RAJA VIJAYARAGHAVAN V

1. The instant writ petition is filed by the petitioner challenging Ext.P8 show cause notice and Ext.P10 proceedings of the Manager, Mannaniya College of Arts and Science as per which, the petitioner stands reverted to the post of Associate Professor permanently. The period of suspension imposed upon him from 30.8.2016 till the date of his joining the College stood regularized as eligible leave.

2. It would be apposite to lay the prefatory facts first:

The petitioner, while working as an Associate Professor in the Department of Physics of the Mannaniya College of Arts and Science, was appointed as the Principal of the Institution on 31.3.2010 as per Ext.P1 order. While substantively holding the post of Principal, the petitioner was suspended by order dated 30.8.2016 by the Manager. A memo of charges containing 9 alleged misconducts was drawn up and the petitioner was asked to furnish his explanation. Thereafter, an Enquiry Officer was appointed to conduct an enquiry. After the conclusion of the enquiry, a report was submitted holding that charges No.1,6,7,8 and 9, levelled against the petitioner stood proved.

Based on the conclusions arrived at by the Enquiry Officer, a show-cause notice was served on the petitioner. Thereafter, by order dated 31.5.2018, the penalty of compulsory retirement from service was imposed. The said order was challenged by the petitioner before this Court by raising various contentions. By judgment dated 12.12.2019 in W.P.(C) No.22680/2018, a learned Single Judge of this Court after considering the entire gamut of facts and law concluded that the enquiry proceeding was bad in law insofar as charge Nos.1, 6, 8 and 9 are concerned as they were vague in nature. It was held that the enquiry proceedings were vitiated as the petitioner was denied a reasonable opportunity to defend those charges. However, insofar as Charge No. 7 is concerned, the learned Single Judge went on to observe as follows:-

"…………..As regards Charge No. 7, in view of Ext.P7 refer report of the Deputy Police Superintendent, District Crime Branch, Thiruvananthapuram (Rural), the findings on Charge No. 7 by respondents 4 and 5 are liable to be reviewed. This is especially so, because the nature of transactions constituting the alleged offence is financial and contractual in nature. De hors all other charges, (which are found to be more proved by the Enquiry Officer) or unsustainable by this Court) whether the facts constituting charge No. 7 even if found to be proved on review by the respondents, the question whether such a financial transaction should be treated as a misconduct warranting punishment in a domestic enquiry, is to be looked into by the respondents. The question of proportionality of punishment is also a matter to be considered by the respondents since Charge Nos. 1,6,8 and 9 are found unsustainable. Therefore, respondents 4 and 5 are directed to reconsider the findings on Charge No. 7 in the light of Ext.P11 refer report of the Deputy Police Superintendent, within a period of four weeks from the date of receipt of a copy of this judgment, in the light of the observations made herein above. Ext.P5 and P7 are set aside and the writ petition is disposed of with the said direction."

3. The petitioner took the matter in appeal and by an interim order dated 13.10.2020, their Lordships of the Division Bench, taking note of the long pendency of the matter, issued directions to the disciplinary authority to complete the disciplinary action after hearing the petitioner and to submit a report before this Court within a period of one month. It was also ordered that if the delinquent officer is found guilty of the charge, the proposed punishment shall be intimated to him.

4. Consequent thereto, the petitioner was issued with Ext.P5 memo on 27.10.2020 calling upon him to submit his remarks with regard to Charge No.7 in the memo of charges. For the sake of clarity, Charge No. 7 is extracted below for easy reference.

“On 8.8.2016, one Smt. Jansa Beevi M, Ajmal Cottage, Pulippara, Pangode forwarded a complaint to the Management that you have borrowed a total sum of Rs.13.75 lakhs from her on 20th November 2015 and 8th December 2015. She states that on several occasions she came to your house Vanchuvanam for getting the money returned. But of no avail. On 9/01/2016, your father returned her a sum of Rs.1 lakh and the balance Rs.12.75 lakh is still pending with you. On 8/12/2016, you contacted her over phone and told her "You are not coming to the College and you are on leave............. you are going to do online business in crude oil and gold........ thereby you will earn Rs.4 lakh a day." She further states that you have assured her on many occasions over phone that you will return the money borrowed. But you never kept your words and have been cheating her. She requested the Management to intervene to get her money you borrowed.”

