w w w . L a w y e r S e r v i c e s . i n

Bindu George v/s Manager, Aquinas College Edacochin

Company & Directors' Information:- A V GEORGE AND CO PRIVATE LTD [Active] CIN = U51109KL1937PTC000027

Company & Directors' Information:- A V GEORGE AND CO INDIA PVT LTD [Active] CIN = U74999KL1946PTC001390

    Writ Petition (Civil) No. 13641 of 2020

    Decided On, 21 August 2020

    At, High Court of Kerala


    For the Appearing Parties: P.C. Sasidharan, Abraham Vakkanal, Vineetha Susan Thomas, Asok M Cherian, Advocates.

Judgment Text

1. Ext.P6 order placing the petitioner under suspension is under challenge in this Writ Petition.2. The petitioner is the Head of the Department of Economics in the 1st respondent college. According to the petitioner, the 1st respondent issued Ext.P1 notice dated 06.03.2000, informing the petitioner that he received a complaint from one Mr.Vijo M.Joy through the Principal in charge, to the effect that she abused him and cursed him and his parents, in front of the Principal-in-charge, in her office on 28.02.2020 and that she was spreading stories in the college to destroy his moral character. It was stated that the matter was serious and unbecoming and unacceptable of college teachers. Petitioner was requested to submit her explanation within one week through the Principal. It is stated that the petitioner thereupon submitted Ext.P2 letter dated 12.03.2020 requesting the 1st respondent to furnish her a copy of the complaint in order to submit a reply to the notice, stating that she was unaware of the contents of the complaint preferred by Mr.Vijo M.Joy. She had also sought for a further period of 2 weeks to submit her explanation. She also stated that on 05.3.2020 she had brought to the notice of the Manager that Mr.Vijo M.Joy abused her using unparliamentary words never expected of an educated civilized man, especially from a teacher working in a college and the manager had not taken any action in that matter or conducted any enquiry. It was stated that he has preferred the complaint against her as a retaliatory measure in order to save himself from his conduct. Denying the allegations levelled against her, she stated that she has always regulated her conduct as a teacher and as a model citizen. It is stated that Ext.P3 complaint was submitted before the Manager on 05.03.2020. Manager thereafter issued Ext.P4 letter dated 25.05.2020 stating that when Ext.P1 notice seeking explanation was handed over to her by the Principal in charge, instead of acknowledging its receipt on the copy, the petitioner scribbled allegations against the complainant on that copy and claimed that she had sent email to the Manager complaining the action of Sri. Vijo M.Joy on 05.03.2020; the manager stated that in case she had any complaint she should have submitted the same in a proper way with date and signature and not through any unofficial e-mail. It was further stated that in her reply dt.12.03.2020 instead of limiting her explanation to her defence she found out procedural errors in the action of the manager in asking for explanation. Stating that the college authorities had acted strictly in compliance with the statutory provisions, the manager stated that he has called for a report from the Principal in charge on the entire incident and in her detailed report she has testified that there had been rude and abusive use of words on the part of the petitioner even in her presence. It was stated that behaviour of the petitioner and her use of words to the college authorities and fellow teachers had been very rude, quarrel producing, angry and without any respect or politeness. It was further stated that a copy of the complaint need be given only if major penalties affecting the service are intended against the teacher concerned. Since it was in the initial stage of the disciplinary proceedings, she was requested to co-operate with the same as stipulated in the law, governing teachers in a private affiliated college run by a minority institution. She was informed that the complaint against the abusive use of words and spreading of vulgar stories against persons whom she disliked is not a solitary incident; there had been several complaints against her on previous occasions and also recently from several teachers of different departments and from students, both oral and written, about her undignified behaviour. It was stated that she had been doing this in the presence of other people even in meetings in the college and there are several witnesses regarding her frequent abusive and angry use of words against college authorities, fellow teachers and non teaching staff. Manager stated that the correspondence on that matter was closed by putting on record their extreme disapproval about her impolite ways and deciding to take serious disciplinary action against her in case she does not behave to the college authorities with respect and to her fellow teachers, non teaching staff and students politely, in future. The petitioner thereupon submitted Ext.P5 letter through proper channel stating that the stigmatic letter be recalled and the matter be closed. In Ext.P5 letter the petitioner stated that she was not given the copy of the complaint preferred by Mr.Vijo M.Joy and she was not given any personal hearing and that the management had not taken any action against Mr.Vijo M.Joy on her complaint and that the matter was closed as per Ext.P4 without hearing her part as if the allegations raised against her were substantiated. She stated that the entire statement in the letter is an indication that she had accepted the facts stated as true and correct which are not sustainable. She stated that there was no incident of abusing any teacher including Mr.Vijo M.Joy. She also raised an allegation that the disciplinary authority in the case of a teacher in an affiliated college concerned is the educational agency, which is the appointing authority and the manager has not adhered to the statutory provisions