IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 WP(C).No. 27799 of 2008(H) ----------------------------------------- PETITIONER(S): ------------------------- K. CHANDAPILLA PANICKER, ASSISTANT PROFESSOR, DEPARTMENT OF ELECTRICAL AND ELECTRONICS, T.K.M COLLEGE OF ENGINEERING, KOLLAM. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): --------------------------- 1. THE CHAIRMAN, GOVERNING BODY, T.K.M COLLEGE OF ENGINEERING, KOLLAM. 2. THE UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, UNIVERSITY BUILDINGS, THIRUVANANTHAPURAM. 3. ANTONY BEN, ASSISTANT PROFESSOR, DEPARTMENT OF ARCHITECTURE, T.K.M COLLEGE OF ENGLINEERING, KOLLAM, REGIONAL PRESIDENT, KPCTA, KERALA UNIVERSITY REGION. 4. R. NARAYANAN, ADVOCATE, EAST OF COURT COMPLEX, VANCHIYOOR, THIRUVANANTHAPURAM (THE ENQUIRY OFFICER APPOINTED BY THE CHAIRMAN, GOVERNING BODY OF T.K.M ENGINEERING COLLEGE FOR CONDUCTING ENQUIRY AGAINST THE PETITIONER) 5. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADVS.SRI.GEORGE POONTHOTTAM, SMT.VARSHA BHASKAR, SRI.S.PRASANTH (AYYAPPANKAVU). R2 BY ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. R5 BY GOVERNMENT PLEADER SMT. NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2011 ALONG WITH WPC.NO.25060 OF 2010, THE COURT ON 12/08/2011 DELIVERED THE FOLLOWING: Kss WPC.NO.27799/2008 H APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE COMPLAINT PREFERRED BY THE 3RD RESPONDENT BEFORE THE LOK AYUKTA. P2: COPY OF THE CORRECT INFORMATION FURNISHED BY THE REGISTRAR. P3: COPY OF THE REVISED INFORMATION FURNISHED BY THE REGISTRAR TO THE PRINCIPAL OF THE COLLEGE DTD. 18/07/2008. P4: COPY OF THE CHART OF DATES OF DISPARITY FOR 30 DAYS SUBMITTED TO THE PRINCIPAL OF THE COLLEGE. P5: COPY OF THE MEMO OF CHARGS ALONG WITH THE STATEMENT OF ALLEGATIONS. P6: COPY OF THE GOVERNMENT ORDER. P7: COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT APPOINTING THE ENQUIRY OFFICER. P8: COPY OF THE STATEMENT SUBMITTED BY THE HEAD OF DEPARTMENT OF THE COLLEGE. P9: COPY OF THE STATEMENT FILED BY THE REGISTRAR OF THE UNIVERSITY. RESPONDENT'S EXHIBITS: R1(A): COPY OF APPLICATION DTD. 4/06/2007 FOR DUTY LEAVE SUBMITTED BY THE PETITIONER. R1(B): COPY OF APPLICATION DTD. 2/08/2007 FOR DUTY LEAVE SUBMITTED BY THE PETITIONER. R1(C): COPY OF THE NOTICE DTD. 6/10/2007 ISSUED BY THE PRINCIPAL OF THE COLLEGE. R1(D): COPY OF LETTER DTD. 15/10/2007 OF PETITIONER. R1(E): COPY OF GOVERNMENT LETTER NO.11220/D2/04/H.EDN. DTD.31/07/2004. R1(F): COPY OF LETTER NO.G2.41844/04/COLL.EDN./L.DIS. DTD. 17/11/2004 OF THE DIRECTOR OF COLLEGIATE EDUCATION. R1(G): COPY OF LETTER DTD. 9/11/2007 OF PETITIONER. Kss ..2/- ..2.... WPC.NO.27799/2008 H R1(H): COPY OF LETTER DTD. 10/01/2008 OF PETITIONER. R1(I): COPY OF PETITION DTD. 19/12/2007 SUBMITTED BY REGIONAL PRESIDENT OF KERALA PRIVATE COLLEGE TEACHERS ASSOCIATION, KOLLAM TO THE 1ST RESPONDENT. R1(J): COPY OF MEMO DTD. 2/2/2008 ISSUED BY THE PRINCIPAL, TKM ENGINEERING COLLEGE OF PETITIONER. R1(K): COPY OF LETTER DTD. 12/2/2008 ISSUED BY THE REGISTRAR OF UNIVERSITY OF KERALA. R1(L): COPY OF LETTER DTD. 20/02/2008 OF THE 1ST RESPONDENT TO THE REGISTRAR, UNIVERSITY OF KERALA. R1(M): COPY OF LETTER DTD. 14/07/2008 SUBMITTED BY THE PETITIONER TO TKM COLLEGE. /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 27799/2008-H & 25060/2010-F - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of August, 2011. JUDGMENT Both these writ petitions are filed by the same petitioner. In W.P.(C) No.27799/2008 the challenge is against the disciplinary proceedings initiated against him and in the other writ petition, the challenge is against Ext.P9 communication issued by the University directing the petitioner to produce the teaching experience certificate in original and also No Objection Certificate in original from the institution for registration as part time research scholar. 2. The petitioner was a member of the Syndicate of the University of Kerala. He is working as Assistant Professor in the Department of Electronics in T.K.M. College of Engineering, Kollam which is also affiliated to the Kerala University. Challenge against the memo of charges issued is on the following grounds: It is initiated at the instance of the third respondent, so as to harass the petitioner and to interfere in the discharge of his duties as a Member of the Syndicate. In para 2, it is pointed out that certain decisions taken by the Syndicate with regard to the College, were not palatable to the management. A complaint, Ext.P1 is pending wpc 27799/2008 & 25060/2010 2 before the Lok Ayuktha filed by the third respondent and during the pendency of the same, disciplinary action has been initiated for the same set of allegations. The allegation mainly is that the petitioner wilfully absented from duty for 67.5 days during the period from July 2006 to August, 2007. It was filed on the basis of the information given by the Public Information Officer of the University, which according to the petitioner, is factually incorrect. The information sought was in relation to the dates of the meetings the petitioner had attended