Calcutta High Court (Appellete Side)
Dilip Kumar Sarkar vs The University Of North Bengal & Ors on 2 May, 2011
Author: Aniruddha Bose
Bench: Aniruddha Bose
1
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE ANIRUDDHA BOSE
W.P. NO. 7892(W) OF 2010
With
AST NO. 412 OF 2010
With
ASTA NO. 104 OF 2010
FMA NO. 2643 OF 2010
DILIP KUMAR SARKAR
VS.
THE UNIVERSITY OF NORTH BENGAL & ORS.
Advocate for the Petitioners: Mr. Partha Sarathi Sengupta
Mr. Soumya Majumder
Mr. Siddhartha Banerjee
Advocate for the Respondents: Mr. Saktinath Mukhopadhyay
Mr. Saptangshu Basu Mr. Asish Das Judgment On: 02.5.2011 ANIRUDDHA BOSE, J.:-
1. In this proceeding, the petitioner, who is the Registrar of North Bengal University, (the university) challenges the legality of an order issued by the Vice-
Chancellor of the University of North Bengal suspending him in contemplation of a disciplinary proceeding against him. The order of suspension was passed on 2 30th March 2010. A copy of this order has been annexed to the writ petition, marked "P16". This order provides:
"Whereas Dr. Dilip Kumar Sarkar present Registrar, University of North Bengal who had worked as Controller of Examinations, University of North Bengal during the period from 1.7.2000 to 26.11.2007, was the sole authority designated for operating the Confidential bank Account No. 10195737296 maintained with State Bank of India, NBU Campus Branch in the name and style "Controller of Examinations, North Bengal University" and Whereas it is evident from the reports of the Audit & Accounts Officer, University of North Bengal, dated 31.10.2008, M/S. Mitra, Roy & Dutta, a firm of Chartered Accountants dated 12.2.2009 and Mr. Arun Kumar Das, ICAS (Retd.) dated 7.11.2009 that huge amount of money in the aforesaid bank account "Controller of Examinations, North Bengal University" have been irregularly spent causing thereby a huge loss to University Fund and Whereas an FIR has been lodged bearing Case no. 67/2010 dated 30.3.2010 and G.D. no. 2055/10 dated 30.3.2010 with the Matigara Police Station for investigation into the matter of misspending the huge amount of money of the University Fund out of the aforesaid Bank Account, which was solely operated by Dr. Dilip Kumar Sarkar, in his official capacity during the aforesaid period from 1.7.2000 to 27.11.2007 and thereby causing wrongful loss to University of North Bengal and which involves criminal breach of trust as a public servant and Whereas in contemplation of disciplinary proceedings to be initiated against Dr. Dilip Kumar Sarkar, for allegedly committing grievous misconduct relatable to the findings and conclusions of the aforesaid three reports and 3 Whereas in exercise of the powers conferred upon me under North Bengal University Act, 1981, Dr. Dilip Kumar Sarkar, Registrar is hereby placed under suspension in terms of Clause 27 of the University Services (Classification, Control and Appeal) Rules 1975, with immediate effect and During the period of suspension Dr. Dilip Kumar Sarkar will be entitled to get subsistence grant and other allowances in terms of the aforesaid Service Rules."
2. This order has been challenged mainly on the ground of non-application of mind and non-disclosure of reasons. The order of suspension records that the impugned order was passed in terms of Clause 27 of the University Services (Classification, Control and Appeal) Rules 1975. The said clause empowers the appointing authority or any authority empowered by the Executive Council of the University to place any employee of the university under suspension where a disciplinary proceeding or departmental enquiry against him is contemplated or is pending or where a case against him in respect of any criminal offence is under investigation or trial. Jurisdiction of the Vice-Chancellor (respondent no. 3) to exercise power under Rule 27 was questioned on behalf of the petitioner. In course of hearing, Mr. Sengupta learned Counsel for the petitioner argued that in respect of Registrar of the University, it was the Executive Council who were the appointing authority and there was no authorisation or delegation of power to the respondent no. 3 as per the said to enable him to exercise power under the said Rule. This issue was examined by this Court at the time of consideration of the petitioner's case for interim order, when learned Counsel for the respondents 4 submitted that source of such power could be traced to Section 10(6) of the North Bengal University Act, 1981 (the Act). Mr. Saktinath Mukhopadhyay, learned Senior Counsel appearing for the respondents however has submitted at the final stage of hearing of this case that the impugned order was issued in terms of Section 10(6) of the Act, 1981. In this judgment, I shall accordingly test the legality of the order treating the same to be an order issued under Section 10(6) of the Act. The mere fact that in the order itself it has been recorded that the same was being passed under Rule 27 would not per se vitiate the order if the power or jurisdiction to pass such order can be traced to any other provision of law.
