Principal, St. Joseph's College, Moolamattom v. Mahatma Gandhi University and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **FRIDAY, THE 16TH DAY OF AUGUST 2019 / 25TH SRAVANA, 1941** ## **WP(C).No.15779 OF 2019(V)** ## **PETITIONER/S:** **PRINCIPAL ST. JOSEPH'S COLLEGE, MOOLAMATTOM, ARAKULAM P.O., IDUKKI - 685 591.** **BY ADVS. SRI.BABY ISSAC ILLICKAL SRI.ISAAC KURUVILLA ILLIKAL** ## **RESPONDENT/S:** |**1**|**MAHATMA GANDHI UNIVERSITY**| |---|---| ||**REPRESENTED BY ITS REGISTRAR, PRIYADARSINI HILLS,**| ||**KOTTAYAM - 686 560.**| |**2**|**THE VICE CHANCELLOR**| ||**MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS,**| ||**KOTTAYAM - 686 560.**| |**3**|**BOARD FOR ADJUDICATION OF STUDENT GRIEVENCES**| ||**REPRESENTED BY ITS CHAIRMAN -VICE CHANCELLOR,**| ||**MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS,**| ||**KOTTAYAM - 686 560.**| |**4**|**SHIYAS ISMAIL**| ||**ALACKAL HOUSE, EDAVETTY P.O., THODUPUZHA, IDUKKI -**| ||**686 588.**| |**5**|**TOMMICHAN JOSEPH (SYNDICATE MEMBER)**| ||**MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS,**| ||**KOTTAYAM - 686 560.**| **R1 BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY R4 BY ADV. SRI.PHILIP T.VARGHESE R4 BY ADV. SRI.THOMAS T.VARGHESE R4 BY ADV. SMT.ACHU SUBHA ABRAHAM R4 BY ADV. SMT.V.T.LITHA R4 BY ADV. SMT.K.R.MONISHA R4 BY ADV. SMT.SHRUTHI SARA JACOB R4 BY ADV. SMT. NITYA R.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.07.2019, THE COURT ON 16.08.2019 DELIVERED THE FOLLOWING:** ## **P.V.ASHA, J.** ## **W.P.(C) No.15779 of 2019** ## **Dated this the 16[th] day of August, 2019** ## **JUDGMENT** The Principal of St.Joseph's College, Moolamattom has filed this Writ Petition aggrieved by Ext.P24 order passed by the 1[st] respondent by which the order dismissing the 4[th] respondent from the college was set aside and 4[th] respondent was allowed to appear in all the examinations, based on the decision of the syndicate accepting the findings of the Board of Adjudication of Students' Grievances. 2. Petitioner had dismissed the 4[th] respondent who was a 2[nd] year B.Com Student and the College Union Chairman as per Ext.P16 order dated 29.03.2019. The order of dismissal was issued referring to the enquiry commission reports dated 28.02.2019 and 15.03.2019 and show cause notices dated 27.02.2019, 07.02.2019 and 20.03.2019, for the following misconduct and criminal activities in the college campus: W.P.(C) No.15779/19 :3: _1. Conducting unauthorised program in the college auditorium on college day (21.02. 2019) without of attaining due permission from the principal and the management, besides the specific prohibition from the Principal_ _2. Attacking one student of St Joseph's Academy of Higher Education and Research_ _3. Attaking other students during Sports Day in the college ground_ _4. Damaging the properties of the college auditorium 5. Threatening and insulting the College Principal on 2 occasions at his chamber on 05.10. 2018 and 21. 02. 2019_ _6. Threatening and insulting the college bursar in front of his residence on 20.02. 2019 at 8:50 PM_ _7. Failed to submit reply to the suspension order dated 20.03. 2019_ _8. Failed to submit genuine reply to show cause notices dated 27. 02. 2019 and 07. 03. 2019'_ _9. Being the Chairman of the college union, you were expected to behave as a role model in the campus On the contrary you have been engaging in various misconduct and criminal activities including physical assaults in the campus._ **==> picture [396 x 12] intentionally omitted <==** respondent has been consistently involving in various grave and mischievous incidents in the college campus last year. It is stated that the enquiry committee recommended his dismissal after enquiring into various complaints against him and dismissal was ordered based on the recommendation of the enquiry committee. The petitioner has stated the details of complaints received against the 4[th] respondent. It is stated that W.P.(C) No.15779/19 :4: the Principal received Ext.P1 complaint from one Burhan Hussain Rawther, a 2[nd] year B.Com student on 05.10.2018 complaining that 4[th] respondent abused, assaulted and attacked him with deadly weapons without any provocation from him. He requested to take action. It was followed by Ext.P2 complaint dated 08.10.2018, from the father of that student pointing out the inaction of the college saying that it was the 3[rd] attack on his son by the very same person. It is stated that when the petitioner questioned the 4[th] respondent on the incident, he threatened the Principal and verbally assaulted him in front of other teachers. In the meanwhile staff council met on 06.10.2018 and discussed about Ext.P1 complaint and the incidents on 05.10.2018. As per Ext.P3 minutes an enquiry committee was constituted to enquire into it. It was also decided to call the parents of 4[th] respondent who threatened the petitioner. However the complainant did not appear before the enquiry committee, despite notice and therefore the enquiry was closed as per Ext.P4 report. It is stated that the parents of the 4[th] respondent W.P.(C) No.15779/19 **==> picture [12 x 8] intentionally omitted <==** appeared before the Principal and tendered apology for the incident occurred at the instance of the 4th respondent. It is stated that the staff council which met on 22.10.2018 decided to ban birthday celebrations in the college. It is stated that the 4[th] respondent tendered apology for his misbehavior towards the Principal. 4. It is stated that on the sports day held on 08.02.2019 there were clashes between groups of students using abusive language, shouting, threatening, kicking, etc, in which 4[th] respondent along with others were involved. In the enquiry report Ext.P6 dated 28.02.2019 it was found that the 4[th] respondent admitted the allegation that he was a culprit in the incident and that he gave a statement in writing. It was found that one Renjith K.S. a student of St.Joseph Academy of Higher Education was seized by the 4[th] respondent on the public road in front of the college and he was beaten up mercilessly and this incident was acknowledged by 4[th] respondent and one Kiran and they had given statement admitting their active involvement W.P.