5. To Ext.P5, the petitioner submitted Ext.P6 explanation appending Ext.P7 refer report, as per which, the Crime registered based on the complaint submitted by Smt. Jansa Beevi M., was referred to as false by the police. He requested that the enquiry proceedings be dropped.

6. Ext.P8 show cause memo was then issued to the petitioner and he was informed that the finding of the enquiry officer was legally acceptable and the petitioner was ordered to show cause why the punishment of reversion permanently to the post of Associate Professor shall not be imposed. Ext.P9 explanation was again submitted by the petitioner. Immediately thereafter, by Ext.P10 proceedings, the petitioner was reverted to the post of Associate Professor permanently placing the period of suspension from 30.8.2016 as eligible leave with a rider that it will be implemented only after the pronouncement of the judgment in W.A.No.267/2020.

7. Later when the writ appeal came up for final hearing, by judgment dated 4.2.2021, the same was disposed of by issuing the following directions:

"4. Facts being so, we do not think it proper to sit in judgments on the orders issued by the management imposing punishment on the appellant, since the issue involves consideration of the facts made available before the enquiry officer as well.

5. Taking into consideration all these facts, it will be appropriate for the appellant to challenge the order imposing punishment in appropriate proceedings. Reserving the aforesaid liberty, the Writ Appeal is disposed of."

8. The petitioner contends that the imposition of punishment of permanent reversion to the post of Associate Professor and treating the period of absence as eligible leave cannot be sustained. According to the petitioner, the reconsideration of the finding regarding Charge No.7 can be made only after conducting de nova over the enquiry into the charges and not otherwise. It is contended that an in-depth enquiry was conducted by the Crime Branch and the case was closed finding that no case is made out and the allegations levelled against the petitioner are false. It is further contended that the penalty imposed against the petitioner is a major penalty and the show cause notice and the final order has been issued by the Manager, who has no authority to impose the punishment. It is also contended that as per the relevant University Statutes, only the educational agency can be the disciplinary authority. On the basis of the above assertions, the instant writ petition is filed seeking the following reliefs:

"i) To issue a writ of certiorari or other appropriate writ or order to quash Exts.P8 and P10

ii) To declare that the management order Ext.P8 and P10 is one issued in total violation of the judgment in W.P.(C) No.22680/2018 of this Hon’ble Court and void and unenforceable."

9. A counter affidavit has been filed by the 2nd respondent wherein it is stated that though in the previous writ petition, challenging the order of compulsory retirement, the petitioner had sought reinstatement in service, the same was not granted by this Court. No relief was granted in the Writ Appeal as well. In that view of the matter, the petitioner is not entitled to seek reinstatement in service. It is stated that the Enquiry Officer on the basis of evidence, both oral and documentary, had found Charge No.7 as proved. It is urged that the writ court had not ordered a de novo enquiry and all that was required was for the respondents to complete disciplinary action after hearing the petitioner. It was in the said circumstances that Ext.P10 was issued. Insofar as Ext.P7 refer report is concerned, the same was considered pursuant to Ext.P3 and P4 and that issue has been dealt with in Ext.P10 order. The petitioner has been found guilty on the basis of legally admissible evidence and the management has taken a lenient view while considering the proportionality of punishment to be imposed. It is stated that Charge No. 7 is serious misconduct, affecting the good name and reputation of the educational institution of which the petitioner was holding the charge of Principal and hence, the punishment imposed is just and fair. It is further stated that the petitioner should be relegated to statutory remedies.

