Suresh Kumar C. v. Zamorin Raja of Calicut and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: ## THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 27TH DAY OF AUGUST 2013/5TH BHADRA, 1935 ## WP(C).No. 21292 of 2013 (J) ---------------------------- PETITIONER(S): - ------------------ SURESH KUMAR.C ASSOCIATE PROFESSOR (UNDER SUSPENSION) DEPARTMENT OF ENGLISH THE ZAMORIN'S GURUVAYURAPPAN COLLEGE, CALICUT-14. ## BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): -------------------- 1. THE ZAMORIN RAJA OF CALICUT THE EDUCATIONAL AGENCY OF THE ZAMORIN'S GURUVAYURAPPAN COLLEGE TALI, CALICUT - 2. 2. P.K.KRISHNANUNNI RAJA FORMER MANAGER, THE ZAMORIN'S GURUVAYURAPPAN COLLEGE 'SUKRUTHAM', CHALAPURRAM, CALICUT-673002 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, CALICUT-673001 4. UNIVERSITY OF CALICUT, REP. BY ITS REGISTRAR CALICUT UNIVERSITY POST, MALAPPURAM DISTRICT. 5. Z.P.ZACHARIAH, THE ENQUIRY OFFICER ADVOCATE, 2/1934 B1, SADANAM ROAD P.O.CIVIL STATION, CALICUT - 20. 6. THE PRINCIPAL - THE ZAMORIN'S GURUVAYURAPPAN COLLEGE ZAMORIN'S GURUVAYURAPPAN COLLEGE P.O., CALICUT-673002 R3 BY GOVERNMENT PLEADER SRI.M.A.FAYAZ R6 BY SRI.M.P.SREEKRISHNAN, SC R4 BY SRI.SANTHOSH MATHEW,SC,CALICUTY UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 21292 of 2013 (J) ---------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS : ------------------------------- EXT.P-1: TRUE COPY OF THE COMPLAINT FILED BY SHRI.M.BALAKRISHNAN NAIR. - EXT.P-2: TRUE COPY OF COMMUNICATION ISSUED BY THE MANAGER DATED 22.1.2013. - EXT.P-3: TRUE COPY OF THE COMMUNICATION ISSUED BY THE PRINCIPAL TO THE SUB INSPECTOR OF KASABA POLICE STATION, CALICUT. - EXT.P-4: TRUE COPY OF SUSPENSION ORDER DATED 25.1.2013 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. - EXT.P-5: TRUE COPY OF THE STATEMENT OF ALLEGATIONS WITH THE MEMO OF CHARGES DATED 29.1.2013 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. - EXT.P-5(A) TRUE COPY OF LETTER ISSUED BY THE DISCIPLINARY AUTHORITY DATED 8.2.2013 TO THE PETITIONER. - EXT.P-6: TRUE COPY OF EXPLANATION AGAINST THE MEMO OF CHARGES ISSUED BY THE PETITIONER DATED 11.2.2012. - EXT.P-7: TRUE COPY OF ORDER DATED 15.2.2013 ISSUED BY THE 1ST RESPONDENT APPOINTING THE 5TH RESPONDENT AS THE ENQUIRY OFFICER. - EXT.P-8: TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER DATED 29.6.2013. - EXT.P-9: TRUE COPY OF COMMUNICATION ISSUED BY THE COUNSEL FOR THE PETITIONER DATED 25.7.2013. - EXT.P-1O:TRUE COPY OF PETITIONER'S LETTER DATED 26.7.2013 TO THE ENQUIRY OFFICER. - EXT.P-11: TRUE COPY OF COMMUNICATION ISSUED BY THE ENQUIRY OFFICER DATED 29.7.2013. - EXT.P-12:TRUE COPY OF LETTER SUBMITTED BY THE PETITIONER DATED 29.6.2013. - EXT.P-13: TRUE COPY OF REPRESENTATION DATED 8.8.2013 SUBMITTED BY THE PETITIONER TO THE ENQUIRY OFFICER. - EXT.P-14:EX-PARTE ENQUIRY REPORT DATED 10.8.2013 PASSED BY THE 5TH RESPONDENT. - EXT.P-15: TRUE COPY OF THE SHOW CAUSE NOTICE DATED 13.8.2013 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. - EXT.P-16: TRUE COPY OF PETITIONER'S REPLY DATED 8.8.2013 TO EXHIBIT P15. - EXT.P-17: TRUE COPY OF LETTER ISSUED BY THE REGISTRAR TO THE PRINCIPAL DATED 26.7.2012. - EXT.P-18: TRUE COPY OF F.I.R FILED BY KASABA POLICE, CALICUT BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE-III, CALICUT IN C.C. 202/2013. RESPONDENT(S)' EXHIBITS:NIL ----------------------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.21292 OF 2013 ==========================** Dated this the 27[th] day of August, 2013 ## **JUDGMENT** The petitioner was placed under suspension while working as Associate Professor in the Department of English in the Zamorin's Guruvayurappan College, Calicut, as per Ext.P4 order, in contemplation of disciplinary proceedings. Disciplinary proceedings were initiated against the petitioner and later, finalised after setting him ex-parte as per Ext.P11. Ext.P14 enquiry report was submitted before the first respondent, the disciplinary authority. On receipt of the said report, the disciplinary authority issued Ext.P15 show cause notice to the petitioner. Evidently, as per Ext.P15 a punishment of dismissal from service was proposed to be inflicted on the petitioner. On receipt of Ext.P15, the petitioner submitted Ext.P16 explanation as to why the said punishment should not be imposed on him. However, **W.P.