Read Order: DR. Z.A. ASIF Vs. THE CHAIRMAN GOVERNING BODY AND ORS. 

Manimran Kaur

Ernakulam,  June 1, 2022:  The Kerala High Court has allowed the writ petition against the show cause notice and proceedings initiated by the Manager of the Mannaniya College of Arts and Science and observed that the order of punishment imposed upon the petitioner cannot be sustained on the count that such order was passed by the by the Manager of the College.

A Single Bench of Justice Raja Vijayaraghavan V allowed the present writ petition and directed the College Management to conclude the disciplinary action within 45 days. The Bench also said, “ 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.”

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. Thereafter,he was suspended by an order passed 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 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 issued directions to the disciplinary authority to complete the disciplinary action. However, a show cause notice was but 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 noted 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, was also of relevance, the Court remarked.  Further reliance was placed on the judgments in State of Uttar Pradesh and Ors. v. Saroj Kumar Sinha, Union of India and Ors. v. Mohd. Naseem Siddiqui, and Union of India (UOI) and Ors. v. Ram Lakhan Sharma. 

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 also opined 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 could not be sustained, added the Court. Thus, the Bench allowed the present writ petition. 

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