105.**| |**5**|**THE CHAIRMAN**| ||**SEETHI SAHIB MEMORIAL POLYTECHNIC COLLEGE,**| ||**TIRUR, MALAPPURAM – 676 105.**| |**6**|**ABDUL NAZAR**| ||**FULL ADDITIONAL CHARGE AS PRINCIPAL,**| ||**SEETHI SAHIB MEMORIAL POLYTECHNIC COLLEGE,**| ||**TIRUR, MALAPPURAM – 676 105.**| ||**BY SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL**| ||**BY ADV. SRI.ARAVINDA KUMAR BABU T.K.**| ||**BY ADV. SRI.P.C.SASIDHARAN**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-102020, ALONG WITH WP(C).27035/2015(D), WP(C).1431/2016(D) & WP(C).12746/2016(P), THE COURT ON 20-11-2020 DELIVERED THE FOLLOWING:** **WP(C).No.20910 OF 2015 and con. cases** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 20TH DAY OF NOVEMBER 2020 / 29TH KARTHIKA, 1942 WP(C).No.27035 OF 2015** ## **- PETITIONER :** **P.H.SUBAIR HEAD OF ELECTRONICS ENGINEERING SECTION (UNDER SUSPENSION), SEETHI SAHIB MEMORIAL POLYTECHNIC COLLEGE, TIRUR, MALAPPURAM - 676 105.** **BY ADV. SRI.KALEESWARAM RAJ** **- RESPONDENTS :** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 DIRECTOR OF TECHNICAL EDUCATION THIRUVANANTHAPURAM - 695 001. 3 JOINT DIRECTOR OF TECHNICAL EDUCATION KOZHIKODE - 673 001. 4 GOVERNING BODY SEETHI SAHIB MEMORIAL POLYTECHNIC COLLEGE, REPRESENTED BY THE CHAIRMAN, TIRUR, MALAPPURAM – 676 105.** **5 SRI.K.KUTTY AHAMMEDKUTTY CHAIRMAN, GOVERNING BODY, SEETHI SAHIB MEMORIAL POLYTECHNIC COLLEGE, TIRUR, MALAPPURAM – 676 105.** **BY SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL BY ADV. SRI.P.C.SASIDHARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-10-2020, ALONG WITH WP(C).20910/2015(K), WP(C).1431/2016(D) & WP(C).12746/2016(P), THE COURT ON 20-11-2020 DELIVERED THE FOLLOWING:** **WP(C).No.20910 OF 2015 and con. cases** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 20TH DAY OF NOVEMBER 2020 / 29TH KARTHIKA, 1942** ## **WP(C).No.1431 OF 2016** ## **- PETITIONER :** **P H SUBAIR HEAD OF ELECTRONICS ENGINEERING SECTION (UNDER SUSPENSION), SEETHI SAHIB MEMORIAL POLYTECHINIC COLLEGE, TIRUR, MALAPPURAM - 676 105.** **BY ADV. SRI.KALEESWARAM RAJ** ## **- RESPONDENTS :** **1 STATE OF KERALA REP. BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 DIRECTOR OF TECHINICAL EDUCATION THIRUVANANTHAPRUAM - 695 001.** **3 JOINT DIRECTOR OF TECHNICAL EDUCATION KOZHIKODE - 673 001. 4 GOVERNING BODY SEETHI SAHIB MEMORIAL POLYTECHNIC COLLEGE, REPRESENTED BY THE CHAIRMAN, TIRUR, MALAPPURAM - 676 105. 5 SRI.K.KUTTY AHAMMED KUTTY CHAIRMAN, GOVERNING BODY, SEETHI SAHIB MEMORIAL POLYTECHNIC COLLEGE, TIRUR, MALAPPURAM - 676 105 BY SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL BY ADV. SRI.P.C.SASIDHARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-10-2020, ALONG WITH WP(C).20910/2015(K), WP(C).27035/2015(D) & WP(C).12746/2016(P), THE COURT ON 20-112020 DELIVERED THE FOLLOWING:** **WP(C).No.20910 OF 2015 and con. cases** **4** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 20TH DAY OF NOVEMBER 2020 / 29TH KARTHIKA, 1942** ## **WP(C).No.12746 OF 2016** ## **PETITIONER :-** **P.H.SUBAIR HEAD OF ELECTRONICS ENGINEERING SECTION (UNDER SUSPENSION), SEETHI SAHIB MEMORIAL POLYTECHNIC COLLEGE, TIRUR, MALAPPURAM - 676 105.** **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENTS :-** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 DIRECTOR OF TECHNICAL EDUCATION THIRUVANANTHAPURAM - 695 001.** **3 JOINT DIRECTOR OF TECHNICAL EDUCATION KOZHIKODE - 673 001. 4 GOVERNING BODY SEETHI SAHIB MEMORIAL POLYTECHNIC COLLEGE, REPRESENTED BY THE CHAIRMAN, TIRUR, MALAPPURAM - 676 105.** **5 SRI.K.KUTTY AHAMMEDKUTTY CHAIRMAN, GOVERNING BODY, SEETHI SAHIB MEMORIAL POLYTECHNIC COLLEGE, TIRUR, MALAPPURAM - 676 105. 6 ABDUL NAZAR FULL ADDITIONAL CHARGE AS PRINCIPAL, SEETHI SAHIB MEMORIAL POLYTECHNIC COLLEGE, TIRUR, MALAPPURAM - 676 105.** **BY ADV. SRI.E.S.ASHRAF BY ADV. SRI.P.C.SASIDHARAN BY SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-10-2020, ALONG WITH WP(C).20910/2015(K), WP(C).27035/2015(D) & WP(C).1431/2016(D), THE COURT ON 20-11-2020 DELIVERED THE FOLLOWING:** **WP(C).No.20910 OF 2015 and con. cases** **5** ## **JUDGMENT** ## **Dated this the 20th day of November 2020** W.P.