IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 4TH FEBRUARY 2010 / 15TH MAGHA 1931 C.R.P.No. 2755 of 1999 (A) ------------------------------------------- A.3/1998 of KERALA UNTY.APPELLATE TRIBUNAL,TVM. .................... REVN. PETITIONER/APPELLANT: --------------------------------------------------- D.RAJENDRAN RAJENDRA MANDIRAM PALAYAM KOLLAM-2. BY ADV. SRI.M.V.THAMBAN RESPONDENT/RESPONDENTS: ------------------------------------------------ 1. MANAGER SREE NARAYANA COLLEGE KOLLAM 2. THE SREE NARAYANA TRUST KOLLAM-I REPRESENTED BY ITS SECRETARY 3. THE DIRECTOR COLLEGIATE EDUCATION VIKAS BHAVAN PALAYAM THIRUVANANTHAPURAM 4. UNIVERSITY OF KERALA REPRESENTED BY ITS REGISTRAR THIRUVANANTHAPURAM GOVERNMENT PLEADER SRI.K.B.RAMANAND FOR R3 SRI.A.N.RAJAN BABU SRI.RAJAGOPALAN NAIR, SC, KERALA UNIVERSTIY. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 4/2/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.2755 OF 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of February 2010 ORDER Basheer, J. A former employee of an aided college affiliated to the Kerala University has filed this revision petition under Section 60(9) of the Kerala University Act, 1974 (for short 'the Act') impugning the order passed by the University Appellate Tribunal confirming the order of dismissal passed against him by the management of the college. 2. Relevant facts may be briefly noticed. 3. Petitioner, who was working as Head Accountant in Sree Narayana College for Women at Chempazhanthy in Trivandrum district, was placed under suspension with effect from July 30, 1994 pending enquiry into the charges levelled against him. The enquiry officer found that all the charges levelled against him were proved satisfactorily. 4. The management, acting on the enquiry report, issued notice to the petitioner on February 26, 1997 directing him to show cause why he should not be dismissed from service. In response to the show cause notice, petitioner submitted Annexure 4 petition pleading for pardon and mercy and requesting the management to permit him to remit the amount defalcated by him, so that he could be reinstated in service. 5. In response to the above request made by the petitioner, the C.R.P.No.2755 OF 1999 :: 2 :: management issued Annexure 5 communication dated May 6, 1997 permitting him to remit the amount involved in the charge within 15 days from the date of receipt of the said communication. However, it was mentioned in the communication that his request for reinstatement in service would be examined separately and appropriate orders would be issued and communicated at the earliest. Promptly on May 20, 1997 petitioner shot back annexure 6 communication to the management praying for enlargement of time to make the payment. In reply to the said request made by the petitioner, the management sent annexure 7 communication dated July 31, 1997 informing the petitioner that the total amount involved in the case was Rs.1,50,482/- and that the time for remittance of the above sum had been extended up to August 5, 1997. It was made clear by the management that no further time would be granted. According to the petitioner, he remitted a sum of Rs.14,000/- on August 19, 1997 towards the amount due. But he could not make any further payment because of financial stringency. Therefore, the management passed annexure 9 order on February 20, 1998 dismissing the petitioner from service with retrospective effect from July 30, 1994. 6. The above order of dismissal was challenged by the petitioner before the Kerala University Appellate Tribunal as provided under Section 60(7) read with Section 63 of the Act. The Tribunal, after an elaborate consideration of the entire materials available on record, particularly, the enquiry report and C.R.P.No.2755 OF 1999 :: 3 :: the “Proceedings file” relating to the enquiry, found that the order of dismissal passed by the management did not suffer from any illegality or irregularity. Accordingly, the order of dismissal was confirmed and appeal was dismissed. As mentioned earlier, the said order passed by the Tribunal is under challenge in this revision petition. 7. Sri.M.V.Thampan, learned counsel for the petitioner, contends that the order of dismissal is wholly vitiated and illegal for reasons more than one. It is contended by the learned counsel that the provisions contained in Sub Section 3 and 4 of Section 60 of the Act read with Section 63 had been given a go by while passing the order of dismissal. Resultantly, petitioner was subjected to grave prejudice and persecution in as much as he was kept out of service without any valid or justifiable reason for an unduly long period. The next contention raised by the learned counsel is that Statute 71 of the Kerala University First statutes, 1979 did not empower or authorise the employer/management to dismiss an employee from service with retrospective effect. The 3rd contention raised by the learned counsel is that the request made by the petitioner to grant him some reasonable time to remit the alleged amount of defalcation ought not to have been construed or interpreted as admission of guilt warranting his dismissal. Lastly it is contended by the learned counsel that the management ought to have at any rate considered the unblemished long service rendered by the petitioner for nearly 3 decades C.R.P.No.2755 OF 1999 :: 4 :: before imposing the harshest punishment of dismissal on him. 8. As regards the contention raised by the learned counsel for the petitioner with reference to Sub Section 3 and 4 of Section 60 of the Act, it can be noticed that the Sub Section 4 postulates that any disciplinary proceedings under Sub Section 2 shall be completed within a period of three months or within such further period as may be allowed by the competent authority after hearing the parties concerned. The management does not have a case that it had approached the competent authority for enlargement of time to complete the process of enquiry. 