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M. Ibrahim Pillai Vs. Principal, University Intermediate College, Trivandrum - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 45 of 1955
Judge
Reported inAIR1958Ker72; (1958)IILLJ399Ker
ActsTravancore University Act, 1113 M.E. - Sections 28; Constitution of India - Articles 226, 311(2) and 320(3); Travancore, Cochin Public Service Commission (Consultation) Regulations, 1952 - Sections 6(1) and 6(2)
AppellantM. Ibrahim Pillai
RespondentPrincipal, University Intermediate College, Trivandrum
Appellant Advocate P. Subramonian Potti, Adv.
Respondent Advocate V. Parameswaran Pillai, Adv.
DispositionPetition dismissed
Excerpt:
.....towards him had made a false report against him. failure to give such notice as required by clause 2 of article 311, is also a vital defect rendering the suspension order invalid. thus the first ground of attack raised by the petitioner that the university had no power to take action against him and to pass the order of suspension, is clearly untenable. there is no other provision making it incumbent upon the university to consult the public service commission in a matter like this. it is now well settled that the scope of this clause is limited to the three types of punishment specified in the clause. the failure to issue such a notice cannot affect the validity of the order of suspension. under these circumstances he is not entitled to complain that sufficient opportunities were..........1 have been specified in clause 2 of the said section. suspension comes under sub-clause (a) of clause 2. clause 2 (a) runs as follows:--'nothing contained in clause 1 shall be deemed to make it necessary for the state government to consult the commission in any case relating to suspension; whether as a substantive punishment or pending inquiry'.the disciplinary action against the petitioner was initiated only in the year 1954 i.e., long after the aforesaid regulations had come into force and as such the consultation contemplated by clause 3 (c) of article 320 was not necessary in respect of the action taken against the petitioner even if such action had been taken directly by the state government. there is no other provision making it incumbent upon the university to consult the.....
Judgment:

Sankaran, J.

1. The petitioner is an attender in the University Intermediate College at Trivandrum. The University started proceedings against him for being a party to the malpractice committed by a candidate who had appeared for the Intermediate Examination held in September 1954 and whose register number was 817. The charge against the petitioner was that he helped this candidate to substitute his answer paper in English paper III, by another answer paper got ready outside the examination hall by handing over to the candidate at about 1 p. m. on 16th September 1954.

The handing over of the answer book brought from outside to the candidate and getting back from him the answer paper written by him in the examination hall, were noticed by the College peon Yohannan who was on duty in the examination hall and he made a report of the same to the Principal of the College through one Mr. T. S. Ramakrishnan who was Assistant Superintendent in connection with the examination. Copy of the peon's report has been produced and marked as Ext. I. Copy of the report submitted by the Assistant Superintendent has been marked as Ext. II.

On the same day, the Principal of the College made a report to the Registrar of the University about the aforesaid malpractice. Copy of that report has been marked as Ext. III. On the strength of the reports Exts. I and II, the Principal of the College issued a memo to the petitioner on 20-9-1954 specifying the charge against him viz., that he helped the candidate with register No. 817 to substitute his answer book in English paper III with one obtained from outside at about 1 P. M. on 16th September 1954 and called upon him to submit his written explanation by 10 a. m. on 22-9-1954. Copy of that memo has been marked as Ext. A. The petitioner duly submitted his explanation. After considering that explanation the Principal issued another memo dated 8-10-1954 which has been marked as Ext. B, intimating the petitioner that his explanation denying the charge against him was far from satisfactory and that therefore he was placed under suspension pending investigation and final disposal of the case. This was followed by another memo dated 5th January 1955 issued by the Registrar of the University, and this has been marked as Ext. C. That memo-ran as follows:--

'Shri M. Ebrahim Pillai, Attender, Physics Laboratory, University Intermediate CollegeTrivandrum, is informed that it has been reported that he helped M. Prabhakaran, candidate with register number 817, at the Intermediate Examination held in September 1954, at the examination hall, in substituting an answer book in place of his original answer book in English Prose. He is directed to explain his conduct.' .

To this memo also the petitioner submitted his explanation denying the charge against him and alleging that the peon who was not well-disposed towards him had made a false report against him. The University authorities conducted an inquiry into the matter and after considering the evidence collected at such inquiry and the explanation offered by the petitioner, came to the conclusion that the charge against the petitioner was true. Accordingly, an order was passed placing him under suspension for a period of one year from 8-10-1954.

