K. Shoukkathali v. The Registrar, Manipal University, Manipal Andothers

1. The facts of the case are as follows. The petitioner has obtained a degree in Bachelor of Science (Psychology) with a Second Class in the year 2004, and had obtained a Master of Science (Applied Science) degree in the year 2007. The petitioner had joined a two years M.-Phil. Clinical Psychology Course with the respondent-College and University in September 2007. He had successfully completed the First Year (Part I) of the Course. He had also completed the Final Year Internals and had submitted his thesis to the University for evaluation. The petitioner claims to have an unblemished record of conduct.

2. It transpires that on 9-7-2009 at about 3 p.m, the petitioner, when he was in the Department of Clinical Psychology, was assigned a patient who was said to have been referred from the concerned department to the Department of Clinical Psychology for psychological evaluation. The patient was a girl aged about 12, who complained of joint pain and which was suspected to be Psychosomatic in nature-she was accompanied by her parents. It is the petitioner's case that he had followed the standard procedure and as per norms laid down by the Rehabilitation Council of India, in carrying out the evaluation procedure. It is stated that the patient was examined in the presence of her parents and that the petitioner had examined her joints in order to reassure the patient and to enquire whether she felt any pain anywhere. And generally questioned her about her activities at school and her interpersonal relationship with her friends. And that he had not behaved in any manner which could be a cause for complaint of indecent behaviour. The petitioner would assert that he has a younger sister who is said to be mentally challenged and who suffers from epilepsy and hence had first hand experience of the suffering and pain of the mentally challenged - and which in fact is said to be the motivation for him to have chosen the particular course of study. Therefore, the petitioner claims that he having touched the patient during the evaluation only in order to reassure her as to the nature of her complaint was said to have been mistaken for molestation - as alleged by the father of the patient.

3. On 20-7-2009, it transpires that the third respondent had issued a memo informing the petitioner of the complaint lodged against him and he was directed not to attend classes until further notice. His explanation to the allegation was directed to be submitted by 21-7-2009. It is the petitioner's case that he was not given a copy of the complaint, nor was he aware of any preliminary enquiry held in respect of the same. On 21-7-2009, the petitioner is said to have furnished a written report of the manner in which he had carried out the clinical evaluation of the patient and that the allegations were misconceived.

4. The petitioner is said to have received a notice to appear before the Director, Student Affairs, Manipal University, on 3-7-2009. The petitioner had appeared and is said to have explained the circumstances. He is said to have been questioned by two other persons who were present along with the Director at that time. The petitioner is then said to have been directed to write his explanation to the dictation of the Director.

5. It is stated that the petitioner was not permitted to take his final examination scheduled on 10-8-2009, by denying the Hall ticket to the examination. And it was only on 14-10-2009 that the petitioner was informed that he would not be permitted to take the final examination and that he was being relieved from the college.

6. On a request made, as on 7-12-2009, for the copy of the complaint and the enquiry report on the basis of which the petitioner was removed from the rolls of the college, it was denied on the ground of confidentiality. In the above background, after making futile attempts before other authorities seeking intervention on his behalf for a fair hearing and consideration of the petitioner's defence to the case that may have been stated against him, the petitioner is before this Court.

7. The learned Counsel for the petitioner would vehemently contend that petitioner has never been placed on notice of the actual allegations against him even as on the date of the petition. There was no Enquiry Committee constituted to the knowledge of the petitioner.

8. It is contended that the petitioner being denied the right to take the final examination of the course which he had completed, on the basis of the allegations - in respect of which there was no proper enquiry has resulted in the petitioner's reputation and career being destroyed completely. It is hence sought that the petition be allowed as prayed for. The learned Counsel for the petitioner has placed reliance on the following authorities in support of the case:

1. Durgappa B. v. Principal Basaveshwara Engineering College, Bagalkot 1982 1 Kar. L.J 120;

2. Mathews Ashwanth Goveas v. Director of Technical Education, Chennai;

3. Ajay Kumar Mittal v. Vice-Chancellor, Roorkee University, Roorkee AIR 1991 All. 177;

4. Union of India v. Mohd. Ramzan Khan AIR 1991 SC 471;

5. T.T Chakravarthy Yuvaraj v. The Principal, Dr. B.R Ambedkar Medical College, Bangalore 1997 5 Kar. L.J 130 DB.

9. On the other hand the learned Counsel for the respondents contends that it was a fact that the petitioner had almost completed his course of study and was about to take the final examination, when the incident in question had occurred, leading to the expulsion of the petitioner from the respondent-University.