(C) No.20910/2015 is filed by the petitioner seeking promotion to the post of Principal with effect from 1.5.2015. W.P.(C) No.27035/2015 is filed challenging an order of suspension issued to the petitioner while W.P.(C) No.1431/2016 challenges the disciplinary action taken against the petitioner. W.P.(C) No.12746/2016 is filed challenging the promotion of the 6[th] respondent to the post of Principal ignoring the claim of the petitioner on the ground that disciplinary proceedings are pending against him. 2. The petitioner was working as Head of the Electronics Engineering Section in the Seethi Sahib Memorial Polytechnic College, Tirur. He entered service as Workshop Instructor in the year 1989. He was promoted as Assistant Lecturer on 12.2.1992 and Lecturer in Electronics Engineering on 13.9.2001. In the year 2004, the petitioner was posted as Head of the Section in Electronics Engineering in the college. It is stated that the petitioner was fully qualified and eligible for promotion to the post of Principal which arose in the college on 1.5.2015 consequent on the retirement of Sri.K. **WP(C).No.20910 OF 2015 and con. cases** **6** Ameer Ali. It is stated that the petitioner had submitted a representation seeking the promotion, but, without considering the same, the 6[th] respondent was given full additional charge of the post of Principal. It was contended that the petitioner is the senior most eligible candidate going by merit and seniority as provided in Rule 16 of Ext.P2 Special Rules and therefore, it was only to deny the legitimate claim of the petitioner that the 6[th] respondent was given charge. 3. Notice before admission was ordered in the writ petition on 10.7.2015. While so, an order was passed on 1.9.2015, placing the petitioner under suspension. The said order has been challenged in W.P.(C) No.27035/2015. The reasons for the suspension in the order, which is produced as Ext.P1 in W.P.(C) No.27035/2015 is that the petitioner had acquired B.Tech degree from the College of Engineering, Thiruvananthapuram during the period 1997-2001, without duly obtaining leave from the College. It is stated that on verification of records, it is revealed that while undergoing the B.Tech course at Thiruvananthapuram, the petitioner had signed the attendance register of the College and had received salary and other benefits. It is contended by the learned counsel for the petitioner that undergoing of the **WP(C).No.20910 OF 2015 and con. cases** **7** B.Tech course in 1997 to 2001 was with full authorisation of the management of the College and that the fact was duly recorded in his service book as well. It is submitted that the petitioner had availed earned leave, half pay leave, leave without allowance, etc. for the period in question and had undergone and completed the course without any objection from any authorities either in the Management or the Department. It is stated that the order of suspension is issued purely in order to deny the rightful promotion to the petitioner, for which, he had raised a claim by the first writ petition. It is submitted that the raking up of a matter which had occurred 18 years prior to Ext.P1 order of suspension is completely without jurisdiction and even if the facts are admitted, there is absolutely no justification for initiating a disciplinary proceedings after nearly two decades of the alleged misconduct. It is submitted that it is abundantly clear that it was only on account of the mala fide intention to deny the promotion to the post of Principal that the disciplinary proceedings had been initiated against the petitioner. 4. W.P.