Shan P.D. and Mohammed Shameel v. The Principal, AWH Engineering College, Kuttikattor, Calicut; AWH Engineering College, Calicut; University of Calicut; Jayakrishnan (minor)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932** **WP(C).No. 31274 of 2010(H)** **--------------------------------------** ## **PETITIONER(S):** - **----------------------** **1. SHAN P.D., S/O.HASSAN, PEZHUNGATIL DEVASWOMPARAMBIL HOUSE, PULIKKAL P.O., MALAPPURAM DISTRICT, PIN-673637. (S3 ELEC. AWH ENGINEERING COLLEGE, KUTTIKKATTOR, CALICUT.** **2. MOHAMMED SHAMEEL, S/O.ALAVIKKUTTY, KOLLATHKANDY HOUSE, PULLIPARAMBA P.O., CHELEMBRA, MALAPPURAM. (S3 ELEC. AWH ENGINEERING COLLEGE, KUTTIKKATTOR, CALICUT. )** **BY ADV. SRI.P.SAMSUDIN** ## **RESPONDENT(S):** **-------------------------** **1. THE PRINCIPAL, AWH ENGINEERING COLLEGE, KUTTIKKATTOR, CALICUT.** **2. AWH ENGINEERING COLLEGE, REPRESENTED BY ITS PRINCIPAL, KUTTIKKATTOR, CALICUT.** **3. UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, THENHIPPALAM, MALAPPURAM.** **4. JAYAKRISHNAN, AGED 17 YEARS (MINOR REPRESENTED BY MOTHER),RAMADEVI AMMA, ROOM NO.A5, SAFA MUHSINA APARTMENT, KOHINOOR, CALICUT UNIVERSITY P.O., THENJIPPALAM, MALAPPURAM DISTRICT** **R4 BY ADV. SRI.T.G.RAJENDRAN R1 & R2 SRI.THOMAS ANTONY** **SRI.TITUS MANI** **R3 BY ADV .SRI.P.C.SASIDHARAN,SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2010, ALONG WITH WP(C) NO.32415 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO.31274/2010-H** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF HE ACTION TAKEN REPORT AND SUSPENSION ORDER ISSUED BY THE 1ST RESPONDENT DT.20-09-2010.** - **P2 COPY OF THE NOTICE CONFIRMING SUSPENSION DT.22-09-2010.** - **P3 COPY OF THE LETTER DT. 25-09-2010 WRITTEN BY THE 1ST RESPONDENT TO THE SUB INSPECTOR OF POLICE.** - **P4 COPY OF THE ACKNOWLEDGMENT FOR REGISTRATION OF CR.NO.668/2010 OF MEDICAL COLLEGE POLICE STATION CALICUT.** ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A.TO. JUDGE** ## ANTONY DOMINIC, J. ------------------------- W.P.(C.) Nos.31274 (H) & 32415 (B) of 2010 --------------------------------Dated, this the 27[th] day of October, 2010 ## J U D G M E N T Issue raised in these writ petitions are connected, and therefore, these cases were heard together and are disposed of by this common judgment, treating WP(C) No. 31274/2010 as the leading case. 2. Petitioners in these writ petitions are students of AWH Engineering College, affiliated to Calicut University. Ext.P1 is a notice issued by the Principal of the College on 17/09/2010. In this notice, it is stated that on the basis of the enquiry report submitted by the Committee appointed by the Principal to enquire into the incidents related to ragging of the first year students, the petitioners herein are debarred from attending the classes for the periods mentioned in the said notice. Before the expiry of the period, the Principal published Ext.P2 notice stating that the suspension period of the students is extended until the Police enquiry is completed WP(C) Nos.31274 & 32415/2010 -2- and a report is received. It is challenging Exts.P1 & P2, the writ petition is filed. 3. The Principal has filed a counter affidavit. According to the Principal, he received a complaint by e-mail on 01/09/2010 on a suspected ragging incident that took place outside the College campus. It is stated that on 02/09/2010, an Enquiry Committee was constituted to investigate the issue. In the enquiry, prima facie case was found against petitioner Nos.1 & 2 in WP(C) No. 32415/2010 of having ragged the 4[th] respondent in WP(C) No. 31274/2010. Therefore, they were suspended from the College pending enquiry and the matter was also reported to the Medical College Police Station. It is stated that on further enquiry by the Enquiry Committee, more such incidents relating to ragging were revealed and that the Committee randomly questioned 18 first year students, including the 4[th] respondent mentioned above and his mother. It is stated that though the students did not disclose names or submitted written complaints out of fear, the Committee identified four other WP(C) Nos.31274 & 32415/2010 -3- senior students, who are the remaining petitioners in these writ petitions, of having involved in acts amounting to ragging. It is stated that the Enquiry Committee submitted its report on 17/09/2010. The report thus disclosed involvement of a total of six students and accordingly, the remaining four students were also placed under suspension, and a further report was made to the Police. It is stated that all actions of the Principal have been taken in the aforesaid background. 4. The contention raised by the learned counsel for the petitioners is only against the suspension of the petitioners. According to them, in terms of the provisions contained in the Kerala Prohibition of Ragging Act, 1998, suspension is permissible only as per Section 6 of the Act, and that such suspension can only be on a written complaint of ragging made by the student / parent / guardian / teacher of an educational institution. It is stated that even going by the averments in the counter affidavit, except in the case of petitioners 1 & 2 in WP(C) No. 32415/2010, there is no written complaint against the other petitioners. WP(C) Nos.31274 & 32415/2010 -4- 5. I have considered the submissions made. 6. The Kerala Prohibition of Ragging Act, 1998 provides for penalty for ragging and dismissal of student convicted of having committed an offence of ragging. Pending such proceedings, the student can be placed under suspension as per Section 6 of the Act, which reads as under :- “Suspension of student.