(C).21292/13** 2 Ext.P16 is yet to be considered and orders finalising the disciplinary proceedings are yet to be passed passed by the first respondent. It is in the said circumstances that this writ petition has been filed mainly seeking the following reliefs:- - I. to issue a Writ of Certiorari or any other appropriate writ, order or direction to quash Exhibit P4, Exhibit P5, Exhibit P7, Exhibit P11, Ext.P14 and Exhibit P15 orders issued by respondents 1 and 5. - II.to issue a Writ of Mandamus or any other appropriate writ, order or direction directing the Disciplinary Authority to await the decision in C.C.No.202/2013 pending before the Court of the Hon'ble Judicial First Class Magistrate-III, Calicut to take a final decision pursuant to Ext.P15. - III.to issue a Writ of Mandamus or any other appropriate writ, order or direction directing the Disciplinary Authority to appoint a fresh Enquiry Officer and to conduct the enquiry, if necessary, that too after culmination of C.C.No.202/2013 pending before the Court of the Hon'ble Judicial First Class Magistrate-III, Calicut by rejecting Exhibit P14 Ex-parte Enquiry Report. - IV.to issue a Writ of Mandamus or any other appropriate writ, order or direction directing the Disciplinary Authority not to act on the basis of Ext.P14 Ex-parte Enquiry Report and to desist from imposing any punishment as proposed in Exhibit P15. **W.P.(C).21292/13** 3 2 **.** I have heard the learned counsel for the petitioner, the learned senior counsel appearing for respondents 1, 2, 5 and 6 and also the learned Government Pleader. The learned counsel for the petitioner submitted that Ext.P11 whereby the fifth respondent set the petitioner ex parte is illegal. It is contended that the fifth respondent passed Ext.P11 setting him ex parte in total disregard to statute 71 of the Calicut University First Statute and also the principles of natural justice. Feeling aggrieved by Ext.P11, the petitioner had earlier submitted Ext.P12 before the fifth respondent. Virtually, he requested for reviewing Ext.P11. Obviously, Ext.P11 order was not reviewed and the enquiry officer proceeded with the enquiry and submitted Ext.P14 report before the first respondent, the disciplinary authority. On receipt of Ext.P14 report, Ext.P15 show cause notice was served on the petitioner. True that as per the same, the extreme penalty of dismissal from service was inflicted on him and therefore, on its receipt, the petitioner submitted Ext.P16 explanation as to why **W.P.(C).21292/13** 4 extreme penalty of dismissal from service should not be imposed on him. True that a scanning of the contentions raised by the petitioner in this writ petition would reveal that he had grievances against the manner in which the enquiry was conducted by the fifth respondent. Evidently, in Ext.P16, the petitioner has taken up all such contentions before the first respondent. Besides the contentions referred above the petitioner has yet another contention that on account of pendency of C.C.No.202 of 2013 before Court of the Judicial First Class Magistrate-III, Calicut, the respondents should not have proceeded with the enquiry. The petitioner cannot be heard to contend that there is an inviolable position that disciplinary proceedings shall not be proceeded with on the same set of facts, pending criminal proceedings. The learned counsel for the petitioner relied on the decision of the Hon'ble Supreme Court in **Capt. M. Paul Antony v. Bharat Goldmines Ltd. and another** reported in **(1999) 3 SCC 679** . A bare perusal of the said decision would reveal that on the question of simultaneous continuance of departmental enquiry with criminal **W.P.