Kerala High Court
Sebastian K.Antony vs Manager on 27 April, 2012
Bench: V.Ramkumar, K.Harilal
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.RAMKUMAR
&
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY, THE 27TH DAY OF APRIL 2012/7TH VAISAKHA 1934
CRP.No. 682 of 2009 ( )
APPL.3/2009 of M.G.UNIVERSITY APPELLATE TRIBUNAL, TRIVANDRUM
REVISION PETITIONER(S)/APPELLANT:
SEBASTIAN K.ANTONY
KAVUMBHAGOM.P.O,THIRUVALLA,PATHANAMTHITTA.
BY ADVS.SRI.N.NANDAKUMARA MENON (SR.)
SRI.P.K.MANOJKUMAR
RESPONDENT(S)/RESPONDENTS:
1. MANAGER, ST.ALBERT'S COLLEGE, ERNAKULAM
ERNAKULAM-682018.
2. THE PRINCIPAL, ST.ALBERT'S COLLEGE,
ERNAKULAM.
3. THE REGISTRAR, M.G.UNIVERSITY,
KOTTAYAM.
4. THE DIRECTOR OF COLLEGIATE EDUCATION,
TRIVANDRUM.
5. THE UNIVERSITY APPELLATE TRIBUNAL,
(M.G.UNIVERSITY)TRIVANDRUM.
BY SENIOR ADV. ADVS. SRI.A.K.JAYASANKAR NAMBIAR, ADVOCATES
SRI. BABY ISSAC ILLICKAL AND
SRI.ISAAC KURUVILLA ILLIKAL FOR R1 & R2
BY ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY FOR R3 & R5
BY GOVERNMENT PLEADER SRI.R.GITHESH FOR R4
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-
03-2012, THE COURT ON 27.04.2012 PASSED THE FOLLOWING:
"CR"
V.K.HARILAL
RAMKUMAR &
JJ.
.................................................
C.R.P. No.682 of 2009
..................................................
Dated this the 27th day of April, 2012
CONTENTS
Sl.No. Inner titles Paragraph
Nos.
1 Proceedings impugned in this petition 1
2 Petitioner's case 2
3 Case of the Educational Agency 3
4 Stand taken by the M.G. University 4
5 The Advocates who argued before us 5
6 Arguments of the Educational Agency - St. Albert's 6
College
7 JUDICIAL RATIOCINATION 7 to
A) General 7
B) Domestic Enquiry and its legal 8 -21
requirements
i) What is misconduct ? 9
ii) Preliminary enquiry and its purpose 10
iii) When preliminary enquiry is ordered ? 11
iv) Charge- sheet (Memo of charges) - 12
Requirements
v) Suspension and its justification 13
vi) Enquiry Officer 14
C.R.P No.682 of 2009
:2:
vii) Enquiry Officer cannot be a Prosecutor and a 15
Judge and cannot cross-examine the witnesses
viii) Appointment of Presenting Officer 16
ix) Representation of charge sheeted employee 17
x) Refusing appearance of lawyer and Natural 18
Justice
xi) Appearance of Advocate when allowed 19
xii) Principles of Natural Justice in Domestic 20
Enquiry
xiii) Enquiry procedure 21
C) Is the delinquent entitled to a copy of the 22
domestic enquiry report to prove his
innocence even before the employer accepts
the findings of the enquiry officer and
proposes the punishment ?
D) The sequence of events culminating in the 23
impugned order
E) Legal Status of the Petitioner and the 24
feasibility of extending the principles of
industrial jurisprudence
F) Limits of the jurisdiction of the University 25
Appellate Tribunal
G) The jurisdictional parameters of the High 26
Court.
H) Judicial analysis of the rival contentions 27
i) Background facts which the petitioner as well 28
as the University have alleged as constituting
the motive for the action against the
petitioner
ii) To the facts specific 29
a) The Attendance Register 30
b) Custodian of the Attendance Register 31
C.R.P No.682 of 2009
:3:
c) The procedure of marking the 32
attendance in the Attendance Register
d) Who marks the leave in the Attendance 33
Register ?
e) Who calculates the aggregate leave for 34
the month ?
f) The alleged act of erasure of the leave 35
for 31-12-2007.
g) Was there the practice of erasing the 36
"L" mark of a late coming teacher
and allowing the teacher to sign the
Attendance Register ?
h) Applications filed by the petitioner for 37
production of relevant material
rejected by the Enquiry Officer and
the Tribunal
i) The inherent improbabilities in the 38
charge
j) Proportionality of punishment and the 39
right to life in employment
8 OUR CONCLUSION 40
9 Our concern 41
10 Our appreciation for the Advocates
ORDER
Ramkumar J.
Proceedings impugned in this petition In this petition filed under Sub-section (6) of Section 63 of the Mahatma Gandhi University Act, 1985 (hereinafter referred to as "the C.R.P No.682 of 2009 :4: University Act" for short), the petitioner, who was formerly working as senior grade lecturer in Malayalam in the St.Alberts College, Ernakulam challenges the judgment dated 25.08.2009 passed by the Mahatma Gandhi University Appellate Tribunal, Thiruvananthapuram (hereinafter referred to as "the Tribunal") dismissing University Appeal No.3 of 2009 filed by the petitioner.
THE PETITIONER'S CASE
2. The case of the petitioner can be summarised as follows:-
The petitioner is a senior grade lecturer in Malayalam and was the Head of Department in St.Albert's College, Ernakulam with 24 years of unblemished service. St.Albert's College is an aided college under the Government of Kerala and affiliated to the Mahatma Gandhi University. The first respondent is the Manager and the 2nd respondent is the Principal of the said College. While the petitioner was thus working as a Senior Grade Lecturer, he was kept under suspension by Annexure 1 proceedings dated 8-2-2008. The order was based on a report dated 5-2-2008 (marked as Ext.B5 before the Tribunal) of the Principal to the Manager of the College. It was alleged in Anneure I order of suspension that the petitioner had tampered the Attendance Register of the teaching staff by erasing the leave marked by the Principal in red ink in the column against the name of the petitioner and had put his signature in those columns on 31-12- C.R.P No.682 of 2009 :5:
2007, 18-12-2007 and 6-12-2007. It was also alleged that on further scrutiny, the Principal noticed that the petitioner had committed the same mischief on 28-11-2007, 23-07-2007, 9-7- 2007 and 4-6-2007 as well. The petitioner was given 15 days time to submit his explanation as to why disciplinary action as contemplated by the University Act and the Statutes should not be taken against him. The petitioner was also directed not to enter the College campus without the permission of the Principal during the period of suspension. He was further asked to vacate the staff quarters allotted to him immediately. The copy of Ext.B5 report dated 5-2-2008 was not furnished along with the order of suspension. By Annexure - II proceedings dated 20- 2-2008 the first respondent served a memo of charges accompanied by statement of allegations even before the time fixed for the petitioner to submit his explanation to Annexure
- I show cause notice, had expired. There was ugly haste and mala fide intention on the part of the management towards the petitioner. The petitioner on receipt of Annexure -I proceedings dated 8-2-2008 denied the allegations of misconduct levelled against him. In order to effectively submit his explanation, the petitioner as per representation dated 21-2-2008 sought the copy of the report sent by the principal and the attendance registers of the teaching staff of all the departments for the months of June, July and November. The manager of the college declined to give further time for submitting explanation but forwarded photo copy of the report of the principal dated 5.2.2008 and photo copies of the pages of the attendance register C.R.P No.682 of 2009 :6: of the Malayalam department alone. On 10-3-2008, the petitioner submitted Annexure - III detailed explanation to the memo of charges dated 20.02.2008. The petitioner denied the charges levelled against him and submitted that proceedings were initiated only to single out the petitioner and victimise him. But no action was taken to complete the disciplinary proceedings within the stipulated time. Hence the petitioner submitted a representation dated 8.5.2008 to the Vice-chancellor of the M.G. University under Section 63(3) of the Mahatma Gandhi University Act. The Vice Chancellor by order dated 22.5.2008 directed the first respondent to reinstate him in service with immediate effect. But the first respondent refused to honour the orders of the Vice Chancellor. Aggrieved by the inordinate delay in implementing the orders of the Vice Chancellor the petitioner filed W.P.No.16864/08 before the Hon'ble High Court of Kerala. The Hon'ble High court passed interim direction on 06.06.2008 asking the first respondent not to proceed with the enquiry against the petitioner unless and until the direction of the Vice Chancellor to reinstate him in service was complied with within three weeks. But the first respondent did not honour the said direction also. Subsequently the writ petition was dismissed. The first respondent appointed Sri.Varghese Prem an Advocate, as enquiry officer. The enquiry commenced on 5.4.2008 and was completed only on 22.12.2008, after stopping it midway at his own will causing undue delay. A copy of the report of enquiry was forwarded to the petitioner as per Annexure - V letter dated 2.1.2009 after accepting the findings of the Enquiry Officer and C.R.P No.682 of 2009 :7: without affording an opportunity to the petitioner to assail the findings and prove his innocence. In the very same Annexure - V letter it was, inter alia, proposed to impose the major penalty of dismissal from service specified as item number (vii) of Statute 73 in Chapter 45 Part D of Mahatma Gandhi University Statutes. Annexure -V letter was not accompanied by Annexure - VI proceedings dated 2-1-2009 as per which the Ist respondent Manager had accepted the findings of the enquiry officer. This was never served on the petitioner but was produced before the Tribunal below by the Ist respondent. The petitioner submitted Annexure VII representation against the proposed penalty. The first respondent failed to appreciate the representation submitted by the petitioner. On completion of the enquiry, a copy of the enquiry report should have been furnished to the petitioner and only after getting his explanation and considering the same, the disciplinary authority ought to have proposed the punishment. The decision to impose the punishment was taken violating the principles of natural justice and the procedure established by law. Opportunity was denied to the petitioner to submit his objections to the enquiry report resulting in miscarriage of justice. The petitioner was, thereafter served with a copy of Annexure - VIII order dated 17-1-2009 imposing the penalty of dismissal from service. There was no manipulation by the petitioner in the Attendance Register as alleged. The enquiry officer arrived at his findings without adverting to any of the facts or material evidence before him. He overwhelmingly relied on the documents submitted by the respondents. The petition filed by the petitioner C.R.P No.682 of 2009 :8: to provide the assistance of a lawyer was rejected. There was total bias and discrimination against the petitioner. The management nurtured ill-will towards the petitioner from 2005 onwards when a complaint against the college regarding irregularities in admission was got enquired into by a Syndicate Committee of the University and there was adverse finding against the management. The petitioner was a member of the Senate of the University. His association with all Kerala Private College Teachers Association had added fuel to fire. The college authorities started framing charges against the petitioner under one pretext or the other and he was harassed and subjected to humiliation ever since 2005 without any rhyme or reason. Annexure - VIII order was passed in violation of the University statutes, principles of natural justice and procedure established by law. The Educational Agency proceeded with bias and preconceived notion. The denial of assistance of lawyer had adversely affected the enquiry proceedings, fair play and justice. The enquiry officer conducted the enquiry in a biased manner. The whole enquiry was discriminatory and prejudicial to the petitioner. The rejection of the application filed by the petitioner for production of the attendance registers of the teaching staff of the college had adversely affected the proceedings and truth has become the casualty. The enquiry officer failed to note that the custodian of the attendance register was the Principal and no manipulation could be done by any teaching staff without his knowledge. Mandatory provisions of the University Statutes were not followed before passing Annexure - VIII order. The utmost C.R.P No.682 of 2009 :9: penalty of dismissal from service with retrospective effect has affected the right the petitioner to live and is highly irregular and disproportionate to the offence charged. The Tribunal below has omitted to notice the falsity and inherent improbability of the charges levelled against the petitioner and the vital discrepancies in the oral and documentary evidence adduced by the Ist respondent Manager before the Enquiry Officer and that the whole disciplinary proceedings were mala fide, vindictive and in gross violation of the statutory provisions and principles of natural justice. The Tribunal was guilty of abdication of its appellate powers in refusing to interfere with the findings of the enquiry officer and the resultant imposition of penalty.
CASE OF THE EDUCATIONAL AGENCY
3. The case of respondent Nos.1 and 2 namely the Manager and Principal of St.Alberts College is as follows:-
St.Albert's College, Ernakulam is a prominent higher educational institution established in the year 1946 and administered by the Arch Diocese of Verapoly. The college is affiliated to the 3rd respondent. Being a Christian Minority Educational Institution, the Educational agency is keen to maintain moral values and discipline in the college. The petitioner was appointed as lecturer in Malayalam with effect from 24.10.1983. He is a leader of A.K.P.T.C.A and is a member of the Mahatma Gandhi University Senate. In the year 2005 the class time of the college was rescheduled. Against C.R.P No.682 of 2009 :10: that the petitioner incited students to agitatE. The first respondent initiated disciplinary proceedings against the petitioner and he was suspended from service. The petitioner discerned the gravity of the misconduct and submitted representation to the first respondent regretting his conduct and requested to drop the disciplinary proceedings. He also assured that he would co-operate with the new time schedule. In view of the regret expressed by the petitioner and the assurance of co-operation with the new time schedule, the first respondent revoked the order of suspension, dropped the disciplinary proceedings and reinstated the petitioner in service.
On 5.2.2008 the first respondent received a report from the second respondent stating that the petitioner had committed misconduct by tampering the attendance register. The first respondent was informed that the petitioner had erased the leave marked in his column and impressed upon it with his sign. On receipt of the report the first respondent made his own enquiry regarding the incident. The head accountant informed the first respondent that the petitioner did the mischeif in front of him. Since there was prima facie case of grave misconduct, the first respondent issued memo along with order of suspension. The first respondent duly informed the University about the suspension of the petitioner. The first respondent served memo of charges accompanied by statement of allegations on the petitioner. The petitioner submitted written statement in reply dated 10.03.2008. On C.R.P No.682 of 2009 :11: considering the explanation submitted by the petitioner, the first respondent was satisfied that formal enquiry into the conduct of the petitioner was necessary. Hence the first respondent appointed an advocate of the High Court to conduct formal enquiry.