(C) No.1431/2016 challenges Ext.P3 memo of charges and statement of allegations and Ext.P6 order directing the conduct of a detailed enquiry in the matter. It is **WP(C).No.20910 OF 2015 and con. cases** **8** submitted that in the meanwhile, the petitioner had been overlooked for promotion on the ground of the pendency of the disciplinary proceedings and the 6[th] respondent in the first writ petition was appointed as Principal by order dated 4.2.2016 with effect from 5.2.2016. The said order is under challenge on the ground that the petitioner was the rightful claimant for the post of Principal and the action of the respondents in having appointing the 6[th] respondent, who was completely ineligible as Principal is illegal and unsustainable. 5. Detailed pleadings have been placed on record by the Management in all these writ petitions. The contesting 6[th] respondent has also filed counter affidavit in W.P.(C) No.12746/2016. The official respondents have also placed counter affidavits on record in all the writ petitions. 6. Heard the learned counsel for the petitioner, the learned counsel appearing for the Management, the learned counsel for the 6[th] respondent as well as the learned Government Pleader. 7. The specific contention of the learned counsel for the petitioner is that the initiation of the disciplinary proceedings, so many years after the alleged misconduct, is completely unjustifiable and is clearly vitiated by mala fides. **WP(C).No.20910 OF 2015 and con. cases** **9** It is contended that it was only when the petitioner raised his legitimate claim for appointment against the vacancy of Principal which arose on 1.5.2015 that the respondents had raked up the allegation with regard to a long concluded question of acquisition of qualification by the petitioner during the period 1997-2001. It is stated that it was specifically on the basis of a No Objection Certificate issued by the Principal of the College that the petitioner had been granted admission to the B.Tech course as a regular candidate. It is stated that the several kinds of leave availed by the petitioner were specifically endorsed in his service book and the qualification of B.Tech degree acquired by the petitioner was duly endorsed in the petitioner's service book by the Joint Director. It is submitted that the availing of leave and the acquisition of the qualification by the petitioner was on the basis of permissions granted by the College and the Department and that if at all there was any irregularity in the same, such irregularity ought to have been pointed out within a reasonable time and since no such steps had been taken for more than 15 years, the petitioner was justified in stating that the inordinate delay defeats the very proceedings. **WP(C).No.20910 OF 2015 and con. cases** **10** 8. The learned counsel for the petitioner relies on the judgments of the Apex Court reported in **State of M.P.** v. **Bani Singh and another** [1990 KHC 678], **State of A.P.** v. **N. Radhakishan** [(1998) 4 SCC 154], **State of Punjab** v. **V. K. Khanna and others** [(2001) 2 SCC 330], **P. V. Mahadevan** v. **MD, T. N. Housing Board** [2005 KHC 1300] and **Vilasanadas Daniel** v. **District Collector** [2001 KHC 837]in support of the contention. 9. The learned counsel for the petitioner submits that the petitioner had been denied promotion to the post of Principal only on account of the disciplinary proceedings initiated against him. The contention is that the initiation of the disciplinary proceedings itself was only to see that the promotion is denied to the petitioner. It is therefore contended that the petitioner, who was senior and qualified for appointment as on the date of occurrence of the vacancy in the post of Principal is liable to be retrospectively appointed from the said date and to all monetary benefits arising therefrom. 10. With regard to the suspension of the petitioner also, the learned counsel for the petitioner relies on the decision of a Division Bench of this Court in **Vikraman Nair K.