Dr.M.Junaid Bushiri vs The Cochin University Of Science ...
2021 Latest Caselaw 4040 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR. JUSTICE AMIT RAWAL

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                      WP(C).No.41880 OF 2018(H)


PETITIONER:

               DR.M.JUNAID BUSHIRI
               AGED 50 YEARS
               HEAD OF THE DEPARTMENT,
               DEPARTMENT OF PHYSICS,
               COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
               COCHIN-682 022

               BY ADVS.
               SRI.GEORGE POONTHOTTAM (SR.)
               SMT.NISHA GEORGE

RESPONDENTS:

      1        THE COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY
               UNIVERSITY CAMPUS, UNIVERSITY ROAD,
               SOUTH KALAMASSERY, COCHIN-682 022,
               REPRESENTED BY THE REGISTRAR

      2        THE VICE CHANCELLOR IN CHARGE
               COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
               UNIVERSITY CAMPUS, UNIVERSITY ROAD,
               SOUTH KALAMASSERY, COCHIN-682 022

               BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD        ON
04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.41880 OF 2018(H)

                                  2

                             JUDGMENT

Dated this the 4th day of February 2021

The petitioner is the Head of Department of Physics in Cochin

University of Science and Technology (CUSAT), Cochin with a total

length of service of 12 years. There are research scholars in the

University in all the departments. They are required to remit a fixed

amount of fees in the University on the basis of semester. The

amounts received are transferred to the common pool. One research

Scholar Sri. Ratheesh Kumar. R, An Assistant Professor in Fathima

Matha College Kollam on 05.12.2018 at 10.00 am, came to the College

for deposit of the fees as there was a direction by the University to

bring the previous receipts so that the Administration Department of

the University is not required to search the previous records for the

purpose of the said committee. On the aforementioned date, there was

some heated arguments and acrimony had taken place between the

aforementioned research scholar and the members of the staff from

the Administrative Office. The security officer was called in and the

situation was brought under control. Thereafter in the presence of the

petitioner, two other professors, one among them was a member of

the syndicate, Section Officer, Department of Physics and the Security

Officer, a reconciliation meeting was held between the employee and

the research scholar. It resulted into an agreement dated 05.12.2018 WP(C).No.41880 OF 2018(H)

(Ext.P1).

2. On 06.12.2018, in spite of the settlement of disputes, a

group of students assembled in front of the office of the Department of

Physics and staged a dharna. The petitioner took initiative by holding a

discussion with the students in the presence of other professors and

employees, the same was also recorded as evident from Ext.P2. The

said report was also forwarded to the Registrar narrating the incident

on 05.12.2018 as evidenced from Ext.P3.

3. Sri.George Poonthottam, learned Senior Counsel submitted

that though the matter was over, the students made a complaint

targeting the petitioner as he belongs to another Organization for

holding an impartial inquiry of the incident as well as the disciplinary

action. The said action was not at all required as the incident of

05.12.2018 had been closed. An organization, the Cochin University

Research Scholars Association, also submitted a similar complaint

Ext.P5. Complaints were made by some other associations also and

vide order dated 14.12.2018 (Ext.P12) the Deputy Registrar

(Administration) issued a communication of according of sanction by

the Vice-Chancellor for constituting a Committee to inquire into the

alleged untoward incident happened in the Department of Physics on

05.12.2018 and submit a report to the Syndicate by 27.12.2018. The

petitioner submitted a detailed explanation vide Ext.P13 before the WP(C).No.41880 OF 2018(H)

aforementioned inquiry Committee. Dissatisfied with the

aforementioned reply, memo of charges dated 24.01.2019 (Ext.P14)

along with (14) documents purported to be taken note of by the

Committee were also enclosed. Pursuant to the aforementioned

allegations, the Enquiry Officer recorded the statement of certain

persons including the petitioner and also examined the documents. As

per report found the petitioner derelict. Vide Ext.P17 dated

27.12.2018, Syndicate considered and accepted the interim report. It

was decided to initiate disciplinary proceedings against the petitioner.

