Sebastian K. Antony v. Mahatma Gandhi University & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930** **WP(C).No. 16864 of 2008(G)** **-----------------------------------------** **PETITIONER(S):** **-------------------------** **SEBASTIAN K. ANTONY, SENIOR GRADE LECTURER IN MALAYALAM, ST. ALBERT'S COLLEGE, ERNAKULAM (UNDER ORDER OF SUSPENSION).** **BY ADV. SRI.P.C.SASIDHARAN** **RESPONDENT(S):** **--------------------------** **1. MAHATHMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM.** **2. VICE CHANCELLOR, MAHATHMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM.** ## **3. THE MANAGER,** - **ST. ALBERT'S COLLEGE, ERNAKULAM.** **4. THE PRINCIPAL, ST. ALBERT'S COLLEGE, ERNAKULAM.** **ADV.SRI. T.A. SHAJI, SC, M.G.UNIVERSITY FOR R1 &R2 ADV. SRI.BABY ISSAC ILLICKAL FOR R3 & R4** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/11/2008 ALONG WITH WPC NO. 18013 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ **WPC.NO.16864/2008 G** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE ORDER OF THE MANAGER DTD. 8/2/2008. EXT.P2: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE MANAGER DTD. 21/02/2008. EXT.P3: COPY OF THE PROCEEDINGS ISSUED BY THE MANAGER DTD. 20/02/2008. EXT.P4: COPY OF THE COMMUNICATION ISSUED BY THE MANAGER DTD. 25/02/2008. EXT.P5: COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER TO THE MANAGER DTD. 10/03/2008. EXT.P6: COPY OF THE REPORT DTD. 10/06/2005. EXT.P7: COPY OF THE ORDER DTD. 14/06/2005. EXT.P8: COPY OF THE LETTER ISSUED BY THIS PETITIONER. EXT.P9: COPY OF THE RELEVANT PORTION OF THE COLLEGE CALENDER SHOWING THE NAME OF THE PETITIONER AS THE HEAD OF THE DEPARTMENT. EXT.P9(A): COPY OF THE LETTER DTD. 12/07/2005. EXT.P10: COPY OF THE LETTER DTD. 7/12/2005. EXT.P11: COPY OF THE ENQUIRY REPORT DTD. 9/07/2007 OF THE M.G.UNIVERSITY. EXT.P12: COYP OF THE ORDER ISSUED BY THE VICE CHANCELLOR DTD. 22/05/2008. EXT.P13: COPY OF THE LETTER ADDRESSED BY MANAGER TO THE UNIVERSITY DTD. 26/05/2008. EXT.P14: COPY OF THE LETTER ISSUED BY THE UNIVERSITY TO THE PETITIONER DTD. 14/05/2008.** ## **RESPONENT'S EXHIBITS:** **EXT.R3(A): COPY OF THE STATEMENT OF THE HEAD ACCOUNTANT. EXT.R3(B): COPY OF THE RELEVANT PAGE OF THE COLLEGE CALLENDAR FOR THE YEAR 2004-05. EXT.R3(C): COPY OF THE LETTER DTD. 02/05/208 TO THE VICE CHANCELLOR.** **/TRUE COPY/** **P.A.TO JUDGE** _Kss_ ## **ANTONY DOMINIC, J. ============== W.P.(C) NO. 16864 & 18013 OF 2008 ========================** ## **Dated this the 14[th] day of November, 2008** ## **J U D G M E N T** The petitioner in WP(C) No.16864/08 is a Selection Grade Lecturer of Malayalam, working in the St.Albert's College, Ernakulam. By Ext.P1 order dated 8/2/08, he was placed under suspension and he was called upon to show cause why disciplinary action shall not be taken against him for certain misconducts. That was followed by Ext.P3 memo of charges issued on 20/2/2008 and he was called upon to submit his written statement. It is stated that in the meanwhile, by Ext.P2, he sought the documents on the basis of which Ext.P1 was issued and these were furnished by Ext.P4 and thereafter petitioner submitted Ext.P5 written statement. An advocate was appointed as the Enquiry Officer and it is stated that the enquiry also commenced and managements' evidence is not complete. 2. While so, by Ext.P12 communication dated 22/5/2008, the University informed the Manager of the College that as per Section 63(4) of the M.G.University Act (hereinafter referred to as 'Act' for short), any disciplinary proceedings against a teacher of a private college shall be completed within a period of three months and that three months elapsed **WPC 16864 & 18013/08** **:2 :** on 8/5/2008. Proceeding further, it was stated that as ordered by the Vice Chancellor, the petitioner should be reinstated in service with immediate effect before proceeding further with the disciplinary proceedings against him. Manager responded to Ext.P12 by Ext.P13, contending that Section 63(4) of the Act is a directory provision and that he had vide his letter dated 2/5/2008 already sought extension of time to complete the disciplinary proceedings. It was also stated that the issue of reinstatement could be considered after completion of the disciplinary proceedings. It is at that stage, the petitioner filed this writ petition praying mainly for directing respondents 3 and 4 to enforce Ext.P12 and to take appropriate action against the 3[rd] respondent Manager, as provided under Section 