** v. **State of Kerala and others** [2008 (4) KHC 412 (DB)], where it was **WP(C).No.20910 OF 2015 and con. cases** **11** held that the court can review and evaluate questions of fact for the limited purpose of scrutinising the decision making process to see if the order is unreasonable or the authority has abused its powers. It was held that suspension of an employee pending disciplinary proceedings and departmental enquiry is not automatic and is to be resorted to only if such a cause of action is absolutely essential in the facts of the case. The decision of this Court in **Muhammed** v. **State of Kerala** [1997 KHC 386] and **Surendran K.** v. **Government of Kerala and others** [2008 (3) KHC 738 (DB)] are also relied on. 11. In W.P.(C) No.20910/2015, the Director of Technical Education has filed counter affidavit stating that the provisions of the Kerala Technical Education (Private Engineering Colleges/ Polytechnics) Service Rules lay down that appointments are to be made by the management subject to qualifications and age laid down by the Government from time to time in respect of corresponding posts in Government Technical Institutions. It is stated that the post of Principal is a selection post. It is stated that though the petitioner had submitted a representation seeking appointment to the post, Sri.Naina Mohammed Basil was the senior most Head of Section in the institution going by Ext.R2(a) seniority list. It is **WP(C).No.20910 OF 2015 and con. cases** **12** stated that Sri.Naina Mohammed Basil, the petitioner as well as the 6[th] respondent were qualified to be promoted as Principal. It is contended that since disciplinary proceedings had been initiated against the petitioner by memo of charges dated 1.9.2015, the 6[th] respondent was put in charge as Principal. The learned counsel for the petitioner submits that Sri.Naina Mohammed Basil has submitted a letter of relinquishment to the Management and the petitioner was admittedly the next senior most person to be considered for promotion as Principal. 12. Respondents 4 and 5 have filed a counter affidavit in W.P.(C) No.20910/2015. It is stated that selection for the post of Principal is to be made by a selection committee consisting of two representatives of the educational agency, representative of the University, the Director of Technical Education or his nominee, Regional Officer of the Ministry of Education or his nominee representing the Central Government, two representatives of the Southern Regional Committee of the AICTE and the Principal of the Institution. It is stated that the selection committee was so constituted and the 6[th] respondent was selected for appointment to the post of Principal on 4.2.2016 and that he joined duty thereafter. It is **WP(C).No.20910 OF 2015 and con. cases** **13** submitted that the said appointment was also duly approved by the Director of Technical Education on 25.2.2016 and that nothing survives for consideration. Further, an additional counter affidavit was filed stating that the AICTE Scheme was adopted by the Government on 1.7.2013 and that going by the Scheme, possession of a Post Graduate Degree in Engineering is mandated for promotion both to the post of Head of Section and that of Principal and that the petitioner had obtained his Post Graduate Degree from the Vinayaka Mission University, Salem by open/distance education mode. It is stated that the AICTE had issued a communication dated 26.4.2019 withdrawing the Engineering degrees awarded through distance education mode and such degrees stood recalled. It is therefore contended that the petitioner did not have the minimum qualification required for appointment as Principal and therefore, the prayers in the writ petitions cannot be granted. 13. The petitioner has filed reply affidavit producing Ext.P5 Post Graduate Degree acquired by him from the Vinayaka Mission University, which does not show that it was acquired through open/ distance mode and it is contended that the petitioner's post graduate degree acquired in July, **WP(C).No.20910 OF 2015 and con. cases** **14** 2007 was a regular degree and the contentions are raised only to defeat the legitimate claims of the petitioner. 14. In W.P.