Partly allowed

Lijo Anto M.A. v. Manager, (Prof.S.K.Krishnan Nampoothiri)

Kerala HC8 Dec 2021CRP(UTY)/1/2021

Case brief

AI extract

What is this about?

High Court allowed a revision in part against a punishment of removal from service. It held the lower authorities misapplied a prior remand order and failed to re-appraise totality of evidence. The punishment was deemed harsh; matter remitted to tribunal to alter to lesser punishment.

What did the court decide?

Punishment of removal from service set aside; matter remitted to Tribunal to alter punishment to something short of removal.

Lijo Anto M.A. Vs Manager, (Prof.S.K.Krishnan… — Service and Employment | Kerala HC (2021)

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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.K.JAYASANKARAN NAMBIAR

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THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

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WEDNESDAY, THE 8^TH DAY OF DECEMBER 2021 / 17TH AGRAHAYANA, 1943

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CRP(UTY) NO. 1 OF 2021

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AGAINST THE ORDER/JUDGMENT DATED 16-12-2020 IN UNIVERSITY APPEAL 5/2019 OF CALICUT UNIVERSITY APPELLATE TRIBUNAL, TRIVANDRUM

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PETITIONER/S:

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LIJO ANTO M.A. AGED 41 YEARS, S/O. M.C. ANTONY, ASSISTANT PROFESSOR, SREEKRISHNAPURAM V.T. BHATTATHIRIPPAD COLLEGE, MANNAMPATTA, PALAKKAD (UNDER ORDERS OF REMOVAL), RESIDING AT MANJALLY HOUSE, PLOT 117, PRIYADHARSANI NAGAR, PARAVATTANY, THRISSUR-680 005 BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB

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RESPONDENT/S:

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1 MANAGER, (PROF.S.K.KRISHNAN NAMPOOTHIRI) SREEKRISHNAPURAM V.T BHATTATHIRIPAD COLLEGE, MANNAMPATTA P.O, MANNAMPATTA, PALAKKAD-679 517 2 CHAIRMAN, SREESANKARA TRUST, EDUCATIONAL AGENCY OF SREEKRISHNAPURAM V.T. BHATTATHIRIPAD COLLEGE, PERUMBAVOOR, ERNAKULAM-683 556 3 REGISTRAR, UNIVERSITY OF CALICUT, THENHIPALAM, CALICUT UNIVERSITY P.O, MALAPPURAM-673 636 BY ADV SRI.V.A.MUHAMMED FOR R1 ADV. SRI. P.C. SASIDHARAN FOR R3

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THIS CRP (UNIVERSITY ACT) HAVING BEEN FINALLY HEARD ON 24-11-2021 THE COURT ON 08.12.2021 DELIVERED THE FOLLOWING:

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C.R.P.(UTY).No. 1 of 2021

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A.K.JAYASANKARAN NAMBIAR,& MOHAMMED NIAS C.P.JJ.

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C.R.P.(UTY).No. 1 of 2021

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Wednesday, the 8^th day of December, 2021 O R D E R

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Mohammed Nias C.P.J.

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The above Revision is preferred by the delinquent against the judgment dated 16-12-2020 in University Appeal 5 of 2019 rendered by the Calicut University Appellate Tribunal & Additional District JudgeIII, Thiruvananthapuram, (“Tribunal” for short) dismissing the appeal filed by the delinquent questioning the punishment of removal from service following a disciplinary enquiry.

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The facts necessary for the adjudication are as follows:-

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On 11-12-2015, the appellant, a teacher allegedly made sexual advances which involved outraging the modesty of a lady teacher working in the same department, viz., Computer Science Department of Sreekrishnapuram V.T. Bhattathiripad College. A formal complaint was made only on 23-12-2015, on the basis of which a preliminary enquiry was conducted through MW1, the Assistant Manager of the

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C.R.P.(UTY).No. 1 of 2021

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College to ascertain the genuineness of the complaint. Relying on the statements taken from the two fellow teachers it was prima facie found that the complaint was justified. The delinquent was suspended on 28-12-2015, an Enquiry Officer was appointed and a charge-memo was issued. The statement of allegations of misconduct dated 4-3-2016 was served on the delinquent on 14-3-2016. The enquiry culminated in the disciplinary authority accepting the report which found the appellant guilty of the misconduct alleged. The Management thereupon imposed the maximum punishment of removal from service.

