Kerala High Court
Dr. R.Suresh vs The Chairman on 15 February, 2022
WP(C) NO. 22745 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 15TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943
WP(C) NO. 22745 OF 2021
PETITIONER:
DR. R.SURESH
S/O RAGHAVAN NAIR, INDEEVARAM HOUSE, HOUSE NO.
45/XX/13,AZHOOR ROAD, PATHANAMTHITTA P.O.PIN-689 645
(PRESENTLY RESIDING AT SAI KRUPA, ELANJIMEL
P.O.,CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689 511)
(LECTURER, COMMUNITY MEDICINE, ATHURASRAMAM, N S S
HOMOEO MEDICAL COLLEGE, S PURAM P.O.KURICHY,
KOTTAYAM-686 532)
BY ADVS.
SAJEEV KUMAR K.GOPAL
G.GOPAKUMAR (MAVELIKARA)
RESPONDENTS:
1 THE CHAIRMAN,
ATHURASRAMAM N.S.S. HOMOEO MEDICAL COLLEGE,
ADMINISTRATIVE OFFICE, N.S.S.HEAD OFFICE, PERUNNAI
P.O.,CHANGANACHERY, KOTTAYAM-686 532.
2 THE CONTROLLING OFFICER (PRINCIPAL),
GOVERNMENT HOMOEO MEDICAL COLLEGE, IRANIMUTTOM,
MANACAUD, THIRUVANANTHAPURAM-695 101
3 STATE OF KERALA
REPRESENTED BY THE SECRETARY (AYUSH) HEALTH AND
FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
4 MAHATMA GANDHI UNIVERSITY
REPRESENTED BY ITS REGISTRAR, PRIYADARSINI HILLS
P.O.,KOTTAYAM-685 101
5 KERALA UNIVERSITY OF HEALTH SCIENCES
REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE
P.O.,THRISSUR-680 596.
WP(C) NO. 22745 OF 2021 2
BY ADVS.
S.P.ARAVINDAKSHAN PILLAY
N.SANTHA
V.VARGHESE
S.A.ANAND
PETER JOSE CHRISTO
SRI P SREEKUMAR, SC
SRI SURIN GEORGE IPE, SC
SMT SURYA BINOY, SR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 15.02.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 22745 OF 2021 3
"CR"
JUDGMENT
Whether the imposition of penalty by way of reduction to a lower rank in
the seniority list of a teacher of a private college as per the provisions of
Chapter 45 of the Mahatma Gandhi University Statutes, 1997, (hereinafter
referred to as 'MGU Statutes, 1997') would be a permanent one or whether
the same would be only as one for a period of six months. While the petitioner
asserts that the reduction to a lower rank can only be for six months, the
University contends otherwise. This is the question that needs a resolution.
2. A thumbnail sketch of the facts involved are as under:
While working as a Tutor in the Athurasramam NSS Homeo Medical
College, disciplinary proceedings were initiated against the petitioner for falsely
designating himself as a Professor and Head of the Department of Community
Medicine of the College despite the fact that he was only a Tutor. Among
other allegations, he is stated to have produced a forged document to gain
illegible promotion. A memo of charges was issued on 28.5.2009 and after
complying with the formalities, an enquiry officer was appointed. The enquiry
officer found the petitioner guilty of all misconduct. Later, the explanation
offered by the petitioner was rejected and the disciplinary authority decided to
accept the findings of the enquiry officer. The disciplinary authority later
issued an order dated 18.8.2010 confirming the provisional decision to dismiss
the petitioner from service with immediate effect. The petitioner invoked the
appellate remedy and approached the University Appellate Tribunal. By order
dated 30.1.2011, the Tribunal after evaluation of the facts and circumstances,
held that the punishment of dismissal was disproportionate and reduced the
same to compulsory retirement from service as envisaged in section 63 (6)
(ccc) of the Mahatma Gandhi University Act, 1997 ('the Act' for short). The
order passed by the Tribunal was taken up before this Court and by Ext.P10
judgment, this Court took the view that considering the nature of allegations,
the punishment of dismissal which was reduced to compulsory retirement by
the Tribunal was disproportionate and the matter was remitted back to the
disciplinary authority with liberty to impose any of the punishment as provided
in Section 63(6)(a), (b) or (c) of the Act among the five charges levelled
against the petitioner.
