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2014 DIGILAW 217 (KER)

K. M. Dr. Abdur Rasheed v. Govt. of India

2014-03-07

A.V.RAMAKRISHNA PILLAI

body2014
Judgment : 1. The former Registrar of the Central University, Kerala has come up before this Court aggrieved by the order suspending him from the post of Registrar of the said University as well as the order removing him from the aforesaid post. 2. In W.P(C) No.21883 of 2013, the petitioner is challenging the order of suspension and in W.P(C) No.25651 of 2013, the petitioner is challenging the order of removal. 3. The petitioner was the Registrar of the 2nd respondent University. He was placed under suspension with effect from 20.5.2013. The 1st respondent has neither revoked the suspension as requested by the petitioner nor reviewed the suspension order and issued any order extending the suspension within 90 days from the date of suspension. According to the petitioner, he being an employee governed by the Central Civil Services Classification Control and Appeal Rules, suspension beyond 90 days is illegal and without jurisdiction, as held by the Apex Court in Union of India v. Dipak Mali [ 2010 (2) SCC 222 ]. Thus, he filed W.P(C) No.21883 of 2013. 4. Later, the 3rd respondent, who is the then Vice Chancellor of the University, passed order dated 15.10.2013 removing the petitioner from the post of Registrar vide Ext.P16, which has been passed on the basis of an enquiry report said to have been submitted by the University Complaints Committee (UCC). 5. The petitioner alleges that the copy of the report has not been submitted to the 1st respondent or to the Visitor and what was supplied is only the summary of the findings. The petitioner was asked to show cause without giving a copy of the report relied on in the show cause notice, which according to the petitioner is arbitrary and negation of the principles of natural justice. According to the petitioner, there was no power or authority vested with the Visitor to remove the petitioner from service without following the procedure under the Central Civil Services (CCA) Rules, 1965. The only action that can be taken on the basis of the alleged enquiry report of the UCC is to institute disciplinary proceedings for misconduct. 6. According to the petitioner, there was no power or authority vested with the Visitor to remove the petitioner from service without following the procedure under the Central Civil Services (CCA) Rules, 1965. The only action that can be taken on the basis of the alleged enquiry report of the UCC is to institute disciplinary proceedings for misconduct. 6. It is alleged that, neither the 1st respondent nor the Visitor has the power to remove the petitioner from service on the basis of the report of the UCC and, therefore, the order removing the petitioner from service invoking Section 25 (2) of the second schedule of the Central Universities Act, 2009 is unsustainable, according to the petitioner. With these allegations, he has filed W.P (C) No.25651 of 2013. 7. In the counter affidavit filed by respondents 2 and 3, it was averred that the petitioner was appointed as per the provisions of Statute of Central Universities Act, 2009. According to them, the Central Universities Act [statute 25 (1)] states that where there is an allegation of misconduct against a teacher, a member of the academic staff or other employee of the University, the Vice- Chancellor, in the case of the teacher or a member of the academic staff, and the authority competent to appoint (hereinafter referred to as the appointing authority) in the case of other employee may, by order in writing, place such teacher, member of the academic staff or other employee, as the case may be, under suspension and shall forthwith report to the Executive Council the circumstances in which the order was made. Since the petitioner was appointed by President of India in his capacity as the Visitor of the second respondent, the President of India alone is competent to take disciplinary action or to suspend/remove him from service. Hence the report of the UCC was submitted to the Visitor (the President of India) through the Ministry of Human Resource Development, and he took action against the Petitioner. The suspension of the petitioner reported to the EC at its meeting held on 23.06.2013. A Photocopy of the relevant pages of Agenda and its minutes of the Meeting of the Second Executive Council is produced and marked as Ext. R4. 8. The suspension of the petitioner reported to the EC at its meeting held on 23.06.2013. A Photocopy of the relevant pages of Agenda and its minutes of the Meeting of the Second Executive Council is produced and marked as Ext. R4. 8. It was further averred that on 24.1.2013, the then officiating Vice Chancellor received a complaint from Smt. Sheeba Kumari T K, working as P.A to the petitioner, which was handed over to the Vice Chancellor upon her return, who immediately ordered to place the complaint before the UCC at its first meeting. Later, the complainant met the Vice Chancellor in charge with her husband to complain about the petitioner and what was written in the complaint was only a tip of iceberg that they shared with the Vice Chancellor in charge. It was alleged that in the letter dated 24.01.2013 Smt. Sheeba Kumari has stated that many situations had arisen in the office wherein mental stress was inflicted on her by the petitioner. According to the respondents, the deposition of the complainant before the Committee made it clear that it was a clear case of sexual harassment. 