While the enquiry was in progress the University at the instance of the petitioner issued order directing the first respondent to reinstate the petitioner. The first respondent challenged the said order before the Hon'ble High Court in WP (C) No.18013/08. The petitioner filed WP (C) No.16864/08 challenging his suspension from service and for direction to reinstate him. The Hon'ble High Court heard both the petitions together, and as per common judgment dated 14.11.2008 dismissed the writ petition filed by the petitioner and allowed the writ petition filed by the respondents. The said judgment has become final. The petitioner was never appointed as head of department. His service was not unblemished as claimed by him. It is incorrect to say that issuance of memo of charges and statement of allegations dated 20.02.2008 were in violation of the principles involved in disciplinary proceedings. The first respondent acted in accordance with the provisions of the statute pertaining to disciplinary proceedings. There was no ugly haste or malafide intention as alleged. The petitioner was granted 15 days more time to submit his explanation as to why disciplinary action should not to taken against him for the alleged misconduct.C.R.P No.682 of 2009 :12:
The case of the petitioner that since other teachers had also committed similar malpractice and he was singled out which is discriminatory and deliberate victimization is not correct. If he was aware that other teachers had committed similar misconduct, he would have pointed out that to the authorities at the relevant time. The Hon'ble High Court rejected the allegation of the petitioner that there was undue delay in concluding the enquiry and granted extension of time. The disciplinary action was taken in accordance with relevant statutes. The Educational Agency has entrusted the first respondent to discharge duties which include disciplinary matters pertaining to the staff. The allegations made against the enquiry officer are highly improper, unjust and untrue. The enquiry officer is a dignified lawyer of the High Court. The petitioner is prepared to say or do anything and everything and will go to any extent for his personal benefit. The petitioner is a person who lacks integrity, honesty and character. The contention of the petitioner is contradictory in that at one instance he stated that "L" mark was erased by the Vice Principal while at another instance he had stated that the "L" mark was erased by the Principal. Admittedly the "L" mark in the attendance register was earsed and the petitioner's sign was marked on it. The petitioner failed to explain who did it for his benefit, if it was not done by him.
The copy of the enquiry report was given to the petitioner. Notice was given to him proposing the penalty and requesting him to submit his representation. He was given C.R.P No.682 of 2009 :13: opportunity of being heard which the petitioner availed on 12.01.2009 and apologized for the misconduct. Thus the petitioner was treated fairly and the first respondent fully complied with the principles of natural justice. There was no violation of any procedure or miscarriage of justice. The petitioner did not call for the documents as alleged by him. The enquiry officer arrived at the findings after duly adverting to the facts and evidence on record. It is incorrect to say that his petition for providing the assistance of a lawyer was rejected. The petitioner did not call for the copy of the attendance register of the substitute teachers. In fact the enquiry officer had asked the petitioner whether he proposed to engage a lawyer. The allegation of ill will against the petitioner is denied. His association with the AKPCTA had no consequence in the case. The allegation that the college authorities had framed charges against the petitioner and had harassed and humiliated him is denied. The petitioner has committed an unpardonable misconduct that does not deserve any sympathy. A teacher who is considered to be a role model to the society should not have indulged in such a nefarious act for his personal gain under any circumstance. The petitioner deserved maximum punishment prescribed by the statute as the misconduct committed by him was one of the rarest of the rare. Any leniency shown to the petitioner would send wrong signal to the similarly placed lecturers and would encourage repetition of similar activities. A reputed educational institution cannot function smoothly with such corrupt persons C.R.P No.682 of 2009 :14: in the faculty. The reliefs claimed in the appeal were unsustainable. There is no merit in any of the grounds urged by the petitioner. The disciplinary authority accepted the findings after duly considering the contentions of the delinquent and perusing the entire records. The delinquent need not be heard in person before appointing the enquiry officer. The decision to impose the penalty of dismissal from service was taken after due consideration of the representation from the petitioner against the findings of the enquiry officer. The petitioner deserved dismissal from service considering the gravity of the misconduct committed by him. Further he has cheated the employer and the government . There was no violation of any of the statutory provisions in conducting the disciplinary enquiry.
THE STAND TAKEN BY THE MAHATMA GANDHI UNIVERSITY
4. Very unusually and quite surprisingly, the Mahatma Gandhi University by means of a counter affidavit filed before this Court through its Registrar, has not only supported the petitioner on merits with meticulous details, but has also given rich encomiums to the teaching capabilities of the petitioner. The University has also paid glowing tributes to the academic brilliance of the petitioner. It has been highlighted that the petitioner was deputed by the Board of Studies of the M.G. University to write a text book for the second year B.A./B.Sc students and the book titled "Vakkum Dhrisyavum"
C.R.P No.682 of 2009 :15:authored by the petitioner was announced as the prescribed text book for the second year B.A/B.Sc students of the University. The University would further have it that the petitioner was a jury member for the "Vayalar Award" during the years 2005 & 2007. The University has come down heavily upon the management of the college by incorporating in the counter affidavit that the disciplinary action against the petitioner culminating in his dismissal from service is nothing but victimisation by the management of St. Albert's College.
THE ADVOCATES WHO ARGUED BEFORE US
5. We heard Senior Advocate Sri. N. Nandakumara Menon appearing for the petitioner, Senior Advocate Sri. Jayasankar Nambiar appearing for respondents 1 and 2 and Advocate Sri. T.A. Shaji appearing for the 3rd respondent /Registrar, M.G. University.
ARGUMENTS OF THE EDUCATIONAL AGENCY (ST. ALBERT'S COLLEGE
6. Senior Advocate Sri. Jayasankar Nambiar, appearing for respondents 1 and 2 who are the manager and principal respectively of St. Albert's College made the following submissions before us opposing this petition :-
The disciplinary proceedings against the petitioner have been conducted in strict compliance with the procedure for imposing C.R.P No.682 of 2009 :16: major penalties as envisaged by Sec. 75 of the University Act. The Manager of the College had nominated a presenting officer to present its case before the enquiry officer as provided under Section 75 (6) of the Act. Eventhough the petitioner/teacher was given an opportunity to engage a legal practitioner, he did not avail of the same. Section 63 of the M.G. University Act provides for the disciplinary powers of Educational Agency over teachers of private colleges. Disciplinary action against the petitioner teacher was taken after giving him a reasonable opportunity of showing cause against the action proposed to be taken as provided under Section 63 (5) of the Act. The domestic enquiry conducted by Advocate Varghese Prem was conducted fairly, bona fide, honestly and without violating any of the principles of natural justice. The strict rules of the Indian Evidence Act are not applicable to a domestic enquiry before an enquiry officer. Hence, even hearsay evidence is admissible provided there is reasonable nexus and credibility for the same. While a finding based on absence of evidence is an error of law apparent on the face of record sufficiency of evidence does not give rise to any such error and the same is beyond judicial scrutiny. (Vide State of Haryana and another v. Rattan Singh - (1982) I LLJ 46 SC). In such disciplinary proceedings proof of the misconduct by the yardstick of preponderance of probabilities is sufficient. Confessional evidence is also admissible. Establishing the guilt beyond reasonable doubt is not necessary. (Vide Workmen of Balmadies Estates v.C.R.P No.682 of 2009 :17:
Management, Balmadies Estates and Others - (2008) 4 SCC 517 ; U.P. State Road Transport Corporation v. Suresh Chand Sharma - (2010) 6 SCC 555; Shri J.D. Jain v. The Management of State Bank of India and Another - (1982) 1 LLJ 54; Vijaya Mohini Mills v.
Industrial Tribunal and Another - (1993)1 LLJ 605 ; Bank of India v. Degala Suryanarayana - (1999) 5 SCC 762 and T.N. C.S. Corporation Ltd. v. K. Meerabai - (2006) 2 SCC 255). The Enquiry Officer is a quasi judicial authority and he has to act fairly and in conformity with the principles of natural justice. (Vide M.V. Bijlani v. Union of India and Others - (2006) 5 SCC 88 and Union of India and Others v. Prakash Kumar Tandon - (2009) 2 SCC 541. Where the Enquiry Officer has acted fairly and in accordance with the principles of natural justice to arrive at a conclusion on the evidence, the Tribunal cannot arrive at a different conclusion on the same evidence. (Vide M/s. Banaras Electric Light and Power C. Ltd. v. Labour Court II, Lucknow and others - (1972) II LLJ 328 SC. The jurisdiction of this Court under Sec. 63 (9) of the University Act is very limited and interference is permissible only in those cases where the Tribunal has decided any question of law erroneously or has failed to decide any question of law. Even under Article 226 of the Constitution of India where the power is wider judicial review is allowed only against the decision and not against the reasons for the decision. Vide para 15 of State of U.P. v. Man Mohan Nath Sinha - (2009) 8 SCC 310; Coimbatore District Central Co-operative Bank v.
C.R.P No.682 of 2009 :18:Coimbatore District Central Co-operative Bank Employees Association - (2007) 4 SCC 669; Chairman & M.D. V.S.P. & Ors. v. Goparaju Sri. Prabhakara Hari Babu - JT 2008 (4) SC 51. In Ext. M2 letter dated 5-2-2008 by the Principal to the Manager the principal had noted seven instances of the petitioner tampering with the attendance register by erasing the leave marked as "L" and putting his signature. Among the seven days the tampering committed with respect to 31-12-2007 was in the presence of the Head Accountant examined as M.W.2 before the Enquiry Officer. Ext.M3 letter dated 8-2-2008 is the letter by the Manager to the petitioner ordering preliminary enquiry with regard to the manipulation and asking him to show cause and also placing him under suspension. Ext.M4 dated 20-02-2008 is the formal memo of charges served on the petitioner. Ext.M5 bearing the same date, is the statement of allegation. Section 75 (2) of the University Act contemplates only a formal enquiry . There is no procedure for preliminary enquiry. That was why the manager gave Ext.M4 memo of charges even before the expiry of 15 days mentioned in Ext.M3 show cause notice. If the Manger were to give a preliminary notice then it might prejudice the delinquent teacher in his defence. The petitioner has not been able to show any prejudice for not waiting till the expiry of 15 days. In Ext.D9 reply dated 10-3-2008 given by the petitioner to Ext.M4 memo of charges and Ext.M5 statement of allegations he has admitted that he had given a reply on 21-2-2008 to Ext.M3 show cause notice. Hence, C.R.P No.682 of 2009 :19: there could be no occasion for him to level any charge of prejudice on the Management. The Manager appointed one Sri. Varghese Prem an Advocate of the High Court as the Enquiry Officer on 25-3-2008. The said Enquiry Officer had conducted the enquiry fairly and observing the principles of natural justice and in absolute good faith. The petition dated 16-4-2008 filed by the delinquent teacher to summon the attendance registers of all the teaching staff of all the department was rejected on 24-4-2008 by the enquiry officer who had rightly held that those registers do not have any bearing on the enquiry . The College was, however, directed to produce the original attendance register. Ext. M1 is the original Attendance Register which was marked on 5-5-2008 through MW1 the Principal. The second request dated 13-12-2008 made by the teacher for summoning the very same attendance registers in the light of some teachers admitting the malpractices alleged in respect of the attendance registers was rejected on 13-12-2008 holding that there was no further change of circumstances . The petitioner who now complains that the Work Register was not produced by the College had not filed any petition to summon the same. The question as to whether the petitioner was actually present or absent on the 7 dates mentioned in the memo of charges is not the concern of the management. The only act of misconduct alleged and proved is the act of erasing the leave marked as "L" by the Principal and the petitioner putting his signatures at the C.R.P No.682 of 2009 :20: respective columns in the attendance register. The inferences drawn and the conclusions reached by the enquiry officer are on the basis of the evidence on record. No interference can be made either by the Tribunal or by this Court even if a different view is possible on such evidence. The petitioner having turned down the request to avail the services of a lawyer as mentioned in the enquiry report, was not justified in contending that he was denied the services of a lawyer. Eventhough on the side of the College the Principal, Head Accountant and Vice Principal were examined as MWs 1 to 3, no suggestion was put to them in terms of the defence version during their cross- examination. The enquiry officer did not believe the case of the petitioner that when he signed the columns in the attendance register there was no erasures. His own witnesses have admitted that if any erasure was made the Principal would put his initials. Regarding the non-production of Work Register the enquiry officer had observed that it was for the petitioner to summon the same and that he did not ask for it. Ext.D19 memorandum dated 10-3-2008 signed by 25 teachers supporting the petitioner was submitted by them on 10-3-2008 which is the date on which the petitioner filed Ext.D9 explanation to the memo of charges. The petitioner's argument that the enquiry officer allowed the request of the management to re-open the evidence at the fag end of of the enquiry is not correct. Ext.D19 memorandum was marked though DW7 only on 9-12-2008. On the very next day, i.e. on 10-12-2008 C.R.P No.682 of 2009 :21: the college filed the petition to re-open the evidence since 24 out of the 25 teachers who had signed Ext.D19 memorandum had retracted from their statements and had given apology letters to the Principal. The petitioner was given an opportunity to cross-examine the witnesses with regard to Ext.D19 and also with regard to the subsequent retraction. The enquiry report was filed on 27-12- 2008. On 2-1-2009 the petitioner was given the letter proposing to impose the penalty after accepting the enquiry report. The petitioner was informed that the enquiry officer had found him guilty of the three charges which were enumerated in the letter and the major penalty of dismissal from service was proposed. He was also furnished with a copy of the enquiry report.
Eventhough he was not furnished with a copy of the enquiry report even before the Manager of the college had accepted the findings of the enquiry officer and proposed the major penalty, the question is whether the prior non-supply of the enquiry report has caused prejudice to the petitioner and whether the petitioner was precluded from proving his innocence. A closer scrutiny of the ECIL case (1993) 4 SCC 727 will go to show that even a post facto compliance of the requirement to supply a copy of the enquiry report to the delinquent will be sufficient.
All that is necessary is to give the employee an opportunity to prove prejudice. In the case before the Constitutional Bench of the Supreme Court no copy of the enquiry report was given at all to the delinquent. But in the case on hand the petitioner was C.R.P No.682 of 2009 :22: admittedly supplied with a copy of the enquiry report though after the same was accepted by the Manager and the major penalty was proposed. Mere violation of natural justice is not enough.
There should be resultant prejudice suffered by the delinquent.