3. Section 10 of the Act deals with powers and duties of the Vice-Chancellor and sub-section (6) of Section 10 vests in such authority certain emergency powers. This provision stipulates:-
"The Vice-Chancellor may take on behalf of the University such action as he may deem expedient in any matter which, in his opinion, is either urgent or of an emergent nature and shall report the same for confirmation at the next meeting of the authority or body which in the ordinary course, would have dealt with the matter:
provided that if the action taken by the Vice-Chancellor is not approved by the authority or body concerned, the matter shall immediately be referred to the Chancellor whose decision thereon shall be final."5
4. It has been contended on behalf of the petitioner that there was no urgent or emergent situation which warranted passing of the order of suspension by the respondent no. 3, as under ordinary circumstances such power was to be exercised by the Executive Council only. The case of the petitioner is that the respondent no. 3 never applied his mind for the purpose of formation of opinion as to whether any situation of urgent or emergent nature was there warranting exercise of such emergency power. The other main ground on which the impugned order has been challenged is that instead of passing the order on application of his own mind, the respondent no. 3 had passed the order on external dictat. Argument of the petitioner on this ground has been that instead of applying his own mind, the respondent no. 3 acted as per the direction of the learned Chancellor in this matter.
5. When this writ petition was originally moved I had passed an interim order on 13 May 2010, holding:-
"On the aspect of balance of convenience, the main apprehension of the university is that the petitioner may influence other staff of the university if he is permitted to discharge his duties. But that apprehension has not been expressed in the order of suspension. The order of suspension narrates the allegations in relation to misuse of funds from the bank account of the controller of examinations. First Information Report in this regard was lodged on 30th March 2010. About a month and a half has lapsed since then. The petitioner has made out a very strong case for quashing the order at this stage.6
In these circumstances, in my view balance of convenience or inconvenience cannot be held to be in favour of the authorities, as the very foundation of the order appears to be weak at this stage. The consequence flowing from such an order of suspension cannot be allowed to be sustained on the apprehension which I have indicated in the earlier part of this order. I accordingly stay the operation of the order of suspension, with a condition that the writ petitioner shall not in any way access any of the records of Controller of the university and shall not exercise directly or indirectly any influence over any staff of the university which would tend to prejudice the investigation. Affidavit-in-opposition may be filed by 21 June 2010 as prayed for by Mr. Roy; Reply thereto, if any, may be filed by 30 June 2010. Let this matter appear in the list on 1 July 20120 under the heading "For Orders".
6. Under ordinary circumstances, I would have avoided making reference in the final judgment to an order passed by me at the interim stage as at that stage such order is passed on prima facie appreciation of the strength or weakness of a case. In this proceeding however, reference to the interim order becomes necessary because this order was appealed against by the respondents and an Hon'ble Division Bench of this Court hearing the appeal passed certain directions which have bearing on adjudication of the present proceeding at the final stage. The appeal of the respondents, which was registered as AST 167 of 2010, was disposed of by an Hon'ble Division Bench on 20 May 2010, with the following direction:-
7
"Instead of hearing the stay application, we have taken up the appeal itself for hearing by treating the same as on day's list. This appeal is directed against the interim order dated 13th may, 2010 of the learned Single granting interim stay against the operation of the order of suspension of the respondent no. 1 herein/writ petitioner subject to a condition that the writ petitioner shall not in any way access any of the records of the Controller of the University and shall not exercise directly or indirectly any influence over any staff of the university which would tend to prejudice the investigation. The writ petitioner pending before the learned Single Judge challenges the order of suspension pending the enquiry/investigation passed by the Governor and Chancellor of University of North Bengal of 29th march, 2010 (Annexure "P-6"). The learned Single Judge has granted interim stay on the ground that the power to suspend the Registrar is vested in the Executive Council of the University and, therefore, the impugned order of suspension is without any jurisdiction. Learned counsel for the appellant university submits that in view of the different opinions expressed at the meeting of the Executive Council on 8th March, 2010, the Vice Chancellor referred the matter to the Chancellor along with the report of the Chartered Accountant and the report of the I.C.S. and the legal opinion of the learned Advocate General of the State along with the minutes of the Executive Council under Section 10(3) of the North Bengal University Act, 1981 to the Chancellor for necessary direction in the matter. After considering all the relevant facts, the Chancellor has advised the Vice Chancellor to follow the opinion of the learned Advocate General in respect of lodging of F.I.R. against the writ petitioner and also to ensure initiation of proceeding including suspension thereof and to see that the writ petitioner should have no responsibility in respect of function of the university. It is submitted that the learned Single Judge ought to have held that the balance of convenience was in favour of the University 8 and against the writ petitioner because the enquiry/investigation would be hampered if the writ petitioner continues to hold the office of Registrar, who is the Chief Executive Officer of the University. On the other hand, the learned counsel for the writ petitioner has supported the order of the learned Single Judge and submitted that sufficient safeguards have been imposed by the learned Single while granting interim stay of the order of suspension.