9. According to the respondents, a body of eminent persons - well represented and balanced from different angles came to the conclusion unanimously, after hearing 14 witnesses, besides the complainant and the petitioner, in different sitting in two different cases, over a period of 70 days that the petitioner was guilty of misconduct and that, immediate and effective disciplinary measures should be taken against him to send a strong message to the University Community to desist from such objectionable behaviour. According to them, the petitioner denied the allegations in the complaint and the complainant stood on her views while responding to the views of the petitioner. 10. It is further alleged that the 3rd respondent received another complaint from another lady staff Ms. Ayshath Hisana, on 12.3.2013. It was also referred to the UCC. On that, hearing was held on 19th April to 10th April. As the report was submitted to the Vice Chancellor on 11.4.2013, it was forwarded to the Ministry of Human Resources Development (MHRD) on 17.4.2013. However, on the basis of the explanatory letter given by the petitioner, subsequently, it was opined that no further action was warranted. 11. On that, hearing was held on 19th April to 10th April. As the report was submitted to the Vice Chancellor on 11.4.2013, it was forwarded to the Ministry of Human Resources Development (MHRD) on 17.4.2013. However, on the basis of the explanatory letter given by the petitioner, subsequently, it was opined that no further action was warranted. 11. The stand taken by the respondents is that the UCC is empowered by the provisions of Ordinance 22 to conduct enquiry into complaints that are placed before it and the petitioner very well knows that he was appointed by the Visitor under the Central Universities Act, 2009 and it is the basic tenet of laws relating to service matters that the appointing authority is the disciplinary authority. Therefore, the respondents maintained the stand that the action initiated against the petitioner is perfectly legal. 12. I have heard the learned Senior Counsel appearing for the petitioner as well as the learned Senior Counsel for the Central University and the learned Assistant Solicitor General in the matter. 13. As directed by this Court, the learned Senior Counsel for the respondent University produced the original of the file relating to the disciplinary action initiated against the petitioner in a sealed cover for my perusal. 14. While the learned Senior Counsel appearing for the petitioner submitted that the suspension as well as the removal of petitioner from service was without conducting a proper enquiry, the stand taken by the respondents was that all the procedural formalities have been complied with. It was in that context, I had asked the respondents to produce the original of the file. 15. The petitioner who was working as the Registrar of the respondent University was under suspension from 20.5.2013. The first grievance of the petitioner was that even after a lapse of three months, the 1st respondent has not reviewed the suspension order or issued any order extending the suspension. The petitioner being an employee governed by the Central Civil Services Classification Control and Appeal Rules, 1965, the suspension beyond 90 days is illegal and without jurisdiction; it is alleged. It is with this allegation that, the petitioner has approached this Court with the first writ petition. 16. The petitioner being an employee governed by the Central Civil Services Classification Control and Appeal Rules, 1965, the suspension beyond 90 days is illegal and without jurisdiction; it is alleged. It is with this allegation that, the petitioner has approached this Court with the first writ petition. 16. It was pointed out by the learned Senior Counsel for the petitioner that as the suspension of the petitioner has not been reviewed as required by the Rules, the order of suspension may not be deemed to have elapsed and the petitioner was entitled to be reinstated in service on the basis of the Apex Court decision in Union of India v. Dipak Mali (cited supra). 17. As the petitioner was removed from service subsequently this Court, at this juncture, need not consider the validity of the order of suspension. 18. It was argued by the learned Senior Counsel for the petitioner that there is no power or authority vested with the Visitor to remove the petitioner from service without following the procedure under the Central Civil Services (CCA) Rules, 1965. It is true that the enquiry was conducted by the UCC. From the original of the file, it can be seen that the statements of the witnesses were recorded in the absence of the petitioner. He was not afforded an opportunity to cross examine those witnesses. However, the file reveals that subsequently, the contents of these statements were put to the petitioner, who denied the allegations. It is clear to my mind that the only action that can be taken on the basis of the enquiry report of UCC is the initiation of disciplinary proceedings for misconduct, if the same reveals a prima facie case. 19. As this Court is not sitting in appeal on the findings of fact of the UCC, it is not necessary to go into the question whether the allegations made by the complainant against the petitioner is true or whether it comes within the purview of sexual harassment as envisaged under the Sexual Harassment of Women at Work Place (Prevention and Redressal) Act, 2013. 