Dr. Bindu George vs Aquinas College
2021 Latest Caselaw 6535 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

              THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

 WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA, 1942

                      WP(C).No.28570 OF 2020(U)

PETITIONER:

               DR. BINDU GEORGE
               AGED 52 YEARS
               HEAD OF DEPARTMENT, DEPARTMENT OF ECONOMICS (UNDER
               ORDER OF SUSPENSION), AQUINAS COLLEGE, EDAKOCHI,
               COCHIN - 682 010.

               BY ADVS.
               SRI.P.C.SASIDHARAN
               DR.ABRAHAM P.MEACHINKARA

RESPONDENTS:

      1        AQUINAS COLLEGE
               EDACOCHIN, COCHIN - 682 010, REPESENTED BY THE
               MANAGER.

      2        THE EDUCATIONAL AGENCY/DISCIPINARY AUTHORITY
               AQUINAS COLLEGE, EDACOCHIN, COCHIN - 682 010.

      3        MAHATMA GANDHI UNIVERSITY
               REPRESENTED BY ITS REGISTRAR,
               PRIYADARSHINI HILLS, KOTTAYAM - 686 560.

      4        FR.JOSEPH CHIRAMMEL
               MANAGER, AQUINAS COLLEGE, EDACOCHIN,
               COCHIN - 682 010.

      5      PRASUN S.,
             ADVOCATE (INQUIRY AUTHORITY IN THE MATTER OF
             INQUIRY INTO THE CHARGES AGAINST DR.BINDU GEORGE),
             5TH FLOOR, EMPIRE BUILDINGS, OPP. CENTRAL POLICE
             STATION, NEAR HIGH COURT OF KERALA,
             KOCHI - 682 018.
             R1-2, R4 BY ADV. SRI.ABRAHAM VAKKANAL (SR.)
             R1-2, R4 BY ADV. SMT.VINEETHA SUSAN THOMAS
             R1-2, R4 BY ADV. SRI.DIJO SEBASTIAN
             R1-2, R4 BY ADV. SRI.MIDHUN MOHAN
             R3 BY ADV. SRI.ASOK M.CHERIAN
             R5 BY ADV. SRI.PAUL MATHEW (PERUMPILLIL)
     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-
01-2021, THE COURT ON 24-02-2021 DELIVERED THE FOLLOWING:
 W.P.(C).No.28570/2020
                                     2


                               JUDGMENT

Dated this the 24th day of February 2021

1. The petitioner was working as Professor and Head of the

Department of Economics in the 1 st respondent's college. She

was issued with Exhibit P1 show cause notice on 6.3.2020. The

petitioner submitted Exhibit P2 reply denying the allegations.

It is stated that the petitioner had submitted Exhibit P3

complaint on 5.3.2020 before the Principal stating that

Sri.Vijo M Joy had abused her on 28.2.2020. It was with

regard to the very same incident that Exhibit P1 was issued.

The reply was considered and the petitioner was issued with

Exhibit P4 letter dated 25.5.2020 by the Manager expressing

disapproval of her impolite ways and threatening disciplinary

action if the petitioner does not behave with respect to college

authorities, fellow teachers, staff and students in future. It

was stated in Exhibit P4 that correspondence in the matter

was closed. On the same day, the petitioner forwarded a

further reply as Exhibit P5, seeking a copy of the complaint

preferred by Viju M Joy and complaining of the stigmatic

findings in Exhibit P5. Thereafter, Exhibit P6 order was passed W.P.(C).No.28570/2020

on 2.7.2020 recalling the letter dated 25.5.2020 and deciding

to take de novo proceedings against the petitioner.

2. The petitioner was placed under suspension with effect from

2.7.2020, pending enquiry. The petitioner approached this

Court filing W.P.(C).No.13641/2020. Though this Court did not

interfere with the order of suspension, there was a direction to

finalise the disciplinary proceedings within one month. The

judgment of this Court declining interference with the order of

suspension was upheld by a Division Bench as well.

Thereafter, an IA was moved for extension of time for

completing the disciplinary proceedings and Exhibit P7 order

was passed by this Court extending the time upto 4.10.2020.

