IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 WP(C).No. 16188 of 2008(B) ---------------------------------------- PETITIONER(S): ------------------------- DR.K.S.RADHAKRISHNAN, AGED 53 YEARS, S/O.LATE K.A.SUKUMARAN, VICE CHANCELLOR, SREE SANKARA UNIVERSITY OF SANSKRIT, KALADY, ERNAKULAM DISTRICT, RESIDING AT KALLUMADATHIL, S.CHITTOOR P.O., COCHIN - 682 027. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SMT.SARITHA DAVID CHUNKATH RESPONDENT(S): --------------------------- 1. THE CHANCELLOR, SREE SANKARA UNIVERSITY OF SANSKRIT, KALADY, ERNAKULAM DIST. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE REGISTRAR, SREE SANKARA UNIVERSITY OF SANSKRIT, KALADY, ERNAKULAM DIST. SPL. GOVERNMENT PLEADER SRI. N. MANOJKUMAR FOR R1 & R2 ADV. SRI.P.K.VIJAYAMOHANAN,SC,SREE SANKARA UTY FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/008 ALONG WITH WPC NO. 14055 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.16188/2008 B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTIFICATION DTD. 7/12/2004 ISSUED BY THE CHANCELLOR. EXT.P2: COPY OF THE ORDER DTD. 28/04/2005 ISSUED BY THE GOVERNMENT. EXT.P3: COPY OF THE LETTER DTD. 24/03/2008 ALONG WITH THE EXTRACT OF THE REPORT. EXT.P4: COPY OF THE EXPLANATION DTD. 10/04/2008 SUBMITTED BY THE PETITIONER. EXT.P5: COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE DTD. 4/03/2006. EXT.P6: COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE DTD. 20/10/2006. EXT.P7: COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE DTD. 23/05/2005. EXT.P8: COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE DTD. 05/03/2005. EXT.P9: COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE DTD. 9/12/2005. EXT.P10: COPY OF THE DECISION OF THE SYNDICATE DTD. 24/02/2005. EXT.P11: COPY OF THE LETTER DTD. 11/04/2008 ADDRESSED TO THE CHANCELLOR BY THE PETITIONER. EXT.P12: COPY OF THE NEWS REPORT APPEARED IN INDIAN EXPRESS DAILY DTD. 22/04/2008. EXT.P13: COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE DTD. 23/05/2005. EXT.P14: COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE DTD. 9/12/2005. EXT.P15: COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE DTD. 23/12/2005. Kss ..2/- ..2... WPC.NO.16188/2008 B EXT.P16: COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE DTD. 7/01/2006. EXT.P17: COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE DTD. 7/01/2006. EXT.P18: COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE DTD. 27/01/2006. EXT.P19: COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE DTD. 4/03/2006. EXT.P20: COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE DTD. 27/05/2006. EXT.P21: COPY OF THE LETTER DTD. 17/11/2006 OF THE GOVERNMENT OF KERALA. EXT.P22: COPY OF THE LETTER DTD. 18/10/2006 OF THE GOVERNMENT OF KERALA. EXT.P23: COPY OF THE INSPECTION REPORT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).Nos.16188/08 &14055/08 ----------------------------------------------------------- Dated this the 3rd day of December, 2008 JUDGMENT Prayer in WP(c).No.16188/08 is to quash Ext.P3 and to forbear the respondents from taking any action against the petitioner on the basis of Ext.P3 report. 2. Briefly stated the facts of the case are that, while working as Reader in the Department of Philosophy in Maharajas College, Cochin, by Ext.P1 order issued by the first respondent, exercising his powers under Section 24 of the Sree Sankara University of Sanskrit Act, the petitioner was appointed as Vice Chancellor of the Sree Sankara University of Sanskrit, Kalady, with effect from the afternoon on 10.12.2004. Ext.P2 is the order issued by the 2nd respondent fixing the terms and conditions of his appointment. Petitioner submits that during his tenure, which is to expire on 9th December, 2008, there have been WP(c).No.16188/08 2 several obstructions and strikes from politically hostile organizations. It is stated that, when all their attempts failed, they moved the Government by a representation, on the basis of which, an enquiry was ordered to be conducted by the Finance Inspection Wing of the Government. According to him, an enquiry was conducted without notice to him. Petitioner states that, finally by Ext.P3 letter of the 2nd respondent dated 24.3.2008, an enquiry report on allegation Nos. 3,4 and 6 to 10 were forwarded to the Registrar of the University with a request to furnish an action taken report urgently to the Government. 