Partly allowed

Dr. Bindu George v. Aquinas College Edacochin

Kerala HC15 Nov 2021WA/500/2021

Case brief

AI extract

What is this about?

This writ appeal challenged a judgment upholding disciplinary proceedings initiated after the original disciplinary authority withdrew. The Court reaffirmed the lower court's decision to set aside the initial show-cause notice, directing the new authority to issue a fresh notice enclosing the enquiry report for a hearing on its validity and the proposed punishment.

What did the court decide?

Guaranteed the petitioner an effective opportunity to challenge the legality of the enquiry and report; extended time for final proceedings by three months.

Dr. Bindu George Vs Aquinas College Edacochin — Pension and Retirement Benefits | 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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MONDAY, THE 15^TH DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943

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WA NO. 500 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 28570/2020 OF HIGH COURT OF

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KERALA

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APPELLANT:

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DR. BINDU GEORGE AGED 52 YEARS HEAD OF DEPARTMENT,DEPARTMENT OF ECONOMICS (UNDER ORDER OF SUSPENSION), AQUINAS COLLEGE,EDAKOCHI,COCHIN-682010. BY ADV P.C.SASIDHARAN

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RESPONDENTS:

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1 AQUINAS COLLEGE EDACOCHIN COCHIN-682010,REPRESENTED BY THE MANAGER. 2 THE EDUCATIONAL AGENCY/DISCIPINARY AUTHORITY, AQUINAS COLLEGE,EDACOCHIN, COCHIN-682010. 3 MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS,KOTTAYAM-686560. 4 FR.JOSEPH CHIRAMMEL MANAGER, AQUINAS COLLEGE,EDACOCHIN, COCHIN-682010. 5 PRASUN.S, ADVOCATE (INQUIRY AUTHORITY IN THE MATTER OF INQUIRY INTO THE CHARGES AGAINST DR.BINDU GEORGE),5TH FLOOR, EMPIRE BUILDINGS,OPP.CENTRAL POLICE STATION, NEAR HIGH COURT OF KERALA, KOCHI-682018. SENIOR ADVOCATE SRI. ABRAHAM VAKKANAL BY ADV. VINEETHA SUSAN THOMAS STANDING COUNSEL SRI. SURIN GEORGE IPE THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA NO. 500 OF 2021

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JUDGMENT

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A.K.Jayasankaran Nambiar,J

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The petitioner in WP(C)No.28570 of 2020 is the appellant before us, aggrieved by the judgment dated 24.02.2021 of the learned Single Judge. The brief facts necessary for the disposal of the writ appeal are as follows:-

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The appellant was working as Professor and Head of the Department of Economics in the respondent College. On 06.03.2020, she was issued a notice referring to a complaint received against her from one Vijo.M.Joy and seeking her explanation on the same. By Ext.P2 reply dated 12.03.2020 the petitioner denied the allegation and also sought a copy of the complaint stated to have been made against her since a copy of the said complaint was not enclosed along with Ext.P1 communication issued to her. It was also mentioned in the said reply that the said Vijo.M.Joy had in fact verbally abused the petitioner and this aspect has been brought to the notice of the Manager of the College

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through Ext.P3 complaint dated 05.03.2020 of the petitioner. The said proceedings eventually culminated in Ext.P4 order dated 25.05.2020, whereby, the proceedings against the petitioner were dropped after recording a warning against any future misconduct by the petitioner. On receipt of Ext.P4 order, the petitioner, by Ext.P5 letter dated 22.06.2020 addressed the Manager of the College and requested for recalling certain observations in Ext.P4 order, which according to the petitioner, would cast a stigma on her service in the College. In response to the said letter issued by the petitioner, the Manager of the College who was also the disciplinary authority in relation to the petitioner, by Ext.P6 communication dated 02.07.2020 recalled Ext.P4 letter dated 25.05.2020 and initiated de novo proceedings against the petitioner. By the same communication the petitioner was also suspended from service pending completion of the disciplinary proceedings against her.

