Allowed

Manager v. Dr.Mp.Anitha

Kerala HC19 Feb 2019CRP(UTY)/1/2019

Case brief

AI extract

What is this about?

The High Court allowed the revision petition by the college management challenging the University Tribunal's decision. The Tribunal had set aside a punishment reducing the Principal's rank due to alleged misconduct in a letter. The Court held the Management was justified in claiming misconduct but found the reversion in rank disproportionate.

What did the court decide?

Impugned Tribunal order set aside. Punishment set aside and fresh orders for lesser punishment (censure or withholding increments) to be passed within two weeks.

Manager Vs Dr.Mp.Anitha — Service and Employment | Kerala HC (2019)

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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 A.M.SHAFFIQUE

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THE HONOURABLE MR. JUSTICE A.M.BABU

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TUESDAY, THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940

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CRP(UTY).No. 1 of 2019

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AGAINST JUDGMENT DATED 30.11.2018 IN UNIVERSITY APPEAL NO.2/2018 OF UNIVERSITY APPELLATE TRIBUNAL (MG UNIVERSITY) THIRUVANANTHAPURAM.

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REVISION PETITIONERS/RESPONDENTS:

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1 MANAGER, SNM TRAINING COLLEGE, MOOTHAKUNNAM, ERNAKULAM DISTRICT-683 516.

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2 VADAKKEKKARA HINDU MATHA DHARMA PARIPALANA SABHA MOOTHAKUNNAM, NORTH PARUR, ERNAKULAM, REPRESENTED BY ITS SECRETARY.

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BY ADVS.

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SRI.S.P.ARAVINDAKSHAN PILLAY SRI.PETER JOSE CHRISTO SRI.S.A.ANAND

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RESPONDENTS/APPELLANT & RESPONDENTS 3 & 4:

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1 DR.MP.ANITHA PRINCIPAL (UNDER ORDERS OF REVERSION AS ASSOCIATE PROFESSOR), SNM TRAINING COLLEGE, MOOTHAKUNNAM, RESIDING AT AJAY, PERIYAR ENCLAVE, MOOTHAKUNNAM P.O., N PARVUR, ERNAKULAM-683 516.

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2 THE MAHATMA GANDHI UNIVERSITY PRIYADARSINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686 560 REPRESENTED BY ITS REGISTRAR.

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3 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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BY ADVS.

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SRI.O.V.RADHAKRISHNAN (SR.)

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SRI.M.P.PRAKASH

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SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY FOR R2 SR.GP SRI. A.J. VARGHESE FOR R3

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THIS CRP (UNIVERSITY ACT) HAVING BEEN FINALLY HEARD ON 19.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

CRP(UTY).No.1/2019

ORDER

SHAFFIQUE, J

This revision is filed by the management of SNM Training College, Moothakunnam, Ernakulam challenging an order passed by the University Tribunal by which the disciplinary action taken by the Management against the 1^st respondent herein has been set aside.

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The short facts of the case are as under: The Management had levelled two charges against the 1^st respondent, who was the Principal of the College. Later on, a domestic enquiry was conducted and the enquiry officer found that the 2^nd charge stands proved. It is based on the said finding, the Management after giving an opportunity to the 1^st respondent for a hearing, imposed punishment of reduction in rank i.e., from the post of Principal to the post of Associate Professor. The 1^st respondent challenged the said reduction in rank before the Tribunal and the Tribunal by the impugned order dated 30.11.2018 set aside the said order with a finding that the charge alleged against 1^st respondent does not amount to a misconduct and accordingly the disciplinary proceedings were set aside.

