IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 WP(C).No. 18180 of 2007(L) -------------------------- PETITIONER: ------------ INDULEKHA JOSEPH, AGED 18 YEARS, D/O. JOSEPH VARUGHESE, 1ST YEAR DEGREE (ENGLISH) STUDENT, ST.GEORGE'S COLLEGE, ARUVITHURA, RESIDING AT MILETT, ARUVITHURA P.O., ERATTUPETTA, KOTTAYAM DISTRICT. BY INDULEKHA JOSEPH (PARTY-IN-PERSON) RESPONDENTS: ------------- 1. VICE CHANCELLOR (CHAIRMAN), BOARD FOR ADJUDICATION OF STUDENTS GRIEVANCES, M.G.UNIVERSITY, KOTTAYAM. 2. VICE CHANCELLOR, M.G.UNIVERSITY, KOTTAYAM. 3. PRINCIPAL, ST.GEORGE'S COLLEGE, ARUVITHURA P.O., ERATTUPETTA, KOTTAYAM DISTRICT. 4. REV. DR. JOSEPH K.M., KOLLAMPARAMBIL, PRINCIPAL, ST.GEORGE'S COLLEGE, ARUVITHURA P.O., ERATTUPETTA, KOTTAYAM. 5. DR. AUGUSTINE M. JOSEPH, CONVENOR, ENQUIRY COMMISSION, ST.GEORGE COLLEGE, ARUVITHURA P.O., ERATTUPETTA, KOTTAYAM. BY ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY R3 AND R4 BY SRI.O.V.RADHAKRSHANAN(SR.) SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/01/2008, THE COURT ON 11/02/2008 DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. = = = = = = = = = = = = = = = = W.P. (C) No. 18180 OF 2007 - L = = = = = = = = = = = = = = = = Dated this the 11th day of February 2008 J U D G M E N T Validity of the disciplinary action taken against a student of the 3 rd respondent College, resulting in her dismissal is under challenge in this wit petition. 2. The petitioner was a first year BA English Student in the 3 rd respondent College during the academic year 2006-07. It is stated that her father is a selection grade Lecturer in Malayalam in the same college and that he had published a book criticizing the church. This resulted in the 4 th respondent, the Principal of the College, having enmity against her father. It is stated that her father had lodged Ext.P1 complaint to the Bishop of Palai and when the petitioner was also harassed by the 4h respondent, her mother made Ext.P2 complaint to the 4 th respondent himself. 3. Petitioner was elected to the college union as its Vice Chairman and consequent on the 4 th respondent’s enmity to her father, she was being harassed and isolated. According to her when the College Day Celebrations were cancelled, students blamed and accused her of W.P.(C) No.18180 of 2007-L =: 2 := being responsible for the same and that in order to project the real facts and also to establish her innocence she decided to resort to a sit in protest in the office verandah of the college on 13.2.2007, carrying a placard. On the same day, Ext.P3 order of suspension was issued by the 4 th respondent placing the petitioner under suspension pending an enquiry. 4. It is stated that on receipt of Ext.P3, petitioner submitted Ext.P5 appeal before the Board for Adjudication of Students Grievances of the M.G University. She had also submitted Ext.P4 before the 4 th respondent requesting to expeditiously forward her appeal to the Board. In the meantime, by his order dated 17.02.2007, the 4 th respondent appointed an enquiry commission consisting of 3 teachers of the college to enquire into the allegations of misconducts against the petitioner. The enquiry commission issued Ext.P7, memo of charges with the following allegations; (1) That on 13.02.2007 at 9.45 a.m. onwards she had conducted a Satyagraha on the Verandah in front of the principal’s office, defying an order prohibiting the same, carrying a placard, with the intention of committing indiscipline and causing obstruction to the functioning of the college and the office of the principal. (2) That when she conducted the Satyagraha she had distributed leaflets to the students. W.P.(C) No.18180 of 2007-L =: 3 := (3) That on 15.02.2007 she had convened a press conference at the Kottayam Press Club and made defamatory statements which were published in newspapers such as Mathrubhumi and Desabhimani daily on 16.02.2007. It was alleged that by the aforesaid conducts she had committed grave misconducts and brought ill-repute to the college and obstructed the smooth functioning of the college. It was also alleged that by her aforesaid conduct she had committed misconducts as provided in Rule 5 (d) of the Mahatma Gandhi University Students Code of Conduct Rules 2005 and Rules 9 and 11 of the Rules of General Discipline of the College. By Ext.P7 she was called upon to show cause against the above said allegations of misconducts. 5. On receipt of Ext.P7 Memo of Charges, petitioner submitted Ext.P8 explanation. A reading of the explanation shows that the petitioner had accepted the allegations as correct, but however, was justifying her conduct. According to her she was protesting against the injustice meted out to her and that the Satyagraha she had conducted did not in any manner obstruct the functioning of the college or the principal’s office. According to her she has decided to resort to Satyagraha on being informed of the cancellation of the college day celebration and that on account of the serious illness that she is suffering, as she could not sit in a place exposed to the sun’s heat, she W.P.