as a member of the Syndicate of the University. It is submitted that the correct information on the said aspect was supplied by the Registrar to the Principal of the College and also to the third respondent, as evident from Exts.P2 and P3. It is submitted that the same will show that the allegation of skipping of duty by the petitioner for 67 days, has been reduced to 30 days and on furnishing the correct information it was reduced to 6 days. In paragraph 7 of the writ petition the petitioner explains the absence on those days and a chart supplied to the Principal has been produced as Ext.P4. Ext.P5 is the copy of the memo of charges. Ext.P6 is the copy of the communication issued by the Government to the Director of Collegiate Education stating that Private Aided College Teachers nominated to the Syndicate shall be allowed duty leave for the days they attend official duties in the capacity as Syndicate wpc 27799/2008 & 25060/2010 3 Members. Their salary bills shall be honoured on the basis of a self declaration of the days of duty countersigned by the Principal of the College where the teacher is working. 3. By Ext.P7 communication, the first respondent informed that an equiry officer has been appointed. The main ground raised in the writ petition is that the disciplinary action is an act of victimisation and malafide and more importantly, without any factual foundation. 4. A detailed counter affidavit has been filed by the first respondent disputing the averments in the writ petition. The allegations of malafides and harassment are denied. It is stated that the petitioner did not produce any certificate from the competent authority of the University for the grant of duty leave applied by him. Reliance is placed on Statute 27 of Chapter II of the Kerala University First Statutes, 1979 to the effect that a teacher shall obtain previous sanction of the Principal for any absence of duty to attend any meeting of University body, or committee. Ext.R1(c) is the copy of the notice issued by the Principal to the petitioner, requesting him to submit the duty certificate for the days of duty leave availed of by him. The reply given by the petitioner is Ext.R1(d). Ext.R1(f) is the copy of the communication from the Director of Collegiate Education issued to the Registrar of the University of Calicut. It is submitted that in the light of wpc 27799/2008 & 25060/2010 4 these, it can be seen that teachers who are functioning as Syndicate Members have to produce duty certificate countersigned by the competent authority. 5. The details shown in Ext.P4 chart are also disputed stating that the petitioner has attended certain programmes connected with the “Suvarna Keralam” which is not a statutory function of a Syndicate member and is only a festival. It is submitted that in these circumstances, after prima facie finding that there is substance in the allegations, the memo of charges have been issued. The proceedings were stayed by this Court and therefore no further action has been taken in the matter to conduct enquiry. 6. Shri P.C. Sasidharan, learned counsel for the petitioner submitted that this is a clear case wherein there is no factual foundation. It is explained that the disputed dates on which the petitioner has attended various duties as a Member of the Syndicate can be clearly found from the documents produced by him. It is therefore submitted that the action is clearly one amounting to harassment and with a malafide motive. 7. Shri George Poonthottam, learned counsel appearing for the first respondent submitted that even in respect of the dates given in Ext.P4, it can be seen that some of the dates therein do not reflect any official activities as a Member of the Syndicate and therefore the petitioner will wpc 27799/2008 & 25060/2010 5 have to establish the matter at the time of adducing evidence. It is therefore submitted that this Court at this stage, will not be justified in entering into findings on questions of fact, as the petitioner cannot be absolved from facing an enquiry in the matter. 8. This is a case where a memo of charges was issued to the petitioner on certain allegations. The petitioner has already filed explanation also. True that a complaint is pending before the Lok Ayuktha at the instance of the third respondent. That will not prevent the management and authorities of the College from initiating any action on the basis of the materials they are relying upon. 9. The question is whether, under Article 226 of the Constitution of India, this Court at this stage, will be justified in interfering with the disciplinary proceedings which is yet to culminate any adverse finding or punishment against the petitioner. It is upto the petitioner to produce all the materials available with him and which he can collect from the University for supporting his absence from the College. Since the factual issues are clearly disputed, this Court may not be justified in entering into any conclusions on such questions of facts at this stage. Even though it is alleged in the writ petition that disciplinary action amounts to harassment and it is motivated by malafides, I do not agree that the petitioner has wpc 27799/2008 & 25060/2010 6 established sufficient grounds for interference on such reasons. Evidently, it is a matter which requires evidence and for which an enquiry officer has been appointed. All particulars will have to be given to the petitioner to adduce evidence also. Of course, this is a matter in which evidence could be produced by the petitioner from the University also or from other sources. 