3. The petitioner contends that in obedience to the directions issued
by this Court, the 1st respondent reinstated him in service. The matter was
however taken up by the petitioner before the Hon'ble Supreme Court by
preferring SLP (Civil) No.3247/2015. While the matter was pending before the
Hon'ble Supreme Court, the 1st respondent by proceedings dated 4.11.2014
imposed fresh punishment under Section 63 (6) (c) of the Act by reduction of
rank in the seniority as junior most Lecturer in the Department of Community
Medicine in the college. It was also ordered as per Ext.P12 proceedings that
the petitioner shall not be entitled to get back wages during the period from
2010 to 2014 since he has not been fully exonerated from the charges framed
against him in the enquiry. Later, by Ext.P13 order dated 9.12.2014, the
management proceeded to confirm the decision to regularize the period of
absence of Dr. R. Suresh from 26.8.2010 to 15.10.2014 as a duty only for the
limited purpose of pension by treating the period of absence from 26.8.2010
to 15.10.2014 as Leave Without Allowance in view of Rule 56(5) r/w. Rule
88(1)(a) of Part I of Kerala Service Rules r/w. Statute 42 of the Mahatma
Gandhi University First Statute. In view of Exts. P12 and P13, the Special
Leave Petition filed by the petitioner was disposed of by Ext.P14 order dated
20.2.2015 with liberty to the petitioner to work out his remedy as regards the
denial of back wages in accordance with the law. Later, based on a review
petition filed by the petitioner, Ext.P15 order was passed leaving open the
right of the petitioner to challenge the order of punishment in accordance with
the law.
4. Being aggrieved by the order reducing the rank and in denying the
back wages, the petitioner preferred University Appeal No.8 of 2016 before the
University Appellate Tribunal. The Tribunal by Ext.P16 order evaluated the
entire facts and circumstances and came to the conclusion that the reduction
to a lower rank in the seniority list was not liable to be interfered with.
However, the respondents were directed to pay ⅗ portion of the entire back
wages to the petitioner herein. The petitioner challenged the order passed by
the University Tribunal before this Court by preferring C.R.P. (Uty)
No.256/2017. A Division Bench of this Court, after considering the facts and
circumstances, passed Ext.P17 order observing that the petitioner has not
made out any case for interfering with the order passed by the Tribunal.
Though the order was challenged before the Apex Court, the Special Leave
Petition filed by the petitioner was rejected.
5. The petitioner contends that the respondents have imposed the
punishment to a lower rank in terms of Statute No.73 in Chapter 45 of the
MGU Statutes, 1997'. According to the petitioner, the punishment of reduction
to a lower rank in the seniority list cannot be of a permanent nature and it can
only be for a period of six months at the most. In the said circumstances, the
petitioner approached the 1st respondent and submitted Ext.P18
representation seeking to restore the seniority which he was holding at the
time of imposition of the punishment with effect from 4.5.2015, the date on
which the period of six months from the date of the order of punishment
imposed as per Ext.P12 was completed. When no action was taken, Ext.P19
representation was submitted. However, the respondents did not pass any
orders. Left with no alternative, the petitioner approached this Court and
pursuant to Ext.P21 judgment, the 1st respondent considered the
representation and passed Ext.P22 order rejecting the request. The 1st
respondent took the view that the reduction to a lower rank in the seniority list
shall be permanent. To hold as aforesaid, the 1st respondent relied on Statute
No.35 of Chapter 4 of the MGU Statutes, 1997. According to the petitioner,
Statue No.35 of Chapter 4 of the MGU Statutes, 1997 would not apply to the
petitioner as the said provision pertains to the terms and conditions of service
of the non-teaching staff of the University other than University teachers. It is
on these contentions that the petitioner has approached this Court seeking the
following reliefs:
(i) issue a writ of certiorari or other appropriate writs, directions or orders
calling for the records leading to Ext.P22 and quash the same;
(ii) Issue a writ of mandamus or other appropriate writs, directions or orders
directing the 1st respondent to restore the seniority of the petitioner to
the original position which the petitioner was holding at the time of
imposition of punishment through Ext.P12 and give all consequential
benefits including promotion to the petitioner forthwith;
(iii) Declare that as long as no period is specified while imposing punishment
of reduction in lower rank in Ext.P12, then the period can only be six
months and after that the petitioner is entitled to be promoted to the
original post which he was holding at the time of imposition of
punishment.
6. A counter affidavit has been filed by the 1st respondent. It is
stated that it was by Ext.P12 order that the penalty of reduction of rank in the
seniority list as junior most tutor (now redesignated as a Lecturer) in the
Department of Community Medicine in the college was imposed on the
petitioner. It is contended that Chapter 45 Statute 73 of the MGU Statutes,
1997 does not contain a provision as contended by the petitioner to limit the
period of reduction to a lower rank to six months. It is further contended that
the 1st respondent, by an inadvertent error had quoted Statute 35B in Chapter
4 of Part III of MGU Statutes 1997, in Ext.P22 order. This provision is
applicable only to non-teaching staff and not to the petitioner, who is working
as a tutor. It is further contended that the reliance placed by the petitioner on
Rule 11 of the Kerala Civil Services (Classification, Control and Appeal) Rules,
1960 will not come to his assistance as the said provision also says that in
case of reduction of rank in the seniority list, such reduction shall be
permanent.