- (1) Whenever any student or, as the case may be, the parents or guardian, or a teacher of an educational institution complains, in writing, of ragging to the head of the educational institution, the head of that educational institution shall, without prejudice to the foregoing provisions, within seven days of the receipt of the complaint, enquire into the matter mentioned in the complaint and, if, prima facie, it is found true, suspend the student who is accused of the offence, and shall, immediately, forward the complaint to the police station having jurisdiction over the area in which the educational institution is situate, for further action. (2) Where, on enquiry by the head of the educational institution, it is proved that there is no substance prima facie in the complaint received under sub-section (1), he shall intimate the fact, in writing, to the complainant.” Section 6 of the Act has been considered by this Court in Alpha Jose v. State of Kerala (2006(3) KLT 886) and in the judgment it has been held thus :- “..... No one can have any doubt that an educational agency has WP(C) Nos.31274 & 32415/2010 -5- inherent authority to take disciplinary action against students engaged in ragging which is gross indiscipline. In fact many grave acts of ragging amount to criminal offences punishable under various provisions of the IPC. Therefore, even before passing of the Act, ragging could be dealt with by the law enforcing agencies and the educational institutions. However, when the Legislature has enacted a special law providing for punishment and for disciplinary action against students for ragging, the authorities are bound by the statutory provisions and it is the duty of this Court to examine whether the action taken is authorised under the statute or otherwise arbitrary warranting interference. The Act is very brief and I am afraid whether in the course of achieving brivity, the Legislature has missed many matters which should have found a place in the Act. So far as suspension is concerned, S.6 of the Act authorises it only if there is written complaint by the student, parent or guardian or teacher of the educational institution. Admittedly neither the victim nor any of the persons referred to in S.6 has lodged a complaint against the petitioners before the University demanding their suspension. University admittedly suspended the petitioners purely based on the criminal complaint. The Act before providing for suspension of students under S.6, provides for prosecution and penalty for ragging under S.4. Mandatory provision for dismissal of a student convicted of ragging is provided under S.5. However, Legislature has consciously avoided provision for automatic suspension or presumption of a prima facie case for suspension merely on filing of a criminal complaint on police report or on private complaint. Obviously the Legislature did not want to deprive a of educational facilities merely on filing of a criminal complaint. Legislature will be well aware of the not so infrequent filing of untenable criminal complaints against less influential people even by police. Therefore, S.6 authorises suspension only on written complaint by WP(C) Nos.31274 & 32415/2010 -6- any person named therein, and only if the educational agency is prima facie satisfied that the allegation of ragging is true. This provision certainly gives a handle to the educational institution to examine prima facie case based on a criminal complaint, though complaint does not by itself give rise to a presumption of prima facie case. In the first place in this case I find in the absence of a written complaint by any of the persons referred to in S.6, suspension of the petitioners on 26.11.2005 and the continued retention of it, is unauthorised under the Act. Even though statute does not authorise the educational institution to initiate suo motu action for suspension, I am of the view that an educational institution has inherent authority to take note of ragging from any source of information and can initiate disciplinary proceedings against the students involved as part of discipline in the institution, without any statutory power authorising it. However, the next question to be considered here is whether the suspension of the petitioners six months back and the present order for it's continuation indefinitely is justified or not. Suspension authorised under S.6 of the Act is only when there is a prima facie case. I do not think even in exercise of the inherent power of the educational institution assumed by this Court, students can be suspended on allegation of ragging without establishing a prima facie case about the allegation.” 7. A Division Bench of this Court also had occasion to deal with the aforesaid provision of the Act in its judgment in Arunraj v. Kerala Agricultural University (2009(1) KLT 682), paragraph 21 of which reads as under:- “21. The head of the educational institution is empowered to WP(C) Nos.31274 & 32415/2010 **==> picture [15 x 9] intentionally omitted <==** suspend a student if a complaint of ragging is received against him from any student, parent, guardian or a teacher of an educational institution and if the complaint is prima facie found to be true. More significantly, if the head of the institution fails or neglects to take action under S.6 on receipt of a complaint he shall be deemed to have abetted the offence of ragging punishable under S.4 of the Act.” 8. Although the Principal of the College, as a disciplinary authority of the Institution has the inherent disciplinary control over the students and has the power to deal with such erring students, still in the case of ragging, the manner in which a delinquent student can be dealt with, has been expressly provided in Section 6 the Act. When a student is to be placed under suspension under the Act, necessarily the Principal can suspend the student only in compliance with the provisions of the Act. This provision is Section 6, which in categorical terms provides that suspension is permissible only when a written complaint is received. This provision has been upheld by this Court in the judgments referred to above. Admittedly, written complaint, in so far as the petitioners 3 & 4 in WP(C) No.32415/2010 and the petitioners in WP(C) No. WP(C) Nos.31274 & 32415/2010 -8- 31274/2010, has not been made by the student, parent, guardian or teacher. 9. In such a situation, although the students are liable to be proceeded under Section 4 of the Act, the aforesaid students could not have been placed under suspension under Section 6 of the Act. In that view of the matter, the suspension of the petitioners herein except petitioners 1 & 2 in WP(C) No.32415/2010, is illegal, and therefore their suspension will stand set aside. It is made clear that this Court has not expressed anything, which will affect the proceedings initiated by the Principal under Section 4 of the Act. The College is directed to admit the students, except petitioners 1 & 2 in WP(C) No.32415/2010, and permit them to continue their studies without prejudice to further actions, in terms of the Act. These writ petitions are disposed of as above. (ANTONY DOMINIC, JUDGE) jg