During the disciplinary proceedings, the petitioner, vide Ext.P21 gave a

detailed reply to the show cause notice and also demanded certain

documents to be supplied, but he was permitted to inspect only few

documents and not all. The aforementioned report was placed before

the Syndicate against the agenda item no.670.29 and it was decided

to accept the enquiry report by imposing certain minor penalties

against Sri.Ebrahim Haneefa.K.A, Sri. Sebastian M.G and Sri.Nissar. K.S.

Since the action of the University had been challenged before this

Court, this Court vide order dated 20.12.2018 though did not interfere

with the inquiry, however, observed that in case University proposes to

take action against the petitioner that shall be only after obtaining the

leave of this Court. Vide Interim Application No.1 of 2020 on behalf of

the respondent annexing Ext.R1(c), the decision of the Syndicate to WP(C).No.41880 OF 2018(H)

initiate disciplinary proceedings against the four employees, was filed.

This Court observed that the inquiry against the all other employees

may continue however, the final order in case of the petitioner shall

only be passed after securing the permission of this Court. It is in that

background the final order has not been passed.

3. Sri.George Poonthottam, in order to buttress his argument

submitted that the Enquiry Committee did not deal with any of the

replies filed by the employees and expressed apprehension that reply

of the petitioner would also be dealt with, in the same manner. The

disciplinary authority-syndicate is enjoined upon an obligation to deal

with all the charges vis-a-vis the reply and only thereafter form an

opinion either in favour or against the petitioner. It is in that

background the petitioner was constrained to file an application for

amendment of the writ petition.

4. Per contra Sri.Aravindakshan Pillay, learned counsel

appearing on behalf of the Cochin University submitted that the

purpose of pendency of the writ petition no longer survives as

whatever would be the outcome of the syndicate as per the receipt of

the enquiry report, petitioner would be at liberty to assail the same in

accordance with law and thus urges this Court for vacation of the

interim order so that appropriate order is passed by the syndicate.

Petitioner cannot be permitted to allege that he has not been supplied WP(C).No.41880 OF 2018(H)

with the enquiry report. All t points would be dealt by the syndicate in

case the petitioner deem it appropriate to appear in person before

syndicate. The writ petition at the initial stage was premature and now

also would not be maintainable despite occurrence of subsequent

grievance. It is settled law that the Court would not interfere with the

enquiry proceedings as it would be in the domain of the competent

authority to deal with all the charges considering the documents and

reply submitted by the employees.

5. I have heard the learned counsel for the parties and

appraised the paper book.

6. The facts with regard to an incident have been taken place

on 05.12.2018 and concluded into an agreement Ext.P1 dated

05.12.2018 as well as Ext.P2 are not in dispute. However, the issue

was raked up actuated at the instance of certain students the which

resulted into submitted complaints to the vice-chancellor and also to

the Chief Minister, who would not have any control against the

University being an autonomous body. Be that as it may, the

communication of the Registrar would reveal that the Vice-Chancellor

took cognizance of the complaint and constituted a committee,

submitted a interim report and on the basis of the same syndicate

thought fit to hold a disciplinary enquiry. During the course of

argument this Court specifically called upon Sri.Aravindakshan Pillai to WP(C).No.41880 OF 2018(H)

refer the provisions as applicable to the employees of the University

for holding of enquiry vis-a-vis imposition of minor or major penalties.

The attention of this Court was brought to Section 38 of Cochin

University First Statute of Service Conditions of Teachers and Other

Staff, 1981. The aforementioned Section envisages that if the

disciplinary authority, after having found that any penalties specified

in items (I) to (iv) of Statute 20 are to be imposed, an appropriate

order in that case would be passed. The entire procedure for

imposition of minor penalties has been prescribed under Section 41.