while issuing the stigmatic letter for an incident which is not established or proved. She requested to recall the letter to save her reputation and honour as a teacher and Head of Department of Economics of the college, stating that she has got 27 years of teaching experience in the college with high reputation and that the complaint preferred by Mr.Vijo M.Joy is frivolous.3. The order of suspension is issued thereafter as per Ext.P6 order dated 02.07.2020. It was stated that the 1st respondent had issued Ext.P4 letter upon getting several complaints against the petitioner including an adverse report of the Principal in charge; the 1st respondent found that the views expressed by her in Ext.P5 letter was contrary to facts. It was stated that a situation had therefore arisen compelling the manager to ensure the smooth and disciplined functioning of the college by the orderly and proper behaviour of the teaching staff in order to avoid academic failures and indiscipline as the college is striving for excellence; several complaints exist aginst the petitioner including an adverse report of the Principal in charge. It was stated that considering the said situation it was decided to take a denovo proceedings by recalling Ext.P4 letter and to issue orders afresh since the petitioner has in Ext.P5 letter additionally submitted untrue statements and falsehood in a clandestine manner. The allegations raised were the following:"1. The letter of 22.6.20 submitted by Dr. Bindu George is against the acts and she has purposefully suppressed material facts regarding the previous proceedings standing against her and stated that she has 27 years of reputed service, which is a false statement. Previous files regarding the proceedings done by the Predecessor in office of the undersigned as well as by the former Principals are available in the college records testifying to the suppression of material facts and her clandestine manners.2. Despite the previous proceedings standing against her, Dr. Bindu George caused dislocations to the smooth functioning of the college as she misbehaved towards the Principal-in-Charge in her office room amounting to serious misconduct unbecoming of a teaching staff member. The Principal-incharge has also submitted the report dated 23.3.20. Even after issuing the letter dated 25.5.20, it is noticed by the undersigned that Dr. Bindu George still continues her improper behaviour unabated.3. The previous records and present file contain allegations against Dr. Bindu George exhibiting her unruly and improper behavior not expected of a teaching staff member. The undersigned is in receipt of complaints from 13 teaching staff members in addition to the complaint of Mr. Vijo M.Joy. There are also several complaints against this teacher by her students and colleagues on previous occasions.4. The allegations against Dr. Bindu George were communicated to her in the letters of undersigned dated 6.3.2020 and 25.5.2020 and her written explanations have been found to be inadequate, accusatory and even disputing the rights of the Manager, the appointing and disciplinary authority of the Educational Agency of the college.5. Reports make it clear that Dr.Bindu George often misbehave in angry and abusive ways not only towards fellow teachers but also the Principal-in-charge even during meetings. There are also several complaints of harassment and misbehavior towards students.6. Dr. Bindu George incites students and was instrumental in causing disturbances in the college campus, which is an improper conduct entailing major proceedings.7. Dr. Bindu George has clearly violated the provisions in the Code of Conduct of college teachers prescribed by the UGC which is binding upon her. All these allegations against her are of very grave nature causing injury to the smooth functioning of the college.8. The Undersigned is prima facie satisfied that sufficient and valid grounds exist to proceed against Dr. Bindu George and hence further steps are contemplated requiring a detailed enquiry. Therefore, the undersigned has taken the decision to initiate major disciplinary proceedings against Dr. Bindu George, HOD, Economics and to place her under suspension."Stating the above allegations the manager placed the petitioner under suspension w.e.f 2.7.2020 pending enquiry and finalisation of disciplinary proceedings under Section 63 of Chapter VIII of the M.G University Act, 1985.4. The Writ Petition is filed alleging that the order of suspension is without any authority and in violation of the provisions contained in the M.G University Act and the law laid down by this Court in a series of judgments. The contention of the petitioner is that Under Section 63 of the M.G University Act, a teacher of a private college can be placed under suspension only by the educational agency. The authority competent to initiate the disciplinary proceedings is also the educational agency. In the present case, the college is managed by a unitary management and under Section 54 of the Act, the Manager is not competent to issue orders of suspension. It is alleged that the only duty of the manager is to give effect to the decision of the Unitary management. It was also alleged that suspension can be ordered only during the pendency of disciplinary proceedings and not in contemplation of disciplinary proceedings as held by this Court in W.P(c).No.5700/2015. It is also alleged that suspension can be ordered only for serious misconduct and not for any trivial alleged misconduct. The petitioner stated that the disciplinary proceedings initiated against her earlier had already ended with imposition of warning, and censure and that the present suspension is only to coerce and threaten her with dire consequence, that too, with malafide intention to deny her promotion to the post of Principal, because of personal enmity of the Manager. Stating that she is the seniormost teacher with doctoral degree and 27 years of service with published works it was