Kerala High Court
Unknown vs By Advs.Sri.Elvin Peter P.J
Author: S. Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
WEDNESDAY, THE 4TH DAY OF JANUARY 2012/14TH POUSHA 1933
WPC.No. 2429 of 2007 (L)
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PETITIONER
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ANNIE JOHN, ASSISTANT PROFESSOR,
DEPARTMENT OF ARCHITECTURE,
T.K.M.COLLEGE OF ENGINEERING, KOLLAM-5.
BY ADVS.SRI.ELVIN PETER P.J.
SRI.C.X.ANTONY BENEDICT
SRI.V.K. SUNIL
RESPONDENT(S)
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1. UNIVERSITY OF KERALA, REPRESENTED
BY ITS REGISTRAR, THIRUVANANTHAPURAM.
2. THE VICE CHANCELLOR, UNIVERSITY OF KERALA
THIRUVANANTHAPURAM.
3 . THE CONTROLLER OF EXAMINATIONS,
UNIVERSITY OF KERALA, THIRUVANANTHAPURAM.
4. THE CHAIRMAN, GOVERNING BODY,
T.K.M.COLLEGE OF ENGINEERING, KOLLAM-5.
ADDL.R5. ARAVIND, JYOTHI BHAVAN, ADOOR P.O.,
PAHANAMTHITTSA ;
IS IMPLEADED VIDE ORDER DT. 8.3.07 ON IA 3688/07.
R1 TO R3 BY ADVS. SRI.GEORGE POONTHOTTAM,SC,KERALA UNIVERSITY.
R4 BY ADV. SRI.N.SUGATHAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HARD ON
04-01-2012 , ALONG WITH WPC. 2465/2007, WPC. 3324/2007,THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
VK
WPC.No. 2429 of 2007 (L)
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APPENDIX
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PETITIONER'S EXHIBITS
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EXT.P1. COPY OF THE COMPLAINT 17.12.2005 FILED BY FORUM OF
AGGRIEVED STUDENT ARCHITECHTS.
EXT.P2. COPY OF ORDER DATED 23.1.2006 ISSUED BY THE 3RD
RESPONDENT.
EXT.P3. COPY OF REPRESENTATION DT. 13.2.2006 FILED BY THE
PETITIONER BEFORE THE VICE CHANCELLOR.
EXT.P4. COPY OF THE REPORT OF THE ENQUIRY COMMITTEE ISSUE D BY
THE 1ST RESPONDENT ALONG WITH LETTER DATED 28.3.2006.
EXTP5. COPY OF SPONSORSHIP AND RELIEVING CETIFICATE DT. 20.7.2001
ISSUED BY THE PRINCIPAL.
EXT.P6. COPY OF CERTIFICATE DT. 3.8.2006 ISSUED BY THE PRINCIPAL.
EXT.P7. COPY OF THE COMPLAINT FILED BY MR.ARAVIND.
EXT.P8. COPY OF EXPLANATION DT. 7.3.2006 FILED BY THE PETITIONER TO
THE 2ND RESPONDENT ALONG WITH THE ANNEXURES.
EXT.P9. COPY OF ORDER DATED 127.2006 ISSUED BY THE MANAGER.
RESPONDENT'S EXHIBITS : NIL
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/ TRUE COPY /
P.A. TO JUDGE
VK
S. SIRI JAGAN, J.
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W.P.(C) Nos.2429, 2465 & 3324 of 2007
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Dated this the 4th day of January, 2012
JUDGMENT
In these three writ petitions, three teachers of the TKM College of Engineering, Kollam are challenging a common order passed by the University of Kerala, by which the petitioners and two other teachers have been debarred permanently from all Examination Boards of the University, which is Ext.P2 in W.P.(C) No.2465/2007. Therefore, all these writ petitions are heard and disposed of by this common judgment. For convenience I shall refer to the rank of parties and exhibits as appearing in W.P.(C) No.2465/2007.
2. The President of India forwarded Ext.P1 complaint received by him from some students of the TKM College of Engineering, Kollam to the University for appropriate action on the same. The University conducted an enquiry into the allegations contained therein and obtained an enquiry report Ext.P3 and based on the findings in that enquiry report, passed W.P.(C)Nos.2429/07 & Con.cases 2 Ext.P2 debarring five teachers including the petitioners, permanently from all Examination Boards of the University with immediate effect. The said order is challenged by the petitioners mainly on the ground of violation of principles of natural justice. According to the petitioners, the petitioners were never made aware of any complaint against them before the enquiry. Although they were directed by the Principal of the College on 2.1.2006 to appear before the enquiry committee, the petitioners were not told as to what the enquiry was about. Although the petitioners were asked to give statements, the petitioners were not given an opportunity to know what was the evidence against them, insofar as the statements of the students, on the basis of whose evidence the conclusion was reached by the enquiry committee, were recorded in the absence of the petitioners and the petitioners were never given any opportunity to controvert the evidence stated to have been collected also. Further they would submit that the petitioners were not given a copy of the enquiry report based on which Ext.P2 order was passed, before passing the order. The enquiry report was forwarded to the petitioners W.P.(C)Nos.2429/07 & Con.cases 3 under cover of letter dated 28.3.2006, whereas Ext.P2 order was passed on 23.1.2006. They would further submit that the entire procedure adopted by the enquiry committee as well as the University in passing Ext.P2 order is in total violation of principles of natural justice and therefore, unsustainable. They would also raise contentions on the merits of the findings in Ext.P3. The petitioners challenge orders passed by the Chairman, governing body of the College in the disciplinary proceedings initiated subsequently.
