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Kerala High Court
Sheffiq Hussain vs State Of Kerala on 23 May, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
WA NO. 653 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.33572 OF 2023 OF
HIGH COURT OF KERALA
APPELLANT/S:
SHEFFIQ HUSSAIN
AGED 34 YEARS
S/O HUSSAIN, ZAMZAM MANZIL, ZILLACOURT WARD,
THATHAMPALLY P O, ALAPPUZHA DISTRICT, PIN-688013 IS NOW
RESIDING AT HUSSAIN MANZIL, NEAR JAMALUDHEENJUMA
MASJID, ARRATTUVAZHI P.O, ALAPPUZHA DISTRICT, PIN:
688007, SENIOR GRADE ASSISTANT, MAHATMA GANDHI
UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM DISTRICT PIN:
686560., PIN - 686560
BY ADVS.
RAGHUL SUDHEESH
J.LAKSHMI
ELIZABETH MATHEW
AMBILY T. VENU
ZAKIYA ISMAIL
RESPONDENT/S:
1 STATE OF KERALA
2
W.A.No.653 of 2024
REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANATHAPURAM, PIN - 695001
2 MAHATMA GANDHI UNIVERSITY
REPRESENTED BY REGISTRAR, PRIYADARSINI HILLS, KOTTAYAM
DISTRICT, PIN - 686560
3 THE VICE CHANCELLOR
MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM
DISTRICT P, PIN - 686560
4 THE CHANCELLOR
KERALA RAJ BHAWAN , THIRUVANANTHAPURAM DISTRICT, PIN -
695099
BY ADVS.
S.PRASANTH
P.SREEKUMAR (SR.)(K/410/1994)
OTHER PRESENT:
SRI UNNIKRISHNA KAIMAL, SR. GP., SRI S PRASANTH, SC FOR
CHANCELLOR OF UNIVERSITIES OF KERALA, SRI SURIN GEORGE
IPE, SC FOR M G UNIVERSITY
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
3
W.A.No.653 of 2024
JUDGMENT
Raja Vijayaraghavan, J.
The appellant, a Senior Grade Assistant, working at Mahatma Gandhi University, has preferred this appeal being aggrieved by the judgment dated 22.2.2024 passed by a learned Single Judge of this Court. The learned Single Judge refused to interfere with the disciplinary proceedings initiated against the appellant and the minor penalty imposed against him.
2. Brief facts of the case necessary for the disposal of this appeal are as follows:
a) The appellant commenced his service as a Senior Grade Assistant on 14.2.2019, at the Mahatma Gandhi University. On 26.10.2019, the Pro-Vice Chancellor issued an order granting special accommodations to 4 W.A.No.653 of 2024 Gokul Krishana M.S., a deaf and mute student, pursuing a B.Sc.
Mathematics (Model I) at Sree Sankara Vidyapeetom College. These accommodations included exemption from the 2nd language examination of the first semester (October 2019) and the second semester (October 2020) along with an allotment of 25% grace marks/10% grace grade points. Consequently, Gokul did not attend the examinations. However, upon publication of the results, it was noted that Gokul was marked absent for Sanskrit (2nd language) for both semesters and was declared as failed.
b) On 25/08/2021, the Principal of Sree Sankara Vidyapeetom College submitted a complaint to the Controller of Examinations of the University. This complaint was forwarded from the Tapal Examination Section to the appellant for further action. The appellant created a file labeled DDFS 115855/CBCSS 18-1/2021 and forwarded it to the immediate Section Officer on 3.9.2021. The Section Officer then 5 W.A.No.653 of 2024 forwarded it to the Assistant Registrar on the same day for further action. The Assistant Registrar returned the file to the Section Officer with a note reading "please discuss." However, the Section Officer, without noticing this note, returned the file to the appellant. The appellant noticed the note and, seeking clarification, remarked, "Please write as a note what is the matter she wants to discuss," and resubmitted the file to the Section Officer on 6.9.2021. The Section Officer discussed the matter with the Assistant Registrar and then returned the file to the appellant, advising him to take further action based on the examination manual.
c) The appellant then submitted the file directly to the Deputy Registrar.
