IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 WP(C).No. 24344 of 2011(P) -------------------------- PETITIONER(S): --------------- DR. JOHNSON.R, LECTURER IN PSYCHOLOGY, DEPARTMENT OF PSYCHOLOGY, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM. BY ADVS.SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH RESPONDENT(S): -------------------- 1. THE UNIVERSITY OF KERALA, THIRUVANANTHAPURAM, REPRESENTED BY ITS REGISTRAR 695001 . 2. THE VICE CHANCELLOR, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM 695001. 3. THE REGISTRAR, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM 695001. R1-3 BY ADVS. SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE SRI.M.RAJAGOPALAN NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.10.2011, THE COURT ON 11/11/2011, DELIVERED THE FOLLOWING: VK WP(C).No. 24344 of 2011(P) ------------------------------------ APPENDIX ----------- PETITIONER(S) EXHIBITS ------------------------------ EXHIBIT-P1-TRUE COPY OF THE COMMUNICATION DATED 17/04/2007 ISSUED BY THE FIRST RESPONDENT. EXHIBIT-P2-TRUE COPY OF THE MINUTES OF THE SCREENING COMMITTEE HELD ON 03/12/2005. EXHIBIT-P3-TRUE COPY OF THE MARKS AWARDED TO THE PETITIONER BY THE SELECTION COMMITTEE. EXHIBIT-P4-TRUE COPY OF THE COMMUNICATION DATED 02/07/2007 ISSUED BY THE 3RD RESPONDENT. EXHIBIT-P5-TRUE COPY OF THE COMMUNICATION DATED 11/07/2007 ISSUED BY THE DISTRICT COLLECTOR, KOLLAM. EXHIBIT-P6-TRUE COPY OF THE NOTES RELATING TO RE-NOTIFICATION OF THE POST OF LECTURER IN PSYCHOLOGY. EXHIBIT-P7-TRUE COPY OF THE ORDER DATED 28/03/2008 IN W.P(C)NO.32974/2007 OF THIS HONOURABLE COURT. EXHIBIT-P8-TRUE COPY OF THE MINUTES OF THE MEETING OF THE STANDING COMMITTEE OF THE SYNDICATE HELD ON 18/01/2008. EXHIBIT-P9-TRUE COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE HELD ON 20/02/2008. EXHIBIT-P10-TRUE COPY OF THE DECISION OF THE SYNDICATE IN THE MEETING HELD ON 19/03/2008. EXHIBIT-P11-TRUE COPY OF THE ORDER DATED 30/06/2008 IN W.P(C)NO.32974/2007 OF THIS HONOURABLE COURT. EXHIBIT-P12-TRUE COPY OF THE JUDGMENT DATED 23/10/2008 IN W.P(C)NO.32974/2007 OF THIS HONOURABLE COURT. EXHIBIT-P13-TRUE COPY OF THE JUDGMENT DATED 24/11/2008 IN W.P(C)NO.32380/2008 OF THIS HONOURABLE COURT. EXHIBIT-P14-TRUE COPY OF THE REPORT DATED 23/12/2008 SUBMITTED BY THE KIRTADS. WP(C).No. 24344 of 2011(P) -------------------------------- EXHIBIT-P15-TRUE COPY OF THE ORDER DATED 21/03/2009 ISSUED BY THE UNIVERSITY APPOINTING THE PETITIONER AS LECTURER IN PSYCHOLOGY. EXHIBIT-P16-TRUE COPY OF THE ORDER DATED 17/08/2009 IN R.P NO. 801/2009 OF THIS HONOURABLE COURT. EXHIBIT-P17-TRUE COPY OF THE W.A NO. 2197/2009 FILED BEFORE THIS HONOURABLE COURT. EXHIBIT-P18-TRUE COPY OF THE JUDGEMENT DATED 07/10/2009 IN W.A NO. 2197/2009 OF THIS HONOURABLE COURT. EXHIBIT-P19-TRUE COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE HELD ON 30/01/2010. EXHIBIT-P20-TRUE COPY OF THE REPRESENTATION FILED NISSI MARY JOHN BEFORE THE HEAD OF THE DEPARTMENT OF PSYCHOLOGY. EXHIBIT-P21-TRUE COPY OF THE REPRESENTATION FILED AMMU G. NAIR BEFORE THE HEAD OF THE DEPARTMENT OF PSYCHOLOGY. EXHIBIT-P22-TRUE COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE OF THE RESPONDENT UNIVERSITY HELD ON 18/05/2010. EXHIBIT-P23-TRUE COPY OF THE RELEVANT EXTRACT OF THE MINUTES OF THE MEETING OF THE SYNDICATE OF THE UNIVERSITY HELD ON 18/08/2011. EXHIBIT—P24-TRUE COPY OF THE ORDER DATED 27/08/2011 ISSUED BY THE UNIVERSITY. EXHIBIT -25. COPY OF COUNTER AFFIDAVIT FILED BY THE 3RD RESPONDENT IN W.P.(C) NO.32974/07 BEFORE THIS HON'BLE COURT. RESPONDENTS' EXHIBITS ------------------------------ EXT.R1(A). COPY OF THE 1ST PAGE OF S.S.L.C. BOOK OF THE PETITIONER. “ R1(B). COPY OF CREAMY LAYER CERTIFICATE & COMMUNITY CERTIFICATES OF THE PETITIONER. “ R1(C). COPY OF THE LETTER DTD. 14.9.2007 FROM P.S.C. WP(C).No. 24344 of 2011(P) ------------------------------------ EXT. R1(D). COPY OF THE LETTER DTD. 21.3.2009 RECEIVED FROM KERALA PUBLIC SERVICE COMMISSION. “ R1(E). COPY OF THE LETTER FROM THE UGC DATED 11.05.2009 RECEIVED BY THE UNIVERSITY “ R1(F). COPY OF THE MINUTS OF THE SYDICATE HELD ON 30.01.2010 “ R1(G). COPY OF THE D.O. LETTER DTD. BY THE REGISTRAR “ R1(H). COPY OF THE COMPLAINT DTD. 30.9.2010 FROM DR.IMMANUEL THOMAS AND THE APPLICATION SUBMITTED BY THE PETITIONER FOR APPLYING AS RESEARCH GUIDE. “ R1(I). COPY OF THE LETTER DTD. 19.5.2010 FROM THE HEAD, DEPRTMENT OF PSYCHOLOGY AND MINUTES OF THE 2 DEPARTMENT COUNCIL MEETING HELD ON 17.05.2010 AND 18.05.2010 “ R1(J). COPY OF THE COMPLAINTS RECEIVED FROM THE STUDENTS OF M.PHIL COURSE UNDER THE UNIVRSITY DEPARTMET OF PSYCHOLOGY FOR CHANGING THEIR GUIDE. /TRUE COPY/ P.A. TO JUDGE VK T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 24344 of 2011 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of November, 2011. JUDGMENT The challenge in this writ petition is against the order Ext.P24, placing the petitioner under suspension. It is challenged on various grounds including alleged malafides. 