(Vide Haryana Finanacial Corporation v. Kailash Chandra Ahuja - (2008) 9 SCC 31. and Burdwan Central Co-op. Bank Ltd. v. Asim Chatterjee - (2012) 2 SCC 641. The representation of the petitioner at page 11 of Ext.B1 paper book shows that it was not merely a representation against the proposed penalty but was also on merits to prove his innocence.
The disciplinary authority in Annexure -VIII final order dated 17- 1-2009 had also considered his contentions on the merits. The Tribunal below had also considered his contentions on the merits .
The expression as to what is a "perverse order" has been considered in Punjab & Sindh Bank v. Daya Singh - (2010) 11 SCC 233. The scope of interference with the punishment imposed is also very limited . (Vide Coimbatore District Central Co-op. Bank v. Employees Association - (2007) 4 SCC 669 ; Chairman & MD V.S.P. & Ors. V. Goparaju Sri. Prabhakara Hari Babu - JT 2008 (4) SC 51; Punjab & Sindh Bank v. Daya Singh(2010) 11 SCC 233; Charanjit Lamba v.
Army Southern Command - (2010) 11 SCC 314). There is no scope for any generosity or sympathy with regard to the punishment imposed unless it is shockingly disproportionate.
A.P. SRTC v. Raghuda Siva Sankar Prasad - (2007) 1 SCC 222;
State of Meghalaya v. Mecken Singh N. Marak - (2008) 7 C.R.P No.682 of 2009 :23: SCC 580; U.P. SRTC v. Suresh Chandra Sharma - 2010) 6 SCC 555. Once the employer has lost confidence in the employee then there is no scope for any leniency towards the latter whose past good conduct is wholly irrelevant. A.P. SRTC v. Raghuda Siva Sankar Prasad - (2007) 1 SCC 222. The University Tribunal has gone into the entire gamut of the oral and documentary evidence in the case and has come to the right conclusion in dismissing the petitioner's appeal. There is no question of law which the Tribunal has failed to consider or has erroneously decided so as to justify interference by this Court under its rarefied jurisdiction under Sec. 63 (9) of the University Act.
JUDICIAL RATIOCINATION A. General
7. We are afraid that we find ourselves unable to agree with the submissions made on behalf of the management of the College in question. Before delving deep into the merits of the case we would like to focus our attention to the concept of "domestic enquiry" and what the law expects from an Enquiry Officer holding a domestic enquiry in disciplinary proceedings.
B. Domestic enquiry and its legal requirements
8. "Domestic enquiry" is part of the disciplinary proceedings initiated by the employer against his employee for C.R.P No.682 of 2009 :24: proving the misconduct alleged against the employee.
i) What is misconduct ?
9. "Misconduct" is violation an order or a prescribed
conduct which an employee or workman is expected to follow . This is generally understood as discipline. The word "discipline" is not defined in any statute. Discipline implies that a person should behave with propriety and decorum. When there is violation of propriety and decorum it is misconduct. In other words, "misconduct" means the transgression or violation of some established and defined rule of action or code of conduct. It is a dereliction of duty or a behaviour which is improper and unlawful. Misconduct is a generic term while specific misconducts like disobedience of orders, insubordination, neglect of work, absence from duty, assault on superiors or co-workers, dishonesty, fraud, participation in illegal strike, riotous and disorderly behaviour, theft, misappropriation etc. are species thereof. The master and servant relationship at common law has been largely modified by statutory provisions. The industrial and labour laws restrict the unfettered power of the master to determine the employment of his servant. The employer has to justify the action he takes against his employee and, therefore, the first step towards this is to conduct a domestic enquiry after affording a reasonable opportunity to the delinquent employee to defend himself. Misconducts are enumerated in the Standing orders or C.R.P No.682 of 2009 :25: the service rules or regulations of the industrial establishments/ organisations. Generally the following misconducts are enumerated in the Standing Orders/Rules/Regulations:-
1. Abandoning the post.
2. Absence from duty.
3. Assault on co-workers.
4. Assault on superior officers.
5. Disclosure to unauthorised persons about working.
6. Dishonesty / fraud.
7. Disobedience of orders.
8. Drunkenness.
9. Dissuading customers.
10. Distribution / exhibition of pamphlets in work place.
11. Failure to observe safety instructions.
12. False allegations against employer.
13. Gambling at work place.
14. Go-slow.
15. Gross negligence.
16. Habitual negligence.
17. Holding meeting at work place.
18. Hunger strike.
19. Inciting workers for illegal strikes.
20. Insubordination.
21. Late attendance.C.R.P No.682 of 2009 :26:
22. Lowering prestige of organisation by making public statements against head of organisation.
23. Misrepresentation for employment.
24. Molestation of female workers.
25. Money lending.
26. Obstruction by strikers.
27. Participation in illegal strikes.
28. Persistent refusal to perform duties.
29. Refusal to accept orders.
30. Refusal to leave factory premises after closing down.
31. Refusal to vacate quarters.
32. Refusal to work beyond duty hours.
33. Sexual harassment.
34. Sleeping during duty hours.
35. Shouting slogans in the factory.
36. Acts subversive of discipline.
37. Taking or giving bribe.
38. Termination for unsatisfactory work.
39. Teasing women workers.
40. Threatening superiors.
41. Theft.
42. Unauthorized possession of lethal weapons.
43. Vulgarity on the part of an employee.
44. Willful damage to work in progress.C.R.P No.682 of 2009 :27:
Domestic enquiry is founded on the principle of audi alterem partem i.e. no one shall be condemned without being heard.
This is one of the cardinal principles of Natural Justice. The object of holding domestic enquiry is not only to afford an opportunity to the charge-sheeted employee/workman but also to find out the truth.
ii) Preliminary enquiry and its purpose
10. A preliminary enquiry is held when the authority feels that material is not sufficient for forming an opinion that there is prima facie case for holding full-fledged enquiry against the delinquent officer. Preliminary enquiry is normally resorted to by the disciplinary authority to collect evidence and material for forming an opinion whether full-fledged disciplinary enquiry may be initiated against the delinquent employee or not. A preliminary enquiry may not result either in exoneration or punishment, but it merely decides the preliminary issue whether to proceed against a particular employee or not. Its purpose is to see whether a prima facie case exists for issuing charge-sheet calling for explanation.
iii) When preliminary enquiry is ordered ?
11. Preliminary enquiry is normally resorted to by the disciplinary authority to collect material for forming an opinion.
Preliminary enquiry can be carried out ex parte but if necessary, the person concerned may also be interrogated and his statement recorded. Preliminary enquiry is not a substitute for full-fledged enquiry. Holding of preliminary enquiry before issuing the Charge sheet is not necessary for holding Domestic enquiry. Absence of C.R.P No.682 of 2009 :28: preliminary enquiry does not invalidate action. Narayana Dattatreya Ranteerthakar vs. State, 1997(2) LLN 1004 = 1997(76) FLR 976(SC)
iv) Charge sheet Requirements
12. The Charge sheet is the most important basic document or the foundation or the bed rock on which disciplinary proceedings are initiated against the employee/workman accused of misconduct. The entire domestic enquiry hinges upon the charge sheet. The charge sheet should clearly state the charges leveled against the erring workman. The charges must be specific, setting out all necessary particulars even if the workman knows the details. If the charge sheet is vague the same is invalid and the disciplinary proceedings also become invalid. In a case where the charge-sheet was vague the Apex Court held that there was no proper enquiry (Vide Firestone Tyre and Rubber Co. of India (P) Ltd., v. Its employees Union - AIR 1981 SC 1626). The charge-sheet must contain specific allegations. The proceedings should succeed or fail on that basis and facts not intended to be proved shall not be alleged. The correct provision of the Standing Orders, Service Rules, Regulations etc. attracting the misconduct shall be quoted in the charge sheet. Incorporation of the specific provision is necessary to enable the Enquiry Officer to hold whether the act complained of constitutes misconduct within the meaning of the Standing Orders, Rules and Regulations for which the charge sheet is issued and whether the C.R.P No.682 of 2009 :29: charge sheet is a valid and proper one. If the charge sheeted employee raises these questions before the Enquiry officer the same shall be decided. It is settled law that the charges shall be specific and unambiguous. Clarity and precision are the essential requirements of imputation. A charge sheet should not be vague or in generalised terms. Necessary particulars should be given and specific particulars of the charges must be furnished to the delinquent. (Transport Commissioner vs. Radha K Murthy.
1996(74) FLR 139(SC) followed in Havildar Singh vs. Tigra Metal & Steel.2000(2) CLR 452 = 2000 Lab IC 908 (Bom).
v) Suspension and its justification
13. It is not an administrative routine or an automatic ritual to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one forbidding or disabling an employee from discharging the duties of the office or post held by him. It would be another thing if the action is actuated by mala fides, arbitrarily or for ulterior prupose. The suspension must be a step in aid towards the ultimate result of the investigation or inquiry. The authority also should keep in mind the public interest behind the impact of the delinquent's continuance in C.R.P No.682 of 2009 :30: office while facing departmental inquiry or a trial on a criminal charge. In other words, it is to refrain him from availing further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or to impede the progress of the investigation or inquiry etc. State of Orissa v.Bimal Kumar Mohantty, (1994) 4 SCC 126; 1994 I CLR 615 (SC).
vi) Enquiry Officer
14. The disciplinary authority who is the employer need not himself conduct the formal enquiry regarding the alleged misconduct of the delinquent employee. It is open to the employer to appoint an enquiry officer conversant with the procedure. The equiry officer's appointment is to be notified to the charge-sheeted employee. The enquiry officer has to give notice to the charge sheeted workman and the employer regarding the fixing of the date, time and place of the enquiry and calling upon them to produce their witnesses and documents relied upon by them. Where the notice sent by registered post was returned with the endorsement "absent" or "not found" it wss held by the Supreme Court that it amounts to no notice.
C.R.P No.682 of 2009 :31:[R.K.Vashisht vs.Union of India, (1933) Supp. (1)SCC 431.
Also see the decision of Supreme Court in Transport Commissioner, Madras vs. A.Radhakrishna Murthy, 1995(1) LLN 776 (SC)].
vii) Enquiry Officer cannot be a Prosecutor and a Judge and cannot Cross-Examine Witnesses:
15. The enquiry officer cannot lead the evidence on behalf of the management and he cannot be both the prosecutor and the judge. The enquiry officer should not put leading questions to the management witnesses and should not cross-examine the defence witnesses. He cannot be both the Enquiry Officer and the presentation officer and Judge and prosecutor. See Nagaraj Bhat vs. Canara Bank, 1988(57) FLR 722 (Kar). The enquiry officer can put questions for clarification of any statement made by any witness. (See Mulchandani Electrical and Radio Industries Ltd. vs. Workmen - 1975 Lab. I.C. 1508 SC).
But, he cannot assume the role of a cross examiner and if he does so the enquiry becomes void being violative of the principles of natural justice. Muralidhar Seetha Rama Rane vs. State of Maharashtra, 1990(1) LLN 558(Bom). Enquiry officer putting questions on admitted facts will not vitiate the enquiry.
C.I.Poulose vs. Labour Court and Another - 1996 (1) KLJ
515. Enquiry Officer himself cannot be Prosecutor and Judge.
Y.Tatachary vs.Acharya NGR Agricultural University, 2000 (85)FLR 817(A.P). Place of enquiry cannot be restricted to C.R.P No.682 of 2009 :32: the place of establishment. Saudik Asia Ltd., vs.Maruthi M Jagdale, 2002(2) CLR 1018 (Bom).
viii) Appointment of Presenting Officer:
16. On behalf of the management a presenting officer will be appointed who will lead the evidence-in-chief of the management witnesses, get the documents filed through them and cross examine the charge-sheeted workman if he gives evidence and also his witnesses. There is no legal compulsion to appoint a presenting officer. Non-appointment of such an officer will not be a ground to set aside the domestic enquiry, (Bharat Electronics Ltd. vs. V.K.Kashi- (1986) (1)LLJ 812 (Kerala).
Also see Nagaraj Bhat vs.Canara Bank - (1988) 57 FLR 722 (Kerala). However, if a presenting officer is appointed the witnesses themselves have to give evidence etc. It will always be in the interest of Management to appoint a Presenting Officer.
There is no bar for a witness to be a presenting Officer.
N.H.Sheik vs.K.K.Uppal. 1992(2)LLN 215 (Bom). Also see Management of Gaxio Industries vs. Presiding Officer Guntur Labour Court, 1992 Lab IC 1859 (AP);
P.R.Dhundhara vs. Municipal Corporation of Greater Bombay. 1996(1) CLR 59 (Bom). In the above case while holding that a person who is a witness is not precluded from being a presenting officer, the Court suggested that this practice be discontinued.
C.R.P No.682 of 2009 :33:ix) Representation of charge sheeted employee:
17. In the domestic enquiry the charge-sheeted employee has to be allowed to be represented by a person authorised under the Standing Orders/Rules and Regulation etc. The charge sheeted employee does not have any choice to allow him to be represented by a person who is not authorised under the Standing Orders/Rules and Regulations, or an outsider or an Advocate.
Crescent dyes and Chemiclas vs. R.N.Tripathi, (1993) 2 SCC 115. A suspended employee has no right to represent a charge sheeted employee. Haridas malkan vs. Jay Engineering, 1975(1)LLJ 26 (Cal). 'The charge sheeted employee is not entitled as of a right to be represented by an advocate at the domestic enquiry. Maharashtra State Higher Secondary Education vs. K.S.Gandhi, 1991(2)SCC 716=1991 S CW 879. Also see Neelagiri Tea Estate Ltd.vs.Workman, 1992(64) FLR 370(Ker). In the absence of Standing Orders providing for legal aid it cannot be asked as a matter or right at domestic enquiry. Where an offer given to be represented by a Union leader was turned down by the workman, he cannot thereafter be allowed to complain of violation of the principles of natural justice. (N.R.Rajan vs.Mathrubhoomi Printing and Publishing Co. 2001 Lab IC 1508(Ker). Representation can be permitted in the domestic enquiry only as per Standing Orders.
Cipla Ltd vs.Ripu Daman Bhanot - 1999 (1) SCC 300. The position may require a re-look after the enforcement of Section 30 of the Advocates Act, 1961.
