IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16864 of 2008(G)
1. SEBASTIAN K. ANTONY, SENIOR GRADE
... Petitioner
Vs
1. MAHATHMA GANDHI UNIVERSITY,
... Respondent
2. VICE CHANCELLOR, MAHATHMA GANDHI
3. THE MANAGER,
4. THE PRINCIPAL, ST. ALBERT'S COLLEGE,
For Petitioner :SRI.P.C.SASIDHARAN
For Respondent :SRI.BABY ISSAC ILLICKAL
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :14/11/2008
O R D E R
ANTONY DOMINIC, J.
==============
W.P.(C) NO. 16864 & 18013 OF 2008
========================
Dated this the 14th day of November, 2008
J U D G M E N T
The petitioner in WP(C) No.16864/08 is a Selection Grade Lecturer
of Malayalam, working in the St.Albert’s College, Ernakulam. By Ext.P1
order dated 8/2/08, he was placed under suspension and he was called
upon to show cause why disciplinary action shall not be taken against him
for certain misconducts. That was followed by Ext.P3 memo of charges
issued on 20/2/2008 and he was called upon to submit his written
statement. It is stated that in the meanwhile, by Ext.P2, he sought the
documents on the basis of which Ext.P1 was issued and these were
furnished by Ext.P4 and thereafter petitioner submitted Ext.P5 written
statement. An advocate was appointed as the Enquiry Officer and it is
stated that the enquiry also commenced and managements’ evidence is
not complete.
2. While so, by Ext.P12 communication dated 22/5/2008, the
University informed the Manager of the College that as per Section 63(4)
of the M.G.University Act (hereinafter referred to as ‘Act’ for short), any
disciplinary proceedings against a teacher of a private college shall be
completed within a period of three months and that three months elapsed
WPC 16864 & 18013/08
:2 :
on 8/5/2008. Proceeding further, it was stated that as ordered by the Vice
Chancellor, the petitioner should be reinstated in service with immediate
effect before proceeding further with the disciplinary proceedings against
him. Manager responded to Ext.P12 by Ext.P13, contending that Section
63(4) of the Act is a directory provision and that he had vide his letter
dated 2/5/2008 already sought extension of time to complete the
disciplinary proceedings. It was also stated that the issue of reinstatement
could be considered after completion of the disciplinary proceedings. It is
at that stage, the petitioner filed this writ petition praying mainly for
directing respondents 3 and 4 to enforce Ext.P12 and to take appropriate
action against the 3rd respondent Manager, as provided under Section 56
of the Act for disobeying Ext.P12 order. A declaration that the petitioner is
entitled for reinstatement is also sought for.
3. Counsel for the petitioner also made reference to Ext.P14, a
communication dated 14.5.2008, issued by the Public Information Officer
of the M.G.University, in response to the requisition made by the petitioner
under the Right to Information Act, informing him that the University had
not received any request from the Manager of the College for extension of
time for completing the disciplinary proceedings. In this writ petition, by
WPC 16864 & 18013/08
:3 :
order dated 6/6/2008, this Court restrained the Manager from proceeding
with the disciplinary enquiry unless and until Ext.P12 is complied with and
that order still remains in force.
4. In so far as WP(C) No.18013/08 is concerned, that writ
petition is filed by the Manager of St.Albert’s College, Ernakulam praying
for quashing Ext.P12 order of the M.G.University, referred to above.
According to the Manager, the delay in completing disciplinary proceedings
was not for reasons attributable to them and as far as the management is
concerned, evidence is almost complete. It is also stated that by Ext.P11
dated 2/5/2008, they had sought for extension of time by three months for
completing the disciplinary proceedings against the teacher. It is stated
that by Ext.P15, the postal department has certified that the aforesaid
communication has been delivered to the addressee viz., the Registrar of
the University on 5/5/2008. They have also produced the extract of the
despatch register as Ext.P16 to prove that Ext.P11 was despatched to the
University and that copies were also marked to the Directorate of
Collegiate Education and Deputy Director of Collegiate Eduction,
Ernakulam. Referring to Ext.P17, it is stated that the Deputy Director of
Collegiate Education, Ernakulam, vide his letter dated 2/7/2008, has
WPC 16864 & 18013/08
:4 :
confirmed receipt of a copy of Ext.P11 on 5/5/2008.
