## **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.|
||-----|