The pith and substance of the argument is that the disciplinary

authorities are empowered to impose minor penalties and there is no

necessity of appointing an independent Enquiry Officer and hold a

regular enquiry like a trial. It is in that background on receipt of the

report of the committee, the syndicate thought fit to impose minor

penalties against the other delinquent employees, however, as per the

facts enumerated in the application seeking vacation of the stay as

well as the arguments, it is noticed that an appropriate order would be

passed against the petitioner in case this Court permits the

University/syndicate to proceed further.

The tenor and mode of the University by looking at the order

Ext.R1(d) as well as the agenda item no. 670.29 (Ext.P29), enabled

this court to form t view that the syndicate is not a post-office which WP(C).No.41880 OF 2018(H)

only accept the report and communicate the imposition of minor

penalties to a delinquent officer but are legitimately expected to

discharge an obligation to deal with each and every charge/allegation

served upon the delinquent and also the reply, vis-vis the findings of

the enquiry report and arrive at a just and equitable conclusion in

order to rule out applicability of any malice or arbitrariness, much less,

fallacy. This Court now, while agreeing with the submission of

Sri.Aravindakshan Pillai, permit the university to proceed further vis-a-

vis the petitioner and dispose of the writ petition, with the

observations, made hereinabove by directing the university/syndicate

to deal with the report of the Enquiry Committee in the manner and

mode as noticed above and also afford an opportunity to the petitioner

who would be at liberty to rebut each and every charge by referring to

the documents. Let this exercise be undertaken within a period of

three months from today. It is made clear that the petitioner is at

liberty to take all the pleas as have been taken in the writ petition for

justifying the stand taken in the reply.

This writ petition stands disposed of.

Sd/-

AMIT RAWAL

JUDGE nak WP(C).No.41880 OF 2018(H)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE AGREEMENT DATED 05/12/2018.

EXHIBIT P2 TRUE COPY OF THE MINUTES OF THE MEETING OF THE HOD AND FACULTY MEMBERS WITH STUDENTS REPRESENTATIVES DATED 06/12/2018.

EXHIBIT P3 TRUE COPY OF THE REPORT ON THE INCIDENTS OCCURRED ON 05/12/2018 WITH COVERING LETTER DATED 10/12/2018.

EXHIBIT P4 TRUE COPY OF THE COMPLAINT GIVEN BY THE COCHIN UNIVERSITY TEACHERS' ASSOCIATION DATED 07/12/2018.

EXHIBIT P5 TRUE COPY OF THE COMPLAINT GIVEN BY COCHIN UNIVERSITY RESEARCH SCHOLARS ASSOCIATION DATED 07/12/2018.

EXHIBIT P6 TRUE COPY OF THE COMPLAINT GIVEN BY COCHIN UNIVERSITY EMPLOYEES' UNION DATED 07/12/2018.

EXHIBIT P7 TRUE COPY OF THE COMPLAINT GIVEN BY SRI.

RATHEESH KUMAR R. TO THE VICE CHANCELLOR DATED 11/12/2018.

EXHIBIT P8 TRUE COPY OF THE COMPLAINT GIVEN BY ALL KERALA RESEARCH SCHOLARS ASSOCIATION TO THE VICE CHANCELLOR DATED 07/12/2018.

EXHIBIT P9 TRUE COPY OF THE SUBMISSION DATED 12/12/2018 SUBMITTED BY MR. EBRAHIM HANEEFA K.A.

EXHIBIT P10 TRUE COPY OF THE COMPLAINT GIVEN BY ALL KERALA RESEARCH SCHOLARS ASSOCIATION TO THE CHIEF MINISTER DASTED 14/12/2018.

EXHIBIT P11 TRUE COPY OF THE E-MAIL COMMUNICATION DATED 14/12/2018 SENT BY THE SECRETARY TO CHIEF MINISTER TO THE UNIVERSITY.

EXHIBIT P12 TRUE COPY OF THE ORDER WP(C).No.41880 OF 2018(H)

NO.AD.A1/101/ESTABLISHMENT/2018(2) DATED 14/12/2018 PASSED BY THE UNIVERSITY.