C.R.P No.682 of 2009 :34:x) Refusing appearance of Lawyer and Natural Justice:
18. Where there is no right for the workman to be represented by a lawyer at the Domestic Enquiry there is no violation of the Principles of Natural Justice Sadanandan Nair vs.Central Bank of India - 1997 LLR 268 = 1997(1)CLR490 (Ker); following State Bank of Patiala vs.S.K.Sharma -
1996(2) CLR 29(SC). Even though the Personnel Officer representing the Management at the enquiry is well versed in law a request by the delinquent for the assistance of a Lawyer is not tenable. It is within the discretion of the Enquiry Officer. See K.G.Mhaiskar vs. Bank of Maharashtra - 1997(1)LLN 670 (Bom); Central Bank of India vs. C.Bernard.1991(1) LLN 1111(SC). Pushpa Gupta vs.CMD Engineers India Ltd. - 1997(2) LLN 201 (Del), Harinarayan vs. United Commercial Bank -
1997 LLR 497(SC): = 1997(76) FLR 268.
xi Appearance of Advocate when allowed:
19. However where the presentation officer is an experienced and qualified man in the field, the services of a similarly qualified person must be allowed to the charge sheeted employee even if the rules prohibit the assistance of an outsider N.Sundaram vs.Indian Airlines Corporation - 1998(2) LLN761 (Mad). Where complicated legal issues are involved in the enquiry denial of legal assistance or refusal to give legal C.R.P No.682 of 2009 :35: assistance amounts to violation of the principles of natural justice.
Hansila Prasad Pandy vs.Bank of India - 1986(2)LLN (Mad). In India, legal assistance at the domestic equity is not extended. Each case must be decided on its facts M.A.Narayan Setty vs. LIC Cuddapah - 1990 (1)LLN 825(A.P). It will be violative of principles of natural justice not to permit an advocate to represent an employee at the domestic enquiry when the employer is represented by a trained officer as presentation officer and where no discretion is vested in the enquiry officer under the rules to permit the employee to be represented by Advocate. Refusal in such circumstances to exercise the discretion will amount to violation of principles of natural justice.
J.K.Agarwal vs. Haryana Seeds Development Corporation-
1992 LLR 21(SC). The above analysis gives an idea as to what an enquiry officer should do and should not to do in the conduct of the domestic enquiry and the right of representation of the parties there at.
Where Presentation Officer and Enquiry Officer are legally trained persons permission for the appearance of an advocate cannot be refused. Regional Manager APSRTC vs. K.Ranganaikulu - 1996(4) ALT 874: The right of an Advocate to appear before any adjudicatory forum after the enforcement of Sec. 30 of the Advocates Act, 1961, cannot now be underestimated.
C.R.P No.682 of 2009 :36:xii) - Principles of Natural Justice in Domestic enquiry
20. Principles of Natural Justice cannot be fitted into any straight jacket. It is not possible to lay down any rigid rules as to which principle of Natrual Justice is to be applied . It is not a rule of thumb or a straight jacket formula. (Maharashtra State Board of Secondary Higher Education vs. K.S.Gandhi. 1991 (2) SCC 716= AIR 1991 SC 879, Sawai Singh vs. State of Rajasthan 1986(3) SCC 454 = 1986 Lab IC 855= 1986(2) LLN 858(SC). Violation of Principles of Natural Justice depends upon facts of each case. U.P.State Road Transport Corporation vs. Musai Ram. 2000 LLR 1(SC). Principles of Natural Justice are but the means to achieve the very opposite end, which would be a counter productive device. Technicalities or irregularities which do not cause prejudice cannot be allowed to defeat the ends of justice. ILR 1997 Andhra 612 (A.P) B.V.Ramanarayana vs. SBI, Hyderabad. Natural Justice is not an inflexible Rule of Audi Alteram Partem. K.S.N.Sharma vs. State Bank of India1998(4) ALD 722. The concept of compliance of the principles of Natural Justice have undergone a sea change. Pre-justice doctrine has now taken a firm root and has to be looked into to find out if any violation has been made.
T.Zakariah vs. APSC Co-op.Finance Corporation. 2002(1) CLR 292 (A.P) (D.B). The meaning of Natural Justice is the compliance of two essential things, namely, that no man shall be a judge in his own case and no man shall be condemned without C.R.P No.682 of 2009 :37: being heard. The principles and their meaning explained.
Syndicate Bank vs. Staff Association - (2000) 5 SCC 65 = 2000(85)FLR 807 = 2000(2) LLN 942 = 2000 Lab IC 2326 = 2000 LLR 689 (SC).
xiii) ENQUIRY PROCEDURE
21. In most of the enquiries the enquiry officer reads the charge sheet, explains the same to the employee and asks him whether he has anything to say. This is done to find out whether at that stage the concerned employee admits the charges. If he so admits there will be no need to proceed further with the enquiry.
(See the decision of A.P.High Court in K.Ventakeswarulu vs. Nagarjuna Grameena Bank, Khammam, 1995(1)ALJ 511= 1995(1) ALD 500. This Court in P.K.Thankachan vs. Thalanadu Co-operative Services Bank, 1994 (68) FLR 979 (Ker), has pointed out that a domestic enquiry is required only to prove the disputed facts and where the charges are admitted there is no need for the enquiry officer to record the evidence at all. In fact, the Calcutta High Court in Ashok Kumar Choudhuri vs.Calcutta Port Trust, 1993(66)FLR 48 (Cal) held that it is not the duty of the Enquiry Officer to educate the charge sheeted employee regarding the principles of Natural Justice or regarding his right to be represented at the enquiry. The enquiry officer has only to afford adequate opportunity and follow the principles of natural justice.
The Supreme Court in Sur Enamel Stamping and Printing C.R.P No.682 of 2009 :38: Works vs.its Workmen, 1963(7) FLR 236(SC), laid down the following principles as principles of Natural Justice-
1. The employee proceeded against has been informed clearly of the charge levelled against him.
2. The witnesses are examined -ordinarily in the presence of the employee- in respect of the charges.
3. The employee is given a fair opportunity to cross-examine the witnesses
4. He will be given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter and
5. The enquiry officer records his findings with reasons for the same in his report.
The above principles cannot be said to completely represent all the principles of Natural Justice . As rightly pointed out by the Calcutta High Court in Power Tool and Appliances Company Ltd. vs. Union of India, 1995(1) LLN 5843(AP), the principles of Natural Justice are flexible and not rigid and can be moulded on the facts of each case. Principles of Natural Justice need not be adhered to mechanically. Talaprolu Bapaniah vs. P.G.Krishna High School, 1996(1) ALD 623 (A.P). In other words, what the Enquiry Officer considers reasonabale and fair and dos not cause prejudice in any manner to the delinquent or to the employer can be followed by him. Where the charge sheeted workman inspite of several opportunities does not attend the enquiry or refuses to take part in the enquiry, the enquiry officer can proceed with the matter ex parte. Where on the first day itself the charge sheeted workman refuses to take part in the enquiry, the enquiry officer will be justified in proceeding with the matter C.R.P No.682 of 2009 :39: ex parte. However, prudence requires to send another notice alleging refusal to participate and affording opportunity once again. Such an action will avoid mud slinging, allegations of bias or malice against the Enquiry Officer. The theory of Substantial Compliance with the Rule will not help. The test is whether the delinquent did or did not have a fair hearing. There is no hard and fast rule in the matter of Natural Justice. State Bank of Patiala vs. S.K.Sharma , 1996(2) CLR 29=1996(1) LLN 820 = 1997 LLR 368 (SC).
C. Is the delinquent entitled to a copy of the domestic enquiry report to prove his innocence even before the employer accepts the findings of the enquiry officer and proposes the punishment ?
22. The submission of Sri. Jayasankar Nambiar was that the disciplinary proceedings against the petitioner has been conducted strictly in accordance with Sec. 75 of the University Act, particularly sub sections (11) and (12) of Sec.75 and the disciplinary authority after considering the record of inquiry had recorded his findings on each charge for forming an opinion regarding the proposed penalty and the petitioner was supplied with a copy of the enquiry report after giving him an opportunity to give his response to the proposed penalty. The argument was that, in the absence of any prejudice proved by the petitioner, the mere fact that he was not furnished with a copy of the C.R.P No.682 of 2009 :40: enquiry report before proposing the penalty, will not vitiate the enquiry.
Sec. 75 of the Act reads as follows: -
75. Procedure for imposing major penalties:
(1) No order imposing any of the penalties specified in items (iv) to (vii) of Statute 73 shall be passed except after an enquiry held in accordance with the provisions of this Statute.
(2) Whenever a complaint is received or on consideration of the report of an investigation or for other reasons, the Educational Agency is satisfied that there is a prima facie case for taking action against the teacher of a private college, such authority shall frame definite charge or charges which shall be communicated to the teacher of a private college, together with the statement of the allegations on which each charge is based, and of any other circumstance which it is proposed to take into consideration in passing orders on the case. The teacher concerned of the private college shall be required to submit within a reasonable time to be specified in that behalf a written statement of his defense and also to state whether he desires to be heard in person. The teacher of the private college may, on his request be permitted to peruse or take extract from the records pertaining to the case for the purpose of preparing his written statement, provided that the Educational Agency, may, for reasons to be recorded in writing, refuse him such access if in its opinion such records are not strictly relevant to his case. After the written statement is received within the time allowed, the Educational Agency is satisfied that a formal inquiry shall be held into the conduct of the teacher of the private college, it may pass an order accordingly. (3) The formal inquiry may be conducted by-
(i) the Educational Agency of the private college;
(ii) any authority or person authorised by the Educational Agency.
(4) Any authority or person conducting the inquiry (hereinafter referred to as the inquiring authority) may during the course of the inquiry, if it seems necessary, add to, amend, alter, or modify the charges framed against the teacher concerned in which case, the teacher shall be required to submit within a reasonable time to be specified in that behalf any further written statement of his defense.C.R.P No.682 of 2009 :41:
(5) The teacher of the private college shall, for the purpose of preparing his defense, be permitted to inspect and take extract from such records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing, in the opinion of the inquiring authority such records are not relevant for the purpose. On receipt of the further written statement of defense under clause(2) or if no such statement is received within the time specified therefore or in case where the accused is not required to file a written statement under the said clause, the inquiring authority may inquire into such of the charges as are not admitted.
(6) The disciplinary authority, if it is not the inquiring authority, may nominate any person to present the case in support of the charges before the inquiring authority. The teacher may engage a legal practitioner to defend his case if he so desires.
(7) The inquiring authority shall, in the course of the inquiry, consider documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The teacher or his advocate shall be entitled to cross-examine witness examined in support of the charges and to give evidence in a person and to have such witnesses as may be produced, examined in his defense. The person presenting the case in support of the charges shall be entitled to cross-examine the teacher of the private college and the witnesses examined in his defense. If the inquiring authority declines to examine any witness on the ground that his evidence is not relevant or material, it shall record its reasons in writing.
Explanation- If the inquiring authority proposes to rely on the oral evidence of any witness, the authority shall examine such witness and give an opportunity to the accused teacher of the private college to cross-examine the witness.
(8) The teacher of the private college may present to the inquiring authority a list of witnesses whom he desires to examine in his defense. The inquiring authority shall issue written request to secure the presence of such witnesses unless he is of the view that such witnesses, evidence are irrelevant to the case of inquiry and shall arrange to examine such witnesses in accordance with the general principles of taking evidence.
(9) At the conclusion of inquiry, the inquiring authority shall prepare a report of the inquiry, recording its findings on each of the charges together with the reasons therefor. If, in the opinion of such C.R.P No.682 of 2009 :42: authority, the proceedings of the inquiry establish charges different from those originally framed, it may record its findings on such charges, provided that findings on such charges, shall not be recorded unless the teacher of the private college has admitted the fact constituting them or has had an opportunity for defending himself against them.
(10) The record of inquiry shall include-
(i) the charges framed against the teacher of the private college and the statement of allegations furnished to him;
(ii) his written statement of defense, if any;
(iii)the summary of the oral evidence considered in the course of the inquiry;
(iv)the documentary evidence considered in the course of the inquiry;
(v) the orders including order of refusal, if any, made by the disciplinary authority or the inquiring authority in regard to the inquiry and
(vi) a report setting out the findings on each charge and the reasons therefore.
(11) The disciplinary authority where it is not the inquiring authority, shall consider the record of the inquiry and record its finds on each charge.
(12) If the disciplinary authority, having regard to the findings on the charges is of the opinion that any of the penalties specified in items
(iv) to (vii) of Statute 73 shall be imposed, it shall-
(a) furnish to the teacher of the private college, a copy of the report of the inquiring authority and where the disciplinary authority is not the inquiring authority, a statement of its findings together with brief reason for disagreement, if any, with the findings of the inquiring authority; and
(b) give him a notice stating the action proposed to be taken in regard to him and calling upon him to submit within a specified time which may not exceed one month, such representation as he may wish to make against the C.R.P No.682 of 2009 :43: proposed action.
(13) The disciplinary authority shall consider the representation, if any, made by teacher of the private college in response to the notice under clause(12) and determine the penalty, if any, to be imposed on the teacher of the private college and pass appropriate orders on the case. (14) If the disciplinary authority having regard to its findings is of opinion that any of the penalties specified in items (i) to (iii) of statute 73 shall be imposed, he shall pass appropriate orders on the case. (15) Orders passed by the disciplinary authority shall be communicated to the teacher.