We have heard the learned counsel for the parties, but since the writ petition is pending before the learned Single Judge, we do not propose to express any opinion on the merits of the controversy between the parties. We are of the view that since the writ petition is to be listed before the learned Single Judge on 1st July, 2010, the interest of justice would be served if the following interim arrangement is made till the matter is listed before the learned Single Judge on 1st July, 2010.
1. The writ petitioner shall proceed on leave till 30th June, 2010 and the concerned authority shall grant such leave. If there is no leave to the credit of the writ petitioner, the same shall be granted as special leave.
2. By 30th June, 2010, the Executive Council shall consider the question, whether the writ petitioner should be placed under suspension;
3. If the Executive Council decides to place the writ petitioner under suspension, the petitioner shall remain under suspension as per such decision;
4. If the Executive Council decides not to suspend the writ petitioner from service, the petitioner shall be reinstated in service without prejudice to any enquiry/investigation, which may be pending against the writ petitioner;
5. In case the writ petitioner ultimately succeeds at the hearing of the petition, it will be open to the learned Single Judge to grant 9 appropriate reliefs including a direction that the period during which the petitioner had to remain under leave by virtue of the order being passed today, the petitioner shall not be put any disadvantages and shall be treated as on duty for all purposes.
With the above observation, the appeal is disposed of. The connected application for stay is also disposed of."
7. The appellants (being the respondents in this proceeding) thereafter applied for review of the order passed by the Appellate Bench, which was registered as AST 412 of 2010. The review petition was disposed of on 24the June 2010, and it was held by the Hon'ble Appellate Bench:-
"This is an application for review of our order dated 20th may, 2010 passed in A.S.T. 167 of 2010 by which we had given certain directions in the matter in respect of the order dated 30th March, 2010 by which the writ petitioner (respondent herein) was ordered to be suspended from service by the Vice-Chancellor of the North Bengal University. Mr. Mukherjee, learned counsel for the applicant University has submitted that direction No. 4 was given on the premise that the decision of the Executive Council in the matter of suspension of the writ petitioner would be final. However, our attention is invited to the provisions of section 10, particularly proviso to sub-section (6) of section 10 of the North Bengal University Act. Sub-section (6) with the proviso reads as under:
"The Vice-Chancellor may take on behalf of the University such action as he may deem expedient in any matter which, in his opinion, is either urgent or of an emergent nature and shall report the same for confirmation at the next meeting of the authority or body which in the ordinary course, would have dealt with the matter.10
Provided that if the action taken by the Vice-Chancellor is not approved by the authority or body concerned, the matter shall immediately be referred to the Chancellor whose decision thereon shall be final."
It is submitted that since attention of this Court was not invited to the proviso to sub-section (6), Court had given direction No. 4. But in view of the clear statutory provision requiring the Vice-Chancellor to refer the matter to the Chancellor in case of difference of opinion between Vice-chancellor and the Executive Council, the direction No. 4 needs to be recalled.
On the other hand, the learned counsel for the writ petitioner has submitted that the provisions of sub-section (6) are not applicable in the facts of the instant case.
Having heard the learned counsel for the parties, we are of the view that we did not express any opinion on the controversy sought to be raised herein. As the writ petition is still pending before the learned Single Judge, in our view the interest of justice will be served if direction No. 4 in our order dated 20th may, 2010 is recalled and it is recalled and the order requiring the University to permit the writ petitioner to remain on leave up to 30th June, 2010 is modified to permit the writ petitioner to remain on leave up to 10th July, 2010 and it is directed that the University will permit the writ petitioner to remain on leave till 10th July, 2010.
In the meantime, affidavit in opposition to the writ petition shall be filed by 28th June, 2010. Reply, if any, shall be filed by 2nd July, 2010. Let the writ petition be listed before the learned Single Judge on 5th July, 2010.
The learned Single Judge is requested to take up the writ petition for expeditious hearing, as early as possible on and from 5th July, 2010 and hear the matter on priority basis. This request is made in view of 11 the assurance coming from the learned counsel for both the parties that no adjournment will be sought for.
It will be open to the learned Single Judge to pass appropriate orders regarding extension of the period of leave or otherwise. It is clarified that we have not gone into the merits of any of the rival contentions and the learned Single Judge will be at liberty to decide the matter in accordance with law without being influenced by any observations made in our order dated 20th May, 2010 and this order.
The review application accordingly stands disposed of."
