Rajakrishnan v. University of Kerala — 1990 DIGILAW 309 (KER)

Judgment :- Petitioner is a Reader in the University Institute of English in Kerala University. In the year 1987 he applied for the Major Research Programme of the University Grants Commission for his project in Comparative Literature titled as "Theme of Self discovery in Modern Indian Novel and its relation to East West Cultural Encounter". The U.G.C. approved the project and in 1988 petitioner was made the Director of the project with a total grant of Rs.1 lakh. This was done with the concurrence and approval of the Kerala University and the grant was to be disbursed through the University. It was an additional work for the petitioner while continuing as an employee of the University. The Project entails travel all over India because the specific subject of research is "Theme of Self Discovery in Modern Indian Novel and its relation to East West Cultural Encounter". For this purpose, according to the petitioner, there has to be meeting and interviews with eminent novelists all over India. While undertaking travel he has to be outside Thiruvananthapuram for many a number of days. He can be outside Thrivananthapuram only with the permission of respondents Nos. land 2. As per the relevant rules he was made to understand that he would not be granted mere leave on duty for the research project and that he would have to apply for a travel grant which if granted would entitle him to be on duty while on travel and get actual travel expenses. If the travel grant is not sanctioned he cannot go or otherwise if he goes he will have to undertake the same on loss of pay and by exhausting eligible leave. He sent written petition dated 4-3-1990 for travel grant for doing work at the American Study Research Centre, Hyderabad, which was necessary for the research work. This was sent through the Director, Planning and Development. According to him, if he was not sanctioned the travel grant the project itself will be scuttled effectively earning a bad name for the petitioner and the University. In reply to the petitioner's request he received a letter dated 7-6-90 from the Director of Planning and Development to the effect that his request has been rejected. That letter upset him. According to him, if he was not sanctioned the travel grant the project itself will be scuttled effectively earning a bad name for the petitioner and the University. In reply to the petitioner's request he received a letter dated 7-6-90 from the Director of Planning and Development to the effect that his request has been rejected. That letter upset him. He felt desperate and that reputation of the University and its integrity as well as that of the petitioner and their credibility and the work so far done was in jeopardy due to personal animosity and it was therefore necessary to salvage the situation if possible. Petitioner, it is alleged, believes firmly that the role of a University and that of its various institutes are totally different from that of a private parallel college. The aim of the University should not be to teach to get a pass in the examination. In this agitated mood he wrote a letter to the Director expressing his frustration at the rejection of his request for travel grant. The contents of that letter, according to the petitioner, was meant only for the personal attention of the Director. But by Ext.P2 dated 29-6-1990 petitioner has been placed under suspension pending enquiry into two charges. This order of suspension is under challenge. 2. A detailed counter affidavit has been filed on behalf of the University. The averments made therein are to the following effect. Petitioner is an employee of the University holding a teaching post as Reader in the University Institute of English. The Syndicate is the appointing authority. All teachers of the University are subject to the disciplinary control of the Syndicate. As per the provisions of the Statute the Syndicate can place an employee of the University under suspension when disciplinary proceedings against him is contemplated or is pending. Ext.P2 was passed on the basis of the decision of the Syndicate in accordance with the Statute. It is further stated that the petitioner being an employee of the University was bound to maintain discipline in his official conduct. Since he has acted in violation of the conduct rules, disciplinary actions for maintaining discipline in the service of the University are initiated. It is further stated that the petitioner being an employee of the University was bound to maintain discipline in his official conduct. Since he has acted in violation of the conduct rules, disciplinary actions for maintaining discipline in the service of the University are initiated. Petitioner by letter dated 4-3-1990 requested for travel grant to visit American Research Centre at Hyderabad for a period of 5 weeks during the months of July and August 1990, and also requested to consider the period of absence as on duty. This proposal was not made as directed by the University. It was one made by him on his own accord. The sanctioning authority of such proposal is the Syndicate based on the recommendations of the Standing Committee on Seminars and Conferences. This Committee is headed by Rev. Fr. K.A. Abraham. The Committee on 7-3-1990 considered the request of the petitioner and they rejected the same. That recommendation was placed before the Syndicate. The Syndicate unanimously accepted the decision of the Standing Committee. Subsequently, on 17-6-1990 petitioners sent an objectionable letter directly to the Director of Planning and Development condemning the Syndicate in accepting the Standing Committee's recommendations. This letter was considered by the Standing Committee on Seminars and Conferences on 21-6-1990. They referred the same to the Syndicate. In the Meeting of the Syndicate held on 29-6-1990 rev. fr. K. A. Abraham pointed out that the petitioner had written a highly objectionable letter. The President of the meeting, the Dean of the Faculty of Law, asked for a decision on the matter. After considering the matter the Syndicate decided to place the petitioner under suspension pending enquiry. The allegation that the decision was based on political consideration and was taken at the instance of Shri.G. Sudhakaran has been emphatically denied. On these grounds it is averred that the order, Ext.P2, is not liable to be interfered with by this court. 