High Court of KeralaSingle JudgeWrit petitions disposed of; quashing of problem...

Sebastian P. Joseph and Manoj Thomas v. Mahatma Gandhi University

Case / Petition Number:WP(C) Nos. 28466/2023 & 29663/2023

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Sathish Ninan
Judgment Date
2023-09-26
Court Decision / Holding
Writ petitions disposed of; Exts.P17-P21 quashed in WP(C)29663/2023. The disciplinary authority is directed to conduct the inquiry afresh from the stage of witness examination, in accordance with law; suspension to continue pending final outcome.
Final Disposition
Writ petitions disposed of; quashing of problematic enquiry reports; remand to disciplinary authority to conduct enquiry from the witness stage; suspension to continue.

Parties to the Case

Appellants / Petitioners

  • Sebastian P. Joseph
  • Manoj Thomas

Respondents

  • The Mahatma Gandhi University, Priyadarshini Hills, Kottayam, represented by its Registrar
  • The Registrar, Mahatma Gandhi University, Priyadarshini Hills, Kottayam
  • The Controller of Examinations, Mahatma Gandhi University
  • The Joint Registrar 2 (Administration) (Enquiry Officer), Mahatma Gandhi University

Legal Representation & Advocates

Counsels for Petitioners

  • • Nisha George
  • • George Poonthottam (Sr.)
  • • A.L. Navaneeth Krishnan
  • • Ann Maria Francis

Counsels for Respondents

  • • Surin George Ipe

Case Synopsis & Summary

Sebastian P. Joseph and Manoj Thomas, employees of the Mahatma Gandhi University, challenge disciplinary proceedings initiated for alleged missing blank degree certificate forms from the PD(V) Section. The first petitioner, formerly the Section Officer, and the second petitioner, who took over the charge on 02.06.2023, faced suspension and later penalties after discovery that 54 blank certificate forms were missing. The inquiry report relied on evidence from witnesses other than those named by the petitioners, and the petitioners were allegedly not provided notice or an opportunity to cross-examine such witnesses. They contend this violates Statute 46 of Chapter 4 of the Mahatma Gandhi University Statutes, 1997, which guarantees cross-examination and the right to defend with witnesses. The court accepts that the enquiry was vitiated due to non-compliance with statutory procedure, and cites Supreme Court authority (Chairman, LIC of India v. A. Masilamani; Managing Director, ECIL v. B. Karunakar; Hiran Mayee Bhattacharyya; UP State Spinning Co. Ltd. v. RS Pandey; Union of India v. Y.S. Sandhu) to hold that when an enquiry is not properly conducted, the matter must be remitted to the disciplinary authority to proceed from the point of vitiation and cannot reinstate the employee. Consequently, Ext.P17 to P21 in WP(C)29663/2023 are quashed and the disciplinary authority is ordered to resume the inquiry from the witness stage, with suspension continuing pending final outcome.

Provisions of Law Cited

Statute 46 of Chapter 4 of the Mahatma Gandhi University Statutes, 1997

Legal Doctrines & Maxims

  • Remand to disciplinary authority for conducting the enquiry from the point that it stood vitiated; cannot reinstate the employee when the enquiry is not properly conducted.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the disciplinary inquiry violated Statute 46 by withholding notice about the examination of additional witnesses and denying them cross-examination, thereby rendering the inquiry procedurally defective. They argue that the University narrative and Exts. P21 and related materials should be set aside and the inquiry remitted to commence from the point of vitiation while preserving the suspension until final disposition.

Contentions of Respondents

The University, through its counsel, relies on the established principle that when a court finds an enquiry not properly conducted, the remedy is to remit the matter to the disciplinary authority to conduct the enquiry from the stage of vitiation, rather than reinstating the employee, as supported by the cited Supreme Court authorities (Masilamani, ECIL, Bhattacharyya, UP State Spinning, Sandhu). They emphasize upholding due process within the statutory framework.

