(2014) 387 KLR 151
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE THURSDAY, THE 4TH DAY OF DECEMBER 2014/13TH AGRAHAYANA, 1936
WP(C).No. 6476 of 2012 (H)
PETITIONER(S):
JALAJA G.PRABHU LOWER DIVISION CLERK DR.PADIAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE CHOTTANIKKARA, ERNAKULAM, PIN-682 312.
BY ADV. SRI.P.SANKARANKUTTY
RESPONDENT(S):
1. BOARD OF TRUSTEES DR.PADIAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE CHOTTANIKKARA, ERNAKULAM, REPRESENTED BY THE PRESIDENT, T.D.SHOPPING COMPLEX T.D.WEST ROAD, KOCHI-682 035.
2. DR.PADIAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE, REPRESENTED BY THE SECRETARY, CHOTTANIKKARA-682 312 ERNAKULAM DIST.
3. THE PRINCIPAL DR.PADIAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE CHOTTANIKKARA, ERNAKULAM-682 312.
4. STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT HEALTH & FAMILY WELFARE DEPARTMENT GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695 001.
5. THE PRINCIPAL & CONTROLLING OFFICER GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE THIRUVANANTHAPURAM-695 001.
R1-3 BY ADV. SRI.N.NAGARESH SRI.SHAJI THOMAS SRI.BINU PAUL SRI.T.V.VINU R4-5 BY GOVERNMENT PLEADER SRI.JIBU P.THOMAS BY SMT.R.RANJINI
J U D G M E N T
Petitioner challenges Ext.P13 order passed by the first respondent, Board of Trustees of Dr.Padiar Memorial Homoeopathic Medical College, imposing on the petitioner penalty of barring two increments with cumulative effect and reducing the pay by one stage on permanent basis to reduction of pay by one stage without cumulative effect.
2. The facts involved in the writ petition would disclose that the petitioner was appointed as L.D.Clerk in the college with effect from 06/02/1999 as per Ext.P1. On 25/04/2000, by G.O.(MS) No.100/2000/H&FWD, the Government had included the first respondent college in the direct payment system. By another Government order, Ext.P2 dated 20/02/2001 it was informed that the payment of salary under the direct payment system will not be applicable to the staff of the hospital, which is attached to the college.
3. On 06/02/2002, by Ext.P3, petitioner was called upon to give an explanation, why action should not be taken against her for refusing to attend duty in the hospital on 14/07/2001 and 02/10/2001, which according to the first respondent, amounts to gross insubordination and misconduct attracting disciplinary action. By Ext.P4 proceedings dated 28/02/2002 the first respondent found that the petitioner committed gross insubordination and misconduct by refusing to do the duty assigned to her and therefore imposed penalty of barring two increments from her salary with immediate effect. In Ext.P4 it is found that, earlier a warning was given to the petitioner and when she repeated the same insubordination, a second memo was issued proposing disciplinary action. It is mentioned that the College and the attached Hospital being one institution, the employees may be put to duty either in the college or in the hospital as per duty list prepared by the Principal-in-charge from time to time and communicated to all concerned. It is further indicated that the petitioner ignored the warning given to her and she repeatedly refused to attend the duty in the hospital situated in the College campus. Further, it was mentioned that the explanation given by her was not at all relevant and the reasons given for not attending duty were not satisfactory or convincing.
4. Ext.P4 order was challenged by filing a writ petition and as directed by this Court the Principal and Controlling officer disposed of an Appeal filed by the petitioner and reduced the punishment by barring one increment without cumulative effect. Petitioner filed a revision against the said order before the fifth respondent and during the pendency of the same, she was issued with the charge memo dated 04/08/2004 produced as Ext.P7. In Ext.P7 it was inter alia stated that she failed to attend hospital duty on 25/06/2004 and therefore committed breach of office discipline and gross insubordination. Petitioner submitted an explanation denying the charges. The second respondent appointed an enquiry officer and conducted an enquiry. A copy of the enquiry report was given to the second respondent finding that the charges levelled against the petitioner were proved. It is contended that a copy of the enquiry report was not furnished to the petitioner. The second respondent accepted the enquiry report and decided to award a penalty of reduction of pay by one stage on a permanent basis, and a show cause notice was issued to the petitioner to state the reasons for not confirming the said decision. Ext.P8 is the said order passed by the second respondent.
5. Petitioner preferred an appeal against Ext.P4 order before the fifth respondent and Ext.P9 is the said order dated 02/06/2004. Against Ext.P8 order petitioner preferred an appeal before the fifth respondent, which was forwarded to the fourth respondent. An order was passed on 30/08/2008 revising the punishment by permanently reducing the one stage from the salary of the petitioner as per Ext.P8 order. Ext.P10 is the said order. Petitioner filed W.P.C.No.2929 of 2010 before this Court and by judgment dated 03/12/2011 it was held that the Government has no appellate power and directed the petitioner to file an appropriate representation/appeal before the Board of Trustees within one month from the date of judgment, pursuant to which the petitioner filed appeals which resulted in Ext.P13 order.