56 of the Act for disobeying Ext.P12 order. A declaration that the petitioner is entitled for reinstatement is also sought for. 3. Counsel for the petitioner also made reference to Ext.P14, a communication dated 14.5.2008, issued by the Public Information Officer of the M.G.University, in response to the requisition made by the petitioner under the Right to Information Act, informing him that the University had not received any request from the Manager of the College for extension of time for completing the disciplinary proceedings. In this writ petition, by **WPC 16864 & 18013/08** **:3 :** order dated 6/6/2008, this Court restrained the Manager from proceeding with the disciplinary enquiry unless and until Ext.P12 is complied with and that order still remains in force. 4. In so far as WP(C) No.18013/08 is concerned, that writ petition is filed by the Manager of St.Albert's College, Ernakulam praying for quashing Ext.P12 order of the M.G.University, referred to above. According to the Manager, the delay in completing disciplinary proceedings was not for reasons attributable to them and as far as the management is concerned, evidence is almost complete. It is also stated that by Ext.P11 dated 2/5/2008, they had sought for extension of time by three months for completing the disciplinary proceedings against the teacher. It is stated that by Ext.P15, the postal department has certified that the aforesaid communication has been delivered to the addressee viz., the Registrar of the University on 5/5/2008. They have also produced the extract of the despatch register as Ext.P16 to prove that Ext.P11 was despatched to the University and that copies were also marked to the Directorate of Collegiate Education and Deputy Director of Collegiate Eduction, Ernakulam. Referring to Ext.P17, it is stated that the Deputy Director of Collegiate Education, Ernakulam, vide his letter dated 2/7/2008, has **WPC 16864 & 18013/08** **:4 :** confirmed receipt of a copy of Ext.P11 on 5/5/2008. 5. According to the management, it is despite the request made for extension of time by three months, that without passing orders thereon, the University has passed Ext.P12 and that too, without putting them on notice. They would argue that the teacher is a Senate Member of the University and the District President of AKPCTA, a trade union of the college teachers, and that the University's case of non receipt of their request for extension and issuance of Ext.P12, immediately on the expiry of 3 months period are proof of his influence with the authorities of the University. It is stated that but for the order dated 6/6/2008 passed in WP (C) No.16864/08, the whole proceedings would have been completed. 6. In para 6 of the the counter affidavit filed by the University in WP(C) No.18013/08, it is averred that the University has not received Ext.P11. It is further stated that even if the petitioner applies for further period beyond 3 months, such a request cannot be justified in the facts and circumstances of the case. It is to be noticed that though Exts.P15, P16 and P17 were produced by the petitioner, along with the affidavit filed in reply to the above counter affidavit filed by the University, nothing has been placed on record to contradict those documents. **WPC 16864 & 18013/08** **:5 :** 7. The contentions raised by the counsel for the petitioner in WP (C) NO.16864/08 are that in terms of Section 63(1) of the Act, Educational Agency may at any time place the teacher of a private college under suspension when any disciplinary proceedings is proposed to be taken against him or when such disciplinary proceedings are pending. Sub Section (4) requires the disciplinary authority to complete the disciplinary proceedings against teacher of a private college within a period of three months or within such further period as may be allowed by the Vice Chancellor. It is stated that in this case, three months period expired on 8/5/2008 and that, as confirmed by the University, upto 14/5/2008, the date of Ext.P14, the College had not sought any extension of time. 8. Referring to Section 63 of the Act, two contentions are raised. First is that, only the educational agency can place the teacher under suspension and the second is, that in the absence of enlargement of time by the Vice Chancellor beyond the initial period of three months, the teacher is entitled to reinstatement. According to counsel, it was in exercise of this power that the Vice Chancellor issued Ext.P12 order and by Ext.P13, the Manager has informed his unwillingness to comply with Ext.P12. Counsel contends that the disobedience of the Manager to comply **WPC 16864 & 18013/08** **:6 :** with Ext.P12, attracts Section 56(7) of the Act, which provides that if the Manager of a private college is guilty of disobedience of the instructions issued by the University, the Vice Chancellor is entitled to take action for declaring him unfit to hold the office of Manager and require the management to appoint a suitable person as Manager. 