(C) No.18180 of 2007-L =: 4 := chose to sit in the Verandah of the Principal’s office. She says that all that she wanted was to bring to the notice of the college authorities their mistakes. 6. It is also stated that during the course of her Satyagraha, some of her teachers and her friends had attempted to persuade her to withdraw the same offering to sort out her problems if any and that thereupon, she had contacted her parents and when she was informed that she had their moral support, she chose to continue the Satyagraha into the after noon of 13.02.2007. She also admits of having distributed leaflets to those students who had shown courage to talk to her. It is assorted that as a citizen of the country, it was her entitlement to address a press conference and that she reminds the authorities that she addressed to the press only after she was placed under suspension. She reiterates that she was bring harassed due to the 4 th respondents enmity against her father. 7. With due notice to the petitioner, enquiry was conducted on 08.03.2007, with all the 3 members of the enquiry commission present, when the petitioner appeared herself and her statement was recorded. Before the commission also she admitted of having conducted the Satyagraha on 13.02.2007 carrying a placard, on which it was written “stop harassment and celebrate the College Day”. It was stated that she W.P.(C) No.18180 of 2007-L =: 5 := conducted the Satyagraha from 9.45 a.m. to 12.5 p.m., from 1.15 p.m. to 1.30 p.m. and from 2.00 p.m. to 3.15 p.m. She has also admitted that at that time the Principal was inside the office room. She has stated about the moral support that her parents assured her over mobile phone when she decided to continue the Satyagraha and reiterated that if anybody had attempted to remove her by force she would have resisted it. She also accepted that she had distributed leaflets to the students. 8. She had also admitted that a press conference convened by her in the presence of about 20 news reporters which was reported in Mathrubhumi and Desabhimani Newspapers and telecasted the Kairali Peoples channel. In the statement, she admitted that there was no strike in the college in that year. She had produced 5 documents which were marked in evidence. 9. On behalf of the management of the college, 8 witnesses were examined and their statements were recorded. The petitioner cross examined one of them and the enquiry was concluded with the aforesaid evidence and documents were also marked in evidence. The enquiry commission thereafter submitted Ext.P10 report finding the petitioner guilty of all the charges. On receipt of the report of the enquiry commission, enclosing a copy of the same, the 4 th respondent issued Ext.P9 letter, requiring the petitioner to make her representations against W.P.(C) No.18180 of 2007-L =: 6 := the findings therein. 10. In the meantime, she filed W.P.(C)No. 7962 of 2007 challenging Ext.P3 and that writ petition was disposed of Ext.P6 judgment dated 09.03.2007 directing expeditions disposal of Ext.P5 appeal. On receipt of Exts.P9 and P10 the petitioner submitted Ext.P11 explanation, in which again, she justified her conduct. Since final examination was commencing on 29.03.2007 and as Ext.P5 appeal filed her against Ext.P3 suspension order was also pending without orders, she filed W.P.(C)No. 10294 of 2007 in which order dated 26.03.2007 was passed by this Court directing that she be permitted to appear the examination. It is alleged that when the order was attempted to be served on the 4 th respondent, he misbehaved with the petitioner and her mother in a most indecent manner and hence her mother made Ext.P6 complaint to the Kerala State Human Rights Commission and also to the Sub Inspector of Police. 11. While matters stood thus, the 4 th respondent, accepted the findings in Ext.P10 report and by Ext.P12 order dated 26.03.2007, she was dismissed from the College and published notices to that effect, and Ext.P14 is one such notice. Pursuant to the direction of this Court in Ext.P6 judgment, Ext.P5 appeal was posted for hearing on 25.04.2007 and it is alleged that the 4 th respondent was present in the office of the W.P.