IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 WP(C).No. 23034 of 2011(D) -------------------------- CRMP.8/2010 of ENQ.COMMR. & SPL.JUDGE,TRIVANDRUM .................... PETITIONER(S): --------------- DR.P.K.POKKER, PROFESSOR, DEPARTMENT OF PHILOSOPHY, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., MALAPPURAM. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): --------------- 1. THE UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, THENHIPALAM, MALAPPURAM-676 505. 2. THE VICE CHANCELLOR, UNIVERSITY OF CALICUT, THENHIPALAM, MALAPPURAM-676 505. 3. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, CULTURAL AFFAIRS @ DEPARTMENT, THIRUVANANTHAPURAM-695001. 4. THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM-695001. ADV. SRI.SANTHOSH MATHEW,SC,CALICUTY UNIVERS FOR R1-2 GOVERNMENT PLEADER FOR R3 & 4 SHRI P. FAZIL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/11/2011, THE COURT ON 12/12/2011 DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF THE ORDER ISSUED BY GOVERNMENT DT.1.11.2006 EXT.P2-TRUE COPY OF PROFILE OF THE PETITIONER's EXT.P3-TRUE COPY OF THE BROCHURE OF THE BOOK FESTIVAL EXT.P4-TRUE COPY OF REPORT RECEIVED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT. EXT.P5-TRUE COPY OF ORDER DATED 29.10.2007 EXT.P6-TRUE COPY OF ORDER IN CRL.M.P. 8/2010 EXT.P7-TRUE COPY OF THE COMMUNICATION ISSUED BY R3 DT.25.6.2011 EXT.P8-TRUE COPY OF LETTER ISSUED BY R3 DATED 29.6.2011 EXT.P9-TRUE COPY OF ORDER ISSUED BY THE UNIVERSITY DT.19.8.2011 EXT.P10-TRUE COPY OF NEWS ITEM APPEARED IN THE MALAYALA MANORAMA DAILY EXT.P11-TRUE COPY OF LETTER ISSUED BY THE GOVERNMENT DT.18.5.2010 RESPONDENTS' EXTS: EXT.R1(1)-TRUE COPY OF JUDGMENT IN WPC 16372/2007 OF THIS COURT EXT.R1(2)-TRUE COPY OF NOTE OF THE UNIVERSITY RELATING TO THE SUBJECT MATER. EXT.R4(A)-TRUE COPY OF COMPLAINT IN CRL.MP 8/2010 EXT.R4(B)-TRUE COPY OF LETTER DATED 4.3.2011 OF THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU ANNEXURE R1(1)-TRUE COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE, CALICUT UNIVERSITY HELD ON 23.9.2011 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 23034 of 2011-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of December, 2011. JUDGMENT The legality of the order of suspension issued by the first respondent University as per Ext.P9, is under challenge in this writ petition. 2. The petitioner, at the time of suspension, was working as Professor in the Department of Philosophy under the first respondent University. The petitioner had a stint as Director of the Kerala State Institute of Languages, when he was appointed as such on 11.11.2006 by way of deputation. He took charge therein on 1.12.2006. He rejoined the University on 1.6.2011. 3. According to the petitioner, the order of suspension is vitiated on several grounds: (a) Due to lack of power for the Vice Chancellor who invoked the power under Section 10(13) of the Calicut University Act; and (b) Non consideration of relevant materials and consideration of irrelevant materials. 3. The background under which the order of suspension is issued, show that a complaint was filed in the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram, against him and the Assistant Director and another, which was subjected to an enquiry. Ext.P6 is the order passed wpc 23034/2011 2 by the Enquiry Commissioner and Special Judge, finally. It is pointed out that after considering the report Ext.P4, submitted by the Enquiry Officer, the Court finally concluded that it is not necessary to initiate any prosecution steps against the petitioner. My attention was invited to Ext.P4 report containing seven allegations. It is submitted that except allegation No.5, the other allegations were reported to be not substantiated. Even with regard to allegation No.5, it is pointed out that the only recommendation was to take disciplinary action. 4. Learned counsel for the petitioner submitted that Exts.P7 and P8 communications issued by the Government which were relied upon by the Vice Chancellor in passing Ext.P9 order, also cannot advance the case of the respondents. Ext.P8 refers to the observations made by this Court in the judgment in W.P.(C) No.16372/2007. It is submitted that the petitioner has filed an appeal against the said judgment. 5. The respondents have filed separate counter affidavits justifying the action. 6. Heard learned counsel for the petitioner, Shri P.C. Sasidharan, learned Standing Counsel for the University Shri Santhosh Mathew and learned Government Pleader, Shri P. Fazil. wpc 23034/2011 3 7. Learned counsel for the petitioner elaborated the contentions and submitted the following: It is submitted that Ext.P4 report will show that the allegations were raised when the State Institute of Languages organised a Text Book Mela at Kozhikode in 2007. The event was an International Book Festival and was conducted in a proper manner. It is submitted that the petitioner and the Assistant Director were named in the report, but a close reading of the report will show that the allegations have been unsubstantiated. 