(C) No.15779/19 **==> picture [12 x 8] intentionally omitted <==** in it. It was stated that the same student was again beaten up by the very same accused persons on an issue of destroying their flag pole. It was stated that several teachers and students were witnesses to those incidents. In the report the commission recommended to take severe disciplinary action against those who became unworthy of being a student due to their criminal activities. It was also recommended that the Staff Council may take precautionary measures to see that such incidents are not repeated. Thereupon petitioner issued Ext.P7 show cause notice dated 07.03.2019 calling for explanation of the 4[th] respondent against the proposal to take disciplinary action against him based on the findings of the enquiry commission with respect to the brutal assault and attack on Sri.Renjith K.S. The 4[th] respondent submitted Ext.P8 reply on 14.03.2019 stating that he had interfered in the matter as Union Chairman. According to him he had deleted the video from the phone of Renjith. He stated that there are no complaints for the students on the incident on 08.02.2019 and therefore W.P.(C) No.15779/19 :7: there was no reason for issuing a notice to him. According to the petitioner, the 4[th] respondent admitted his involvement in the clashes which occurred on the Sports Day. 5. Yet another incident involving the 4[th] respondent occurred during the college day celebrations, held on 21.02.2019. It is stated that the 4[th] respondent organised a Disc Jockey (DJ) program in the auditorium, with outsiders, without prior permission of the Principal. It is stated that the State Government has prohibited DJ programme in the campus and that the petitioner had specifically directed the 4[th] respondent not to organise DJ programme and not to bring the DJ and his team, who are outsiders, inside the campus; petitioner himself informed the DJ and his team about the prohibition; at the request of petitioner and Manager the Sub Inspector of Police, Kanjar Police Station had informed the DJ team not to enter the college campus; but the 4[th] respondent along with his men, brought the DJ and his team to the auditorium and closed the doors of the W.P.(C) No.15779/19 **==> picture [12 x 8] intentionally omitted <==** auditorium and convened the programme. He caused very serious damages to the auditorium, stage as well as curtain worth thousands of Rupees, as a protest against the petitioner and the management. He abused the petitioner and threatened him when explanation was sought. The Staff Council which met on 26.02.2019, in connection with this incident, as per Ext.P9 minutes decided to issue show cause notices to all the members of the College Union and their parents for conducting the DJ event without the consent of the Principal and to constitute an enquiry commission to enquire into it. It is stated that Ext.P11 complaint was filed on 01.03.2019 before the Police Station against the DJ and his team. Show cause notices were issued; 4[th] respondent in Ext.P12 statement given before the enquiry committee on 11.03.2019 admitted that he received notice from the petitioner not to conduct DJ event. In Ext.P14 enquiry report dated 15.03.2019, the office bearers of the Union appeared and they stated that they did not conduct any DJ party; it was only a music programme. The enquiry committee found that even W.P.(C) No.15779/19 **==> picture [12 x 8] intentionally omitted <==** after the Principal, had after the function in the morning session publicly announced that programme was over and requested everyone to quit the auditorium, the programme was conducted in the auditorium without permission of the Principal. The Commission found that the office bearers of the college union were responsible for the conduct of the programme without permission of Principal and that it was not necessary to go into the question whether it was DJ party or music party. It was found that conducting a programme without permission of Principal and violating the direction of the Principal are serious offences affecting the discipline and well being of the institution. It was recommended that proper disciplinary action shall be taken against all the office bearers of the College Union mentioned in the report except the one who was absent on 21.02.2019. It is stated that the 4th respondent was found to be one causing troubles in the campus continuously despite repeated warnings; therefore Petitioner thereafter issued Ext.P14 notice on 20.03.2019 to the 4[th] W.P.(C) No.15779/19 :10: respondent placing him under suspension from 21.03.2019 and seeking genuine reply against the proposal to take action against him. The offences found to have been committed by him were: _1. Conducting unauthorised program in the college auditorium on college day without of obtaining due permission from the Principal and the management, besides the specific prohibition from the Principal 2. Attacking one student of St Joseph's Academy of Higher Education and Research_ _3.Attaking other students during Sports Day in the college ground_ _4. Damaging the properties of the college auditorium_ 6. The 4[th] respondent did not submit any reply. Thereafter the staff council which met on 27.03.2019 unanimously decided to dismiss the 4[th] respondent from the college, as per Ext.P15 minutes, in view of the findings in various enquiry reports on his misconduct and his involvement in criminal activities and taking note of the fact that he did not submit explanation to the memo of suspension and show cause notice. It was also decided to get unconditional apology from other members of the Union and issue TC in case they did not submit the same. Ext.P16 dismissal order was issued thereupon on 29.03.2019 to the 4[th] respondent on the ## W.P.(C) No.15779/19 **==> picture [17 x 8] intentionally omitted <==** recommendation of the college staff council. It is stated that intimation with respect to the dismissal was given to his parents and syndicate of the University. It is stated that Ext.P17 report of dismissal of 4[th] respondent was forwarded to the University on 02.05.2019 and Ext.P17(a) report to the syndicate on 11.05.2019 along with the transfer certificate of the 4[th] respondent. 