The petitioner was directed to be reinstated on 5.10.2020. It

is submitted that Exhibit P8 memo of charges dated 30.7.2020

was issued to the petitioner by the 4 th respondent on 4.8.2020.

The petitioner submitted Exhibit P9 explanation. An enquiry

officer was appointed by Exhibit P10. Thereafter, eight

witnesses were examined in the enquiry and the 4 th

respondent, who is the Manager of the college and the W.P.(C).No.28570/2020

disciplinary authority was the first witness. The petitioner

also examined five witnesses. By Exhibit P11 dated 7.12.2020,

the petitioner has now been required to show cause why the

penalty of compulsory retirement from service shall not be

imposed on her.

3. Exhibit P11 is challenged on the ground that it is completely

illegal on various grounds. It is submitted that the notice has

been issued without forwarding a copy of the enquiry report to

the petitioner. It is submitted that a reading of Exhibit P11

would show that the enquiry report has been accepted without

putting it to the petitioner and a decision has also been taken

to inflict the punishment of compulsory retirement. It is,

therefore, contended that the issuance of the show cause

notice is a farce and an empty formality and that the action of

the respondents is, therefore, clearly vitiated. Further, it is

contended that the Manager, who had assumed the role of the

disciplinary authority and had issued the charge memo to the

petitioner, was himself the 1st witness in the enquiry against

the petitioner and that the said situation vitiates the entire W.P.(C).No.28570/2020

disciplinary proceedings against the petitioner. It is stated

that a reading of Exhibit P8, memo of charges and Exhibit P10

proceedings appointing an enquiry officer would clearly show

that the Manager had acted in his capacity as the disciplinary

authority and that the entire proceedings stood clearly

vitiated. The learned counsel for the petitioner relies on the

decision of the Apex Court in Punjab National Bank and

others v. Kunj Behari Misra [(1998) 7 SCC 84], Rattan Lal

Sharma v. Dr.Hari Ram (Co-education) Higher Secondary

School [(1993) 4 SCC 10], Union of India and another v.

Kunisetty Satyanarayana, [(2006) 12 SCC 28], Mohd.Yunus

Khan v. State of Uttar Pradesh and others [(2010) 10 SCC

539].

4. It is further submitted that the question relating to alternate

remedy is also settled, since the respondent college is a

minority educational institution, the petitioner cannot

approach the tribunal as well. In support of this proposition

the petitioner relies on Manager, St.Josephs Training

College v. University Appellate Tribunal [1980 KLT 67(F.B)] W.P.(C).No.28570/2020

and Lilly Kurian v. University Appellate Tribunal [1997 (1)

KLT 722 SC].

5. A counter affidavit has been placed on record by respondents

1,2 and 4. It is contended that the show cause notice was

issued on the basis of grave charges proved in a detailed

enquiry conducted by an independent officer and the

petitioner has no grievance against the same. It is stated that

the petitioner has an effective alternate remedy under Section

63(6) of the Mahatma Universities Act. In support of the

contention that a writ petition would not be maintainable

when there is an efficacious alternate remedy, the learned

Senior Counsel relies on the decisions of the Apex Court in

Special Director and another v. Mohd.Ghulam Ghouse

and another [(2004) 3 SCC 440], Union of India and

another v. Kunisetty Satyanarayana [(2006) 12 SCC 28]

etc.

6. It is contended that the opportunity to show cause against an

enquiry report is required only where the disciplinary

authority disagrees with the findings in the enquiry report. W.P.(C).No.28570/2020

The decisions in Managing Director, ECIL v. B.Karunakar

[(1993) 4 SCC 727] and Punjab National Bank and others

v. Kunj Behari Misra [(1998) 7 SCC 84], are relied on in

support of this contention.

7. It is submitted that the 4th respondent being a witness in the

enquiry does not vitiate the proceedings because it is the

educational agency as the disciplinary authority that has

accepted the enquiry report and issued Exhibit P11.

