Dismissed

Dr.Pyarilal S.K. v. Cochin University of Science and Technology

Kerala HC28 Oct 2013WP(C)/17702/2013

Case brief

AI extract

What is this about?

In a writ petition, an Associate Professor challenged his removal from the post of Head of Department after voluntarily resigning due to a media report and subsequent exoneration in an inquiry. The High Court held that the petitioners action constituted resignation rather than relinquishment, barring reinstatement, and dismissed the petition.

What did the court decide?

Petition dismissed; the Registrar’s finding that the petitioner resigned is upheld; petitioner must wait for next turn under Statute 18.

Dr.Pyarilal S.K. Vs Cochin University of… — Pension and Retirement Benefits | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

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MONDAY, THE 28TH DAY OF OCTOBER 2013/6TH KARTHIKA, 1935

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WP(C).No. 17702 of 2013 (K)

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PETITIONERS:

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DR.PYARILAL S.K., AGED 56 YEARS S/O.K.R.KRISHNAN, SREELALAYAM, KOCHI UNIVERSITY P.O. KOCHI-682 022 ASSOCIATE PROFESSOR, SHIP TECHNOLOGY, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY.

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BY ADV. SRI.A.G.BASIL

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RESPONDENTS:

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COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY COCHIN-682 022, REPRESENTED BY ITS REGISTRAR.

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THE VICE CHANCELLOR AND CHAIRMAN OF SYNDICATE COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY COCHIN-682 022.

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DR.K.SIVA PRASAD PRESENT ASSOCIATE PROFESSOR AND HEAD OF DEPARTMENT SHIP TECHNOLOGY COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY COCHIN-682 022.

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R1-R2 BY ADV. SRI.MILLU DANDAPANI, SC, COCHIN UNIVERSITY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 17702 of 2013 (K)

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APPENDIX

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PETITIONER'S EXHIBITS

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EXHIBIT P1.TRUE COPY OF THE NOTIFICATION DATED 10/2/2000 WITH REGARD TO THE APPOINTMENT OF HEAD OF DEPARTMENT IN CUSAT.

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EXHIBIT P2.TRUE COPY OF THE APPOINTMENT ORDER NO. AD.D1/41930/RH/200 DATED 16/12/2008 ISSUED TO THE PETITIONER APPOINTING HIM AS THE HEAD OF DEPARTMENT, SHIP TECHNOLOGY BY CUSAT.

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EXHIBIT P3.TRUE COPY OF THE REQUEST DATED 3/3/2009 MADE BY THE PETITIONER BEFORE THE 1ST RESPONDENT REGISTRAR OF THE UNIVIERSITY, TO RELIEVE HIM, FOR THE TIME BEING, FROM THE POST OF HEAD OF DEPARTMENT, SHIP TECHNOLOGY.

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EXHIBIT P4.TRUE COPY OF THE APPOINTMENT ORDER NO.AD.33/41930/RH/2012 DATED 5/1/2013 ISSUED TO THE 3RD RESPONDENT

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EXHIBIT P5.TRUE COPY OF THE ORDER DATED 20/6/2012 OF THE RESPONDENT UNIVERSITY.

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EXHIBIT P6.TRUE COPY OF THE REPRESENTATION DATED 16/7/2012 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT

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EXHIBIT P7.TRUE COPY OF THE REPRESENTATION DATED 31/3/2013 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT

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EXHIBIT P8.TRUE COPY OF THE COMMUNICATION DATED 7/6/2013 RECEIVED FROM THE 1ST RESPONDENT.

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RESPONDENTS' EXHIBITS : NIL

// TRUE COPY //

TKS

P.S. TO JUDGE

C.T.RAVIKUMAR, J.

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W.P.(C)No.17702 of 2013 ------------------------------Dated 28^th October, 2013

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JUDGMENT

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The petitioner was working as Head of the Department of Ship Technology in the Cochin University of Science and Technology (for short `CUSAT'). Earlier, in view of Statute 18 of the Cochin University of Science and Technology First Statute 1991, the Syndicate nominated him as the Head of the Department. The petitioner accepted the same and functioned as the Head of the Department for some time. While so, there appeared a media report that a committee was constituted to look into the unauthorized consultancy work done by a teaching staff in the Department of Ship technology which resulted in financial loss to the Government. A perusal of Ext.P3 would reveal that the petitioner identified it as an allusion against him and thereupon, citing the reason of receipt of innumerable queries and even humiliating emails from the general public as well as from the campus Community taking it as his moral responsibility to step down from the Headship of the Department of Ship Technology requested the Registrar of the University to relieve him from the charge of the Head of the Department with immediate effect as per Ext.P3. Immediately thereafter, Ext.P3 was accepted and one Dr.Dileep K. Krishnan was then nominated by the