7. While so the petitioner received-Ext.P18 letter dated 12.04.2019 from the University informing that a preliminary enquiry would be conducted into the complaint received from the 4[th] respondent against his dismissal. By Ext.P18 letter the University informed that the 2[nd] respondent had entrusted the 5[th] respondent, a member of the syndicate, for conducting preliminary enquiry on the complaint dated 01.04.2019 of the 4[th] respondent as required under statute 5 chapter 27 of the MG University Statutes, by exercising his powers under Section 10(17) of Chapter 3 of the MG University Act, 1985. Petitioner has stated that though a notice was received, the copy of the complaint W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** alleged to have been submitted by the 4[th] respondent before the grievance cell was not forwarded to him. 8. The 1[st] respondent thereafter issued Ext.P19 letter informing that a preliminary enquiry would be conducted in the syndicate hall on 24.04.2019 on the complaint dated 16.03.2019 of the 4[th] respondent. Petitioner submits that when he appeared for the preliminary enquiry, he had informed the 5[th] respondent that he had no authority to conduct the same. It is stated that though he informed the 5[th] respondent that copy of the complaint was not furnished to him, the 5[th] respondent did not take any action to furnish the same and therefore petitioner was not in a position to submit any written statement or produce any material against the complaint of the 4[th] respondent. On 03.05.2019 petitioner received a copy of Ext.P22 preliminary enquiry report dated 27.04.2019 submitted by the 5[th] respondent, which according to the petitioner was highly biased in favour of the 4[th] respondent, without even referring to any of the statement of the petitioner. It is stated that on the W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** very same day on 03.05.2019 petitioner received a letter dated 02.05.2019 directing him to appear before the Board on 04.05.2019 for hearing the complaint dated 01.04.2019 of the 4[th] respondent. It is stated that along with that letter petitioner received Ext.P21 letter dated 30.03.2019 of the 4[th] respondent addressed to one Nikhil, University Union Chairman and did not get any complaint addressed to the Board of Adjudication of Students Grievance. However petitioner appeared before the Board on 04.05.2019. Petitioner submits that he thereafter submitted objection dated 10.05.2019 before the 2[nd] respondent and the Chancellor, pointing out the irregularities in conducting the enquiry. Whileso petitioner received Ext.P24 order of the 1[st] respondent revoking the dismissal ordered by the petitioner. In Ext.P24 it was stated that the Vice Chancellor ordered to place the findings of the Board before the syndicate and that in the light of the finding of the BASG that the dismissal was ordered in violation of the Rules of University and without sufficient reasons, the syndicate decided to W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** cancel the dismissal and to permit the complainant to appear in all the examinations. The findings arrived at by the Board, as stated in Ext.P24 were the following: _(1)in the meeting of college council held on 11.02.2019 when the present Pincipal was Union Adviser, it was decided to conduct DJ music programme on the college day, when DJ Programme was prohibited in college campuses as per circular dated 12.10.15 of the Higher Education Department and though there was sufficient time, the office bearers of the college Union were not informed of the same, in writing_ _2. Principal could not prove the allegation of assault committed by complainant_ _3. Principal did not produce video clipping, as claimed, to show that complainant insulted the Principal. Principal failed to produce any evidence to show that Banzar was abused or threatened;_ _4. Using the curtain of the auditorium in order to prevent short circuit during music programme cannot be considered as destruction of the college properties;_ _5. Suspension was ordered after one month of incident; though suspension is not punishment, it is clear from the statement of the Principal that suspension was ordered as punishment._ _6. Complainant was dismissed without following Ordinance 1(8) of Chapter III of Kerala University 1[st] Ordinance 1978. The parents of the student or the syndicate are not given intimation of dismissal along with reasons and the transfer certificate is not forwarded to the syndicate_ ## 9. The contention of the petitioner is that the procedure followed by the respondent University suffers from violation of the principles of natural justice. According to him, the complaint based on which the 3[rd] respondent Board initiated proceedings or the report of W.P.(C) No.15779/19 :15: the 3[rd] respondent was not furnished; the Board did not also call for the views of the petitioner. It is pointed out that a preliminary enquiry contemplated under statute 5 of Chapter 27 was to be conducted by the Vice Chancellor himself and that power cannot be delegated to a member of the Syndicate – the 5[th] respondent and it is in violation of statute 10(17) of chapter 3 of the University Statutes 1997. According to the petitioner, being the ex-officio chairman of the 3[rd] respondent board, Vice Chancellor himself should have conducted the preliminary enquiry and that the Vice Chancellor is not empowered to delegate his power under Statute 5 of Chapter XXVII; emergency powers under sec.10(7) of Chapter 3 of the MG University Act, 1985, was not liable to be invoked for such delegation; powers conferred on him under sec.10(17) can be exercised only when the syndicate or academic council is absent and it cannot extend. to any of his powers including that of the ex-officio chairman of the statutory body. It is also his contention that the report is highly biased without taking note of any of ## W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** the contentions of the petitioner. It does not also take into account the answers given by the petitioner and even his statements are not recorded in the preliminary enquiry report. It also does not look into the reports of the enquiry committees against the 4[th] respondent. It is pointed out that even after the 4[th] respondent had admitted the commission of assault as seen from the enquiry report, 3[rd] respondent did not even consider the same. It is also stated that the Board has arrived at conclusions on aspects which the 4[th] respondent did not raise. It is also his contention that the University or the Board does not have any right to interfere with the authority of the petitioner college which is a minority educational institution protected under Article 30(1). According to the petitioner, the presence of the 4[th] respondent would be detrimental to the interest of the institution as well as to the discipline and peaceful atmosphere. 