Cited Precedents (5)

Case NameCitationTreatmentExplanation
Chairman, LIC of India and Ors. v. A. Masilamani2013 (6) SCC 530PositiveCited to support remand of a defective enquiry to the disciplinary authority and the proposition that a court cannot reinstate when the enquiry is not properly conducted.
Managing Director, ECIL, Hyderabad and Others v. B. Karunakar and OthersAIR 1994 SC 1074PositivePart of the jurisprudential basis for remand where enquiry is vitiated.
Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls and Others2002 (10) SCC 293PositiveCited as part of the line of cases upholding remand for proper conduct of enquiry.
UP State Spinning Co. Ltd. v. R.S. Pandey and Another2005 (8) SCC 264PositiveSupports remand where enquiry procedure is defective.
Union of India v. Y.S. Sandhu, Ex-InspectorAIR 2009 SC 161PositiveReinforces remand principle for improper enquiry.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN TUESDAY, THE 26[TH] DAY OF SEPTEMBER 2023 / 4TH ASWINA, 1945** ## **WP(C) NO. 29663 OF 2023** ## **PETITIONERS:** 1 SEBASTIAN P. JOSEPH AGED 55 YEARS S/O. P.D. JOSEPH, KURUKAKKALAM HOUSE, MANTHURUTHY P.O., KOTTAYAM DISTRICT, PIN - 686542 2 MANOJ THOMAS AGED 51 YEARS S/O C.D. THOMAS, CHOWATTUKUNNEL, KALATHUKADAVU P.O., KOTTAYAM, PIN - 686579 BY ADVS. NISHA GEORGE GEORGE POONTHOTTAM (SR.) A.L.NAVANEETH KRISHNAN ANN MARIA FRANCIS ## **RESPONDENTS:** 1 THE MAHATMA GANDHI UNIVERSITY PRIYADARSINI HILLS P.O., KOTTAYAM, REPRESENTED BY ITS REGISTRAR, PIN - 686560 2 THE REGISTRAR MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS P.O., KOTTAYAM, PIN - 686560 ## **OTHER PRESENT:** SHRI. SURIN IPE GEORGE, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.09.2023, ALONG WITH WP(C).28466/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 26[TH] DAY OF SEPTEMBER 2023 / 4TH ASWINA, 1945** ## **WP(C) NO. 28466 OF 2023** ## **PETITIONERS:** 1 SEBASTIAN P. JOSEPH AGED 55 YEARS S/O. P.D. JOSEPH, KURUKAKKALAM HOUSE, MANTHURUTHY P.O., KOTTAYAM DISTRICT, PIN - 686542 2 MANOJ THOMAS AGED 51 YEARS S/O. C.D. THOMAS, CHOWATTUKUNNEL, KALATHUKADAVU P.O., KOTTAYAM, PIN - 686579 BY ADVS. NISHA GEORGE A.L.NAVANEETH KRISHNAN ANN MARIA FRANCIS GEORGE POONTHOTTAM (SR.) ## **RESPONDENTS:** 1 MAHATMA GANDHI UNIVERSITY PRIYADARSHINI HILLS P.O., KOTTAYAM, REPRESENTED BY ITS REGISTRAR, PIN - 686560 2 THE CONTROLLER OF EXAMINATION MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS P.O., KOTTAYAM, PIN - 686560 3 THE REGISTRAR MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS P.O., KOTTAYAM, PIN - 686560 4 THE JOINT REGISTRAR 2 (ADMINISTRATION) (ENQUIRY OFFICER), MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS P.O., KOTTAYAM, PIN - 686560 BY ADV Surin George Ipe THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.09.2023, ALONG WITH WP(C).29663/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W.P.