Allowed

Anil Kumar.a.P v. the State of Kerala

Kerala HC18 Nov 2021WP(C)/12966/2020

Case brief

AI extract

What is this about?

The High Court held that even for minor penalties, if the punishment affects the service career, the disciplinary authority must afford an opportunity of personal hearing as the term 'opportunity' in the university statutes encompasses a personal hearing. Both impugned orders were quashed for violating natural justice.

What did the court decide?

Orders of the Registrar and Vice Chancellor imposing withholding of increment were quashed; writ petitions allowed.

Anil Kumar.a.P Vs the State of Kerala — 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 AMIT RAWAL

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THURSDAY, THE 18^TH DAY OF NOVEMBER 2021 / 27TH KARTHIKA, 1943

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WP(C) NO. 12563 OF 2020

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PETITIONER:

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ANIL KUMAR A.P. AGED 51 YEARS, S/O.A.A.PANKAJAKSHAN, ASSISTANT SECTION OFFICER, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686 560.

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BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.R.GITHESH SRI.AJAY BEN JOSE SRI.MANJUNATH MENON SHRI.HARIKRISHNAN S.

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686 560, REPRESENTED BY ITS REGISTRAR. 3 THE VICE CHANCELLOR, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686 560. BY ADVS. SC, M.G.UNIVERSITY SHRI.SURIN GEORGE IPE, SC, M.G.UNIVERSITY

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GP SRI JIMMY GEORGE

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.10.2021, ALONG WITH WP(C).12966/2020, THE COURT ON 18.11.2021 DAY DELIVERED THE FOLLOWING:

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WP(C)NOs.12563/2020 & 12966/2020

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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 AMIT RAWAL

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THURSDAY, THE 18^TH DAY OF NOVEMBER 2021 / 27TH KARTHIKA, 1943

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WP(C) NO. 12966 OF 2020

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PETITIONER:

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ANIL KUMAR.A.P AGED 51 YEARS, S/O.A.A.PANKAJAKSHAN, ASSISTANT SECTION OFFICER, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686560.

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BY ADVS. P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.R.GITHESH SRI.AJAY BEN JOSE SRI.MANJUNATH MENON SHRI.HARIKRISHNAN S.

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686560, REPRESENTED BY ITS REGISTRAR.

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3 THE VICE CHANCELLOR, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686560.

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BY ADV SC, M.G.UNIVERSITY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.10.2021, ALONG WITH WP(C).12563/2020, THE COURT ON 18.11.2021 DELIVERED THE FOLLOWING:

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WP(C)NOs.12563/2020 & 12966/2020

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JUDGMENT

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The questions of law to be decided in these cases are, 1) On receipt of the enquiry report against the petitioner in both the writ petitions, whether before imposing a minor penalty, an opportunity of personal hearing ought to have been granted to the petitioner or not.

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If there has been a compliance, whether petitioner has an efficacious remedy of appeal as per the provisions of Part-III of the Mahatma Gandhi University Statutes, 1997.

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Petitioner had been imposed with a punishment of withholding of increment for a limited period vide order Ext.P13 dated 16.10.2019 in W.P(C).No.12563/2020 by the Registrar of the University and vide order Ext.P16 dated 11.11.2019 in W.P. (C).No. 12966/2020 by the Vice Chancellor. In both the orders before imposing the punishment and on receipt of the enquiry report, petitioner was given an opportunity on proposal to impose the punishment, which was duly replied.

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Learned counsel appearing on behalf of the petitioner submitted that imposition of minor penalty is provided as per

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WP(C)NOs.12563/2020 & 12966/2020

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Statute 35 and Statute 55 prescribes the procedure where no order imposing any penalty as specified in item No.(i) to (iv) of Statute 35 can be passed except after University employee is informed in writing of the proposal to take action against him and of the allegations, by giving an opportunity. Expression 'opportunity' is not only the show cause but personal hearing as well. In support of the aforementioned contention has relied upon the judgment of this Court in Jalaja G.Prabhu v. Board of Trustes, Dr.Padiar Memorial Homeopathic Medical College

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and Others [2018 KHC 402] wherein it has been categorically held that the principles of audi alterem partem had to be complied with.