10. The University has filed a statement on behalf of the 1[st] respondent. It is stated that the petitioner had admitted before the Board of Adjudication that the W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** suspension was given as a punishment; the college had violated ordinance 1(8) of Chapter III of the Kearla University First Ordinance, 1978 as it had submitted Ext.P17(a) report of dismissal and P17(b) Transfer certificate only on 24.05.2019 whereas Ext.P17 order of dismissal was submitted before the 3[rd] respondent on 04.05.2019; the only complaint dated 30.03.2019 submitted by 4[th] respondent on 01.04.2019 was given to the petitioner on 12.04.2019; the reference to the date of complaint as 16.03.2019 is clerical mistake; the Vice Chancellor exercised his powers under section 10(17) of the University Act deputing a member of the syndicate for enquiry and that member of the syndicate heard the petitioner; the Vice Chancellor delegated his power under statute 5 of chapter 27 of the MG University Statutes; the preliminary enquiry provided under statute 5 of chapter 27 of the MG University Statute 1997 is intended only to ascertain the maintainability of the complaint before the Board; DJ programs are banned in college campuses by the Higher Education Department as per circular dated 12.10.2015; W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** such a program was conducted in the college on the union inauguration day before the college day celebrations when the petitioner in his capacity as the staff adviser was very much present in the meeting which planned water drum DJ program; in case petitioner had exercised due diligence the unfortunate incidents would have been averted. 11. The 4[th] respondent in his counter affidavit stated that he has not committed any misconduct warranting extreme punitive action of dismissal. His contention is that the order of dismissal is passed without following the principles of natural justice; a decision to dismiss him was taken without any deliberation in the staff council and without considering his explanation; in the order of dismissal more allegations were raised that what was contained in the memo of charges; the present Principal was the staff adviser who attended the meeting in which it was decided to conduct DJ program; the 4[th] respondent stated that his academic record is good and he has got regular attendance; there had not been any serious W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** incidents/breach of peace in the campus, during his union chairmanship in 2018-19; in the meeting of the College Union held on 11.02.2019, the present Principal who was the staff adviser did not raise any objection against the decision to conduct music program with water drums and DJ on the college day; there was no untoward incident on the college day; he was informed that there was no prior permission from the college management for the college day celebrations only on 25.02.2019; the allegation as against his involvement in unauthorized program in the college auditorium is baseless; there was no prohibition for the same from the Principal; the allegation as to the attack against Sri.Renjith, student of St.Joseph's College and also other students were vague without furnishing any details; such allegations were not raised in Ext.P7 show cause notice, which was issued in respect of incidents occurred on sports day; he could avert further attacks by his intervention in the scuffle between two batches of students during the tug of war on the sports day; he had only asked Mr.Renjith, who W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** was video-graphing the scuffle between the students of the college to remove the video; the students did not have any complaint over the matter; the curtain from the auditorium was removed by some students who were near the stage apprehending that the excess water flow from the water drums might cause electrical short circuit and curtains were used for wiping of the water; he was not involved in taking out of the curtain or wiping off the water; show cause notice in respect of incidents occurred on the sports day on 8.2.2019, was issued only after the college day celebrations; no enquiry was conducted after he submitted his explanation -Exts.P8 to Ext.P7 show cause notice; there was no allegation regarding insulting of the Principal either in the show cause notice Ext.P7 or in Ext.P10; in the enquiry report Exts.P4, P6 and P13 there is no reference to such an allegation; the allegation that he threatened College Bursar also did not find any place in the enquiry report; it is by way of an after thought; order of dismissal was issued without conducting any further enquiry; action was taken W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** against him alone; in the light of Exts.P8 and P12 explanations submitted by him a further explanation to the suspension was not considered necessary; no statement was taken from any witnesses before he was dismissed from the college; the order of dismissal is issued in violation of the procedure; as a result of dismissal he would be unable to continue his studies after the two years of his degree course. Denying the allegation that he is involved in criminal activities and various activities including physical assaults he has stated that such allegations are made to project him as an unwanted person in the campus. 