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2022 Supreme(Ker) 81
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Raja Vijayaraghavan V, J.
Dr. R.Suresh, S/O Raghavan Nair – Petitioner
Versus
The Chairman, Athurasramam N.S.S. Homoeo Medical College, and Ors. – Respondents
WP(C) No. 22745 of 2021
Decided On : 15-02-2022
Advocate Appeared:
For the Petitioner: Sajeev Kumar K.Gopal, G.Gopakumar (Mavelikara), Advs.
For the Respondent: S.P.Aravindakshan Pillay, N.Santha, V.Varghese, S.A.Anand Peter Jose Christo, Sri. P Sreekumar, SC, Sri. Surin George IPE, SC, Smt. Surya Binoy, Sr. Government Pleader, Advs.
Point of law: Proviso to the above Rule states in clear terms that in the case of reduction of rank in the seniority list, such reduction shall be permanent.
Headnote:
Mahatma Gandhi University Statutes, 1997 – Chapter 45 -Whether the imposition of penalty by way of reduction to a lower rank in the seniority list of a teacher of a private college as per the provisions of Chapter 45 of the Mahatma Gandhi University Statutes, 1997, would be a permanent one or whether the same would be only as one for a period of six months. While the petitioner asserts that the reduction to a lower rank can only be for six months, the University contends otherwise.
Finding of the Court:
Proviso to Statute 35B(v) says in emphatic terms that in case of reduction in rank in the seniority list, such reduction shall be permanent. The well established rule of interpretation of a proviso is that a proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment nor can it be used to nullify or set at naught the real object of the main enactment. In other words, a reading of the provision would show that Note 1 would apply only in cases of reduction to a lower grade or post or time scale and not in the case of reduction to a lower rank.
Result: Petition dismissed
JUDGMENT :
Whether the imposition of penalty by way of reduction to a lower rank in the seniority list of a teacher of a private college as per the provisions of Chapter 45 of the Mahatma Gandhi University Statutes, 1997, (hereinafter referred to as ‘MGU Statutes, 1997’) would be a permanent one or whether the same would be only as one for a period of six months. While the petitioner asserts that the reduction to a lower rank can only be for six months, the University contends otherwise. This is the question that needs a resolution.
2. A thumbnail sketch of the facts involved are as under :
While working as a Tutor in the Athurasramam NSS Homeo Medical College, disciplinary proceedings were initiated against the petitioner for falsely designating himself as a Professor and Head of the Department of Community Medicine of the College despite the fact that he was only a Tutor. Among other allegations, he is stated to have produced a forged document to gain illegible promotion. A memo of charges was issued on 28.5.2009 and after complying with the formalities, an enquiry officer was appointed. The enquiry officer found the petitioner guilty of all misconduct. Later, the explanation offered by the petitioner was rejected and the disciplinary authority decided to accept the findings of the enquiry officer. The disciplinary authority later issued an order dated 18.8.2010 confirming the provisional decision to dismiss the petitioner from service with immediate effect. The petitioner invoked the appellate remedy and approached the University Appellate Tribunal. By order dated 30.1.2011, the Tribunal after evaluation of the facts and circumstances, held that the punishment of dismissal was disproportionate and reduced the same to compulsory retirement from service as envisaged in section 63 (6) (ccc) of the Mahatma Gandhi University Act, 1997 (‘the Act’ for short). The order passed by the Tribunal was taken up before this Court and by Ext.P10 judgment, this Court took the view that considering the nature of allegations, the punishment of dismissal which was reduced to compulsory retirement by the Tribunal was disproportionate and the matter was remitted back to the disciplinary authority with liberty to impose any of the punishment as provided in Section 63(6)(a), (b) or (c) of the Act among the five charges levelled against the petitioner.
3. The petitioner contends that in obedience to the directions issued by this Court, the 1st respondent reinstated him in service. The matter was however taken up by the petitioner before the Hon’ble Supreme Court by preferring SLP (Civil) No.3247/2015. While the matter was pending before the Hon’ble Supreme Court, the 1st respondent by proceedings dated 4.11.2014 imposed fresh punishment under Section 63 (6) (c) of the Act by reduction of rank in the seniority as junior most Lecturer in the Department of Community Medicine in the college. It was also ordered as per Ext.P12 proceedings that the petitioner shall not be entitled to get back wages during the period from 2010 to 2014 since he has not been fully exonerated from the charges framed against him in the enquiry. Later, by Ext.P13 order dated 9.12.2014, the management proceeded to confirm the decision to regularize the period of absence of Dr. R. Suresh from 26.8.2010 to 15.10.2014 as a duty only for the limited purpose of pension by treating the period of absence from 26.8.2010 to 15.10.2014 as Leave Without Allowance in view of Rule 56(5) r/w. Rule 88(1)(a) of Part I of Kerala Service Rules r/w. Statute 42 of the Mahatma Gandhi University First Statute. In view of Exts. P12 and P13, the Special Leave Petition filed by the petitioner was disposed of by Ext.P14 order dated 20.2.2015 with liberty to the petitioner to work out his remedy as regards the denial of back wages in accordance with the law. Later, based on a review petition filed by the petitioner, Ext.P15 order was passed leaving open the right of the petitioner to challenge the order of p
