Kerala High Court
S. Gopakumar vs State Of Kerala
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
TUESDAY, THE 3RD DAY OF JUNE 2014/13TH JYAISHTA, 1936
WP(C).No. 10325 of 2014 (M)
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PETITIONER(S):
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S. GOPAKUMAR,
LECTURER, KATHAKALI VESHAM (THEKEEN KALARI),
THE KERALA KALAMANDALAM DEEMED UNIVERSITY,
VALLATHOLE NAGAR, CHERUTHURUTHY, THRISSUR.
BY ADV. SRI.P.C.SASIDHARAN
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
HIGHER EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2. THE KERALA KALAMANDALAM DEEMED UNIVERSITY,
VALLATHOLE NAGAR, CHERUTHURUTHY, THRISSUR,
REPRESENTED BY ITS REGISTRAR.
3. THE VICE CHANCELLOR,
THE KERALA KALAMANDALAM DEEMED UNIVERSITY,
VALLATHOLE NAGAR, CHERUTHURUTHY, THRISSUR.
4. SRI.PANDALAM SUDHAKARAN,
CHAIRMAN OF THE ENQUIRY COMMISSION,
(APPOINTED FOR CONDUCT OF ENQUIRY AGAINST THE
PETITIONER) KERALA KALAMANDALAM DEEMED UNIVERSITY,
CHERUTHURUTHY, THRISSUR.
R1 BY GOVERNMENT PLEADER SMT.A.LOWSY
R2 & R3 BY ADV. SRI.S.SUBHASH CHAND,SC,KALAMANDALAM UTY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 10325 of 2014 (M)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1. COPY OF THE MEMO ISSUED TO THE PETITIONER DATED 17.02.14.
EXHIBIT P2. COPY OF THE REPLY GIVEN BY THE PETITIONER DATED 25.2.14.
EXHIBIT P3. COPY OF THE CHARGE MEMO DATED 26.2.14.
EXHIBIT P4. COPY OF THE EXPLANANTION SUBMITTED BY THE PETITIONER
DATED 5.3.14.
EXHIBIT P5. COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT
UNIVERSITY DATED 13.3.14.
EXHIBIT P6. COPY OF THE SUBMISSION MADE BY THE PETITIONER DATED 20.3.14.
EXHIBIT P7. COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED
28.3.14.
EXHIBIT P8. COPY OF THE RELEVANT EXTRACT OF THE BYE LAW OF THE
UNIVERSITY.
EXHIBIT P9. COPY OF THE REPRESENTATION MADE BY THE JOINT ACTION
COUNCIL.
RESPONDENT(S)' EXHIBITS
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ANNEXURE 1: COPY OF THE MINUTES OF THE MEETING OF THE EXECUTIVE BOARD
OF KERALA KALAMANDALAM DATED 28.3.2014.
ANNEXURE 2: COPY OF THE STATEMENT DATED 20.3.2014 GIVEN BY THE
PETITIONER BEFORE THE ENQUIRY OFFICER.
ANNEXURE 3: COPY OF THE MANUSCRIPT OF "JANASAMAKSHAM PARIPADI"
TELECASTED BY THE STV PRIVATE CHANNEL ON 15.2.2014.
ANNEXURE 4: COPY OF THE GOVERNMENT ORDER BEARING GO (RT)
NO.29/2011/CAD DATED 14/1/2011.
ANNEXURE 5: COPY OF THE GOVERNMENT ORDER BEARING GO (RT)
NO.193/2011/CAD DATED 18/1/2011.
ANNEXURE 6: COPY OF THE GOVERNMENT ORDER BEARING GO (RT)
NO.190/2011/CAD DATED 17/3/2011.
ANNEXURE 7: COPY OF THE GOVERNMENT ORDER BEARING GO (RT)
NO.243/2011/CAD DATED 29/3/2011.
WP(C).No. 10325 of 2014 (M)
ANNEXURE 8: COPY OF THE GOVERNMENT ORDER BEARING GO (RT)
NO.249/2011/CAD DATED 30/3/2011.
ANNEXURE 9: COPY OF THE GOVERNMENT ORDER BEARING GO (RT)
NO.462/2011/CAD DATED 15/9/2011.
ANNEXURE10:COPY OF THE GOVERNMENT ORDER BEARING GO (RT)
NO.16/2012/CAD DATED 9/1/2012.
ANNEXURE 11:COPY OF THE GOVERNMENT ORDER BEARING GO (RT)
NO.133/2012/CAD DATED 12/3/2012.
ANNEXURE 12:COPY OF THE GOVERNMENT ORDER BEARING GO (RT)
NO.213/2012/CAD DATED 29/3/2012.