3. Allegation No.3 is regarding appointments to the posts of Binder and Printer in the University and the finding is that the appointment was irregular and the recommendation is for cancellation of the appointment. Allegation No.4 is regarding appointment to the posts of Electrician and Typist and recommendation is that the age relaxation given was irregular and therefore to cancel the appointment. Similarly the allegation No.6 was in relation to the appointment to the post of Overseer(Civil,Electrical). WP(c).No.16188/08 3 In so far as this allegation is concerned, the conclusion is that the notification issued by the University for making appointment is in order but details of the selection procedure and appointments are not available in the office for verification. In so far as the allegation No.7 regarding the appointments to the posts of Public Relations Officer and Senior Publication Officer is concerned, the recommendation is that the appointment of the Senior Publication Officer was without amending the Statute and without prior approval of the Syndicate and therefore was irregular. It was recommended that the appointment may be cancelled. Allegation No.8 deals with the appointment to the post of Security Officer and the committee has taken note of the interim stay ordered by this court in WP(c). No.26398/08. Allegation No.9 was regarding promotion given to one Sri. Malleswaran as Deputy Registrar and the recommendation is that the promotion was irregular and to take disciplinary action against the Vice Chancellor and the Registrar. Allegation No.10 deal with the appointment of Lecturers in Philosophy and the recommendation is that the WP(c).No.16188/08 4 appointments made by the Vice Chancellor was without consulting the Syndicate and therefore was irregular and needs explanation. 4. The petitioner submits that when he came to know of Ext.P3 report, he submitted Ext.P4 to the 2nd respondent offering his explanation in regard to each of the allegations and findings covered by Ext.P3 and complaining that the enquiry was conducted without notice to him, in violation of the provisions contained in Section 48(2) of the Act. It is stated that he has appraised the Chancellor also about this matter by submitting Ext.P11. 5. Learned Senior Counsel appearing for the petitioner mainly contended that for the conduct of the enquiry resulting in Ext.P3 report, the only enabling provision in the Act is under Section 48 and that the mandatory provisions contained in Section 48 have not been complied with. It was contended that, the enquiry was conducted without notice to the Vice Chancellor and therefore Ext.P3 report is vitiated. According to the learned senior counsel for the petitioner, on each of the findings in Ext.P3, the University had its WP(c).No.16188/08 5 explanation to offer and since it was not issued notice of enquiry, the University lost that opportunity and that led to erroneous finding in the report. 6. Learned Government Pleader appearing on behalf of the second respondent, contended that notice was given to the University. It was also contended that the Vice Chancellor had directed the Registrar to produce the records before the Enquiry Committee and therefore had aquainted to the procedure adopted. It is also stated that the report contain the findings of irregular appointments in the University and that the petitioner is not personally affected. It was also pointed out that the affected parties have approached this court challenging Ext.P3 and this court has disposed of the matter and directing that when action is taken on the basis of the report against the so called irregular appointments, they should be given an opportunity of hearing. The Standing counsel for the University generally adopted the submissions made by the learned Government Pleader. 7. As already noticed, the main contention raised by WP(c).No.16188/08 6 the Senior Counsel appearing for the petitioner was regarding the non-compliance of Section 48 of the Act. Section 48 of the Sree Sankaracharya University of Sanskrit Act, 1994, in so far as it is relevant reads as under; "(1). The Government shall have the right to cause an inspection to be made by such person or persons as they may direct, of the University, its buildings, libraries, museums and any institution maintained or administered by the University, of the teaching and other work conducted by the University or under its auspices and the conduct of any other function of the University and to cause an enquiry to be made in respect of any matter connected with the administration and finances of the University. (2) The Government shall, before causing an inspection or enquiry to be made under sub section (1) give notice in writing to the Vice- Chancellor of their intention to cause an WP(c).No.16188/08 7 inspection or enquiry to be made and the Vice Chancellor shall be entitled to appoint a representative of the University who shall have the right to be present and to be heard at such inspection or enquiry. (3) The Government shall communicate to the University the views of the Government with reference to the results of such inspection or enquiry and may after ascertaining the opinion thereon of the University, advise the University upon the action to be taken and fix a time limit for taking such action. (4) The University shall, within the time limit so fixed, report to the government the action which has been taken or is proposed to be taken on the advice tendered by the Government." 