Sree Sankara Sankaracharya University of Sanskrit v. Satheesh Kumar K.A. and Sundaram Govind

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANNIE JOHN WEDNESDAY, THE 6TH DAY OF DECEMBER 2017 / 15TH AGRAHAYANA, 1939 WA.No. 2164 of 2017 IN WPC. 21020/2015 AGAINST THE ORDER/JUDGMENT IN WP(C) 21020/2015 of HIGH COURT OF KERALA DATED 26-09-2017 ## APPELLANTS/RESPONDETS 1-4 IN WP: - 1 SREE SANKARA SANKARACHARYA UNIVERSITY OF SANSKRIT, REPRESENTED BY ITS REGISTRAR, KALADY-683 574. - 2 THE SYNDICATE SREE SANKARA SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY-683 574. 3 THE VICE CHANCELLOR, SREE SANKARA SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY-683 574 ## 4 THE REGISTRAR SREE SANKARA SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY-683 574 BY ADV.SRI.PRASANTH S, SC ## RESPONDENTS/PETITIONER, 5TH RESPONDET IN W.P: 1. SRI. SATHEESH KUMAR K.A. LECTURER (NON-UCG) UNDER ORDERS OF REMOVAL, DEPARTMENT OF PAINTING, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,KALADY, ERNAKULAM - 683 574. 2. SHRI.SUNDARAM GOVIND, DISTRICT JUDGE (RTD) MANU MAYA, EAST KADUNGALLOOR, ALUVA-683 102 R BY SRI.DILISH JOHN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.No. 2164 of 2017 : 2 : ## **APPELLANTS' ANNEXURES** : ANNEXURE 1: TRUE COPY OF THE EXTRACT OF CHARGE SHEET IN FIR NO.78/2015 REGISTERED IN KALADY POLICE STATION. ANNEXURE 2: TRUE COPY OF U.O NO. SWC/9380/SSUS/2006(1) DATED 21.05.2013 ISSUED BY THE FIRST APPELLANT. ## **RESPONDENTS' ANNEXURES:** NIL /True Copy/ PS to Judge. rv ## **K. SURENDRA MOHAN & ANNIE JOHN, JJ.** **-------------------------------------------** ## **W.A. No. 2164 of 2017** **-----------------------------------------Dated this the 6[th] day of December, 2017.** ## **JUDGMENT** ## K. Surendra Mohan,J. The appellants, Sree Sankara Sankaracharya University of Sanskrit and its functionaries are before us in appeal, aggrieved by the judgment of the learned single Judge dated 26.09.2017 allowing W.P. (C) No. 21020 of 2015. The first respondent herein is the writ petitioner. He was proceeded against alleging various acts of misconduct set out in Ext.P4 memo charges. He was also found guilty of the charges in a domestic enquriy and dismissed from service. He filed the writ petition, challenging the proceedings imposing punishment on him, evidenced in the writ petition by Exts.P15 and P16. The learned single Judge has interfered with the punishment imposed and reduced the same. 2. The short facts necessary for the disposal of the appeal are summarised as follows: The first respondent was appointed as a tutor under the respondents on 09.12.1997. The University, thereafter, gave him additional charge of the NCC unit that was functioning in the University since 1997. While holding the charge of NCC during the year 2013, the students who were enrolled by him were not accepted by the NCC pointing out that they had not been enrolled on the date proposed by W.A. No. 2164/2017 -2- him earlier and in the presence of the authorised personnel of the NCC. The students were also agitated at the action that followed, of placing the NCC unit of the University under suspended animation. They had approached this Court by filing W.P.(C) No. 30397 of 2013, challenging the action of the NCC authorities and seeking a direction to regularise their services. The said writ petition was disposed of by Ext.R1(k) judgment dated 18.12.2013 directing the authorities to consider the matter and to take a decision regarding the regularisation of the registration of the students. 3. The incident prompted the University to initiate disciplinary action against the first respondent. He was served with Ext.P4 memo of charges. Thereafter, a domestic enquiry was conducted by appointing a retired District Judge as the enquiry officer. The first respondent did not participate in the enquiry, according to him, for the reason that he was not supplied with the documents, the copies of which had been sought for by him. He was found guilty by the enquiry report dated 12.05.2015 evidenced herein by Ext.P9. Thereafter, the syndicate of the University authorised the Vice Chancellor to take necessary action on the report. The first respondent was served with Ext.P13 dated 29.05.2015 calling for his reply, to be submitted within 7 days. Since no reply was received, the syndicate proceeded to impose on him the punishment of removal from service. It was challenging the said proceedings that the writ W.A. No. 2164/2017 -3- petition was filed. It was contended that, the first respondent had not been served with any of the documents sought for by him, denying an effective opportunity to defend himself at the domestic enquiry. For the above reason, it was contended that the principles of natural justice were violated. It was further contended that all the allegations related to his conduct as the person in charge of the NCC Unit. There were absolutely no allegations regarding the discharge of his duties as a tutor under the University. Since his appointment as the Officer in charge of NCC was made by the Ministry of Defence under the NCC Act of 1948, it was contended that that action could be initiated against him only under the provisions thereof. Since his conduct as a tutor under the University was not assailed, the punishment of removal from service imposed on him was unwarranted, according