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On the other hand, Sri.Surin George, learned counsel appearing on behalf of the respondent has raised the objection of maintainability of the writ petition by relying upon the provisions of Statute 61 of the Statutes as the remedy of appeal against the order of Registrar lies to the Vice chancellor and against the order of Vice Chancellor, to the Chancellor. Sufficient opportunity by issuing a memo was given and not found satisfactory. There is no provision in the Statute 55 regarding any personal hearing.

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WP(C)NOs.12563/2020 & 12966/2020

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I have heard the learned counsel for the parties and

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appraised the paper book.

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To answer the questions raised hereinabove it would

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be apt to produce Statute 55 of Part III of Mahatma Gandhi Statutes, 1997:

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“55. Inquiry:- No order imposing any of the penalties specified in items (I) to (iv) of Statute 35 shall be passed except after.

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(a) the University employees informed in writing of the proposal to take action against him and of the allegations on which it is proposed to be taken and given an opportunity to make any representation he may wish to make:

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(b) such representation, if any, is taken into consideration by the disciplinary authority.”

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From the perusal of the aforementioned provision the expression 'opportunity' whether would embrace personal hearing or only an opportunity of proposed punishment, I am of the view that even if a person has to be imposed a minor penalty which would affect his service career like the one in the instant case, despite having been given a show cause notice of proposed punishment and reply thereof not found to be satisfactory, the Vice Chancellor or the Registrar imposing the punishment as per

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the orders Exts.P13 and P16 in the respective writ petitions ought to have given opportunity of personal hearing. Thus both the orders Ext.P13 in W.P.(C).No.12563/2020 and Ext.P16 in W.P. (C).No. 12966/2020 are quashed. However this will not prevent the respondents from taking action in terms of the observations made hereinabove, after affording an opportunity of personal hearing before taking any call on imposition of major penalty. Since there is violation of the aforementioned provisions the writ court while exercising the powers under Article 226 of the Constitution of India can always examine the veracity of the order if it suffers from non-compliance of principles of natural justice.

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Writ petitions are allowed.

Sd/-

AMIT RAWAL JUDGE

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APPENDIX OF WP(C) 12966/2020

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PETITIONER EXHIBITS

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EXHIBIT P1	TRUE COPY OF COMMUNICATION DATED
	5.6.2018 ISSUED BY TE GENERAL SECRETARY OF MAHATMA GANDHI UNIVERSITY EMPLOYEES' ASSOCIATION.
EXHIBIT P2	TRUE COPY OF ORDER DATED 8.8.2018 OF DEPUTY REGISTRAR OF 1ST RESPONDENT UNIVERSITY.
EXHIBIT P3	TRUE COPY OF ORDER DATED 13.8.2018 OF 2ND RESPONDENT.
EXHIBIT P4	TRUE COPY OF MEMO OF CHARGES DATED 13.8.2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P5	TRUE COPY OF EXPLANATION DATED 8.9.2018 SUBMITTED BY THE PETITIONER TO THE CHARGES IN EXHIBIT P4.
EXHIBIT P6	TRUE COPY OF MEMO DATED 23.8.2018 ISSUED BY THE 2ND RESPONDENT ALLEGING THAT, PETITIONER DEMANDED MONEY FROM THE EMPLOYEES OF THE UNIVERSITY AND HENCE SOUGHT EXPLANATION TO THE SAME.
EXHIBIT P7	TRUE COPY OF EXPLANATION DATED 27.9.2018 SUBMITTED BY THE PETITIONER REFUTING THE ALLEGATIONS IN EXHIBIT P6.
EXHIBIT P8	TRUE COPY OF JUDGMENT DATED 28.9.2018 IN W.P.(C) NO.27355 OF 2018 OF THIS HON'BLE COURT.
EXHIBIT P9	TRUE COPY OF MEMO OF CHARGES ALONG WITH STATEMENT OF ALLEGATIONS DATED 3.6.2019 ALONG WITH THE RECORDS RELATING TO FACE BOOK POST AND SOME OTHER WHATSUP CHATS BY OTHER EMPLOYEES OF UNIVERSITY.
EXHIBIT P10	TRUE COPY OF MEMO OF CHARGES AND

