K.M.ABDUL RASHEED v. THE KANNUR UNIVERSITY

notice was issued pursuant to a “prima facie decision of the Syndicate” at its meeting held on April 18, 2007 as revealed from Ext.P8 extract of the minutes.

5. The above decision was not unanimous. It is revealed from WP.20469/07. 3 Ext.P8 that the Vice Chancellor and Pro Vice Chancellor had recorded their dissent . It was pointed out by the Vice Chancellor that he had, in his capacity as the Controlling Officer of the Registrar, given a confidential report to the Syndicate stating in categoric terms that petitioner was suitable and fit to be considered for continuing in service and for promotion. Ext.P6 is stated to be the true photocopy of the character roll issued by the Vice Chancellor.

6. The specific case of the petitioner is that Ext.P9 show cause notice was the handiwork of respondent No.4 who had been in the forefront of the tirade against him. It is seen from Ext.P9 itself that the Syndicate had decided to issue the show cause notice to the petitioner solely on the basis of Ext.P7 “note” submitted by respondent No.4 in which he had made several allegations against the petitioner. The Syndicate had resolved, as could be seen from Ext.P8, “by majority opinion” to serve a show cause notice “on the Note submitted by the Convener (respondent No. 4 ) to the Registrar in connection with the declaration of probation.” (emphasis supplied).

7. It is on record that petitioner had responded to the show cause WP.20469/07. 4 notice and submitted his explanation. But no further action was taken by the University in the matter. Though the proposal for declaration of petitioner's probation had been pending before the Syndicate for some time, no decision was taken on that issue either, in spite of the fact that on several occasions it was taken up for consideration.

8. Reference has been made to the above aspects, which have been highlighted by the petitioner in the writ petition as a prelude, only to indicate that petitioner has raised a specific contention that Ext.P26 order of suspension is totally vitiated, arbitrary and actuated by malafides. It is the case of the petitioner that the said order is only a camouflage or facade and the real intention is to somehow throw the petitioner out of the University. Is the above contention tenable?

9. As mentioned earlier, petitioner has been placed under suspension in connection with “alleged irregularities in the concerned file related to land acquisition”. It therefore becomes necessary to take a brief look at the Land Acquisition proceedings initiated at the instance of the University.

10. The University had taken a decision sometime in 2001 to shift WP.20469/07. 5 its Headquarters from Mangattuparamba to a place within the limits of Kannur Municipality. The University had identified certain parcels of land at Thavakkara and they were got surveyed with the help of private surveyors. The proposal was to acquire 20 acres of land for this purpose and in June 2005 sanction was accorded by the Government to acquire 20.84 acres (G.O.(Ms).72/2005/H.Edn. dated 13/6/2005) at Thavakkara in Kannur. But later the Government had issued G.O.(Ms) 8/2006/Edn. dated 6/1/2006 according sanction to acquire 18.94 acres of land. A sum of Rs. 7 crores had been provided as plan allocation for the new Headquarters during 2005-06, out of which Rs. One crore was initially ear-marked for land acquisition. It was estimated that about Rs.4 crores will be required to meet the land acquisition charges.

11. As mentioned earlier, it was envisaged that about 20 acres of land would be required for the Headquarters. But the Government had issued the revised sanction order to acquire 18.94 acres as could be seen from the land acquisition file produced by the University, on the basis of the survey plan submitted by the Special Tahsildar (LA), Thalassery after a joint inspection conducted by the officials of the WP.20469/07. 6 University and the Revenue and Survey authorities. But Section 4(1) notification under the Land Acquisition Act 1894 was published in the gazette on March 10, 2006 proposing to acquire only 17.71 acres of land situated in Sy.Nos.109, 105/1, 133, 100, 104, 108, 124, 134, 144, 145, 123/2 etc. It is further revealed from the file that the notification was issued pursuant to a joint inspection conducted by representatives of the University and the officials of the Department on February 6, 2006. Subsequently the Government had also constituted a “Price Negotiation Committee” in order to expedite the acquisition proceedings by its order dated August 30, 2006.