to him. 4. The contentions of the first respondent were disputed by the appellants, who filed a counter affidavit producing various documents. It was contended that the first respondent had been guilty of various lapses in the discharge of his duties as tutor in charge of the NCC unit. His conduct gave rise to serious allegations. Consequently, the students were put to a lot of hardships. Considering the seriousness of the charges levelled against him and his defiant attitude in trying to justify his actions, it was contended that the punishment imposed was perfectly justified. W.A. No. 2164/2017 -4- 5. The learned single Judge considered the respective contentions and found that all the allegations against the first respondent were related to the discharge of his duties as tutor in charge of the NCC unit. There were no allegations against the manner in which he had discharged his duties as a tutor of the university. He had been put in charge of the NCC from 1997 onwards. The unfortunate incident had taken place in the year 2013. According to the learned single Judge, if he was found to be unsuitable for discharging the duties of the NCC unit, the proper course was to have removed him from the said position. There was absolutely no justification for removing him from service. In the above view of the matter, the writ petition has been allowed and the impugned orders have been set aside. The learned single Judge found that, considering the nature of the allegations levelled against the first respondent, it was sufficient to impose a minor penalty of censure and to issue a direction that he would not be entitled to receive his salary and other benefits during the period that he was kept under suspension. The aggrieved, the University is before us in appeal. 6. According to Adv. Prasanth S., who appears for the appellants, the allegations levelled against the first respondent were serious as is evident from a perusal of Ext.P9 memo of charges. He had conducted parades and enrollment of students without the permission or approval of the NCC knowing fully well that he was not permitted to do so. He W.A. No. 2164/2017 -5- had unauthorisedly made a seal and designation describing himself as “Officer Commandant” of the NCC and had used the same for various purposes. He had refused to abide by the order issued by the University to return his identity card and other documents. He had refused to hand over charge to the tutor, who had been put in charge of the NCC, in his place. Consequently, a situation arose where the University had to take possession of the office as well as the articles therein with the help of the police and his action had caused a lot of hardships to the students. They were ultimately driven to this Court to file a writ petition for the purpose of having them duly registered in the NCC. His conduct was unbecoming of a tutor of the University and therefore, a domestic enquiry was conducted into the allegations against him. The enquiry found him guilty. The report was considered by the Syndicate after furnishing a copy thereof to the first respondent. He had not participated in the enquiry. Nor had he responded to the communication seeking his objections to the enquiry report. Therefore, the University had proceeded to impose a punishment of removal from service on him. It is contended that, this Court exercising jurisdiction under Article 226 of the Constitution of India, had no power or authority to interfere with the punishment imposed by the disciplinary authority and to reduce the same. The counsel places reliance on the decisions of the Apex Court on the point in support of his submissions. W.A. No. 2164/2017 -6- 7. Adv. Dilish John, who appears for the first respondent, on the other hand, points out that though his client had been working as a tutor under the appellants from 1997 onwards, there has not been any occasion for the authorities to find fault with the manner of functioning or the discharge of his duties as a tutor. He had, in addition, been placed in charge of the NCC unit that was functioning in the University. With respect to the said activities also, there were absolutely no complaints against him in the past. The complaint had arisen in the year 2013, according to the learned counsel, out of personal animosity with some higher-ups. After he was suspended from service, he had requested for being supplied with copies of a number of documents on which he wanted to rely on. But he was not supplied with such copies. In view of the above, he was not in a position to participate in the domestic enquiry. According to the learned counsel, after the enquiry was over, he had been served with Ext.P13 calling for his explanation or objections to the same. He had submitted his reply on 30.05.2015. Though it was received by the University on 02.06.2015, the same was not considered by the Syndicate on 19.06.2015 before Ext.P15 decision was taken. In the meanwhile, according to the learned counsel, the Vice Chancellor had responded to Ext.P12 through Ext.P13, to which also the first respondent had replied by submitting Ext.P14. In spite of receipt of the reply of the said respondent, the syndicate was not apprised of the W.A. No. 2164/2017 -7- same before Ext.P15 decision was taken. It is the contention of the learned counsel that, the first respondent was not given adequate opportunity to put forward his defence and to prove his case. Therefore, it is contended that there has been violation of principles of natural justice. The learned single Judge has, in view of the above situation, interfered with the punishment imposed. According to the learned counsel, there are absolutely no grounds to interfere with the same in appeal. 