ANNEXURE 13:COPY OF THE GOVERNMENT ORDER BEARING GO (RT)
NO.293/2012/CAD DATED 30/5/2012.
ANNEXURE 14:COPY OF THE GOVERNMENT ORDER BEARING GO (RT)
NO.579/2012/CAD DATED 11/12/2012.
ANNEXURE 15:COPY OF THE GOVERNMENT ORDER BEARING GO (RT)
NO.32/2013/CAD DATED 4/2/2013.
ANNEXURE 16:COPY OF THE GOVERNMENT ORDER BEARING GO (RT)
NO.96/2013/CAD DATED 5/3/2013.
ANNEXURE 17:COPY OF THE GOVERNMENT ORDER BEARING GO (RT)
NO.311/2013/CAD DATED 21/6/2013.
ANNEXURE 18:COPY OF THE GOVERNMENT ORDER BEARING GO (RT)
NO.603/2013/CAD DATED 30/12/2013.
ANNEXURE 19:COPY OF THE GOVERNMENT ORDER BEARING GO (RT)
NO.10/2014/CAD DATED 7/1/2014.
ANNEXURE 20:COPY OF THE GOVERNMENT ORDER BEARING GO (RT)
NO.143/2014/CAD DATED 7/3/2014.
ANNEXURE 21:COPY OF THE GOVERNMENT ORDER BEARING GO (RT)
NO.156/2014/CAD DATED 14/3/2014.
ANNEXURE 22:COPY OF THE REQUEST DATED 31/1/2014 SUBMITTED BEFORE THE
SUB INSPECTOR OF POLICE, CHERUTHURUTHY POLICE STATION.
/TRUE COPY/
P.A. TO JUDGE
VPV
P.N.RAVINDRAN, J.
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W.P.(C)No.10325 of 2014
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Dated this the 3rd day of June, 2014
JUDGMENT
The petitioner is a Teacher in the Kerala Kalamandalam which is a deemed University as defined in section 3 of the University Grants Commission Act, 1956. Pursuant to the petitioner's participation in a talk show which was telecast on 15.2.2014, the Vice Chancellor of the University directed the Registrar to call for an explanation from the petitioner. The Registrar thereupon issued Ext.P1 memo dated 17.2.2014 calling upon the petitioner to show cause why disciplinary action shall not be taken against him. The petitioner was also called upon to submit his explanation within three days. The petitioner accordingly submitted Ext.P2 letter dated 25.2.2014, wherein he requested that further proceedings may be dropped. He however admitted that he had participated in the talk show. On the very next day, the Registrar of the University issued Ext.P3 memo of charges dated 26.2.2014 together with a statement of allegations and called upon the petitioner to show cause within ten days from the date of receipt of the memo as to why disciplinary action shall not be taken against him. In that memo, eight charges W.P.(C)No.10325 of 2014 2 were levelled against the petitioner.
2. Upon receipt of the memo of charges, the petitioner submitted Ext.P4 reply dated 5.3.2014 wherein he inter alia contended that the Kerala Government Servants Conduct Rules which is relied on the memo of charges has no application to employees of the University. In the said reply the petitioner also requested for a copy of the C.D. of the television programme based on which the memo of charges was issued so as to enable him to file a detailed reply, in case the disciplinary authority intends to proceed further in the matter. The Vice Chancellor of the University thereupon constituted a two member committee chaired by Sri. Pandalam Sudhakaran to conduct an enquiry and thereupon the Registrar issued Ext.P5 notice dated 13.3.2014 to the petitioner calling upon him to be present for a personal hearing at 10 a.m. on 20.3.2014. Thereupon, the petitioner submitted Ext.P6 representation dated 20.3.2014 wherein he reiterated his request for a copy of the C.D. so as to enable him to submit an effective explanation. He also requested that further proceedings may be deferred till he is given an effective opportunity to file a reply to the memo of charges. A week thereafter the Registrar of the University W.P.(C)No.10325 of 2014 3 issued Ext.P7 order dated 28.3.2011 placing the petitioner under suspension pursuant to and in terms of the decision taken by the Executive Board of the University at its meeting held on 28.3.2011. Ext.P5 notice dated 13.3.2014 issued by the Registrar of the University calling upon the petitioner to be present before an Enquiry Commission on 20.3.2014 and Ext.P7 order of suspension are under challenge in this writ petition wherein the petitioner seeks the following reliefs:-
"i) Issue a writ of certiorari or any other writ, order or direction to quash Exhibits-P5 and P7;
ii) Declare that the action of the respondent in keeping the petitioner under suspension is highly unjust and illegal;
iii) Issue an order to stay the operation and implementation of Exhibits-P5 and P7;
iv) Issue a writ of mandamus or any other writ, order or direction commanding and compelling the respondents 1 and 2 to reinstate the petitioner in service forthwith;
v) Declare that since the Executive Board is the authority competent to initiate disciplinary proceedings or to keep an employee under suspension Exhibits-P5 and P7 are issued without any power, authority or law."
