Sheffiq Hussain v. State of Kerala and Mahatma Gandhi University and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **THURSDAY, THE 22[ND] DAY OF FEBRUARY 2024 / 3RD PHALGUNA, 1945** **WP(C) NO. 33572 OF 2023** ## **PETITIONER:** SHEFFIQ HUSSAIN,AGED 34 YEARS S/O HUSSAIN, ZAMZAM MANZIL, ZILLACOURT WARD, THATHAMPALLY P O, ALAPPUZHA DISTRICT, PIN-688013 IS NOW RESIDING AT HUSSAIN MANZIL, NEAR JAMALUDHEENJUMA MASJID, ARRATTUVAZHI P.O, ALAPPUZHA DISTRICT, PIN: 688007, SENIOR GRADE ASSISTANT, MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM DISTRICT PIN: 686560 BY ADV SHEFFIQ HUSSAIN(Party-In-Person) ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANATHAPURAM, PIN - 695001 2 MAHATMA GANDHI UNIVERSITY REPRESENTED BY REGISTRAR, PRIYADARSINI HILLS, KOTTAYAM DISTRICT, PIN - 686560 3 THE VICE CHANCELLOR MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM DISTRICT, PIN - 686560 4 THE CHANCELLOR, KERALA RAJ BHAWAN , THIRUVANANTHAPURAM DISTRICT, PIN - 695099 BY ADVS. S.PRASANTH S.GOPAKUMARAN NAIR (SR.)(K/258/1973) SRI. SURIN GEORGE IPE, SC R4 BY SRI.P.SREEKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 15.02.2024, THE COURT ON 22.02.2024 DELIVERED THE FOLLOWING: -2- WP(C) No.33572 of 2023 ## **MOHAMMED NIAS C.P., J.** **- - - - - - - - - - - - - - - - - - - - -** WP(C) No.33572 of 2023 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of February, 2024 ## **JUDGMENT** The petitioner entered service as a Senior Grade Assistant on 14.2.2019 at Mahatma Gandhi University. On 26.10.2019, the Pro-Vice Chancellor issued proceedings granting special benefits to a deaf and dumb student, Gokul Krishana M.S. (B Sc Model I Mathematics) of Sree Sankara Vidyapeetom College, granting exemption from attending the examination for second language for the first Semester October 2019 and second semester October 2020 and allotted 25% grade marks / 10% grace grade points. Accordingly, Gokul did not attend the examination, but when the results were published, it was seen that Gokul was absent for the second language, Sanskrit for the above two-semester examination and was declared failed. On 25.8.2021, the Principal of Sree Sankara Vidyapeetom College submitted a complaint to the Controller of Examinations of the second respondent University in this regard. The complaint, Ext.P1, was forwarded from the Tapal examination section to the petitioner for further action on receipt, of which, the petitioner created a file as DDFS 115855/CBCSS 181/2021. The petitioner forwarded the said file to the immediate Section Officer on 3.9.2021, and the Section Officer, in turn, forwarded the same to the Assistant Registrar on the very same day for further action. The Assistant Registrar -3- ## WP(C) No.33572 of 2023 returned the file to the Section Officer with a note 'please discuss'. However, the Section Officer, without noticing the note from the Assistant Registrar, returned the file to the petitioner for further action. He noticed the note of the Assistant Registrar which read 'Please discuss'. Subsequently, the petitioner, for more clarification, put up a remark, 'Please write as a note what is the matter she wants to discuss' and resubmitted the file again to the Section Officer on 6.9.2021. The Section Officer approached the Assistant Registrar, discussed the matter and returned the file to the petitioner by advising him to take further action on the basis of the examination manual. The petitioner submitted the file directly to the Deputy Registrar, who, after perusing the file, intimated to the Section Officer that the remarks noted by the petitioner were serious insubordination, and accordingly, the Deputy Registrar returned the file to the Section Officer on 6.9.2021. The petitioner submits that the file was disposed of on 6.9.2021, and there is no mechanism or methodology to retrieve the file once it is disposed of. On 9.9.2021, with the help of the IT Cell, the petitioner recreated a new file with all the attachments and sent the file through the proper channel to the concerned section. Later, on 21.11.2011, the Controller of Examinations issued orders to grant the University average mark to Gokul, and accordingly, his grievance was redressed. 2. On 26.11.2021, the petitioner was served with a transfer order transferring him from CBCSS 18 Section to ACB 5 Section pending enquiry on the allegation that the petitioner had committed insubordination and disposed of the file. This order is marked as Ext.P2. On 24.1.2022, the petitioner was also issued with a memo of charges, Ext.P3, seeking his explanation within 15 days to which the petitioner has submitted Ext.P4 reply. The petitioner submits that after the -4- WP(C) No.33572 of 2023 reply, no Presenting Officer was appointed, nor was a copy of the order or permission to cross-examine the witnesses granted to the petitioner. He was summoned by the enquiry officer and was issued a questionnaire to which he had answered. Ext.P5 enquiry report found that the petitioner had committed insubordination. The petitioner submits that he was not served with the enquiry report. On 13.5.2022 on receipt of Ext.P5, the second respondent issued a memo of charges to the petitioner proposing to impose a punishment withholding the increments