Kerala High Court
Dr N.M. Mujeeb Rahman vs Kerala University Of Health Sciences on 22 May, 2024
Author: T.R.Ravi
Bench: T.R.Ravi
WP(C) No.19434 of 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
WP(C) NO. 19434 OF 2023
PETITIONER:
DR N.M. MUJEEB RAHMAN
AGED 54 YEARS
S/O DR. N.K. MOHAMMED,
RESIDING AT: JAMAL MANZIL,
VALANCHERY P.O.,
MALAPPURAM DISTRICT,
PIN - 676552.
BY ADV S.AJITH (PALAKKAD)
RESPONDENTS:
1 KERALA UNIVERSITY OF HEALTH SCIENCES
REPRESENTED BY ITS REGISTRAR,
MEDICAL COLLEGE P.O.,
THRISSUR,
PIN - 680596.
2 MES MEDICAL COLLEGE
PERINTHALMANNA, MALAPPURAM,
KERALA - 679322
REPRESENTED BY ITS DIRECTOR.
3 THE DEAN
MES MEDICAL COLLEGE,
PERINTHALMANNA,
MALAPPURAM,
KERALA- 679322,
REPRESENTED BY ITS DIRECTOR
4 DR. P.A. FAZAL GHAFOOR
AGED 62 YEARS
S/O LATE DR. P.K. ABDUL GAFOOR,
DIRECTOR, MES MEDICAL COLLEGE,
WP(C) No.19434 of 2023
2
PERINTHALMANNA, MALAPPURAM, KERALA-679322,
RESIDING AT : MANAPPAD HOUSE, P.O. NADAKKAVU,
CALICUT, PIN - 673011.
BY ADVS.
VAISAKHI V
BABU KARUKAPADATH(B-13)
M.A.VAHEEDA BABU(V-4)
P.U.VINOD KUMAR(K/647/2002)
ARYA RAGHUNATH(K/000474/2018)
T.M.MUHAMMED MUSTHAQ(K/000261/2018)
AJWIN P LALSON(K/001394/2018)
KARUKAPADATH WAZIM BABU(MAH/8319/2019)
P.LAKSHMI(K/001868/2021)
AYSHA E.M.(K/001130/2022)
SHIFANA KAISE(K/001171/2023)
SRI.P.SREEKUMAR, SC.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 18.10.2023, THE COURT ON 22.5.2024 DELIVERED
THE FOLLOWING:
WP(C) No.19434 of 2023
3
T.R.RAVI, J.
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WP(C) No.19434 of 2023
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Dated this the 22nd day of May, 2024
JUDGMENT
The petitioner was appointed as Assistant Professor in the
Department of General Surgery under the 2 nd respondent in 2003.
While working as a Professor in the Department of General Surgery,
he tendered his resignation on 23.8.2021, which the College
accepted. He requested a relieving order and an experience
certificate. It is submitted that he was issued with an experience
certificate on 23.2.2022 wherein apart from stating the details of his
service in the post of Assistant Professor, Associate Professor, and
Professor, it is stated additionally that he was unauthorisedly absent
from his duties from 17.3.2021 onwards. The petitioner contends
that the resignation letter was sent on coming to know that the
Management was about to initiate disciplinary proceedings against
him on an allegation of unauthorised absence. The petitioner is
aggrieved by the addition of contested facts in the experience
certificate. It is stated that instead of stating that the petitioner has
been relieved from the post, matters which will affect his career
have been stated for no reason whatsoever. According to the
petitioner, such entries are made out of ill will and malice.
2. The petitioner had approached this Court earlier by filing
WP(C)No.23324 of 2021. The prayer in the said writ petition was
for the issuance of an experience certificate and relieving order. It
was pending the said writ petition that Ext.P3 was issued to the
petitioner. It is seen from the Judges Papers relating to
WP(C)No.23324 of 2021 that this Court had directed the learned
Standing Counsel for the respondents to get specific instructions as
to whether an experience certificate without aspersions can be
issued. However, on the request of the learned Senior Counsel
appearing for the petitioner on 30.08.2022, WP(C)No.23324 of 2021
was closed, reserving the petitioner's right to approach the
University or other appropriate forum seeking appropriate relief.
The order specifically states that the experience certificate which
had been issued pending the writ petition was not based on any
directions issued by the Court. A copy of the judgment has been
produced as Ext.P4 in this writ petition. The petitioner thereafter
approached the 1st respondent seeking relief. Soon thereafter, the
petitioner filed WP(C)No.40494 of 2022 before this Court, which was
disposed of at the admission stage, by Ext.P6 judgment dated
21.12.2022, directing the 1st respondent to consider and pass orders
on a representation submitted by the petitioner on 12.9.2022.