8. After disposal of the review petition, the Executive Council considered the matter in their 256th meeting held on 23 June 2010, and took the following decision:-
"Resolved that in view of the fact that highest number of members (four) of the Executive Council did not approve the action for placing Dr. Dilip Kumar Sarkar, Registrar and the then Controller of Examinations, University of North Bengal under suspension vide order no. F. 39/VC/10/Sec/58 dated 30.3.10 under Section 10(6) of the NBU Act, 1981 issued by the Vice-Chancellor, University of North Bengal, the entire matter along with the minutes of meeting shall immediately be referred to the Hon'ble Chancellor, University of North Bengal, whose decision shall be final in this regard as per provision of Section 10(6) of the NBU Act, 1981."
9. The main case of the petitioner, argued by Mr. Partha Sarathi Sengupta assisted by Mr. Soumya Majumdar learned Counsel is that the order of suspension, which has been passed in purported exercise of power under Section 12 10(6) of the Act suffers from a fundamental defect. There is no indication in the order that there was formation of opinion by the respondent no. 3 that any urgent or emergent situation had arisen which would have empowered him to assume emergency power for issuing the order of suspension. He relied on a decision of the Hon'ble Supreme Court in the case of Hukam Chand Shyam Lal. Vs. Union of India (AIR 1976 SC 789) and also a judgment of an Hon'ble Division Bench of this Court in the case of (M.A.T. No. 2631 of 2007 with W. P. No. 7486(W) of 2007) Reserve Bank of India & Ors. Vs. Mihir Chakraborty & Ors.. The third case was relied on by Mr. Sengupta on the same point was a decision of an Hon'ble Single Judge of this Court in the case of Sakila Begum Vs. State of West Bengal [2006(3)Cal LT 133].
Relying on these authorities, he submitted that an order of suspension has serious consequence on the career of an employee, and has adverse civil consequence. In view of this, the authority issuing such order has to apply his mind before issuing such order and ensure that established principles of natural justice are adhered to. On this issue, he has relied on a decision of the Kerala High Court in the case of N. Subramomian Vs. State of Kerala [1973(ii) LLJ 156]. In this judgment, it has been held:
"10. Although suspension is not one of the punishments narrated in Rule 11 of the Kerala Civil Services (Classification, Control And Appeal) Rules, an order of suspension is not to be lightly passed against a Government servant, for the reality cannot be ignored that an order of suspension brings to bear on the Government servant 13 consequences far more serious in nature than several of the penalties made mention of in Rule 11. It has a disastrous impact on the fair name and good reputation that may have been earned and built up by a government servant in the course of many years of service. The damage suffered by the Government servant is largely irreversible because the denigration and disgrace visited on him by the order of susp0ension is seldom wiped out by his being reinstated in service. Hence it is imperative that the utmost caution and circumspection should be exercised in passing orders of suspension under Rule 10 resulting in such grave consequences to the Government servant concerned. It is also necessary to remember that the power of suspension is to be sparingly exercised and that is not meant to be used as a mode of giving expression to any displeasure felt by the appointing authority or the Government in respect of any act of commission or omission on the part of the officer."
10. The writ petitioner, on merit, has denied his complicity in any illegal acts causing loss to the university fund. On the aspect of allegations of irregular spending, it has been submitted that those allegations relate to a period between the years 2000 and 2007 and the reports which were considered by the respondent no. 3 were submitted in the years 2008 and 2009. Such allegations, it has been argued on his behalf, did not warrant exercise of emergency power by the respondent no. 3.
11. In his affidavit-in-opposition affirmed on 28 June 2010, the main reason which has been attributed to for exercise of emergency power is action of police 14 authorities in effecting search and seizure of certain documents in pursuance of lodging of First Information Report (F.I.R.) on 30 March 2010 itself, being the date on which the order of suspension was issued. On the affidavit, which has been affirmed by the respondent no. 3 for self as well as on behalf of the University and its Executive Council, it has been submitted on behalf of the petitioner that the respondent no. 3 has no authority to affirm the affidavit on behalf of the other two respondents. In this proceeding however 1 do not think that this issue requires to be addressed to as the allegations of the petitioner are directed against the respondent no. 3 and for adjudication of this writ petition, I shall have to examine the response of the respondent no. 3 only in the affidavit. Mr. Sengupta has also disputed the assertion of the respondent no. 3 that the documents were seized from the university premises or the office of the respondent no. 3, which impression has been given in paragraph 4(b) of the affidavit. The case of the petitioner is that the respondent no. 3 had lodged the complain himself and relying on the copy of the seizure list, it was submitted on his behalf that seizure was effected at the police station itself, the documents having been carried there. But this issue raises a factual controversy, and I do not think that issue can be resolved in this proceeding.