contended that she was eligible for promotion. The petitioner alleged that no governing body meeting was convened in the college for years together and the manager is assuming the powers of the disciplinary authority as well as the appointing authority. After closing the proceedings based on the notice issued to her imposing a censure it was illegal to revive the proceedings and to place her under suspension when she requested to recall the stigmatic words in the notice. It is alleged that there is no public interest involved in keeping a teacher under suspension and the act of the manager amounts to victimisation. The petitioner has challenged Ext.P6 order and also sought for a declaration that the 4th respondent is not qualified or eligible to continue as Principal in charge or drawing and disbursing officer.5. Respondents 1 and 4 have filed a counter affidavit denying the allegations raised by the petitioner. It is stated that all the powers vested in the educational agency under the Univesrity Act, Statute and Government Orders, including the power to suspend and take disciplinary action have been delegated to the manager as per Ext.R1(d) proceedings dated 15.05.2011 in accordance with Section 56 (4) of the M.G University Act. It is stated that the 4th respondent is senior to the petitioner and she has been appointed as drawing and disbursing officer as well as Principal-in-charge as she is the seniormost teacher, as provided in Statute 21 of Chapter 23 of the M.G University First Statute. It is stated that the Manager has not received any complaint which the petitioner alleged to have sent on 5.3.2020 to his personal e-mail. However, the Principal had forwarded a copy of the same to the manager, on direction from the manager. It is further stated that the HOD of Electronics has filed a complaint against the petitioner on 6.3.2020; another complaint was received from 13 teachers about the intolerable behaviour of the petitioner; a report was called for from the Principal in charge and she has given a report in respect of the incident occurred on 28.02.2020 in her office, enclosing the statements of 2 office staff who witnessed the same; therefore, the Manager was prima facie satisfied that it was necessary to place the petitioner under suspension and to initiate disciplinary action. It is stated that the Manager had called for an explanation from Mr.Vijo M.Joy as per letter dt.16.3.2020 to which she submitted Ext.R1(k) explanation. It is stated that the suspension is ordered on the basis of an incident occurred on 28.02.2020, as an off shoot of a clash between students of 2 departments during Arts Fest. Those disputes were settled amicably by the intervention of senior teachers, in consultation with the Economics and Electronics Departments after talking to students. That settled dispute was tried to be resurrected by the petitioner by taking 4 students of her class to the office of the Principal. It is stated that according to the complaints received from the 13 teachers, the petitioner has a tendency to incite students to agitation and her loose talk and her behaviour towards fellow teachers, staff and students are intolerable and unbecoming of a teacher and the same would affect the smooth functioning of the college and its discipline. It is also stated that fellow teachers are afraid of the petitioner and it is considering all these that the Manager was forced to take disciplinary action and to issue suspension order with much reluctance. It is stated that Ext.R1(a) memo of charge was issued to the petitioner on 13.7.2020. It is stated that the petitioner was placed under suspension on receipt of complaint and on the basis of materials available before the manager and it was in contemplation of disciplinary action as provided under Section 63 of the M.G University Act. It is stated that the conduct of the petitioner in openly raising allegations of adultery connecting the formal Principal, calling indecent words to fellow teachers inciting students to indiscipline etc. amounts to grave charges which a senior teacher ought not have done. Therefore, her presence in the campus has to be dispensed with during the course of disciplinary proceedings. It is stated that she may intimidate witness, incite students against fellow teachers, who complained against her and also management for having initiated disciplinary proceedings.6. According to the respondents, the contention of the petitioner that she has got unblemished service record is incorrect as action was taken against her on previous occasions by the previous Principals and previous manager, which were finalised on tendering unconditional apology, but with severe warnings. It is also stated that the allegation of the petitioner that the suspension is ordered to deny her promotion as Principal is also incorrect and that the University is yet to approve a panel for constitution of the selection committee in accordance with UGC Regulations. It is also stated that the petitioner is not due for promotion and she is also not the seniormost teacher. However, it is stated that the petitioner can also apply as and when application is invited. It is stated that after considering Ext.P2 explanation of the petitioner and the complaint of the teachers along with the adverse report received from the Principal in charge on the complaint against the petitioner, the manager had thought of closing the disciplinary file after expressing extreme disapproval of her impolite ways, without going into a detailed probe; but when the petitioner opposed it, sending Ext.P5 stating that the warning was given without hearing her, demanding recall of Ext.P4, the Manager decided to recall Ext.P4 letter and to take disciplinary action against the petitioner in view of the complaint dated 06.03.2020 and accordingly, Ext.P6 order was passed on being satisfied that further action is necessary and the presence of the petitioner in the campus would affect the enquiry to be