10. Sri.P.C.Sasidharan, the learned counsel appearing for the petitioner submitted that the learned Single Judge, after elaborately considering the entire facts, had concluded that all the charges except Charge No.7 had to be regarded as baseless. Insofar as Charge No.7 was concerned, the learned Single Judge was of the view that the charge sheet contained material particulars which were sufficient to enable the petitioner to defend the same. However, the fact that the allegations were found to be false by the police, and that they had filed a refer report could not be brought to the notice of the Enquiry Officer as the report was submitted subsequently. This Court had held in paragraph No.16 of the judgment that in view of the detailed investigation made by the police as reflected in the refer report, and also the conclusion that the complainant had no pre-acquaintance with the petitioner to advance huge amounts, the respondents were bound to reconsider the finding on Charge No. 7. According to the learned counsel, this Court had directed the respondents to reconsider the findings based on the refer report and the said exercise had to be completed by the Enquiry Officer and not by the Manager, who is interested in the outcome of the proceeding. The management by misinterpreting the judgment has donned the role of the enquiry officer and has come to the finding that the refer report is not acceptable. According to the learned counsel, without submitting a protest complaint before the jurisdictional court in accordance with the law, a petition was filed before the State Crime Branch by Smt. Janisa Beevi. Based on a complaint, the investigation in Crime No.1247 of 2016 was reopened and the investigating officer again submitted a report stating that it was a ‘mistake of fact’. Before concluding so, several notices were issued to Smt. Janisa Beevi to produce materials to substantiate the source for handing over a sum of Rs.13.75 lakhs to the petitioner. It was when the complainant failed to place any materials before the State Crime Branch that the matter was closed as a mistake of fact. The learned counsel would point out that the aforesaid Janisa Beevi did not even approach the Civil Court for realising the amount and this is yet another reason to conclude that the allegations levelled are without even a tinge of truth. The learned counsel would then refer to the conclusions in Ext.P7 refer report submitted by the Deputy Police Superintendent, District Crime Branch on 15.11.2018 wherein after questioning all the witnesses including the complainant, it was concluded that there was no acquaintance between the complainant and the petitioner herein. The investigation had also revealed that due to the difference of opinion between the petitioner and the management, the management was determined to remove the petitioner from the post of Principal, for which purpose, the present Principal Sri. Badarudheen and the Junior Superintendent Sri. Junayd, with the knowledge and concurrence of the management, influenced the complainant and forced her to write a false complaint on 8.8.2016. The investigating officer has also concluded that it was only two days prior to the date of suspension that the incumbent Principal had insisted upon the complainant to write a complaint putting the date as 8.8.2016 and the same was handed over to the management as a weapon to harass the petitioner. The learned counsel points out that none of these materials was before the enquiry officer when the report was submitted. According to the learned counsel, instead of permitting the petitioner to place these materials before the Enquiry Officer, what has been done by the management is to issue a memo and consider the explanation offered by the petitioner and hold against him. The above procedure adopted by the management is against all principles of natural justice, as the Manager has now assumed the role of the Enquiry Officer as well as the disciplinary authority. The learned counsel would then contend that Ext.P8 show cause notice and Ext.P10 proceedings have been issued by the Manager and not by the educational agency, which is the disciplinary authority.

11. Sri. Jaju Babu, the learned senior counsel submitted that the respondents have acted in tune with the interim order passed by a Division Bench of this Court, whereby the disciplinary authority was asked to conclude the proceedings after hearing the petitioner as directed by the learned Single Judge and to complete the disciplinary action. The said exercise was completed in its letter and spirit. It is submitted that there was no direction to the respondents to conduct a de novo enquiry into the matter. It is also submitted that neither the writ court nor the Division Bench had ordered reinstatement and therefore, the petitioner is estopped from claiming any such relief. Finally, it is submitted that the allegations against the petitioner are extremely grave and it was after taking note of all relevant aspects that reversion was ordered.

12. I have anxiously considered the submissions and have perused the entire records.

13. The records reveal that disciplinary action was initiated against the petitioner by the management and as many as 9 charges were levelled against him. The enquiry officer submitted a report stating that charges 2 to 5 had not been proved but the Management was able to bring home the charge insofar as the rest of the charges are concerned. The said proceedings were challenged by the petitioner before this Court. A learned Single Judge of this Court, after considering the entire facts, came to the conclusion that the impugned enquiry proceedings were bad in law and vitiated insofar as charges Nos. 1, 6, 8 and 9 are concerned, as the same were vague and the petitioner could not have defended the same. However, insofar as Charge No.7 is concerned, this Court was of the view that the Charge sheet contained material particulars which were sufficient to enable the petitioner to defend himself. However, the learned Single Judge noted that the enquiry officer was persuaded by the evidence given by the complainant and he had no occasion to take note of the refer report submitted by the Deputy Superintendent of Police before the learned Magistrate. It would be apposite at this juncture to take note of the findings of the Enquiry officer with reference to charge No.7 extracted in the petition, the veracity of which has not been denied by the respondents in their counter. The findings are as follows:

"As already submitted, the learned counsel for the delinquent cross examined MW9 in detail, but the case of the witness could not be vitiated or disproved. Instead, the suggestion in the cross examination is that the Crime No. 1247/2016 of Pangode Police station registered against the delinquent was admitted (sic. referred) by the police which is disputed by the witness vehemently. The witness summed up her answer to the last suggestive question of the defence in a convincing manner. From her demeanor I could assess that she was aggrieved by the conduct of the delinquent. Thus, it is found that Charge No. 7 also stands proved."