(C) No.18180 of 2007-L =: 7 := 1 st respondent for most of the time. They were called for hearing on Ext.P5 appeal and the petitioner was heard by the Appellate Board, during the course of which, inconvenient question were put to the petitioner. Ext.P15 is an affidavit sworn to by the petitioner narrating her experiences during the course of the hearing of her appeal. The Appellate Board thereafter issued Ext.P16 order upholding not only Ext.P3 order of suspension, but also her dismissal, which was not in challenge in the appeal. It is at that stage, this writ petition was filed. 12. Respondents 3 and 4 have filed a detailed counter affidavit justifying the action taken against the petitioner. It is contended that the petitioner was suspended by Ext.P3 order pending enquiry into her conduct in conducting a Satyagraha with a placard in front of the principal’s office on 13.02.2007 and that the order was issued as all the efforts to dissuade her from staging the Satyagraha turned futile. It is stated that a teacher, who has been examined as the 3 rd witness for the management, who was also teaching the petitioner, approached her and enquired about her conduct and consoled her and offered to sort her problems, if any, and advised her not to resort to Satyagraha. It is stated that despite all this, she had contacted her parents, who appeared to have offered her moral support, which she confessed in the written statement and that the petitioner continued the Satyagraha. It is also W.P.(C) No.18180 of 2007-L =: 8 := stated that 5 Heads of Departments and one selection grade lecturer who are members of the college council had given Ext.R3(a) joint statement that they attempted to persuade the petitioner against continuing the Satyagraha. 13. It is stated that in view of the misconduct that she had committed, an enquiry committee was constituted on 17.02.2007 in consultation with the College Council and it was thereafter that memo of charges was issued to her. According to the principal, the petitioner admitted all the charges, but attempted to justify her actions as a necessity and a rightful one, to fight for justice. The allegation that on account her father publishing a book, the 4 th respondent had turned hostile to the petitioner is denied. Regarding the cancellation of the College Day it is stated in paragraph 6 that the petitioner was the Vice Chairman of the College Union and that when the college was informed that it was awarded A Grade by National Assessment and Accreditation Council (NAAC), celebrations were held on 9.2.2007. Thereafter, the college union by Ext. R3(b) letter requested the principal not to conduct college day due to paucity of time. According to the principal it was conceding to the request in Ext.R3(b) (wrongly dated as 13.02.2006) that it was decided not to celebrate the College Day. The 4 th respondent would therefore submit that the justification offered by the petitioner for W.P.(C) No.18180 of 2007-L =: 9 := resorting to Satyagraha is totally unfounded. According to him the contents of Ext.P1 are all baseless and he would refer to Ext.R3(c) dated 13.02.2007 (wrongly dated as 13.02.2006) of the college union members, to dispute the allegations in Ext.P2 as well. 14. Regarding the validity of the enquiry conducted against the petitioner, it is stated that she was afforded all opportunities to prove her innocence. It is stated that she did not ask for assistance by anybody in the enquiry and that she had chosen to cross examine only Sri.C.S. James, one of the witnesses and that she did not cross examine the other witnesses saying that she did not wish to cross examine them as they were her teachers. It is stated that the enquiry was conducted by a committee consisting of 3 respectable, independent and senior members of the faculty and no personal bias could be alleged against any one of them. He would also state that the allegation that the 3 teachers, were only took in the hands of the principal is an irresponsible statement and according to him, the 3 members were recommended to be appointed by the College Council at its meeting held on 15.02.2007 and that they were not his appointees. 15. The allegation he had misbehaved when the petitioner and her mother when they attempted to serve copy of the order passed by this Court in W.P.(C)No. 10294 of 2007 is also denied. It is stated that W.P.(C) No.18180 of 2007-L =: 10 := though he had received Ext.R3(d) notice from the Kerala State Women’s Commission on a complaint filed by her mother, he is not aware whether any complaint was filed before the police against him. It is stated that by the time Ext.P5 appeal was posted for hearing on 25.04.2007 her dismissal was reported to the University. The allegation that he influenced the decision on Ext.P5 appeal is also denied. It is contended that against the order of dismissal, petitioner has a right of appeal under the provisions of the Mahatma Gandhi Students Code of Conduct Rules 2005 and according to him this writ petition deserves to be dismissed for not availing of the alternate remedy. 