No doubt, a perusal of Section 75 of the University Act will show that the delinquent need be furnished with a copy of the enquiry report only after the disciplinary authority accepts the findings of the enquiry officer and proposes the punishment to the delinquent. But then, after the decision of the Constitution Bench in Managing Director, ECIL, Hyderabad v. B. Karunakar and Others - (1993) 4 SCC 727 ("ECIL case" for short) it is not permissible for any employer or disciplinary authority to take shelter under any statutory provision or other rule and deprive the delinquent an opportunity to assail the conclusions reached by the Enquiry Officer to prove his innocence even before the employer or disciplinary authority accepts the findings of the Enquiry Officer and decides to impose a major penalty. In this connection it is relevant to note that the Constitution Bench approved an earlier decision of the Apex Court in Union of India v. Mohd. Ramzan Khan -
(1991) 1 SCC 588 and held that the law laid down therein shall apply not only to employees in government establishments but would also apply to non-government, public or private C.R.P No.682 of 2009 :44: establishments notwithstanding the fact that the rules governing the disciplinary proceedings do not provide or prohibit the furnishing of the copy of the enquiry report to the delinquent employee. We give below the relevant observations made by the Constitution Bench:-
"24. Since the Government of India Act, 1935 till the Forty-second Amendment of the Constitution, the Government servant had always the right to receive the report of the enquiry officer/authority and to represent against the findings recorded in it when the enquiry officer/authority was not the disciplinary authority. This right was however, exercisable by him at the second stage of the disciplinary proceedings viz. when he was served with a notice to show cause against the proposed penalty. The issuance of the notice to show cause against the penalty necessarily required the furnishing of a copy of the enquiry officer's report since, as held by the Courts, the right to show cause against the penalty also implied the right to represent against the findings on the charges. This was considered to be an essential part of the 'reasonable opportunity' incorporated earlier in Section 240(3) of the GOI Act and later in Article 311(2) of the Constitution as originally enacted. The right to receive the enquiry officer's report and to show cause against the findings in the report was independent of the right to show cause against the penalty proposed. The two rights came to be confused with each other because as the law stood prior to the Forty- second Amendment of the Constitution, the two rights arose simultaneously only at the stage when a notice to show cause against the proposed penalty was issued. If the disciplinary authority after considering the enquiry officer's report had dropped the proceedings or had decided to impose a penalty other than that of dismissal, removal or reduction in rank, there was no occasion for issuance of the notice to show cause against the proposed penalty. In that case, the employee had neither the right to receive the report and represent against the finding of guilt nor the right to show cause against the proposed penalty. The right to receive the report and to represent against the findings C.R.P No.682 of 2009 :45: recorded in it was thus inextricably connected with the acceptance of the report by the disciplinary authority and the nature of the penalty proposed. Since the Forty-second Amendment of the Constitution dispensed with the issuance of the notice to show cause against the penalty proposed even if it was dismissal, removal or reduction in rank, some courts took the view that the Government servant was deprived of his right to represent against the findings of guilt as well. The error occurred on account of the failure to distinguish the two rights which were independent of each other.
25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz. before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lessor penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment.
26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority , the principles of natural C.R.P No.682 of 2009 :46: justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority , that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.
27. It will thus be seen that where the enquiry officer is other than the disciplinary authority, the C.R.P No.682 of 2009 :47: disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee's right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings.
28. The position in law can also be looked at from a slightly different angle. Article 311(2) says that the employee shall be given a "reasonable opportunity of being heard in respect of the charges against him". The findings on the charges given by a third person like the enquiry officer, particularly, when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. What is further, when the proviso to the said Article states that "where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed", it in effect accepts two successive stages of different scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority ( the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed C.R.P No.682 of 2009 :48: with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry oficer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz. the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges.
29. Hence it has to be held that when the enquiry officer is not the disciplinary authority , the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at tis conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles or natural justice.
30. Hence the incidental questions raised above may be answered as follows:-
(i) Since the denial of the report of the enquiry officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory C.R.P No.682 of 2009 :49: rules, if any, which deny the report to the employee are against the principles of natural justice and therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject.
(ii) The relevant portion of Article 311(2) of the Constitution is as follows:
"(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges."
Thus the article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311 (2) applies only to members of the civil services of the Union or on all India service or a civil service of a State or to the holders of the civil posts under the Uniion or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded and when the enquiry officer is not the disciplinary authority the delinquent employee will have the right to receive the enquiry officer's report notwithstanding the nature of the punishment.
(iii) Since it is the right of the employee to have the report to defend himself effectively and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him.
(iv) In the view that we have taken, viz., that the right to make representation to the disciplinary C.R.P No.682 of 2009 :50: authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Moh.Ramzan case should apply to employees in all establishments whether Government or non- Government, public or private. This will be the case whether there are rules governing the disciplinary proceedings or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges levelled against him. Hence question(iv) is answered accordingly.
(v) The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what releif should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances C.R.P No.682 of 2009 :51: of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice.
31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment . The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will supply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that he furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority /management to proceed with the inquiry by placing the employee under suspension and continuing the inquiry form the stage of furnishing him with the report. The question whether the employee would be entitled to the backwages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should C.R.P No.682 of 2009 :52: invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.
32. In this connection we may refer to a decision of this Court in State Bank of India v. N.Sundara Money where the court has shown the proper course to be adopted where the termination of service of an employee is faulted on a technical ground. This was a case where an employee was appointed as cashier, off and on, by the State Bank of India between July 31, 1973 and August 29,1973. Together with the earlier employment this nine days ' employment during the said period had ripened into 240 days of broken bits of service. The employment, however, was terminated without notice or payment of retrenchment compensation. The Court moulded the relief taking into consideration the long period which had passed and directed that the employee would be put back to the same position where he left off, but his new salary will be what he would draw were he to be appointed in the same post"today" de novo. He was further directed to be ranked below all permanent employees in that cadre and to be deemed to be a temporary hand till that time. He was further directed to be ranked below all permanent employees in that cadre and to be deemed to be a temporary hand till that time. He was not allowed to claim any advantages in the matter of seniority. As for the emoluments, he was left to pursue other remedies, if any.
33. Questions (vi) and (vii) may be considered together. As has been discussed earlier, although the furnishing of the enquiry officer's report to the delinquent employee is a part of the reasonable opportunity available C.R.P No.682 of 2009 :53: to him to defend himself against the charges, before the Forty-second Amendment of the Constitution, the stage at which the said opportunity became available to the employee had stood deferred till the second notice requiring him to show cause against the penalty, was issued to him. The right to prove his innocence to the disciplinary authority was to be exercised by the employee along with his right to show cause as to why no penalty or lesser penalty should be awarded. The proposition of law that the two rights were independent of each other and in fact belonged to two different stages in the inquiry came into sharp focus only after the Forty-second Amendment of the Constitution which abolished the second stage of the inquiry, viz. the inquiry into the nature of punishment. As pointed out earlier, it was mooted but not decided in E.Bashyan case by the two learned Judges of this Court who referred the question to the larger Bench. It has also been pointed out that in K.C.Asthana case no such question was either raised or decided. It was for the first time in Mohd.Ramzan Khan case that the question squarely fell for decision before this Court. Hence till November 20,1990, i.e., the day on which Mohd.Ramzan Khan case was decided, the position of law on the subject was not settled by this Court. It is for the first time in Mohd.Ramzan Khan case that this court laid down the law. that decision made the law laid down there prospective in operation, ie., applicable to the orders of punishment passed after November 20,1990. The law laid down was not applicable to the orders of punishment passed before that date notwithstanding the fact that the proceedings arising out of the same were pending in courts after that date. The said proceedings had to be decided according to the law prevalent prior to the said date which did not require the authority to supply a copy of the inquiry officer's report to the employee. The only exception to this was where the service rules with regard to the disciplinary proceedings themselves made it obligatory to supply a copy of the report to the employee.
34. However, it cannot be gainsaid that while Mohd.Ramzan Khan case made the law laid down there prospective in operation, while disposing of the cases which were before the Court, the Court through inadvertence gave relief to the employees concerned in C.R.P No.682 of 2009 :54: those cases by allowing their appeals and setting aside the disciplinary proceedings. The relief granted was obviously per incuriam. The said relief has, therefore, to be confined only to the employees concerned in those appeals. The law which is expressly made prospective in operation there, cannot be applied retrospectively on account of the said error. It is now well settled that the courts can make the law laid down by them prospective in operation to prevent unsettlement of the settled positions, to prevent administrative chaos and to meet the ends of justice. In this connection, we may refer to some well- known decisions on the point".
A Division Bench of this Court following the ECIL Case and subsequent rulings of the Apex Court, had in Sudhakaran C.B. (Dr) v. The Cochin Educational Society and Another, 2009 (1) KLJ 349 held that failure to supply a copy of the enquiry report to the delinquent employee before accepting the finding of the Enquiry Officer will vitiate the disciplinary proceedings. That was also a case arising from another private college affiliated to the M.G. University. We are, therefore, not inclined to accept the argument on behalf of the management that the illegality of not supplying the petitioner a copy of the enquiry report to prove his innocence before the disciplinary authority considered the findings therein, can be cured by a post decisional opportunity as was attempted to be done in this case.
D) The sequence of events culminating in the impugned order
23. The chronological sequence of events culminating in the impugned order dated 25-08-2009 of the Tribunal is as follows:-
C.R.P No.682 of 2009 :55:05-02-2008 The Principal sent Ext. M2 letter to the Manager informing the latter that the petitioner had committed a misbehaviour in the marking of the Attendance Register as reported by the head accountant. The letter proceeds to say that the Principal inspected the Attendance Register to find that it was tampered by erasing the leave marked "L" in red ink in the column pertaining to the petitioner on 31-12-2007, 18-12-2007 and 6-12-2007 and had impressed upon it his signatures and on further scrutiny it was seen that the same mischief was committed by the petitioner on 28-11- 2007, 23-7-2007, 9-07-2007 and 4-6-2007. The letter requested the Manager to take necessary action regarding the above misconduct. (A copy of this letter is obtained at page 238 of Ext.B1 paper book).
08-02-2008 The Head Accountant gave Ext. M6 letter to the Manager to the following effect :-
He (Head Accountant) was keeping the Attendance Registers for the year 2007. Some time in the first week of January 2008, the petitioner approached him with a request to sign the Attendance Register for the half day leave which was not regularised till then. He asked the petitioner to obtain the permission of the Principal. After a few days the petitioner again came to him asking for the Attendance Register stating that the Principal had permitted him to mark the attendance. Since the petitioner told him that the Principal had permitted him to mark the attendance, he allowed the petitioner to take the Attendance Register. The petitioner took the Attendance Register and after erasing the "L" mark signed the same and replaced the Attendance Register.(A copy of this letter is obtained at page 242 of Ext.B1 paper book) 08-02-2008 The Manager issued Ext. M3 show cause notice to the petitioner alleging that he had tampered with the Attendance Register by erasing the leave marked in red ink by the Principal on the aforementioned seven dates and had impressed upon it his signatures. This notice called upon the petitioner to explain within 15 days of receipt of the notice as to why disciplinary action as contemplated by the University Act and Statutes should not be taken against him. The notice proceeded to say that considering the nature and gravity of the misconduct alleged C.R.P No.682 of 2009 :56: against the petitioner he was suspended from service with immediate effect pending disciplinary proceedings and that he shall not enter the college campus without this specific permission of the Principal. He was also asked to immediately vacate the staff quarters allotted to him. He was informed that he was eligible for subsistence allowance as per rules. (A copy of this letter is obtained at page 239 of Ext.B1 paper book).
20-02-2008 Even before the expiry of 15 days of M3 show cause notice the Manager issued Ext. M4 memo of charges and Ext.M5 statement of allegations. Ext. M4 memo of charges reads as follows:-
"That you, Sebastian K.Antony, Lecturer (under suspension), Kattadiyil, Parakadavil, Kavumbagom P.O. Thiruvalla, have committed the misconduct of tampering of the Attendance Register of the Teaching Staff of the teachers of Malayalam Langugage in St.Albert's College, Ernakulam by erasing the leave marked by the Principal in your column in red ink, on 31st December 2007, 18th December & 6th December 2007 and impressed upon them with your sign. On further scrutiny, the Principal noticed that you have committed the same mischief on 28th November 2007, 23rd July 2007, 9th July 2007 & 4th June 2007 also. you have fraudulently erased the sign of the Principal marking leave on the day of your absence and have put your sign upon it for your personal benefit and thereby you have caused loss to the Government and cheated the institution, students and the public. Your aforesaid action, if proved, amounts to severe misconduct warranting major penalty. Being a senior teacher you were expected to maintain higher standard of integrity and honesty in view of the position you hold. On the basis of the deceitful act, you have dishonestly obtained payment of salary and thereby you have made loss to the public exchequer and thus you have not only committed a serious misconduct but also an offence.C.R.P No.682 of 2009 :57:
You are required to show cause why disciplinary action as contemplated under Section 63 of the Mahatma Gandhi University Act 1985 read with Part D, Chapter 45 of the Mahatma Gandhi University Statues, 1997, should not be taken against you. You are allowed 15 days from the date of the receipt of this communication, to submit your written statement of Defense. If your written statement is not received within the specified time the matter will be proceeded ex parte on the presumption that you have no explanation to offer. You are required to state whether you desire to be heard in person". ( Copies of Exts. M4 and M5 are obtained at pages 240 and 241 of Ext. B1 paper book).
21-02-2008 Petitioner gave a reply to Ext. M3 show cause notice dated 8-2- 2008 requesting for a copy of Ext. M2 letter dated 5-2-2008 referred to in Ext. M3 show cause notice so as to enable the petitioner to give an effective reply to Ext. M3 show cause notice. (This letter has not been marked either during the disciplinary enquiry or before the Tribunal).
10-03-2008 The petitioner submitted Ext. D9 explanation to Exts. M4 memo of charges and M5 statement of allegations. In this letter the petitioner alleged that even before the expiry of 15 days granted to him under Ext. M3 show cause notice dated 8-2-2008 and without furnishing him copy of the report dated 5-2-2008 Ext. M4 memo of charges was issued to him. He inter alia alleged that the present disciplinary proceedings amounted to hostile discrimination and victimization and was in fact a continuation of the earlier disciplinary proceedings initiated in the year 2005 without any reasonable cause and which had to be withdrawn at the intervention of Mr. Justice P.K. Shamsudheen, Chairman of the Gandhi Peace Foundation and Others after realising that the earlier proceedings could not be continued. He also denied the charge that he had erased the leave marked by the Principal on the alleged dates. ( A copy of Ext.D9 reply obtained at page 158 of Ext.B1 paper book).
25-03-2008 The first respondent Manager appointed Adv. Varghese Prem as the Enquiry Officer to conduct the domestic enquiry.
05-04-2008 Domestic enquiry was commenced before the enquiry officer.C.R.P No.682 of 2009 :58:
16-04-2008 The petitioner filed a petition (obtained at page 121 of Ext.