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While impugning the aforesaid order passed by the Tribunal, the learned counsel appearing for the revision petitioners brought to

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CRP(UTY).No.1/2019

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our notice the details of the charge that has been levelled against and also the impugned letter which has been issued by the 1^st respondent which forms the subject matter of the charge. The issue had arisen when the Director of Collegiate Education by Ext.R1(c) letter dated 25.8.2017 called upon the Principal of various Colleges including that of the petitioners herein calling for details of the number of persons who had been appointed in the college and also the percentage of the staff and teachers coming under SC/ST category and also 1^st respondent's opinion to a memorandum which was sent along with the said letter. The memorandum issued by the Director of Collegiate Education was apparently with reference to providing reservation for SC/ST categories in the aided colleges to the post of teachers and staff. While giving the details in terms of Ext.R1(b), according to the Management, 1^st respondent had made certain negative remarks against them. The portion of the said letter which according to the Management amounts to misconduct reads as follows:

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“ഇനന എസസ എൻ എഎ ടടയനo ഗസ ക��ക�ജനട� ��ര�എ പര�മർശനകട�. ക��ർക��ക�റസ മ�കനജടമ�സ ആയത ന �ൽ അനദ��പ�ർ ആർ� സ ആ�സ സയൻസസ ക��ക�ജനലഎ ടടയനo ഗസ ക��ക�ജനലഎ ടപ�തവ�യന��ണസ നനയമനകട�ടനതസ. അതഎ ആദ�കപ�സനo ഗസ പ.ൺ ആയന��ണസ. ഭരനഭ�ഗഎ കപരഎ ടവറഎ എസസ എസസ എൽ സന വനദ��ഭ��സകയ�ഗ�ത മ�തമളവര�ണസ. ഇതകപ�ലഎ ഇല�തവർ വർഷങൾകസകശഷഎ തല�ത�പര=കടയഴതന എസസ എസസ എൽ സന പ�സ�കന. ഇവര�ണസ പ ന =ടസ വർഷങൾകസ കശഷഎ ക�ർകസമ�ര�കനതസ. എല�വരഎ തടന മ�കനജടമ� ന

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CRP(UTY).No.1/2019

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കവണട��വരഎ അന�വശ�മ�യ സF�ധ=നഎ മ�കനജടമ�നൽ ഉ�വ�കവ�ൻ സ�ധനകനവരഎ. ഇതസ ക��ക�ജസ ഓഫ=സനട� പവർതനങട� വ�ടരയധന�എ വനപര=തമ�യന ബ�ധനകന. ഈ നനയമനങ�നൽ സഎവരണടമടOനസ അ�നയ�തതകപ�ടലയണസ മ�കനജടമന�ൾ പവർതനകനതസ.”

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The enquiry officer also found that the said portion of the letter amounts to misconduct and accordingly the Management had taken a decision to revert her from the rank of Principal to Associate Professor.

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We heard the learned counsel for the revision petitioners, learned Senior Counsel for the 1^st respondent, the learned Standing Counsel appearing for the University and the learned Government Pleader for the State.

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Perusal of the impugned order passed by the Tribunal would indicate that the Tribunal had proceeded on the basis that the statement in the impugned letter of the 1^st respondent does not offend the Management or college in any manner.

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It is relevant to note that while setting aside the decision of the Management, the first principle the Tribunal has to bear in mind was whether the order has been passed in violation of the principles of natural justice. In this case there is no dispute regarding the fact that there is any violation of principles of natural justice. The Management has taken a decision after giving due notice and after giving necessary opportunity to the 1^st respondent to defend the proceedings.

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CRP(UTY).No.1/2019

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The principle of law governing judicial review in the matter relating to disciplinary action against an employee is well settled. The Apex Court in State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya [(2011) 4 SCC 584], after placing reliance upon earlier judgments held that the Courts will not act as an appellate Court and re-assess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in the departmental enquiries. Therefore, normally Courts will not interfere with the findings of fact recorded in departmental enquiries, unless such findings are based on no evidence or where they are clearly perverse. The above judgment was followed by the Apex Court in Central Industrial Security Force and Others v. Abrar Ali (2017) 4 SCC 507].