9. It is also pointed out that consequence of an order under Section 56(7) of the Act is provided in Section 56(9), which entitles the University or the Government to withdraw aid, grant or affiliation of the private college by the University or the Government, as the case may be. Yet another contention raised is that the teacher has been placed under suspension without any application of mind and that even if the misconducts alleged against the teacher are taken at its face value, it is not grave enough warranting an order of suspension to keep the teacher out of his job for such a long time. In this context, reliance was placed on the judgment in **Surendran K. v. Government of Kerala and others (ILR(2008) 3 Kerala 587)** . 10. On the other hand, the counsel for the Manager would argue that under Section 63 of the Act, they have already sought enlargement of time for completing the disciplinary proceedings by filing Ext.P11 produced **WPC 16864 & 18013/08** **:7 :** in WP(C) No.18013/08. It is stated that the despatch and delivery of Ext.P11 is confirmed by the Postal Authorities by Ext.P15 and its despatch is proved by the entries in the Despatch Register viz., Ext.P16. It is also pointed out that the Deputy Director to whom copy was sent has acknowledged its receipt by Ext.P17. It is stated that it is despite all this that Ext.P12 was issued ordering reinstatement of the teacher and that the said order was passed without even issuing notice to the Manager. Counsel therefore submits that apart from all other vitiating factors, Ext.P12 deserves to be set aside for violation of the principles of natural justice. 11. Yet another contention that is raised is regarding the maintainability of the writ petition itself. Learned counsel for the Manager has stated that challenging the proceedings initiated against him, the teacher has filed Appeal No.8/08 before the University Appellate Tribunal. It is stated that the appeal was filed on 23/10/2008 and that the same has been admitted and is now posted for written statement of the Management. 12. On merits, it is contended that under Section 63(3) of the Act, when following the disciplinary proceedings initiated, a teacher is placed **WPC 16864 & 18013/08** **:8 :** under suspension for a period exceeding 15 days, all that is required to be done is to report the factum of suspension to the Vice Chancellor. It is stated that ordinarily the disciplinary proceedings are to be completed within 3 months and in terms of Section 63(4), if proceedings are not completed, it shall be completed within such further period as may be allowed by the Vice Chancellor. It is stated that the power under Section 63(4) only enables the Vice Chancellor to deal with a request for enlarging the period for completion of disciplinary proceedings, but however, it does not enable the Vice Chancellor to interfere with an order of suspension passed by the disciplinary authority. Referring to the judgment of this Court in **Dr.N.Raveendran v. The Manager, Sree Narayana College and another (ILR 2005(1) Kerala 338)** , it is contended by the learned counsel for the Manager that Section 63(4) of the Act is only directory and not mandatory, as contended by the petitioner in WP(C) No.16864/08. He also contends that being a teacher in an educational institution, the misconduct allegedly committed by the petitioner in WP(C) No.16864/08 has to be viewed with extreme gravity and therefore they cannot be faulted for placing the teacher under suspension. 