9. According to learned counsel for the management, such an issue touching upon Sub Section 4 of Section 60 had never been raised by the petitioner at any point of time during the course of the enquiry or at any time thereafter. It is further contended by the learned counsel that the petitioner had also contributed to some extent for the delay that occurred in completing the enquiry. Learned counsel points out that the petitioner had in fact made a request to stop the enquiry proceedings till the culmination of criminal proceedings initiated against him by the police. It is further contended by the learned counsel that the enquiry file will reveal that the petitioner had sought for and obtained several adjournments during the pendency of the enquiry proceedings. 10. Anyhow, the fact remains that the enquiry officer was appointed in C.R.P.No.2755 OF 1999 :: 5 :: October 1995 and enquiry started sometime in November 1995. It is on record that the enquiry officer submitted his report in October 1996. As has been noticed already, the petitioner had requested the management to permit him to remit the amount allegedly defalcated by him on receipt of the report. Ultimately it turned out that the petitioner could not do so. It was thereafter that the management issued the order dismissing the petitioner from service. This order was passed on February 20, 1998. It is discernible from the materials available on record that there was some delay in completing the disciplinary proceedings. Admittedly, memo of charges was served on the petitioner by the management in February 1995. Some amendments were made to the memo of charges by the management in March 1995. In May 1995, petitioner had admittedly submitted Annexure 3 written statement before the management contending that he was not guilty of the charges levelled against him. 11. Obviously, the management had appointed the enquiry officer after considering the above statement as well. As mentioned earlier, the management appointed enquiry officer in October 1995 only. The contention of the petitioner is that the management ought to have commenced the enquiry proceedings immediately after he was placed under suspension or atleast the enquiry proceedings, once commenced, ought to have been completed within three months from the date of its commencement or within C.R.P.No.2755 OF 1999 :: 6 :: such time as may be allowed by the competent authority. 12. The Tribunal had considered the above contention after perusing the enquiry file. The Tribunal took the view that the delay in completing the enquiry had occurred due to various factors. The petitioner had also sought for adjournment on several occasions. It was further noticed by the Tribunal that the petitioner had not specifically pointed out that any prejudice had been caused to him because of the so called delay. The Tribunal also adverted to the fact that the only request made by the petitioner after conclusion of the enquiry was to give him an opportunity to pay off the liability and get back into service. The Tribunal, keeping in view all the above aspects, held that the enquiry proceedings are not liable to be set at naught on the ground of delay. In State of A.P. v. N.Radhakishan (1998(4) Supreme Court Cases 154), it has been held that there are no predetermined principles applicable to all cases and in all situations. Each case has to be considered taking into account all relevant facts and circumstances. 13. We have carefully considered the above aspect in the light of the provisions contained in Sub Section 3 and 4 of Section 60. We have also kept in view the various contentions raised by the petitioner especially his plea that he was prepared to discharge the liability, if he was given some time. In this context, we may also notice that the petitioner had not taken any steps to expedite the enquiry proceedings. Keeping in view all the above aspects, we C.R.P.No.2755 OF 1999 :: 7 :: are not persuaded to accept the contention now raised by the learned counsel for the petitioner to invalidate the enquiry proceedings on the ground of delay. 