8. My attention was invited to the details of Ext.P4. Allegation No.5 is regarding the expenditure towards the transportation charges, food and accommodation to delegates, etc. A total amount of Rs.41,862/- was incurred towards conveyance charge of vehicles. The allegation was that the vouchers submitted by the travel agency did not contain the registration number of the vehicles and the date of trips performed and that the petitioner sanctioned the amount without examining those details. It is pointed out that regarding accommodation charges also, no serious irregularities have been found. Learned counsel for the petitioner explained that being the Director, he was only sanctioning the payment as cleared by the section concerned. He need not go through the details of the voucher or wpc 23034/2011 4 other details as it is put up before him by the section concerned after processing. It is stated that it is a bonafide act without any criminal intention. As regards allegation No.5, the recommendation by the enquiry officer is to initiate disciplinary action. 9. A reading of Ext.P6 order passed by the Enquiry Commissioner and Special Judge, learned counsel submitted, will show that the learned Judge concluded that there is no criminal intention on the part of the petitioner herein. My attention was invited to para 13 of the order. It is therefore submitted that the letter forwarded by the Government as per Ext.P7 referring to the vigilance enquiry and alleging misappropriation of finds, cannot have any legs to stand. 10. With regard to the observations by this Court in Ext.R1(1) judgment in W.P.(C) No.16372/2007, learned counsel explained that the petitioner who was the third respondent therein, had only signed the counter affidavit and even if it is true that some criticism have been levelled against him, he has filed appeal against it and the same will not warrant any disciplinary action. It is pointed out that the Vice Chancellor invoked the emergency powers under Section 10(13) of the Act and no such situation was available. By referring to the Note file it is pointed out that the notes wpc 23034/2011 5 therein will show that actually the details of the writ petitions concerned were not available and without getting any further details in the matter, the Vice Chancellor passed an order in the file placing the petitioner under suspension. It is therefore submitted that there is total non application of mind in the matter. 11. Reliance is placed on various judgments of this Court to contend for the position that the suspension is beyond jurisdiction; there is no basis for invoking the emergency power and as the Syndicate is the appointing authority, it should have been left to the Syndicate to take a decision. The judgments relied upon are: The unreported judgment in O.P. No.4081/2003, Dr. Leelakrishnan v. Cochin University (1997 (1) KLT 281), State of Orissa v. Bimal Kumar Mohanty {(1994) 4 SCC 126}, Surendran v. State of Kerala (1999 (2) KLJ 1082), Surendran K. v. Government of Kerala and others (ILR 2008 (3) Ker. 587) and George Thomas v. Mahatma Gandhi University (2009 (2) KLT 591). 12. Learned Standing Counsel for the University submitted that even though the Enquiry Commissioner and Special Judge did not find reasons to initiate criminal prosecution, Ext.P4 will show that there is a recommendation to initiate disciplinary action. It is pointed out that the wpc 23034/2011 6 Government, by Ext.P7, communicated the details of the financial irregularities and requested to expedite steps to initiate departmental action against the petitioner and report compliance about the same. By Ext.P8, after referring to the directions of this Court in a judgment, action was sought in the matter. It is submitted that the contention raised by the petitioner that the details of the judgment were not available, is not correct. A reading of the Note file will show that the Government has forwarded a copy of the judgment along with the letter Ext.P8. Therefore, materials were placed before the Vice Chancellor inviting his attention in the matter. It is submitted that the observations of this Court against the petitioner in Ext.R1(1) judgment are really of very serious nature. This Court had directed strong action to be taken against the petitioner by the Government and when the same is communicated to the University, the University could not have remained idle in the matter. It is therefore submitted that the seriousness of the issue, when informed to the University, the Vice Chancellor exercised the emergency powers. It is also submitted that the Syndicate of the University by Annexure R1(1), has approved the action of the Vice Chancellor. 