12. It has been submitted by Mr. Mukhopadhyay that in view of the pending criminal investigation, on applying his independent mind, the respondent no. 3 thought it was expedient to take immediate steps on behalf of the University and accordingly issued the order of suspension in question. The other factors leading 15 to passing of the impugned order are broadly reflected in the order of suspension itself, being three reports on audit indicating huge amount of money in the bank account "Controller of examinations North Bengal University" have been irregularly spent. The respondent no. 3 had obtained the opinion of the learned Advocate General, and as it appears from his affidavit, he had forwarded the reports along with opinion of the learned Advocate General of the State to the learned Chancellor of the University.
13. The OSD and EO, Special Secretary to the Government of West Bengal had communicated the advise of the learned Chancellor of the University by a letter dated 29 March 2010. It has been stated in this communication, a copy of which has been marked as "P18" to the affidavit-in-reply filed on behalf of the petitioner:-
"Dear Sir, Kindly refer to your confidential letter dt. 11.3.2010. The matter has been placed before the Governor & the Chancellor.
The Governor & Chancellor, University of North Bengal has gone through all the papers and reports and advised the Vice Chancellor to follow the Ld. Advocate General's legal opinion in respect of lodging FIR against the concerned officials and Dr. D. K. Sarkar, present Registrar, to ensure initiating of proceedings including suspension thereof; and also to see that Dr. Sarkar should have no responsibility for any of the functions of the University.16
Kindly send a compliance report within tomorrow for information of the Governor and Chancellor."
14. Mr. Mukhopadhyay has further argued that since the Executive Council under normal circumstances would have been the primary authority to consider the question as to whether an order of suspension was warranted or not, as per the provisions of Section 10(6) of the Act, the said order was required to be approved by the Executive Council. Since in this matter, the Executive Council has taken a view contrary to that of the respondent no. 3., he has submitted that the matter ought to be referred to the learned Chancellor in terms of proviso to Section 10(6) of the Act. It is his case that the order of suspension is no longer in operation as this order has merged with the order of the Executive Council.
15. On the question of formation of opinion, as I have observed earlier, in the order of suspension there is no reflection that the issuing authority had applied his mind and formed opinion that the matter was of urgent or of an emergent nature. In the affidavit-in-opposition, which has been affirmed by the learned Vice-chancellor, urgency of the matter has been sought to be justified on the ground that after the case was registered after lodging of the First Information Report, and there was seizure of certain documents, the respondent no. 3 (i.e. the Vice-chancellor), in view of such pending criminal investigation and seizure of the documents, upon applying his independent mind found it expedient to take immediate steps on behalf of the University and accordingly issued the order of suspension. In this affidavit, he has indicated that he lodged the Fist Information 17 Report, after considering the three reports on audit and other documents available with him. In paragraph 4[c] of the said affidavit it has been stated:
" I say that only thereafter the respondent no. 3 in view of such pending Criminal investigation and seizure of the documents as mentioned hereinabove after applying his independent mind thought it expedient to take immediate steps on behalf of the University and accordingly issued order of suspension in question assigning reasons as mentioned in the order of suspension itself as it was in the opinion of the respondent no. 3 was emergent in nature to facilitate the investigation and also for the interest of University and thereby the order of suspension in question was issued on that day. In the copy of the communication of the Acting Registrar it was duly mentioned about to report the same in the next meeting of the Executive Council."
16. The main question which falls for determination in this case is as to whether there was any necessity on the part of the respondent no.3 to indicate in the order impugned that he had applied his mind and formed opinion that there was urgent or emergent situation for exercising his impugned power under Section 10(6) of the Act to justify exercise of such emergency power. On behalf of the respondents it was argued that since the Executive Council has taken the decision to refer the matter to the learned Chancellor after disapproving the decision of the respondent no. 3, the order impugned stands merged with the decision of the Council. Accordingly, it was submitted that the question of testing the impugned order further on merit did not arise, and the issue ought to be decided by the learned Chancellor. But such a course was not directed by the 18 Hon'ble Division Bench and it was specifically observed by the Hon'ble Division Bench that this Court ought to decide the case on merit. I shall deal with this part of the argument of the respondents in later part of this judgment in greater detail. I shall first deal with the question of legality of the impugned order.
17. The case of the respondents on this point is the question as to whether an authority forms opinion as regards subsistence of emergency situation is beyond the scope of judicial review. If an authority exercises emergency power vested in it, then it would have to be inferred that condition precedent for exercise of such power stood satisfied. Next, it has been contended that it has been explained in the affidavit-in-opposition that there was proper formation of opinion on the part of the respondent no. 3. Thus, I will test next the question as to whether such disclosure in affidavit is sufficient to cure the defect in the event the stand of the respondents that such issue is outside the scope of judicial review is answered in the negative.