(C).21292/13** 5 proceedings the findings of the Hon'ble Apex Court is that the scope of these two proceedings is different and can be continued independently. Before adverting to the relevant conclusions in paragraphs 14 to 22 of the decision in **Paul Antony'** s case (supra) it is worthwhile to bear in mind the settled position in respect of matters involving moral turpitude even an acquittal in criminal proceedings would not take away the disciplinary jurisdiction. Complicated questions of fact and law are not involved in this case as is obvious from Ext.P5 memo of charges. The charge against the petitioner is essentially one of sexual harassment. The petitioner is an Associate Professor and allegedly he sexually harassed his own student. The very pleadings of the petitioner would reveal that the criminal case is practically in its incipient stage and the trial is yet to be commenced. At the same time, admittedly, the disciplinary proceedings is in its fag end and after the enquiry, Ext.P14 report was submitted and thereupon, Ext.P15 notice proposing the penalty was served on the petitioner and he gave his explanation in response to Ext.P15. In the **W.P.(C).21292/13** 6 circumstances obtained in this case a reading of paragraphs 14 to 22 of the decision in **Paul Antony** 's case (supra) will undoubtedly reveal that it would not be in the interest of justice to stay the departmental proceedings at this stage. I am of the considered view that in this case the departmental enquiry can be continued independently especially taking into consideration its present stage. It is a fact that despite the pendency of the criminal proceedings, the disciplinary proceeding was initiated and it reached up to the final stage. The said fact is evident from Exts.P14 and P15. As noticed hereinbefore, the fifth respondent concluded the enquiry proceedings and submitted Ext.P14 report before the first respondent and on its receipt, Ext.P15 show cause notice was served on the petitioner. In such circumstances, the disciplinary proceedings initiated against the petitioner has to be logically concluded and it is essentially for that purpose Ext.P15 show cause notice was served on the petitioner calling for his explanation as to why the penalty proposed thereunder should not be imposed on him. Admittedly, the petitioner offered his explanation as per Ext.16. **W.P.(C).21292/13** 7 In such circumstances, I do not think that this Court should interfere with the disciplinary proceedings at this stage when admittedly, what remains to be done in the disciplinary proceedings is only the passing of the final orders by the disciplinary authority. A perusal of Ext.P16 would reveal that the petitioner has taken up all his grievances and objections, after the receipt of Ext.P14 enquiry report and Ext.P15 show cause notice against the manner in which the disciplinary proceedings conducted by the fifth respondent as also against the conclusions arrived at by the fifth respondent. Certainly, those are matters to be considered by the disciplinary authority while considering Ext.P14 after taking into consideration Ext.P16. Even in case of any adverse order the petitioner will still have the statutory remedy of appeal. In short, no case has been brought out for interference under Article 226 of the Constitution of India. Since the petitioner has already submitted Ext.P16 on receipt of Ext.P15 show cause notice, this writ petition is disposed of with a direction to the first respondent to pass appropriate orders in the matter of disciplinary **W.P.(C).21292/13** 8 proceedings initiated against the petitioner and proposed to be finalised as per Ext.P15. Appropriate orders shall be passed finalising the disciplinary proceedings expeditiously, at any rate, within three months from the date of receipt of a copy of this judgment. It is made clear that this Court has not made any observation as to the merits of the rival contentions in this writ petition. **Sd/C.T. RAVIKUMAR (JUDGE)** ## **spc/** **W.P.(C).21292/13** 9 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **W.P.(C).21292/13** 10