13. Learned Government Pleader also submitted that the financial wpc 23034/2011 7 irregularities reported before the Government by the Director, Vigilance and Anti-corruption Bureau, recommended action against the petitioner. This was communicated to the University as per Ext.P7. The finding of this Court in Ext.R1(1) judgment and the directions therein required appropriate action. Therefore, the Vice Chancellor has exercised his powers in the matter. It is therefore, pointed out that the action based on the criticism made by this Court against the petitioner in Ext.R1(1) judgment could not have been delayed. 14. A reading of Ext.P4 report submitted by the Vigilance and Anti- corruption Bureau will show that only against allegation No.5, recommendation has been made to take disciplinary action against the petitioner. The Enquiry Commissioner and Special Judge, after considering various aspects, held in Ext.P6 order that materials are not there warranting to register a case against the accused persons for the offences punishable under the provisions of Prevention of Corruption Act. The verification report submitted by the officer concerned was accepted. 15. Since learned counsel for the petitioner vehemently argued that Ext.P6 order gives a finality in the matter and the Government letters Exts.P7 and P8 could not have been relied upon, I will refer to the wpc 23034/2011 8 contents in Ext.P7 Government letter addressed to the Registrar of the University which is dated 25.6.2001. It is stated therein as follows: “During his tenure as Director, State Institute of Languages, it has come to the notice of the Government that he has committed financial misappropriations and upon a private complaint before the Honourable Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram, a Vigilance Enquiry into the allegations against Dr. Pokker and two others was conducted.” In para 2 it is stated that “Examining the evidences, the Vigilance and Anti Corruption Bureau has recommended for departmental action against Dr. . K. Pokker.” Accordingly, the Government, after examining it, decided to recommend disciplinary action against the petitioner. The Government, in the operative portion of the above letter, requested the University to expedite measures to initiate disciplinary action against the petitioner and report compliance urgently. 16. It is explained in the counter affidavit filed on behalf of the third respondent that apart from the vigilance enquiry, there was a detailed report of the audit. The details of the same are referred to in paragraphs 3 and 4 of the counter affidavit. It is stated in para 4 as follows: “The Audit Department, while examining the accounts of Book Fairs for the year 2007 and 2008 have put forth grave remarks on wpc 23034/2011 9 the misconduct of Dr.P.K. Pokker as Director, State Institute of Languages, in countersigning vouchers and quoting tenders, the Audit had remarked that it was deplorable to watch public money being squandered and misused such lavishly that the two Book Fairs conducted by State Institute of Languages in the year 2007 and 2008 have caused a huge pecuniary loss of Rs.10,65,818/- and Rs.13,12,228/- in the respective years. The Audit Department has entrusted the responsibility on the then Director, Dr. P.K. Pokker. The financial misappropriation cannot be defined in terms of embezzling of money in physical entities, but in terms of misuse and squander of public money, which, to a very extend could have been avoided, had Dr. Pokker sought for the advice of financial representatives of Government, who were employed in that Institute on deputation basis.” Thereafter, in para 7 it is stated as follows: “The Government, while issuing the letter seeking disciplinary action against Dr. Pokker had not described all the above facts in details, but has categorically stated that the financial misappropriation was committed. This charge was made in view of all the Audit Reports received in Government regarding the Book Fairs conducted in 2007 and 2008.” Finally, it is mentioned that Ext.P8 was issued pointing out the judgment of this Court in W.P.(C) No.16372/2007, showing strong disapproval of the petitioner's conduct in submitting a counter affidavit. wpc 23034/2011 10 17. Therefore, apart from the vigilance enquiry, another material against the petitioner in the form of an audit report is relied on and the letter Ext.P7 referred to the contents of the audit report, when action was sought against the petitioner. 18. Of course, the Enquiry Commissioner and Special Judge has found that grounds are not there to prosecute the petitioner under the Prevention of Corruption Act. The report of the Enquiry Officer recommends disciplinary action, which cannot be disputed. 