After reviewing the file, the Deputy Registrar found the appellant's remarks to be an act of serious insubordination and returned the file to the Section Officer on 6.9.2021. The appellant states that the file was disposed of on the same day, and that there was no mechanism to 6 W.A.No.653 of 2024 retrieve it once it has been disposed of. On 9.9.2021, with the help of the IT Cell, the appellant recreated a new file with all the attachments and sent it through the proper channel. On 21.11.2021, the Controller of Examinations issued orders to grant the University average mark to Gokul, thus addressing his grievance.
d) On 26.11.2021, the appellant was served with a transfer order (Ext.P2), transferring him from CBCSS 18 Section to ACB 5 Section, pending an inquiry into the allegation of insubordination and deletion of the original file.
e) On 24.1.2022, the appellant received a memo of charges (Ext.P3), seeking his explanation within 15 days, to which he responded with Ext.P4. The appellant asserts that no Presenting Officer was appointed, nor was he given permission to cross-examine the witnesses. He was summoned by the inquiry officer and was issued a questionnaire, which he answered. The inquiry report (Ext.P5) found the appellant to be 7 W.A.No.653 of 2024 guilty of insubordination. The appellant claims that he was not served with the inquiry report.
f) On 13.5.2022, on receipt of the enquiry report, the 2nd respondent issued a memo of charges proposing to withhold increments permanently for a period of six months with cumulative effect and sought an explanation within seven days. The appellant submitted his reply (Ext.P7) on 20.5.2022. On 21.6.2022, the 3rd respondent issued an order (Ext.P8) imposing a punishment by barring one increment permanently for six months with cumulative effect. The appellant requested the 2nd respondent for copies of the documents and evidence relied upon by the enquiry officer, but his request was rejected on 3.8.2022. On 2.7.2022, the 3rd respondent issued another punishment order imposing the same punishment and cancelled Ext.P8 without providing a reason.
8W.A.No.653 of 2024
g) The appellant filed W.P.(C) No.28508/2022 challenging Ext.P10 order, supported by documents obtained under the Right to Information Act,2005. The writ petition was disposed of directing the appellant to file an appeal before the competent authority. After hearing Ext.P10 was modified, by barring of one increment for six months to barring one increment without cumulative effect by Ext.P13 order. The appellant challenges Ext.P5 enquiry report and Exts.P10 and P13 orders.
3. The University filed a counter stating that the appellant was penalized by withholding one increment for six months with cumulative effect based on the enquiry report. The Chancellor on appeal has reduced the punishment. The fact that the appellant had admitted the charges and prayed for leniency was reiterated. It was further contended that the enquiry was conducted fairly and transparently.
5. The learned Single Judge, after evaluation of the entire evidence held that the delinquent had unequivocally admitted to the 9 W.A.No.653 of 2024 alleged acts and sought leniency. It was concluded on the basis of the materials that the admission of the petitioner of attempting to erase files which were the subject of the proceedings, tantamount to destruction of evidence. The relevant Statutes under Part III, Chapter 4 of the Mahatma Gandhi University Statute 1997, were also adverted to and it was held that the requirements for imposing a minor penalty were met. Finally, it was held that the statutory provisions were adhered to by the University during the enquiry, and the judicial review scope in such matters is limited.
6. Sri. Raghul Sudheesh, the learned counsel appearing for the appellant, submitted that the learned Single Judge omitted to take note of relevant facts while deciding the issue. He contended that the delinquent employee is entitled to obtain the report of the enquiry officer before the disciplinary authority records the findings on the charges leveled against him. In the case of the appellant, he was kept in the dark. He would further urge that the appellant was relatively inexperienced and no fault 10 W.A.No.653 of 2024 ought to have been attributed to him for accidentally deleting a message. The learned counsel would also point out that the Chancellor while issuing Ext.P13 order failed to consider the relevant facts.