20. Had the respondents been satisfied that there was a prima facie case against the petitioner on the basis of the enquiry report of the UCC, the proper course open to them was to initiate disciplinary proceedings by issuing a formal charge, along with the statement of allegations. 20. Had the respondents been satisfied that there was a prima facie case against the petitioner on the basis of the enquiry report of the UCC, the proper course open to them was to initiate disciplinary proceedings by issuing a formal charge, along with the statement of allegations. Unfortunately, such a course was not adopted by the respondents. Instead of that, on the basis of the report of the UCC, the respondent University has straightaway jumped into the conclusion that the allegations against the petitioner are true. The scope of enquiry by the UCC is to find out whether there is any prima facie case against the person upon whom the allegations are made. 21. According to the learned Senior Counsel for the petitioner, Ext.P16 is non est and is in violation of the principles of natural justice. There should be a full fledged enquiry allowing the petitioner to participate in the same. Thereafter, a copy of the enquiry report should have been served on the petitioner and he should have been asked to show cause why the report should not be accepted. Thereafter, the petitioner should have been served with a notice proposing the punishment to be imposed upon him and only after obtaining his explanation, penalty should have been imposed. 22. Here, the petitioner was removed from service invoking Section 25(2) of the second schedule of the Central Universities Act, 2009. It is totally unsustainable in as much as no power is vested under this provision to sustain the order. As it appears from Ext.P12 order that the same was issued by the 1st respondent with the approval of the Visitor, it is without any authority and, therefore, null and void. The 1st respondent is not the authority to pass orders of suspension and to issue it on the approval of the Visitor. The Visitor exercises his power vested on him under the provisions of the Central Universities Act, 2009. The 1st respondent has no role in discharging the duties of the Visitor by the President of India. Therefore, the orders of the 1st respondent issued in the name of the President or in his capacity as Joint Secretary to the Government of India are without any authority and hence, unsustainable. 23. The 1st respondent has no role in discharging the duties of the Visitor by the President of India. Therefore, the orders of the 1st respondent issued in the name of the President or in his capacity as Joint Secretary to the Government of India are without any authority and hence, unsustainable. 23. As rightly pointed out by the learned Senior Counsel for the petitioner, the respondents did not serve even a copy of the report submitted to the first respondent or to the Visitor. What was supplied is only the summary of the findings. The petitioner was asked to show cause without giving a copy of the report relied on in the show cause notice. 24. The learned Senior Counsel for the petitioner invited my attention to a decision of the Apex Court in Ravi Yashwant Bhoir v. District Collector Raigad and others [ (2012) 4 SCC 407 ] which observed as follows: “This Court has consistently held that the State is under an obligation to act fairly without ill will or malice - in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill - will or spite on the part of the State. “Legal malice” or “malice in law” means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for “purposes foreign to those for which it is in law intended.” It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law. (See: Addl. Dist. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207 ; Union of India thr. Government of Pondicherry & Anr. v. V. Ramakrishnan & Ors., 2005 (8) SCC 394 ; and Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745 ).” 25. Passing an order for unauthorized purpose constitutes malice in law. (See: Addl. Dist. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207 ; Union of India thr. Government of Pondicherry & Anr. v. V. Ramakrishnan & Ors., 2005 (8) SCC 394 ; and Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745 ).” 25. On a consideration of the entire materials now placed on record, this Court is of the definite view that the petitioner is entitled to succeed. Therefore, W.P(C) No.25651 of 2013 is allowed. Ext.P16 is quashed. As it is brought to the notice of this Court that the period of service of the petitioner is over, there is no question of reinstatement, at present. However, it is made clear that all other legal consequences pursuant to the quashing of Ext.P16 shall follow with regard to the payment of arrears of salary, retirement benefits etc. As this Court finds that no separate orders are necessary in W.P(C) No.21883 of 2013, on account of merging of the cause of action with that of the subsequent writ petition, it is closed.