3. The petitioner seeks the aforesaid reliefs on various grounds. The first contention raised is that the Executive Board of the University is the disciplinary authority, but the show cause W.P.(C)No.10325 of 2014 4 notice which preceded the order of suspension was issued by the Vice Chancellor who also appointed an Enquiry Commission. It is contended that as the Vice Chancellor was not competent to issue the show cause notice or a memo of charges or to appoint an enquiry officer, Ext.P5 notice is liable to be set aside. Yet another contention raised is that no disciplinary proceedings had been initiated in terms of the rules against the petitioner and therefore, the order placing him under suspension is liable to be invalidated.
The petitioner has further contended that on the terms of the rules, only the Executive Board or an officer authorised by it can conduct an enquiry, that the fourth respondent has not been authorised by the Executive Board, that the disciplinary proceedings can be initiated against the petitioner only by the Executive Board, that the Vice Chancellor has no power, authority or jurisdiction to place him under suspension and therefore for that reason also, the impugned notice and order are liable to be set aside. It is contended that the views expressed by him or his participation in the television programme do not constitute misconduct. Relying on bylaw 15 occurring in Chapter VI of the Bylaws of the University, it is contended that the petitioner has not committed any of the acts of W.P.(C)No.10325 of 2014 5 misconduct set out in bylaw 15 and therefore, disciplinary action cannot be initiated against him for his participation in the television programme. The petitioner has also averred that he had no intention to defame the University or the Government and that his entire action was bonafide.
4. A statement dated 22.5.2014 has been filed by the Registrar of the University justifying the action taken against the petitioner. In paragraph 4, it is stated that Ext.P1 memo was issued based on the direction issued by the Vice Chancellor to call for an explanation from the petitioner in connection with his participation in a television programme on 15.2.2014. It is stated that such action was taken in terms of rule 15(2) of the Rules of the University which authorises and empowers the Vice Chancellor to exercise the power conferred on the Executive Board to take immediate action, that the action taken by the Vice Chancellor was ratified by the Executive Board, the competent authority, at its meeting held on 28.3.2014, that the petitioner who had a right to appeal against the action taken by the Vice Chancellor did not question it before the Executive Board but instead allowed it to attain finality and be ratified and therefore, the petitioner cannot W.P.(C)No.10325 of 2014 6 call in question the decision taken by the Vice Chancellor to issue Ext.P1 memo. In paragraph 5 of the statement, the Registrar has stated that as Ext.P2 reply submitted by the petitioner to Ext.P1 memo was found to be unsatisfactory, Ext.P3 memo of charges and statement of allegations was issued, that thereupon the petitioner submitted Ext.P4 written statement of defence, that the written statement of defence was considered and found to be unsatisfactory, that the Vice Chancellor thereupon constituted an Enquiry Commission with the fourth respondent as Chairman and Professor Vattapparambil Gopinatha Pillai (Dean of the University) as Enquiry Officer and that the said decision was also ratified by the Executive Board at its meeting held on 28.3.2014. A copy of the minutes of the Executive Board of the University that met on 28.3.2014 is produced along with the statement as Annexure 1. Referring to the said decision it is stated that the Executive Board after considering the matter decided to place the petitioner under suspension and directed the Registrar to issue a formal order placing him under suspension. In paragraph 12 it is stated that the entire action taken by the Vice Chancellor has been ratified by the Executive Board and therefore, the petitioner cannot contend that W.P.(C)No.10325 of 2014 7 the action taken against him is without the sanction or authority of law. Pursuant to the order passed by this Court, the Registrar of the University has filed an additional statement dated 31.5.2014 and produced along with it a transcript of the television programme which was telecast on 15.2.2014. The learned standing counsel also took me through the relevant portions thereof.
5. I heard Sri.P.C.Sasidharan, learned counsel appearing for the petitioner and Sri.S.Subhash Chand, learned standing counsel appearing for the University. Sri.P.C.Sasidharan, learned counsel appearing for the petitioner submitted that the petitioner's participation in the talk show was on 15.2.2014, that the order of suspension was passed on 28.3.2014, even before disciplinary proceedings was initiated against him, that there is no finding in the order of suspension or in the decision of the Executive Board, that it is necessary to place the petitioner under suspension in relation to something which took place on 15.2.2014, that the entire action is without bonafides and shows the intolerance of the Vice Chancellor and the fourth respondent to criticism, that there was no material before the Executive Board to enable it to come to the conclusion that disciplinary action has been initiated against the petitioner and W.P.(C)No.10325 of 2014 8 having regard to the gravity of the charges it is necessary to place him under suspension.