(C) Nos.28466 & 29663 of 2023 = = = = = = = = = = = = = = = = = = Dated this the 26[th] day of September, 2023** ## **J U D G M E N T** The petitioners in these writ petitions are employed in the first respondent University; the first petitioner as the Assistant Registrar and the second petitioner as the Section Officer of PD(V) Section. The first petitioner was earlier working as the Section Officer of the Section and the second petitioner took over charge from the first petitioner on 02.06.2023. 2. Disciplinary proceedings were initiated against the petitioners alleging that 54 numbers of blank degree certificate forms were found missing from the Section. The bundle was opened for use in the Section on 23.03.2023 when the first petitioner was the Section Officer, and the report regarding the missing was on 15.06.2023 when the second petitioner was the Section Officer. W.P.(c) No.28466 of 2023 was filed when the WP(C) Nos.28466 & 29663 of 2023 -: 2 :- petitioners were placed under suspension pending enquiry and W.P.(c) No.29663 of 2023 was filed after completion of the enquiry and when penalty was imposed/proposed. 3. I have heard Sri.George Poonthottam, learned Senior Counsel for the petitioner, and Sri.Surin George Ipe, the learned Standing Counsel for the University. 4. Though various grounds of challenge are urged, since it is found that the enquiry report is vitiated for the reason stated hereunder, I do not consider it necessary to go into the other contentions. The other contentions are left open. 5. The copy of the enquiry report has been placed before the Court as Ext.P21. A reading of the report shows that evidence of certain witnesses, who were employees of the University, were taken apart from the statements of the petitioners. The petitioners' contention is that they were never put on notice WP(C) Nos.28466 & 29663 of 2023 -: 3 :- regarding taking of evidence of any other witnesses and that such evidence was taken behind them. No opportunity was afforded to them to cross-examine the witnesses. They are not even aware as to who all are the witnesses so stated to have been examined. 6. Statute 46 of Chapter 4 of the Mahatma Gandhi University Statutes, 1997 reads thus :- _“_ _**46. Adducing of evidence** :- The Inquiring Authority shall in the course of the inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The University employee shall be entitled to cross examine witnesses examined in support o f the charges and to give evidence in person and to have such witnesses as may be produced, examined in his defense. The person presenting the case in support of the charges shall, be entitled to cross examine the University employee and the witness examined in his defense. If the Inquiring Authority declines to examine any witness on the ground that his evidence is not relevant or material, it shall record the reasons in writing.”