12. The petitioner has filed reply affidavits in answer to the counter affidavit filed by the 1[st] respondent as well as the 4[th] respondent. According to them staff adviser is only an ex-officio member of the teaching staff and therefore the presence of the staff adviser in a meeting would not mean that his personal opinion had any bearing on the final decision. It is stated that disciplinary proceedings were taken against the 4[th] respondent for conducting the DJ music function W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** despite the denial of permission for the same by the then Principal. It is stated that under ordinance 1(8), chapter III of the Kerala University First Ordinance, 1978 no time frame is given within which the intimation regarding expulsion of students is to be given to the University. According to the petitioner the intimation is to be given forthwith only to parent or guardian of the student. It is stated that copy of the complaint was given only at the time when Ext.P20 was issued. Pointing out that preliminary enquiry as well as all other proceedings were issued referring to a complaint dt.16.03.2019 of 4[th] respondent petitioner points out that such a complaint was not at all given and there cannot be any such mistake in all these communications. It is pointed out that Ext.P12 would show the admission made by the 4[th] respondent. 13. In the reply affidavit in answer to the counter affidavit of the 4[th] respondent petitioner has produced Exts.P25 and 25(a) complaints dt.11.2.2019 and 15.02.2019 received from Sri.K.S.Renjith against the 4[th] respondent. It is stated that the college had W.P.(C) No.15779/19 :23: approached the Station House Officer, Kanjar on 21.02.2019 requesting for police protection apprehending violence during college day celebration. The then Principal had ordered not to conduct DJ music event and intimation was given to all the members of the college union which the 4[th] respondent had admitted in Ext.P12. The 4[th] respondent conducted the event despite the prohibitory order of the Principal. Producing Ext.P27 deposition it is stated that the involvement of the 4[th] respondent in the scuffle and attack on the students of St.Josephs's academy was clear and the 4[th] respondent did not have any objection against the enquiry. It is stated that the enquiy commission had submitted its report with respect to the incidents on 08.02.2019 on 28.02.2019 and with respect to the college day on 15.3.2019. Pointing out Ext.P28 minutes of the college council referring to the insulting of the then Principal it is pointed out that the 4[th] respondent had tendered his apology to the then Principal publicly and thereafter he repeated the same incident on 21.02.2019 which is clear from the CCTV ## W.P.(C) No.15779/19 :24: cameras. It was pointed out that 4[th] respondent did not have any complaint against the enquiry conducted by 5 senior teachers of College. According to the petitioner the order of dismissal was issued in order to enforce discipline in the college. Pointing out the FIR registered against the 4[th] respondent it is pointed out that the 4[th] respondent is involved in several criminal activities outside the college campus also. 14. The contention of the 4[th] respondent is that the order of dismissal is on an after thought and additional charges are included in the order of dismissal. It is pointed out that Ext.R4(b) does not have any reference to Exts.P25, 25(a) or 26. It is also their case that charges 5 and 6 referred to in the order of dismissal are not covered by the memos. 15. I heard Sri.Isaac Kuruvila, the learned Counsel appearing for the petitioner, Sri. Asok M. Cheriyan, the learned Standing Counsel for the University and Sri.Philip T. Varghese for the 4[th] respondent. ## 16. Relying on _**Marathwada University V (1989) 3**_ W.P.(C) No.15779/19 :25: _**SCC 132 Hukum Chand Shyamlal V Union of India: AIR 1976 SC 789, Manager, St. Dominic College,**_ _**Kanjirappilly: 2016 (4) KHC 69,**_ etc, the learned Counsel for the petitioner argued that the preliminary enquiry conducted by the 5[th] respondent is without authority and hence the entire proceedings leading to Ext.P24 order are liable to be set aside. Relying on the judgment in _**Manu Vilson V Sree Narayana College:1996(1)KLT 155: 1996 KHC 155**_ **,** it was argued that the syndicate does not have any authority to interfere with the action of the Principal in maintaining discipline. Relying on the judgment dated 11.07.2019 of the Apex Court in Civil Appeal No.6183 of 2010, it was argued that the standard of proof required in matters relating to disciplinary action against the students in the Colleges, is of preponderance of probabilities only. 17. On the other hand the learned Counsel for the 4[th] respondent relied on _**National Insurance Company Ltd V Laxmin Narain Dhut: (2007) 3 SCC 700**_ and argued that the provisions under Statute 5 of Chapter 27 of the ## W.P.(C) No.15779/19 :26: first statute has to be construed adopting purposive interpretation and that the order of dismissal was passed in violation of principles of natural justice. 18. The respondent University justifies the delegation under Section 10(17) of MG University Act. Therefore it is necessary to examine statute 5 of Chapter XXVII of the MG University Statute 1997 and Section 10(17) of the University Act which read as follows: _“10(17).If at any time, except when the Syndicate or the Academic Council is in session, the Vice Chancellor is satisfied that an emergency has arisen requiring him to take immediate action involving the exercise of any power vested in the Syndicate or the Academic Council by or under this Act, the Vice Chancellor may take such action as he may deem fit and shall at the next session of the Syndicate or the Academic Council report the action taken by him to that Authority for such action as it may consider necessary and that the authority may after considering the action taken by the Vice Chancellor is of the view that such action shall not have been taken by him, refer the matter to the Chancellor whose decision thereon shall be final.”