B1 paper book) before the Enquiry Officer to summon the Attendance Registers of all the teaching staff in the College for the period from 1-1-2007 to 31-12-2007 and which were in the custody of the Principal.
23-04-2008 The Presenting Officer of the management filed his objections to the above petition.
24-04-2008 The Enquiry Officer dismissed the petitioner's application to summon the Attendance Registers on the ground that the question in issue is only with regard tot he attendance of the delinquent and it was unnecessary to call for the Registers pertaining to other teachers as the same has no bearing on the issue. (This order is obtained at page 37 of the paper book).
05-05-2008 Robert Stanley the Principal of the College examined as MW1. (Pages 40 to 48 of the Paper Book).
14-05-2008 Baby Simon, head accountant of the college examined as MW2. (Pages 51 to 58 of the Paper Book) 25-11-2008 Dr. Titus Correya the Vice Principal of the College examined as MW3. (Pages 65 to 72 of Ext.B1 paper book) 03-12-2008 The petitioner (Sebastian K. Antony) examined as DW1.
(Pages 76 to 82 of the Paper Book). The petitioner denied the allegation that he had tampered with the Attendance Register by erasing the leave marked as "L". He also stated that when he signed the Attendance Register on the relevant dates there was no erasure Edwin Tomson, Senior Grade Lecturer in the Department of Mathematics examined DW2. (Pages 85 and 86 of paper book).
04-12-2008 Rejimon M.R. Ex. student of the college is examined as DW3. (Pages 87 to 89 of the paper book). He was allegedly victimised by the Management. Sibin T.J. Ex. student of the college is examined as DW4. (Page 90 of the Paper Book) C.R.P No.682 of 2009 :59: 09-12-2008 T.Ramankutty, Ex. Lecturer of the College examined as DW5.
(Page 93 of the Paper Book) Nikhil K.A. Ex. student of the College examined as DW6.(Page 94 of the Paper Book) James K.N. Retd. Teacher of the College examined as DW7. (Pages 95 and 96 of the Paper Book) Siraj Mehaboob P.K. Ex. student of the College examined as D.W.8. (Pages 97 and 98 of the paper book).
10-12-2008 The Management filed a petition to re-open its evidence and to re-
examine the principal on the ground that the teachers who had given Ext. B19 memorandum dated 10-03-2008 and which was marked through DW6 on 9-12-2008 had retracted from the said memorandum as per separate letters. The matter was posted to the next day for the delinquent's objections.
11-12-2008 The objection against the petition for re-opening the evidence overruled and the matter was posted for the Principal's further evidence on 12-12-2008. (pages 99 to 102 of the paper book).
12-12-2008 MW1 (Principal) examined further and the retraction letters given by 24 teachers were marked as Ext. M7 series. (pages 104 to 108).
13-12-2008 After the evidence of the management was over the petitioner once again filed another petition (obtained at page 131 of the paper book) to call for the Attendance Registers of all the teaching staff in the College during the period from 1-1-2007 to 31-12-2007 which were in the custody of the Principal. This was to prove the petitioner's case that the Attendance Registers pertaining to other teachers were also similarly tampered with and the petitioner was singled out for hostile discrimination and victimisation.
13-12-2008 The Enquiry Officer dismissed the above petition inter alia holding that the earlier petition for the same relief was dismissed on 24-4-2008.(This order is obtained at page 110 of Ext. B1 paper book).
C.R.P No.682 of 2009 :60:15-12-2008 Ajayan T.B., a teacher of the college examined as DW 9.
(Pages 113 and 114 of the Paper Book) . Thomas Sebastian, another teacher examined as DW10. Joseph Sebastian, still another teacher of the College examined as DW11.
In the enquiry proceedings altogether three witnesses were examined on the side of the management as MW1 to MW3 and Exts. M1 to M7 series were marked. On the side of the delinquent 11 witnesses were examined as DW1 to DW11 and Exts. D1 to D20 were marked. (Copies of the depositions of the witnesses are available at pages 32 to 119 of Ext. B1 paper book. Copies of Exts. D1 to D20 are obtained at pages 135 to 201 of Ext. B1 paper book. Copies of Exts. M1 to M7 series are obtained at pages 238 to 283 of Ext. B1 paper book).
22-12-2008 Arguments were heard by the enquiry officer.
27-12-2008 The Enquiry Officer prepared the enquiry report finding the delinquent guilty of the allegations in the charge-sheet. (Pages 21 to 31 of the Paper Book).
02-01-2009 The Manager of the College sent a letter to the petitioner stating that he considered the enquiry report dated 27-12- 2008 submitted by the enquiry officer and he concur res with the finding of the enquiry officer and after considering the record of enquiry and the findings of the enquiry officer he proposes to impose the penalty of dismissal from service specified as item (vii) of Statute 73 in Chapter 45 Part D of the Mahatma Gandhi University Statutes, 1997. The petitioner was called upon to submit within 7 days such representation as he may wish to make against the proposed action. A photocopy of the report of enquiry was also enclosed with the letter. (A copy of this letter is obtained at page 19 of the paper book).
C.R.P No.682 of 2009 :61:02-01-2009 There is a separate proceedings by the Manager at page 20 of Ext. B1 paper book. The said proceedings reads as follows:-
January 2, 2009 Sub: Disciplinary Proceedings- Sri.Sebastian K Antony, Sr.Gr.Lecturer in Malayalam - reg.
The Enquiry Officer concludes the Enquiry Report submitted on 27.12.2008 as follows:-
"On the basis of the consideration of evidence put forth by both sides it can be clearly found that the delinquent is guilty of the charges and allegations stated in the Charge Sheet and Statement of allegations dated 20-02-2008 under Ref.No.M/02/08."
The charges against the delinquent are the following and they are clearly referred in the Enquiry Report:
a) The delinquent committed misconduct of tampering the Attendance Register of the Teaching Staff of the teachers of Malayalam Language in the college by erasing the leave marked in red ink in his column.
b) He fraudulently erased the sign of the Principal marking leave on the days of his absence and put his sign upon it for his personal benefit and thereby he caused loss to the Government and cheated the institution and the public.
c) On the basis the deceitful act, he dishonestly obtained payment of salary and thereby he made loss to the public exhequer and thus he committed not only a serious misconduct but also an offence.
The disciplinary authority considered the record of the inquiry. He agrees with the findings of the inquiry officer pertaining to the charges leveled against the delinquent, since they are based on material and evidence.
Sd/-Manager For the Educational Agency (Copy of this proceedings was not given to the petitioner) C.R.P No.682 of 2009 :62: 09-01-2009 The petitioner submitted his reply to the above letter dated 2-1-2009. The petitioner inter alia alleged that before the disciplinary authority decided to concur with the findings of the enquiry officer and to impose the maximum penalty of dismissal from service, the petitioner should have been furnished with a copy of the enquiry report so as to enable him to prove his innocence. He accused the disciplinary authority of having grossly violated the principles of natural justice. (This reply is at page 11 of the paper book). 17-01-2009 The Manager passed Annexure VIII order dismissing the petitioner from service after overruling the contentions raised by him in his reply letter dated 9-1-2009. 06-02-2009 The petitioner filed Appeal No. 3 of 2009 before the University Appellate Tribunal at Thiruvananthapuram 18-04-2009 The petitioner filed I.A. No. 17/2009 to summon the Attendance Registers of the teachers of all other departments in the same College to substantiate his contention. 30-04-2009 The Principal and the Manager filed a counter affidavit opposing I.A. 17/2009 04-06-2009 The petitioner filed I.A. 29/2009 to summon the Work Register maintained by the Head of the Department as per Statute 81 (b) (5) of Part E of Chapter 45 of the M.G. University Statutes, 1997 and also to summon the daily work register given by the Head of the Department to the Principal to prove that the petitioner was not absent on any of the alleged dates necessitating substitute arrangements on any of the dates.
20-6-2009 I.A. 29/2009 was opposed by the management (which had filed a counter to the same) and the same was dismissed by the Tribunal by a non-speaking order.
20-08-2009 The appeal was finally heard by the Tribunal 25-08-2009 The Tribunal pronounced its judgment dismissing the appeal filed by the petitioner herein.
26-08-2009 The Tribunal dismissed I.A. 17/2009 also by a laconic order on the next day after the disposal of the appeal.
C.R.P No.682 of 2009 :63:E) Legal Status of the Petitioner and the feasibility of extending the principles of industrial jurisprudence
24. Prior to his dismissal from service on 17-1-2009 the petitioner was a teacher (Sr. Grade Lecturer) in the St. Albert's College, Ernakulam. It is a private aided college where the salary of the teachers is paid by the State Government. The petitioner was neither a contractual employee nor an industrial worker satisfying the definition of "workman" under the Industrial Disputes Act, 1947. Sections 61 and 62 of the University Act read with Chapter 45 Part B of the Mahatma Gandhi University Statutes, 1997 govern the conditions of service of teachers in private colleges. Statute 42 of the said Statute makes Parts I and II of the Kerala Service Rules applicable to such teachers and this places them almost at par with Government servants.
Hence, there is no scope for importing all the principles of industrial jurisprudence on a wholesale basis to a case like the present one .
F) Limits of the jurisdiction of the University Appellate Tribunal
25. Sub Sections (6) and (7) of Section 63 of the University Act circumscribes the jurisdiction of the Appellate Tribunal. The said sub sections read as follows:
(6) Any teacher aggrieved by an order imposing on him any of the C.R.P No.682 of 2009 :64: following penalties, namely:-
(a) withholding of increment;
(b) recovery from pay of any pecuniary loss caused to the institution or the monetary value equivalent to the amount of increment ordered to be withheld;
(c) reduction to a lower rank in the seniority list or to a lower grade or post; and [(cc) removal from service;
(ccc) compulsory retirement from service]
(d) dismissal from service, may within sixty days from the date on which a copy of such order is served on him, appeal to the Appellate Tribunal on any one or more of the following grounds, namely:-
(i) that there is want of good faith in passing the order;
(ii) that the order is intended to victimise the appellant;
(iii) that in passing the order, the educational agency has been guilty of a basic error or violation of the principles of natural justice.
(iv) that the order is not based on any material or is perverse:
Provided that the Appellate Tribunal may admit an appeal presented after the expiration of the said period of sixty days if it is satisfied that the appellant had sufficient cause for not presenting the appeal within that period.
(7) On receipt of an appeal under sub-section(6), the Appellate Tribunal may, after giving the parties an opportunity of being heard, and after such further inquiry as may be necessary pass such order thereon as it may deem fit, including an order of reinstatement of the teacher concerned.
Thus, the jurisdiction of the Tribunal is very wide and apart from factual and legal errors in the order impugned before the Tribunal it can also consider violation of principles of natural C.R.P No.682 of 2009 :65: justice and whether there was want of good faith in passing the impugned order or whether there was victimization of the appellant or whether there is no material on which the order is based or whether the impugned order is perverse.
G) The jurisdictional parameters of the High Court
26. The High Court is invested with the power to examine whether the Uniersity Appellate Tribunal has either decided erroneously or failed to decide any question of law. The statutory provision in that regard is contained in sub sections (9) to (12) of Sec. 63 of the University Act. The said sub sections read as follows:-
"(9) Any person who objects to an order passed by the Appellate Tribunal under sub-section(7) may, within sixty days from the date on which a copy of such order is served on him, prefer a petition accompanied by court fee stamps of the value of ten rupees to the High Court on the ground that the Appellate Tribunal has either decided erroneously or failed to decide any question of law.
(10) The provisions of section 5 of the Limitation Act, 1963 (Central Act 36 of 1963), shall be applicable to any proceedings under sub-section(9).
(11) The High Court shall, after giving the parties an opportunity of being heard, pass such order on the petition, as it deems fit.
(12) Where the High Court passes any order under sub-section (11), the Appellate Tribunal shall amend the order passed by it in conformity with the order of the High Court".
Eventhough as per the nomenclature laid down by the High Court, a petition to the High Court under sub-section 9 of section C.R.P No.682 of 2009 :66: 63 of the University Act is to be numbered as a Civil Revision Petition, the statutory provision already adverted to above mentions only of a petition . No doubt, the jurisdiction of the High Court under Section 63 (9) of the University Act is confined only to the ground that the Tribunal has either erroneously decided a question of law or has failed to decide a question of law. This takes us to what exactly is a question of law. The matter is well settled by a catena of judicial pronouncements.
Both the Privy Council as well as the Supreme Court have adumbrated the scope and amplitude of a substantial question of law in the realm of Sec. 100 of the Code of Civil Procedure, 1908. In Harendra Lal Roy Chowdhari v.
Haridasi Debi - AIR 1914 P.C. it has been held that a decision that there is no evidence to support a finding of fact is a decision of law. In Jogesh Chandra v. Emdad Meah - AIR 1932 P.C. 28 it has been held that a finding of fact based on failure to discharge the burden of proof placed on wrong shoulders is not binding in Second Appeal. In Sheikh Rahmat Ilahi v. Mohd. Hayat Khan - AIR 1943 P.C. 208 it was held that failure to appreciate and determine the question of fact to be tried gives rise to an error of law.
A finding on a question of fact is open to attack as erroneous in law if such finding is not supported by any evidence or if it is unreasonable and perverse. (See Sree Meenakshi Mills Ltd. v. I.T. Commissioner -AIR 1957 SC 49). A perverse decision is one which no reasonable person well C.R.P No.682 of 2009 :67: instructed in law, will arrive at.
Where the lower appellate court while arriving at its conclusion has ignored important evidence on record, its conclusion is not binding in Second Appeal. (Vide Sonawati v.
Sri Ram - AIR 1968 SC 466). If the conclusion drawn on the facts proved in the case is wrong, it gives rise to a question of law (Vide Krishnan v. Madhavi - 1986 KLT 51). If the findings recorded by the lower court are not based on the evidence on record or are even contrary to the evidence on record and the reasoning of the court below is based on surmises and on a misreading of the evidence on record, it would justify interference even under Section 100 C.P.C. (See paragraph 9 of D.R. Rathna Murthy v. Ramappa - (2011) 1 SCC 158.
