High Court Kerala High Court

Dr.P.P.Mohammed vs University Of Calicut … on 16 December, 2008

Kerala High Court
Dr.P.P.Mohammed vs University Of Calicut … on 16 December, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 35851 of 2008(R)


1. DR.P.P.MOHAMMED, AGED 51 YEARS,
                      ...  Petitioner

                        Vs



1. UNIVERSITY OF CALICUT REPRESENTED BY
                       ...       Respondent

2. THE SYNDICATE, REPRESENTED BY ITS

                For Petitioner  :SRI.P.K.IBRAHIM

                For Respondent  : No Appearance

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :16/12/2008

 O R D E R
                     ANTONY DOMINIC,J.
              -------------------------
                     W.P.(C).No.35851/2008
              -------------------------
              Dated this the 16th day of December, 2008.



                          JUDGMENT

The prayer in this writ petition is to quash Ext.P9, a

resolution of the Syndicate of the respondent University

placing the petitioner under suspension. There is a further

prayer to reinstate the petitioner in service.

2. When this writ petition came up for admission on

4.12.2008, it was adjourned by 10 days with a direction to

the Standing Counsel for the University to obtain instructions

in the matter. Today, though initially on hearing the counsel

for both sides, I had directed the Counsel for the University

to file a statement, counsel for the petitioner insisted that the

matter should be disposed of today itself as otherwise, to

quote him “there is no purpose in filing this writ petition”. In

view of his instance, I had to hear and decide the case on the

materials available and considering the rival submissions

made by both sides.

WP(c).No.35851/08 2

3. The prayer for quashing Ext.P9, the order placing

the petitioner under suspension, is made based on

Ext.P10 judgment. Ext.P10 is the judgment rendered by

this court in WP(c).No.22831/2007 which was filed by the

petitioner challenging Ext.P9 order. That writ petition was

disposed of with a direction to complete the enquiry within

3 months. Paragraph 4 of the judgment, being relevant,

is extracted below for reference.

“In the facts and circumstances of the case, I

think, substantial justice would be sub-served by

permitting either party to move the enquiry

officer to complete the enquiry within a period of

three months. On filing such a petition, the

enquiry officer shall expedite the enquiry and

complete the enquiry within a period of three

months. If the enquiry is not over within three

months, not because of the fault of the petitioner,

the petitioner would be entitled to move this

Court praying for appropriate reliefs including the

one for reinstatement.”(emphasis supplied)

WP(c).No.35851/08 3

4. It is stated that, in pursuance to Ext.P10

judgment, the petitioner submitted Ext.P11 representation

requesting the enquiry officer to complete the enquiry

within the 3 months period specified in Ext.P10. According

to the petitioner, the University protracted the proceedings

and the enquiry remains incomplete, although the 3

months period specified in Ext.P10 has already expired.

Petitioner submits that the time fixed in Ext.P10 judgment

expired on 30.11.2008 and thereupon he requested for

reinstatement and that the same was not even considered.

It is in that background the writ petition was filed with the

prayers mentioned above.

5. As already noticed, according the learned

counsel for the petitioner, it was the University which

protracted the proceedings. It is stated that even for chief

examination of PW3, it took 8 sittings spanning over a

period of more than a month. It is stated that this is the

attitude adopted by the University and since the delay

occurred is for reasons attributable to the University, he is

justified in seeking reinstatement as ordered in Ext.P10

WP(c).No.35851/08 4

judgment.

6. From the operative portion of the judgment

itself, it is evident that the petitioner will be justified in

demanding reinstatement only if the enquiry is not over

not for the fault of the petitioner and the question is

whether the petitioner has succeeded in establishing this

fact.

7. The standing counsel for the University refers

to me the proceedings of the enquiry produced as Ext.P12

particularly the proceedings of 25.11.2008, 26.11.2008

and 29.11.2008. According to him, it was because of the

attitude adopted by the petitioner that the delay has

occurred. It is also stated that the Enquiry Officer has made

every effort to complete the enquiry within the time limit

and that the petitioner has engaged a practicing lawyer

who is not available during working hours. According to

him, for cross-examination of PW3 itself, he has taken 1

month and 10 days and the non-availability of defence

counsel has also contributed to the delay. It is also

pointed out that the petitioner now filed a list of 14

WP(c).No.35851/08 5

witnesses and he has also applied for recalling PW3 whose

examination has already been completed. It is also pointed

out that the enquiry is now scheduled to be conducted on a

day to day basis from 22nd December, 2008 onwards.

8. As stated above, petitioner can seek relief only

if he succeeds in establishing that it was only due to the

fault of the University or the Enquiry Officer that the

enquiry has not been completed. Ext.P12 is the

proceedings of the Enquiry Officer. A perusal of Ext.P12

shows that on various occasions enquiry had to be deferred

at the instance of the petitioner or his lawyer, whose non

availability also has been mentioned in Ext.P12. If that is

the position, the petitioner who has taken almost 6 weeks

to cross-examine PW3 and has now applied for his recalling

and has submitted a list of 14 witnesses, cannot say that

University or the Enquiry Officer alone are to be blamed for

not completing the enquiry.

9. From the aforesaid facts I am not in a position

to conclude that it was only on account of the fault of the

University or the Enquiry Officer that the enquiry remains

incomplete.

WP(c).No.35851/08 6

Added to this is the submission made by the

Standing Counsel for the University that the request for

reinstatement stated to have been filed by the petitioner

is not even received by them.

For the above reasons the writ petition is liable to be

dismissed and I do so.

(ANTONY DOMINIC)
JUDGE
vi/