(C) No.27035/2015, a detailed counter affidavit has been filed by the 2[nd] respondent, Director of Technical Education. It is stated that the petitioner had undergone B.Tech Degree in Electronics and Communication during the period 1997-2001 at the College of Engineering, Thiruvananthapuram under the University of Kerala. It is stated that it was a part time regular evening course. It is stated that the petitioner could not have undergone the said course without availing proper leave or permission for that purpose and without detriment to his normal duty. It is stated that on coming to know of this, the Director of Technical Education had directed the Manager to conduct an enquiry and appropriate disciplinary action against the petitioner as per the provisions contained in the rules. The communication dated 23.8.2015 is produced as Ext.R2(a). The contention that the petitioner had availed a No Objection Certificate from the management is disputed and it is contended that the petitioner had undergone the course without availing study leave for the purpose. The 426 days of leave availed by the petitioner on personal grounds and medical grounds are detailed in the **WP(C).No.20910 OF 2015 and con. cases** **15** counter affidavit and it is contended that the action of the petitioner in pursuing and completing a course in Engineering without proper authorisation and without availing leave for that purpose is a serious misconduct. Respondents 4 and 5 have also filed counter affidavit and an additional counter affidavit on similar lines. A reply affidavit has been submitted by the petitioner relying on the leave applications produced alongwith the writ petition seeking leave for undergoing B.Tech course and contending that the applications were duly forwarded to the official respondents for orders. It is contended that when study leave was not sanctioned, the petitioner had availed eligible leave and completed his studies without causing any hindrance to his duties. 15. In W.P.(C) Nos.1431/2016 and 12746/2016 also, counter affidavits are filed by the respondents justifying the disciplinary proceedings against the petitioner and the promotion granted to the 6[th] respondent. 16. The learned counsel appearing for respondents 4 and 5 submits that it was on the basis of the directions issued by the Director of Technical Education that action had been initiated against the petitioner for grievous misconduct committed by him, which was noticed only later. It is stated **WP(C).No.20910 OF 2015 and con. cases** **16** that leave for study purposes has to be sanctioned by the Director of Technical Education and not by the Manager. It is submitted that the petitioner had never sought for or availed leave for study purposes and no such leave was ever sanctioned to him. On the contrary, the petitioner had availed 426 days of leave on personal, medical and other grounds and claims to have pursued and completed his B.Tech education on the basis of leave so availed. It is stated that apart from stating that the initiation of the disciplinary proceedings is belated, the petitioner has no satisfactory explanation to offer for his admitted misconduct in having drawn salary from the institution for periods when he was pursuing his education at Thiruvananthapuram. It is submitted that the petitioner had been reinstated in service on 29.6.2016 and he had retired from service on 30.3.2020. It is stated that the 6[th] respondent had been appointed as Principal after a due selection committee considered the case of the incumbents and that the said appointment also stood approved by the Director of Technical Education. It is further contended that the disciplinary proceedings could not be completed only due to the interdictory orders passed by this Court and that nothing survives for consideration in these writ petitions at this **WP(C).No.20910 OF 2015 and con. cases** **17** distance of time. It is further contended that the petitioner's M.Tech degree acquired in 2005-'07 was through distance education and that the petitioner would not be eligible for promotion as Principal. 