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It would appear that immediately on receipt of Ext.P6 communication from the Manager, the petitioner approached this Court through WP(C)No.13641 of 2020 challenging her suspension. This Court by Ext.R2(a) judgment dated 21.08.2020 disposed the writ petition permitting the respondent

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College to proceed with the disciplinary proceeding and finalise the same within a period of one month from the date of receipt of the judgment provided that the petitioner also co-operated with the enquiry. It was made clear that in the event of the enquiry not being finalised despite the co-operation of the petitioner, within the period stipulated in the judgment, she would be reinstated in service. An appeal preferred by the petitioner against the said judgment was dismissed by Ext.R2(b) judgment of the Division Bench dated 09.09.2020 in WA No.1147 of 2020.

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Thereafter, the petitioner was served with Ext.P8 memo of charges dated 30.07.2020. Apart from charges 1, 2 and 3 that were the same as that contained in the memo of charges issued to the petitioner in the first round of disciplinary proceedings that was dropped by Ext.P4 order dated 25.05.2020, three new charges – 4, 5 and 6 were incorporated in the new memo of charges issued to the petitioner. Although, by Ext.P9 explanation dated 26.08.2020, the petitioner prayed for dropping further proceedings in the matter, an enquiry officer came to be appointed by the then Manager of the College, who was the disciplinary authority in relation to the petitioner. The enquiry proceedings,

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thereafter, culminated in the enquiry officer drawing up an enquiry report dated 24.11.2020 (produced as Exhibit R2(C) along with the counter affidavit of the respondent). Immediately thereafter, Ext.P11 show cause notice dated 07.12.2020 was issued to the petitioner, wherein, notice was taken of the fact that the Manager-Fr.Chiramel, who was the disciplinary authority in relation to the petitioner at the time when Ext.P8 memo of charges was issued, had withdrawn from the proceedings taking note of the objection of the petitioner before the enquiry officer that the same person could not function both as disciplinary authority as also a witness in the proceedings against the petitioner. In the show cause notice, therefore, the newly appointed disciplinary authority proposed the imposition of a penalty on the petitioner based on the enquiry report that was accepted by the earlier disciplinary authority.

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The petitioner approached this Court impugning Ext.P11 show cause notice through the writ petition in which the impugned judgment of the learned Single Judge was passed. The learned Single Judge found that the impugned Ext.P11 show cause notice could not be legally sustained in as much as the newly appointed disciplinary authority had been conferred the limited

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role of proposing a punishment on the petitioner and it was the earlier disciplinary authority who had accepted the enquiry report against the petitioner without considering any objection from the petitioner regarding the acceptance of the enquiry report. It was also found that the non-supply of the copy of the enquiry report along with the show cause notice issued to the petitioner itself would vitiate the proceeding and was fatal to it and merited an intervention of the court at that stage itself. The learned Single Judge, therefore, found Ext.P11 show cause notice to be legally unsustainable in as much as it had been issued to the petitioner without forwarding a copy of the enquiry report to her. The show cause notice was therefore, set aside and a direction issued to the respondent to serve a copy of the enquiry report on the petitioner and to require her to submit her explanation to the same. It was made clear that the petitioner’s explanation to the enquiry report would be considered and an appropriate decision taken as to the legality of the enquiry and the proposed punishment, if any. The disciplinary authority was also directed to finalise the proceedings within a period of three weeks from the date of receipt of a copy of this judgment.