10. It is stated that as on 9-7-2009, a minor girl aged about 12, who was being treated at Kasturba Hospital, Manipal, had been referred for clinical evaluation of a possible psychological disorder. She was brought to the Department of Psychology for follow up treatment. The patient was said to have been assigned to the petitioner. The petitioner had met the girl along with her parents initially and had then requested that he be permitted to conduct further evaluation alone with the girl. The unsuspecting parents had left the relaxation room where the consultation was proceeding.

11. It is after the girl had emerged from the room and after noticing that she appeared to be disturbed, and on being questioned, she had informed her parents that the petitioner had systematically disrobed her completely and had fondled her. The girl having narrated graphically of the manner in which the petitioner had fondled her breasts her lower abdomen and after removing her underwear, her sexual parts - the shocked and distraught father had lodged a complaint. A copy of the same is produced along with the statement of objections. On the basis of the complaint, a preliminary enquiry is said to have been conducted through the Head of Department of Psychology, who had conducted an internal enquiry and had submitted a report on 11-7-2009. A copy of which is produced along with the statement of objections. On the basis of the same an Enquiry Committee consisting of three members having been appointed, the said Committee had in turn submitted a report, recommending the denial of a degree to the petitioner by the University, as his conduct and behaviour with a vulnerable child was a disgrace to the institution and unbecoming of a Psychologist.

12. It is pointed out by the Counsel for the respondent that it is evident that at the time of the preliminary enquiry, the petitioner had candidly admitted. that the petitioner had physical contact with the girl, and that he had only sought to touch various parts of her body to reassure her with regard to the nature of her complaint of joint pain and the same had been characterised as molestation. At the said enquiry statements of Sahana Madhyastha, Lecturer, Department of Clinical Psychology and Smt. Gowramma, a Staff Nurse of the same Department had been recorded.

13. It is stated by Ms. Madhyastha in her statement that the child on enquiry as to the allegations is said to have narrated thus:

“…………..after talking to me and my parents, the doctor took me alone into the room, made me lie down on the bed. Then he unzipped my dress and pressed my breasts and asked me if I had pain there. I said no. Doctor removed my underwear and touched my vagina asking if I had pain there. I said no”.

14. In the light of the above the learned Counsel would submit that it was not the case of the petitioner that it was permissible to have any physical contact with a patient in the course of clinical evaluation, nor is it the case of the petitioner that the parents of the child were present when he physically touched the child. It is also not the case of the petitioner that a nurse or other third person was present when the petitioner had physically examined a female patient. In the face of the further circumstance that apart from the child there was no other witness to say what had transpired in the privacy of the relaxation room, where the child had been examined by the petitioner, and as the statements of other witnesses, including that of the petitioner corroborated the sequence of events the summary conclusion of the enquiry could not be faulted. It is hence contended that the plea as regards violation of principles of natural justice, on the footing that there was no elaborate enquiry is of little significance - having due regard to the circumstance of the case, especially one involving the interaction between a Clinical Psychologist and a mentally challenged child. It is hence contended that the petition be dismissed.

15. In the light of the above contentions and on an examination of the record, it is not in serious dispute that the petitioner had indeed subjected the girl to a physical examination, after asking her parents to leave the room. It is also not disputed by him that for purposes of psychological evaluation of a patient, such physical contact was not contemplated. Even if this were required in unusual circumstances, it was necessary to have a third person present in the room while a male consultant examined a female patient. It is not disputed by the petitioner that there was none present, except the girl when the examination took place. The defence of the petitioner that the physical contact if any was totally professional and could not be termed as lecherous or with an evil intent, is met by the version of the child, that he had methodically stripped her naked and had fondled her intimately on the pretext of examining her joints.

16. It is no doubt true that the manner in which this sequence of events has been brought to light is not in the course of an enquiry held in a copy book fashion - with all its formal trimmings of a show-cause notice, a reply thereto by the petitioner, followed by formal charges being framed and evidence being tendered with full opportunity to the petitioner of defending himself in respect of the charges. But in the opinion of this Court the manner in which the evidence of the child has been gathered, which is consistent with the circumstances as stated by others whose statements are also available on record, would not enable the petitioner to plead violation of principles of natural justice, in the respondents resorting to the impugned action. For the alleged acts of the petitioner after having ensured that he was alone with the girl are adequately established on a preponderance of probabilities. The respondents having denied the petitioner the opportunity of obtaining the degree which he was working towards - is certainly justified when the respondents have acted in the interest of the profession and the institution in holding that the petitioner was undeserving of the qualification, given his deplorable conduct - which attracted even criminal liability. And could possibly have visited the institution itself with serious and irreparable consequences.