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EXHIBIT	ALLEGATIONS. P10(A) TRUE COPY OF COMPLAINT FILED AGAINST PETITIONER.
EXHIBIT	P10(B) TRUE COPY OF PRINT OUT OF FACEBOOK POST.
EXHIBIT	P11 TRUE COPY OF EXPLANATION DATED 17.6.2019 TO EXHIBIT P9.
EXHIBIT	P12 TRUE COPY OF EXPLANATION DATED 17.6.2019 TO EXHIBIT P10.
EXHIBIT	P13 TRUE COPY OF ENQUIRY REPORT DATED 30.7.2019 SUBMITTED BY THE ENQUIRY OFFICER TO THE 2ND RESPONDENT.
EXHIBIT	P14 TRUE COPY OF MEMO DATED 5.10.2019 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT	P15 TRUE COPY OF REPLY STATEMENT DATED 14.10.2019 SUBMITTED BY THE PETITIONER REFUTING THE ENQUIRY REPORT OF MEMO PROPOSING PUNISHMENT.
EXHIBIT	P16 TRUE COPY OF ORDER DATED 11.11.2019 OF THE 2ND RESPONDENT.

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APPENDIX OF WP(C) 12563/2020

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PETITIONER EXHIBITS

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EXHIBIT P1	TRUE COPY OF COMMUNICATION DATED 05.06.2018 ISSUED BY THE GENERAL SECRETARY OF THE ASSOCIATION.
EXHIBIT P2	TRUE COPY OF JUDGMENT DATED 28.09.2018 IN WPC NO.27355 OF 2018 OF THIS HON'BLE COURT.
EXHIBIT P3	TRUE COPY OF ORDER NO.2430/ADA1/2019/MGU OF THE REGISTRAR-IN CHARGE OF THE 2ND RESPONDENT UNIVERSITY.
EXHIBIT P4	TRUE COPY OF FACEBOOK POST.
EXHIBIT P5	TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER ON 07.06.2019 BEFORE THE HON'BLE VICE CHANCELLOR OF THE 2ND RESPONDENT THROUGH PROPER CHANNEL.
EXHIBIT P6	TRUE COPY OF MEMO OF CHARGES DATED 13.06.2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.
EXHIBIT P7	TRUE COPY OF JUDGMENT DATED 12.07.2019 IN WPC NO.16582 OF 2019 OF THIS HON'BLE COURT.
EXHIBIT P8	TRUE COPY OF EXPLANATION DATED 16.06.2019 TO EXHIBIT P6 MEMO OF CHARGES SUBMITTED BY THE PETITIONER.
EXHIBIT P9	TRUE COPY OF ORAL ENQUIRY OF THE PETITIONER RECORDED ON 11.07.2019 BY THE ENQUIRY OFFICER.
EXHIBIT P10	TRUE COPY OF REPORT DATED 25.07.2019 SUBMITTED BY THE ENQUIRY OFFICER.
EXHIBIT P11	TRUE COPY OF MEMO DATED 18.09.2019

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ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P12 TRUE COPY OF EXPLANATION DATED 24.09.2019 TO EXHIBIT P1 MEMO. EXHIBIT P13 TRUE COPY OF ORDER DATED 16.10.2019 OF THE 2ND RESPONDENT UNDERTAKING.

Anil Kumar.a.P v. the State of Kerala

Case brief

What is this about?

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Anil Kumar.a.P v. the State of Kerala

Case brief

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