6. The main contention raised by the petitioner is that the impugned order had been passed in gross violation of the principles of natural Justice, in so far as no enquiry had been conducted in relation to the charges levelled against the petitioner. Two punishments were imposed on the petitioner on separate memo of charges and according to the petitioner she had not committed any misconduct as alleged. In regard to the first memo of charges no enquiry was conducted, and in respect of the second memo of charges, though it is stated that an enquiry was conducted, copy of such an enquiry report is not furnished to the petitioner. That apart it is contended that the petitioner has no obligation to work in the hospital as the hospital is a separate entity altogether. Petitioner was appointed as L.D. Clerk in the college and she has no obligation to do any work in the hospital and it is so held by the Supreme Court in Ext.P14 judgment. The only allegation against the petitioner is for not working in the hospital as requested by the college authorities. When the petitioner is not appointed in the hospital, and when admittedly she is employed as a staff in the college and as per the staff pattern she is treated as an employee of the college, there is no basis for taking action against her for the alleged insubordination. Hence while challenging Ext.P13 she also seeks for a direction to pay her the benefits which had been denied to her on account of the impugned orders.
7. Counter affidavit is filed by respondents 1 to 3 inter alia supporting the stand taken by them in the impugned orders and further contending that the hospital being an integral part of the college, for administrative exigency if an employee in the college is requested to work in the hospital, as an employee of the college she was bound to work rather than refusing to do so which clearly amounts to insubordination. Further it is contended that there is no procedure for conducting an enquiry in the matter, especially when the facts relating to the insubordination is admitted. The main complaint against the petitioner was that she did not attend duty in the hospital, when she was requested to attend the same by the Principal of the college. When this fact is admitted, then the only question remaining is to consider whether the said allegation amounts to insubordination and breach of discipline of the college/hospital. The learned counsel for the respondent further argued that assuming for the sake of argument that there is any irregularity in the procedure adopted by the management, still, the petitioner cannot invoke the jurisdiction of this Court to challenge the orders passed by the College, as the University Tribunal, constituted under the
Mahatma Gandhi University Act
(for short `MG University Act') is entitled to consider the grievance of the staff in regard to the disciplinary matters/actions taken against them.
8. Having regard to these factual situations, the first question to be considered is the maintainability of the writ petition especially in the light of the availability of alternate remedy under the M.G.University Act. The learned counsel for respondent relied upon the judgment of a Single Judge of this court in
Maria Goretti v. M.G. University (1993 (2) KLT 270)
wherein this Court held as under:
"xxxxxxx
By sub section (9) of S.59 such appointments are made appealable to the Appellate Authority viz. the University Tribunal. As such any appointment made to any category of teachers in a private college is covered by the appellate provision contained in S.59(9) of the Act. A judicial officer in the cadre of District Judge is stipulated to be appointed as the University Tribunal to deal with matters specifically entrusted to the Tribunal under the Act. All the appointments even in respect of non teaching staffs are made appealable to the University Tribunal by virtue of S. 67 of the Act. It is also pertinent to note that S. 70 of the Act debars the jurisdiction of all courts from adjudicating on any question that is to be settled, decided or dealt with by the University Tribunal under this Act. Therefore it is clear that, the legislature intended all disputes relating to the matter of appointments and promotions to all cadres of teachers in private colleges to be adjudicated by a specialised forum viz.the University Tribunal. The question whether the third respondent is legally entitled to be appointed in preference to the petitioner or the preferential claim of the petitioner under S. 62(2) is available to the petitioner as on the date on which the vacancy arose in respect of the post in which the appointment is made has to be decided with reference to questions of facts which are vigorously disputed. Eventhough it is open to this court in exceptional cases to exercise the jurisdiction under Article 226 of the Constitution of India despite the existence of any effective alternative remedy, I am of the view that the dispute raised in this O.P. is one which should be adjudicated at the first instance by the University Tribunal."