3. Petitioner has filed a reply affidavit reiterating the contentions raised in the Original Petition. 4. Learned counsel representing the petitioner raised a contention that the Syndicate should have given a reasonable opportunity to the petitioner to defend his position before passing the order of suspension. Reliance was placed on S.23(x) of the Kerala University Act in support of this argument. Petitioner has filed a reply affidavit reiterating the contentions raised in the Original Petition. 4. Learned counsel representing the petitioner raised a contention that the Syndicate should have given a reasonable opportunity to the petitioner to defend his position before passing the order of suspension. Reliance was placed on S.23(x) of the Kerala University Act in support of this argument. Reference was also made to Statutes 19 and 25 of the Kerala University First Statutes to contend that the Syndicate has no power to order suspension without affording the delinquent officer an opportunity of being heard in the matter. Another contention that was raised by the learned counsel was that 3rd respondent, a member of the Syndicate should not be directed to hold enquiry against him because he had voted against the petitioner in the meeting of the Syndicate authorising the Syndicate to issue Ext.P2 order. The last contention that was raised by the petitioner was that there is no material warranting the order of suspension in the instant case because the alleged letter sent by him had not cast any aspersion on the University. I will deal these arguments one by one. 5 S.23 of the Kerala University Act enumerates the powers of the Syndicate. Clause (x) of this Section authorised the Syndicate "to suspend, discharge, dismiss or otherwise take any disciplinary action against teachers and other employees of the University after giving them reasonable opportunity to defend their position". From this it was argued by the petitioner that the Syndicate can suspend an employee of the University only after giving him reasonable opportunity to defend his position. This stand of the petitioner is disputed by the University. According to the University, suspension can be of two types. One is suspension pending enquiry or criminal proceedings and the other is suspension as punishment. The word "suspend" in clause (x) of S.23 takes within its ambit "suspension as penalty like discharge, dismissal' etc. And not 'suspension pending enquiry'. 6. Statute 19 of the Kerala University First Statutes deals with "suspension". One is suspension pending enquiry or criminal proceedings and the other is suspension as punishment. The word "suspend" in clause (x) of S.23 takes within its ambit "suspension as penalty like discharge, dismissal' etc. And not 'suspension pending enquiry'. 6. Statute 19 of the Kerala University First Statutes deals with "suspension". It states that the appointing authority or any authority to which it is subordinate or any other authority empowered by the Syndicate in that behalf may, at any time, place a University employee under suspension: - (a) Where a disciplinary proceedings against him is contemplated or is pending; or (b)Where a case against him in respect of any Criminal offence is under investigation or trial; or (c) Where in the opinion of the authority he has engaged himself in activities prejudicial to the interest of the University. Apart from the above three categories of suspension yet another type of suspension is contemplated by clause (d) of, Statute 19. That is, where final orders are pending in the disciplinary proceedings, if the appropriate authority considers that in the then prevailing circumstances it is necessary, in the interests of the University that the University employee should be suspended from service. The fourth cause of suspension mentioned there is not akin to suspension falling under clauses (a) to (c) mentioned therein. Suspension under clause (d) can be considered to be a punishment and not a suspension pending enquiry or pending investigation or trial of a criminal case. Inft.P. Kapurv. Union of India (AIR 1964 SC 787) Their Lordships have recognised 'suspension' of two kinds, viz., 'suspension as a punishment, and as an interim measure pending a departmental enquiry or pending a criminal proceeding. 'Suspension as punishment' is, according to Their Lordships, entirely different from 'suspension pending enquiry'. It was held by Their Lordships that on general principles the authority entitled to appoint a public servant would be entitled to suspend the employee pending a departmental enquiry into his conduct or pending a proceeding which may eventually result in a departmental enquiry against him. This suspension must be distinguished from 'suspension as punishment'. An order of suspension as penalty is entirely different from suspension pending enquiry. They are altogether different concepts. 7. Exigencies of service may require immediate removal of an incumbent from office pending enquiry. In such a case, the very presence of the employee in office may be undesirable. This suspension must be distinguished from 'suspension as punishment'. An order of suspension as penalty is entirely different from suspension pending enquiry. They are altogether different concepts. 