13. Thus while in WP(C) No.18013/08, the management is seeking **WPC 16864 & 18013/08** **:9 :** to quash Ext.P12, the order issued by the University requiring the reinstatement of the teacher for continuance of the disciplinary enquiry, in WP(C) No.16864/08, the teacher requires implementation of the same. Although it is true that under Section 10(15) of the Act, the Vice Chancellor is the custodian of the University Laws and is also vested with the power of ensuring observance of the provisions of the Act by private colleges, the question arising for consideration is regarding the competence of the Vice Chancellor to issue an order in the nature of Ext.P12. If this order is held to be one within his power, for non compliance thereof, the management may be liable to be proceeded against under Section 56(7) and (9) of the Act. On the other hand, if Ext.P12 order is issued without any legal sanction, necessarily, the same will have to be set aside. 14. Section 63 of the Act to the extent it is relevant, reads as under: 63. Disciplinary powers of Educational Agency over teachers of private Colleges: (1) The Educational Agency may at any time place a teacher of a Private College under suspension when any disciplinary proceedings is proposed to be taken against him or when such disciplinary proceedings are pending. (2) A teacher of a Private college who is detained in custody whether on a criminal charge or otherwise for a period exceeding fourty-eight hours shall be deemed to have **WPC 16864 & 18013/08** **:10 :** been suspended with effect from the date of detention by an order of the Educational Agency and shall remain under suspension until further orders. (3) When a teacher of a private college is suspended for a period exceeding fifteen days, the matter together with the reasons for the suspension, shall be reported to the ViceChancellor. (4) Any disciplinary proceedings against a teacher of a private college by the educational agency shall be completed within a period of three months or within such further period as may be allowed by the Vice-Chancellor. 15. A reading of Section 63 shows that when in any disciplinary proceedings, if a teacher is placed under suspension, that has to be reported to the Vice Chancellor, in terms of Sub Section (3) thereof. Sub Section (4) provides that disciplinary proceedings shall be completed within a period of three months or within such further period as may be allowed by the Vice Chancellor. Therefore, the power of the Vice Chancellor is what is conferred under Sub Section(4) and that is to pass order on the request made by the disciplinary authority for extension of time for completion of the disciplinary proceedings against the teacher. This section does not enable the Vice Chancellor to interfere with the power of suspension exercised by the disciplinary authority under Section 63(1) of the Act and reported to the Vice Chancellor under Section 63(3). **WPC 16864 & 18013/08** **:11 :** 16. Though the counsel for the University was at pains to explain the powers of the Vice Chancellor and his duties for ensuring observance of the provisions of the Act, University Statutes and Rules, still despite a specific query raised by the Court, except referring to Section 10(15) of the Act, no specific provision enabling the Vice Chancellor to interfere with the power of suspension exercised by the disciplinary authority of a private college teacher could be brought to my notice. Disciplinary powers are entirely within the domain of the disciplinary authority and the only limitation is the statutory restrictions imposed on that power. Those restrictions are contained in Section 63 of the Act, and Section 63 does not confer any power on the Vice Chancellor to interfere with the power of suspension. If that be so, the Vice Chancellor could not have ordered reinstatement of the teacher, on the ground that the enquiry has not been completed within the initial period of three months. 17. In this context, it also requires to be mentioned that in **Dr.N.Raveendran v. The Manager, Sree Narayana College and another (ILR(2005) 1 Kerala 338)** , interpreting the corresponding provisions in 60(4) of the Kerala University Act, a Division Bench of this Court has held that the provisions are only directory and that despite the **WPC 16864 & 18013/08** ## **:12 :** lapse of time, the enquiry can be continued. In this context, it also needs mention that even by Ext.P12, University has not forbidden the College from proceeding with the enquiry for not completing the same within 3 months, but has only imposed reinstatement as a condition for its continuance. 18. In my view, Ext.P12 order passed by the Vice Chancellor ordering reinstatement of the teacher cannot be sustained and has to be set aside. But, then that does not mean that the College is entitled to prolong disciplinary action and keep the teacher under suspension for all time to come. Necessarily, the College is bound to complete the disciplinary action with due expedition. 