7. We have carefully considered the submissions advanced.
8. We find that in connection with the grievance of a student by name Gokul Krishna, the Deputy Registrar came to the prima facie finding that the action of the appellant in his capacity as Senior Grade Assistant amounted to insubordination. The specific case is that the appellant instead of submitting a file to the Section Officer concerned, forwarded the same directly to the Deputy Registrar. On examination of the file, the Deputy Registrar noted that a remark in the nature of insubordination was recorded in the file by the appellant and that there was a hierarchical violation. It is the case of the University that the appellant realizing that the act on his part was an act of indiscipline, deleted the electronic file from the system irrecoverably on 6.9.2021 11 W.A.No.653 of 2024 without securing permission from his superiors. The fact that the appellant had been regularly handling DDFS files and such deletion could not have happened inadvertently was the conclusion arrived at by the University. It was in the said circumstances that an enquiry officer was appointed to conduct further investigation into the matter. A memo of charges dated 24.1.2022 was issued to the appellant. The allegation in the charges were as under:
a. That the Appellant has acted against the direction of his superior officer;
b. That the Appellant disposed off the file on his own without obtaining sanction from the superior officer; c. That the Appellant has breached discipline; and d. That the Appellant has violated the office procedures stipulated by the Secretariat Office Manual.
9. After conducting an enquiry, the enquiry officer submitted a report on 5.4.2022 wherein it is stated that the explanation offered by the appellant was not satisfactory and recommended disciplinary action 12 W.A.No.653 of 2024 against the appellant under the Mahatma Gandhi University Statutes, 1977. The University issued a notice to the appellant asking him to show cause against the tentative decision and as to why a minor punishment of barring one increment permanently for six months with cumulative effect shall not be imposed against him. The appellant had responded by Ext.P4 reply and after narrating his contentions took a stand that he was a novice and requested for pardon. He also stated that he will not repeat the mistakes committed by him. His explanation was rejected and order dated 21.6.2022 was issued under Chapter 4, Part III, Statute 35A(iii) imposing minor penalty of withholding of one increment for a period of six months with cumulative effect. On the premise that certain errors had crept in, a fresh order dated 2.7.2022 was issued.
10. The first contention of the petitioner is that he was not served with a copy of the enquiry report. The learned Single Judge noted that the appellant had issued Ext.P4 reply and had also issued Ext.P7 after receipt 13 W.A.No.653 of 2024 of the show cause notice wherein he had admitted in unequivocal terms the malfeasance alleged against him and pleaded leniency in the matter of punishment. He had no contention at that stage that he was not served with a copy of the enquiry report. Furthermore, the learned Single Judge also adverted to Statutes 35 and 55 in Part III Chapter 4 of the University Statute 1997 that the requirements of the Statute were met in the instant case.
11. The second contention of the appellant is that he was a novice and that the file had got accidentally deleted. We find from the records that there is a clear finding that the electronic file cannot be accidentally deleted as contended by the appellant. The materials disclosed that to reach the option of disposing of the file, the file had to be first selected and then the information panel had to be accessed. The user is required to enter a remark/reason for disposal. Thereafter, he will be asked to confirm whether the file is to be deleted. Only if, the user clicks on the 14 W.A.No.653 of 2024 confirmation button would the file be deleted. The materials clearly disclose that the appellant had been regularly handling DDFS files. It was based on the above that it was concluded that the file was deliberately deleted by the appellant with a view to obscure his acts of insubordination and indiscipline. The learned Single Judge has rightly rejected the contention of the appellant that the deletion was accidental and due to lack of computer awareness.
12. We find that the appellant had preferred an appeal before the Chancellor invoking the provisions of the Statute. The Chancellor, after adverting to all the relevant facts, was of the view that the Registrar of the University was lenient enough, given the act of indiscretion and insubordination committed by the appellant, to redeem the appellant from his misconduct taking note of his long service. The Chancellor, considering the facts and circumstances, allowed the appeal by modifying the punishment imposed on him to one of withholding the increment for six 15 W.A.No.653 of 2024 months, without cumulative effect. As held by the learned Single Judge, the scope of judicial review in these matters is extremely limited. We find no reason to interfere with the considered judgment rendered by the learned Single Judge.
This appeal is dismissed.
sd/-
RAJA VIJAYARAGHAVAN V, JUDGE sd/-
P.M.MANOJ JUDGE das