7. Exigencies of service may require immediate removal of an incumbent from office pending enquiry. In such a case, the very presence of the employee in office may be undesirable. If in such a case an opportunity of showing cause has to be given to the incumbent before he can be placed under suspension, the consequence may be frustration of a proper enquiry. The construction which leads to such an un-reasonable result should be avoided. 8. Even assuming for a moment that there is no rule authorising the Syndicate to suspend an officer pending enquiry even then the Syndicate must be presumed to have the power to suspend an officer from performing duties of his office pending enquiry into the charges leveled against him. In this connection, a distinction must be drawn between suspending contract of service of an officer and suspending an officer from performing the duties of his office while keeping the contract of service subsisting. Suspension in the latter sense should always be an implied term in every contract of service. When an officer is suspended in this sense, it means that the University merely issues a direction to the officer that so long as the contract is subsisting and till the time the officer is exonerated or otherwise dealt with, he must not do anything in the discharge of the duties of his office. In other words, the University must be regarded as issuing an order to its employee which the employee must obey because the contract of employment is subsisting. For issuing an order of suspension which is not a punishment there is no need for an opportunity being given to the employee to show cause why he should not be suspended. 9. The rule noscuntur a sociis is stated by Maxwell on Interpretation of Statutes (11th Edition, Page 321) as meaning "where two or more words susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general". The word 'suspend' which is more general is associated with words like 'discharge' and 'dismiss'. They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general". The word 'suspend' which is more general is associated with words like 'discharge' and 'dismiss'. So the meaning of this general word should be restricted to a sense analogous to the two other words accompanying the same, viz., 'discharge' and 'dismiss'. If the meaning is so restricted, the words 'suspend' can never take within its scope 'suspension pending enquiry'. It can only mean 'suspension as punishment'. This principle is accepted by Their Lordships of the" Supreme Court in Sfate of Bombay v. Hospital MazdoorSabha (AIR 1960 SC 610). Accordingly, it has to be held that the rule 'noscuntur a sociis' must apply in understanding the ambit of S.23(x) of the Act. The philosophy of that rule is that the meaning of a doubtful word may be ascertained by reference to the meaning of the words associated with it. Applying this principle the meaning of the word 'suspend' in clause (x) of S.23 should be understood with reference to the meaning of the words 'discharge' and 'dismiss'. It therefore, follows that before imposing the punishment of suspension the Syndicate should afford an employee a reasonable opportunity to defend his position. Such a suspension may be one coming under clause (d) of Statute 19(1) of the Kerala University First Statutes. Suspension coming under clauses (a) to (c) of Statute 19(1) of the First Statutes are outside the purview of clause (x) of S.23 of the Act. 10. Learned counsel representing the petitioner then raised a contention that 'suspension as punishment' is not envisaged in Statute 25 of the Kerala University First Statutes. Statute 25 enumerates various penalties that can be imposed on an employee of the University. 'Suspension' as a punishment is not specifically mentioned in any of the clauses of that Statute. So, according to counsel, the Syndicate or the University has no power to impose a substantive punishment of suspension. It was, therefore, contended that whenever the University Act refers to 'suspension' it can only be 'suspension pending enquiry' and that suspension must be after hearing the delinquent officer as per S.23(x) of the Act. 'Suspension' as observed earlier can be a form of termination of the contract of employment as well. It was, therefore, contended that whenever the University Act refers to 'suspension' it can only be 'suspension pending enquiry' and that suspension must be after hearing the delinquent officer as per S.23(x) of the Act. 'Suspension' as observed earlier can be a form of termination of the contract of employment as well. That termination of contract of employment will certainly take within it the punishment categorised as compulsory, retirement or termination of service or dismissal from service. Since the suspension of contract of employment of a University employee will either fall under compulsory retirement or termination of service or dismissal from service, there is no necessity to have 'suspension as punishment' to be enumerated in the Statute. In the above circumstances, I do not find any merit in the contention that suspension pending enquiry should fall within the mischief of S.23(x). So, I do not find any merit in the contention that Ext. P2 is void on account of it having been issued in violation of the principles of natural justice. There was no necessity to afford any opportunity to the petitioner to put forward his defence before issuing Ext. P2 order. Thus, I over-rule the first contention raised by the petitioner. 