7. I have heard the submissions of Sri. Sajeevkumar K Gopal, the
learned counsel appearing for the petitioner and Sri. Peter Jose Christo, who
advanced arguments for and on behalf of the respondents.
8. From the pleadings and submissions made by the learned counsel,
it is apparent that the contention of the petitioner is that the absence of
stipulation of a definite period in the order dated 4.11.2014 by which reduction
of his rank in the seniority as junior most tutor/ lecturer was made, the
petitioner would be entitled to be restored to the position which he was
holding with effect from 4.5.2015, the date on which, the petitioner has
completed the period of six months. Obviously, the aforesaid contention is
advanced by relying on the provisions of the MGU Statutes, 1997 and the
relevant provisions of the Kerala Civil Services (Classification, Control and
Appeal) Rules, 1960.
9. I find that in Ext.P22 order passed by the 1st respondent, they
had relied on Statute 35B in Chapter 4 Part III of the MGU Statutes, 1997. It
has to be immediately noticed that Chapter 4 deals with the terms and
conditions of service of the non-teaching staff of the University other than
University teachers. The respondents in their counter affidavit have stated that
they had wrongly relied on the said provision. According to them, the relevant
provision would be Chapter 45 of the MGU Statutes, 1997 which deals with the
Conditions of Service of Teachers and Members of Non-Teaching Staff in
Private Colleges. Statute 73 in Part D, Chapter 45 deals with disciplinary action
against the teachers of private colleges. Statute 73 reads as follows:
73. Penalties: The following penalties may, for good and sufficient
reasons and as hereinafter provided. be imposed on teachers of
private college, namely:
(i) Censure:
(ii) Withholding of increments or promotion:
(iii) (a) Recovery from pay of the whole or part of any pecuniary loss
caused to the private college by his negligence or breach of orders:
(b) Recovery from pay to the extent necessary of the monetary
value equivalent to the amount of increments ordered to be
withheld where such an order cannot be given effect to.
Explanation.
In cases of stoppage of increments with cumulative effect, the
monetary value equivalent to three times the amount of
increments ordered to be withheld may be recovered.
(iv) Reduction to a lower rank in the seniority list or to a lower grade
or post or time scale or to a lower stage in a time-scale:
(v) Compulsory retirement:
(vi) Removal from the private college which shall not be a
disqualification for future employment:
(vii) Dismissal from the private college which shall be a disqualification
for any of the institutions maintained by or affiliated to the University.
10. As is evident from the provision extracted above, Statute 73(iv)
does not stipulate that reduction to a lower rank in the seniority list shall be
for a specified period.
11. Sri. Sajeev Kumar Gopal, the learned counsel would rely on the
provisions relating to the non-teaching staff to bring home his point that the
reduction to a lower rank can only be for a period of six months. Though the
said provision has nothing to do with teachers like the petitioner, in order to
appreciate his contentions, the relevant provisions can be looked into.
12. Statute 35 (B)(v) of Part III of chapter 4 reads as follows:
B. Major Penalties
(v) Reduction to a lower rank in the seniority list or to a lower
grade or post or time scale:
Provided that in the case of reduction of rank in the seniority
list such reduction shall be permanent.
Note:
(1) The period of reduction shall not be less than six months and not
more than five years. If the period is not specified in the order, the
period of reduction shall be deemed to be six months.
(2) Reduction to a lower stage in the time scale can be with or
without the effect of postponing future increments. If no mention is
made about this in the order, the reduction shall be deemed to be
without the effect of postponing future increments: ( emphasis
supplied )
13. The contention of the learned counsel revolves around Note 1
which says that the period of reduction shall not be less than 6 months and
not more than five years and if no period is specified in the order, the period
of reduction shall be deemed to be six months. However, the proviso to
Statute 35B(v) says in emphatic terms that in case of reduction in rank in the
seniority list, such reduction shall be permanent. The well established rule of
interpretation of a proviso is that a proviso may have three separate functions.
Normally, a proviso is meant to be an exception to something within the main
enactment or to qualify something enacted therein which but for the proviso
would be within the purview of the enactment. In other words, a proviso
cannot be torn apart from the main enactment nor can it be used to nullify or
set at naught the real object of the main enactment. In other words, a reading
of the provision would show that Note 1 would apply only in cases of reduction
to a lower grade or post or time scale and not in the case of reduction to a
lower rank.