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The delinquent challenged the said order in University Appeal No. 9 of 2017 on the files of the Tribunal, which by order dated 30-11-2018, inter alia, found that there was violation of the principles of natural justice as the delinquent was not permitted to examine the witnesses on his side. It thus set aside the punishment and directed the enquiry to commence from that stage. The said order was challenged before this court by the management as well as the by delinquent. C.R.P (UTY). No. 4 of 2019 was filed by the delinquent while CRP (UTY) No. 2 of 2019 was filed by the Management.

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C.R.P.(UTY).No. 1 of 2021

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This court in Revision, accepted the finding of the Tribunal that there was violation of the principles of natural justice. Accordingly, this Court directed the Enquiry Officer to issue summons to the four witnesses sought to be examined by the delinquent and enquiry proceedings were directed to be recommenced only for the examination of those four persons. While doing so, this Court specifically held as follows in paragraph 14 of the order and the same is being extracted as the Management, the Enquiry Officer as well as the Tribunal had profusely relied on the said paragraph which reads as follows:-

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“14. In the facts and circumstances of the case we have to set aside the order of the disciplinary authority, with a caveat, since there is the contingency of the witnesses not turning up, in which event there is no further evidence available. All the other contentions against the enquiry have been negatived by the Tribunal and we have affirmed such findings too. We also see that the Tribunal has considered the evidence on record and has found the allegations to be proved. We agree with the findings of the Tribunal that as the evidence now stands the charge is proved and the misconduct found warrants the punishment as awarded by the disciplinary

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authority. A different view need be taken only if there is any evidence upsetting that already led or putting to suspicion that available in the records of the enquiry. We hence set aside the order of the disciplinary authority, conditional to further evidence being proffered by the four witnesses now attempted to be produced before the Enquiry officer. It is made clear that if the witnesses summoned do not appear, then of course there is no scope for redoing the entire exercise especially since all other contentions have been held against the delinquent. If none turns up on their own volition nothing remains, and the order of the disciplinary authority would stand sustained. Both the Civil Revision Petitions are disposed of with the above direction”.

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The Enquiry Officer, after the remit as aforesaid found that

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the evidence on the side of the delinquent was not enough to dislodge the evidence adduced on the side of the Management and purportedly acting on the directions of the High Court again found the delinquent to be guilty of the misconduct alleged. Following the same, the disciplinary authority again imposed the maximum punishment of removal from service.

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C.R.P.(UTY).No. 1 of 2021

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The delinquent then approached the Tribunal by filing University Appeal No. 5 of 2019, which after considering the contentions on both sides, dismissed the appeal confirming the punishment meted out to the delinquent. It is this order that is challenged before us in this Revision.

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Heard Sri. George Poonthottam, the learned Sr. counsel for the appellant instructed by Adv. Sri. Liju V. Stephen, Adv. Sri. V.A. Mohammed and by Adv. P.A. Jenzia for the College and the learned Standing Counsel Sri. P.C. Sasidharan for the University.

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The learned Sr. Counsel for the appellant made the following submissions:-

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All the four witnesses examined after the remand clearly denied the incident alleged by the complainant and thus there was no evidence at all before the Enquiry Officer to find any guilt on the part of the delinquent. The Enquiry Officer was pre-judged and has misinterpreted the directions of this Court in the earlier revision and has misappreciated the evidence adduced leading to faulty conclusions.

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C.R.P.(UTY).No. 1 of 2021

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The Enquiry Officer as well as the Tribunal went wrong in treating the reply given by the delinquent (M15) as an admission of guilt on his part.

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The Enquiry Officer as well as the Tribunal completely discarded the evidence, adduced both oral and documentary and has committed factual and legal mistakes while rendering crucial findings.

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Going by the provisions of Section 60 (9) and (11) of the Calicut University Act, it is argued that the power of this Court to interfere is far wider than a revisional or supervisory power and that the Tribunal's order is liable to be interfered with.

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On the other hand, the learned counsel for the management argues that the first reply given by the the delinquent (M15) clearly discredits the evidence let in by the four witnesses on his side and as such their evidence, after remand has to be completely eschewed in which case, going by the earlier directions of this Court, which has become final there was no option for the Enquiry Officer but to uphold

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the finding of guilt earlier arrived at.