_ WP(C) Nos.28466 & 29663 of 2023 -: 4 :- The Statute prescribes for providing an opportunity to the delinquent to cross-examine the witnesses. The University could not place on record any material to indicate that evidence of the witnesses were taken with due notice to the petitioners or that the petitioners were given opportunity to cross-examine them. Therefore, evidently there is violation of the statutory requirement. The enquiry is thus, vitiated. The enquiry report and the consequential proceedings are thus liable to be interfered with. 7. As pointed out by the learned Standing Counsel for the University, the Apex Court has, in _**Chairman, LIC of India and Ors. v. A. Masilamani 2013 (6) SCC 530**_ referring to various earlier judgments of the Apex Court in _**Managing Director, ECIL, Hyderabad and Others v. B. Karunakar and Others AIR 1994 SC 1074; Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls and Others 2002 (10) SCC 293; UP State Spinning C. Ltd. v.**_ WP(C) Nos.28466 & 29663 of 2023 -: 5 :- _**R.S.Pandey and Another 2005 (8) SCC 264; and Union of India v. Y.S.Sandhu, Ex-Inspector, AIR 2009 SC 161**_ , held that once the court finds that the enquiry is not properly conducted, the matter has to be remitted to the disciplinary authority for conducting the enquiry from the point that it stood vitiated and conclude the same. Para 16 of the judgment reads thus:- _“It is a settled legal proposition, that once the Court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the Court cannot reinstate the employee. It must remit the concerned case to the disciplinary authority, for it to conduct the enquiry from the point that it stood vitiated, and conclude the same.”_ Therefore, the enquiry is to commence from the stage preceding to examination of the witnesses. 8. Resultantly, Ext.P17 to P21 in W.P.(c) No.29663/2023 are quashed. The disciplinary authority shall conduct the enquiry from the point of examination -: 6 :- WP(C) Nos.28466 & 29663 of 2023 of witnesses and conclude the proceedings in accordance with law expeditiously. Till such conclusion, the suspension of the petitioners shall continue. Writ petitions are disposed of as above. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF WP(C) 28466/2023** PETITIONER EXHIBITS |Exhibit-P1|A TRUE COPY OF THE ORDER NO.6185/AD-| |---|---| ||A1/2023/M.G.U. DATED 01.06.2023 ISSUED BY THE| ||1ST RESPONDENT UNIVERSITY| |Exhibit-P2|A TRUE COPY OF THE CERTIFICATE OF TRANSFER OF| ||CHARGES DATED 02.06.2023 ISSUED BY THE 1ST| ||RESPONDENT UNIVERSITY, WITH ENCLOSURES| |Exhibit-P3|A TRUE COPY OF THE REPORT OF THE CONTROLLER| ||OF EXAMINATION DATED 21.06.2023| |Exhibit-P4|A TRUE COPY OF THE ORDER NO.6923/AD| ||A1/2023/M.G.U. DATED 21.06.2023 OF THE 1ST| ||RESPONDENT UNIVERSITY| |Exhibit-P5|A TRUE COPY OF THE ORDER NO.7161/AD| ||A1/2023/M.G.U. DATED 27.06.2023 ISSUED BY THE| ||1ST RESPONDENT UNIVERSITY| |Exhibit-P6|A TRUE COPY OF THE MEMO OF CHARGES| ||NO.75697/AD A1-1/2023/AD A1 DATED 30.06.2023| ||ISSUED