conducted against her. The respondents have explained the charges alleged against the petitioner in the memo of charges producing various documents. Producing Exts.R1(q) and (r) letters it is stated that the petitioner intimidated them over mobile phone and threatened one of such teachers of dire consequences and that the presence of the petitioner in the campus during enquiry will adversely affect the enquiry, serene atmosphere and discipline in the campus and therefore her presence is to be dispensed with for the time being.7. The petitioner has filed a reply affidavit stating that the memo of charge was issued only on 30.07.2020 and it was served on her only on 4.8.2020 and the petitioner was unable to peruse the document since the college is in containment zone. Refuting the allegations raised in the memo of charge it was stated that she was not in a position to verify the document and submit a proper explanation. However, she alleged that even assuming that the allegations levelled against her in the memo of charges are correct, it would not support a suspension and the allegations are raised against her only to defame her before the public. It was stated that Sri Vijo M.Joy is only a teacher in a self financing college run by the management and he is only a contract employee not belonging to the educational institution where the petitioner is working and the management is attempting to tarnish her image in an attempt to harass her. It was reiterated that the manager cannot be delegated with the powers which are to be exercised by the educational agency and the manager is not the appointing authority. It was further stated that after closing the disciplinary action against the petitioner, the manager cannot reopen the same just because she requested to delete the stigmatic words and it is not necessary to keep a teacher under suspension whenever a disciplinary proceedings is initiated against her. It was stated that the manager wanted to protect the 4th respondent.8. Respondents 1 and 4 filed an additional counter affidavit reiterating their contention in their first counter affidavit. It was also stated that the college is a religious minority institution and the posting of Principal in charge and DDO is not by way of promotion. It was stated that the incidents which happened in 2003 and 2011 were pointed out since the petitioner claimed her unblemished past service.9. Heard Sri. P.C.Sasidharan - the learned Counsel for petitioner and Sri. Abraham Vakanal - the learned Senior Counsel for the respondents.10. According to the learned Counsel for the petitioner, the order of suspension is passed without authority, for trivial charges, that too, after reopening the proceedings which was closed just because the petitioner sought to remove the stigmatic remarks. Relying on the judgment in Capt.M.Paul Anthony vs. Bharat Gold Mines Ltd. And another,1999 3 SCC 279 the learned counsel for the petitioner argued that the Manager is afflicted by suspension syndrome and the petitioner is placed under suspension because of their irritability.11. On the other hand, according to the learned Senior Counsel for the respondents, the suspension is for grave charges, on valid grounds and the conduct of the petitioner is in violation of the provisions contained in the UGC Regulations (Code of Professional Ethics).12. I have considered the contentions on either side. The main ground alleged in the Writ Petition is that the order of suspension is issued by the manager without jurisdiction. However, Section 56(4) provides for delegating the authority of the educational agency on the manager. Subsections (1) to (4) of Section 56 read as follows:"56 (1)A unitary, management or corporate management shall appoint a manager for the private college or for all the private colleges, as the case may be, under its management within the University area.(2). The appointment or removal of the manager shall be intimated to the University by the unitary management or the corporate management, as the case may be.(3). It shall be the duty of the manager to give effect to the decisions of the unitary management or the corporate management, as the case may be.(4). The manager shall exercise such powers and discharge such duties as may delegated to him by the unitary management or the corporate management, as the case may be."Ext.R1(d) proceedings would show that all the powers vested in the educational agency under the University Act and Statutes and Government orders have been delegated to the manager. Therefore, power of the educational agency under Section 63 of the Act to place a teacher under the suspension can be exercised by the Manager. The contention that Ext.P4 order is issued without authority, cannot therefore be accepted.13. Yet another contention is that suspension can be ordered only when disciplinary action is pending. But relevant provisions in Section 63 of the M.G University Act reads as follows:"63. Disciplinary powers of Educational Agency over teachers of private Colleges:- (1) The Educational Agency may at any time place a teacher of a Private College under suspension when any disciplinary proceedings is proposed to be taken against him or when such disciplinary proceedings are pending.Therefore, it is clear that suspension can be ordered even when disciplinary proccedings are in contemplation. Hence, the judgments relied on by the petitioner would not apply to the present case when the college and the teacher are governed by the M.G University Act, Statutes, etc.14. The further contention is that when the manager had already closed the proceedings by issuing Ext.P4 letter, the re-opening of the proceedings is for victimisation and to deny her promotion. But from the pleadings it is seen that the proceedings are re-opened on the basis of the letter of the petitioner in Ext.P5 in which the petitioner demanded removal of strictures stating that the same was without hearing.15. Yet another contention is that the resp