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The only question that was germane for consideration was whether the decision of the Management was without any basis or perverse. The paragraph which we have quoted earlier apparently implicates the Management on making certain appointments, which according to the 1^st respondent has affected the proper functioning of the institution.

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CRP(UTY).No.1/2019

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The memorandum which was sent by the Director of Collegiate Education was seeking for an opinion with reference to the reservation policy the Management should adhere to. While expressing her opinion regarding the reservation policy, she had also indicated that the Management was responsible for appointing persons who were not capable of performing the duties and it had created difficulty for her to maintain proper standards. Such an opinion regarding the competence of persons already appointed, apparently was not the opinion/comment that was called upon by the Director of Collegiate Education with reference to the memorandum. Such complaints were matters which the 1^st respondent ought to have taken up with the Management itself. In her reply itself she does not deny having given such a statement. But according to her she had written so, since the Management has not taken any action despite her repeated requests. It is also brought to our notice that those persons who were already appointed as staff had been approved by the Government and they have been paid salary. Of course, she might be justified in stating that their service are not upto the standard and affects the proper functioning of the college. But such matters are to be thrashed out within the Management itself and should not have formed part of the opinion, solicited by the Director of Collegiate Education.

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CRP(UTY).No.1/2019

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Therefore, when the Management felt that the contents of the said letter to the extent stated above had affected their reputation, the Tribunal cannot arrive at a conclusion that it does not affect the reputation of the Management. In an educational institution, if the Principal, teachers and staff starts making complaints against the Management to the Government, Government Authorities or to the public, it will definitely affect the discipline of the institution. Misconduct comes in different forms. Even making disparaging remarks against the Management can be termed as misconduct.

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Therefore we are of the view that the Management was justified in arriving at a conclusion that the impugned letter contained certain opinion which amounts to misconduct. To that extent, we set aside the order passed by the Tribunal.

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The next question to be considered is whether the imposition of penalty on the 1^st respondent is disproportionate to the charges levelled. Though we treat that the impugned letter contains certain statements which are not in good taste and can be treated as misconduct, still reverting the 1^st respondent from the rank of Principal to Associate professor, according to us, is totally disproportionate. This is not an instance where she had voluntarily written a letter to the Director of Collegiate Education complaining about the nature of

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CRP(UTY).No.1/2019

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appointments being made by the management. This is an instance where the Director of Collegiate Education had called upon her to offer her comments on a memorandum relating to reservations to SC/ST candidates in making appointment to the category of staff as well as teachers. While expressing her opinion, she had only made a comment about the manner in which certain staff were being appointed in the college and were later found to be incompetent. Therefore we are of the view that the letter happened to be written when it was solicited by the Director of Collegiate Education and therefore she should not be mulcted with such a serious punishment of reversion to a lower rank.

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Taking into consideration the factual situation that has arisen in the matter, we are of the view that only a lesser punishment ought to be given to the 1^st respondent. In Statute 73 of Chapter 45, of the M.G. University First Statute, censure, withholding the increments and promotions are also punishments which could be imposed. As far as reversion to lower rank is concerned, it is a more graver penalty. Having regard to the factual situation that has arisen in the case, we are of the view that only a lesser punishment ought to be given to the 1^st respondent.

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Accordingly, the revision petition is disposed of as under:

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CRP(UTY).No.1/2019

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(i) The impugned order of the Tribunal is set aside.

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(ii) The punishment imposed on the 1^st respondent is also set aside and the Management is directed to issue fresh orders by imposing a lesser punishment on the 1^st respondent.

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(iii) Appropriate orders shall be passed within a period of two weeks from the date of receipt of a copy of this judgment.

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Sd/-

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A.M.SHAFFIQUE, JUDGE

Sd/-

A.M.BABU, JUDGE

True copy

P.A. To Judge.

Manager v. Dr.Mp.Anitha

Case brief

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Manager v. Dr.Mp.Anitha

Case brief

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