19. The first question to be considered is whether the invocation of the emergency power by the Vice Chancellor in the above background, is without jurisdiction. Section 10(13) of the Act confers such a power on the Vice Chancellor to act when the Syndicate or Academic Council is not in session. He is empowered to exercise any power vested in the Syndicate or Academic Council and will have to report the action taken by him at the next session of the Syndicate or Academic Council, for such action as he may consider necessary. The power conferred for issuing an order of suspension is under Statute 19 of the Calicut University First Statutes. The same reads as follows: “19. Suspension (1) The appointing authority or any authority to which it is wpc 23034/2011 11 subordinate or any other authority empowered by the Syndicate in that behalf may, at any time, place a University employee under suspension.- (a) Where a disciplinary proceeding against him is contemplated or is pending; or (b) Where a case against him in respect of any criminal offence is under investigation or trial; or (c) Where in the opinion of the authority aforesaid he has engaged himself in activities prejudicial to the interests of the University. (d) Where final orders are pending in the disciplinary proceeding, if the appropriate authority considers that in the then prevailing circumstances it is necessary, in the interest of the University, that the University employee should be suspend from service of the University.” The power of suspension can be invoked where disciplinary proceedings is contemplated. Shri P.C. Sasidharan, learned counsel for the petitioner argued that herein prior to the order of suspension, no notices or memo of charges were issued to the petitioner by the University. It is therefore submitted that it is too premature to place the petitioner under suspension. 20. I will now come to the decisions relied upon by the learned counsel for the petitioner to contend for the position that the order lacks jurisdiction, as there was no emergency situation for action under Section wpc 23034/2011 12 10(13) of the Act. In Dr. Leelakrishnan v. Cochin University (1997 (1) KLT 281), the Division Bench considered a similar provision under the Cochin University of Science and Technology Act. Therein, exercising the emergency powers, the Vice Chancellor passed an order denying permission to some members to take part in the meeting of the Syndicate or other bodies. This Court considered mainly two aspects, one whether there is a power conferred on the Syndicate itself to suspend a member and secondly, whether the action of the Vice Chancellor is valid or not. It was after analysing Section 18 of the Act the Division Bench held that there is no such power is conferred on the Syndicate. Thus, the view taken is that the Vice Chancellor was not right in taking action to deny permission to the nominated members to participate in the meeting of the Syndicate. The relevant findings in paragraphs 17 and 18 reads thus: “The question for consideration is whether the action of the Vice Chancellor in not permitting the petitioners to take part in the proceedings of the Syndicate and other bodies of the University as confirmed by the Syndicate is legal. Petitioners were nominated as members of the Senate by the Chancellor. The Government of Kerala then nominated them to the Syndicate and they can continue as members of the Syndicate till 13.2.1999. Being members of the Senate and Syndicate, they are as a matter of right entitled to the wpc 23034/2011 13 notice of the meeting of the bodies and are entitled to attend the meetings of the bodies and participate in the proceedings. Their right to continue as members cannot be interfered with excepting in the circumstances mentioned in S. 46 of the Act. Admittedly, the power under S. 46 has not been exercised and the circumstances under S. 46 are not existing in the case. The Vice Chancellor has invoked the power under S. 11(11) of the Act. This power can be exercised only in an emergency when the Syndicate and academic council is not in session. S. 18 deals with the power of Syndicate and S. 24 deals with the power and duties of the academic council. Similarly, Statute 73 of the Cochin University First Statute deals with the power and duties of the Syndicate. Among the duties S. 18, Chapter XIII deals with suspension, discharge, dismissal and disciplinary action against teachers and other employees of the University and above the rank of Assistant Registrar. A power to suspend a member is not seen enumerated in S. 18 and in the Statute. As already stated, the only other provision is S. 46. Of course, the conditions precedent mentioned in S. 46 are not existing in the case. Further the power under S. 11(11) is to be exercised only when an emergency arises. It is to be exercised sparingly and only when the