3. Counter affidavits have been filed by the University as well as the additional 5th respondent, one of the students who got himself impleaded in the writ petition, seeking to sustain the impugned order. The petitioners have filed reply affidavits also. The contentions of the University are as follows:
(i) The action, which culminated in Ext.P2 is not a disciplinary action for punishing the petitioners for any misconduct. It does not entail any civil consequences to the petitioners. As such, the question of strict compliance with principles of natural justice does not arise, as in the case of W.P.(C)Nos.2429/07 & Con.cases 4 disciplinary proceedings under the University Statutes. It is further submitted that the University is not the employer of the petitioners and therefore, the University has not taken any disciplinary proceedings against the petitioners, which is left to the management, who is the employer of the petitioners. It is submitted that it is in the absolute powers of the Syndicate of the University under Section 23 (xvii) of the Kerala University Act to approve panel of examiners and to fix their remuneration. Therefore, excluding certain teachers from the panel of examiners, does not entail any civil consequences to the petitioners. It is further submitted that the appointment of examiners is governed by Chapter VI of the Kerala University First Ordinances, 1978, clause 3 of which contains the provisions for disqualification of teachers from examination work which authorises the Syndicate to disqualify any person for a specified period or permanently from question paper setting or examinership for inefficiency, misconduct, malpractice or negligence or for disobeying the instructions issued by the University or to withdraw recognition as a teacher. According to the learned counsel for the University, W.P.(C)Nos.2429/07 & Con.cases 5 Ext.P2 is not a punishment as such on the petitioners. It is only a decision by the University to decide not to entrust any examination work to the petitioners. Insofar as it is within the absolute discretion of the Syndicate to entrust examination work to any teachers or other persons approved by the University, non-entrustment of work permanently to any teacher will not result in any civil consequences to that teacher insofar as it is not a punishment, is the contention raised.
(ii) Regarding the violation of the principles of natural justice, the learned counsel for the University would take me to Ext.P3 enquiry report, wherein it has been stated that the enquiry committee visited the College on 2nd January, 2006 with notice of their visit to all concerned and the petitioners have also been given an opportunity to participate in the enquiry proceedings, which would be sufficient compliance with the principles of natural justice. It is further submitted that the principles of natural justice cannot be strait jacketed in a watertight compartment and unless prejudice is caused to the party concerned, violation of principles of natural justice does not vitiate the proceedings as such. It is submitted that as is W.P.(C)Nos.2429/07 & Con.cases 6 clear from the writ petitions themselves, the petitioners themselves have produced a complaint sent by the students to the President of India, which would go to show that the petitioners were aware of the complaint at the time of enquiry itself. Therefore, they cannot now complain that the enquiry was conducted without making the petitioners aware of the allegations against them, is the contention raised.
4. I have considered the rival contentions in detail. Despite the very persuasive arguments of the learned counsel for the University, I am unable to agree with him on any of the points raised by him. Of course, Section 23(xvii) of the Kerala University Act, 1974 confers powers on the Syndicate to approve panel of examiners for any examinations. Going by the same, the Syndicate has powers either to nominate or not to nominate any teacher for examination work. Nobody can complain, if he is not engaged for such examination work. But, it is a different mater, when the University themselves conducts an enquiry into some alleged misconducts and malpractices against a teacher and comes to the conclusion that the teacher is a guilty of misconduct and malpractice as a W.P.(C)Nos.2429/07 & Con.cases 7 result of which the Syndicate decides to exclude the teacher from the examination work permanently. That certainly amounts to violation of a civil right of the teacher, insofar as such an order coming from a statutory authority attaches stigma to the teacher's service itself. This is particularly so in view of Clause 3 of Chapter VI of the Kerala University First Ordinances, 1978, which reads as follows:
"3. Disqualification:- The Syndicate shall have the power to disqualify for a specified period or permanently any person from question paper setting or examinership for inefficiency, misconduct, malpractice or negligence or for disobeying the instructions issued by the University or to withdraw recognition as a teacher."
That clause speaks of disqualifying a person from examination work for inefficiency, misconduct, malpractice, negligence or disobeyance of instructions. That certainly is a punishment imposed on a teacher for such misconduct, malpractice etc. Therefore, a finding in respect of commission of such misconduct or malpractice has to be only on a finding of guilt based on the evidence collected in compliance with the principles of natural justice, meaning thereby that the person accused of the misconduct or malpractice shall be afforded a reasonable opportunity to defend himself in the enquiry, W.P.(C)Nos.2429/07 & Con.cases 8 although this is not strictly a disciplinary proceedings as contemplated by the University Statute, which the management alone can take, against the petitioners. The learned counsel for the University relies on a decision of the Supreme Court in INDU BHUSHAN DWIVEDI v. STATE OF JHARKHAND AND ANOTHER [(2010) 11 Supreme Court Cases 278], particularly paragraph 24 of the same, which reads as follows:
"24. However, every violation of the rules of natural justice may not be sufficient for invalidating the action taken by the competent authority/employer and the Court may refuse to interfere if it is convinced that such violation has not caused prejudice to the affected person/employee."
