Dr.A.Lakshmanaswamy vs Kerala University Of Health ...
2021 Latest Caselaw 5870 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

          THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

  THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942

                  WP(C).No.19352 OF 2020(T)

PETITIONER :-

            DR.A.LAKSHMANASWAMY, AGED 54 YEARS
            S/O.B.ARUCHAMY, A-57/1. D COLONY, JOTHI NAGR,
            POLLACHI, COIMBATORE, TAMILNADU - 642 001
            NOW WORKING AS ASSOCIATE PROFESSOR IN PEDIATRICS,
            COIMBATORE MEDICAL COLLEGE, COIMBATORE,
            TAMILNADU, PIN - 641 018.

            BY ADVS.
            SRI.T.K.VIPINDAS
            SRI.K.V.SREE VINAYAKAN
            SRI.K.M.MUHAMMED HUSSAIN
            SRI.COLIN ALEX

RESPONDENTS :-

      1     KERALA UNIVERSITY OF HEALTH SCIENCES (KUHS),
            MEDICAL COLLEGE P.O., THRISSUR - 680 596,
            REPRESENTED BY ITS REGISTRAR.

      2     THE VICE CHANCELLOR,
            KERALA UNIVERSITY OF HEALTH SCIENCES (KUHS),
            MEDICAL COLLEGE P.O., THRISSUR - 680 596.

      3     THE GOVERNING COUNCIL,
            KERALA UNIVERSITY OF HEALTH SCIENCES (KUHS),
            MEDICAL COLLEGE P.O., THRISSUR - 680 596.
            REPRESENTED BY VICE CHANCELLOR.

      4     THE CONTROLLKER OF EXAMINATIONS,
            KERALA UNIVERSITY OF HEALTH SCIENCES (KUHS),
            MEDICAL COLLEGE P.O., THRISSUR - 680 596.

      5     THE BOARD OF EXAMINATIONS,
            KERALA UNIVERSITY OF HEALTH SCENCES (KUHS),
            MEDICAL COLLEGE P.O., THRISSUR - 680 596.
            REPRESENTED BY ITS CHAIRMAN,

      6     FACT FINDING COMMITTEE,
            KERALA UNIVERSITY OF HEALTH SCIENCES (KUHS),
            MEDICAL COLLEGE P.O., THRISSUR - 680 596.
            REP. BY ITS CHAIRMAN, PRO VICE CHANCELLOR.
 WP(C).No.19352 OF 2020(T)

                              -: 2 :-


       7      SREE GOKULAM MEDICAL COLLEGE
              VENJARAMMOODU, THIRUVANANTHAPURAM - 695 607,
              REPRESENTED BY ITS PRINCIPAL.

       8      DR.LALITHA KAILAS,
              PROFESSOR IN PEDIATRICS,
              SREE GOKULAM MEDICAL COLLEGE, THIRUVANANTHAPURAM,
              RESIDENCE AT BADRA T.C.4/1357 ARA 106 AMBALAMUKKU
              THIRUVANANTHAPURAM - 695 005.

       9      DR.N.SREEDEVI,
              PROFESSOR IN PEDIATRICS,
              SREE GOKULAM MEDICAL COLLEGE, THIRUVANANTHAPURAM,
              RESIDING AT TCX-848, KRISHNAMANGALAM, MANNAMTHALA,
              THIRUVANANTHAPURAM - 695 015.

       10     DR.P.CHANDRAKALA,
              ASSOCIATE PROFESSOR IN PEDIATRICS,
              KEMPEGOWDA INSTITUTE OF MEDICAL SCIENCES (KIMS),
              RESIDING AT 333 ANICHANDRA 5TH MAIN,
              VINAYAKA LAYOUT, NAGARBHAVI, IIND STAGE,
              BANGALORE, KARNATAKA - 560 072.

       11     DR.ANURADHA KRISHNADAS NAIR,
              4B, HEERA GOLDEN HILLS, KANAKANAGAR, KANAKAKUNNU,
              KOWDIAR, THIRUVANANTHAPURAM - 695 003.

              R1-R6 BY SRI.P.SREEKUMAR, SC


     THIS  WRIT   PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11-02-2021, THE COURT ON 18-02-2021 DELIVERED THE FOLLOWING:
 WP(C).No.19352 OF 2020(T)

                                -: 3 :-


                            JUDGMENT

Dated this the 18th day of February, 2021

Heard all sides.