That order was communicated to the petitioner through the Principal of the College and the memo issued by the Principal has been marked as Ext. D. It is against the said order of suspension that the petitioner has filed this O. P. under Article 226 of the Constitution. He has sought for the cancellation of the order of suspension by the issue of a writ of certiorari or any other appropriate writ.

2. The main grounds of attack against the order of suspension made against the petitioner by the University are the following:--

(a) The petitioner was appointed to the service of the State on the advice of the Public Service Commission and he entered service in the Education Department. It was while he was employed in the Pre-University School that the said institution was brought under the University and converted into the Intermediate College. Since the petitioner was not appointed by the University, no order of suspension could be passed against him by the University. The order is thus said to be ultra vires of the powers of the University.

(b) Before taking the disciplinary action of suspending the petitioner the Public Service Commission was not consulted as required by Clause (3) (c) of Article 320 of the Constitution, and for that reason the order has to be declared illegal.

(c) The order of suspension is in effect an order reducing the rank of the petitioner in service and before passing such an order the procedure prescribed by Article 311 of the Constitution should have been strictly complied with. The petitioner was not given any opportunity of showing cause against any specific punishment proposed against him. Failure to give such notice as required by Clause 2 of Article 311, is also a vital defect rendering the suspension order invalid.

(d) No proper inquiry was conducted about the charge levelled against the petitioner. There is no evidence to make out the charge. The petitioner's explanation has not been considered and he was allowed no opportunity to substantiate his plea. Thus the order of suspension passed against him has violated the rules of natural justice.

3. All these allegations have been denied in the counter-affidavits filed by respondents 1 and 2 who are respectively the Principal of the Intermediate College and the Registrar of the University.

4. Even though the Intermediate College in which the petitioner is employed as attender is directly under the control of the University, thefact that the petitioner's position is that of a civil servant under the Government, cannot be disputed. He was recruited to Government ser--vice on the advice of the Public Service Commission. The Travancore University Act of 1113 had made special provision regarding the position of Government servants working in the institutions under the University. Section 28 (b) of the Act states-

'Notwithstanding anything contained in the Act, all Professors, Assistant Professors, Lecturers and other Officers and servants now employed in Colleges specified in Section 20 (a) and all such as may be employed hereafter for carrying on the work of the University, shall unless a reservation to the contrary is made at the time of their appointment, be deemed to be employees holding appointment, under Our Government, and shall in all respects be governed by the rules framed by Our Government and in force for the time being in respect of such employees.'

There is no case that any reservation to the contrary as contemplated by the section was made in the case of the petitioner at the time of his appointment. Thus it has td be taken that he is governed by the rules applicable to employees holding appointments under the Government. But this does not mean that the University has no disciplinary control over him. So long as he was employed in the Education Department, he was under the disciplinary control of the head of that department.

When the institution in which he was employed was brought under the control of the University, the petitioner also came under the disciplinary control of the University, Thus there can therefore be no doubt that the University has the power and the jurisdiction to take appropriate action against the petitioner for misdeeds proved against him. Thus the first ground of attack raised by the petitioner that the University had no power to take action against him and to pass the order of suspension, is clearly untenable. The order of suspension was passed at a meeting of the Syndicate presided over by the Vine-Chancellor. Copy of the minutes of that meeting has been produced and marked asExt. VIII.

5. The basis of the next ground of attack against the validity of the suspansion order passed against the petitioner is the provision contained in Clause 3 (c) of Article 320 of the constitution. This clause states that the State Public Service Commission shall be consulted on all disciplinary matters affecting a person serving under the Government of the State in a civil capacity, including memorials and petitions relating to such matters. The impugned suspension order is the final order pass-ed against the petitioner and by that order a substantive punishment is inflicted on him. Such an order will normally attract the mandatory provision contained in Clause 3 (c) of Article 320.

But this clause has its own limitation as is indicated by the Proviso added at the closing portion of the clause. The Proviso is to the effect that the Governor or Ra] Pramukh as the case may be, may make regulations specifying the matters in which either generally or in particular class or case or in any particular circumstances, it shall not be necessary for the Public: Service Commission to be consulted. In exercise of the power conferred by this Proviso, a set of regulations were made by the Raj Pramukh of the Travancore-Cochin State and published inthe gazette dated 6th January 1953 under the style 'Travancore-Cochin Public Service Commission (Consultation) Regulations, 1952'.