permanently for six months (cumulative effect) and sought an explanation within seven days. The memo was marked as Ext.P5, to which the petitioner submitted Ext.P7 reply on 20.5.2022. On 21.06.2022, the third respondent issued an order to the petitioner imposing a punishment of barring of one increment permanently for six months (cumulative effect) by Ext.P8 order. The petitioner had submitted an application, Ext.P9, to the second respondent to give copies of the documents and evidence relied on by the enquiry officer, but the same was rejected on 3.8.2022. The third respondent, on 2.7.2022, again issued another punishment order imposing the very same punishment and cancelled Ext.P8 order without assigning any particular reason. The petitioner states that he had filed WP(C)No.28508/2022 challenging Ext.P10 order, producing the documents that he obtained under the Right to Information Act. Through Ext.P11 judgment, the writ petition was allowed, directing the petitioner to prefer an appeal against Ext.P10 order. Accordingly, the petitioner preferred an appeal, which is marked as Ext.P12. The petitioner received a notice to appear for a personal hearing before the fourth respondent for considering Ext.P12 appeal on 5.7.2022, and the petitioner appeared in person for the hearing on 22.07.2023. After hearing both the parties, Ext.P10 order was modified by cancelling the debarring of one increment for six months to one barring of one -5- ## WP(C) No.33572 of 2023 increment without cumulative effect by Ext.P13 order. The petitioner challenges Ext.P5 enquiry report, Exts.P10 and P13 orders. 3. The University has filed a counter stating that the petitioner was imposed with the minor penalty of punishment of withholding of one increment for six months with cumulative effect, based on the evidence that was let in and on the basis of the enquiry report, which clearly found indiscipline and insubordination of the petitioner. The University has also complied with the order of the Chancellor in appeal, which altered and reduced the punishment, withholding one increment for six months with cumulative effect. It is also pointed out that as per the relevant Mahatma Gandhi Statute, for imposing a minor penalty, the only requirement is to put the petitioner's notice, which he did, and Exts.P4 and P7 would clearly show that the petitioner had admitted the charges and had prayed for leniency in punishment. It was also found that he had ignored the superior's instructions, and in the enquiry, it was found that the file was deliberately deleted by the petitioner in order to hide the insubordination and indiscipline on his part, and it was not done by mistake or due to lack of knowledge. The records clearly showed the guilt of the petitioner. The enquiry officer had conducted an enquiry in the most fair and transparent manner. The petitioner was given a lenient treatment in appeal by the Chancellor, no grounds whatsoever are made out to interfere with the writ petition. 4. The petitioner has filed a reply affidavit stating that the enquiry report was not furnished to him, he did not get a chance to cross-examine, and the enquiry officer took the oral evidence from the IT Cell Section Officer as an opinion from the third person, that it was the petitioner to inform the superiors -6- WP(C) No.33572 of 2023 that there was a software error in DDRS files 5. Heard the petitioner as the party in person, Sri Surin George Ipe, learned Counsel for the University and Sri P.Sreekumar, Learned Counsel for the Chancellor. 6. The petitioner contends that he was not served with a copy of the enquiry report and that the entire disciplinary proceedings are vitiated. It is also stated that Ext.P10 was passed without hearing him and that no show-cause notice was issued which is mandated under the Regulations concerned. The petitioner has cited the decisions of this Court in Arunkumar V. v. Information Kerala Mission (IKM), Tvm and others [2015 (5) KHC 549], Purushothaman A and another v. State Farming Corporation of Kerala Ltd. and others (2019 KHC 113), Sudhakaran C.B.(Dr.) v. The Cochin Educational Society and another [2009 (1) KLJ 685], the order in CRP No. 682/2009 dated 27.4.2012, the judgments WP(C)No.12563/2020 dated 18.11.2021 and OP No.5391/2002 dated 30.05.2014 7. Learned counsel for the University, on the other hand, submitted that the judgment in WA No.1706/2023 dated 30.9.2023 covers the issue, holding that for imposing a minor penalty, all that is required is compliance with Statute 35 A (iii) in Part III under Chapter IV of Mahatma Gandhi University Statute 1997. 