2. The petitioner, who is an Assistant Professor in Pediatrics

at the Coimbatore Medical College was appointed as external

examiner for MD Pediatrics in the 7th respondent college by the 1st

respondent University. It is stated that after the examination, the

8th and 9th respondents sent Ext.P2 complaint on 26.6.2017 against

the petitioner. It is stated that on 1.7.2017, the 11th respondent, a

failed student had also made a complaint against the 8 th

respondent. While so, by Ext.P4 communication dated 5.7.2017,

the petitioner was forwarded a copy of the complaint preferred by

respondent Nos.8 and 9 and was required to submit his explanation

thereto. The petitioner submitted Ext.P5 reply stating that he is

unable to submit proper explanation without being served with the

particulars of the complaint. Thereafter, the 8 th respondent had

submitted a reply to the complaint filed by the 11 th respondent.

The petitioner again made request before the 4th respondent for

details of the complaints made by any of the students, but, no

details were forthcoming.

3. It is stated that thereafter, a fact finding committee was

appointed by the University to enquire into the complaints filed by WP(C).No.19352 OF 2020(T)

both the internal examiners and the failed student. Hearing notice

was issued to the petitioner as Ext.P16. It is stated that the

petitioner had sought an adjournment of the hearing since there

was spread of dengue fever in Tamil Nadu and the petitioner could

not stay away from his college. However, it is stated that the 6 th

respondent conducted the hearing on the same date and recorded

the statements of respondents 8 to 11. Thereafter, on the basis of

the statements recorded as well as the replies submitted by the

petitioner at various times to the notices issued to him, it was

concluded that the petitioner had committed misconduct by

disclosing the result to the failed student and that he had been

spreading false allegations and defamatory propaganda against the

internal examiners, the college and the University. Ext.P18 report

was submitted by the committee. The petitioner again submitted

Exts.P19 and P20 letters intimating his willingness to attend the

hearing if he is heard in the matter. Thereafter, without any

further hearing, the 5th respondent discussed the report of the 6th

respondent and decided to debar the petitioner from examination

duties and other assignments, by Ext.P21. A further decision was

taken to inform the petitioner's college as well as the Government

of the decision taken in Ext.P21. An order was passed

implementing the decision and the same was intimated to the WP(C).No.19352 OF 2020(T)

petitioner by Ext.P24. It is submitted that the petitioner had

submitted several requests under the Right to Information Act for

the details of complaints, if any, submitted against the petitioner

and the details of the complainants. It is stated that the replies

given thereto would show that there were no complaints

whatsoever as against the petitioner at the relevant time.

4. The learned counsel for the petitioner submits that the

adverse findings against the petitioner in Exts.P18, P21, P23 and

P24 are recorded without putting the petitioner on notice and

without hearing him, which is per se against the principles of

natural justice. It is submitted that there was absolutely no

material whatsoever to conclude that the petitioner had been

spreading false allegations and defamatory propaganda against the

internal examiners, college and the University. It is further

submitted that the impugned report and the proceedings are in

violation of the right to human dignity guaranteed under Article 21

of the Constitution of India. It is further submitted that in the

event any acts as stated in the complaints had been occasioned

from the petitioner's part, the UGC (Prevention, Prohibition and

Redressal of Sexual Harassment of Women Employees and

Students in Higher Educational Institutions) Regulations, 2015

would become operative and the University and the college would WP(C).No.19352 OF 2020(T)

then be duty bound to take action against such perpetrators after

obtaining proper complaints from the students. It is, therefore,

contended that the entire action taken by the respondents is

violative of the petitioner's fundamental rights as also violative of

the principles of natural justice and is, therefore, liable to be set

aside.

5. A detailed statement has been placed on record by

respondents 1 to 6. It is submitted by the learned Standing

Counsel appearing for the respondents, at the outset, that what is

being considered here is only a debarment of the petitioner from

duties of an external examiner and no civil consequences are

visited on the petitioner due to the orders now impugned in this

writ petition. It is stated that the very finding that the petitioner

had disclosed the results of a student to her directly before the

results were declared would by itself be enough to debar the

petitioner from any further duties as an external examiner. It is

stated that even if all the other allegations are given a go by, the

fact that the 11th respondent was made aware of her results and

that this had led to a confrontation between the 11 th respondent

and the 8th respondent would itself be a good ground to justify the

action taken against the petitioner. It is stated that not only the

internal examiners had raised complaints against the petitioner's WP(C).No.19352 OF 2020(T)

behaviour after the conduct of the examinations, but also the 10 th

respondent, who was another external examiner had also clearly

supported the case against the petitioner and had stated that his

conduct was improper.