12. It is seen from the file that certain land holders had raised objection with regard to the proposal to acquire their respective plots of land. In the meanwhile, the University, the requisitioning authority, had approached the land acquisition authorities requesting that the plots of land in Sy.Nos.100 and 104 (23 + 12 = 35 cents) may be excluded from the acquisition proceedings. Consequently the Government had issued a notification in the gazette dated March 10, 2006 excluding the plots of land mentioned above. The File further reveals that the land WP.20469/07. 7 acquisition authorities had addressed the Superintendent of the Government Press to issue a notification in this regard and thereafter, on conclusion of the enquiry under Section 5A of the Act, finalised the list of lands to be acquired. The list contained details like old and new survey numbers, extent of land, nature of land etc. The proposed extent came to 56573.950 square meters (14 acres approximately). These facts are revealed from the communication dated May 11, 2007 sent by the Land Acquisition Special Tahsildar (LA) Thalassery to the Registrar of the University. The above communication is available in Volume II of the file (KU/PLD/Bt.LA.998/02) at page 1129.

13. According to the petitioner the primary reason that has provoked the powers that be, who are led by respondent No.4, is the proposal made by the University to exclude from acquisition 23 cents of land situated in TS.100 and 12 cents in TS.104. According to respondent No.4, the said decision was taken on the basis of a false report/Note put up by the petitioner misleading all concerned including the Syndicate members. It is not in dispute that respondent No.4 and another Syndicate member, Dr.M.P.Rajan, had visited the WP.20469/07. 8 lands which were proposed to be acquired, on December 5, 2006. The petitioner, Sri.P.V.Balakrishnan, the Land Acquisition Officer of the University and Survey Staff of the Revenue Department were also present at the time of inspection. Thereafter Ext.P17 Note was prepared by Sri.Balakrishnan, Land Acquisition Officer. In the said Note, Sri. Balakrishnan stated that it was proposed to exclude 23 cents and 10 cents respectively, situated in TS.100 and 104, from acquisition and instead, 3 cents of land in TS.142 and about 7 cents in TS.135 which lay adjoining to the site be acquired. It is seen recorded by Sri.Balakrishnan in Ext.P17 that the above proposal/suggestion was accepted by the two Syndicate members including respondent No.4 and the other officials of the University. The Note was put up by Sri.Balakrishnan before the petitioner on December 7, 2006 who in turn placed it before the Pro Vice Chancellor on the next day viz., December 8, 2006 with a recommendation that the proposal may be agreed to. It is further seen from Ext.P17 that the Pro Vice Chancellor had directed that reasons for exclusion of the lands be furnished. Sri.Balakrishnan had recorded his reasons as a Note before the Pro WP.20469/07. 9 Vice Chancellor on December 12, 2006 through the Registrar as can be seen from Ext.P17 itself.

14. In the said Note it was mentioned that there was a big and old residential building in TS.104 where a large family was residing. The boundary dividing TS.100 and 104 was also missing. The plots which were originally wet lands had been filled up with earth by the owners. The survey party had noticed that the old residential building was situated in TS.104 having an extent of only 23 cents and it was on the southern end of the plot. It was further mentioned in the Note that exclusion of this small bit of land would not affect the proposed acquisition in any manner, to a great extent. If the old residential building was to be acquired, the University may end up paying a huge compensation towards its value and for other improvements like well, cattle shed etc. There may be resistance from the members of the family against their eviction from the residential building. It was therefore suggested that in lieu of the two small extents of land situated in TS.100 and 104, the lands available in the adjoining survey numbers viz. TS. 144 and 145 which have been WP.20469/07. 10 converted as a road can be acquired. The road can be widened and used for the purpose of the University. It was further mentioned in the Note that the two Syndicate members including respondent No.4 had agreed to the above proposal.

15. The above Note prepared by Sri.Balakrishnan, Land Acquisition Officer, was approved by the Vice Chancellor on December 18, 2006, as can be seen from Ext.P17. Accordingly a request was made to the Government to issue orders excluding the above plots of land (T.S.100 and 104) from acquisition.