The different categories of disciplinary actions for which previous consultation with the Public Commission is insisted upon, have been enumerated in Clause 1 of Section 6 of the said regulations. Suspension does not come under any of these different categories. Further exceptions to the rule enunciated in Clause 1 have been specified in Clause 2 of the said section. Suspension comes under Sub-clause (a) of Clause 2. Clause 2 (a) runs as follows:--

'Nothing contained in Clause 1 shall be deemed to make it necessary for the State Government to consult the Commission in any case relating to suspension; whether as a substantive punishment or pending Inquiry'.

The disciplinary action against the petitioner was initiated only in the year 1954 i.e., long after the aforesaid Regulations had come into force and as such the consultation contemplated by Clause 3 (c) of Article 320 was not necessary in respect of the action taken against the petitioner even if such action had been taken directly by the State Government. There is no other provision making it incumbent upon the University to consult the Public Service Commission in a matter like this. It follows, therefore, that there is no substance in the point raised by the petitioner on the basis of Clause 3 (c) of Article 320 of the Constitution.

6. Then there is the complaint based on Clause 2 of Article 311 of the Constitution. It is now well settled that the scope of this clause is limited to the three types of punishment specified in the clause. What is stated in the clause is that 'no such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.' The petitioner has not been dismissed or removed from service by the impugned order. It has only to be seen whether by that order he has been reduced in rank.

There is nothing in the suspension order to indicate that it was intended to have a lowering of the petitioner's rank as attender in the Intermediate College. The order merely stated that he was placed under suspension for one year from 8-10-1954, In the counter-affidavit filed by the first respondent it is stated that on the expiry of the period of suspension the petitioner joined duty in the same post and that there has been no alteration in his rank. In the 2nd respondent's affidavit also it is stated that the order of suspension has not affected the petitioner's rank or prospects in service.

The petitioner has not been able to show that these averments are incorrect. He has merely asserted that 'suspension has to be deemed reduction in rank.' It is not a matter to be assumed. On the other hand it must either be apparent from the order itself or it must be proved as a fact that suspension had the direct and inevitable result of a reduction in rank. The present case does not satisfy this test, and hence at has to be taken that by the impugned order there was no reduction in the petitioner's rank and that the order does not come within the purview of Clause (2) of Article 311, so as to make it obligatory on the part of the authorities concerned to issue a second notice to the petitioner to show cause against the action proposed to be taken against him. The failure to issue such a notice cannot affect the validity of the order of suspension.

7. Lastly, there is the complaint that the impugned order was passed in violation of the rules of natural justice, in so far as the order was passed without any Inquiry and without considering the petitioner's explanation. The records made available in this case go to show that this complaint is not real, but only fancied. Two notices were given to the petitioner mentioning the specific charges against him and calling upon him to explain his conduct. Exts. A and C are these notices. Admittedly, the petitioner submitted his explanations.

In those explanations he tried to justify his presence near the window close to which the candidate with register number 817 was sitting, by putting forward a story that he had gone there to get back the wrist watch which he had lent to one of the candidates at the instance of the Accountant of the Intermediate College. About this matter the Accountant was questioned and the copy of the statement given by him has been produced and marked as Ext. VI. In that statement the Accountant has stated that at his instance the petitioner had lent his wrist watch to a candidate by name Shreedharan, and that this candidate had returned the watch to the Accountant himself at about 1 P.M. on the day in question and that some time later the petitioner went to the Accountant and got back the watch from him.

This statement, the reports evidenced by Exts. I and II and the other circumstances brought to light at the inquiry conducted by the Principal of the College, were all duly considered by a Sub-Committee appointed by the Syndicate and it was on the strength of the recommendation made by that Committee that the Syndicate found the petitioner guilty of the charge against him and passed the order suspending him for a period of one year. The question of sufficiency or otherwise of the evidence on the strength of which the said order was passed, is a matter beyond the scope of a petition under Article 226.

Such a petition cannot be deemed to be as appeal against the impugned order. There isnothing on record to show that over and above the opportunities which were made available to the petitioner to show that he was innocent of the charge against him, he wanted further opportunities and that any such request was turned down. Under these circumstances he is not entitled to complain that sufficient opportunities were not given to him or that there has been a violation of the rules of natural justice in the conduct of the inquiry into the charge against him.

8. The result is that the petitioner has failed to make out a case for invoking the Court's jurisdiction under Article 226 of the Constitution for interfering with the impugned order. This petition is accordingly dismissed with costs. Advocate's fee Rs. 100/-.


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