11. Petitioner applied for travel grant for visiting the American Research Centre at Hyderabad for a period of 5 weeks. The request was placed before the Standing Committee on Seminars and Conferences. Depending on the recommendations of that Committee the Syndicate was to take action. The Committee headed by Rev. Fr. K.A Abraham did not approve the petitioner's request and recommended its rejection. The Committee's suggestion was placed before the Syndicate and the Syndicate unanimously accepted the decision of the Committee. This fact was intimated to the petitioner. On the petitioner's own showing he was flabbergasted when he received the letter. He felt that the reputation of the University and its integrity as well as that of the petitioner and their credibility and the work so far done was in jeopardy due to personal animosity and it was therefore necessary to salvage the situation if possible. A belief was created in his that the role of a University and its various institutes are totally different from that of a private parallel college. A belief was created in his that the role of a University and its various institutes are totally different from that of a private parallel college. In such an agitated mood he sent a handwritten letter to the Director, Planning and Development expressing his frustration at the rejection of his request for travel grant (vide paragraph-3 of the O.P.) This letter written by the petitioner describing and characterising the University as 'private parallel college 'was taken by the Syndicate as one defaming the University and affecting its prestige. 12. The Sub Committee of the Syndicate known, as the Standing Committee on Seminars and Conferences is admittedly the authority to consider the travel grant applied for by the petitioner. That Committee did not approve the request of the petitioner. Petitioner has no complaint against that Committee or against any of its members. The decision taken by that Committee was approved by the Syndicate. The Syndicate's decision was communicated to the petitioner. On getting that reply he became agitated and wrote a letter virtually comparing the University with a private parallel college. That comparison has certainly gone to affect the prestige of the University. In such a situation, the Syndicate thought it necessary to initiate disciplinary proceedings against the petitioner. In order to facilitate that disciplinary enquiry they considered it proper to keep him under suspension. This action on the part of the Syndicate is not to be interfered with by this court under Article 226 of the Constitution. 13. Petitioner has made serious allegations against a member of the Syndicate. It is also alleged that only on account of the influence of that member who is backed by a political party, the Syndicate took a decision to keep petitioner under suspension. Learned counsel representing the petitioner also tried to highlight that aspect of the case at the time of argument. The said member of the Syndicate is not a party to this proceeding. Without that person on the array of parties it is not proper on the part of this court to deal with the averments of mala fides alleged by the petitioner. So, I decline to deal with those allegations. 14. According to the petitioner, 3rd respondent had voted in favour of the resolution placing him under suspension. Without that person on the array of parties it is not proper on the part of this court to deal with the averments of mala fides alleged by the petitioner. So, I decline to deal with those allegations. 14. According to the petitioner, 3rd respondent had voted in favour of the resolution placing him under suspension. On account of his participation in the deliberations, it is argued, he has made himself incompetent to be the enquiry officer in the disciplinary proceedings initiated against the petitioner. The Syndicate may consider this argument of the petitioner and appoint another to be the enquiry officer. At this juncture I wish to remind the Syndicate that justice must not only be done but must appear to be done. Since the petitioner is having a feeling that he may not get full justice from the enquiry officer, 3rd respondent, it will be proper on the part of the Syndicate to appoint another to be the enquiry officer. 15. Learned counsel representing the University raised a contention that the petitioner approached this court without exhausting the alternate remedy available to him under the statute. Statute Sl of Part H of the First Statute provides for appeal against orders of suspension. According to counsel, petitioner should have preferred an appeal as provided there under the appeal lies to the Chancellor. Since this alternate remedy which is efficacious, has not been resorted to by the petitioner, this court is not to interfere with Ext.P2. Statute Sl states that a University employee may appeal against the order or suspension to the authority to which the authority which made or is deemed to have made the order is immediately subordinate. The Syndicate has passed the order, Ext.P2. The Syndicate is the Chief Executive Body of the University. The Syndicate is subordinate to the Chancellor. It is clear from clause (b) of Statute 52. It states that an appeal from the order imposing a penalty by the Vice Chancellor or the Syndicate shall lie to the Chancellor. So, an appeal against the order of suspension passed by the Syndicate lies to the Chancellor. Petitioner could have challenged Ext.P2 before the Chancellor. It is an efficacious alternate remedy. Since the parties have agitated the whole issue before this-court, I do not think it necessary to dispose of this petition by directing the petitioner to avail the alternate remedy. So, an appeal against the order of suspension passed by the Syndicate lies to the Chancellor. Petitioner could have challenged Ext.P2 before the Chancellor. It is an efficacious alternate remedy. Since the parties have agitated the whole issue before this-court, I do not think it necessary to dispose of this petition by directing the petitioner to avail the alternate remedy. As this court has considered the entire aspects in detail, I am not referring the petitioner to the appellate forum. The Original Petition is disposed of in the above terms. Issue photocopy of the judgment to the parties on usual terms.