16. But in a report submitted by the two Syndicate members viz., respondent No.4 and Sri.M.P.Rajan, to the Vice Chancellor on June 12, 2007, they asserted that they had not recommended exclusion of the above two plots. However they admitted that they had visited the lands which were proposed to be acquired , along with the Registrar, the Land Acquisition Officer of the University, Assistant Engineer, survey staff of the Department etc. on December 5, 2006. According to them the said visit had been “misconstrued as a visit to recommend the exclusion of the said plots”. WP.20469/07. 11

17. It is pertinent to note that Ext.P17 Note was prepared by Sri.P.V. Balakrishnan, Land Acquisition Officer of the University after the said visit. He had submitted the same before the Registrar who had approved and forwarded it to the Pro Vice Chancellor. In response to a query, the Land Acquisition Officer had stated the reasons for exclusion of the lands. This is also revealed from Ext.P17.

18. It is undoubtedly true that the Syndicate had not taken a decision to exclude the above plots from acquisition. In fact the said issue had never been placed before the Syndicate. But the short question is whether the petitioner was solely responsible for the alleged irregularity or the so called misrepresentation. In this context it is relevant to note that Sri.P.V.Balakrishnan, the Land Acquisition Officer of the University has been removed from service of the University after seeking an explanation from him in this regard. In his response to the show cause notice Sri. Balakrishnan had unambiguously admitted that he had prepared Ext.P17 Note and placed it before the Registrar after the visit made by the Syndicate members, Registrar, Overseer and the survey staff of the Department on WP.20469/07. 12 December 5, 2006. He had also stated that he had explained the relevant aspects of the matter to the Syndicate members , the Registrar and other officials in support of his opinion to exclude the two plots in question. He had further stated that the Syndicate members including respondent No.4 had not objected to the above proposal and therefore he presumed that they were agreeable to the same. It was thereafter that he had prepared the Note and submitted the same before the Registrar. The reply given by Sri.P.V.Balakrishnan to the show cause notice on June 20, 2007 is on record at page No.7 in the additional file maintained by the University.

19. There is yet another aspect of the matter. Respondent No.4 and Sri.M.P.Rajan, another Syndicate member who had reportedly agreed for the exclusion, have now disputed their concurrence to the same. Some other members of the Syndicate have also expressed their concern why the total extent which was originally proposed to be acquired (20 acres) for shifting the Headquarters had come down drastically while finalising the draft declaration.

20. As mentioned earlier, an extent of 23 cents in TS.104 and 12 WP.20469/07. 13 cents in TS.100 were recommended to be excluded by the Land Acquisition Officer from acquisition with which proposal, of course, the Registrar had also concurred. But curiously the Sub Committee consisting of respondent No.4 and two other Syndicate members namely Sri.M.P.Rajan and Sri.K. Pavithran had recommended exclusion of 1.23 acres of land situated in TS.88/2 and 23 cents in TS.108 at its meeting held on March 17, 2007. These lands belonged to Sri.C.P.Javed and Smt.Sudha respectively. True photo copy of the proceedings of the Sub Committee is on record as Ext.P19. Sri. Javed had raised objection for the first time in September 2006. Sri.Balakrishnan, Land Acquisition Officer, had recorded his objection against exclusion of the above plot.

21. It is further seen from the file that after the Syndicate took a decision to exclude the above lands from acquisition, the matter was referred to the Special Tahsildar (Land Acquisition), Thalassery for incorporating necessary changes in the draft declaration. But the Tahsildar had expressed her reservations about the same since, according to her, it was difficult to make changes in the survey plan, WP.20469/07. 14 alignment of the property etc. at that belated stage. This is clearly revealed from the communications received from the Land Acquisition Office and the Note file maintained by the University ( page No.66) . But ultimately the Special Tahsildar seems to have relented.

22. In this context it may also be mentioned that the above land situated in TS 88/2 was excluded on condition that the land owner would agree to give requisite land to the University free of cost for constructing a road through the land proposed for acquisition. Similarly another plot of land having an extent of 20 cents situated in TS.108 was also excluded from acquisition on the same terms and conditions. Reference has been made to the above aspects only to point out that even at the very belated stage when the draft declaration had already been prepared by the Special Tahsildar after Section 5A enquiry, the Sub Committee consisting of respondent No.4 and two other Syndicate members had recommended exclusion of a total extent of 1.43 acres from acquisitioin.

23. Interestingly it is also seen from the file that yet another plot with an extent of 30 cents belonging to Sri.P.Syed situated in WP.20469/07. 15 TS.No.109 had also been excluded from acquisition in March 2007. The petition filed by Sri.Syed with the endorsements of the Minister and Additional District Magistrate (ADM) is available in the file (Vol.II). It is seen that the ADM had made some remarks requesting for “personal attention” in the matter. It is further seen from the file that a query was made by Sri.P.V.Balakrishnan as to whether the property of Sri.Syed is to be excluded and whether the Syndicate had taken a decision to exclude the land of Sri.Syed. The Registrar had noted on the file on March 27, 2007 that the Syndicate had approved the recommendation of the Sub Committee consisting of respondent No.4 and Sri.M.P.Rajan to exclude the above plot also.

24. It is seen that some members of the Syndicate had expressed concern over the reduction in the land which was originally proposed to be acquired. It is contended by the petitioner that respondent No.4 and some other members apparently wanted to put the entire blame on him and Sri.P.V.Balakrishnan for exclusion of 35 cents of land. But it is pointed out by the petitioner that respondent No.4 and two other Syndicate members recommended exclusion of WP.20469/07. 16 nearly 1.73 acres, and that too at an advanced stage of acquisition proceedings.

25. I have dealt with the above aspects a little too elaborately, only to highlight the fact that the contention raised by the petitioner that he had been targeted by respondent No.4 and some of his supporters with an oblique motive, cannot be brushed aside lightly. A perusal of the entire file undoubtedly shows that the decision of the Syndicate to place the petitioner under suspension was not warranted at all , in the peculiar facts and circumstances of the case.

26. I am not unaware of the fact that petitioner is entitled to present his case before the Enquiry Committee. But still, the action of the respondents in placing an officer like the petitioner who is holding a responsible post of Registrar in a University under suspension in a whimsical and casual manner, cannot be countenanced at all. Such a decision can never be taken lightly. An order of suspension is undoubtedly a stigma in the career of any employee. It is seen from the minutes that the Syndicate had decided to place the petitioner under suspension for the alleged irregularities, whereas the service of WP.20469/07. 17 Sri.P.V.Balakrishnan was terminated. Three Syndicate members had recorded their view in the Minutes that petitioner can be requested to enter on leave till the enquiry was completed. That opinion, in my view, would have been a little more reasonable. Even if the petitioner comes out of the enquiry unscathed, the damage that he may suffer will be irreparable.

27. The appointing authority or the disciplinary authority which may place an employee under suspension must exercise due care and caution before suspending an employee. Undoubtedly an employee who commits acts of indiscipline has to face the consequences. The authority concerned must keep in view the gravity or enormity of the charge levelled against the employee before placing him under suspension. But if the employer is satisfied that allowing the employee to continue on duty pending enquiry may not be in the best interest of the institution or that his continuance in service will hamper the process of enquiry, he can be kept away from duty. It may also be considered whether the employee, if allowed to continue on duty, will have access to the relevant files, thereby enabling him to tamper WP.20469/07. 18 with material records. In short, the administrative action of the employer must be tempered with reasonableness. Such an action should not be entirely vindictive or punitive. But once the employee is ultimately found guilty in the enquiry, the entire scenario will change. It will be undoubtedly open to the employer to punish the delinquent appropriately.

28. My attention has been drawn by both sides to a few decisions of the Apex Court as well as that of this Court. In State of Orissa v. Bimal Kumar Mohanty (AIR 1994 SC 2296) their Lordships held thus: “It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an WP.20469/07. 19 service automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations inputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf . Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation. It would be another thing if the action is actuated by male fides, arbitrary or for ulterior purposes. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. The authority also should keep in mind public interest of the impact of the delinquent's in office while facing continuance WP.20469/07. 20 departmental enquiry or trial of a criminal charge. “

29. This Court in Muhammed v. State of Kerala (1997 (2) KLT 394) had placed reliance on the decision in Bimalkumar Mohanty's case (supra) while holding that the authority concerned has to apply its mind and decide as to whether the employee should be placed under suspension or not.

30. In Anilkumar v. St ate of Kerala (2002 (2) KLT 101) this Court had held that even assuming everything that was stated in the suspension order was correct, still, if the suspension was unwarranted, this Court could interfere with it. But the court cautioned that an order of suspension cannot be attacked on the ground that the facts stated therein are not correct or the conclusions on the facts are improper. The learned Judge further laid down that a court exercising the power of judicial review can interfere with a decision, if on the given set of facts, no man in his senses could arrive at such a decision.

31. As mentioned earlier, an order of suspension as far as an employee is concerned is stigmatic. It is undoubtedly a blot on his WP.20469/07. 21 career. The stigma that attaches to an officer under suspension cannot be wished away on the legalistic plea that it is not a punishment. It is for the above reason that the courts always insist that before issuing an order of suspension, the authority concerned should be satisfied that there is prima facie material to support the decision to suspend the employee. A duty is also cast on the Court to see whether there is more than what meets the eye in a seemingly “innocuous” order of suspension. The Court has to satisfy its conscience in such instances by examining the relevant records in order to find out whether there is any semblance of truth or credibility in the employee's words while alleging malafides and vendetta. It need not be repeated that it may not be a solace at all for the suspended employee if ultimately he gets exonerated after undergoing the ordeal of suspension and enquiry. It is therefore that the Apex Court as well as this Court have, on several occasions, cautioned that suspension shall not be a routine or casual exercise of administrative power. The order must stand scrutiny of law and it must be prima facie shown that it has not been punitively imposed. The satisfaction of the Court becomes all the more important WP.20469/07. 22 if the employee has a specific case that the order is totally vitiated by mala fides and tainted with oblique motives and vindictiveness.

32. Having gone through the entire materials available on record including the files produced by the University before this Court, I am satisfied that this is a fit case in which interference under Article 226 of the Constitution is warranted. The petitioner, in my view, does not deserve such a harsh treatment at this stage. I hasten to add that I am not pronouncing upon the merit or demerit of the contentions taken by the petitioner. But having regard to the totality of the facts and circumstances I have no hesitation to hold that the omissions or commissions, if any, on the part of the petitioner do not call for inflicting such a stigma on his career.

33. It may be stated again that it was Sri. P.V.Balakrishnan, the Land Acquisition Officer of the University who had prepared the visit note stating that the two Syndicate members had agreed to the proposal made by him and the survey staff of the Revenue Department to exclude the two plots of land having a total extent of 33 cents, from acquisition. Even prior to this, the Land Acquisition Officer had noted WP.20469/07. 23 the same opinion in the file a few months ago, to be precise on February 18, 2006 (Page No.41 in the Note file). Of course , it is true that the issue relating to exclusion of the above plots from acquisition had not been placed before the Syndicate for its decision. Similarly the decision to exclude the building situated in TS.88/2, in the letter sent to the Government, was also not a decision approved by the Syndicate. The explanation given by the petitioner that he had inadvertently omitted to scrutinise the draft letter prepared by the Land Acquisition Officer before approving it, is a matter to be considered by the Enquiry Committee. On the whole, I am satisfied that an order of suspension is not warranted in this case. Of course, it can be ensured by the University that petitioner does not interfere with the enquiry in any manner. In this context it may be mentioned that the suggestion made by some of the Syndicate members, while expressing their dissent against the decision to suspend the petitioner, will be one of the options available to the University.

34. The University can take appropriate steps to complete the enquiry against the petitioner expeditiously. I hasten to add that the WP.20469/07. 24 observations made in the judgment with regard to the various aspects of the issue as revealed from the files are only prima facie impressions. Those observations or remarks need not and shall not in any way influence the Enquiry Committee while holding the enquiry. Therefore Ext.P26 order of suspension is quashed. Writ Petition is allowed. an. A.K. Basheer Judge.