14. The learned counsel would refer to the judgment of a learned
Single Judge of this Court in Abdul Rahiman v. State of Kerala [2005 (3)
KLT 250], to contend that as long as no time period is fixed for reduction of a
lower rank in the seniority, the period of reduction can only be for a period of
six months. However, I find that the said judgment was rendered in the
content of Note appended to Rule 65 of the KER. As per the note, the
reduction in rank may be either permanent or temporary and a temporary
period of reduction shall not be less than six months and not more than two
years. However, if no period is specified in the order, the period of reduction
shall be deemed to be six months. The principles laid down in the said
judgment cannot be applied to the petitioner.
15. The learned counsel would then refer to Rule 11 of the Kerala Civil
Service (Classification Control and Appeal) Rules and it was argued that as per
the said provisions if no period is specified, the reduction has to be restricted
to six months. Rule 11(v) of the KCS ( CC and A) Rules read thus:
(v) Reduction to a lower rank in the seniority list or to a lower grade or
post or time scale whether in the same service or in another
service, State or Subordinate, or to a lower stage in a time scale;
Note:- (1) The period of reduction shall not be less than six months and
not more than five years. If the period is not specified in the order,
the period of 7 reduction shall be deemed to be six months:
Provided that in the case of reduction of rank in the seniority list,
such reduction shall be permanent.
The Proviso to the above Rule states in clear terms that in the case of
reduction of rank in the seniority list, such reduction shall be permanent.
16. In view of the discussion above, I am of the considered opinion
that the petitioner has not made out any grounds for interfering with Exhibit
P22 order.
This Writ Petition will stand dismissed. There will be no order as to
costs.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
PS/15/2/2022
APPENDIX OF WP(C) 22745/2021
PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF THE ORDER ISSUED BY THE 4TH
RESPONDENT UNIVERSITY DATED 9.10.2007
Exhibit P2 TRUE COPY OF THE RECEIPT ISSUED BY THE
PRINCIPAL DATED 15.10.2007
Exhibit P3 TRUE COPY OF THE OFFICE ORDER ISSUED BY
THE PRINCIPAL DATED 14.7.2006
Exhibit P4 TRUE COPY OF THE MEMO GIVEN TO THE
PETITIONER BY THE 4TH RESPONDENT DATED
17.10.2007
Exhibit P5 TRUE COPY OF THE ORDER ISSUED BY THE 4TH
RESPONDENT DATED 17.10.2007
Exhibit P6 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER DATED 1.11.2008
Exhibit P7 TRUE COPY OF THE MEMO OF CHARGES ALONG
WITH STATEMENT OF ALLEGATIONS DATED
28.5.2009 ISSUED BY THE 1ST RESPONDENT TO
THE PETITIONER
Exhibit P8 TRUE COPY OF THE WRITTEN STATEMENT OF
DEFENSE FILED BY THE PETITIONER DATED
18.6.2009
Exhibit P9 TRUE COPY OF THE ORDER NO.E/2997/2009
DATED 18.8.2010
Exhibit P10 TRUE COPY OF THE JUDGMENT DATED 23.9.2014
IN CRP NO.160/2011
Exhibit P11 TRUE COPY OF THE ORDER ISSUED BY THE FIRST
RESPONDENT DATED 13.10.2014
Exhibit P12 TRUE COPY OF THE PROCEEDINGS VIDE ORDER NO
E/2997/2009 DATED 4.11.2014 ISSUED BY THE
1ST RESPONDENT
Exhibit P13 TRUE COPY OF THE ORDER NO.E2997/2009 DATED
9.12.2014 ISSUED BY THE FIRST RESPONDENT
Exhibit P14 TRUE COPY OF THE ORDER OF THIS HON'BLE
SUPREME COURT DATED 20.2.2015 IN SPECIAL
LEAVE TO APPEAL (C) CC NO.3247/2015
Exhibit P15 TRUE COPY OF THE ORDER PASSED BY THE
HON'BLE SUPREME COURT DATED 5.5.2015
SPECIAL LEAVE TO APPEAL (C) CC NO.
3247/2015
Exhibit P16 TRUE COPY OF THE ORDER DATED 24.4.2017 IN
UNIVERSITY APPEAL NO.8/2016
Exhibit P17 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT IN CRP (UTY) NO.256/2017
Exhibit P18 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER ON 3.12.2015
Exhibit P19 TRUE COPY OF THE REPRESENTATION DATED
10.1.2020 SUBMITTED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT
Exhibit P20 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER BEFORE THE 1ST
RESPONDENT DATED 3.8.2020
Exhibit P21 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT IN WPC NO.3187 OF 2021
Exhibit P22 TRUE COPY OF THE ORDER NO.E/1485/21 DATED
31.3.2021 PASSED BY THE 1ST RESPONDENT
REJECTING THE REQUEST OF THE PETITIONER
RESPONDENTS' EXHIBITS:
NIL