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In the appeal before us the contention of the learned counsel for the appellant Sri.P.C.Sasidharan is essentially that, in as much as the challenge in the writ petition was against the initiation of disciplinary proceedings through Ext.P6 charge memo, as also against the continuation thereof till the stage of culmination of the proceedings through the issuance of Ext.P11 show cause notice on the ground that the entire exercise was vitiated on account of the conduct of the erstwhile disciplinary authority in participating in the proceedings before the enquiry officer as witness whilst continuing as a disciplinary authority, the directions in the judgment were incomplete and the learned Single Judge ought to have found the proceedings culminating in the enquiry report as void and legally unsustainable. The present appeal is, therefore, essentially against that part of the judgment of the learned Single Judge that refused to set aside the enquiry report. The legal submissions of the learned counsel for the appellant seek to establish that the tendering of evidence by Fr.Chiramel, who was the Manager and the disciplinary authority in relation to the petitioner at all the stages commencing from the issuance of the charge memo till the stage of acceptance of the enquiry report, effectively vitiated the entire disciplinary proceedings itself on the principle of likelihood

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of inducing bias in the enquiry officer. He would cite the following decisions to substantiate his contentions on merits, regarding the undesirability/impropriety of a disciplinary authority acting simultaneously as a witness and as a disciplinary authority in the same proceedings. State of U.P. v. Mohammed Nooh (1958 KHC 398), Arjun Chaubey v. Union of India and Others (1984 KHC 646), Mohd. Yunus Khan v. State of U.P. and Others (2010 KHC 4723), Ashok Kumar Yadav and Others v. State of Haryana and Others (1985 KHC 737), Rattan Lal Sharma v. Managing Committee, Dr.Hari Ram (Co-education) Higher Secondary School (1993 KHC 971), S.Parthasarathi v. State of A.P. (1974 KHC 581), Kureshi A.U. v. High Court of Gujarat and Another (2009 KHC 5227), Tilak Chand Magatram Obhan v. Kamala Prasad Shukla and Others (1995 KHC 1016), Managing Director, ECIL, Hyderabad v. B.Karunakar (1993 KHC 995), Punjab National Bank v. S.P.Goel (1998 KHC 561), Lilly Kurian v. University Appellate Tribunal (1997 KHC 136) and Special Director and Another v. Mohd.Ghulam Ghouse and Another (2004 KHC 495).

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Per contra, it is the submission of the learned Senior counsel

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Sri.Abraham Vakkanal assisted by Smt.Vineetha Susan Thomas, on behalf of the respondent College, that there was no bias established in the instant case and more over the petitioner had all along participated in the enquiry before the enquiry officer without raising any objection to Fr.Chiramel - the Manager of the College - appearing as witness in the proceedings. He would further contend that the initiation of disciplinary action/suspension, as also the validity of Ext.P6 memo of charges, could not be challenged in the present round of litigation since the challenge against the same had already been considered and rejected by this Court in the earlier round of litigation as borne out by Exts.R2(a) and R2(b) judgments produced along with the counter affidavit. The learned Senior counsel would also place reliance on the following judgments to fortify his contentions on merits. Mohd.Yunus Khan v. State of Uttar

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Pradesh and Others [ 2010 (10) SCC 539], Kalparaj Dharamshi and Ors v. Kotak Investment Advisors Ltd.and Ors. (MANU/SC/0174/2021) (Civil Appeal Nos.2943-2944, 3138-3139, 2949-2950 of 2020 and Civil Appeal Nos.847-848/2021 Decided on 10.03.2021), State of U.P. v. Sudhir Kumar Singh and Ors (MANU/SC/0773/2020) (Civil Appeal Nos.3498 of 2020, 3499 of 2020 and 3500 of 2020 Decided on 16.10.2020), Rattan Lal Sharma v.

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Managing Committee, Dr.Hari Ram (Co-education) Higher Secondary School (AIR 1993 SC 2155), P.D.Dinakaran v. Judges Inquiry Committee

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and Others [(2011) 8 SCC 380] , Union of India and others v. Sanjay Jethi and Another [(2013) 16 SCC 116], Rashtriya Sanskrit Sansthan v. Sarala Devi [2021 (5) KLT SN 28 (C.No.13)], Asgar v. Mohan Varma [2019(1) KLT 3023(SC)], Director General, Indian Council of Medical Research and Others v. Dr.Anil Kumat Ghosh & Another [(1998) 7 SCC 97], Union of India and Another v. Kunisetty Sathyanarayana [(2006) 12 SCC 28] and Asst. Supdt. Of Post Offices and Others v. G.Mohan Nair [(1999)1 SCC 183].