2. The petitioner has narrated various aspects leading to his appointment as Lecturer in the Department of Psychology in the University of Kerala and it is submitted that various disputes between the petitioner and the University will show that only because of the filing of various writ petitions and the judgments rendered thereon, the petitioner could succeed in getting the appointment and now the sole attempt by initiating disciplinary action is to see that some how he is denied the fruits of the litigation and consequential appointment. 3. The narration of the facts in the writ petition show the following: The petitioner submitted the application for appointment pursuant to the notification dated 28.7.2005. He had applied for the post in the quota reserved for Latin Christian/Anglo Indian. Exts.P1 to P3 will show that the petitioner's candidature was considered and he participated in the selection wpc 24344/2011 2 process. In the meanwhile, the University requested the District Collector, by Ext.P4, to verify the community status of the petitioner and in Ext.P5 the District Collector confirmed that he is a Latin Christian. But the Syndicate decided to re-notify the post which was under challenge before this Court by the petitioner in W.P.(C) No.32974/2007. By Ext.P7, this Court passed an interim order to the effect that “no appointment shall be made pursuant to the re-notification”. Subsequently, the Standing Committee of the Syndicate decided to place the matter before the Syndicate for taking a decision, as per Ext.P8 minutes and thereafter the Syndicate by Ext.P9 resolved to appoint the petitioner as Lecturer, but he was not appointed as the Syndicate by Ext.P10 resolution, decided to submit the petitioner's appointment order for approval of the Governor who is the Chancellor. Again, the petitioner approached this Court by filing an application seeking for a direction to appoint him, and on the basis of the submission by the University that the issue regarding community status of the petitioner has been placed for a report of KIRTADS, this Court directed the University to expedite the matter and finalise it within a period of two months by Ext.P11 order. The writ petition itself was disposed of later by Ext.P12 judgment. A direction was issued to the University to consider the claim of the wpc 24344/2011 3 petitioner for appointment, on receipt of report from KIRTADS. When delay occurred in submitting the report by KIRTADS, the petitioner again approached this Court by filing W.P.(C) NO.32380/2008 which was disposed of by Ext.P13 judgment. This Court directed the KIRTADS to submit the report within four weeks from the date of production of a copy of the judgment. Finally, the report as such was submitted by Ext.P14 wherein the finding was that the petitioner belongs to Latin Catholic community. Still later, he filed C.O.(C) No.45/2009 alleging non compliance of the judgment of this Court by the University inspite of receipt of the report from KIRTADS. Pursuant to an order dated 11.3.2009 in the Contempt Case, Ext.P15 order was passed appointing the petitioner. The same is dated 21.3.2009 and the petitioner joined service on 24.3.2009. Again the petitioner has approached this Court by filing W.P.(C) No.23496/2009, as the full salary has not been disbursed and this Court passed an interim order therein, with regard to the payment of salary, etc. 4. It is also pointed out that against Ext.P12 judgment a third party filed a review petition as R.P.No.801/2009 which was dismissed by Ext.P16 order. Again, W.A. No.2197/2009 was filed by the said third party and the same was also dismissed by Ext.P18 judgment. wpc 24344/2011 4 5. The petitioner further submits that in spite of the fact that the KIRTADS and the District Collector have confirmed his community status, the University wanted the scrutiny committee to go into the same. The Scrutiny Committee replied that they are empowered only to consider the genuineness of the certificates issued to members of SC/ST community. After receipt of the same, the University referred the issue regarding his caste status to the District Collector again and the reply therein is also in his favour. In Ext.P24, three reasons have been pointed out for suspending the petitioner, mainly: (i) that the petitioner suppressed an order permanently debarring him from applying to any posts by the Public Service Commission; (ii) misbehaviour towards the Professor and Coordinator of the Department of Psychology; and (iii) complaint received from the students of the department regarding harassment. 