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WP(C).No.17702/2013 2

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Syndicate, invoking the power under Statute 18 of the Cochin University of Science and Technology First Statute, 1991, as the Head of the Department of Ship Technology in the place of the petitioner. Owing to his unwillingness to accept the nomination for Headship of the Department Dr.Roby.K. was nominated to that post. He too, expressed his unwillingness to take up the assignment and consequently, the third respondent was nominated as the Head of the Department of Ship Technology as per Ext.P4 proceedings dated 5.1.2013 by the Syndicate invoking the powers under Statute 18 of the Cochin University of Science and Technology First Statute, 1991. In the meanwhile, in respect of the aforesaid allegations an enquiry commission was constituted. Dr.Jose T.Manjooran was appointed as the commission and he submitted a report after enquiring into the aforesaid allegations. The report submitted by Dr.Jose T.Manjooran was accepted by the Syndicate and consequently, Ext.P5 order was passed. The Syndicate, as per Ext.P5 order dated 20.6.2012, accepted the report and found the petitioner not guilty of the allegations. Thereupon, the petitioner submitted Ext.P6 representation dated 16.7.2012 before the Registrar of University carrying the request to reinstate him to the post of Head of Department of Ship Technology and to allow him to complete the remaining term in office. Since no action was taken thereon he filed Ext.P7 representation dated 31.3.2013

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WP(C).No.17702/2013

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reiterating the aforesaid request. As per Ext.P8, the Registrar intimated the petitioner that his request for completing the remaining term as Head of Department could not be considered as he had resigned from his position on his own. This writ petition has been filed in the said circumstances mainly with the following prayers:

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“(a) To call for the records leading to the issuance of Exhibit P8 Order of the Respondent University and quash the same by issuance of a Writ of Certiorari or an other appropriate, writ, order or direction.

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(b) Declare that the Petitioner is entitled to be reinstated in the post of Head of Department, Ship Technology, Cochin University of Science and Technology.

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(c) Declare that 3^rd respondent has no right to continue to hold the post of Head of Department, Ship Technology, Cochin University of Science and Technology.

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(d) Direct the 1^st respondent university to remove the 3^rd respondent from the post of Head of Department, Ship Technology, and to reinstate the petitioner in that post.”

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The appointment of a teacher as Head of the Department

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under CUSAT is for a period of three years. True that, the petitioner could not complete his tenure. It is to be noted that it is not a case wherein the petitioner was removed from the Headship whereas on his

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WP(C).No.17702/2013 4

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own the petitioner requested to relieve him as per Ext.P3 and that was accepted by the University. Essentially, the contention of the petitioner is that he submitted Ext.P3 request to allow him to step down from the Headship of the Department of Ship Technology and to relieve him accepting the moral obligation consequent to the report appeared in the media regarding the aforesaid allegations. Whatever be the reason, it is evident that after accepting the nomination as Head of the Department of Ship Technology made by the Syndicate of CUSAT in tune with the provisions under Statute 18 of the Cochin University of Science and Technology First Statute, 1991 the petitioner continued for a while in that post and thereafter as per Ext.P3 requested to relieve him. The contention of the petitioner is that it is liable to be taken as a temporary relinquishment and taking into account his exoneration as per Ext.P5 he is entitled to be reinstated in the post and permitted to complete his tenure in the post after removing the third respondent. According to the petitioner, the third respondent is not having any right whatsoever to continue in the post of Head of the Department. To substantiate the contention that he is having a right to get appointed/nominated in the post of Head of the Department of Ship Technology after removing the third respondent the petitioner relied on a decision of this Court in Usha Thayyil v. State of Kerala (2009 (4) KHC 11 (FB)) . In that case, a

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WP(C).No.17702/2013

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Full Bench of this Court was dealing with the relinquishment of a teacher made as per Rule 44(1) of Chapter XIV-A of the Kerala Education Rules. There, the question was whether a teacher who relinquished his/her claim for promotion to the post of Headmaster could stake his/her claim when another vacancy arises in that post subsequently. Taking into account the provisions therein it was held by this Court that once relinquishment is obtained, it would apply only to that particular appointment at the relevant point of time and on occurrence of a subsequent vacancy in the said post the Manger is duty bound to get consent of the said senior claimant if it is intended to overlook him while filling up the post. The learned counsel appearing for the petitioner submitted that in the light of the said decision the petitioner is entitled to the reliefs sought for. I am afraid, such a contention cannot be upheld for more than one reason. Firstly, it is to be noted that the petitioner cannot be heard to contend that he had relinquished the promotion/nomination to the post of Head of the Department of Ship Technology. Incontrovertibly, the case of the petitioner is one of relinquishment of promotion or nomination as Head of the Department of Ship Technology and in fact, upon such nomination he assumed the charge. It was while continuing in that post based on the allegations appeared in the print media regarding unauthorized consultancy work