_ ## 19. Thus it can be seen that the power of Vice Chancellor under Section 10(17) is one which empowers him to act in emergent situations, in the place of Syndicate or Academic Body of the University in their absence. That power and his power as the Chairman ## W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** of a statutory body are entirely distinct and different. In order to consider the question whether he can delegate his power as Chairman of the Board of Adjudication, Section 10(17) is absolutely irrelevant. Even the power under Section 10(17) cannot be delegated. Chapter 27 of M.G.University Statutes, 1997 deals with Board for Adjudication of Student Grievances (hereinafter referred to as 'the Board'). Statute 1 deals with the constitution of the Board to entertain, adjudicate and redress any grievance of the students of colleges otherwise than by act of the Court. Statute 2 provides that the Board shall consist of the Vice Chancellor as Chairman, the Dean of students, 3 members of whom one shall be Principal of a college nominated by the Vice Chancellor from among members of the Syndicate, the Chairman of University Union if any, two Chairman of the College Unions nominated by the Vice Chancellor, two members of whom one shall be a Principal of College nominated by the Vice Chancellor from among the members of the Academic Council and the Registrar. Statue 5 reads as follows: W.P.(C) No.15779/19 :28: _**“Receipt and entertainment of complaints: complaints shall ordinarily be sent to Chairman through the University Union or the Principal of the College concerned. As soon as the Chairman receives a complaint seeking redressal of a grievance to the students or Colleges, he shall conduct a preliminary enquiry and if he finds it necessary he shall place it before the Board. The Board shall then decide whether the complaint shall be entertained or not.”**_ 20. Therefore as per statute 5, the Chairman of the Board has to conduct a preliminary enquiry. In case in that preliminary enquiry he finds it necessary, he need place it before the Board. It is only thereafter that it comes before the Board, when it has to decide whether the complaint has to be entertained or not. In this case, the Vice Chancellor has delegated his power to a member of the Syndicate to conduct the preliminary enquiry. Statute 5 does not provide that the power of the Chairman of the Board of Adjudication can be delegated. In the absence of an express provision to delegate the action of the Vice Chancellor in delegating his power to conduct preliminary enquiry to the 5[th] respondent does not have any statutory backing. In effect there was no preliminary enquiry and thus there was no finding that it need be placed before the :29: ## W.P.(C) No.15779/19 Board for consideration. 21. In this context it is also relevant to examine whether the Vice Chancellor can delegate all or any of his powers. The provisions contained in Section 10 of the Act would show that wherever the Vice Chancellor is entitled to delegate his powers, it is provided separately as given in Subsection 18, which read as follows: _10(18): Subject to the provisions in the Statutes and Ordinances, the Vice Chancellor shall have the power to appoint, suspend, dismiss or otherwise punish any member of the establishment of the University below the rank of the Deputy Registrar._ _Provided that he may delegate any of his powers under this subsection to the Pro-Vice Chancellor or the Registrar._ 22. It is pertinent to note that under subsection 22, it shall be the duty of the Vice Chancellor to see that the proceedings of the University are carried out in accordance with the provisions of the Act, Statute, ordinances, the regulations, the rules and byelaws. Section 10(23) provides that the Vice Chancellor shall exercise such other powers and perform such other functions as may be prescribed by the statutes. The Act W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** or Statute does not empower the Vice Chancellor to delegate his power to a member of the syndicate. The power of Vice Chancellor to act in the place of Syndicate or academic council does not enable the members of syndicate or academic council to act as Vice Chancellor in his absence or on his direction, as the Vice Chancellor does not have any such power to authorise them or to delegate his powers on the members of those bodies of the University. There is no provision in Chapter 27 of the MG University Statutes 1997 which empowers the Vice chancellor to delegate his power as Chairman of the Board of Adjudication to anybody. Therefore I am unable to accept the contention of respondents 1 to 3 that the action of the Vice Chancellor is in accordance with Section 10(17) or that it would not be possible for the Vice Chancellor to conduct preliminary enquiry in the colleges in the midst of various other functions. Therefore, the very act of the Board in entertaining the complaint of 4[th] respondent is contrary to law. 23. In this context it is relevant to note the W.P.(C) No.15779/19 :31: judgment of the apex court in _**Marathwada University's**_ case (supra) where the departmental proceedings initiated and dismissal ordered by the Vice Chancellor was found without authority even after the Executive Council had ratified it. It was held that there cannot be a ratification of an action taken without authority. It was held that a statutory power must be exercised only by the body or officer on whom it has been codified, unless delegation of the power is authorised by express words or necessary implication. The judgments in _**Hukam Chand's**_ case(supra) as well as _**Manager, St. Dominic College's**_ case (supra) are also to the effect that an action initiated without authority is non-est. Those judgments squarely applies in the case. The contention of the learned Counsel for the 4[th] respondent relying on the judgment of the apex court in _**National Insurance Company Ltd. V Laxmin Narain Dhut**_ (supra) that purposive interpretation has to be adopted in the matter, cannot also be accepted. Though it may be true that Vice Chancellor is otherwise busy on various matters in connection with the University, that ## W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** will not validate his action in authorising a member of the syndicate to conduct the preliminary enquiry. Therefore the entire proceedings leading to Ext.P24, of the Board of adjudication, right from placing the complaint of the 4[th] respondent before the Board are liable to be set aside. The action of the syndicate in accepting the findings of the Board is also equally illegal. 