10. Learned counsel for the first respondent also submitted that the question is whether the petitioner was unauthorisedly absent from the College. He was only banking upon the membership in the Syndicate to justify his absence and therfore it is a matter for evidence. 11. Hence, I do not find any reason to interfere with the memo of charges at this stage. The writ petition is therefore rather premature. 12. In W.P.(C) No.25060/2010, the application of the petitioner for registration as part time research scholar has been returned by the University for not producing the experience certificate and no objection certificate. Relying upon Ext.P1 notification issued by the University, learned counsel for the petitioner submitted that it does not prescribe the production of a no objection certificate as a pre condition for accepting the application. It is pointed out that in Ext.P1 what is contemplated is only a certificate from the appointing authority stating that the applicant is wpc 27799/2008 & 25060/2010 7 appointed on regular basis in the college or in the University department. The petitioner has produced consent letters from supervising teachers who are acting as guide in the matter. 13. Ext.P9 is the memo issued by the University. Therein, it is stated that the petitioner has not produced the teaching experience certificate in original and he has not furnished the No Objection Certificate from the management. Learned counsel also submitted that the same may be required in respect of other persons who are under employment in other institutions, etc. 14. The stand taken by the University in the counter affidavit is that as per clause 8(e) of the Regulations, candidates applying for registration to do part-time research shall produce along with the application a No Objection Certificate from the employer concerned. The petitioner has not produced the same an accordingly the defect memo was issued. It is further pointed out that experience certificate from the Head of the Institution and No Objection Certificate from the employer are necessary, as the regulation specifically provides so. It is averred that the petitioner has stated that he is employed and has applied for Ph.D. registration on the grounds of experience. Hence, experience certificate from the employer is a must. Further No Objection Certificate from the employer stating that the wpc 27799/2008 & 25060/2010 8 institution has no objection to the petitioner in doing part-time research and that the course will not be detrimental to the normal duties is a pre-requisite for applying for part-time Ph.D. registration in Engineering. Further, the time allowed to the part-time researcher to do research at the Centre is at the discretion of the institution where the research scholar is working, since his work should not be detrimental to the normal duties. Hence, a No Objection Certificate to this effect is necessary. 15. In the counter affidavit filed by respondents 2 and 3, it is stated that the petitioner has remained absent from the college unauthorisedly and he is facing disciplinary proceedings. In such circumstances, the management cannot issue NOC to the petitioner until the said proceedings are finalised. 16. In the light of the stand of the University that Regulation 8(e) insists for production of No Objection Certificate, it is idle for the petitioner to contend that they are not required. Then, the question is whether this Court can compel the management and the College to issue the said certificate. Their stand is that it is their discretion to issue or not to issue the certificates, especially since disciplinary action is pending against the petitioner. The University, in their counter affidavit has also indicated that the institution will have to take a decision in the matter and it is at their wpc 27799/2008 & 25060/2010 9 discretion to permit a teacher to do the part-time research work. 17. The contention raised by the petitioner in the writ petition is that the said certificates are not required and Ext.P9 cannot be supported. But, as noticed already, the regulation provides so. In that view of the matter, the challenge against Ext.P9 fails. Since the authorities of the College has decided not to issue NOC and in the light of the pendency of the disciplinary proceedings, it cannot be said that the discretion has been arbitrarily exercised by them. Therefore, the petitioner is not entitled to get any relief in this writ petition also. Therefore, the writ petitions are dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/