17. The decisions relied upon by the petitioner would not advance the case of the petitioner. The decisions which are rendered in the light of the peculiar facts of each of those Cases is a material consideration.

18. In the case of Durgappa the matter involved a charge of malpractice at an examination, laid against the petitioner therein. The petitioner therein, in reply to a show-cause notice in respect of the allegation, had denied the charge. But the Inquiring Authority had proceeded to draw conclusions on material which was not brought to the attention of the petitioner. It was in that context that this Court had held:

“Any opportunity given in cases of this kind must be real in which the student can conveniently meet the charge. He must not only be made known the charge, but he must be made aware of the evidence on the basis of which the committee proposes to find against the students. Where the Committee bases its conclusions on material obtained behind the back of the student, it transgresses the limits laid down by Courts in regard to even domestic enquiries. Further the proviso to Section 62(2) of the State Universities Act, 1976 must be complied with and opportunity given to the erring student of being informed of the proposed punishment”.

19. In the case of Mathews Ashwath Goveas, it was found that an enquiry held against students who had participated in an agitation, had not been placed on notice of the charges against them. The appointment of the Enquiry Officer was not made known to them. The Enquiry Officer had in turn proceeded to set them ex parte and completed the enquiry summarily. It was in that context that the Apex Court had set aside the punishment imposed by the Disciplinary Authority on the basis of the said enquiry.

20. In the case of Ajai Kumar Mittal, again the disciplinary proceedings against the petitioner therein was found to be blatantly in violation of principles of natural justice. The facts and circumstances are totally different from the case on hand and cannot be pressed into service. On the other hand the decision cited by the petitioner in the case of T.T Chakravarthy Yuvaraj, in fact would support the action of the respondents. This is evident from the following observations of the Court:

“13. The main argument advanced on behalf of the appellants is that in the wake of the incident that certain students had desecrated or defiled the bust of Dr. Ambedkar there was a public uproar and upheavel having political overtones, the Principal panicked and subjugated himself to pass the order impugned in these proceedings. It is therefore urged that the Principal was not a free agent of himself and ought to have awaited the result of the Commission of Inquiry constituted for the purpose in determining the correct position. When no specific charges were levelled against the students and were not given an opportunity to cross-examine the witnesses, it is contended that the entire disciplinary proceedings resulting in their expulsion from the college is vitiated.

14. The object of enquiry by the Principal was to ascertain the true facts whether an incident had taken place as alleged on 13-11-1995 and who were the students involved in the same. That information was available from the security guard and the statement made by Chakravarthy - one of the students. When the events were fresh in the memory of the security guard and the students and statements have been made by them and there is no reason to doubt their credibility, we do not think we should expect the Principal to hold a fresh enquiry after setting aside the present proceedings. The position of a Principal being Head of the Institution is that of a parents and the students being his wards, the manner in which the enquiry should be held cannot be put in a straitjacket formula by issuance of a charge-sheet, recording of statements in the presence of students and allowing them to cross-examine such witnesses. When there was an upheavel as a result of the incident and to avoid further indiscipline, the Principal had to act immediately and when he did so after ascertaining the facts in the manner best known to him, this Court cannot impose the strict compliance with the principles of natural justice.

15. It is no doubt true that when the charges are serious enough, the students must be given a fair opportunity. But that would again depend upon the circumstances in each case. We have already stated that the position of a Principal is that of a parent and therefore it is certainly inherent within the scope of the authority of the parent to punish a ward and not necessarily after observing a detailed enquiry as adverted to earlier. Therefore, we agree with the findings recorded by the learned Single Judge that the manner of conducting the enquiry or the conclusion reached by the Principal that the students concerned have been guilty of the charge of misconduct, are correct. We agree with the learned Single Judge that there has been a fair enquiry in which the students also had an opportunity to participate by making their appropriate statements”.

21. Therefore, even in the present case on hand, any delay brooked in bringing the petitioner to book and his expulsion from the institution would possibly have led to other proceedings being initiated by the father of the victim, who was said to be a practicing Advocate at Thirthahalli, which could have drowned the respondents with adverse publicity while visiting the petitioner as well the institution with other civil and criminal proceedings.

22. There is hence no substance in, this writ petition and the same is dismissed.