8. Further, the learned Senior Counsel also relies on a decision

of a Division Bench of this Court in CRP No.882 of 2005 in

which the decisions relied on by the learned counsel for the

petitioner in Lilly Kurian v. University Appellate Tribunal

[1997 (1) KLT 722 SC and Manager, St.Josephs Training

College v. University Appellate Tribunal [1980 KLT 67(F.B)

had been considered and it was found that an appeal would

be maintainable under Section 63(6) of the Mahatma Gandhi

Universities Act against an order in disciplinary proceedings

passed even by a minority educational institution. W.P.(C).No.28570/2020

9. I have considered the contentions advanced. The initial

contention with regard to maintainability of the writ petition is

being dealt with first. Section 63(6) of the Mahatma Gandhi

Universities Act reads as follows:-

"63. Disciplinary powers of Educational Agency over teachers of Private Colleges.

xxx xxx xxx xxx (6). Any teacher aggrieved by an order imposing on him any of the following penalties, namely:-

xxx xxxx xxx may, within sixty days from the date on which a copy of such order is served on him, appeal to the Appellate Tribunal on any one or more of the following grounds, namely:-

(i). that there is want of good faith in passing the order;

(ii). that the order is intended to victimize the appellant;

(iii). that in passing the order, the educational agency has been guilty or a basic error or violation of the principles of natural justice;

(iv). that the order is not based on any material or is perverse:

Provided that the appellate Tribunal may admit an appeal presented after the expiration of the said period of sixty days if it is satisfied that the appellant had sufficient cause for not presenting the appeal within that period. "

10.A Division Bench of this Court in CRP No.882 of 2015

considered the decisions of the Apex Court and the Full Bench

of this Court as well as the provisions of Section 63(6) of the

Mahatma Gandhi University Act and held as follows:- W.P.(C).No.28570/2020

"Such restriction on the nature of punishments which could be appealed against and the grounds to which that right of appeal is restricted clearly lays down statutory guidance, restrictions and norms for invoking the appellate power and exercise of that appellate power by the Appellate Tribunal. That being so, the vice noted in provisions which give uncanalised and unguided appellate power to the Appellate Tribunals under the University laws ought to stand regulated when a matter before it relates to a linguistic or religious minority entitled to protection under Article 30(1). In our view, such reading down of the provisions in sub-section 7 of section 60 of the Calicut University Act and regulating the exercise of appellate power in cases where the management is an institution belonging to a religious or linguistic minority denomination would reconcile and satisfy the constitutional requirement to enforce relevant statutory provisions in accordance with the Constitution. Such restricted application of sub-section 7 of section 60 of the Calicut University Act would take away, the impairment of the religious and linguistic minority establishments' entitlements under Article 30(1) of the Constitution. This balancing of rights, while applying the scope of appellate jurisdiction under sub-section 7 of section 60 of the Calicut University Act, is necessary to ensure that the teacher, who is also a citizen of India, is not left high and dry, but gets the support of the adjudicatory process through a Tribunal which is nothing but the substitution of a seat of judicial authority. This would facilitate rendering justice between the teacher and the establishment in relation to a dispute, which would otherwise be a service dispute where the teacher should have remedies within the limits of the Constitution and the laws. Therefore, in so far as the provisions in W.P.(C).No.28570/2020

Sub-section 7 of Section 60 of the Calicut University Act not having been declared unconstitutional, void and inoperative by any competent court, we are of the view that the said provision has to be applied and jurisdiction of that Tribunal ought to be regulated to the extent noted above, that is to say, to be in conformity with the restrictions similar to those which are available in Section 63(6) of the Mahatma Gandhi University Act as quoted above."

11.The provision of preferring an appeal, therefore, is

specifically against an order imposing any of the penalties on

any of the four grounds mentioned therein. In the instant

case, the petitioner is not challenging any order imposing

penalty. It is her contention that the show cause notice issued

to her without providing her with a copy of the enquiry report

and deciding to accept the findings in the enquiry and further

deciding to inflict a punishment on her is per se illegal.