proposal will not brook the delay till the Syndicate meets. Now, we come to the approval of the action of the Vice Chancellor by the Syndicate. We have already held that there was no circumstance existing for the Vice Chancellor to exercise the power under S. 11 (11) and it was illegal. Thus, the approval by the Syndicate cannot validate the same.” wpc 23034/2011 14 21. Evidently, this Court was considering a case where there was no power for the Syndicate itself to pass such an order. Apart from that, it was found that there was no emergency situation. The finding on the said aspect is contained in para 18 of the judgment as noted already. The view taken is that the Vice Chancellor could have convened a meeting of the Syndicate before he directed to issue the order. The above conclusion was arrived at stating that in the counter affidavit, the facts which led to the emergency situation were not stated. It is on that premise the above findings were rendered. 22. The next decision relied upon is George Thomas's case (2009 (2) KLT 591). Therein, the view taken is that the power under Section 10 (17) of the Mahatma Gandhi University Act, 1985 is to be exercised only when an emergency arises and only when proposal will not brook delay till Syndicate meets. That was a case where the Vice Chancellor amended the promotion procedure contained under the syllabus for B.Pharm Course. In para 10 of the judgment, it was held as follows: “Therefore, in the light of statutory provisions contained in S.10 (17) of the Act, I am of the view that law laid down in the aforesaid two judgments fully applies to the facts of this case. If that be so, question is whether there was any circumstance justifying the wpc 23034/2011 15 exercise of power under S.10(17) by the Vice Chancellor. Answer to this question has to be found in the counter affidavit filed by the University, where all that is stated in para 10 is that the Academic Council of the University had constituted a Sub committee to discuss the amendment of regulation and the Committee has recommended amendment, which was approved by the Vice Chancellor subject to ratification by the Academic Council. It is stated this is the usual procedure followed by the University. In my view this explanation is totally unsatisfactory and at any rate does not answer the requirement of S.10(17) of the Act to sustain Ext. P28.” The said decision also turned on the facts of the case and the lack of averments in the counter affidavit drawing support for the action and this Court held that the explanation is totally unsatisfactory. 23. In the unreported judgment in O.P.No.4081/2003 also, a similar question was considered. Therein, the petitioner was removed from the service of the University as Professor in Library Science, by the Vice Chancellor. In para 16, the legal position was analysed thus: “16. The situation of emergency contemplated in Section 10(13) is such a nature that if allowed to continue even for a few days, the same would jeopardise the day to day working of the University. If postponement of the decision regarding such situation can, without affecting the day to day working of the University, wait till the next wpc 23034/2011 16 meeting of the Syndicate, certainly the powers under Section 10(13) cannot be invoked. In this case even going by the reasons given in Ext.P14, the situation arose as early as on 8.11.2001 and continued till 30.1.2003, during which period the Syndicate was actually in session at least once. If the situation could be tackled for more than a year without affecting the working of the University, it cannot be stated to be an emergency coming within the ambit of Section 10 (13). I have no hesitation to hold that absolutely no emergency had arisen in January 2003 warranting invocation of powers under Section 10(13) as claimed by the 2nd respondent in Ext.P14.” Therein also, the situation was that for more than one year, no action was taken and therefore it was held that there was no emergency. 24. Herein, the University relies upon Exts.P7 and P8 and the judgment of this Court in Ext.R1(1). In Ext.R1(1) judgment, various findings were rendered against the petitioner. The relevant findings are contained in paragraphs 15, 17 and 26, which are as follows: “15..........It is appalling to note that the Director of the Institute is either not aware of the service rules applicable to the two different units under him or is feigning ignorance about the same, both of which would show him in very bad light. Even when the correct rules were brought to the notice of the Director by the petitioner in her reply affidavit, without any regard for truth, the Director had the audacity of filing a false affidavit denying the wpc 23034/2011 17 same, which goes to show the extent to which the Director is prepared to go, simply for wining a case,