Thereafter, it appears that a committee was constituted by the 1 st
respondent to consider the grievance of the petitioner. It can be
seen from Ext.P7 that on 28.3.2023, the Committee had directed
the petitioner to submit a request for an experience certificate and
relieving order, with supporting documents to the 3 rd respondent
herein, and forward a copy of same to the Dean (Academic) of the
University. The Committee also directed the 3 rd respondent to issue
the certificates within three weeks of receipt of the request from the
petitioner, with intimation to the Committee. The petitioner
submitted a fresh request through e-mail on 28.03.2023, a copy of
which has been produced as Ext.P8. The 3 rd respondent sent a reply
mail which has been produced as Ext P9, which states that as per
the records of the institution, an experience certificate had already
been issued on 23.02.2022 by the Director of the MES Medical
College. According to the petitioner, Ext P9 smacks mala fides. It is
submitted that if the 1st respondent was satisfied with the
experience certificate which had been issued there was no necessity
for directing a fresh application to be submitted. The petitioner
submitted a representation on 17.04.2023 to the Chairman and
Members of the Hearing Committee constituted by the 1st
respondent, complaining of the 3rd respondent's stand. The writ
petition has been filed seeking to quash Ext P9 mail, to declare that
the adverse remarks contained against the petitioner in Ext P3
experience certificate are unwarranted and illegal and liable to be
expunged, to direct the 3rd respondent to comply with the directions
given by the 1st respondent in Ext.P7 proceedings and in the
alternate to direct the 1st respondent to consider and pass orders on
Ext P11 representation.
3. The respondents 2 to 4 have filed counter affidavits,
stating that what has been stated in Ext.P3 is true as per the
records. It is contended that the petitioner was functioning as a
Senior Consultant Surgeon and Managing Director of Nizar Hospital
Valanchery, a family venture of the petitioner and there is no
statutory requirement for the production of any experience
certificate or relieving order for the said employment. It is alleged
that the petitioner illegally and unauthorisedly deputed Specialist
Doctors of the 1st respondent college to Nizar Hospital. Ext R1(A)
Minutes of the meeting of the Managing Committee Meeting held on
28.05.2020 that has been produced, would show that action had
been taken on such unauthorised deputations and the petitioner
knew about the deputations and he had participated in the meeting
and admitted about the illegal actions. It is submitted that the
petitioner thereafter stopped coming to the hospital and continued
on unauthorised absence without submitting any leave application at
any point in time. Even though there are several such allegations
about the conduct, I don't think it is necessary to go into all these
aspects in this writ petition.
4. Heard Sri S.Ajith (Palakkad), counsel appearing for the
petitioner, Sri P.Sreekumar Standing Counsel for the 1 st respondent
University and Sri Babu Karukapadath, counsel for respondents 2 to
4.
5. The main prayer is for quashing Ext P9. No such relief
can be granted by this Court. Ext P9 is only a letter that has been
sent through email and it only says that from the records it is seen
that an experience certificate had been issued to the petitioner on
23.02.2022. That an experience certificate had been issued on that
day is an admitted fact. One fails to understand why such a letter is
sought to be quashed in a proceeding under Article 226 of the
Constitution of India. The other grievance pointed out is that
Ext.P7 directions issued by the Committee constituted by the 1 st
respondent, to the 3rd respondent, have not been complied with.
Ext.P7 shows that the 3rd respondent who represented the college
had stated before the Committee that he was not aware of the
details of the case and that no document/letter indicating the
request for leave from the petitioner had been received. It is seen
that the Committee had heard the petitioner and 3 rd respondent
separately. As such, the proceeding cannot be treated as a hearing
of both sides together. Neither side heard what was submitted by
the other side. The proceedings refers to the contention of the
petitioner that the leave application was submitted before the
Associate Dean, the resignation letter was submitted to the Director,
and that he did not receive any relieving order. It would appear that
the fact that an experience certificate was issued on 23.02.2022 was
never considered by the Committee. There is no finding by the
Committee that the said experience certificate was in any manner
improper. The directions appear to have been issued solely based
on the submission of the petitioner that he has not been issued with
a relieving order. The 3rd respondent cannot be faulted for having
sent Ext.P9, in such circumstances.
6. It is contended that the provisions of the Shops and
Commercial Establishments Act, 1960 apply to hospitals. Reliance is
placed on the judgment in Lourdes Hospital & Ors. Vs
Dr.Abraham Mathew & Anr. [2019(1) KHC 250]. It was
submitted as per the amended Kerala Shops and Commercial
Establishments Rules, 1961, issued in the exercise of powers
conferred by sub-section (1) of Section 34 of the Kerala Shops and
Commercial Establishments Act, 1960, every employer must issue a
service certificate to all the employees in Form-BE. It is hence
argued that the management was bound to issue such a certificate
to the petitioner. The petitioner has admittedly not approached any
of the authorities under the said Act and Rules. No request is seen
to have been made for a certificate contemplated in the above-
mentioned Rules. As such this Court is not called upon to consider
such a contention, particularly since there is no allegation of non-
performance of any statutory duty on the part of the management
nor any averment that any of the fundamental rights of the
petitioner has been infringed.