18. Mr. Mukhopadhyay has relied on two decisions of the Hon'ble Supreme Court in the cases of Union of India & Ors. Vs. Praveen Gupta & Ors. [1997(9) SCC 78] and Chameli Singh Vs. State of U.P. [(1996) 2 SCC 549]. These two authorities relate to acquisition of land under the Land Acquisition Act, 1894 in exercise of emergency power. Two other authorities relied on by him in support of his submission that the question as to whether situation existed for exercise of emergency power is outside the scope of judicial review are the decisions of the 19 Judicial Committee of the Privy Council in the case of Bhagat Singh Vs. Emperor (AIR 1931 PC 111) and a decision of an Hon'ble Single Judge of this Court in the case of Tulsidas Jewraj Vs. State of West Bengal (AIR 1952 Cal
912). In the case of Praveen Gupta & Ors. (supra), it has been held:
"It is now settled legal position that decision on urgency is an administrative decision and is a matter of subjective satisfaction of the appropriate Government on the basis of the material available on record. Therefore, there was no need to pass any reasoned order to reach the conclusion that there is urgency so as to dispense with the enquiry under Section 5-A in exercise of power under Section 17(4)."
19. Similarly in the case of Chameli Singh Vs. State of U.P. (supra), it was held:-
"It is settled law that the provision of urgency formed by the appropriate government to take immediate possession, is a subjective conclusion based on the material before it and it is entitled to great weight unless it is vitiated by mala fides or colourable exercise of power."
20. The judgment of this Court in the case of Tulsidas Jewraj (supra), also relates to land acquisition, but under a different statute, West Bengal Land Development and Planning Act, 1948. In this judgment also, it has been held, referring to an earlier decision of this Court in C. R. No. 1409 of 1951 (Naba Kumar Seal Vs. State of West Bengal) that the opinion of the Government as to the urgency cannot be questioned and is not justiciable in a Court of Law. 20
21. Exercise of emergency power under legislations providing for acquisition of land by the State is under the power of eminent domain, which on many occasions prevail over challenge to such action on the ground of violation of Fundamental or other Constitutional rights of individuals, the latter yielding to public good. This aspect was considered by the Hon'ble Supreme Court in the case of Chameli Singh (supra) itself, and it was held:
"18. In every acquisition by its very compulsory nature for public purpose, the owner may be deprived of the land, the means of his livelihood. The State exercises its power of eminent domain for public purpose and acquires the land. So long as the exercise of the power is for public purpose, the individual's right of an owner must yield place to the larger public purpose. For compulsory nature of acquisition, sub- section (2) of Section 23 provides payment of solatium to the owner who declines to voluntarily part with the possession of land. Acquisition in accordance with the procedure is a valid exercise of the power. It would not, therefore, amount to deprivation of right to livelihood. Section 23(1) provides compensation for the acquired land at the prices prevailing as on the date of publishing Section 4(1) notification, to be quantified at later stages of proceedings. For dispensation or dislocation, interest is payable under Section 23(1-A) as additional amount and interest under Sections 31 and 28 of the Act to recompensate the loss of right to enjoyment of the property from the date of notification under Section 23(1-A) and from the date of possession till compensation is deposited. It would thus be clear that the plea of deprivation of right to livelihood under Article 21 is unsustainable."21
22. The same principle of law, in my opinion would not be applicable in a dispute involving employer-employee relationship between an authority which is State as per Article 12 of the Constitution of India and a citizen. The employer in such cases does not have the overriding power of eminent domain and has to operate within the constitutional limitations and statutory restrictions.
23. In a case relating to exercise of similar power under Section 9(6) of the Calcutta University Act, 1979, Sakila Begum Vs. State of West Bengal (supra), an Hon'ble Single Judge of this Court examined the condition precedent for exercise of such power and held:-
"From a perusal of section 9(6) of the Act it is clear that power has been conferred upon the Vice-Chancellor to take action on behalf of the University another matter which 'in his opinion' is either urgent or of an emergent nature calling for immediate attention. However, power initiating such action there must be appraisal of facts and on subjective satisfaction there should be formation of belief for arriving on an opinion. Such exercise of formation of opinion must be on the basis of facts so that, if called for, it can be demonstrated or the records that there was a definite application of mind to justify that there indeed was an emergent or urgent has been necessitating action under Section 9(6) of the Act. The approach in such a situation must be judicious. That, in my view, is the purport of the words 'in his opinion' so that one may know the reasons that had prompted the Vice- Chancellor to initiate action in exercise of emergency powers conferred under the Act. In the absence of any record of formation of opinion, 22 action in exercise of powers conferred under the said sub-section can hardly be justified. In fact, the legislature had consciously used the words 'in his opinion' to check possible misuse or abuse of power."