BY THE 1ST RESPONDENT UNIVERSITY| |Exhibit-P7|A TRUE COPY OF THE REPLY SUBMITTED BY THE 1ST| ||PETITIONER DATED 04.07.2023| |Exhibit-P7(a)|A TRUE COPY OF THE REPLY DATED 04.07.2023| ||SUBMITTED BY THE 2ND PETITIONER TO EXHIBIT P6| ||MEMO OF CHARGES| |Exhibit-P8|A TRUE COPY OF THE ORDER BEARING NO.7366/AD| ||A3/2023/M.G.U. DATED 05.07.2023 ISSUED BY THE| ||ASSISTANT<br>REGISTRAR<br>(ADMINISTRATIVE| ||DEPARTMENT) OF THE 1ST RESPONDENT UNIVERSITY| |Exhibit-P9|A TRUE COPY OF THE ORDER NO. 7747/AD| ||A1/2023/M.G.U. DATED 19.07.2023 ISSUED BY THE| ||ASSISTANT REGISTRAR (ADMINISTRATION) OF THE| ||1ST RESPONDENT UNIVERSITY| |Exhibit -P10|A TRUE COPY OF THE MEMO BEARING NO. 75697/AD| ||A1-1/2023/A.D.A1 DATED 20.07.2023 ISSUED BY| ||THE ENQUIRY OFFICER OF THE 1ST RESPONDENT| ||UNIVERSITY TO THE 1ST PETITIONER| -2- ## **APPENDIX-WP(C) 28466/2023** |Exhibit-P11|A TRUE COPY OF THE MEMO NO. 75697/AD A1-| |---|---| ||1/2023/ADA1 DATED 20.07.2023 ISSUED BY THE| ||ENQUIRY OFFICER OF THE 1ST RESPONDENT| ||UNIVERSITY TO THE 2ND PETITIONER| |Exhibit-P12|A TRUE COPY OF THE ORDER NO.9055/AD| ||A1/2023/M.G.U. DATED 16.08.2023 ISSUED BY THE| ||ASSISTANT REGISTRAR OF THE 1ST RESPONDENT| ||UNIVERSITY| |Exhibit-P13|A TRUE COPY OF THE REQUEST DATED 01.08.2023| ||SUBMITTED BY THE 1ST PETITIONER| |Exhibit-P14|A TRUE COPY OF THE REQUEST DATED 16.08.2023| ||SUBMITTED BY THE 2ND PETITIONER BEFORE THE| ||REGISTRAR OF THE UNIVERSITY| |Exhibit-P14(a)|TRUE COPY OF THE REQUEST DATED 16.08.2023| ||SUBMITTED BY THE 2ND PETITIONER| |Exhibit-P15|A TRUE COPY OF THE MEMO NO. 75697/AD A1-| ||1/2023/AD A1 DATED 18.08.2023 ISSUED BY THE| ||MAHATMA GANDHI UNIVERSITY| |Exhibit-P16|A TRUE COPY OF THE FIR IN CRIME NO. 0996/2023| ||REGISTERED BY THE GANDHI NAGAR POLICE DATED| ||03.07.2023| |Exhibit-P17|A TRUE COPY OF THE MEMO NO.73697/AD A1-| ||1/2023/AD A1 DATED 19.08.2023 ISSUED BY THE| ||RESPONDENT UNIVERSITY| |Exhibit-P18|TRUE COPY OF THE ORDER NO.7297/AD| ||A1/2023/M.G.U. DATED 03.07.2023 ISSUED BY THE| ||1ST RESPONDENT UNIVERSITY| |Exhibit-P19|A TRUE COPY OF THE ORDER NO.7629/AD| ||A1/2023/M.G.U. DATED 13.07.2023 ISSUED BY THE| ||1ST RESPONDENT UNIVERSITY| |Exhibit-P20|A COPY OF THE SUBMISSIONS MADE BY THE 1ST| ||PETITIONER BEFORE THE MEMBERS OF THE| ||SYNDICATE| -3- ## **APPENDIX-WP(C) 28466/2023** RESPONDENT EXHIBITS Exhibit R1 (a) THE MEMO GIVEN TO THE 1ST PETITIONER DATED 08.09.2023. Exhibit R1 (b) THE MEMO GIVEN TO THE 2ND PETITIONER DATED 08.09.2023. ----- ## **APPENDIX OF WP(C) 29663/2023** |PETITIONER EXHIBITS|| |---|---| |Exhibit-P1|A TRUE COPY OF THE ORDER NO.6185/AD-| ||A1/2023/M.G.U. DATED 01.06.2023 ISSUED BY THE| ||1ST RESPONDENT UNIVERSITY| |Exhibit -P2|A TRUE COPY OF THE CERTIFICATE OF TRANSFER OF| ||CHARGES DATED 02.06.2023 ISSUED BY THE 1ST| ||RESPONDENT UNIVERSITY, WITH ENCLOSURES| |Exhibit-P3|A TRUE COPY OF THE REPORT OF THE CONTROLLER OF| ||EXAMINATION DATED 21.06.2023| |Exhibit-P4|A