Dr.Sajan vs The Cochin University Of Science ...
2021 Latest Caselaw 4795 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

               THE HONOURABLE MR.JUSTICE S.V.BHATTI

                                &

          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

  WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

                        WA.No.237 OF 2021

 AGAINST THE JUDGMENT DATED 18.12.2020 IN WP(C) 17990/2020(W)
                   OF HIGH COURT OF KERALA

APPELLANT/ PETITIONER :

              DR.SAJAN,
              AGED 62 YEARS,
              S/O.(LATE) K.V.KURIAN,
              HOUSE NO.122, KARYAKULAM,
              MATHER NAGAR, CHANGAMPUZHA NAGAR P.O.,
              KOCHI - 682 033.

              BY ADVS.
              SRI.K.JAJU BABU (SR.)
              SRI.MANU GOVIND
              SHRI.AYESHA MARIA JOHN


RESPONDENTS/ RESPONDENTS :


      1       THE COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY
              (CUSAT),
              COCHIN UNIVERSITY P.O., SOUTH KALAMASSERY,
              ERNAKULAM - 682 022
              REPRESENTED BY THE REGISTRAR.

      2       THE REGISTRAR,
              COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
              COCHIN UNIVERSITY P.O., SOUTH KALAMASSERY,
              ERNAKULAM - 682 022.

              R1-R2 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY


     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING :
 WA.No.237 OF 2021

                                   2




                             JUDGMENT

Dated this the 10th day of February 2021

Bechu Kurian Thomas, J.

The enquiry officer appointed to conduct disciplinary

proceedings against the appellant found, by Ext.P10, that the enquiry

against the appellant was not maintainable on a technical reason.

The technical reason was that the date of initiation/ commencement

of disciplinary proceedings against the appellant was after his

retirement. However, by resolution dated 05.06.2020, the Syndicate

of the University resolved to conduct a fresh enquiry against the

appellant, ignoring the order passed by the enquiry officer. Since

the earlier enquiry officer expressed her dissent to continue, a new

enquiry officer was appointed by Ext.P11.

2. The appellant invoked the jurisdiction under Article 226

of the Constitution of India challenging the continuation of the

disciplinary proceedings subsequent to Ext.P10 order of the enquiry

officer, inter-alia that after his retirement, disciplinary proceedings WA.No.237 OF 2021

cannot be initiated apart from the ground of violation of principles of

natural justice in issuing Ext.P11 order and also that, without varying

Ext.P10 legally, a fresh enquiry is not legally permissible.

3. The learned Single Judge by the impugned judgment

held that in the facts of the case, initiation/ continuation of

disciplinary proceeding does not suffer from any arbitrariness or

irrationality and placed reliance upon Rule 3 of Part III of Kerala

Service Rules, to come to the conclusion that since suspension was

prior to the retirement, the same amounts to initiation of enquiry.

4. We have heard Senior Advocate Jaju Babu as

instructed by Adv.Ayesha Mariya John on behalf of the appellant and

Adv.S.P.Aravindakshan Pillay, the learned Standing Counsel for the

Cochin University.

5. Appellant had challenged his suspension in W.P.(C)

No.37616/2017. By judgment dated 15.12.2017, the learned Single

Judge disposed off the said writ petition after observing that, in the

facts of the case, the disciplinary proceedings ought to be initiated

and concluded at the earliest. A time limit was stipulated for

completion of the disciplinary proceedings as 30.04.2018. In the

appeal preferred by the present appellant, as W.A.No.194 of 2018, WA.No.237 OF 2021

the Division Bench of this Court by judgment dated 23.03.2018

refused to interfere with the discretion of the competent authority of

the University to initiate disciplinary proceedings and observed that

the University will be entitled to pursue and conclude the action

against the appellant exclusively within the procedural mandate of

the University Act and its statute.

6. Pursuant to the judgment noted above, and after

retirement of appellant a memo of charges was served on the

appellant on 20.07.2018 - consequent to which a retired District

Judge was appointed as the enquiry officer. On the basis of a

preliminary objection, after taking evidence of PWs 1 and 2 the

enquiry officer held that the enquiry was not maintainable, since the

appellant had retired from service by then. The Syndicate of the

University refused to accept the said report of the enquiry officer

without notice to the appellant. The learned Single Judge while

refusing to interfere with the challenge on the enquiry, presently

initiated, referred to Rule 3 of Part III of KSR and held that the

enquiry proceedings shall be deemed to have been instituted on the

date on which the employee was placed under suspension by virtue

of explanation to the above mentioned Rules.

WA.No.237 OF 2021

7. The learned Senior counsel appearing on behalf of the

appellant submitted that Rule 3 of Part III of KSR does not apply to

the appellant, since no pecuniary loss was caused to the

Government, as even the memo of charges does not refer to any

such pecuniary loss at all. The learned Senior Counsel also

submitted that the enquiry proceedings is a clear instance of

victimisation and the appellant is being subjected to great prejudice

and hardship for no reason.

8. Even though we find some force in the submission of

the learned counsel for the appellant regarding the applicability of

Rule 3 of Part IIIof KSR, since the disciplinary proceedings pursuant

to Ext.P10 have already been initiated, we are of the view that

interference with such a disciplinary proceedings may not be

appropriate at this stage. If all questions raised by the appellant in

the writ petition as well as in this writ appeal can be left open for

consideration at the appropriate stage before the appropriate forum,

the appellant need not have any grievance. The appellant will not be

left remediless if he is given the liberty to raise all contentions before

the appropriate authority at the appropriate stage. Interference with

disciplinary proceedings at the threshold, by invoking the jurisdiction

under Article 226 or 227 have been deprecated by this Court as well WA.No.237 OF 2021

as the Supreme Court repeatedly.

It is submitted by the learned counsel for the appellant

that even though the appellant had retired on 30.04.2018, the

respondents have purposefully delayed releasing the entire retiral

benefits and if disciplinary proceedings continue endlessly, the same

would hang as a Damocle's sword over the head of the appellant, for

years to come. Taking note of the above submissions, we are of the

view that the enquiry proceedings against the appellant as initiated

under Ext.P12 must be completed in a time bound manner, at any

rate, not later than six weeks from 20.02.2021. As mentioned

earlier, legal objections available to the appellant are left open for

consideration at appropriate stage as the enquiry proceeds.

Writ Appeal is dismissed with observations.

Sd/-

S.V.BHATTI, JUDGE

Sd/-

BECHU KURIAN THOMAS, JUDGE

RKM