8. Having considered the rival submissions and, in particular, Ext P4 reply furnished by the petitioner to the allegations raised against him, and Ext.P7 after the receipt of the show cause notice post the completion of the enquiry, it is -7- ## WP(C) No.33572 of 2023 clear that the petitioner has admitted in unmistakable terms the acts alleged against him and pleaded leniency in the matter of punishment, stating that what he did was unintentional. The present stand of the petitioner that was not served with the copy of the enquiry report or the other vitiating factors was never taken as a ground at any point of time before the completion of the enquiry or the imposition of the punishment. The relevant Statutes in Part III under Chapter IV of Mahatma Gandhi University Statute 1997 reads as follows: “ **35. Imposition of penalties** :- The following penalties may for good and sufficient reasons and as hereafter provided be imposed on a University employee namely:- ## **A. Minor Penalties** ## (i) Censure; (ii) Fine (in the case of persons on whom such penalty may be imposed under these Statutes); (iii) Withholding of increments or promotion;” ## xxxx “55. Inquiry:-No order imposing any of the penalties specified in items(i) to (iv) of Statute 35 shall be passed except after - (a) the University employee is informed in writing of the proposal to take action against him and of the allegations on which it is proposed to be taken and given an opportunity to make any representation he may wish to make: (b) such representation, if any, is taken into consideration by the disciplinary authority.” 9. A reading of the above would clearly show that since it was only a case of imposing of minor penalty, the requirements of the section are met in the instant case. -8- WP(C) No.33572 of 2023 10. It is pertinent to note a ground taken by the petitioner in Ext.P12 appeal memorandum. “9.Thereafter the appellant due to his innocence and lack of service experience had made an attempt to erase the alleged note, but unfortunately the file itself got disposed off on 06/09/2021”. 11. This shows without any doubt that the petitioner had deliberately attempted to delete the files which were the subject matter of the proceeding, aimed at the destruction of evidence. The petitioner's contention that he submitted Ext.P4 and Ext.P7 reply without getting all the copies of the documents, cannot be accepted. Likewise, he was heard by the Chancellor before passing the appellate order. The Chancellor had considered the arguments of both sides and found that the petitioner had categorically admitted the disposal of electronic files, and his only defence was that it was inadvertently and not intentionally or deliberately, and it happened due to the illiteracy and lack of knowledge in computers and he had even apologized for his omission and had sought pardon for his inadvertent mistake. It was taking note of the said plea of the petitioner and also the fact that the University was also generous in not imposing a harsher punishment. The Chancellor still reduced the punishment to one of withholding increment for six months without cumulative effect. In the instant case, on the facts already noticed above, I do not think that the order of the Chancellor calls for any interference. The petitioner should consider himself distinctly lucky to have escaped a harsher punishment in the facts of the case and also based on the admissions made by him apart from the attempt to destroy evidence noted above. None of the judgments cited apply to the facts of the case in the face of statutory provisions applicable to the petitioner, as mentioned -9- WP(C) No.33572 of 2023 above. The challenge to enquiry proceedings on the facts of the case cannot be accepted. The requirements of the statute were met by the University while conducting the enquiry. The scope of judicial review in these matters being limited, I do not find any factor, much less any vitiating factor, to interfere with the disciplinary proceedings. There is no merit in the writ petition, and accordingly, the same is dismissed. Sd/- **MOHAMMED NIAS C.P.** **JUDGE** dlk/17.2.2024 -10- WP(C) No.33572 of 2023 ## **APPENDIX OF WP(C) 33572/2023** PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED 25/08/2021 SUBMITTED BY THE PRINCIPAL IN CHARGE OF SREESANKARAVIDYAPEETOM COLLEGE TO THE EXAMINATION SECTION OF 2ND RESPONDENT UNIVERSITY EXHIBIT P2 TRUE COPY OF THE TRANSFER ORDER DATED 26/11/2021 WITH PENDING ENQUIRY BY 3RD RESPONDENT. EXHIBIT P3 THE TRUE COPY OF THE MEMO OF CHARGES WITH STATEMENT OF ALLEGATION DATED 24/01/2022 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4 THE TRUE COPY OF THE EXPLANATION DATED 08/02/2022 SUBMITTED BY THE PETITIONER. EXHIBIT P5 THE TRUE COPY OF THE ENQUIRY REPORT SUBSEQUENTLY OBTAINED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P6 THE TRUE COPY OF THE MEMO DATED 13/05/2022 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P7 THE TRUE COPY OF THE REPLY STATEMENT DATED 20/05/2022 SUBMITTED BY THE PETITIONER. EXHIBIT P8 THE TRUE COPY ORDER FINALIZING THE PUNISHMENT ISSUED BY 3RD RESPONDENT DATED 21/06/2022 EXHIBIT P9 THE TRUE COPY APPLICATION DATED 02/07/2022 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P10 THE TRUE COPY OF THE ORDER DATED 02/07/2022 ISSUED BY THE 3RD RESPONDENT IMPOSING THE VERY SAME PUNISHMENT AGAINST THE PETITIONER EXHIBIT P11 THE TRUE COPY OF THE CERTIFIED COPY OF THE JUDGMENT IN WPC NO: 28508/2022 DATED 28/09/2022. EXHIBIT 12 THE TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE 4THRESPONDENT UNDER STATUTE 61(2) OF CHAPTER IV, PART III OF THE -11- ## WP(C) No.33572 of 2023 MAHATMA GANDHI UNIVERSITY FIRST STATUTE 1997 ON 18/10/2022 EXHIBIT P13 THE TRUE COPY OF THE ORDER DATED 18/09/2023 ISSUED BY THE 4TH RESPONDENT BY MODIFYING THE PUNISHMENT IMPOSED AGAINST PETITIONER IN THE EXHIBIT P 10 ORDER