24. In the case of Hukum Chand Shyamlal (supra), a Four Judge Bench of the Hon'ble Supreme Court, dealt with the issues of obtaining temporary possession of telephones installed in certain premises under the provisions of Section 5 of Indian Telegraphic Act 1885 and issue of disconnection of telephone under Rule 422 of the Indian Telegraph Rules 1951, in exercise of emergency powers. The Hon'ble Supreme Court examined the manner in which such power is to be exercised and held:-
"18. It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided, well be violative of the fundamental principles of natural justice. Now, in the present case, if the telephones of the appellants were to be disconnected on the ground of misuse, then they had to give, in consonance with the principles of natural justice, opportunity to the appellants to explain their conduct before taking action under rule 427 read with Rules 416 and 421. Resort to the wrong and more drastic course provided in Rule 422, on a ground which was not germane to an action under the Rule, vitiates the impugned order, particularly when it is manifest that in making the impugned order, the General Manager was influenced more by this 23 ground and less, if at all, by the existence of 'public emergency' certified by the Delhi Administration."
25. In a later judgment, in Bhikujibhai Vikhalbhai Patel Vs. State of Gujarat (AIR 2008 SC 1771), dealing with the question of modification of a development plan, which required formation of opinion by the authority under the relevant statute that modification of the draft development plan is necessary, it was held:-
"25. The formation of the opinion by the State Government is with reference to the necessity that may have had arisen to make substantial modifications in the draft development plan. The expression: "so considered necessary" is again of crucial importance. The term "consider" means to think over, it connotes that there should be active application of the mind. In other words the term "consider"
postulates consideration of all the relevant aspects of the matter. A plain reading of the relevant provision suggests that the State Government may publish the modification only after consideration that such modifications have become necessary. The word "necessary" means indispensable, requisite, indispensably requisite, useful, incidental or conducive; essential; unavoidable; impossible to be otherwise; not to be avoided; inevitable. The word "necessary" must be construed in the connection in which ft is used. (See-Advanced Law Lexicon, 3rd Edition, 2005; P. Ramanatha Aiyar)"
26. It was held in that judgment, formation of opinion by the State Government should be preceded by intense application of mind with reference to the material 24 available on record that it had become necessary to propose substantial modifications to the draft development plan. Thus, the law is clear on the point that if an authority is required to exercise an emergency power, and if the law postulates that such power is to be exercised upon formation of opinion that such emergency power is to be exercised, then such opinion has to be formed first before exercise of such power.
27. Now two questions arise in the facts of the present case. The first one is as to whether Court can enquire into the question as to whether such opinion has been formed at all or not. Secondly, if such opinion is formed, whether the fact that there was application of mind before formation of opinion or not ought to reflect in the order itself or it shall be automatically presumed that an authority vested with the power to exercise such emergency power had applied its mind before exercising such power. In the cases of Bhikujibhai (supra), Hukumchand (supra) and Sakila Begum (supra), the need of proper application of mind for the purpose of formation of opinion that a certain state of affairs as specified in the statute exists before exercise of power of special or extraordinary character by an authority has been emphasised. It automatically follows that in the absence of proper formation of opinion, any action taken in exercise of such extraordinary or emergency power would be invalid. A person aggrieved by any action taken in pursuance of such extraordinary power thus has a right to test if such power has been exercised in the manner prescribed in the statute or not. Thus, the issue of formation of opinion as regards existence of certain state of affairs, in the present 25 case being occurrence of an urgent or emergency situation, is a justiciable issue. Moreover, since power to suspend the Registrar of the University ordinarily vests with the Executive Council, and suspension order issued by the respondent no. 3 is a departure from the regular mode prescribed by the statute, such an order ought to be subjected to a deeper scrutiny by the Court.
28. In the case of Bhagat Singh (supra), the issue was whether the power of the Governor General under Section 72 of the Government of India Act to promulgate an ordinance in a state of emergency was in valid exercise of power or not. It was contended on behalf of the appellant that a state of emergency did not exist warranting exercise of such power. It was held:
"The petitioners ask this Board to find that a state of emergency does not exist. That raises directly the question who is to be the judge of whether a state of emergency exists. A state of emergency is something that does not permit of any exact definition. It connotes a state of matters calling for drastic action which is to be judged as such by someone. It is more than obvious that that someone must be the alone. Any other view would render utterly inept the whole provision. Emergency demands immediate action, and that action is prescribed to be taken by the Governor General. It is he alone who can promulgate the ordinance."
But this decision belongs to the third decade of last century, and scope of judicial review has advanced significantly since then. Now a Presidential proclamation under Article 356 of the Constitution of India is also subject to 26 judicial review, albeit on certain limited grounds. The ratio of this decision thus cannot insulate the impugned order from judicial review by this Court.