5. According to the management, it is despite the request made
for extension of time by three months, that without passing orders
thereon, the University has passed Ext.P12 and that too, without putting
them on notice. They would argue that the teacher is a Senate Member of
the University and the District President of AKPCTA, a trade union of the
college teachers, and that the University’s case of non receipt of their
request for extension and issuance of Ext.P12, immediately on the expiry
of 3 months period are proof of his influence with the authorities of the
University. It is stated that but for the order dated 6/6/2008 passed in WP
(C) No.16864/08, the whole proceedings would have been completed.
6. In para 6 of the the counter affidavit filed by the University in
WP(C) No.18013/08, it is averred that the University has not received
Ext.P11. It is further stated that even if the petitioner applies for further
period beyond 3 months, such a request cannot be justified in the facts
and circumstances of the case. It is to be noticed that though Exts.P15,
P16 and P17 were produced by the petitioner, along with the affidavit filed
in reply to the above counter affidavit filed by the University, nothing has
been placed on record to contradict those documents.
WPC 16864 & 18013/08
:5 :
7. The contentions raised by the counsel for the petitioner in WP
(C) NO.16864/08 are that in terms of Section 63(1) of the Act, Educational
Agency may at any time place the teacher of a private college under
suspension when any disciplinary proceedings is proposed to be taken
against him or when such disciplinary proceedings are pending. Sub
Section (4) requires the disciplinary authority to complete the disciplinary
proceedings against teacher of a private college within a period of three
months or within such further period as may be allowed by the Vice
Chancellor. It is stated that in this case, three months period expired on
8/5/2008 and that, as confirmed by the University, upto 14/5/2008, the
date of Ext.P14, the College had not sought any extension of time.
8. Referring to Section 63 of the Act, two contentions are raised.
First is that, only the educational agency can place the teacher under
suspension and the second is, that in the absence of enlargement of time
by the Vice Chancellor beyond the initial period of three months, the
teacher is entitled to reinstatement. According to counsel, it was in
exercise of this power that the Vice Chancellor issued Ext.P12 order and by
Ext.P13, the Manager has informed his unwillingness to comply with
Ext.P12. Counsel contends that the disobedience of the Manager to comply
WPC 16864 & 18013/08
:6 :
with Ext.P12, attracts Section 56(7) of the Act, which provides that if the
Manager of a private college is guilty of disobedience of the instructions
issued by the University, the Vice Chancellor is entitled to take action for
declaring him unfit to hold the office of Manager and require the
management to appoint a suitable person as Manager.
9. It is also pointed out that consequence of an order under
Section 56(7) of the Act is provided in Section 56(9), which entitles the
University or the Government to withdraw aid, grant or affiliation of the
private college by the University or the Government, as the case may be.
Yet another contention raised is that the teacher has been placed under
suspension without any application of mind and that even if the
misconducts alleged against the teacher are taken at its face value, it is
not grave enough warranting an order of suspension to keep the teacher
out of his job for such a long time. In this context, reliance was placed on
the judgment in Surendran K. v. Government of Kerala and others
(ILR(2008) 3 Kerala 587).
10. On the other hand, the counsel for the Manager would argue
that under Section 63 of the Act, they have already sought enlargement of
time for completing the disciplinary proceedings by filing Ext.P11 produced
WPC 16864 & 18013/08
:7 :
in WP(C) No.18013/08. It is stated that the despatch and delivery of
Ext.P11 is confirmed by the Postal Authorities by Ext.P15 and its despatch
is proved by the entries in the Despatch Register viz., Ext.P16. It is also
pointed out that the Deputy Director to whom copy was sent has
acknowledged its receipt by Ext.P17. It is stated that it is despite all this
that Ext.P12 was issued ordering reinstatement of the teacher and that
the said order was passed without even issuing notice to the Manager.
Counsel therefore submits that apart from all other vitiating factors,
Ext.P12 deserves to be set aside for violation of the principles of natural
justice.
11. Yet another contention that is raised is regarding the
maintainability of the writ petition itself. Learned counsel for the Manager
has stated that challenging the proceedings initiated against him, the
teacher has filed Appeal No.8/08 before the University Appellate Tribunal.
It is stated that the appeal was filed on 23/10/2008 and that the same has
been admitted and is now posted for written statement of the
Management.