17. The learned Government Pleader supports the contention that it was on the basis of a letter issued by the Director of Technical Education that the order of suspension was served on the petitioner. It is further contended that the selection committee had considered the incumbents for promotion to the post of Principal and the 6[th] respondent had been promoted after a full fledged selection process. It is contended that the misconduct committed by the petitioner had come to the notice of the Director of Technical Education only in 2015 and that was the reason for the delay in initiating the disciplinary proceedings. 18. I have considered the contentions advanced on all sides. The basic question to be decided is with regard to the disciplinary proceedings initiated against the petitioner after a delay of more than 14 years. It is not in dispute that the petitioner had undergone B.Tech course during the period 1997-2001. It appears that he had not availed study leave for the purpose or obtained any written permission for the **WP(C).No.20910 OF 2015 and con. cases** **18** purpose of joining at the Government Engineering College, Thiruvananthapuram. However, it is a fact that he had been permitted to join in the college and the qualification acquired by him had been duly endorsed in his service book. It appears that there was no allegation raised at the relevant time. From going through the pleadings, it appears that it was for the first time in August 2015 that the issue was raised, apparently on a letter issued by the Director of Technical Education. Immediately thereafter, an order of suspension had been issued on 1.9.2015 and a memo of charges was also served on the petitioner. On an anxious consideration of the entire records in the case, I find that there is no plausible explanation forthcoming for the inordinately long delay in initiating the disciplinary proceedings against the petitioner. 19. In **State of M.P.** v. **Bani Singh and another,** the challenge was against initiation of departmental enquiry proceedings by issue of a charge sheet on 22.4.1987 in respect of incidents that happened in 1975-1976. The Apex Court found that the irregularities had taken place between the years 1975 and 1977. It was not the case of the department that they were unaware of the irregularities or that they came to know only in 1987. It was held that there was no **WP(C).No.20910 OF 2015 and con. cases** **19** satisfactory explanation for the inordinate delay in issuing the charge memo and that it would be unfair to permit the departmental enquiry to be proceeded with after such a long delay. It was held that the denial of promotion at a stage where a disciplinary proceedings had only been initiated was completely untenable and that the proper procedure would have been to consider the delinquent employee as well and adopt a sealed cover procedure by which the employee would get the benefit if the proceedings ended in his favour. 20. In **State of A.P.** v. **N. Radhakishan,** it was held that there are no pre-determined principles applicable to all cases and all situations where there is delay in initiation or conclusion of disciplinary proceedings. In that case, the memo dated 31.7.1995 related to incidents that happened 10 years or more prior to the date of the memo and it was found that there was absolutely no justification for the inordinate delay. The Apex Court in paragraph 19 of the said judgment laid down thus :- “19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that **WP(C).No.20910 OF 2015 and con. cases** **20** case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.” 21. In **State of Punjab** v. **V. K. Khanna and others,** it **WP(C).No.20910 OF 2015 and con. cases** **==> picture [14 x 7] intentionally omitted <==** was categorically held that in the event there is an element of malice or mala fide involved in the matter of issue of a charge sheet or the authority concerned is so biased that the enquiry would be a mere farcical show, the courts would be justified in interfering at the earliest stage that is at the stage of framing of a memo of charges. 