14. As is evident from the findings of the Enquiry Officer, he had no occasion to take note of the report of the investigating officer of the local police who initially investigated Crime No.1247/2016 or by the investigating officer of the State Crime Branch who investigated the matter subsequently.

15. In paragraph No.7 of the counter affidavit filed by the respondents, it is stated that Ext.P7 refer report was considered pursuant to Ext.P3 judgment and P4 order rendered by this Court and the same was dealt with in Ext.P10 order. It is also stated that Ext.P10 order has been issued based on the proved charges.

16. This Court, in Ext.P3 judgment, had clearly held that the findings on Charge No.7 by respondents 4 and 5 are liable to be reviewed. Directions were also issued to reconsider the findings on charge No.7 in the light of Ext.P11 report. The Enquiry Officer was appointed in the first place to conduct an impartial enquiry into the allegations. The Enquiry Officer did not have access to the refer report submitted by the police and the conclusions arrived at by them. Of course, the Enquiry Officer could have taken a different view of the matter, despite the findings of the police in the refer report. However, in the peculiar facts and circumstances and the damning accusations in the refer report, it was only appropriate that the matter was placed before the impartial Enquiry Officer to enquire into whether the allegations in charge No.7 were made out. It would be apposite to bear in mind at this juncture that the finding of the Dy.SP of Police was that the complainant was persuaded by the incumbent Principal and his subordinate officer, that too at the instance of the management, to level false accusations against the petitioner. I also take note of the fact that this Court in the earlier proceeding had concluded that the entire proceedings against the petitioner were vitiated as he was denied a reasonable opportunity to defend the charges.

17. The learned Senior counsel appearing for the respondents has asserted that it is in tune with the directions issued by the Division Bench that the petitioner was offered an opportunity to make his submissions on Charge No.7 and it was thereafter that the disciplinary proceedings were finalised. While disposing of the writ petition, the learned Single Judge had observed that in view of the nature of the detailed investigation made by the police as reflected from Ext.P11 refer report and the fact that the complainant had no previous acquaintance with the petitioner to advance huge amounts, the respondents were bound to reconsider the findings on charge No. 7. The Division Bench had directed the disciplinary authority to hear the petitioner as directed by the learned Single Judge and to complete the disciplinary action.

18. In State of Uttar Pradesh and Ors. v. Saroj Kumar Sinha, (2010 (2) SCC 772) [LQ/SC/2010/153] the Apex Court had held that the inquiry officer is a quasi-judicial authority, he has to act as an independent adjudicator and he is not a representative of the management. His function is to examine the evidence presented by the Department, even in the absence of the delinquent to see whether the unrebutted evidence is sufficient to hold that the charges are proved. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of the Rules of natural justice is to ensure that delinquents are treated fairly in proceedings which may culminate in the imposition of punishment including dismissal/removal from service.

19. A Division Bench of the Madhya Pradesh High Court speaking through Justice R.V. Raveendran, CJ (as he then was) had occasion to consider the question of vitiation of the inquiry when the Enquiry Officer starts himself acting as prosecutor in Union of India and Ors. v. Mohd. Naseem Siddiqui, (ILR (2004) MP 821 [LQ/MPHC/2004/529] ). In the above case the Court had occasion to consider Rule 9(9) (c) of the Railway Servants (Discipline & Appeal) Rules, 1968. The Division Bench while elaborating fundamental principles of natural justice enumerated the seven well-recognised facets in paragraph 7 of the judgment which is to the following effect:

"7. One of the fundamental principles of natural justice is that no man shall be a judge in his own cause. This principle consists of seven well-recognised facets: (i) The adjudicator shall be impartial and free from bias, (ii) The adjudicator shall not be the prosecutor, (iii) The complainant shall not be an adjudicator, (iv) A witness cannot be the Adjudicator, (v) The Adjudicator must not import his personal knowledge of the facts of the case while inquiring into charges, (vi) The Adjudicator shall not decide on the dictates of his Superiors or others, (vii) The Adjudicator shall decide the issue with reference to material on record and not reference to extraneous material or on extraneous considerations. If any one of these fundamental Rules is breached, the inquiry will be vitiated..xxxxxxx xxxxxxxxxx