14. The next contention raised by the learned counsel for the petitioner is that Clause 71 of FIRST STATUTE does not empower or authorise the management to dismiss the petitioner from service with retrospective effect. It is true that by order dated February 20, 1998 the management had dismissed the petitioner from service with effect from July 30, 1994, the date on which he was placed under suspension. He had continued under suspension till the issuance of the order of dismissal. Sub Clauses in Clause 71 specifically refer to such a power. But Sub Clause 14 stipulates that the disciplinary authority after considering the representation, if any, that may be received from the delinquent employee, shall pass appropriate orders imposing the penalty specified in Statute 69. Having regard to the nature of the various charges levelled against the petitioner and also keeping in view the fact that he had all along remained under suspension till the date of dismissal, we do not find any reason to hold that the management was not justified in giving retrospectivity to the order of dismissal from the date of suspension itself. In State of Kerala and others v. Gopalan ( 1979 KLT 907), a Division Bench of this court has taken such a view. 15. The other contention raised by the petitioner is that the preparedness shown by the petitioner to pay off the alleged liability ought not C.R.P.No.2755 OF 1999 :: 8 :: to have been taken as admission to guilt. 16. We have carefully perused the various communications/ representations sent by the petitioner to the management after the conclusion of enquiry. We will only say that the contents of these communications/representations will unambiguously reveal the mindset of the petitioner. In hind-sight petitioner may say that he had not intended to plead guilty. But the representations would speak for themselves. Any how we do not think that the Tribunal had decided the case on the premise that the petitioner had pleaded guilty to the charge levelled against him. We have carefully perused the entire materials available on record. In our view the management had imposed the punishment of dismissal having regard to the totality of the facts and circumstances of the case. 17. In this context, it may also be mentioned that petitioner had no case that the enquiry was in any way vitiated for any reason. It is true that in response to the show cause notice issued by the management, the petitioner had called in question the validity of the enquiry report . But still the fact remains that petitioner did not have a case that he was not afforded sufficient opportunity to defend himself before the enquiry officer. In that view of the matter especially in the absence of any material to show that the Tribunal had confirmed the order of dismissal on the premise that the petitioner had pleaded guilty to the charge, we do not find any reason to disturb the C.R.P.No.2755 OF 1999 :: 9 :: conclusion arrived at by the Tribunal. 18. Lastly, it is contended by the learned counsel for the petitioner that management ought to have considered the long unblemished service record of the petitioner before dismissing him from service . It may be true that the petitioner, who entered the service as attender might have risen to the post of Head Accountant in the institution by sheer dint of hard work. It may yet again be true that the service record of the petitioner was not tainted by any blemish till he was hauled up in this case. Annexure 1 memo of charges will give a clue to the gravity of the charges levelled against the petitioner. We do not propose to refer to or deal them at this stage. Suffice it to say that the charges are very serious in nature, as rightly found by the enquiry officer. At the conclusion of the enquiry, he found that all the charges were satisfactorily proved against the delinquent. It may be true that there was some minor variations in the alleged amount of defalcation as indicated in the memorandum of charges, show cause notice etc. But after the enquiry, the management had found that the petitioner had misappropriated a sum of Rs. 150482/- during the period 1993-1994 . As mentioned earlier, petitioner had remitted a sum of Rs. 14,000/- out of the said amount. Any how, the fact remains that the petitioner had misappropriated such a huge sum. It was sufficient enough to persuade the management to dismiss him from service. The action of the management cannot be said to be illegal or arbitrary. C.R.P.No.2755 OF 1999 :: 10 :: 19. The petitioner was undoubtedly holding a post of great responsibility. He ought to have shown utmost integrity to his position and loyalty to the institution which he served. It cannot be said that the petitioner might have been unaware of the consequences that would have followed. The Tribunal had adverted to all the above aspects and come to the right conclusion while upholding the order of dismissal passed by the management. 20. Though learned counsel for the petitioner very persuasively submitted before us that some indulgence and sympathy may be shown to the petitioner and the order of dismissal may be converted to compulsory retirement, we do not find any extenuating circumstance to accede to the above request. Having regard to the entire facts and circumstances of the case, we do not find any material illegality or irregularity in the order impugned in this revision petition. There is no merit in any of the contentions raised by the petitioner. The revision petition fails and it is accordingly dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes/sv. C.R.P.No.2755 OF 1999 :: 11 :: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.2755 OF 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 4th February 2010