7. The only prayer that can be considered is the request for
a direction to the 1st respondent to consider and take action in Ext
P11 representation. In Ext.P6 judgment, this Court had directed the
representation submitted by the petitioner to be disposed of. It can
be seen from the judgment that the court had not made any
observation regarding inter se rights of the parties. The 1st
respondent had constituted a Committee and the Committee had
conducted a sitting and issued certain directions. The grievance of
the petitioner appears to be that the directions issued by the
Committee have not been complied with. It is in the above
circumstances that Ext.P11 has been submitted.
In the above circumstances, the writ petition is disposed of
directing the 1st respondent to consider and pass orders on Ext P11
representation. It is made clear that this Court has not considered
the merits of the case and observations made in the judgment are
only for disposal of this case. The request Ext P11 shall be
considered untrammeled by the observations made in this
judgment. Necessary action shall be taken within three months
from the date of receipt of a certified copy of this judgment.
Sd/-
T.R.RAVI
JUDGE
dsn
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE E-MAIL DATED 23.08.2021
SENT BY THE PETITIONER TO THE 2ND
RESPONDENT TENDERING HIS RESIGNATION.
EXHIBIT P2 TRUE COPY OF THE REPLY LETTER DATED
30.08.2021 SENT BY THE 4TH RESPONDENT TO
THE PETITIONER.
EXHIBIT P3 TRUE COPY OF THE EXPERIENCE CERTIFICATE
DATED 23.02.2022 ISSUED BY THE 4TH
RESPONDENT IN HIS CAPACITY AS DIRECTOR OF
THE 2ND RESPONDENT-COLLEGE DURING THE
PENDENCY OF W.P. (C) NO. 23324/2021 BEFORE
THIS HON'BLE COURT.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT PASSED BY THIS
HON'BLE COURT IN W.P. (C) NO. 23324/2021
DATED 30.08.2022.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER BEFORE THE 1ST
RESPONDENT (WITHOUT ANNEXURES).
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 21.12.2022
PASSED BY THIS HON'BLE COURT IN W.P. (C)
NO. 40494/2022.
EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS DATED
28.03.2023 OF THE HEARING COMMITTEE
CONSTITUTED BY THE 1ST RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED
28.03.2023 SUBMITTED BY THE PETITIONER TO
THE 3RD RESPONDENT.
EXHIBIT P9 TRUE COPY OF E-MAIL DATED 14.04.2023 SENT
BY THE 3RD RESPONDENT TO THE PETITIONER.
EXHIBIT P10 TRUE COPY OF THE PRINT OUT OF THE E-MAIL
DATED 17.04.2023 SENT BY THE PETITIONER TO
THE 3RD RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE E-MAIL REPRESENTATION
DATED 17.04.2023 SENT BY THE PETITIONER TO
THE 1ST RESPONDENT.
EXHIBIT P12 TRUE COPY OF THE FACULTY DECLARATION FORM.
EXHIBIT P13 TRUE COPY OF THE RELIEVING ORDER ISSUED BY
THE 3RD RESPONDENT TO DR. ABID ALI, DATED
23.02.2022.
EXHIBIT P14 TRUE COPY OF THE RELIEVING ORDER ISSUED BY
THE 3RD RESPONDENT TO DR. MANSOOR CA,
DATED 23.02.2022.
EXHIBIT P15 TRUE COPY OF THE RELIEVING ORDER ISSUED BY
THE 3RD RESPONDENT TO DR. SAPHINA P, DATED
23.02.2022.
EXHIBIT P16 TRUE COPY OF THE APPLICATION DATED
21.09.2022 SUBMITTED BY THE PETITIONER
UNDER THE RIGHT TO INFORMATION ACT TO THE
PIO OF THE 1ST RESPONDENT UNIVERSITY.
EXHIBIT P17 TRUE COPY OF THE REPLY DATED 19.10.2022
SENT BY THE 'PIO' OF THE 1ST RESPONDENT
UNIVERSITY TO THE PETITIONER.
RESPONDENTS' EXHIBITS
EXHIBIT R2(A) A TRUE COPY OF THE COUNTER AFFIDAVIT DATED
23/03/2022 FILED BY THESE RESPONDENTS IN
WP(C) NO. 23324 OF 2021 WITH EXHIBITS.