According to the learned counsel for the University, insofar as Ext.P2 order does not result any prejudice to the petitioners, this decision is squarely applicable to the facts of this case. I am of opinion that the decision cannot be read the way the counsel for the University wants to. That decision, according to me, only states that violation of principles of natural justice is not sufficient to validate an action, if that violation of rules of natural justice does not result in any prejudice to the affected person. It is not sufficient, if an ultimate decision W.P.(C)Nos.2429/07 & Con.cases 9 does not prejudice the parties, even if the contention of the learned counsel for the University that Ext.P2 does not work to the prejudice of the petitioners is correct.
5. The primary principles on which our legal system based is that no person shall be condemned unheard. Therefore, principles of natural justice is part and parcel of any proceedings which results in adverse consequences to a person. Therefore, I am of opinion that Ext.P2 order could not have been passed except in compliance with principles of natural justice.
6. Now I shall examine whether in this particular case principles of natural justice have been complied with satisfactorily before passing Ext.P2 order. The enquiry ordered by the University commenced after receipt of Ext.P1 complaint addressed by some students to the President of India which was forwarded to the University for further action, if necessary. Of course, the learned counsel for the University would submit that earlier also there were complaints and it was taking into account those complaints also, that decision was arrived at. But, it is not disputed before me that the W.P.(C)Nos.2429/07 & Con.cases 10 enquiry was ordered only after receipt of Ext.P1, forwarded by the Office of the President of India to the University. The least the University should have done before starting the enquiry is to put the petitioners on notice regarding the allegations against them. Therefore, even if a copy of Ext.P1 complaint is not issued to the petitioners, the minimum the University should have done to comply with the principles of natural justice is to make the petitioners aware of the gist of the allegations against them based on which the enquiry was going to be conducted. Although the learned counsel for the University would vehemently argue that the petitioners were aware of the allegations, no documents have been produced before me by the University to show that the petitioners were so aware of the allegations against them. Of course, the petitioners have produced the copy of the complaint forwarded by the President's office in this writ petition. That does not necessarily mean that the petitioners were aware of the allegations before the enquiry or that the enquiry was going to be conducted in respect of those allegations. It is not disputed before me that the University had never made the petitioners W.P.(C)Nos.2429/07 & Con.cases 11 aware of the specific allegations against them in respect of which the enquiry was conducted, by any written intimation to them. I am of opinion that an enquiry conducted against the petitioners without first intimating them as to the allegations against them in respect of which the enquiry is going to be conducted is itself a violation of principles of natural justice.
7. The petitioners would contend that they knew about the enquiry only on 2.1.2006 when the Principal asked them to be present before the enquiry committee on 2.1.2006 and not before. They would further submit that the entire evidence based on which Ext.P3 enquiry report was filed was collected behind the petitioners' back. The statements of the students based on which findings were entered in Ext.P3 enquiry report were recorded not in the presence of the petitioners and was not made available to the petitioners. The enquiry committee asked certain questions to the petitioners and they answered the same, which were also recorded. Apart from the same, they were never informed about the materials based on which Ext.P3 enquiry report were submitted. These facts cannot be disputed by the University merely based on the sentence in W.P.(C)Nos.2429/07 & Con.cases 12 Ext.P3 report that ' the committee accordingly visited the College on 2nd January 2006 with notice of their visit to all concerned'. It is admitted before me by the learned counsel for the University that no separate individual notices were issued to the petitioners regarding the enquiry. But, what he would contend is that the notice of the enquiry was displayed in the notice board of the College for which also there is no evidence before me. Without knowing what is the evidence against the petitioners, they cannot make any meaningful effort to disprove the evidence and allegations. Added to all that before the issue of Ext.P2 order debarring them from examination work, the petitioners were not served with a copy of the enquiry report based on which the action was taken. That is another classic case of violation of principles of natural justice. Therefore, I have no hesitation whatsoever to hold that the entire proceedings have been in abject violation of principles of natural justice. For that reason alone Ext.P2 order is liable to be quashed. I do so. However, I make it clear that it would be open to the University to conduct a fresh enquiry, after complying with the principles of natural justice W.P.(C)Nos.2429/07 & Con.cases 13 and to take further action based on the report in that enquiry. As far as the orders of the Management in disciplinary proceedings are concerned, if the petitioners are aggrieved by the same, they have to seek their remedies before the University Appellate Tribunal in accordance with the Kerala University Act and Statutes made thereunder and therefore I am not inclined to consider the contentions of the petitioners against the same in these writ petitions.
The writ petitions are allowed as above.
S. SIRI JAGAN, JUDGE acd W.P.(C)Nos.2429/07 & Con.cases 14 W.P.(C)Nos.2429/07 & Con.cases 15