12.In a case like the present one where the petitioner has

approached this Court challenging the show cause notice and

where this Court has found it fit to pass an interim order

interdicting further proceedings to say that the petitioner

should wait till an order is passed against her and then

approach the Appellate Tribunal even if there is a clear W.P.(C).No.28570/2020

infraction of the principles of natural justice is a legally

unacceptable proposition.

13.It may be true that the errors alleged by the petitioner in the

conduct of the enquiry even including the allegation that the

4th respondent, who had served the memo of charges on the

petitioner, had figured as a witness in the enquiry against her,

are capable of being raised in a challenge against any order of

penalty which is ultimately issued to the petitioner under

Section 63(6) of the Mahatma Gandhi University Act. However,

since a clear infraction of procedure is alleged by the

petitioner, the said issue is liable to be considered by this

Court. I, therefore, find that the writ petition is maintainable.

14.The Apex Court in Mohammed Ramzan Khan's case had

specifically considered the issue of serving of the copy of the

enquiry report. It was held that the principles of natural

justice involved in the procedure for imposition of penalties

included a proper opportunity to the delinquent employee to

explain his conduct. Therefore, it was held that a copy of the W.P.(C).No.28570/2020

enquiry report was liable to be served on the employee and

the explanations of the delinquent employee to the findings in

the enquiry are liable to be considered before it is accepted. It

is true that the constitutional provisions underwent an

amendment with the Constitution 42 nd amendment. However,

the position that a full opportunity has to be given to the

delinquent employee to explain his conduct before an order of

penalty is imposed remains without change. In ECIL v. B.

Karunakar [(1993) 4 SCC 727] the Apex Court again

considered the issue and held that the employee is entitled to

a full opportunity in the disciplinary proceedings and a copy

of the enquiry report is also to be forwarded to the employee

so as to enable him/her to object to the findings therein.

15.In Punjab National Bank and others v. Kunj Behari

Misra [(1998) 7 SCC 84] it was held in paragraphs 16 as

follows:

"In Karunakar case' the question arose whether after the 42 nd Amendment of the Constitution, when the enquiry officer was other than a disciplinary authority, was the delinquent employee entitled to a copy of the enquiry report of the enquiry officer before the disciplinary authority takes decision on the question of guilt of the delinquent. It W.P.(C).No.28570/2020

was sought to be contended in that case that as the right to show cause against the penalty proposed to be levied had been taken away by the 42nd Amendment, therefore, there was no necessity to give to the delinquent a copy of the enquiry report before the disciplinary authority took the final decision as to whether to impose a penalty or not. Explaining the effect of the 42nd Amendment the Constitution Bench at p.755 observed that: (SCC para 28) "All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges." The Court explained that the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, the enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. It is the second right which was taken away by the 42nd Amendment but the night of the charged officer to receive the report of the enquiry officer was an essential part of the first stage itself."

16.Thereafter after referring to the specific findings in ECIL v.

B. Karunakar case it was held by the Apex Court in

Paragraph 17 as follows:-

"These observations are clearly in tune with the observations in Bimal mar Pandit case quoted earlier and would be applicable at W.P.(C).No.28570/2020

the first stage self. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority."

17.The Apex Court in the decision in Mohd.Yunus Khan v.

State of Uttar Pradesh and others [(2010) 10 SCC 539] had W.P.(C).No.28570/2020

specifically held that the disciplinary authority cannot act

whimsically or arbitrarily in the conduct of disciplinary

proceedings.

18.The contention that no prejudice has been caused by the

petitioner by the non-supply of the enquiry report cannot be

accepted for the reason that disciplinary authority has

obviously decided to accept the report of the enquiry and has

considered the findings therein to quite a great extent. The

petitioner, who does not have a copy of the enquiry report, is

therefore seriously handicapped in asmuch as she is unable to

answer the findings in the enquiry without a copy of the report

made available to her.