H) Judicial analysis of the rival contentions
27. Saint Albert's College, Ernakulam is a private Arts & Science College receiving aid from the State Government. The salary of the teachers is also paid by the State Government. The petitioner was a Senior Grade Lecturer in Malayalam with 24 years of service. The allegation against the petitioner is that he tampered with the Attendance Register of the teaching staff of the Malayalam department so far as it concerns him on 7 different dates. The dates on which the Attendance Register was allegedly tampered with are:-
C.R.P No.682 of 2009 :68: 1) 04-06-2007
2) 09-07-2007
3) 23-07-2007
4) 28-11-2007
5) 06-12-2007
6) 18-12-2007
7) 31-12-2007
According to the Educational Agency (i.e. the College) the specific act of misconduct attributed to the petitioner is the act of erasing the leave marked by the Principal as "L" and putting the petitioner's signatures in the appropriate columns on the aforementioned dates. In this connection we take particular notice of the argument of the Sr. Advocate appearing for the College that the question as to whether the petitioner was present or absent on the above dates is not the concern of the College. We cannot agree with the above submission. Even the Manager interpreted one of the charges against the petitioner in the proceedings dated 2-2-2009 obtained at page 20 of Ext.B1 paper book, as follows:-
"He fraudulently erased the sign of the Principal marking leave on the dates of his absence and put his sign upon it for his personal benefit and thereby he caused loss to the Government and cheated the institution and the public".
Thus, the primary responsibility of the management (which was in the position of a complainant) was to show that on all the 7 dates mentioned above the petitioner was absent and he was so manipulating the Attendance Register (which was in the C.R.P No.682 of 2009 :69: custody of the Principal or the Chief Accountant depending on the occasion) as to make it appear that he was present on all those days. The Enquiry Officer and the Tribunal did not address themselves to this aspect of the matter at all. The Tribunal exercising jurisdiction under Sec. 63 (6) of the University Act and the High Court exercising jurisdiction under Sec. 63 (9) of the University Act, cannot, however, remain naive and insensitive to the above issue. The charge against the petitioner becomes relevant and grave only if he, although absent on the above dates, had somehow secured custody of the Attendance Register and tampered with the same in such a way as to make it appear that he was present on those dates. It will be puerile, if not absured, to say that the petitioner was present on those dates and still he tampered with the Attendance Register without any obvious benefit to him. No sensible person will make any such attempt without any earthly benefit to him just for the pleasure of playing into the hands of the management which was already nurturing a grouse against him . Thus, the question as to whether the petitioner was really absent on the above dates was a crucial issue and undoubtedly it was for the management to first establish that the petitioner was absent on those dates . But, we are sorry to say that the Enquiry Officer, the Disciplinary Authority (Manager of the College) and the Appellate Tribunal, missed this important aspect of the question and were proceeding as though it was for the delinquent teacher to establish that he was present on those dates. The burden of proof in this regard C.R.P No.682 of 2009 :70: has unfortunately been cast on the wrong shoulders. According to the petitioner he was capriciously singled out for vindictive action out of the ulterior motive nurtured by the management.
i) Background facts which the petitioner as well as the University have alleged as constituting the motive for the action against the petitioner
28. It is the definite case of the petitioner that consequent on the happening of certain earlier incidents in the year 2005 and subsequent years, the College Management had an axe to grind against him. The petitioner who had 24 years of service in the College was the Vice President of the College Staff Club for ten years. He was also a member of the College Staff Council for 7 years. In the year 2005, the Principal of the College with the approval of the Manager, changed the existing working time of the College. Formerly it was from 9.30 a.m. to 3.30 a.m. This was changed to 8 a.m. to 1.30 p.m. on Monday to Thursday and 8 a.m. to 12.50 p.m. on Friday. This unilateral re-scheduling of the working time of the College led to a strike both among the students and the teachers alike. The change of timings was contrary to the directions of the Government in G.O. (P) No. 5/2001/H.Edn. dated 3-4-2001 thereby exposing the Manager of the College to action for disobedience of the instructions issued by the Government within the meaning of Section 56 (7) of the University Act. The M.G. University had also issued instructions to the College to abide by the Government Orders.
C.R.P No.682 of 2009 :71:By violating the above G.O. and the instructions of the University, the Principal and the Manager had disobeyed clauses 9(6) and 19 (1) of Chapter 23 of the M.G.University Statutes, 1997. The Principal and the Manager felt that the petitioner was behind the strike. A student of II year B.Sc by name Rejimon (examined in this case as DW3) filed a Writ Petition before the High Court as W.P. ( C ) No. 26981/2005 challenging the change of timings. Ext.
D17 (at page 206 of Ext. B1 paper book) is the Judgment dated 2-2-2006 in that case. The contention of the College to justify the change of timings was not accepted by the High Court.
Rejimon had to pay the price for antagonising the management.
He was victimised by the College which did not allow him to sit for the examination on the ground of want of sufficient attendance. The boy filed a second Writ Petition before this Court as W.P. ( C) No. 6529 of 2006. As per Ext. D18 judgment (at page 220 of Ext. B1 paper book) dated 10-3-2006 the High Court permitted him to sit for the examination subject to certain conditions.
On 13-6-2005 an Enquiry Committee appointed by the Vice Chancellor of M.G. University visited the College for conducting an enquiry regarding various irregularities allegedly committed by the Management. The Committee submitted to the Vice Chancellor a report dated 15-6-2005 finding various irregularities alleged against the college authorities. (A copy of this report is obtained at page 149 of Ext. B1 paper book).
Thinking that the petitioner was behind the said enquiry also, C.R.P No.682 of 2009 :72: the Manager suspended the petitioner from service on 14-6-2005.
He was, however, not served with any memo of charges nor was any disciplinary enquiry conducted against the petitioner.
Subsequently, at the intervention of Gandhi Peace Foundation headed by Justice Shamsudhin, the petitioner was re-instated.
He was, however, stripped off his position as the Head of the Department.
In the year 2007, another enquiry was conducted by the Syndicate of the M.G. University regarding the merit/rank list prepared by the College for the various graduate degree courses during the year 2007-2008. The Enquiry Committee found the College Authorities guilty of violation of the provisions of the University Act and the Statutes. (A copy of the enquiry report of the committee is obtained at page 145 of the paper book). Ext. D7 show cause notice calling upon the College to explain why the affiliation of the College should not be withdrawn was issued by the University. The Manager filed W.P. ( C ) No. 2758 /2007 challenging the said notice and got further proceedings stayed.
Here also the college authorities were under the impression that the petitioner was behind the said enquiry. The fact that the petitioner was a University Senate member was also an additional reason why the College authorities were habouring extreme animosity towards him. It was the concatenation of the aforesaid incidents which prompted the College authorities (who were waiting for an opportunity to somehow or other victimise the petitioner) to launch the present action against C.R.P No.682 of 2009 :73: the petitioner.
The rancour which the management was having towards the petitioner was evident even in the present disciplinary action after its commencement. The petitioner was placed under suspension on 8-2-2008 as per Ext. M3 order (obtained at page 239 of Ext. B1 paper book). He was directed not to enter the college campus without the express permission of the Principal during the period of suspension. He was also directed to immediately vacate the staff quarters which was allotted to him.
This itself suggests that the management had almost decided to terminate the services of the petitioner once and for all. The disciplinary proceedings commenced against the petitioner were not completed within three months. As per Sec. 63 (4) of the University Act disciplinary proceedings against a teacher placed under suspension should be completed within 3 months and can be continued beyond 3 months only if the Vice Chancellor of the University grants further time. Since the management did not seek extension of time from the Vice Chancellor , the Registrar of the University as per Ext. D10 letter dated 22-5-2008 (obtained at page 165 of Ext. B1 paper book) informed the Manager that the Vice Chancellor of the University had ordered him to reinstate the petitioner into service with immediate effect before proceeding further with the disciplinary proceedings.
Ext.D10 direction was not complied with by the Manager necessitating the petitioner to file W.P.(C) 16824 of 2008 before this Court for enforcement of the direction in Ext. D10 order.
C.R.P No.682 of 2009 :74:From the aforementioned turn of events, an inference that the present disciplinary action was initiated out of ulterior motives and ill-will towards the petitioner, cannot be far-
fetched. The management was evidently waiting for an opportunity to wreck vengeance on the petitioner .
ii) To the facts specific
29. We now proceed to focus our attention on the bone of contention of the parties.
a) The Attendance Register
30. Ext.M1 was allegedly the original Attendance Register said to have been marked before the Enquiry Officer. But what has been sent to this Court from the University Appellate Tribunal is only photocopies of the oral and documentary evidence complied in the form of Ext.B1 Paper Book. Arguments were also advanced before this Court only with reference to the said Paper Book which only contains photocopies of the Attendance Register.
(The said photocopies are at pages 226 to 237 of Paper Book).
Eventhough the submission of Sri.Nandakumara Menon that the Tribunal never perused the original Attendance Register as it was not before the Tribunal, was controverted by Sri.Jayasankar Nambiar, there is nothingon record to show that the Tribunal had actually perused the original Register. On our request, the original Attendance Register was produced before us by the learned Senior Advocate appearing for the Principal and Manager C.R.P No.682 of 2009 :75: of the college. We were told by Sri.Nambiar that the practice is to produce the originals as well as copies before the Chief Ministerial Officer of the Tribunal and after comparing the copies with the originals, the originals are returned to the respective parties. We are afraid that if such a practice is in vogue, it is time that the Registrar(Subordinate Judiciary) looked into the matter and evolved a fool proof and tamper-proof procedure before the Tribunal taking also into account its dearth for storage space to keep voluminous records in such proceedings.
The original Attendance Register has horizontal columns for entering the name of the teacher and 31 vertical columns thereafter indicating the dates of the month. Against the name of each teacher there are two transverse columns for marking the attendance for the forenoon and afternoon for each day. After the end of the month there are columns on the extreme right hand side for showing the casual leave already availed during the previous months, the casual leave availed during the month under consideration and the total causal leave availed by the teacher at the end of the month. As per the evidence of the Principal it is the Head Accountant (MW2) who fills up these columns showing the casual leave.
b) Custodian of Attendance Register
31. The Principal examined as MW1 - Page 4 (page 43 of Paper Book) admits :
"I am the custodian of the teaching staff Register".C.R.P No.682 of 2009 :76:
At Page 1 (page 40 of Paper Book) the Principal says that Baby Simon (MW2) is the custodian of the Attendance Register for writing the salary bills.
At Page 5 (page 44 of Paper Book) the Principal has deposed as follows:-
"Once the calendar year is over it is kept with the Head Accountant who prepares the salary bills. The Attendance Register goes to the custody of the Head Accountant just after December 31st and a new Register for the next calendar year is kept with me".
The Head Accountant examined as MW2- Page 4 (page 54 of Paper Book ) has stated that the Register will be taken to the departments for marking the attendance as usual and in the evening the same will be taken back to the Principal's custody.
MW3- Dr.Titus Correya (Vice Principal) Page3(page 67 of Paper Book) has deposed that the custodian of M1(Attendance Register) is the Principal.
c) The procedure for marking the attendance in the Attendance Register.
32. MW1 (Robert Stanley) Principal - Page 5(page 44 of Paper Book ) deposed that the Attendance Register is kept in his custody in his table drawer. Early morning usually by 7.45 to 7.50 AM the Attendance Registers are despatched to the respective departments through the attenders or peons and brought back to the office of the Principal by 8.05 to 8.10 AM C.R.P No.682 of 2009 :77: after the marking of attendance. Thereafter in the afternoon session the Registers go the departments by 2.00 PM and are brought back by 2.10 PM.
MW3- Dr.Titus Correya (Vice Principal) Page 1(Page 65 of Paper Book) has also deposed in terms of the testimony of the Principal.
(d Who marks the leave in the Attendance Register?
33. MW1 (Principal) - Page 5(page 44 of Paper Book) has deposed as follows"
"The leave is marked "L" by the Vice Principal and is sanctioned by me at the bottom. The casual leaves,commuted leaves etc. are marked by the one who prepares the salary bills".......
" If a teacher is coming late after 10 minutes, I put my initials on the said column over the "L"mark and the teacher signs then".
MW3- Dr.Titus Correya (Vice Principal) Page 1 (page 65 of Paper Book) has deposed as follows:
"I am directed to put an "L" mark to those teachers who have not signed in the respective places. I do the said work upon instructions from the Principal as a clerical job. I do the markings with a red ink. I don't have any further duty pertaining to the Register after marking of leave. I have no powers to rub, erace or change any "L" marked in leave."C.R.P No.682 of 2009 :78:
Page 4 (page 68 of Paper Book) "I mark "L" leave by about 8.10 - 8.15 AM when the teacher is not present. I am not aware of any law in that connection".
Page 5(page 69 of Paper Book) "I only mark "L" in the teaching staff Register if they have not signed. I don't know if the "L" is erased and then 'C/L', D/L', 'Com.L' is put. I can see that during November 6,7 'D/L' is marked using whitener. In June 13 also 'D/L' is marked using whitener. I don't know what is done if somebody comes late."
e) Who calculates the aggregate leave for the month?
34. MW1 (Principal) has deposed at Page 6 (page 45 of Paper Book) that the leave for the month is calculated by the Head Accountant.
As per the attendance statements submitted by the Principal to the Deputy Director of Collegiate Education, the petitioner was present on duty in the College on all the 7 days alleged by the Manager. Since the management did not favourably respond to the request of the petitioner for copies of the attendance statements which are despatched in compliance of the statutory mandate, the petitioner applied for and obtained the same under the Right to Information Act. The copies so obtained are available at pages 168 to 179 of Ext. B1 paper book.
As per the said attendance statement for the month of December C.R.P No.682 of 2009 :79: 2007 submitted by the Principal, the petitioner had availed himself of only 14 = casual leaves as on 31-12-2007 and he had half a day's casual leave to his credit as on that day and the same had lapsed . If so, the case of the management that the petitioner tampered with the half day's casual leave for his benefit and such tampering was done in the next calendar year is absolutely false.
It is relevant to note that there is no allegation that the entries in the casual leave column of the Attendance Register were erroneously made by the college authorities.
f) The alleged act of erasure of leave for 31.12.2007.