6. It is submitted by the learned counsel for the petitioner Shri Elvin Peter that there has not been any suppression on the part of the petitioner and learned counsel also disputed the veracity of the finding by the Public Service Commission by stating that it is without notice to the petitioner. It is pointed out that the complaint raised by the Professor of the department itself is not genuine, and it is a false one. The requests made by two wpc 24344/2011 5 students to change the guide as per Exts.P20 and P21 are long back and the same is not because of any harassment by the petitioner. They wanted only a change of the research guide, as they needed a guide who deals with Educational Psychology. It is argued that no other reasons have been pointed out therein and those students have already left the institution after completing their course. Therefore, it is pointed out that these have been cooked up deliberately to place the petitioner under suspension. 7. The University has filed a counter affidavit opposing the pleas of the petitioner. The University has explained various aspects regarding the appointment of the petitioner with the support of Exts.R1(a) to R1(j). In fact, in para 19 it is explained that the suspension ordered has no relation with the clarification of his caste status, etc. It is pointed out that the suspension is based on allegations regarding suppression of the fact that he is debarred from applying to any post in the Public Service Commission and other charges of harassment to students, etc. 8. In support of the allegations, Ext.R1(d) proceedings of the Pubic Service Commission dated 10.11.2003 debarring the petitioner permanently from applying to any post, Ext.R1(e), indicating a representation by parents of certain students, Ext.R1(h), a letter addressed to the Vice Chancellor by wpc 24344/2011 6 the Professor & Co-ordinator, M.Phil in Learning Disabilities and Ext.R1(i), a letter addressed to the Registrar of the University by the Reader and Head of the Department of Psychology, have been produced. 9. Shri K. Gopalakrishna Kurup, learned Senior Counsel for the University submitted that the suspension has been ordered after considering various aspects by the Syndicate. It is submitted that the allegation regarding suppression of the order passed by the Public Service Commission, is very serious. Coupled with the same, the other allegations are also there. It is submitted that the appointing authority has gone into these aspects and the Syndicate after considering various aspects, have chosen to suspend him pending disciplinary enquiry. It is submitted that there is no abuse of the powers or extraneous considerations, or vindictive action on the part of the University in placing the petitioner under suspension. The allegation of malafides strongly raised by the learned counsel for the petitioner, was denied by the learned Senior Counsel for the University. The relevant files leading to the order of suspension have also been placed for perusal. 10. Both sides relied upon various decisions of the Apex Court and this Court. wpc 24344/2011 7 11. As far as the principles relevant for considering the validity of an order of suspension and the scope of judicial review are concerned, the parameters of the same have been delineated in various decisions of this Court. Reference can be made to the following decisions:- Sreekumar v. Kerala Water Authority(1996 (1) KLT 209), Muhammed v. State of Kerala (1997 (2) KLT 394), Surendran K. v. Government of Kerala and others (ILR 2008 (3) Ker. 587) and State of Kerala v. Ivan Rathinam (2009 (2) KLT 543). A close reading of the principles stated will show that an order of suspension, evidently is an administrative order. The Apex Court in State of Orissa v. Bimal Kumar Mohanty {(1994) 4 SCC 126}, had occasion to consider various aspects of the same. This Court in Sreekumar's (1996 (1) KLT 209), after relying upon the said decision, has held thus in para 6: “The Supreme Court had occasion to lay down guidelines to be followed in placing a Government servant under suspension in the decision in State of Orissa v. Bimal Kumar Mohanty, (1994) 4 SCC 126. It was held when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be wpc 24344/2011 8 passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf.” Going by the same, it can be seen that the appointing authority will have to take into consideration various aspects before placing an employee under suspension. It was emphasised therein that “it would not be an administrative routine or an automatic order to suspend an employee.” 