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The Tribunal found that in the reply given by the delinquent (M15) to the show cause notice issued, he had stated that MW2 (complainant) had reached the spot at the time when he came out of the Lab. However, DWs 2 to 4 had categorically stated that they had not seen the complainant at the spot when DW1 came out of the Lab. That apart, even according to DWs 2 to 4, DWs 2 and 3 had proceeded

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towards the Seminar Hall along with DW1 (appellant/delinquent). This version was modified in the proof affidavit when he tried to explain the said admission by stating that MW2 had reached the entrance of the Lab at the time when he was about to move away from the entrance of the lab and that DWs 2 and 3 had proceeded to the seminar hall by then. These versions of DW2 to 4, according to the Tribunal cuts at the very root of the defence set up by DW1 for even according to him, MW2 had reached the spot soon after he came out of the Lab and DW4 had remained at the spot at the time when he and DWs 2 and 3 proceeded to the Seminar Hall. DW4 had denied that he had seen MW2 at that time.

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The Tribunal also found that there is discrepancy in the

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C.R.P.(UTY).No. 1 of 2021

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evidence of DW1 as to who had obtained the key of the lab while the delinquent asserted that it was he who collected the key of the Lab from MW5, MW5 deposed that it was MW2 who had collected the key from him. It was primarily on these contradictions that the Tribunal as also the Enquiry Officer assessed the evidence let in after the remand to hold that the materials and the evidence on behalf of the delinquent are not sufficient to discredit the version given by MW4, the alleged sole witness who saw the complainant running away crying.

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The learned counsel for the appellant submits that the version given by MW4 that he had seen MW2 running away from the Computer Science Lab shrieking in fright cannot be believed at all as he had availed casual leave on that day. The learned counsel also argues that if MW4 had seen such an incident, he would certainly have reported the same and that coupled with the fact that there is delay on the part of the complainant to make a formal complaint, there is total lack of evidence to prove the incident alleged.

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It is to be noticed that the Tribunal did not accept the suggestion on behalf of the delinquent that the fact that MW4 did not divulge the incident to anyone else, cannot be taken as a ground for

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disbelieving his version regarding his presence at the spot. On a reading of the findings of the Enquiry Officer as well as the finding of the Tribunal it has to be noted that both of them appreciated the evidence, after the remand, in the light of the directions made by this Court, in the remand order and they have misunderstood it as one which accepted the credibility of the evidence already let in, in its entirety. This has been done on a misreading of the order of this court which never could have meant such an eventuality. The evidence let in after remand should have been considered along with the evidence adduced on the side of the Management before remand and weighed against each other having regard to the totality of the facts and circumstances before arriving at a conclusion in the enquiry. That not having been done, we have no hesitation to hold that it has vitally impacted the appreciation of evidence in the correct perspective. We hold so on the basis of the finding arrived at by the Tribunal as well as the Enquiry Officer which are reproduced hereunder:-

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“The findings rendered on those points would clearly suggest that the findings rendered by him under the said points had led him to a conclusion that the evidence tendered by the delinquent teacher is not sufficient to upset or shake the

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C.R.P.(UTY).No. 1 of 2021

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evidence already let in by the management (respondents 1 & 2 herein) and that therefore he does not find any reason to deviate from the findings already rendered by him as per the enquiry report dated 27-4-2017”.

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It is also worthwhile to note the finding of the Enquiry Officer in this regard:

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The evidences tendered on the side of the delinquent employee during the process of inquiry after the order of the Hon'ble High Court do not warrant a different conclusion than that already rendered in the earlier report dated 27^th of April 2017. The Hon'ble High Court while remanding the case has categorically held that a different view need be taken only if there is any evidence upsetting that already led or putting to suspicion that available in the records of the enquiry.

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The evidence tendered on the side of the delinquent after the order of the Hon'ble High Court does not in any manner upset the evidence or put any suspicion with regard to the evidence available on records. So, I do not find any reason to take a different view from the findings of my earlier report submitted to the management.

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C.R.P.(UTY).No. 1 of 2021

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Hence, I reiterate my earlier findings arrived in the report dated 27-04-2017. For the sake of convenience and to avoid repetition, the report already submitted shall form part of this report and the same is annexed treating it as part of this report”.