EXHIBIT P13 TRUE COPY OF THE STATEMENT DATED 24-12-2018 SUBMITTED BY THE PETITIONER BEFORE THE ENQUIRY COMMITTEE ALONG WITH POSTAL RECEIPT.

EXHIBIT P14 TRUE COPY OF THE MEMO OF CHARGES AGAINST SRI NISSAR K.S. DATED 24-01-2019.

EXHIBIT P15 TRUE COPY OF THE STATEMENT OF ALLEGATIONS AND MEMO-CHARGES AGAINST SRI.EBRAHIM HANEEFA DATED 24-01-2019.

EXHIBIT P16 TRUE COPY OF THE ENQUIRY COMMITTEE REPORT.

EXHIBIT P17 TRUE COPY OF THE RESOLUTION OF THE SYNDICATE, DATED 27-12-2018.

EXHIBIT P18 TRUE COPY OF THE MEMO OF CHARGES NO.A.A1/101/ESTABLISHMENT/2018 DATED 17/8/2019 ISSUED BY THE RESPONDENT UNIVERSITY

EXHIBIT P19 TRUE COPY OF THE STATEMENT OF ALLEGATIONS NO.A.A1/101/ESTABLISHMENT/2018 DATED 17/8/2019 ISSUED BY THE RESPONDENT UNIVERSITY

EXHIBIT P20 TRUE COPY OF THE LIST OF DOCUMENTS ADDUCED IN SUPPORT OF THE CHARGES DATED 17/8/2019

EXHIBIT P21 TRUE COPY OF THE REPLY TO SHOW CAUSE NOTICE FILED BY THE PETITIONER DATED 16/9/2019

EXHIBIT P22 TRUE COPY OF THE NOTICE NO.PHY.A2/227/2020-

21 DATED 23/6/2020 ISSUED BY THE PROFESSOR & HEAD, DEPARTMENT OF PHYSICS, CUSAT

EXHIBIT P23 TRUE COPY OF THE NOTICE NO.SOE/B3/118/2009/VOL.V DATED 11/7/2018 ISSUED BY THE 3RD SEMESTER STUDENTS.

EXHIBIT P23A TRUE COPY OF THE NOTICE /NO.SOE/B3/118/2009/VOL.V DATED11/7/2018 ISSUED TO 5TH SEMESTER STUDENTS.

EXHIBIT P23B TRUE COPY OF THE NOTICE WP(C).No.41880 OF 2018(H)

NO.SOE/B3/118/2009/VOL.V DATED 11/7/2018 ISSUED TO 7TH SEMESTER STUDENTS.

EXHIBIT P24 TRUE COPY OF THE RELEVANT PAGES OF THE REGULATIONS FOR THE AWARD OF PH.D. DEGREE OF THE RESPONDENT UNIVERSITY

EXHIBIT P25 TRUE COPY OF THE FORM E (APPLICATION FOR PH.D.RELATED CERTIFICATES

EXHIBIT P26 TRUE COPY OF THE COMMUNICATION NO.AC.A3/REFUND /3/2014-15 DATED 31/8/2018 ISSUED BY THE REGISTRAR TO THE HOD OF THE RESPONDENT UNIVERSITY

EXHIBIT P27 TRUE COPY OF THE COMMUNICATION NO.AD.A1/101/ESTABLISHMENT/2018 DATED 25/9/2019 ISSUED BY THE UNIVERSITY TO THE PETITIONER

EXHIBIT P28 TRUE COPY OF THE REQUEST COMMUNICATION DATED 30/9/2019 ISSUED BY THE PETITIONER TO THE REGISTRAR

EXHIBIT P29 TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE MEETING CONTAINING ITEM NO.670.29 HELD ON 23/11/2019

PETITIONER'S EXHIBITS

EXHIBIT R1(D) TRUE COPY ORDER NO.CUSAT/AD.(A).A1560/2020

DATED 22.02.2020