University Of Calicut vs Dr.P.P.Mohamed And Another on 9 February, 2011

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 193 of 2011()



1. UNIVERSITY OF CALICUT
                      ...  Petitioner

                        Vs

1. DR.P.P.MOHAMED AND ANOTHER
                       ...       Respondent

                For Petitioner  :SRI.P.C.SASIDHARAN, SC, CALICUT UTY.

                For Respondent  : No Appearance

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice B.P.RAY

 Dated :09/02/2011

 O R D E R
                    C.N.RAMACHANDRAN NAIR &
                       BHABANI PRASAD RAY, JJ.
               ....................................................................
                         Writ Appeal No.193 of 2011
               ....................................................................
               Dated this the 9th day of February, 2011.

                                      JUDGMENT

Ramachandran Nair, J.

Appeal is filed against judgment of the learned Single Judge

vacating the order issued by the Chancellor of the University and

directing him to consider the appeal filed by the first respondent

against his termination by the appellant-University as the Registrar of

Calicut University.

2. Admittedly an appeal is provided against the termination of the

first respondent by the University before the Chancellor. In fact,

appeal was also filed by the first respondent against his termination

from service before the Chancellor. However, appeal was rejected by

the Chancellor as defective for the reason that it was not routed through

the Syndicate. Even though counsel for the appellant referred to the

statutory provisions in the University Act providing for appeal and the

procedure to be followed and the violations thereof, we do not think we

should repeat it because all these are discussed in detail in the judgment

W.A. No.193/2011 2

of the learned Single Judge. After rejection of the appeal as defective

by the Chancellor, the first respondent submitted an appeal through

proper channel i.e. through the Syndicate, which was rejected by the

Chancellor and University for the reason that it is delayed as it was

filed beyond 60 days which is the statutory period under the University

Act to file appeal. In fact, when the appeal was rejected by the

University and the Chancellor, the first respondent challenged the same

by filing W.P.(C). The University’s contention that a belated appeal

cannot be entertained and this court cannot condone the delay was

turned down by the learned Single Judge holding that denial of an

opportunity to contest the termination of first respondent in appeal, will

be a complete denial of the statutory rights. It is also stated that the

appeal that was filed in the first round without delay was only defective

in as much as it was not forwarded through the Syndicate. Counsel

for the appellant relied on decision of this court in ASST.

COMMISSIONER OF CENTRAL EXCISE VS. KRISHNA

PODUVAL reported in 2005(4) KLT 947 and contended that if the

statutory remedy is not pursued in full, this court in exercise of

W.A. No.193/2011 3

jurisdiction under Article 226 cannot interfere. However, counsel for

the first respondent contended that the decision of the learned Single is

accepted by the Chancellor, the appellate authority, and he has posted

the appeal for hearing on 16.2.2011.

3. In the first place, we feel the appeal originally filed within time

should have been treated only as defective and the Chancellor should

have forwarded it to the Syndicate for processing and returning it to

him for deciding on merit. In any case we do not find anything wrong

in the learned Single Judge giving the first respondent an opportunity

to contest the adverse decision against him on merit. Since the

Chancellor has accepted the Single Bench decision and has proceeded

to decide the case on merits by posting the appeal to 16.2.2011, we

leave freedom to the University to raise all objections on merits in the

appeal filed by the first respondent, as a respondent. Since Standing

Counsel for the University pointed out that the appeal has to be decided

by the Chancellor after reference to the University Tribunal under

Section 7(8) of the University Act, it is for the Chancellor to consider

the same and decide the appeal in accordance with the procedure

W.A. No.193/2011 4

prescribed. The Chancellor should give sufficient opportunity to the

University to substantiate their case by producing enquiry report or

whatever is the other material relied on by them based on which first

respondent was compulsorily retired. If reference is required to the

Tribunal, then certainly the Tribunal should hear both sides before

sending it’s advice to the Chancellor. The Writ Appeal is disposed of

directing the Chancellor to dispose of the appeal by complying with all

the procedural formalities and after giving sufficient opportunity to

both the parties, at the earliest.

C.N.RAMACHANDRAN NAIR
Judge

BHABANI PRASAD RAY
Judge

pms