"8. Thus it is seen from S. 63(6) that a teacher aggrieved by an Order imposing a penalty on him by the management can file an appeal before the Tribunal only on the limited grounds such as want of good faith, victimisation, basic error or violation of principles of natural justice or perversity or absence of materials. Any ground as is available before the Kerala University Appellate Tribunal is not available in an appeal to the Tribunal constituted under S. 69 of the Mahatma Gandhi University Act. The Tribunal can entertain the appeal as is revealed by S. 63(6) only on specified grounds. Thus, it cannot be taken that unguided or uncanalised power is cast on the Tribunal. The Tribunal is invested with the power "to pass such Order thereon as it may deem fit including an order of reinstatement of the teacher concerned" as per sub-s. (7) of S. 63 of the Mahatma Gandhi University Act, only if the appellant teacher succeeds on the specific grounds that are available as per S. 63(6) as mentioned above. The Tribunal can order reinstatement only on such limited grounds so far as the teachers in the colleges affiliated to the Mahatma Gandhi University are concerned; whereas as discussed above, there is no such limitation to the grounds of challenge available to the teachers in the colleges affiliated to the Kerala University in terms of S. 60(7) of the Kerala University Act, 1974. There is marking difference between the said two provisions. Thus it is clear that the power now conferred on the Mahatma Gandhi University Appellate Tribunal constituted in terms of S. 65 of the Mahatma Gandhi University Act and exercise of the appellate power in terms of S. 63(6) and (7) is a power on limited grounds, thereby meaning limited power and not a power to be exercised on any ground. Necessarily going by the decision in Lilly Kurian's case, 1997 (2) SCC 2401 itself, it cannot be said that the appellate power conferred on Mahatma Gandhi University Appellate Tribunal is violative of Art.30(1) of the Constitution of India."
10. These judgments apparently relates to disputes taken up by teachers of various colleges. The principle laid down under these judgments will squarely apply as far as staff is concerned, since the staff of the college is also brought under the administrative control of the University when the direct payment system had been introduced in the college. Section 67 of the M.G. University Act clarifies the position, which reads as under:
(1) The provisions of this Chapter shall, so far as may be, apply to the non-teaching staff of the private colleges.
(2) Subject to the provisions of sub-section (1), the method of appointment, pay and other conditions of service of the non-teaching staff of private colleges shall be such as may be prescribed by the Statutes."
The relevant provisions under the M.G.University Statutes reads as under:
The provisions in Part D on disciplinary action against teachers of private colleges shall mutatis mutandis, apply to the non-teaching staff.
The following Penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on teachers of private college, namely:-
(i) Censure;
(ii) Withholding of increments or promotion;
(iii) (a) Recovery from pay of the whole or part of any pecuniary loss caused to the private college by his negligence or breach of orders;
(b) Recovery from pay to the extent necessary of the monetary value equivalent to the amount of increments ordered to be withheld where such an order cannot be given effect to.
Explanation- In cases, of stoppage of increments with cumulative effect, the monetary value equivalent to three times the amount of increments ordered to be withheld may be recovered.
(iv) Reduction to a lower rank in the seniority list or to a lower grade or post or time scale or to a lower stage in a time-scale;
(v) Compulsory retirement;
(vi) Removal from the private college which shall not be a disqualifications for future employment;
(vii) Dismissal from the private college which shall be a disqualification for future employment in any of the institutions maintained by or affiliated to the University."
The Educational Agency shall be the disciplinary authority in respect of the teachers of a private colleges as regards the penalties specified in Statute 73.
(1) No order imposing any of the penalties specified in items (iv) to (vii) of Statute 73 shall be passed except after an enquiry held in accordance with the provisions of this Statute.
(1) No order imposing any of the penalties specified in items (i)to (iii) of Statute 73 shall be passed except after-
(a) the teacher is informed in writing of the proposal to take action against him and of the allegations on which it is proposed to be taken and given an opportunity of showing cause against the action proposed to be taken against him;
(b) such representation, if any, is taken into consideration by the Educational Agency.
(2) The record of proceedings in such cases shall include-
(i) a copy of intimation to the teacher of the proposal to take action against him;
(ii) copy of the statement of allegations communicated to him;
(iii) his representation, if any;
(iv) the orders of the case together with the reasons therefore."
11. When the above provisions are made applicable to staff employed by the college, Section 63(6) of the M.G.University Act shall also apply to the staff of a college by virtue of Section 67 of the M.G.University Act and the Statutes framed thereunder. Hence having regard to the aforesaid fact that an efficacious alternate remedy is available for the petitioner to invoke the jurisdiction of the University Tribunal, all the issues raised in the present writ petition could as well be considered by the Tribunal. Therefore, I do not think that there is any necessity for this Court to interfere with the proceedings at this stage. In fact, the main contention is regarding violation of principles of natural Justice, which is also a matter that could be considered by the University Tribunal. Hence I do not intend to adjudicate on the merits of the case and accordingly this writ petition is disposed of reserving the right of the petitioner to approach the University Tribunal in accordance with the procedure prescribed.
(sd/-) (A.M.SHAFFIQUE, JUDGE)
jsr
The judgment dated 6.11.2013 in W.P.C.No.6476/2012 is recalled, vide order dated 23.1.2014 in R.P.No.1050/2013 in W.P.C.No.6476/2012.
(sd/-) Registrar (Judicial)