Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Ker) 349

IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANU SIVARAMAN, J.
Shiny George Ambat, W/o. Sunny George - Petitioner
Versus
Union of India, Represented by the Secretary to the Government of India, Ministry of Human Resource Development, Department of Higher Education & Ors. - Respondents
WP(C) No. 25484 of 2017
Decided On : 12-06-2023

Advocates Appeared:
For the Petitioner: Smt. Rekha Vasudevan.
For the Respondents: Assistant Solicitor General Sri. M. Gopikrishnan Nambiar, Sri. T.R. Ravi, SC, Sree Chitra Tirunal Ins, Sri. M. Gopikrishnan Nambiar, Sri. P. Gopinath, Sri. K. John Mathai, Sri. Joson Manavalan, Sri I. Kuryan Thomas, Sri. Paulose C. Abraham, Sri. T.R. Raviscsree Chitra Tirunal Ins, Sri. Jaishankar V. Nair, CGC.

Point of Law : Section 38 provides that if any difficulty arises in giving effect to provisions of Act, Central Government may, by order published in Official Gazette, make such provisions not inconsistent with provisions of Act for removing difficulty.

Headnote:
Constitution of India, 1950 - Article 311, 226, 14, 12 - Indian Institute of Management Act, 2017 - Section 35, 5, 7(m), 10, 11, 23, (3), 28, 33, 34, 38 - Societies Registration Act, 1860 - Central Civil Services (Classification, Control & Appeal) Rules, 1965 - Illegal demands of transfer funds - Enquiry - Suspension - To call for records leading to decision in 79th Board Meeting of 3rd respondent whereby decision not to take further action on Exhibit P32 appeal submitted by petitioner has been taken and to quash same by issuance of writ of certiorari or other appropriate writ, order or direction - From materials placed on record by respondents that funds made available by Government do not constitute a substantial amount so as to meet even a major portion of expenditure of institute - Para 46.
Finding of the Court :
Court being called upon to consider only factual situation arising in instant case where IIM, Kozhikode was a society registered under Societies Registration Act and there is nothing to show that it was substantially financed by Government even before 2017 Act and that this judgment would not be applicable in cases of any other institutions where factual situation may be different - Though impugned proceedings were passed before 2017 Act and they are under challenge before Court, Court has to consider situation in existence at time when a writ is being issued - With 2017 Act, Institute became a wholly autonomous body with no substantial governmental interference in its internal administration - Court is of opinion that no writ can be issued against IIM for purposes, as sought for in this writ petition - Court make it clear that I have considered only maintainability of writ petition and have not ventured into facts of case - In case petitioner has any statutory or civil remedy, time spent before Court in pursuing this writ petition will essentially be deducted to enable petitioner to avail such remedy as available to her under law.
Result : Ordered accordingly.

JUDGMENT :

1. This writ petition is filed with the following prayers:-

(1) To call for the records leading to the decision in the 79th Board Meeting of the 3rd respondent whereby the decision not to take further action on Exhibit P32 appeal submitted by the petitioner has been taken and to quash the same by the issuance of writ of certiorari or other appropriate writ, order or direction.

(2) Declare that the petitioner herein is fully entitled to be retained and confirmed in service as Chief Finance Officer in the 2nd respondent Institute and to direct the respondents to reinstate the petitioner in service and to consider declaration of her probation in the post of Chief Finance Officer by the issuance of writ of mandamus or any other appropriate, writ, order or direction.

(3) Declare that the petitioner herein is entitled to be reinstated in service with full backwages and continuity in service for the period she was kept out of service illegally and to direct the respondents to disburse to petitioner full backwages for the period she was kept out of service and to grant her continuity of service from the date she was suspended from service, by issuance of writ of mandamus, or other appropriate writ, order or direction.

2. Heard the learned counsel for the petitioner and the learned Government Pleader.

3. It is submitted by the learned counsel for the petitioner that while the petitioner was working as Financial Advisor under the Sree Chitra Tirunal Institute for Medical Science and Technology, the 2nd respondent issued notification inviting applications for the post of Chief Finance Officer. Since the petitioner possessed the requisite qualifications she applied for the same through proper channel and Ext.P2, Offer of appointment was issued by the 4th respondent on 27.01.2015 stating the stipulations regarding probation and declaration of probation. It is submitted that the petitioner joined the 2nd respondent institute on 10.04.2015. After completing one year of probation the petitioner submitted her Annual Performance Appraisal Report (APAR) for the year 2015-16 before the 4th respondent and that she also completed Induction Training Program. It is submitted that petitioner was reporting to 4th respondent and that there was no direct reporting to the 2nd/5th respondent. It is further submitted that when the petitioner refused to accede to the illegal demands of the 5th respondent, requiring her to transfer funds to IIM Amristar without the sanction of the 3rd respondent, the petitioner was required to report to the 2nd/5th respondent directly.

4. It is submitted that the petitioner was under the impression that her probation will be declared w.e.f. 10.04.2016, but on 01.11.2016, the petitioner was asked by the 2nd/5th respondent to avail one month’s leave in order to facilitate smooth and impartial enquiry with respect to certain financial irregularities and that a committee was also constituted to inquire into the irregularities. Thereafter, the Finance and Accounts Officer was asked to take over the charge of office of Chief Finance Officer with immediate effect. It is submitted that though the petitioner tried to meet the 2nd/5th respondent in person, she was informed that 2nd /5th respondent was not available and the petitioner was also denied access to her office room. Thereafter on 30.11.2016 the salary of the petitioner from the petitioner’s salary account was also withdrawn under the instructions of the 5th respondent, which was later restored only with intervention of the 3rd respondent.

5. On 1.12.2016, petitioner reported to the office of the 4th respondent for rejoining duty, but she was not permitted to rejoin duty. It is submitted that the petitioner was never put on notice with respect to the ongoing enquiry and on 13.12.2016 she received Ext.P11 order placing her under suspension. The petitioner made a request for the copy of the report of the Fact Finding Committee referred in Ext.P11, but the same was not receive