8. Heard Sri Prasanth S, the learned counsel for the appellants and Sri Dilish John, the learned counsel for the 1[st] respondent. 9. We have considered the arguments advanced before us anxiously. As rightly contended by the learned counsel for the first respondent, the allegations against the first respondent are confined to the discharge of his duties as the Lecturer in charge of the NCC unit of the University. In other words, there are absolutely no allegations about the manner in which he was discharging his duties as a Lecturer of the University. The first respondent had been put in charge of the NCC unit in addition to his duties as the Lecturer of the University. As rightly found by the learned single Judge, in the wake of the allegations levelled against him, it was sufficient that he was divested of his charge of the NCC unit of the University. Instead of that, the University appears to have launched a vindictive procedure against him by ordering a domestic W.A. No. 2164/2017 -8- enquiry into the allegations. It is true that the first respondent had not co-operated with the enquiry. Therefore, the enquiry had proceeded _ex parte_ . The allegation that the first respondent had not been supplied with copies of the documents requested for by him, remains. Exts.P13 and P14 show that the appellants were aware of the objections raised by the first respondent by submitting Ext.P12. We do not find any reference to the said contentions in the proceedings of the Syndicate, Ext.P15 or in the order removing the first respondent, Ext.P16. Be that as it may, the fact remains that the allegations against the first respondent were all confined to the discharge of his duties as the lecturer in charge of the NCC unit. Therefore, it was sufficient that he was divested of the charge that was given to him. In the absence of any allegation regarding the manner of discharge of his duties as a lecturer, we are also not satisfied that there was no justification for the University to impose the punishment of removal from service on him. The punishment of removal from service imposed on him in the absence of any allegation regarding the manner of discharge of his duties as a lecturer was shocking to the conscious of the Court and has been rightly interfered with and reduced by the learned single Judge. 10. The learned counsel for the appellants placed reliance on the decision in _Om Kumar & others v. Union of India_[1] . The Apex Court has, in 1 (2001) 2 SCC 386 W.A. No. 2164/2017 -9- the said decision, held that the court should not normally interfere with the punishment imposed by the disciplinary authority on the basis of a domestic enquiry that was conducted. In such cases, the role of the courts would be confined to ascertaining whether the authority had acted illegally or omitted relevant factors from consideration or had taken irrelevant factors into consideration or whether his view was one which no reasonable person could have taken. It has further been laid down that normally the court would not substitute one punishment for the other. However, in rare situations, the Court could award an alternative penalty. The counsel has also placed reliance on the decision in _Divisional Controller, KSRTC (NWKRTC) v. A. T Mane_[2] to point out that once a domestic tribunal, based on the evidence, comes to a particular conclusion, normally it is not open to the Appellate Tribunal and Courts to substitute their subjective opinion in place of the one arrived at by the domestic tribunal. What is required to be taken note of from the above position is that though normally interference with the quantum of punishment by a court in exercise of the jurisdiction under Article 226 of the Constitution of India would be rare, it is permissible in appropriate cases. In the present case, as we have already found, the first respondent has been imposed with a punishment of removal from service as lecturer of the first respondent University, despite the fact 2 2005(3) SCC 254 W.A. No. 2164/2017 -10- that there are no allegations against the manner of discharge of his duties as a lecturer. The allegations against him are all confined to the manner of functioning as the lecturer in charge of the NCC unit. Therefore, the allegations, even if assumed to be proved, cannot support an imposition of the punishment of his removal from service as a lecturer of the University. However, taking into account the gravity of the charges proved against him, the learned single Judge has imposed a minor penalty of censure on him. He has also been directed to forgo the arrears of salary in respect of the period that he was suspended from service. We are satisfied that the said punishment is sufficient. For the foregoing reasons, we find no grounds to interfere with the findings of the learned single Judge. The appeal fails and is accordingly dismissed. **K. SURENDRA MOHAN, JUDGE.** **ANNIE JOHN, JUDGE.** _Rv_ W.A. No. 2164/2017 -11-