22. In **P. V. Mahadevan** v. **MD, T. N. Housing Board** also, the Apex Court held that the delay of 10 years in initiating disciplinary enquiry against an erring employee, in the absence of any proper explanation for the delay, would be vitiated. The respondents were interdicted from proceeding with the disciplinary enquiry, the charge memo itself was quashed by the Apex Court. 23. This Court also in **Vilasanadas Daniel** v. **District Collector** considered the effect of long delay in initiation of disciplinary proceedings and held that where there is no proper explanation for the delay in initiating disciplinary proceedings in time and where the employee is in no way responsible for the delay, the disciplinary proceedings which have been initiated after long years would be unsustainable. 24. In the instant case, if the petitioner is called upon to answer allegations with regard to events which occurred in **WP(C).No.20910 OF 2015 and con. cases** **22** 1997, it may be impossible to produce any documentary evidence of such events or to prove the petitioner's contentions due to efflux of time. The petitioner would be put to grave prejudice if the disciplinary proceedings are permitted to proceed after such a long lapse. Moreover, the petitioner has since retired from service without the disciplinary proceedings being finalized against him. 25. In the above view of the matter, I have no hesitation to hold, taking a cue from the decisions of the Apex Court as well as this Court, that the initiation of disciplinary proceedings after 14 years that too, without a clear explanation for the delay would be unsustainable. The order of suspension and the disciplinary proceedings initiated against the petitioner are therefore set aside. 26. The further question would be with regard to the promotion of the petitioner to the post of Principal. Though the petitioner had raised a claim for the post of Principal, it is quite clear that the post of Principal was a selection post. The petitioner has admittedly retired from service on 30.3.2020. In view of the fact that there were other claimants to the post at the relevant time and the petitioner was not the sole person eligible for appointment, I am of the opinion that the further **WP(C).No.20910 OF 2015 and con. cases** **23** direction to promote the petitioner to the post of Principal especially in view of the fact that a selection committee had considered the suitability of the incumbents for promotion and had passed orders of promotion would not be justified. At this distance of time, a direction to reconduct the selection by including the petitioner would also be unworkable. In the above view of the matter, the prayer of the petitioner for promotion to the post of Principal with effect from the date of arising of the vacancy is declined. The respondents shall grant all service benefits to the petitioner ignoring the order of suspension and the disciplinary proceedings initiated against him. The necessary shall be done within a period of two months from the date of receipt of a copy of this judgment. These writ petitions are ordered accordingly. **Sd/-** ## **ANU SIVARAMAN** ## **JUDGE** Jvt/9.11.2020 **WP(C).No.20910 OF 2015 and con. cases** **24** ## **APPENDIX OF WP(C) 20910/2015** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SPECIAL RULES DATED 8.11.2010** - **EXHIBIT P2 TRUE COPY OF THE SPECIAL RULES FOR THE KERALA TECHNICAL EDUCATION(PRIVATE ENGINEERING COLLEGES/POLYTECHNIC SERVICE)RULES 1975.** - **EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER DATED 27.3.2015** - **EXHIBIT P4 TRUE COPY FO THE LETTER DATED 20.05.2015** - **EXHIBIT P5 TRUE COPY OF THE LETTER DATED 19.01.2011** - **EXHIBIT P6 TRUE COY OF THE LETTER DATED 26.5.2015** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 27.5.2015** - **EXHIBIT P8 TRUE COPY OF THE RELINQUISHMENT LETTER DATED 18.2.2015 SUBMITTED BY ONE NAINA MUHAMMED BASIL.