8. A perusal of the provisions contained in the Act shows that Section 48 alone confers power on the Government to cause on investigation or enquiry. Section WP(c).No.16188/08 8 48(2) provides that before causing investigation or enquiry under sub Section (1) Government shall give notice in writing to the Vice Chancellor of their intention to cause an enquiry to be made and the Vice chancellor is entitled to appoint a representative of the University, who shall have the right to be present and to be heard at such investigation or enquriy. The complaint of the writ petitioner is regarding the non-compliance of section 48(2). This contention of the learned counsel for the petitioner is answered by the Government in paragraph 20 and 21 of its counter affidavit and it is reads as under. "20. It is submitted that as per Section 48 of Chapter X of Sree Sankaracharya University of Sanskrit Act, 1994, the Government have the right to cause an Inspection to be made by such person or persons as they may direct, of the University, its buildings, Libraries, Museums and any institutions maintained or administered by University, of the teaching and other work conducted by the University or under its WP(c).No.16188/08 9 auspicious and of the conduct of any other function of the University; and cause an enquiry to be made in respect of any matter connected with the administration and finances of the University. 21. It is submitted that the Finance Inspection Wing of Government gave notice to the University and conducted the enquiry in accordance with the rules. There is absolutely no illegality or irregularity in the action of the respondents. Since the petitioner being the university and the prime suspect of these allegations, after obtaining the prior consent of Hon'ble Chancellor, a Vigilance enquiry has been ordered. It is also submitted that the Government have not initiated any disciplinary action till date. The conduct of mere enquiry into the allegations/irregularities cannot be termed as humiliation or harassment. The action pursued by Government to enquire into the WP(c).No.16188/08 10 irregularities/misappropriation leveled against the petitioner is strictly in accordance with the laws of the University and procedures prescribed by law." 9. Evidently that shows that even according to the Government enquiry conducted was exercising its power under Section 48 and notice was given only to the University and not to the Vice Chancellor as provided in sub Section (2) of Section 48 of the Act. If that be so, not only the Vice chancellor did not have notice but also did not have an opportunity to appoint his representative who shall be entitled to be present and to be heard at the enquiry. Senior Counsel for the petitioner also relied on the judgments of the Apex Court in Prakash Amichand Sha V. State of gUjarat and Ors.(AIR 1986SC 468) and in Dr. V.N. Rajasekharan Pillai v. Chancellor M.G University (ILR 2002(1) (SC) 102} to contend that, if a statute lays down a procedure for performing an act, the same shall be performed only in the manner specified in the statute and not in any other manner. This principle of law is too well WP(c).No.16188/08 11 settled and need no reiteration. As contended by the learned counsel for the petitioner, Section 48(2) provides who shall be given notice and the right of the Vice Chancellor to be represented in the enquiry. In this case evidently there has been non compliance of Section 48(2) and that position stands admitted. 10. Despite this, it was contended by the Government Pleader that, notice was given to the Registrar of the University and it is under the orders of the Vice chancellor that the University produced the files before the Inspection Wing. Such a plea is not seen raised in paragraph 20 or 21 of the counter affidavit and in the absence of such a plea in the counter affidavit I am not prepared to deal with such a contention. Even otherwise, on the basis of the mandatory provisions contained in Section 48(2) a notice on the Registrar is insufficient to meet the requirement of the section. 11. Yet another contention that was raised by the Government Pleader was that the findings in the enquiry report are against certain appointments made and that the WP(c).No.16188/08 12 petitioner has no reason to be aggrieved by this finding. In my view, that is not an acceptable contention for the reason that a reading of the report shows that the connivance of the petitioner was found and even a disciplinary action against the petitioner is recommended. In view of such findings and recommendations, it is totally incorrect for the Government Pleader to contend that the petitioner is not affected by the report. 12. Therefore, not only there is non compliance with the mandatory provisions of Section 48(2) of the Act, even on the general principle of violation of natural justice, the report deserves to be interfered with. For that reason, I am inclined to set aside Ext.P3 report and to restrain the respondents from taking any action against the petitioner based on the findings in Ext.P3. In the light of the above finding in WP(c).No.16188/08, no further orders are required in WP(c).No.14055/2008. Writ Petitions are disposed of as above. vi ANTONY DOMINIC JUDGE WP(c).No.16188/08 13 vi.