16. The allegation of the petitioner that in the appointment of enquiry commission, Rule 6(c) of the Conduct Rules 2005 has not been complied with is also denied. The further allegation regarding the irregularity in the constitution of college council is also disputed. According to the 4 th respondent the council is very much in existence and its consists of 18 members including the Principal and the Secretary to the Managing Board. It is stated that though two members had completed their tenure, they are continuing till the next election. According to the principal, these two members, though have become heads of department, continue in the College Council as HODs. According to the principal in order to maintain discipline in the campus, as grave misconducts were W.P.(C) No.18180 of 2007-L =: 11 := proved to have been committed by the petitioner, she had to be dismissed from the college. 17. Reply affidavit has been filed by the petitioner disputing the averments in the counter affidavit and reiterating her contentions. She would submit that the college council has been invalidly constituted and that the entire action against her was on account of the enmity of the 4 th respondent. She would dispute the very authenticity of Exts.R3(b) and R3 (c) since they carry the date 13.02.2006, which is explained to be a mistake. She would plead that a Satyagraha cannot be a misconduct and that on account of the violation of the principles of natural justice the disciplinary action is liable to be interfered with. 18. An additional counter affidavit filed by the 4 th respondent in which it is stated that the petitioners mother had filed a private complaint before the Judicial First Class Magistrate Court, Erattupetta alleging offence under Section 509 of the IPC and that enquiry was held under Section 202 Cr.P.C and the complaint was dismissed by the learned Magistrate. It is also stated that the allegation of the petitioner that there is no grievance redressal mechanism in the college is also incorrect and that a women cell has been constituted with a Convener and 4 women teachers as its members. A separate counter affidavit has been filed by respondents 1 and 2 in which they have justified dismissal of Ext.P5 W.P.(C) No.18180 of 2007-L =: 12 := appeal by Ext.P16 order. 19. When the writ petition was taken up for hearing the petitioner appeared in person, Sri. T.A. Shaji, Standing Counsel appeared for Respondents 1 and 2 and Sri.O.V. Radhakrishnan, Sr. Advocate instructed by Sri, Shaji Thomas, appeared for Respondents 3 and 4. 20. The petitioner contended that though she conducted the Satyagraha in front of the principal’s office, that was her legitimate right to protest against the injustice meted out to her and that it did not amount to a misconduct for the reason this it did not result in obstruction to entry to and from any class room, office, hall or any other place in the campus. She also contended that in the enquiry she was denied a reasonable opportunity of defending herself and hence the enquiry was vitiated for violation of the principles of natural justice. 21. According to her in terms of Rule 6(1) of the Conduct Rules 2005 only with the approval of the College Council could the Principal appoint the enquiry committee and as elections were not held there was no validly constituted College Council in office. On this basis it was contended that the disciplinary action initiated against the petitioner was illegal. It is also her contention that the allegation that she had violated Rule 5(d) of the Code of Conduct Rules and Rules 9 and 11 of the Rules of General Discipline of College was incorrect. It is also stated that W.P.(C) No.18180 of 2007-L =: 13 := Ext.P16 order dismissing her appeal is illegal and that though the appeal was filed against Ext.P3 order of suspension, the appellate authority upheld not only the order of suspension but also her dismissal itself, although no appeal was filed against her dismissal. She would therefore submit that she has been deprived of an opportunity to challenge her dismissal. 22. In addition to all this, she would submit that the enquiry committee consisting of teachers of the college were only acting at the dictate of the 4 th respondent, he being the principal of the college. She would allege malafides against the 4 th respondent and submits that it was only for wrecking vengeance against her father for having published a book that she has been harassed and made a scapegoat. 