12. On merits, it is contended that under Section 63(3) of the Act,
when following the disciplinary proceedings initiated, a teacher is placed
WPC 16864 & 18013/08
:8 :
under suspension for a period exceeding 15 days, all that is required to be
done is to report the factum of suspension to the Vice Chancellor. It is
stated that ordinarily the disciplinary proceedings are to be completed
within 3 months and in terms of Section 63(4), if proceedings are not
completed, it shall be completed within such further period as may be
allowed by the Vice Chancellor. It is stated that the power under Section
63(4) only enables the Vice Chancellor to deal with a request for enlarging
the period for completion of disciplinary proceedings, but however, it does
not enable the Vice Chancellor to interfere with an order of suspension
passed by the disciplinary authority. Referring to the judgment of this
Court in Dr.N.Raveendran v. The Manager, Sree Narayana College
and another (ILR 2005(1) Kerala 338), it is contended by the learned
counsel for the Manager that Section 63(4) of the Act is only directory and
not mandatory, as contended by the petitioner in WP(C) No.16864/08. He
also contends that being a teacher in an educational institution, the
misconduct allegedly committed by the petitioner in WP(C) No.16864/08
has to be viewed with extreme gravity and therefore they cannot be
faulted for placing the teacher under suspension.
13. Thus while in WP(C) No.18013/08, the management is seeking
WPC 16864 & 18013/08
:9 :
to quash Ext.P12, the order issued by the University requiring the
reinstatement of the teacher for continuance of the disciplinary enquiry, in
WP(C) No.16864/08, the teacher requires implementation of the same.
Although it is true that under Section 10(15) of the Act, the Vice Chancellor
is the custodian of the University Laws and is also vested with the power
of ensuring observance of the provisions of the Act by private colleges, the
question arising for consideration is regarding the competence of the Vice
Chancellor to issue an order in the nature of Ext.P12. If this order is held
to be one within his power, for non compliance thereof, the management
may be liable to be proceeded against under Section 56(7) and (9) of the
Act. On the other hand, if Ext.P12 order is issued without any legal
sanction, necessarily, the same will have to be set aside.
14. Section 63 of the Act to the extent it is relevant, reads as
under:
63. Disciplinary powers of Educational Agency over
teachers of private Colleges: (1) The Educational Agency
may at any time place a teacher of a Private College under
suspension when any disciplinary proceedings is proposed to
be taken against him or when such disciplinary proceedings
are pending.
(2) A teacher of a Private college who is detained in
custody whether on a criminal charge or otherwise for a
period exceeding fourty-eight hours shall be deemed to have
WPC 16864 & 18013/08
:10 :
been suspended with effect from the date of detention by an
order of the Educational Agency and shall remain under
suspension until further orders.
(3) When a teacher of a private college is suspended
for a period exceeding fifteen days, the matter together with
the reasons for the suspension, shall be reported to the Vice-
Chancellor.
(4) Any disciplinary proceedings against a teacher of
a private college by the educational agency shall be
completed within a period of three months or within such
further period as may be allowed by the Vice-Chancellor.
15. A reading of Section 63 shows that when in any disciplinary
proceedings, if a teacher is placed under suspension, that has to be
reported to the Vice Chancellor, in terms of Sub Section (3) thereof. Sub
Section (4) provides that disciplinary proceedings shall be completed
within a period of three months or within such further period as may be
allowed by the Vice Chancellor. Therefore, the power of the Vice
Chancellor is what is conferred under Sub Section(4) and that is to pass
order on the request made by the disciplinary authority for extension of
time for completion of the disciplinary proceedings against the teacher.
This section does not enable the Vice Chancellor to interfere with the
power of suspension exercised by the disciplinary authority under Section
63(1) of the Act and reported to the Vice Chancellor under Section 63(3).
WPC 16864 & 18013/08
:11 :
16. Though the counsel for the University was at pains to explain
the powers of the Vice Chancellor and his duties for ensuring observance
of the provisions of the Act, University Statutes and Rules, still despite a
specific query raised by the Court, except referring to Section 10(15) of
the Act, no specific provision enabling the Vice Chancellor to interfere with
the power of suspension exercised by the disciplinary authority of a private
college teacher could be brought to my notice. Disciplinary powers are
entirely within the domain of the disciplinary authority and the only
limitation is the statutory restrictions imposed on that power. Those
restrictions are contained in Section 63 of the Act, and Section 63 does not
confer any power on the Vice Chancellor to interfere with the power of
suspension. If that be so, the Vice Chancellor could not have ordered
reinstatement of the teacher, on the ground that the enquiry has not been
completed within the initial period of three months.