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9. A domestic inquiry must be held by an unbiased person who is unconnected with the incident so that he can be impartial and objective in deciding the subject matters of inquiry. He should have an open mind till the inquiry is completed and should neither act with bias nor give an impression of bias. Where the Inquiry Officer acts as the Presenting Officer, bias can be presumed. At all events, it clearly gives an impression of bias. An Inquiry Officer is in the position of a Judge or Adjudicator. The Presenting Officer is in the position of a Prosecutor. If the Inquiry Officer acts as a Presenting Officer, then it would amount to Judge acting as the prosecutor. When the Inquiry Officer conducts the examination-in-chief of the prosecution witnesses and leads them through the facts so as to present the case of the disciplinary authority against the employee or cross-examines the delinquent employee or his witnesses to establish the case of the employer/disciplinary authority evidently, the Inquiry Officer cannot be said to have an open mind. The very fact that he presents the case of the employer and supports the case of the employer is sufficient to hold that the Inquiry Officer does not have an open mind."

20. The observations above were approved by the Hon’ble Supreme Court in Union of India (UOI) and Ors. v. Ram Lakhan Sharma (AIR 2018 SC 4860 [LQ/SC/2018/786] ). I have highlighted the above-settled position of law only to emphasise the role of the enquiry officer. In the case on hand, the enquiry officer had come to a finding against the petitioner based on irrelevant and inconclusive materials. While setting aside the enquiry report as vitiated, this Court directed the respondents to reconsider charge No.7 in the light of the subsequent events. However, instead of relegating the matter to the Enquiry Officer, the Management has proceeded to hear the petitioner thereby donning the role of the enquiry officer. Of course, the Management could have rejected the report of the enquiry officer in a particular case and could have arrived at a different finding. However, in this case, that is not what has happened. The Management approved the finding of the Enquiry Officer, which was apparently rendered without taking note of several relevant aspects. In the facts and circumstances and particularly in view of the directions issued by this Court in the earlier proceeding, such a course could not have been followed by the management.

21. The management has assumed the role of the prosecutor and Judge and has imposed the punishment of reversion. In the facts of the instant case, I am of the considered opinion that the procedure adopted by the respondents is clearly illegal and against the principles of natural justice. They have donned the role of a Judge on their own cause which has caused serious prejudice to the petitioner. I am also of the considered opinion that the procedure adopted by the respondents is illegal, unfair, arbitrary and discriminatory.

22. I am not impressed with the submission of the learned counsel that the petitioner has to be relegated to the statutory authorities. The petitioner is due to retire on 31.5.2022 and this matter was admitted by this Court on 23.3.2021 and stay was also granted at the time of admission itself. The specific case of the petitioner is that there is violation of the principles of natural justice and non-compliance of the directions issued by this Court in the earlier proceeding. In view of the above, I do not think it would be proper to refer the petitioner to his alternate remedy, if any. Furthermore, as per the Kerala University First Statutes, 1977 ‘Disciplinary authority’, as defined under Statute 18(b) is the authority competent under the Statute to impose penalty. Regulation 70 of the Conditions of service of Teachers and Members of Non-Teaching Staff First Statutes, 1979 says that the Educational Agency shall be the disciplinary authority in respect of a teacher of a private college. In the case on hand, Ext.P5 memo, as well as Ext.P10 proceedings, have been issued by the Manager of the College. Though it is contended by the petitioner that the order passed by the Manager is one without jurisdiction, the same has not been controverted in the counter affidavit filed by the respondents. In that view of the matter, the order passed against the petitioner cannot be sustained on that count as well.

23. In view of the discussion above, Ext.P8 and P10 will stand quashed.

24. There will be a direction to the respondents to refer charge No.7 to the Enquiry Officer who shall conclude the enquiry, after affording an opportunity of being heard to the petitioner and also to produce documents. The respondents shall ensure that the disciplinary action is concluded within a period of 45 days from the date of receipt of a copy of this judgment, in tune with the directions issued by this Court in W.P.(C) No. 22680/2018.

25. This writ petition is allowed as above.