** - **EXHIBIT P5 TRUE COPY OF THE CERTIFICATE ISSUED BY VINAYAKA MISSIONS UNIVERSITY DATED 20.09.2009 PERTAINING TO THE PETITIONER.** - **EXHIBIT P9 TRUE COPY OF THE NOTIFICATION DATED 20.1.2016** - **EXHIBIT P5 TRUE COPY OF THE CERTIFICATE ISSUED BY VINAYAKA MISSIONS UNIVERSITY DATED 20.09.2009 PERTAINING TO THE PETITIONER.** ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R4(a) TRUE COPY OF THE LETTER DATED 20/07/2015** **EXHIBIT R4(b) TRUE COPY OF THE PROCEEDINGS.** **EXHIBIT R4(c) TRUE COPY OF THE APPOINTMENT ORDER DATED 4/2/2016 APPOINTING THE 6TH RESPONDENT AS PRINCIPAL OF THE COLLEGE.** **WP(C).No.20910 OF 2015 and con. cases** **25** **EXHIBIT R4(d) TRUE THE APPOINTMENT IS APPROVED BY THE JOINT DIRECTOR, REGIONAL DIRECTORATE OF TECHNICAL EDUCATION, KOZHIKODE DATED 25/02/2016.** **EXHIBIT R4(b) TRUE COPY OF THE COMMUNICATION DATED 26/4/2019. EXHIBIT R2(a) TRUE COPY OF THE SENIORITY LIST. EXHIBIT R2(b) TRUE COPY OF ORDER No.E2/409/2015/DTE DATED 01.09.15 OF CHAIRMAN.** **WP(C).No.20910 OF 2015 and con. cases** **26** ## **APPENDIX OF WP(C) 27035/2015** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 1.9.2015 ISSUED BY THE 5TH RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE TABLE OF LEAVE AVAILED.** **EXHIBIT P3 TRUE COPY OF THE B.TECH DEGREE CERTIFICATE IN ELECTRONICS AND COMMUNICATIONS OBTAINED BY THE PETITIONER.** **EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED 19.1.2002. EXHIBIT P5 TRUE COPY OF THE RELEVANT PART OF THE SERVICE BOOK PERTAINING TO THE PETITIONER.** **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P7 TRUE COPY OF THE MEMO DATED 14.9.2015. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 4.9.2015 EXHIBIT P9 TRUE COPY OF THE LETTER DATED 28.1.1997. EXHIBIT P10 TRUE COPY OF THE RELEVANT PART OF LEAVE APPLICATION.** **RESPONDENTS' EXHIBITS:** **EXHIBIT R2(a) : TRUE COPY OF THE COMMUNICATION DATED 23.08.2015.** **EXHIBIT R2(b) : TRUE COPY OF THE COMMUNICATION DATED 04.09.2015.** **EXHIBIT R2(c) : TRUE COPY OF THE GRADATION LIST.** **WP(C).No.20910 OF 2015 and con. cases** **27** ## **APPENDIX OF WP(C) 1431/2016** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE ORDER ATED 1.9.2015 ISSUED BY THE 5TH RESPONDENT** - **EXHIBIT P2 TRUE COY OF THE MEMO DATED 14.9.2015** - **EXHIBIT P3 TRUE COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DATED 30.10.2015** - **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 31.10.2015 ISSUED BY THE PRINCIPAL IN CHARGE, SEETHI SAHIB MEMORIAL POLYTECHINIC COLLEGE, TIRUR.** - **EXHIBIT P5 TRUE COPY OF THE EXPLANATION DATED 20.11.2015 SUBMITTED BY THE PETITONER** - **EXHIBIT P6 TRUE OCPY OF THE MEMO DATED 30.12.2015** - **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 28.1.2997 SUBMITTED BY THE PETIITONER BEFORE THE 5TH RESPONDENT** - **EXHIBIT P8 TRUE OCPY OF THE APPLICATION FOR LEAVE DATED 28.1.1997 SUBMITTED BY THE PETITONER** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R4(a) : TRUE EXTRACT OF RULE 37 OF KERALA TECHNICAL EDUCATION (PRIVATE ENGINEERING COLLEGES/POLYTECHNICS) SERVICE RULES, 1975.** **EXHIBIT R2(a) : A TRUE COPY OF THE COMMUNICATION DATED 04.09.2015.** **WP(C).No.20910 OF 2015 and con. cases** **28** ## **APPENDIX OF WP(C) 12746/2016** ## **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF THE APPOINTMENT ORDER PERTAINING TO THE 6TH RESPONDENT.** **EXT.P2: TRUE COPY OF THE LETTER DATED 19.1.2011.** **EXT.P3: TRUE COPY OF THE LETTER DATED 29.5.2015.** **EXT.P4: TRUE COPY OF THE RELINQUISHMENT LETTER DATED 18.2.2015 SUBMITTED BY SMT.NAINA MUHAMMED BASIL.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R4(a) : TRUE COPY OF THE ERRATUM ORDER ISSUED BY THE GOVERNMENT.** **EXHIBIT R4(b) : TRUE COPY OF THE COURSE SANCTION GOVT. ORDER DATED 1/6/1988.** **EXHIBIT R4(c) : TRUE COPY OF THE GOVT. ORDER DATED 18/03/1996.** **EXHIBIT R4(d) : TRUE COPY OF THE APPROVAL OF APPOINTMENT AS PRINCIPAL OF THE 6TH RESPONDENT.**