17. In this context, it also requires to be mentioned that in
Dr.N.Raveendran v. The Manager, Sree Narayana College and
another (ILR(2005) 1 Kerala 338), interpreting the corresponding
provisions in 60(4) of the Kerala University Act, a Division Bench of this
Court has held that the provisions are only directory and that despite the
WPC 16864 & 18013/08
:12 :
lapse of time, the enquiry can be continued. In this context, it also needs
mention that even by Ext.P12, University has not forbidden the College
from proceeding with the enquiry for not completing the same within 3
months, but has only imposed reinstatement as a condition for its
continuance.
18. In my view, Ext.P12 order passed by the Vice Chancellor
ordering reinstatement of the teacher cannot be sustained and has to be
set aside. But, then that does not mean that the College is entitled to
prolong disciplinary action and keep the teacher under suspension for all
time to come. Necessarily, the College is bound to complete the
disciplinary action with due expedition.
19. The counsel for the petitioner in WP(C) No.16864/08
contended that educational agency alone could have suspended the
teacher and that Ext.P1 having been issued by the Manager is without
jurisdiction. Though this contention is not seen raised in the writ petition, a
reading of Section 63(1) indicates that it is the educational agency, which
is vested with the power of suspension. The term Educational Agency has
been defined in 2(9) of the Act. Section 56 of the Act provides for the
appointment of the Manager and Sub Section 4 provides that the Manager
WPC 16864 & 18013/08
:13 :
shall exercise such powers and discharge his duties as may be delegated
to him by the corporate management. Manager contends that this power
has been delegated and that all steps that have been taken by the
Manager are in exercise of the delegated power. Educational Agency
functions through the Manager appointed under Section 56 of the Act,
which also provides that the Manager is to exercise delegated powers.
According to the Manager, whatever actions that has taken are in exercise
of the delegated power. As noticed, this is not a plea raised in the writ
petition and the assertion made by the petitioner is denied by the
Manager. In the aforesaid circumstances, I am not in a position to accept
the plea of the petitioner in WP(C) No.16864/08 and invalidate the
suspension on that ground.
20. Counsel for the petitioner in WP(C) No.16864/08 was
contending for the position that the suspension has been imposed without
application of mind. He also placed reliance on the judgment of the
Division Bench in Surendran K. v. Government of Kerala and others
(ILR(2008) 3 Kerala 587). True the gravity of the misconduct justify
exercise of power of suspension by the disciplinary authority. In this case,
allegation is that a teacher has tampered with the attendance register in
WPC 16864 & 18013/08
:14 :
the college. The role of a teacher has been explained in several judgments
and he has to conduct himself as a model to the students, whose
character and conduct is moulded in the College. When such grievous
allegations are raised, I do not find any arbitrariness in the order of the
Manager in placing such a teacher under suspension. Therefore, I am not
inclined to hold that the nature of allegation do not call for such an order
and interfere with the order of suspension in a proceedings under Article
226 of the Constitution of India.
21. Be that as it may, now that the enquiry has been initiated and
according to the counsel, the management has let in evidence and all that
remains on their side is to examine one more witness. Once that is
completed, necessarily, it is the turn of the delinquent to let in his
evidence if he so desires. The fact that Ext.P12 has been sustained does
not mean that the management can prolong the enquiry, but should
complete the same with due expedition. Normally, considering the
contention of the University that it has not received the Manager’s request
for extension of time for completing the enquiry (Ext.P11 in WP(C)
No.18013/08), this Court should have directed that a fresh request shall be
made to the University. However, in the counter affidavit filed in WP(C)
WPC 16864 & 18013/08
:15 :
No.18013/08, the University has also stated that even if an application is
made, such a request cannot be justified. Since the University has made its
stand known, I do not think that any useful purpose will be served by
directing the College to make a fresh application.
22. Therefore, I direct the petitioner in WP(C) No.18013/08 to
complete the disciplinary action initiated against the petitioner in WP(C)
No.16864/08 within two months from the date of receipt of a copy of this
judgment, provided, the petitioner in WP(C) No.16864/08 co-operates for
the same.
23. It is clarified that this Court has only examined the validity of
Ext.P12 in the light of the aforesaid contentions. Though in the pleadings,
various factual controversies have been raised, adjudication of those
contentions is unnecessary for the disposal of these cases. All those issues
are left open, particularly in view of the pendency of Appeal No.8/08,
before the Appellate Tribunal.
WP(C) No.16864/08 will stand dismissed and WP(C) No.18013/08
will stand allowed as above.
ANTONY DOMINIC, JUDGE
Rp