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done by a teaching staff in the Department of Ship Technology resulting in financial loss to the Government on his own he submitted Ext.P3. Ext.P3 would reveal that soon thereafter the petitioner acknowledged it as an allusion against him and taking into account the innumerable number of queries and even humiliating emails received thought it as his moral obligation to step down and consequently, requested to relieve him from the post of Head of the Department with immediate effect. To consider whether the said request made by the petitioner as per Ext.P3 could be construed as a relinquishment from the post of Head of the Department, Statute 18 of the Cochin University of Science and Technology First Statute, 1991 has to be looked into. Statute 18 provides that the Syndicate shall nominate a teacher not below the rank of Reader as Head of the Department according to the seniority, on rotational basis, for a period of three years and once a teacher is nominated by the Syndicate as Head of the Department according to his/her seniority upon reaching his/her turn it would also be open to that teacher to make a request to relieve him/her of such responsibility for academic reasons. In this case, a perusal of Ext.P3 would reveal that it was not on account of any academic reason that the petitioner made his request as has been made in Ext.P3. That apart, he has not been made any such request immediately on his nomination. Whereas, upon his

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nomination the petitioner accepted it and continued in that post for a while and thereafter for the reasons mentioned hereinbefore, requested to relieve him from the charge of the Head of Department of Ship Technology. Essentially, the action on the part of the petitioner in stepping down from the post of Head of the Department could not be said to be a relinquishment of nomination as Head of the Department falling under Statute 18, whilst it could only be treated as a resignation from the post. Therefore, the finding of the Registrar of the University that the petitioner virtually resigned from the post cannot be said to be illegal. It is found that the action on the part of the petitioner in getting himself relieved from the post of the Head of the Department of Ship Technology cannot be considered as relinquishment especially, in the light of the provisions under Statute 18 of the Cochin University of Science and Technology First Statute 1991. Relying on the decision in Usha Thayyil's case (supra) the learned counsel appearing for the petitioner further submitted that the respondents should have appreciated the action on the part of the petitioner in stepping down from the post honouring the moral obligation. It is his further contention that taking into account the fact that he stepped down from the post of Headship under such circumstances and that he was found not guilty of the said allegations as per Ext.P5 he should have been reinstated in the

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post of Head of the Department after removing the third respondent. The said contention cannot have any legal support. If it is a case where the petitioner was removed from the post pursuant to the said publication and subsequently get exonerated fully of the allegations the position would have been different. There is no case for the petitioner that pursuant to such allegations he was placed under suspension and thereafter disciplinary proceedings were initiated against him and he was exonerated after such an enquiry. The very case of the petitioner is that upon seeing such report in the printed media he on his own requested to relieve him from the post and in such circumstances, the said action cannot be construed as a relinquishment for the purpose of Statute 18 of the Cochin University of Science and Technology First Statute, 1991 and I am of the considered view that it was rightly treated as a case of resignation by the respondents. The third respondent was nominated as the Head of the Department strictly in tune with Statute 18 of the Cochin University of Science and Technology First Statute, 1991 as per Ext.P4 and going by Statute 18 his appointment is for a period of three years. In such circumstances, the fact that the petitioner was exonerated as per Ext.P5 cannot be a reason for ousting the third respondent solely to enable the petitioner to complete his tenure. I am of the considered view that the petitioner has to wait for his turn in accordance with Statute 18.

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The learned counsel appearing for the petitioner further contended that without deciding the issues involved in this writ petition the representation submitted by him may be directed to be considered by the Syndicate. Having considered the contentions on merits after hearing the parties at length I am of the view that it will be inappropriate for this Court to accede to such a prayer. I have already found that the petitioner's contentions/claim cannot be upheld for the reasons mentioned hereinbefore. The fact that the Syndicate can entertain any application cannot be taken as a ground to entertain such a prayer when the petitioner has not admittedly, filed any application before the Syndicate calling the Syndicate to invoke the powers under Statute 18. In view of the aforesaid discussions I am of the view that the prayer of the petitioner for a direction to the Syndicate of the University to consider his grievance also cannot be upheld.

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In view of my findings hereinbefore, this writ petition is liable to fail and accordingly, it is dismissed.

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Sd/C.T.RAVIKUMAR Judge

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TKS

Dr.Pyarilal S.K. v. Cochin University of Science and Technology

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Dr.Pyarilal S.K. v. Cochin University of Science and Technology

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