24. Statue 6 provides for the procedure to be followed by the Board when it decides that a complaint filed before it, is to be entertained. Petitioner has raised complaints as to the violation of procedural formalities also against the Board, pointing out that the copy of the complaint itself was denied and he could not give a written statement or produce document in the absence of the complaints referred to in each of the notices. As I have found that the entire proceedings of the Board are without authority, I am not going into those questions. 25. The next question to be considered is whether the syndicate has the authority to interfere with the W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** orders passed by the head of a college while enforcing discipline. This court has in a series of judgments held that the Principal of a College is the supreme authority to maintain discipline in the College and that power cannot be cribbed or curtailed by any other authority. It is also settled law that the principles of natural justice does not apply in its full vigour in matters of academic discipline and that the degree of proof required in it cannot be compared to that of criminal proceedings or even departmental proceedings. In _**Manu Vilson's**_ case (supra) the Division Bench of this court, while dealing with a disciplinary action against students, after considering the provisions relating to the function of the Principal and the power of the syndicate, held that the function of the Principal in maintaining the internal discipline is sacrosanct and that cannot be diluted by the University. Relying on another judgment of the Division Bench in _**Thampan v. Principal, Medical College: 1979 KLT 45** ,_ it was held that powers of supervision and control on the Syndicate would not in W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** any manner water down the authority and jurisdiction on the Principal of a College as the head of the institution to deal with matters affecting the discipline of the College. The right and authority of the Principal to take action for maintenance of discipline among students in the college in consultation with the College Council is virtually absolute and that the University has no authority to interfere with the said power of the Principal. Reiterating the dictum laid down in the judgment in ## _**Unni Raja**_ **v.** _**Principal, Medical College, Trivandrum:**_ _**I. L. R. 1983 (2) Ker 754**_ , it was held as follows: _“ it is clear that the law presumes that the head of the institution must possess inherent authority and right to do such acts as are necessary in his opinion to maintain discipline in the institution. If any attempt is made to water-down the right of the head of the institution, it would be to sound the death-knell of discipline in the institution. This is especially so when .we come across unwanted and uncalled for interference by political parties and their stooges in the working of the educational institutions. The Supreme Court in Hira Nath Mishra v. The Principal, Rajendra Medical College, AIR 1973 SC 1260, held that a teacher occupies pride of place next below the parents and he imparts education and discipline to the students. According to Their Lordships, Principal owes social responsibility and accountability to discipline the students by total dedication and sincere teaching. Teachers and Headmasters are in the position of loco-parentis to all students (vide Maharashtra State Board of Secondary and Higher Secondary Education v. K. S. Gandhi, (1991) 2 SCC 716)._ W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** 26. Referring to the provisions in the University Act, Statute and Ordinances and powers and functions of Principal and that of the syndicate, this court held that the syndicate has no authority to interfere with the orders of the Principal. The provisions are more or less similar in MG University also. It was held that: _“ The Principal, the head of the institution, in consultation with the College Council, should have the primary authority to initiate appropriate action against the students for maintenance of discipline. His wisdom supported by the College Council alone should prevail in this regard over all other considerations. Whatever may be the differences of opinion between the students in the matter of political ideologies, they are not matters to be brought into the college campus or to the class rooms, lest it may affect the rights of other students whose prime consideration is academic excellence. Such students, who are interested in studies, have a right to have uninterrupted education without any political interference. Such a right, as per the decisions of the Supreme Court, is a fundamental right guaranteed under Art.21 of the Constitution of India”._ 27. The aforesaid dictum was reiterated in _**Sojan**_ _**Francis v. M.G. University: 2003 (2) KLT 582 and Indulekha Joseph v. Vice Chancellor: 2008 (3) KLT SN 54**_ _**(C.No. 67), etc.**_ In _**Principal, Government Engineering College V John: :1979 KLT 686,**_ following the judgment in _**Hira Nath's**_ case _**(AIR. 1973 SC. 1260**_ ), it was held that the principle of natural justice does not apply in ## W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** its full vigour to the educational institution's enquiries. 28. In this case the Board arrived at a finding that the order passed by the Principal is not in accordance with the Act or statutes and that the order of dismissal was unwarranted. The syndicate has accepted the findings of the Board and cancelled the order of dismissal which was ordered by the Principal, in implementation of the decision of the staff council. 