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ondents want to avoid the promotion of the petitioner as Principal. However, the Manager has stated that the selection committee is not yet constituted and as and when applications are called for she would also be considered based on her application. It is also stated that the suspension is ordered on the basis of an incident occurred on 28.02.2020 and on being satisfied of the requirement after considering the report received.16. The further contention is that even the charges alleged against the petitioner are trivial and it would not be necessary to keep her away from service. In the judgment in Paul Antony's case (supra) it was held that suspension not withstanding non payment of subsistence allowance is an inhuman act affecting the life of an employee. In that case the appellant was not paid subsistence allowance. There the Apex Court was considering whether departmental enquiry as well as criminal proceedings can be held simultaneously. It was also held there that the right to suspend an employee depends on the facts of each case. In this case producing Exts.R1(q) and (r) the respondents have stated that the presence of the petitioner in the campus would stand in the way of the smooth conduct of the enquiry, as there is every chance that the witnessess would be intimidated or influenced.17. The petitioner and the respondents have stated several incidents supporting and opposing the requirement of suspension as well as the proceedings for disciplinary action. As an enquiry consistent with the principles of natural justice is seen required, it is only appropriate that the the disciplinary proceedings are finalised at the earliest. As it is seen that the teachers as well as students are likely to be witnesses in the enquiry, the contention of the respondents that the presence of the petitioner in the campus during the course of enquiry is likely to affect the smooth conduct of the enquiry, cannot be ruled out. On consideration of the pleadings on record, at the same time without going into the merits of the charges, I find that the matter relates to academic discipline and therefore the order of suspension does not require any interference by this Court under Article 226 of the Constitution of India.Hence the Writ Petition is disposed of directing the respondents to finalise the disciplinary proceedings within a period of one month from the date of receipt of a copy of this judgment, provided the petitioner also co-operates. In case the same is not finalised, even with co-operation of the petitioner within the stipulated period of time, she shall be re-instated.