12. Therefore, whenever an order of this nature is under challenge, this Court may have to consider whether there is proper application of mind by the authorities concerned, whether relevant aspects have been considered and whether irrelevant materials were relied upon. 13. In fact, in Muhammed's case (1997 (2) KLT 394) this Court wpc 24344/2011 9 again considered the various aspects including the nature of the order of suspension and the scope of judicial review in matters concerning an order of suspension. While emphasising the manner in which the matter will have to be considered by the appointing authority, it was held thus in para 18: “Even though an element of subjective satisfaction is involved in every such order of suspension, it should be based on objective consideration and relevant circumstances. When there is no serious charge against the employee, Government could always in its wisdom transfer the employee to some other office Or station, so that he would not interfere with the continuance of disciplinary proceeding. When the allegations are of a serious nature, which have got considerable public interest, and those allegations are based on some relevant material, authority can always place the Government servant under suspension, even till the completion of the disciplinary proceeding, investigation or trial. It depends upon the gravity of the offences, nature of the allegations as well as public interest involved. Such action of the Government would be justified so as to achieve the purity of administration.” In fact, this Court in para 20 of the above judgment, was of the view that even though the suspension is not a punishment, it attaches a stigma to an officer. It was also held that the court will not reappreciate or re-weigh the wpc 24344/2011 10 whole evidence unless it is proved that the suspension order is vitiated by mala fide or irrelevant considerations or issued on extraneous consideration or with improper motive. Evidently, this Court will not be exercising the power of appeal as far as an order of suspension is concerned, which point was again reiterated by a Division Bench of this Court in Ivan Rathinam's case (2009 (2) KLT 543). 14. In Surendran's case (ILR 2008 (3) Ker. 587), also these points were emphasised and it was held that “the disciplinary authority should consider whether it is necessary to keep the employee away from the post.” Therein, the order of suspension was set aside by this Court on finding that it amounts to victimisation as well as arbitrary and illegal exercise of power. 15. In the background of these principles, I will now examine the legality of the order of suspension. 16. In Ext.P24 order of suspension, as already noticed, three allegations have been mentioned. Even though the word 'misappropriation' finds a place in allegation No.1, no such plea has been raised in the counter affidavit. Therefore, it can be safely concluded that the allegations do not contain any charge of misappropriation against him. Regarding the suppression of the order passed by the Public Service Commission, Shri wpc 24344/2011 11 Elvin Peter, learned counsel for the petitioner submitted that the University was well aware of the said order even prior to his appointment. In support of the plea, the following points were raised:- My attention was invited to Ext.P17, the memorandum of writ appeal in W.A. No.2197/2009 filed by the review petitioner in W.P.(C) No.32974/2007. Therein, in para 2, it is mentioned that the petitioner was debarred by the Public Service Commission permanently from applying to any posts and the order passed by the Public Service Commission has also been produced as Annexure I therein. The said writ appeal was dismissed by Ext.P18 judgment. It is submitted that the same is a matter which was raised before this Court and no credence can therefore be placed on the first allegation mentioned in Ext.P24, about suppression of the order. Apart from that, it is pointed out that the University itself in the counter affidavit filed in W.P.(C) No.32974/2007, a copy of which has been produced as Ext.P25, has stated in para 7 by relying upon Ext.R3(a) that along with the representation filed by Dr. Annie Merelene, “one among the documents was a newspaper cutting which says that the petitioner has been permanently debarred from KPSC appointment for producing fake certificates”. The newspaper cutting dated 14.2.2004 of Desabhimani daily, has been produced as Ext.R3(a) wpc 24344/2011 12 therein. The said counter affidavit is dated 1.1.2008. 