29. Section 23(13) of the MG University Act empowers the syndicate only to maintain, supervise and control the residence and discipline of students. Statute 21 of Chapter 23 of the MG University First Statutes provides that in every college the Principal shall be the Head of the College and shall be responsible for the internal management and administration of the College. The pivotal position of the Principal in a College is recognised in various judgments, after analysing the provisions relating to power of the syndicate and that of Principal. The dictum laid down by this court in the judgments in _**Manu**_ W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** _**Vilson's**_ case is applicable in this case also and therefore Ext.P4 order by which the syndicate has interfered with the authority of the Principal to maintain discipline in the college, is liable to be set aside. According to the University the petitioner College has violated its provisions in Clause 8 of Rule 1 of Chapter III of the Kerala University First Ordinances, 1978 by not forwarding the transfer certificate and report of dismissal along with intimation of dismissal of the 4[th] respondent to the Syndicate. Clause 8 of Rule 1 of Chapter III provides that if any student is expelled from any College maintained or affiliated to the University intimation of fact of expulsion with a statement of reasons therefore shall be given forthwith by the Principal to the parent or guardian of the student and to the Syndicate. Intimation to the Syndicate shall be accompanied by the Transfer Certificate of the student. Syndicate may deliver the TC to the student or his parent or guardian with necessary endorsement, on application of either of them W.P.(C) No.15779/19 **==> picture [18 x 8] intentionally omitted <==** or withhold it temporarily or permanently, as it deems fit. It is seen that the statement of reasons and the TC were not furnished together with the intimation and same was forwarded to the syndicate only on 11.05.2019. The explanation of the petitioner is that the TC was forwarded before re-opening of the colleges and therefore no prejudice is caused to the 4[th] respondent. However the provisions in the ordinance does not provide for any relaxation for forwarding TC with reference to vacation. At any rate the delay in issuing a TC cannot be a ground for cancelling the order of dismissal as the power of the syndicate to interfere with the action of the Principal in enforcing discipline continues to be the same. Therefore Ext.P24 shall stand set aside. The Writ Petition is allowed accordingly. ## **Sd/-** ## **P.V.ASHA** ## **JUDGE** rkc/ww W.P.(C) No.15779/19 :39: ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE COMPLAINT OF BURHAN HUSSAIN RAWTHAR DATED 05.10.2018. EXHIBIT P2 PHOTOCOPY OF THE COMPLAINT DATED 08.10.2018.** **EXHIBIT P3 PHOTOCOPY OF THE MINUTES OF THE STAFF COUNCIL MEETING DATED 06.10.2018. EXHIBIT P4 PHOTOCOPY OF THE ENQUIRY REPORT DATED 22.10.2018.** **EXHIBIT P5 PHOTOCOPY OF THE STATEMENT OF THE 4TH RESPONDENT BEFORE THE ENQUIRY COMMITTEE DATED 15.02.2019. EXHIBIT P6 PHOTOCOPY OF THE ENQUIRY REPORT DATED 28.02.2019. EXHIBIT P7 PHOTOCOPY OF THE SHOW CAUSE NOTICE TO THE 4TH RESPONDENT DATED 07.03.2019. EXHIBIT P8 PHOTOCOPY OF THE LETTER OF THE 4TH RESPONDENT TO THE PETITIONER DATED 14.03.2019. EXHIBIT P9 PHOTOCOPY OF THE MINUTES OF THE STAFF COUNCIL MEETING DATED 26.02.2019. EXHIBIT P10 PHOTOCOPY OF THE SHOW CAUSE NOTICE ISSUED TO THE 4TH RESPONDENT DATED 27.02.2019. EXHIBIT P11 PHOTOCOPY OF THE COMPLAINT FILED AGAINST THE DJ AND HIS TEAM ON 01.03.2019 BEFORE THE KANJAR POLICE STATION.** **EXHIBIT P12 PHOTOCOPY OF THE STATEMENT FILED BY THE 4TH RESPONDENT BEFORE THE ENQUIRY COMMITTEE DATED 11.03.2019.** W.P.(C) No.15779/19 :40: |**EXHIBIT P13**||**PHOTOCOPY OF THE ENQUIRY REPORT DATED**| |---|---|---| |||**15.03.2019.**| |**EXHIBIT P14**||**PHOTOCOPY OF THE SUSPENSION ORDER DATED**| |||**20.03.2019.**| |**EXHIBIT P15**||**PHOTOCOPY OF THE RESOLUTION OF THE**| |||**COLLEGE STAFF COUNCIL DATED 27.03.2019.**| |**EXHIBIT P16**||**PHOTOCOPY OF THE DISMISSAL ORDER DATED**| |||**29.03.209 OF THE 4TH RESPONDENT.**| |**EXHIBIT P16**|**A**|**PHOTOCOPY OF THE A/D EVIDENCING THE**| |||**FORWARDING THE DISMISSAL ORDER TO THE**| |||**PARENT OF THE 4TH RESPONDENT.**| |**EXHIBIT P17**||**PHOTOCOPY OF THE REPORT OF DISMISSAL OF**| |||**THE 4TH RESPONDENT DATED 02.05.2019 TO**| |||**THE 1ST RESPONDENT.**| |**EXHIBIT P17**|**A**|**PHOTOCOPY OF THE REPORT OF DISMISSAL OF**| |||**THE 4TH RESPONDENT DATED 02.05.2019 TO**| |||**THE SYNDICATE DATED 11.05.2019.**| |**EXHIBIT P17**|**B**|**PHOTOCOPY OF THE TRANSFER CERTIFICATE**| |||**OF THE 4TH RESPONDENT DATED 01.04.2019.**| |**EXHIBIT P18**||**PHOTOCOPY**<br>**OF**<br>**THE**<br>**LETTER**<br>**DATED**| |||**12.04.2019 OF THE 1ST RESPONDENT.**| |**EXHIBIT P19**||**PHOTOCOPY OF THE COMMUNICATION DATED**| |||**20.04.2019.**| |**EXHIBIT P20**||**PHOTOCOPY**<br>**OF**<br>**THE**<br>**NOTICE**<br>**DATED**| |||**02.05.2019.**| |**EXHIBIT P21**||**PHOTOCOPY**<br>**OF**<br>**THE**<br>**LETTER**<br>**DATED**| |||**30.03.2019 OF THE 4TH RESPONDENT.**| |**EXHIBIT P22**||**PHOTOCOPY OF THE PRELIMINARY REPORT OF**| |||**THE 5TH RESPONDENT DATED 27.04.2019.**| |**EXHIBIT P23**||**PHOTOCOPY OF THE OBJECTIONS DATED**| |||**10.05.2019 SUBMITTED BY THE PETITIONER**| |||**BEFORE THE 2ND RESPONDENT WITH COPY TO**| |||**THE CHANCELLOR.**| W.P.(C) No.15779/19 :41: **EXHIBIT P24 PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT DATED 03.06.2019.** - **EXHIBIT P25 PHOTOCOPY OF THE COMPLAINT FILED BY RANJITH.K.S DT. 11.02.2019 AGAINST THE 4TH RESPONDENT.** - **EXHIBIT P25(a) PHOTOCOPY OF THE COMPLAINT FILED BY RANJITH.K.S DT. 15.02.2019 AGAINST THE 4TH RESPONDENT.** - **EXHIBIT P26 PHOTOCOPY OF THE REQUEST FOR POLICE PROTECTION DT.21.02.2019.** - **EXHIBIT P27 PHOTOCOPY OF THE DEPOSITION GIVEN BY VISHNU.T.S, A STUDENT OF ST. JOSEPH'S ACADEMY OF HIGHER EDUCATION AND RESEARCH DT. 15.02.019.** - **EXHIBIT P28 PHOTOCOPY OF THE MINUTES OF THE MEETING OF THE STAFF COUNCIL DT. 22.10.2018.** - **EXHIBIT P29 PHOTOCOPY OF THE FIRST INFORMATION REPORTS NO.1554 OBTAINED FROM THE CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA.** - **EXHIBIT P30 PHOTOCOPY OF THE FIRST INFORMATION REPORTS NO. 1549 OBTAINED FROM THE JUDICIAL FIRST CLASS MAGISTRATE COURT, THODUPUZHA.** ## **ANNEXURE I – PHOTOCOPY OF THE RELEVANT PAGE OF THE CONSTITUTION FOR COLLEGE UNIONS** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R4 TRUE COPY OF THE MARKLIST OF THE 1ST SEMESTER EXAMINATION OF THE PETITIONER** **EXHIBIT R 4(A) TRUE COPY OF THE MARKLIST OF THE 2ND SEMESTER EXAMINATION OF THE PETITIONER EXHIBIT R 4(B) TRUE COPY OF THE MINUTES OF THE COLLEGE UNION HELD ON 11.2.2019**