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This approach, in our opinion, to say the least, has caused serious prejudice to the delinquent. Going through the report of the Enquiry Officer as well as the order of the Tribunal in appeal, it is surprising to note that both of them had not considered Ext. A17, a report submitted by the Inspector of Police, Cherpulssery, to the Kerala State Human Rights Commission, on a complaint filed by the parents of the delinquent in which a detailed investigation was conducted and the statements of around 15 persons including the teachers of the College were taken, and after considering all of them, the Inspector, by his report dated 18-07-2017 expressed doubt over the act on the part of the complainant in not making a complaint in time and also suspecting the evidence of MW4, who was on leave on the date in question and who appears to be the sole eye-witness to the complainant running out from the Laboratory. The evidence of the Principal was also doubted as he did not forward a complaint of this

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nature to either the Police or to the Women Cell in the College or to the Anti – Sexual Harassment Squad for appropriate action and instead forwarded it to the management alone. This report was never considered at all by the Enquiry Officer but was strangely relied on by the Tribunal for finding that there was no harassment to the delinquent on the basis of his caste. While selectively mentioning about this, the Tribunal has brushed aside all the other findings in Ext. A17 report.

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We also find considerable force in the argument of the learned Senior Counsel for the appellant that the presence of MW4 who was admittedly on leave on the day the alleged incident happened to figure as the solitary witness for having seen the complainant running out of the Laboratory, casts serious doubt on the complaint. The Enquiry Officer as well as the Tribunal was entirely wrong in not considering Ext. A17 report. The Tribunal was clearly in error in relying on a portion of it selectively while discarding the other. We also note that barring the statement made by the delinquent in Ext. M15 and the slight contradictions in the evidence given by the four teachers after the remand, it has been a case of oath against oath as teachers had supported the versions on both side. In such

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circumstances, to award the maximum punishment rather capital punishment of removal from service, we feel is extremely harsh and shockingly disproportionate.

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As stated earlier, the Tribunal and the Enquiry Officer on a misreading of the earlier judgment of this court did not appreciate the evidence on the part of the delinquent let in after remand with the evidence on the side of the management, in the proper perspective. In stead, both the Tribunal and the Enquiry Officer have accepted the evidence on the side of the Management as credible and trustworthy and has tried to find out whether the evidence let in later could dislodge the evidence already let in by the Management, which they felt was given a stamp of acceptance by this Court. Having set aside the enquiry report after finding it to be vitiated for not considering the evidence offered by the delinquent employee, the latter part of the order could not have been seen as directing the enquiry officer or Tribunal to accept the findings in the same enquiry report and compare it with the fresh evidence adduced in the de novo proceedings. The enquiry officer and Tribunal ought to have considered the fresh evidence brought in by the delinquent employee along with the evidence originally tendered and arrived at a fresh

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decision in the light of the entire evidence available before it. This, however, was not done.

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We have no doubt that the delinquent was seriously prejudiced by the Enquiry Officer and the Tribunal approaching the matter in the said perspective. Ordinarily, we would have remanded the matter for fresh consideration but since the matter was already remanded once by this court, we feel that, on account of the passage of time, to make a further remand at the distance of time, would only be prolonging the agony of the parties and will serve no other purpose.

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After an elaborate consideration of the facts and circumstances, we are of the considered opinion that having regard to the totality of the facts obtaining in the instant case, the punishment imposed should be altered to a lesser one viz., anything short of removal from service.

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Accordingly, we allow this Revision in part by setting aside the punishment of removal from service imposed on the delinquent and remit the matter to the Tribunal to alter it to a

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punishment short of removal from service. The Tribunal may also consider directing the Management to give a posting to the complainant and the delinquent in different colleges under the same Management. The Tribunal will take a final decision as aforesaid and pass a modified judgment within a period of three months from the date of receipt of a copy of this order.

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In the result, this Revision is allowed in part. The parties shall appear before the Tribunal on 20-12-2021.

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Sd/- A.K.JAYASANKARAN NAMBIAR, JUDGE

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Sd/-MOHAMMED NIAS C.P.

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JUDGE

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ani/8/12/2021

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/true copy/

Lijo Anto M.A. v. Manager, (Prof.S.K.Krishnan Nampoothiri)

Case brief

What is this about?

What did the court decide?

Lijo Anto M.A. v. Manager, (Prof.S.K.Krishnan Nampoothiri)

Case brief

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What did the court decide?

What the court decided

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