6. Per contra, Sri.S.Subhash Chand, learned standing counsel appearing for the University contended that as the petitioner admits having participated in the talk show, it is for the University/ disciplinary authority of the University to decide whether disciplinary action should be taken against him or not, that the Vice Chancellor of the University had, exercising the emergency power conferred on him under rule 15(2) of the Rules of the University, decided to issue a notice calling upon the petitioner to offer his explanation, that thereupon Ext.P1 memo was issued calling for his explanation, that the petitioner thereupon submitted Ext.P2 explanation, that it was found unsatisfactory and thereupon he directed the Registrar to issue a memo of charges, the Registrar thereupon issued Ext.P3 memo of charges dated 26.2.2014, that a copy thereof was served on the petitioner and he in turn submitted Ext.P4 reply and that these decisions of the Vice Chancellor were ratified by the Executive Board at its meeting held on 28.3.2014, at which meeting, the Executive Board also decided to place the petitioner under suspension. The learned standing counsel contended that as a W.P.(C)No.10325 of 2014 9 memo of charges has been issued it cannot be said that disciplinary action has not been initiated against the petitioner and therefore, the Executive Board was perfectly justified in deciding to place the petitioner under suspension. The learned standing counsel contended that even in cases where disciplinary action is contemplated, an employee can be placed under suspension, that it is evident from the materials on record that the disciplinary action is contemplated against the petitioner and therefore, the petitioner cannot contend for the position that as disciplinary action has not been initiated against him he cannot be placed under suspension. Referring to the statements attributable to the petitioner which have been extensively set out in Annexure A3 produced along with the additional statement dated 31.5.2014, the learned standing counsel submitted that the statements therein offend the provisions contained in the Kerala Government Servants Conduct Rules, more particularly, the stipulations in rule 60(a) thereof, that there is no merit or force in the contention raised by the petitioner in Ext.P4 reply that the Kerala Government Servants Conduct Rules has no application, that by no stretch of imagination can it be said having regard to the statements made by the petitioner in the talk show W.P.(C)No.10325 of 2014 10 that no grounds existed to initiate disciplinary action against him or to place him under suspension.
7. I have considered the submissions made at the Bar by learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. It is not in dispute that in relation to the petitioner, the disciplinary authority is the Executive Board of the University. The fact that the petitioner had participated in the talk show which was telecast on 15.2.2014 is also not in dispute. The petitioner as a matter of fact admits having participated in the talk show. The only dispute is whether the statements attributable to him which have been set out in Ext.P3 memo of charges constitute misconduct. It is evident from the pleadings and the materials on record that in relation to the petitioner's participation in the talk show, Ext.P1 memo was issued calling upon him to offer his explanation as to why disciplinary action shall not be initiated against him. He thereupon submitted Ext.P2 reply. It was thereafter that Ext.P3 charge memo dated 26.2.2014 was issued setting out eight charges. In that charge memo, which is stated to have been issued pursuant to the directions of the Vice Chancellor, the Registrar has stated that W.P.(C)No.10325 of 2014 11 Ext.P2 explanation offered by him to Ext.P1 memo is not acceptable and therefore it has been decided to call upon him to show cause why disciplinary action shall not be taken against him. The petitioner submitted Ext.P4 reply to the said memo of charges wherein after denying the charges and after contending that the Kerala Government Servants Conduct Rules is not applicable, he prayed for an opportunity to file a detailed explanation after a copy of the C.D. is made available to him if the disciplinary authority intends to proceed further. It is no doubt true that an enquiry was held thereafter, but that was not an enquiry into the charges by a duly constituted authority. These facts are clear from Annexure 1 decision of the Executive Board of the University that met on 28.3.2014. The said decision discloses that the Executive Board which is the competent disciplinary authority had ratified the action taken by the Vice Chancellor in directing Ext.P1 memo of charges to be issued as also Ext.P3 memo of charges. Though the learned counsel appearing for the petitioner contended that there is no material on record to show that it was pursuant to the decision taken by the Vice Chancellor or a direction issued by him that the Registrar issued Ext.P3 memo of charges, I am of the opinion that W.P.(C)No.10325 of 2014 12 in the light of Annexure 1 and the decision of the Executive Board to ratify the action taken by the Vice Chancellor to issue a memo of charges, this Court need not at this stage conduct a roving enquiry into the question whether Ext.P3 memo of charges was in fact issued pursuant to the directions of the Vice Chancellor. In the absence of any material to show that the Executive Board had acted malafide in recording in the minutes that the charge memo was issued pursuant to the directions of the Vice Chancellor and in ratifying it, I am of the opinion that an enquiry into that aspect of the matter is not called for.