19. The counsel for the petitioner in WP(C) No.16864/08 contended that educational agency alone could have suspended the teacher and that Ext.P1 having been issued by the Manager is without jurisdiction. Though this contention is not seen raised in the writ petition, a reading of Section 63(1) indicates that it is the educational agency, which is vested with the power of suspension. The term Educational Agency has been defined in 2(9) of the Act. Section 56 of the Act provides for the appointment of the Manager and Sub Section 4 provides that the Manager **WPC 16864 & 18013/08** ## **:13 :** shall exercise such powers and discharge his duties as may be delegated to him by the corporate management. Manager contends that this power has been delegated and that all steps that have been taken by the Manager are in exercise of the delegated power. Educational Agency functions through the Manager appointed under Section 56 of the Act, which also provides that the Manager is to exercise delegated powers. According to the Manager, whatever actions that has taken are in exercise of the delegated power. As noticed, this is not a plea raised in the writ petition and the assertion made by the petitioner is denied by the Manager. In the aforesaid circumstances, I am not in a position to accept the plea of the petitioner in WP(C) No.16864/08 and invalidate the suspension on that ground. 20. Counsel for the petitioner in WP(C) No.16864/08 was contending for the position that the suspension has been imposed without application of mind. He also placed reliance on the judgment of the Division Bench in **Surendran K. v. Government of Kerala and others (ILR(2008) 3 Kerala 587)** . True the gravity of the misconduct justify exercise of power of suspension by the disciplinary authority. In this case, allegation is that a teacher has tampered with the attendance register in **WPC 16864 & 18013/08** ## **:14 :** the college. The role of a teacher has been explained in several judgments and he has to conduct himself as a model to the students, whose character and conduct is moulded in the College. When such grievous allegations are raised, I do not find any arbitrariness in the order of the Manager in placing such a teacher under suspension. Therefore, I am not inclined to hold that the nature of allegation do not call for such an order and interfere with the order of suspension in a proceedings under Article 226 of the Constitution of India. 21. Be that as it may, now that the enquiry has been initiated and according to the counsel, the management has let in evidence and all that remains on their side is to examine one more witness. Once that is completed, necessarily, it is the turn of the delinquent to let in his evidence if he so desires. The fact that Ext.P12 has been sustained does not mean that the management can prolong the enquiry, but should complete the same with due expedition. Normally, considering the contention of the University that it has not received the Manager's request for extension of time for completing the enquiry (Ext.P11 in WP(C) No.18013/08), this Court should have directed that a fresh request shall be made to the University. However, in the counter affidavit filed in WP(C) **WPC 16864 & 18013/08** ## **:15 :** No.18013/08, the University has also stated that even if an application is made, such a request cannot be justified. Since the University has made its stand known, I do not think that any useful purpose will be served by directing the College to make a fresh application. 22. Therefore, I direct the petitioner in WP(C) No.18013/08 to complete the disciplinary action initiated against the petitioner in WP(C) No.16864/08 within two months from the date of receipt of a copy of this judgment, provided, the petitioner in WP(C) No.16864/08 co-operates for the same. 23. It is clarified that this Court has only examined the validity of Ext.P12 in the light of the aforesaid contentions. Though in the pleadings, various factual controversies have been raised, adjudication of those contentions is unnecessary for the disposal of these cases. All those issues are left open, particularly in view of the pendency of Appeal No.8/08, before the Appellate Tribunal. WP(C) No.16864/08 will stand dismissed and WP(C) No.18013/08 will stand allowed as above. ## **ANTONY DOMINIC, JUDGE** Rp