TRUE COPY OF THE ORDER NO. 6923/AD| ||A1/2023/M.G.U. DATED 21.06.2023 OF THE 1ST| ||RESPONDENT UNIVERSITY| |Exhibit-P5|A TRUE COPY OF THE ORDER NO. 7161/AD| ||A1/2023/M.G.U. DATED 27.06.2023 ISSUED BY THE| ||1ST RESPONDENT UNIVERSITY| |Exhibit-P6|A TRUE COPY OF THE MEMO OF CHARGES NO.75697/AD| ||A1-1/2023/AD A1 DATED 30.06.2023 ISSUED BY THE| ||1ST RESPONDENT UNIVERSITY| |Exhibit-P7|A TRUE COPY OF THE REPLY SUBMITTED BY THE 1ST| ||PETITIONER DATED 04.07.2023| |Exhibit-P7(a)|TRUE COPY OF THE REPLY DATED 04.07.2023| ||SUBMITTED BY THE 2ND PETITIONER TO EXHIBIT P6| ||MEMO OF CHARGES| |Exhibit-P8|A TRUE COPY OF THE ORDER BEARING NO.7366/AD| ||A3/2023/M.G.U. DATED 05.07.2023 ISSUED BY THE| ||ASSISTANT<br>REGISTRAR<br>(ADMINISTRATIVE| ||DEPARTMENT) OF THE 1ST RESPONDENT UNIVERSITY| |Exhibit-P9|A TRUE COPY OF THE ORDER NO. 7747/AD| ||A1/2023/M.G.U. DATED 19.07.2023 ISSUED BY THE| ||ASSISTANT REGISTRAR (ADMINISTRATION) OF THE| ||1ST RESPONDENT UNIVERSITY| ## **APPENDIX-WP(C) 29663/2023 -2-** |Exhibit-P10|A TRUE COPY OF THE MEMO BEARING NO. 75697/AD| |---|---| ||A1-1/2023/A.D.A1 DATED 20.07.2023 ISSUED BY| ||THE ENQUIRY OFFICER OF THE 1ST RESPONDENT| ||UNIVERSITY TO THE 2ND PETITIONER| |Exhibit -P11|A TRUE COPY OF THE MEMO NO. 75697/AD A1-| ||1/2023/AD.A1 DATED 20.07.2023 ISSUED BY THE| ||ENQUIRY OFFICER OF THE 1ST RESPONDENT| ||UNIVERSITY TO THE 1ST PETITIONER| |Exhibit-P12|TRUE<br>COPY<br>OF<br>THE<br>ORDER<br>NO.9055/AD| ||A1/2023/M.G.U. DATED 16.08.2023 ISSUED BY THE| ||ASSISTANT REGISTRAR OF THE 1ST RESPONDENT| ||UNIVERSITY| |Exhibit-P13|A TRUE COPY OF THE REQUEST DATED 01.08.2023| ||SUBMITTED BY THE 1ST PETITIONER| |Exhibit-P14|TRUE COPY OF THE REQUEST DATED 16.08.2023| ||SUBMITTED BY THE 2ND PETITIONER BEFORE THE| ||REGISTRAR OF THE UNIVERSITY| |Exhibit -P14(a)|TRUE COPY OF THE REQUEST DATED 16.08.2023| ||SUBMITTED BY THE 2ND PETITIONER| |Exhibit-P15|A TRUE COPY OF THE MEMO NO. 75697/AD A1-| ||1/2023/AD A1 DATED 18.08.2023 ISSUED BY THE| ||MAHATMA GANDHI UNIVERSITY| |Exhibit-P16|A TRUE COPY OF THE MEMO NO. 75697/AD A1-| ||1/2023/AD A1 DATED 19.08.2023 ISSUED BY THE| ||RESPONDENT UNIVERSITY| |Exhibit-P17|TRUE COPY OF THE UNIVERSITY ORDER NO. 9307/AD| ||A1/2023/M.G.U. DATED 26.8.2023| |Exhibit-P18|TRUE COPY OF THE MEMO NO. REG/2/98/2023(1)| ||DATED 7.9.2023 ALONG WITH THE NOTICE ISSUED BY| ||THE ENQUIRY COMMISSION| ## **APPENDIX-WP(C) 29663/2023 -3-** |Exhibit P19|TRUE COPY OF THE MEMO NO. 75697/AD A1-| |---|---| ||1/2023/AD A1 DATED 08.09.2023 ISSUED BY THE| ||MAHATMA GANDHI UNIVERSITY TO THE 1ST| ||PETITIONER, WITHOUT ENCLOSURES,| |Exhibit P20|TRUE COPY OF THE MEMO NO. 75697/AD A1-| ||1/2023/AD A1 DATED 8.9.2023 ISSUED BY THE| ||MAHATMA GANDHI UNIVERSITY TO THE 2ND| ||PETITIONER, WITHOUT ENCLOSURES,| |Exhibit P21|TRUE COPY OF THE ENQUIRY REPORT NO. 75697/AD| ||A1-1/2023/ADA1 DATED 2.8.2023 ISSUED BY THE| ||JOINT REGISTRAR OF THE MAHATMA GANDHI| ||UNIVERSITY.| ||-----|