19.It is trite law that any rule framed or disciplinary proceedings

initiated by any public/statutory authority is to be in

consonance with the broad principles of compliance with

natural justice and a public servant cannot be inflicted with

punishment at the whims and fancies of the employer. W.P.(C).No.28570/2020

20.In the instant case, the petitioner has specifically raised an

allegation that the copy of the enquiry report was not

forwarded to her. No denial is forthcoming on this point in the

counter affidavit filed on behalf of the respondent as well. A

reading of Exhibit P11 would go to show that the enquiry

report has been considered threadbare by the disciplinary

authority and a decision has been taken to inflict punishment

of compulsory retirement on the petitioner. The wording in

Exhibit P11 is to the effect that the decision to inflict the

punishment is tentative. However, a reading of Exhibit P11 in

its entirety would show that the decision to accept the enquiry

report and the findings recorded therein against the petitioner

is final and that the disciplinary authority has made up its

mind with regard to the fact that the petitioner is guilty. This,

according to me, is not what is contemplated in a show cause

notice to be issued after conduct of an enquiry against the

delinquent officer. The findings in the enquiry ought to be put

to the petitioner and the employee should be given an

opportunity to explain the findings or to contradict them. The

contentions of the employee with regard to any procedural W.P.(C).No.28570/2020

irregularities in the conduct of the enquiry is also a matter

which is liable to be considered by the disciplinary authority

while considering the acceptance of the enquiry report against

the employee. The contention of the learned Senior Counsel

appearing for the respondents that the copy of the enquiry

report is liable to be served on the petitioner only if there is a

proposal to depart from any of the findings in the enquiry, is

completely unacceptable.

21.In the above circumstances, I am of the opinion that the

contention of the respondents that this Court ought not to go

into the legality of the disciplinary proceedings at an

intermediate stage cannot be accepted. It is indeed true that

where a statutory appeal is provided from an order imposing

penalty, all questions with regard to the illegality or

impropriety of the proceedings can be raised in such appeal

and this Court normally would not interfere at the stage of

issuance of a notice to show cause against the proposed

penalty. However, the question of non-supply of the copy of

the enquiry report and the acceptance of the findings in the W.P.(C).No.28570/2020

enquiry without such a report being served on the petitioner,

according to me, is fatal to the proceedings and deserves

intervention of this Court at that stage itself. To permit a

flawed proceedings to go on and to relegate the petitioner to a

statutory appeal without interfering at the stage when the

procedural illegality can be rectified would result in a

miscarriage of justice.

22.In the above view of the matter, I find that Exhibit P11 show

cause notice issued to the petitioner without forwarding a

copy of the enquiry report is legally unsustainable. Exhibit

P11 is set aside. There will be a direction to respondents 1,2

and 4 to serve a copy of the enquiry report on the petitioner

and to require her to submit her explanation on the same. The

petitioner's explanation to the enquiry report shall also be

considered and an appropriate decision shall be taken as to

the legality of the enquiry and the proposed punishment, if

any. Necessary shall be done by the disciplinary authority

within a period of three weeks from the date of receipt of a

copy of this judgment. The petitioner will be free to approach W.P.(C).No.28570/2020

the Appellate Tribunal against any order of penalty imposed

on her. All other contentions of the parties with regard to the

legality of the proceedings are left open.

The writ petition is ordered accordingly.

Sd/-

Anu Sivaraman, Judge

sj APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 06/03/2020.

EXHIBIT P2 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DATED 12/03/2020.

EXHIBIT P3 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER THROUGH EMAIL DATED 05/03/2020.

EXHIBIT P4 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT DATED 25/05/2020.

EXHIBIT P5 TRUE COPY OF THE COMMUNICATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 22/06/2020.

EXHIBIT P6 TRUE COPY OF THE ORDER NO.AC/TS/DP/2020 DATED 2/7/2020 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE ORDER IN I.A.NO.3/2020 IN WP(C) 13641 OF 2020 DATED 30/9/2020.

EXHIBIT P8 TRUE COPY OF THE MEMO OF CHARGES DATED 30/7/2020 ISSUED TO THE PETITIONER ON 4/8/2020.

EXHIBIT P9 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 26/8/2020.

EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS INITIATED BY THE 1ST RESPONDENT DATED 14/9/2020.

EXHIBIT P11 TRUE COPY OF THE SHOW-CAUSE NOTICE ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 7/12/2020.