The Kerala High Court allowed the present writ petition instituted against the show cause notice and proceedings initiated by the Manager of the Mannaniya College of Arts and Science against the petitioner, by observing that the Manager of the College was the competent authority to initiate the proceedings, thus the order passed by him was illegal, arbitrary and perverse in the eyes of law.
A Single Bench of Justice Raja Vijayaraghavan V allowed the present writ petition filed by the petitioner assailing the show cause notice and proceedings initiated by the Manager of the Mannaniya College of Arts and Science against the petitioner, on the ground that the same were unsustainable , illegal , arbitrary in law.
The present writ petition was filed by the petitioner assailing show cause notice and proceedings initiated by the Manager, Mannaniya College of Arts and Science , as per which the petitioner was reverted to the position of Associate Professor professionally . The period of suspension imposed upon him from August 30, 2016 till the date of joining of his college stood regularised as eligible leave.
Factual background of the case was such that the petitioner while working as an Associate Professor was appointed as the Principal of the Institution on March 31, 2010. Thereafter, the petitioner was suspended by an order dated August 30, 2016 by the Manager.
Consequently, an enquiry officer was appointed to conduct an enquiry .After completion of the enquiry, a report was submitted wherein it was stated that charges No. 1,6,7,8 and 9 are attracted in the case of the petitioner
Subsequently, a show cause notice was served to the petitioner .In pursuance of the same, the penalty of compulsory retirement from service was imposed on the petitioner by an order dated May 31, 2018.
The said order was assailed by the petitioner before this Court .In view of the same, the Court through its order dated December 12, 2019 observed that the entire enquiry proceedings were bad in law and was vitiated on account of petitioner not being given the opportunity to defend his case. However, it directed to reconsider the findings on charge 7.
The petitioner took the matter in appeal. The Division Bench by an interim order dated October 13, 2020 issued directions to the disciplinary authority to complete the disciplinary action after hearing the petitioner and to submit a report before this Court within a period of one month.
However, a show cause notice was then issued to the petitioner and he was apprised of the fact that finding of the enquiry officer was legally acceptable and the petitioner was ordered to show cause why the punishment of reversion permanently to the post of Associate Professor shall not be imposed.
However, immediately thereafter, the petitioner was reverted to the post of Associate Professor permanently, placing the period of suspension from August 8, 2016 as eligible leave. When the matter came up for final hearing by way of writ appeal the same was disposed of by observing that it would be appropriate for the appellant to assail the order of the punishment in appropriate proceedings.
The Court after anxiously considering the submissions stated that the record reveals that the Enquiry Officer had no occasion to take note of the report of the investigating officer of the local police who initially investigated crime. It was further held by the Court that the objective of assigning an Enquiry Officer to conduct an impartial enquiry into the allegations. The Enquiry Officer did not have access to the refer report submitted by the police and the conclusions arrived at by them. The same could have resulted in him taking a different view of the matter, despite the findings of the police in the refer report, the Court noted.
The fact that this Court in the earlier proceedings questioned the entire flow of proceedings initiated against the petitioner and declared them to be adulterated on the ground that no opportunity was granted to the petitioner to defend the case, is also of relevance, the Court remarked. Further reliance was placed on the case of the State of Uttar Pradesh and Ors. v. Saroj Kumar Sinha, wherein the Apex Court observed that the inquiry officer is a quasi-judicial authority, he has to act as an independent adjudicator and he is not a representative of the management. His function is to examine the evidence presented by the Department.
Another judgment pronounced by the Division Bench of the Madhya Pradesh High Court in the case of Union of India and Ors. v. Mohd. Naseem Siddiqui,was referred to, wherein it was observed that the adjudicator shall be impartial and free from bias. The adjudicator shall not be the prosecutor, and the complainant shall not be an adjudicator.
The same observations were reiterated in the judgment of the Apex Court in the case of Union of India (UOI) and Ors. v. Ram Lakhan Sharma.
Reverting back to the facts of the peasant case, the Court observed that in the instant case the Enquiry Officer reached a finding against the petitioner based on irrelevant and inconclusive findings. It was further observed that when this Court directed the respondents to reconsider the charge 7, the Management instead of remitting the matter back to the file of the Enquiry Officer proceeded to hear the petitioner, thereby overpowering the role of the Enquiry Officer, the Court noted.
The Court held, “The
management has assumed the role of the prosecutor and Judge and has
imposed the punishment of reversion. In the facts of the instant case, I
am of the considered opinion that the procedure adopted by the
respondents is clearly illegal and against the principles of natural
justice. They have donned the role of a Judge on their own cause which
has caused serious prejudice to the petitioner. I am also of the
considered opinion that the procedure adopted by the respondents is
illegal, unfair, arbitrary and discriminatory”.
In addition to the aforesaid observation, the Court also submitted that as per the Kerala University First Statutes, 1977 ‘Disciplinary authority’, as defined under Statute 18(b) is the authority competent under the Statute to impose penalty, however, in the instant case the proceedings were issued by the Manager of the College which was observed by this Court to be not within the jurisdictional ambits. Thus, the order by the Manager cannot be sustained as the same was beyond the statutory limits in the first place, the Court stated.
Thus, in light of the aforesaid observations, the Court allowed the present writ petition.
Case name: DR. Z.A. ASIF Vs. THE CHAIRMAN GOVERNING BODY AND ORS.
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