6. It is submitted that ample opportunity has been given to

the petitioner to defend his case. But, he refused to appear before

the committee in spite of notices issued to him. It is submitted that

since the question was only with regard to debarring and since all

the other persons involved were available during the hearing

conducted on 17.10.2017, it was found to be impractical to await

the hearing of the petitioner on a different date. It is submitted

that a reading of Ext.P18 would clearly show that the allegations

against the petitioner were clearly substantiated by the statements

given by the internal examiners as well as the external examiner

and that all the contentions of the petitioner had also been

considered in the same.

7. I have considered the contentions advanced at

considerable length. The principal allegations raised by the

petitioner are with regard to the lack of opportunity given to him to

substantiate his contentions in the enquiry, which led to Ext.P18. I

find that due notice had been served on the petitioner. The internal

examiners as well as the external examiner had raised complaints WP(C).No.19352 OF 2020(T)

against the conduct of the petitioner. What was inflicted on the

petitioner was only debarring from examination duties, which does

not amount to infliction of any punishment against the petitioner.

The petitioner had been given a copy of the complaint submitted by

the internal examiners and had been required to submit his

explanation. The petitioner's reply was Ext.P5. By Ext.P7, the

petitioner requested copies of the complaint letters and other

evidence of the students who attended the discussion held by him.

He was informed that there were no written complaints and that it

was on the basis of the complaints submitted by the internal

examiners that the issue was being considered.

8. The petitioner, thereafter, submitted Ext.P9, which is a

detailed explanation. Exts.P10, P11, P15, etc. are detailed

representations submitted by the petitioner. The contents of those

explanations are primarily accusations against the internal

examiners. By Ext.P16 dated 4.10.2017, the petitioner was

specifically intimated that a fact finding committee headed by the

Pro-Vice Chancellor had been constituted with regard to all

allegations of irregularity and the petitioner was required to attend

a hearing on 11 a.m. on 17.10.2017. The petitioner submitted

Ext.P17 stating that he was not in a position to attend the hearing

and requesting to fix a date after confirming his availability. It is, WP(C).No.19352 OF 2020(T)

thereafter, that the hearing was conducted on 17.10.2017 and

Ext.P18 report was generated.

9. It appears from Ext.P18 that apart from the statements

of the internal examiners, the statements of the 10 th respondent,

who was an external examiner as well as the 11 th respondent, who

was the student involved were also recorded by the fact finding

committee. The contentions of the petitioner in his e-mails dated

11.7.2017, 12.7.2017, 18.7.2017, 22.8.2017, 24.8.2017, etc. have

also been considered in Ext.P18. Thereafter, the petitioner

informed the respondents that he was free on 10.11.2017 and

13.11.2017 and that he can attend the hearing on either of the said

dates. However, it is evident that by the time the hearing had been

concluded and a report had been sent to the University and

Ext.P21 decision was taken in the meeting of the Board of

Examinations held on 9.3.2018. Exts.P23 and P24 are the resultant

orders passed.

10. Having considered the contentions advanced and

considering the nature and the tone of the communications

between the petitioner and the respondents, I am of the opinion

that since what has been imposed is only a debarring from the

examination duties, which has no serious consequences on the

petitioner, the contention that the petitioner was entitled to be WP(C).No.19352 OF 2020(T)

given all the documents on which the decision was taken cannot be

accepted in view of the fact that it is not a disciplinary proceeding

of any nature which has been initiated against the petitioner. The

petitioner had been given ample opportunity to state his case. The

petitioner was also given due intimation of the hearing to be

conducted by the fact finding committee on 17.10.2017. He

refused to attend the same and stated that a later date would have

to be fixed at his convenience. A person is entitled to a notice

when an action which is likely to be against his interest is being

proposed. However, a notice and an opportunity for hearing does

not include any right on the petitioner to insist that hearing will be

conducted at his convenience. However, I find from Ext.P18 that

the contentions of the petitioner have been considered by the fact

finding committee before Ext.P18 was submitted. It was not only

on account of the allegations raised by the internal examiners, but

also on the specific statements of an external examiner as well as a

student that the fact finding committee had come to its conclusion

in Ext.P18.

Having considered the contentions advanced, I find that

there is no room for interference in view of the fact that a detailed

enquiry may not be warranted in the facts and circumstances of the

instant case. However, I find that the requirement in Ext.P21 that WP(C).No.19352 OF 2020(T)

permanent debarring from all University examination duties and all

other possible assignments of the University is to be informed to

the Government may not be warranted in the facts of the case. The

said requirement in Ext.P21 is vacated.

The writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/18.2.2021 WP(C).No.19352 OF 2020(T)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE APPOINTMENT ORDER DATED 14.06.2017.

EXHIBIT P2 THE TRUE COPY OF THE COMPLAINT FILED BY THE 8TH AND 9TH RESPONDENT BEFORE THE 4TH RESPONDENT DATED 26.6.2017.

EXHIBIT P3 THE TRUE COPY OF THE COMPLAINT FILED BY THE 11TH RESPONDENT BEFORE THE 4TH RESPONDENT DATED 01.07.2017.

EXHIBIT P4 THE TRUE COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER DATED 05.07.2017.

EXHIBIT P5 THE TRUE COPY OF THE REPLY SENT BY THE PETITIONER TO THE 4TH RESPONDENT DATED 11.07.2017.

EXHIBIT P6 THE TRUE COPY OF THE E-MAIL COVERING LETTER AND REPLY SENT BY THE 8TH RESPONDENT TO THE 4TH RESPONDENT DATED 12.07.2017.

EXHIBIT P7 THE TRUE COPY OF THE E-MAIL COVERING LETTER AND LETTER SENT BY THE PETITIONER TO THE 4TH RESPONDENT DATED 18.07.2017.

EXHIBIT P8 THE TRUE COPY OF THE E-MAIL COVERING LETTER AND REMINDER SENT BY THE PETITIONER TO THE 4TH RESPONDENT DATED 08.08.2017.

EXHIBIT P9 THE TRUE COPY OF THE E-MAIL COVERING LETTER AND COMPLAINT SENT BY THE PETITIONER TO THE 4TH RESPONDENT DATED 22.08.2017.

EXHIBIT P10 THE TRUE COPY OF THE E-MAIL COVERING LETTER AND REMINDER SENT BY THE PETITIONER TO THE 4TH RESPONDENT DATED 24.08.2017.

EXHIBIT P11 THE TRUE COPY OF THE COMPLAINT TO THE DR MANOJAN THE MANAGING DIRECTOR OF SREE GOKULAM MEDICAL COLLEGE DATED 26.08.2017.

EXHIBIT P12 THE TRUE COPY OF THE E MAIL COVERING LETTER AND REMINDER SENT BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 05.09.2017.

WP(C).No.19352 OF 2020(T)

EXHIBIT P13 THE TRUE COPY OF THE APPLICATION SEEKING INFORMATION DATED 18.9.2017.

EXHIBIT P13(a) THE TRUE COPY OF THE ANSWER RECEIVED BY THE PETITIONERS COUNSEL AS PER RIGHT TO INFORMATION ACT DATED 10.10.2017.

EXHIBIT P14 THE TRUE COPY OF THE APPLICATION DATED 18.9.2017.

EXHIBIT P14(a) THE TRUE COPY OF THE ANSWER RECEIVED BY THE PETITIONER AS PER RIGHT TO INFORMATION ACT DATED 12.10.2017.

EXHIBIT P15 THE TRUE COPY OF THE COMPLAINT FIELD BY THE PETITIONER BEFORE 2ND RESPONDENT DATED 02.10.2017.

EXHIBIT P16 THE TRUE COPY OF THE HEARING NOTICE ISSUED BY THE 6TH RESPONDENT DATED 4.10. 2017.

EXHIBIT P17 THE TRUE COPY OF THE WINDOW SCREENSHOT AND LETTER DATED 11.10.2017.

EXHIBIT P18 THE TRUE COPY OF THE REPORT OF THE 6TH RESPONDENT COMMITTEE DATED 17.10.2017.

EXHIBIT P19 THE TRUE COPY OF THE WINDOW SCREENSHOT AND LETTER DATED 8.1.2017.

EXHIBIT P20 THE TRUE COPY OF THE WINDOW SCREENSHOT AND LETTER DATED 15.11.2017.

EXHIBIT P21 THE TRUE COPY OF THE MINUTES OF 13TH MEETING OF THE 5TH RESPONDENT DATED 9.1.2018.

EXHIBIT P22 THE TRUE COPY OF THE MINUTES OF 14TH MEETING OF THE 3RD RESPONDENT DATED 9.3.2018.

EXHIBIT P23 THE TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT UNIVERSITY DATED 23.3.2018.

EXHIBIT P24 THE TRUE COPY OF THE COMMUNICATION ISSUED BY THE 4TH RESPONDENT DATED 5.4.2018.

EXHIBIT P25 THE TRUE COPY OF THE APPLICATION DATED 18.6.2018 AS PER THE PROVISIONS OF RIGHT TO INFORMATION ACT.

EXHIBIT P25(a) THE TRUE COPY OF THE REPLY ISSUED AS PER THE PROVISIONS OF RIGHT TO INFORMATION ACT DATED 17.7.2018.

WP(C).No.19352 OF 2020(T)

EXHIBIT P26 THE TRUE COPY OF THE APPLICATION DATED 20.6.2018 ISSUED AS PER THE PROVISIONS OF RIGHT TO INFORMATION ACT.

EXHIBIT P26(a) THE TRUE COPY OF THE REPLY ISSUED AS PER THE PROVISIONS OF RIGHT TO INFORMATION ACT DATED 24.7.2018.

EXHIBIT P27 THE TRUE COPY OF THE ORDER OF THE HUMAN RIGHTS COMMISSION DATED 14.11.2018 WHICH WAS COMMUNICATED TO THE PETITIONER ON 13.12.2019.

EXHIBIT P28 THE TRUE COPY OF THE REPORT SUBMITTED BY THE 1ST RESPONDENT TO THE CHANCELLOR DATED 24.6.2019.

EXHIBIT P29 THE TRUE COPY OF THE APPEAL DATED 11.2.2019 FILED AS PER THE PROVISIONS OF RIGHT TO INFORMATION ACT.

EXHIBIT P29(a) THE TRUE COPY OF THE REPLY GIVEN BY THE UNIVERSITY AS PER THE PROVISIONS, OF RIGHT TO INFORMATION ACT DATED 5.3.2019.

EXHIBIT P30 THE TRUE COPY OF THE APPEAL DATED 1.2.2019 FILED AS PER THE PROVISIONS OF RIGHT TO INFORMATION ACT.

EXHIBIT P30(a) THE TRUE COPY OF THE REPLY GIVEN BY THE UNIVERSITY AS PER THE PROVISIONS OF RIGHT TO INFORMATION ACT DATED 5.3.2019.

EXHIBIT P31 THE TRUE COPY OF THE APPEAL DATED 11.2.2019 FILED AS PER THE PROVISIONS OF RIGHT TO INFORMATION ACT.

EXHIBIT P31(a) THE TRUE COPY OF THE REPLY GIVEN BY THE UNIVERSITY AS PER THE PROVISIONS OF RIGHT TO INFORMATION ACT DATED 5.3.2019.

EXHIBIT P32 THE TRUE COPY OF THE APPEAL DATED 11.2.2019 FIELD AS PER THE PROVISIONS OF RIGHT TO INFORMATION ACT.

EXHIBIT P32(a) THE TRUE COPY OF THE REPLY GIVEN BY THE UNIVERSITY AS PER THE PROVISIONS OF RIGHT TO INFORMATION ACT DATED 5.3.2019.

EXHIBIT P33 THE TRUE COPY OF THE APPLICATION DATED 31.3.2019 FILED AS PER THE PROVISIONS OF RIGHT TO INFORMATION ACT.

WP(C).No.19352 OF 2020(T)

EXHIBIT P33(a) THE TRUE COPY OF THE REPLY GIVEN BY THE UNIVERSITY AS PER THE PROVISIONS OF RIGHT TO INFORMATION ACT DATED 2.5.2019.

EXHIBIT P34 THE TRUE COPY OF THE APPLICATION DATED 31.3.2019 FILED AS PER THE PROVISIONS OF RIGHT TO INFORMATION ACT.

EXHIBIT P34(a) THE TRUE COPY OF THE REPLY GIVEN BY THE UNIVERSITY AS PER THE PROVISIONS OF RIGHT TO INFORMATION ACT DATED 2.5.2019.

EXHIBIT P35 THE TRUE COPY OF THE REPLY FILED BY THE 1ST RESPONDENT BEFORE THE 4TH RESPONDENT DATED 29.9.2017.

//TRUE COPY//

P.A. TO JUDGE