35. In Ext.M6 letter dated 8.2.2008 (page 242 of Paper Book) given by the Head Accountant (Baby Simon) to the Manager, he says that the petitioner first went to him in the first week of January 2008 seeking permission to sign the attendance register for the = day's leave for the month of December which was not regularised. Ext.M6 proceeds to state that the Head Accountant asked him to take the permission of the Principal and after a few days the petitioner again went to him and asked for the attendance register saying that the Principal had granted permission to sign the Register and thereupon the Head Accountant gave the Register to the petitioner and the petitioner erased the 'L' mark and signed the same and returned the Register.
(This is a letter given 4 days after the Head Accountant claims to have orally reported the matter to the Principal. This letter, however, does not say that the petitioner took a C.R.P No.682 of 2009 :80: blade and scrapped and erased the "L" mark in his presence which is an improvement made by him during evidence) The version of the Head Accountant examined as MW2 before the Enquiry Officer (page 51 of Paper Book) is as follows:
The petitioner requested the Head Accountant (MW2) to erase and sign the column of the Attendance Register where leave was marked saying that he had University duty on that day and the certificate to that effect was not yet obtained. MW2 then told him to get the permission of the Principal. In the end of January 2008 the petitioner went to him again and said that the Principal had permitted him to sign the register in the leave marked column. Thereupon MW2 gave him the Attendance Register. The petitioner took a blade from the table and erased the leave marked on 31.12.2007, put his signature and then returned the register to MW2. MW2 prepared the salary bill on the basis that the petitioner was present on 31.12.2007. The bills for the month of December 2007 were sent on 02.02.2008.
OUR INFERENCE (Both Ext.M6 letter as well as the evidence of MW2 show the following :-
i) MW2 was willing to permit the petitioner to erase the 'L' mark and put his signature if the Principal had granted permission to the petitioner to sign the register on the leave marked column. This conduct assumes relevance when we consider Ext.D19 memorandum dated 10.03.2008 signed by 25 teachers of the very same college (found at page 223 of the Paper Book) in which it is admitted that there is the existing practice of the Vice Principal erasing the leave marking of a teacher who C.R.P No.682 of 2009 :81: comes late and allowing the teacher to sign and the Memorandum requests the Principal to discontinue the above practice and hereafter to strictly adhere to the KSR as per which for 3 late markings the teacher will lose half a day's casual leave.
ii) MW2 did not raise any protest when the petitioner erased the 'L' mark using a blade and put his signature there.
iii) It is in evidence that there was intercom facility connecting the Principal to other members of the staff. Still, MW2 did not think it necessary to get a confirmation from the Principal either before he allowed the petitioner to erase the 'L' mark and put his signature or before at least MW2 prepared the salary bill showing the petitioner as present on duty on 31.12.2007.
iv) Baby Simon (MW2) was turning out to be a cunning performer in the witness box with a high degree of suppleness. He is a person having scant regard for truth.
g) Was there the practice of erasing the 'L' mark of a late coming teacher and allowing the teacher to sign the Attendance Register?
36. MW1-Principal - Page 6 (page 45 of Paper Book) deposed that he has never erased a leave for anybody till date and he has never seen anybody erase a leave in his presence. I have never erased a leave for anybody till date. I have never seen anybody erase a leave in my presence.
MW3 Dr.Titus Correya (Vice Principal) deposed as C.R.P No.682 of 2009 :82: follows:-
" I have no powers to rub, erase or change any 'L' marked in leave. I can see an erasing/correction on 31st December, 18th December, 6th December, 28th November. On 22nd November though there is a correction. The same has been initialled by the Principal. On 9th July and 4th June also I find correction/erase marks in the register where the 'L' is erased".
OUR INFERENCE Although MW3 says that he has no powers to erase or rub any 'L' marked in the leave he does not say that he did not erase the 'L' on the aforesaid 7 dates. His testimony is belied by Ext.D19 Memorandum signed by 25 teachers and the deposition of DWs. 9 to 11, who were 3 of the signatories to Ext.D19 Memorandum. In Ext.D19 Memorandum 25 teachers of the very same college had admitted about the prevailing practice of the Vice Principal erasing the "L" mark of late coming teachers.
They have alluded to the case of the petitioner who has become a victim of the above practice and they have demanded the Principal to discontinue the said practice and hereafter to follow the procedure in the KSR. Exhibit M7 series of retraction letters were taken from those teachers by the Management and after getting the Management's evidence reopened those retraction letters were got marked. The contents of Ext.M7 series of retraction letters are identical and the teachers would say in those letters that they signed Ext.D19 Memorandum in a hurry without C.R.P No.682 of 2009 :83: carefully reading the same. But Dws 9 to 11 who had also given retraction letters have deposed before the Enquiry Officer that they were compelled by the Vice Principal to give those letters of apology. Much strain is not necessary to infer that Ext.M7 series of letters were obtained under duress by the Management misusing their position to dominate the will of the teachers. It is strange that the Tribunal was not sharp enough to see through this subterfuge adopted by the Management.
h) Applications filed by the petitioner for production of relevant material rejected by the Enquiry Officer and the Tribunal
37. It has already been seen under para 23 above in the sequence of events that the enquiry officer had on 24-4-2008 and 13-12-2008 rejected the applications filed by the petitioner for summoning relevant materials which would substantiate his contention that he was picked and chosen for hostile discrimination purely out of mala fide intention. Likewise, the Tribunal also revelled in dismissing I.A. Nos. 17 and 29 of 2009 filed by the petitioner for summoning vital documents which would not only prove his case but would also falsify the stand taken by the Management. The Tribunal was abdicating its function by refusing to properly exercise its jurisdiction under Section 63 (9) of the University Act .
C.R.P No.682 of 2009 :84:i) The inherent improbabilities in the charge
38. As per Statute 81(a)(1) and (2) Part E, Chapter 45 of the M.G.University Statutes, 1997 the Principal is the custodian of the attendance register and every day after examining the attendance register in the forenoon and afternoon session the Principal marks leave and afterwards countersigns in the attendance register. Thereafter, before 20th of every month the Principal checks the attendance registers carefully and prepares the attendance statements and submits it along with the salary bill to the office of the Deputy Director of Collegiate Education. This being the process followed every month, if there is any irregularity in the attendance register the Principal would have found it immediately. If a teacher is not present, his classes become free and so the Principal immediately comes to know of the absence of the teacher. The daily report submitted by the Head of the Department of the Department to the Principal also will reveal the presence and absence of the teachers.
As per statute 81(a)(1) and (2) Part E Chapter 45 of the M.G.University Statutes , the Principal shall prepare the salary bills of the staff on the basis of the data available as on 15th of every month and shall present it to the office of the Zonal Deputy Director of Collegiate Education concerned on or before 20th of every month and the Principal shall furnish attendance statements of the staff along with the salary bill. It is admitted that the attendance statements C.R.P No.682 of 2009 :85: submitted by the Principal to the D.D.Office is an official and authentic document which will conclusively show the presence and absence of each permanent staff in the College. It is virtually an affidavit submitted by the Principal as the Head of the Institution with regard to the presence and absence of each staff in the college. Those statements are despatched for drawing and disbursing salary from the government exchequer. The attendance statements submitted by the Principal along with the salary bills to the DD office unequivocally prove that the petitioner was present in the college and he performed his duties on the disputed days. The attendance statements submitted by the Principal to the D.D.Office proved that there were no irregularities in the attendance register until those attendance statements were submitted. The petitioner can have no benefits to be derived by tampering with the attendance register after the attendance statements have been submitted by the Principal to the D.D.Office.
As per Kerala Service Rules if an employee was absent on the previous day also, commuted leave for "one day" cannot be sanctioned for the following day alone. So it is clear that if the petitioner was not present on 28.11.2007, as is alleged, the commuted leave for one day on 29.11.2007 could not have been sanctioned. The fact that petitioner was sanctioned commuted leave for one day on 29.11.2007, clearly proves that he was present on 28.11.2007. As per the service book one day of commuted leave for C.R.P No.682 of 2009 :86: 29.11.2007 has been sanctioned by the 1st respondent. If the Principal marked leave on 28.11.2007 in the attendance register, the petitioner could not have been sanctioned commuted leave for one ie for 29.11.2007. Therefore it is obvious that there was no "L" mark in the column concerning the petitioner on 28.11.2007. So the question of tampering on 28.11.2007 does not arise.
The allegation against the petitioner of tampering the register in the columns of 4.6.2007 is also demonstrably baseless. It is pertinent to note that 4.6.2007 is the first working day of the academic year. There are clear stipulations in Statutes 17 Part B Chapter 45 of the M.G.University Statute 1997, regarding presence of the staff on the first working day of the academic year. It reads as under :-
"Every teacher except when he is on leave shall be present in the college on the first working day in the academic year, failing which he shall lose the salary for the day of the absence. Such absence and loss of salary shall not, however, constitute a break of service, however the principal may grant leave of absence to a teacher who is absent on the first day of the academic year in case the teacher applies for leave in writing and satisfies the Principal that absence is not deliberate".
In this context, if leave had been marked on the reopening day of 4.6.2007 such a leave should have been entered in the attendance statement for the month of June 2007 and the leave application would C.R.P No.682 of 2009 :87: have been submitted to the DD office for his information. If the petitioner had been absent without leave application submitted in advance, salary for that day would have been cut from the salary for that month. The attendance statements for the month of June 2007 submitted by the Principal to the D.D.Office shows that the petitioner was present on 4.6.2007 and this proves that the allegation of tampering in the columns of that day is baseless.
As per the attendance statement for the month of December 2007 submitted by the Principal, it is evident that the petitioner had availed himself of only 14= casual leave in 2007 and there was balance of = casual leave to his credit which had lapsed. This fact shows that the statement of the Head Accountant that the tampering of = day leave of December 2007 by the petitioner for his benefit in the next calender year is baseless.
It is relevant to note that no witness for the Management has deposed on oath that on any of the 7 days alleged in the memo of charges the petitioner was absent in the college if as a matter of fact the petitioner was absent on any of those days the Head of the Department (H.O.D.) should have made a work adjustment for substitution in accordance with Statute 81 (b) (4) of Part E of Chapter 45 of the M.G. University Statutes. As per Statute 81 (b) (5) the H.O.D. of each department is required to maintain a Work Register . This Register, if produced, would have been the best evidence to show the absence of the petitioner on the alleged dates .
C.R.P No.682 of 2009 :88:But the said Register was not only not produced by the Manager but an application (I.A. 29/2009) filed by the petitioner before the Tribunal for production of the Work Register and Daily Work Register, was opposed tooth and nail by the Principal and the Manager who got the application dismissed.
We have already found that the evidence of MW2 with regard to the alleged tampering of the attendance on 31-12-2007 is wholly unbelievable. He is a Principal who is more loyal than the King and who claims to be sharp enough to detect other acts of tampering on 6 other dates . There is absolutely no evidence to show that the petitioner had any role in the tampering allegedly made on those dates. We have already found that as per the attendance statements submitted by the Principal the petitioner was present on all the 7 dates and the casual leave availed by him also matched with his presence on those dates.
j) Proportionality of punishment and the
right to life in Employment
39. Even assuming that the allegations levelled against the petitioner were true, we do not think that the petitioner deserved the extreme punishment of dismissal from service. The punishment imposed on the petitioner was unduly excessive. Disproportionately harsh punishment imposed on a servant C.R.P No.682 of 2009 :89: who is governed and insulated by service conditions, whether statutory or othersie, is an outrageous onslaught on the right to life guaranteed by Article 21 of the Constitution of India.
OUR CONCLUSION
40. In the light of the foregoing discussion we have no hesitation to hold that the disciplinary proceedings taken against the petitioner were actuated by mala fides and were vindictive. The management has egregiously failed to prove that the petitioner was absent on any of the 7 dates alleged against him necessitating erasure of the leave allegedly marked as "L" by the Vice Principal in the Attendance Register. The Management has also not succeeded in proving any of the charges levelled against the petitioner. The Enquiry Officer was not sharp enough to find the mendacity of the allegations against the petitioner. The Tribunal below also failed in its duty to discover the real truth behind the revengeful disciplinary action taken against the petitioner. Accordingly -
i) The impugned judgment dated 25-08-2009
passed by the Tribunal
erroneously and which has also failed todecided which has decide the questions of law arising in the26matter within the meaning of paragraph above, is unsustainable and is set aside.
ii) The appeal filed by the petitioner before the C.R.P No.682 of 2009 :90: Tribunal below will stand allowed.
iii) Annexure VIII order dated 17-1-2009 passed by the disciplinary authority (Manager) dismissing the services of the petitioner with effect from 8-2- 2008 is also set aside .
iv) The petitioner
forthwith with shall be reinstatedwagesservice
in
complete back and
attendant benefits.
In the result, this Revision is allowed as above . Having regard to the facts and circumstances of the case, the parties are directed to bear their respective costs.
OUR CONCERN
40. A College is a "Saraswathikshethram" where the sublime process of imparting knowledge , culture and civilization takes place. Teaching is a divine function in which there is an exchange of the intellectual faculties between the teacher and the taught. Going by the counter affidavit of the M.G. University, the petitioner is a genius. There might be similar capabilities in those at the helm of affairs in the college as well. But that is hardly a reason to be vindictive or egoistic. Saint Albert's College should be manned by saintly persons. All concerned should endeavour to restore peace and harmony in the institution. The potentials of a teacher are best harnessed by maintaining brotherlihood among the members of the faculty and those who are administering the institution. There is no power C.R.P No.682 of 2009 :91: which is dynamic enough to conquer the power of love and affection. We believe and hope that the serene and scholastic atmosphere of the college will not be compromised or sacrificed on petty considerations of ego, hatred, distrust, envy, resentment and cupidity . "To err is human, but to forgive is divine".
OUR APPRECIATION FOR THE ADVOCATES Before parting with this case, we have the pleasant duty of expressing our appreciation for the forensic skills displayed by both the Senior Advocates Sri. Nandakumara Menon and Sri. Jayasankar Nambiar who represented the main disputants and also Sri. T.A. Shaji who represented the M.G. University. Sri. Jayasankar had done everything possible to salvage the Principal and the Manager. Their presentations were a forensic treat and is worthy of emulation by the budding members of the Bar.
Dated this the 27th day of April, 2012.
Sd/-V. RAMKUMAR, JUDGE
Sd/-K.HARILAL, JUDGE
Sj/ani. /true copy/
P.S. to Judge
C.R.P No.682 of 2009
:92: