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Judgment
C.S.Sudha, J
This writ appeal is against the judgment dated 15/02/2022 in W.P. (C)No.22745/2021. The appellant is the petitioner and the respondents herein, the respondents in the writ appeal. The parties and the documents will be referred to as described in the writ petition.
The writ petition was filed by the petitioner challenging Ext.P22 order by which Exts.P18 and P19 representations of the petitioner for restoration of his seniority as well as disbursement of arrears has been rejected. The petitioner, a Lecturer in Community Medicine in the College of the first respondent, as per Ext.P12 order of the first respondent was imposed with a major penalty of reduction to a lower rank in the seniority list as junior most lecturer in the Department of Community Medicine in the College. According to the petitioner, Ext.P22 order of the first respondent to the extent it pertains to the non-restoration of his seniority is per se illegal, irregular and arbitrary. The representations of the petitioner were considered by the first respondent based on Chapter 4 Statute 35 B of the Mahatma Gandhi University Statutes, 1997 (the Statutes). Chapter 4 pertains to the terms and conditions of service of the non-teaching staff of the University other than University teachers. The petitioner is a teacher in a private college and hence Statute 35 B in Chapter 4 is not applicable to the petitioner. Disciplinary action against the teachers of private colleges come under Statute 73 of Chapter 45 of the Statues. Therefore the first respondent ought to have taken a decision based on Statute 73 of Chapter 45. As per the said provision, there is no stipulation that reduction to a lower rank in the seniority list is permanent in nature. Therefore the first respondent is not justified in considering Exts.P18 and P19 request of the petitioner for restoration of seniority.
2.1. It is settled law that as long as no period is stipulated in the order imposing the punishment of reduction to a lower rank in the seniority, the same cannot operate for an indefinite period, on the other hand it would stand restricted to a period of six months. The petitioner is thus entitled to get his seniority restored to its original position, on expiry of six months of the order imposing the punishment and to get further promotion to the post of Professor. Hence, the writ petition, seeking quashing of Ext.P22 ; a direction to the first respondent to restore the seniority of the petitioner to the original position he was holding at the time of imposition of punishment by way of Ext.P12 order and to grant him all consequential benefits including promotion to the petitioner.
The first respondent in their counter contends that the allegations raised by the petitioner are untenable. Statute 73 of Chapter 45 of the Statutes, does not say that reduction to a lower rank is for a specified period or that it can only be treated for a period of six months. It is true that Ext.P22 order has been passed relying on Statute 35 B(v) in Part III of Chapter 4 of the Statutes, which is not the relevant provision applicable to the petitioner herein. Further, if the reduction of rank in the seniority list is not made permanent, it would not have the effect of a punishment, contends the first respondent.
Heard Adv.Sajeev Kumar K.Gopal, the learned counsel for the appellant; Adv.Peter Jose Christo, the learned counsel for the first respondent and Ms.B.Vinita, the learned Government Pleader for respondents 2 and 3.
The only point that arises for consideration in this appeal is whether the penalty of reduction in rank imposed as per Ext.P12 order is for a period of six months or whether it is permanent. For resolving the issue involved, we need to refer to the relevant provisions in the Mahatma Gandhi University Act, 1985 (the Act) and the Statutes. Section 63 of the Act deals with disciplinary powers of educational agency over teachers of private colleges. Clause (c) of sub-section (6) deals with reduction to a lower rank in the seniority list or to a lower grade or post. The Section does not say whether the reduction to a lower rank in the seniority list is to be permanent or for a particular term. Ext.P22 order has been passed based on Statute 35 B(v) in Part III of Chapter 4 of the Statutes. Part III of Chapter 4 deals with the disciplinary procedure. Statute 35 deals with imposition of penalties. Statute 35 B deals with major penalties. Clause (v) of the said Statute refers to the major penalties of reduction to a lower rank in the seniority list or to a lower grade or post or time scale. The proviso to clause (v) says that in case of reduction of rank in the seniority list, such reduction shall be permanent. Apparently, Chapter 4 deals with the terms and conditions of service of non-teaching staff of the University other than the University teachers. Therefore, this provision is not applicable to the petitioner, who is admittedly a teacher. The fact that this provision is not applicable to the petitioner is admitted by either side also.
Our attention was then drawn to Chapter 45 of the Statutes dealing with the Conditions of service of teachers and members of non-teaching staff in private colleges. Part D of this Chapter deals with disciplinary action against the teachers of private colleges. Statue 73 (iv) of this Chapter deals with reduction to a lower rank in the seniority list or to a lower grade or post or time scale or to a lower stage in a time-scale. Statute 73 apparently does not say whether the reduction should be permanent or for a particular term. Here reference was made by the learned counsel for the petitioner to sub-sections (1) and (2) of Section 99 of the Act. Sub-section (1) of Section 99 says that subject to the provisions of the Section, the Kerala University Act, 1974, shall, with effect from the date of the commencement of the Act cease to apply in respect of the areas to which the jurisdiction of the Mahatma Gandhi University extends. Sub-section (2) says that notwithstanding anything contained in sub-section (1), all Statutes and Ordinances made under the Kerala University, 1974 and in force on the date of the commencement of the Act shall, in so far as they are not inconsistent with the provisions of the Act continue to be in force in respect of the areas referred to in sub-section (1) until they are replaced by the Statutes and Ordinances to be made under the Act. Referring to these two sub-sections, it was submitted that the Act as well as the Statutes are silent about the period for which the penalty of reduction is to be imposed. In such circumstances, we need to refer to the relevant provisions of the Kerala University Act, 1974 and connected Statutes to understand the term for which the reduction to the lower post is to be imposed.
Chapter 3 of the Kerala University First Statutes, 1977, deal with teachers of the University. Statute 16 of the Chapter dealing with disciplinary procedure, says that the provisions relating to disciplinary proceedings contained in Part III of Chapter IV, shall mutatis mutandis apply in the case of disciplinary action against the teachers of the University. Chapter 4 of the Kerala University First Statutes deals with the terms and conditions of service of the non-teaching staff of the Kerala University. Part III of the Chapter deals with disciplinary procedure. Statute 25 deals with imposition of penalties and Statute 25 B deals with major penalties. Statute 25 B(v) reads :-
“25. Imposition of Penalties:- The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a University employee, namely:-
A. Minor Penalties
(i) … … …
(ii) … … …
(iii) … … …
(iv) … … …
B. Major Penalties
(v) Reduction to a lower rank in the seniority list or to a lower grade or post or time-scale :
Note 1 :- The period of reduction shall not be less than six months and not more than five years. If the period is not specified in the order, the period of reduction shall be deemed to be six months.”
Therefore, referring to the aforesaid provision, it was submitted that Ext.P12 order does not refer to any particular period. That being the position, the period of reduction can be deemed to be only for a period of six months. This argument has not been raised by the petitioner either before the first respondent or before the learned Single Judge. It is being raised for the first time in this appeal. Further, it is unnecessary to resort to the provisions of the Kerala University Act or the Kerala University First Statutes, as there are specific provisions in the Act and the Statutes dealing with the situation. It is only in the absence of provisions dealing with a particular situation, resort to the provisions of the Kerala University Act is required. Here, Statute 35 B(v) in Part III Chapter 4 of the Statutes, applicable to non-teachers, specifically say that reduction of rank in the seniority list shall be permanent. However, Statute 73(iv) in Chapter 45 of the Statutes, applicable to teachers does not specify the period for which the penalty of reduction can be imposed. This makes it apparent that as per the scheme of the Act and the Statutes, the disciplinary authority has been given the discretion to limit the reduction to a particular term or to make it permanent. Here the disciplinary authority has exercised its discretion, which order has been confirmed in appeal preferred by the petitioner under sub-section (6) of Section 63 of the Act also. We do not find any infirmity in the findings of the learned Single Judge in the impugned judgment.
In the result, the writ appeal is found to be without any merits and hence the same is dismissed.
Interlocutory applications, if any pending, shall stand closed.