17. It is therefore submitted that the charge that the petitioner has suppressed the order of the Public Service Commission, cannot lie. Apart from that, learned counsel for the petitioner submitted that his client did not receive any show cause notice issued by the Public Service Commission before Ext.R1(d) order was issued. He was totally kept in dark about the order and it was never served also. Thus, the consistent plea raised by the petitioner is that it is not a new material as far as the University is concerned, so as to place the petitioner under suspension, as the existence of the same was known to the University even prior to his appointment and the order was never served on him and therefore it is void. 18. Shri Gopalakrishna Kurup, learned Senior Counsel appearing for the University, while opposing the said plea submitted that any candidate is bound to disclose any material fact of this nature to the appointing authority. It is pointed out that the antecedents of a candidate are relevant for consideration by the appointing authority. It is also pointed out that under the relevant provisions of KS & SSR, viz. Rule 10(b)(iii), the University is competent to take action based on Ext.R1(d) order. Reliance was placed on the decision of a Division Bench of this Court in Rahumath v. Public wpc 24344/2011 13 Service Commission (2010 (1) KLT 127). That also was a case where the Public Service Commission initiated action against a candidate who was selected to the post of Assistant Grade II under the Commission itself. Therein, the proceedings relied on was in respect of an order passed debarring him from appearing in any examination conducted by the P.S.C. for a period of three years. After issuing show cause notice the appointment itself was cancelled by invoking the provisions of Rule 10(b)(iii) of KS & SSR and the Division Bench upheld the same. 19. The question whether the said allegation is sufficient to place him under suspension or not, had to be considered by the University. The relevant Office Note placed before the Syndicate before taking the resolution, has been produced by the petitioner as Ext.P23. It was Item No.2.87 among the agenda. That shows that there is a resume of the details about the controversy regarding the caste status of the petitioner and the steps taken by the University; about the present allegations and the legal opinion given by the counsel for the University and finally the matter is placed before the Syndicate for consideration. The resolution of the Syndicate in respect of the said item is available from the records placed before this Court by the learned Standing Counsel which reads as follows: wpc 24344/2011 14 “Item No.02.87 Appointment of Dr. Johnson. R. as Lecturer in the University Department of Psychology, Kariavattom - reg. The Syndicate considered the various complaints/reports against Dr. Johnson .R., Lecturer, University Department of Psychology, Kariavattom regarding his obtaining appointment in the Department and misbehaviour towards the teaching staff and harassment of students in the Department. RESOLVED that Dr. Johnson. R., Lecturer, University Department of Psychology, Kariavattom be kept under suspension and disciplinary action initiated against him.” 20. I will now deal with the various allegations contained in Ext.P24. The second allegation is regarding the misbehaviour towards the Professor and Co-ordinator of the Department of Psychology. The complaint in that regard has been produced as Ext.R1(h) dated 30.9.2010. The order of suspension is dated 27.8.2011, nearly 11 months after. There is no plea that even a memo was issued to the petitioner based on the said allegation. Learned counsel for the petitioner submitted that the Professor was in inimical terms with the petitioner and the same is a cooked up one. Of course, whether the incident narrated therein, actually occurred or not, is a matter of evidence, but we are on the question whether it could have been wpc 24344/2011 15 relied upon straight away to place the petitioner under suspension. The third one is about the harassment of the students of M.Phil course, allegedly as evident from the complaint received from the students. Regarding the same, the petitioner has produced Exts.P20 and P21 which are the submissions made to the Head of the Department by the students concerned. They do not show that there is any allegation of harassment against the petitioner. It will show that they have sought for a change of guide dealing in a different subject. Those communications are also long prior to the order of suspension. Ext.P22 minutes of the Departmental Council Meeting also do not refer to any personal allegations against the petitioner of harassment by the students. Ext.R1(i) is a letter addressed by the Reader and Head of the Department to the Registrar of the University dated 19.5.2010 wherein reference is there about the names of two students who were working under the petitioner's supervision and who wanted a change on certain “academic grounds”. Therein, it is mentioned that the petitioner had been harassing them and therefore they are not willing to work under his supervision. As rightly contended by the learned counsel for the petitioners, the written submissions made by the students do