23. On the other had, Learned Sr. Counsel appearing for Respondents3 and 4 would justify the action and submit that it was on account of the proved misconducts committed by her that the petitioner had to be proceed against. It was submitted that throughout the proceedings and in this writ petition also, after admitting the misconducts, the petitioner was trying to justify the same, making irresponsible allegations against the college authorities and the Principal in particular. The learned Sr. Counsel pointed out that at no stage did the petitioner show any regret for the grave misconducts she had W.P.(C) No.18180 of 2007-L =: 14 := committed and therefore would submit that the management had no other option but to dismiss her. 24. It was submitted that the enquiry conducted was valid and proper that the findings in the enquiry report were consistent with the evidence available. The petitioner was furnished a copy of the enquiry report, she submitted her representations in the matter and that only thereafter, accepting the findings in the enquiry report, the petitioner was ordered to be dismissed. He would therefore argue that no case has been made out for interference in a proceeding under Article 226 of the Constitution of India. 25. The first question that arises for consideration is whether by her act of conducting Satyagraha with a placard in front of the Principal’s office during working hours, the petitioner has committed a misconduct. The misconducts that were alleged against the petitioner are those under clause 5(d) of the Mahatma Gandhi University Students Code of Conduct Rules 2005 and clauses 9 and 11 of the Rules for General Discipline of the College, which are extracted below for reference: Mahatma Gandhi University Students Code of Conduct Rules 2005 Clause 5(d): No student of a College shall stage or indulge in any activity like Satyagraha, Gharao, obstructing entry to and from W.P.(C) No.18180 of 2007-L =: 15 := any class room, office, hall or other places inside the campus and such activities shall be treated as misconduct. Rules of General Discipline Clause 9: Political activism is strictly banned in the campus. Students are forbidden to organize or attend meetings other than those permitted by the principal. Strikes are strictly prohibited in the college campus and its premises. Nobody shall instigate or take part in any strike inside the campus. Clause 11: Any student who is persistently insubordinate, who is repeatedly or willfully mischievous, who is guilty of fraud or malpractice in connection with examinations or who in the opinion of the Principal is likely to have an unwholesome influence on the fellow students shall be removed from the rolls. The removal shall be either temporary or permanent according to the gravity of the offence. 26. The argument that was raised by the petitioner was that there is no evidence or finding that by the Satyagraha that she conducted, she had obstructed entry to and from any class room, office, hall or other places inside the campus to be rendered a misconduct. It may be true that the Satyagraha conducted by the petitioner, did not result in any obstruction to the entry to or from the Principal’s Office, but the question would still be whether it is necessary that obstruction should be caused W.P.(C) No.18180 of 2007-L =: 16 := to render the act of a student conducting Satyagraha, a misconduct within the Rules. In my considered opinion it is not necessary that the Satyagraha should have resulted in any obstruction to render it a misconduct. 27. If I accept the plea of the petitioner, the consequences could be disastrous. In a given case, if a group of students Gharao their Principal or a teacher at a place inside the Campus, may be in a play ground, without causing obstruction, the Principal and the college authorities will be helpless and cannot proceed against the students. Such a situation cannot be allowed and the Rule cannot be understood as permitting the same. 28. I should remind myself that I am dealing with the case of a student and not an employee in an industrial establishment, whose rights are governed by the provisions of the Industrial Disputes Act and the misconducts are defined in the Standing Orders certified under the provisions of the Industrial Employment (Standing Orders) Act. In my view even if the misconducts are not defined, unlike the requirement in Industrial Law or Service Jurisprudence, still the disciplinary authority in a college is perfectly competent and justified in proceeding against a student, if the student has committed an act subversive of discipline in the campus. W.P.(C) No.18180 of 2007-L =: 17 := 29. Even otherwise I should construe the conduct rules according to the intent of its makers and if more than one interpretation is possible I should choose that interpretation which represents the true intention that it seeks to achieve. It