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On a consideration of the rival submissions and on a perusal of the pleadings in the writ petition as also the finding of the learned Single Judge in the judgment impugned in the writ appeal, we find that the challenge in the writ petition was essentially on the legality of Ext.P11 show cause notice to the extent it had been issued by a newly appointed disciplinary authority, after the earlier disciplinary authority, had accepted the findings of the enquiry officer in the disciplinary proceedings that were initiated by him. The contention

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essentially was that a person who had appeared in the disciplinary proceedings as a witness could not thereafter function as the disciplinary authority when it came to deciding upon a particular course of action against the delinquent employee. This contention of the petitioner was accepted by the learned Single Judge who, in our view rightly, found that the show cause notice issued to the petitioner proposing a punishment was not one that could be legally sustained, more so in the light of the judgments of the Supreme Court in The Managing Director ECIL, Hyderabad and Others v. B. Karunakar and Others [1993 (4) SCC 727], Punjab National Bank and Others v. Kunj Behari Misra [1998 (7) SCC 84], Ratan Lal Sharma v. Managing Committee Dr.Hari Ram (Co-education) Higher Secondary School and Others [1993 (4) SCC 10], Union of India and Another v. Kunisetty Satyanarayana [2006 (12) SCC 28] and Mohd.Yunus Khan v. State of Uttar Pradesh and Others [ 2010 (10) SCC 539]. Ext.P11 show cause notice was, therefore, set aside and the petitioner relegate to the stage where she would get an opportunity to raise all contentions regarding the legality of the show cause notice calling upon her to show cause against the acceptance of the enquiry report, and thereafter to the proposal for imposition of a punishment on her. We see no reason to

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interfere with the said judgment of the learned Single Judge save to the limited extent of clarifying that, on the facts of the instant case, the stage to which the petitioner is to be seen as relegated is the stage where she will get an effective opportunity to raise all contentions as regards the legality of the enquiry conducted against her and the resultant enquiry report. We make it clear that on the respondents issuing a fresh show cause notice to the petitioner, that encloses a copy of the enquiry report and requires her to show cause as to why the enquiry report should not be accepted by the newly constituted disciplinary authority and why a punishment should not be imposed on her, it would be open to the petitioner to raise all contentions including the legality of the enquiry report itself inter alia on the contention that the said report was vitiated because it was drawn up by an enquiry officer who was appointed by the disciplinary authority who continued to be the disciplinary authority in relation to the writ petitioner, till such time as the enquiry report was drawn up. The said question assumes relevance since it is seen from the files that it was the same disciplinary authority who figured as a witness in the proceedings against the writ petitioner. The educational agency who has to now function as disciplinary authority vis-a-vis the writ petitioner shall consider the objections

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filed by her to the acceptance of the enquiry report against her and, thereafter, take a decision as to whether or not any punishment is to be imposed on her, in case the enquiry report is accepted, rejecting the contentions of the delinquent. At that stage, the contentions of the petitioner against the imposition of such punishment shall also be considered before a final order is passed in culmination of the disciplinary proceedings. Needless to say, after getting the explanation from the petitioner to the show cause notice issued to her as above, the petitioner shall also be afforded an opportunity of hearing. In the light of the directions above, the time granted by the learned Singe Judge to complete the proceedings shall stand extended by a period of three months from the date of receipt of a copy of this judgment.

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The writ petition is disposed of accordingly.

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Sd/-

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A.K.JAYASANKARAN NAMBIAR,

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JUDGE

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Sd/- MOHAMMED NIAS C.P., JUDGE

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dlk 19.11.2021