8. That apart, rule 15(2) of the Rules of the University authorises the Vice Chancellor to exercise the powers conferred on the Executive Board if he is of the opinion that immediate action is called for in relation to any matter. It cannot therefore be said that the action taken by the Vice Chancellor was without the sanction or authority of law. In view of the admitted fact that the Vice Chancellor's action has been ratified by the Executive Board and the petitioner had not complained about the action taken by the Vice Chancellor to the Executive Board in terms of the second proviso to rule 15(2) of the Rules, I am of the opinion that the petitioner W.P.(C)No.10325 of 2014 13 cannot at this distance of time contend that issue of Ext.P1 memo as also Ext.P3 memo of charges are without the sanction or authority of law.
9. That takes me to the question whether Ext.P7 order of suspension merits interference. The main ground on which the petitioner challenges the order of suspension is on the ground that no disciplinary action has been initiated against him and therefore, he cannot be placed under suspension. It is also contended that there is no finding in Ext.P7 order to the effect that having regard to the facts and circumstances it is necessary to place him under suspension. It is relevant in this context to take note of rule 11(2) occurring in Chapter VII of the bye-laws of the University. Chapter VII is made applicable to teachers of the University by virtue of the stipulations in rule 14 of Chapter VI of the bye-laws. It is stipulated that the appointing authority or any authority to which it is subordinate or any other authority empowered by the Bye-laws in that behalf may, at any time, place a University employee under suspension where a disciplinary proceeding against him/her is contemplated or is pending. The other instances where such power can be exercised are also set out therein. It is evident from a W.P.(C)No.10325 of 2014 14 reading of rule 11(2) that an employee can be placed under suspension in cases where disciplinary action is contemplated or disciplinary proceedings against him/her is pending. Even assuming for the sake of arguments that no disciplinary action is pending against the petitioner, it is evident from the materials on record that disciplinary action is contemplated against him. In such circumstances, I find no merit in the contention of the petitioner that he could not have been placed under suspension.
10. The next question is whether it is necessary to record a finding in Ext.P7 order of suspension or in the decision of the Board evidenced by Annexure 1 that it has become necessary to place the petitioner under suspension. On the terms of the rule, I am of the opinion that it is not necessary for the disciplinary authority to enter such a finding. The rule permits the disciplinary authority to place an employee under suspension where disciplinary action is contemplated against him or her or disciplinary action is pending. It is crystal clear from Annexure-1 produced along with the statement filed on behalf of respondents 2 and 3 that the executive committee had unanimously resolved to place the petitioner under suspension till the disciplinary action imposed against him is completed. The W.P.(C)No.10325 of 2014 15 relevant portion of Annexure 1 reads as follows:
"4.eIx_I^?_O_W IfC?aJaf5^Im dV`..Xm.g7^I5aN^y_fa H?I?_5Z dIENFcWm?c^ 7axaDxN^fCKa" dV`.g7^I5aN^y_fa H?I?_ %:n?A\"8HUa" H?I?_Am U_gGON^gAIDaN^fCKa"
.5mX_5caG`Um gL^VAm U_\O_xaJaKa.eXa7NN^O %gHbWC"
H?JaKD_H^O_ %gHbWCH?I?_5Z IbVJ_O^5a" Ufx dV`.g7^I5aN^y_fH )?X dI^L\cJ_W gXUHJ_W H_Km XXmfIam f:OnaKD_Hm^ D`xaN^H_AaKa.eXXmfIXWX 5^\O{U_W %gFYJ_Hm^ %VYN^O )I<`UH LJ HWg5ID^Cm^."e
11. It was pursuant to this decision that Ext.P7 order of suspension was issued placing the petitioner under suspension. Annexure 1 as well as the order of suspension disclose that the members of the executive board had watched the CD of the programme in which the petitioner had participated before they took a decision to place the petitioner under suspension. In such circumstances, it cannot be said that there was no material before the Executive Board before it came to the conclusion that the petitioner's suspension was warranted.
For the reasons stated above, I hold that there is no merit in the instant writ petition. It fails and is dismissed. No costs.
Sd/-
P.N.RAVINDRAN JUDGE vpv/vps