29. In my view, in the event there is an obligation on the part of the authorities to form an opinion on existence of certain state of affairs before exercising certain special power conferred on them, then it is also within the jurisdiction of the Court to subject any step taken in exercise of such power to scrutiny to find out as to whether such opinion has been formed or not. In this case, in the order impugned, there is no indication that the respondent no. 3 had examined as to whether there was a situation of urgent or emergent nature before issuing the order of suspension. The order of suspension contains allegations against the writ petitioner relating to a period when he worked as Controller of Examinations in the university from 1st April 2000 to 26th November 2007. The reports of the auditors from where the allegations of irregularities are alleged to have been detected were obtained between the months of October 2008 and November 2009.
30. Formation of opinion is a mental process. If a statute requires formation of opinion by certain authority before taking any step, then the authority concerned has to undertake the requisite degree of mental exercise before taking a decision and the fact that such exercise has been undertaken has to be disclosed in the order itself, as the issue as to whether certain state of affairs warranted exercise of emergency power is a justiciable issue. Such opinion must be formed prior to 27 issue of the order, and the order itself ought to record that this exercise has been undertaken. This becomes necessary because the statute itself requires, in this case, the respondent no. 3 to apply his mind before formation of opinion that such emergency situation exists for passing the interim order. Such disclosure also satisfies the requirements of the principles of natural justice, which postulates disclosure of reason in support of an act having adverse impact on the subordinate officer, or officer of a lower grade. This becomes the reason for issuing an order in exercise of emergency power.
31. In this case, the respondent no. 3 has sought to explain in his affidavit-in- opposition that it was lodging of the First Information Report and the search and seizure conducted in pursuance thereof gave rise to urgency. But I do not think such explanation in affidavit can cure the defect in the order. Such a course has been held to be unacceptable in the case of Mohindar Singh Gill Vs. Chief Election Commissioner, New Delhi. (AIR 1978 SC 851). In the case of Reserve Bank of India VS. Sri. Mihir Kumar Chakraborty & Ors. (supra) an Hon'ble Division Bench of this Court held:-
"In this present case, there is a statutory provision, which on the application of the Constitution Bench judgment Keshav Prasad Goenka and Ors. (supra) provides a protective umbrella by way of reasoned decision. Hence, we are of the view that assigning reason therefor for superseding a Board is a mandatory provision and if the same is not complied with, the action would be void ab-initio. Furthermore, as the power to exercise the statutory provision of Section 30(2) is with the 28 condition precedent of fulfillment of a situation, wherein an emergent decision is required to be taken, we are of the view that in the decision itself under Section 30(2), there should be disclosure of such a situation for which the Registrar exercised the power to dissolve the Board and to appoint the Administrator thereon. If in the decision itself, which has been notified, there is no such materials and no such disclosure of emergent situation, surely that will attract the principle of "non application of mind" and as such, said decision would be an arbitrary decision due to non-consideration and non-fulfillment of statutory provision of emergency situation."
In that judgment, the Hon'ble Division Bench was dealing with an order issued under Section 30(2) of the West Bengal Cooperative Societies Act, 1961 appointing a Board of Administrators upon dissolving the Board of Directors of a Cooperative Bank. In the order of suspension impugned in this petition, there is also no disclosure as to what were the precipitating factors which prompted the respondent no. 3 to take recourse to such emergency power. There is in particular no recordal of the fact that the respondent no. 3 was of opinion that the matter was of such urgent or emergent nature which required exercise of the emergency power for issuing the order of suspension. In my opinion, in the light of these facts, the impugned order cannot be sustained on its own strength.
32. But has subsequent events altered the character of the proceeding? The case of the respondents is that in pursuance of the direction of the Hon'ble Division Bench the issue was examined by the Executive Council, and the said order of suspension has merged with the order of the Executive Council and has 29 become non est. It is the submission of the respondents that the matter ought to be referred to the learned Chancellor in view of the provisions contained in proviso to Section 10(6) of the Act, as the Executive Council has not affirmed the decision of the respondent no. 3 and decided against suspension of the petitioner.
33. In the factual context of this proceeding, the Executive Council was the authority under normal circumstances to examine the question of suspension of the writ petitioner. In the event the decision of the Executive Council in its 256th meeting was in exercise of their regular power, then the question of referring the matter before the learned Chancellor would not have arisen. In the event, however, such reference to the Council was in terms of proviso to Section 10(6) of the Act, then the question would arise as to whether the matter should be referred now to the learned Chancellor or not, the course which the Executive Council themselves have resolved to pursue. The issue was referred to the Executive Council in terms of an order of Hon'ble Division Bench of this Court. The order of the Hon'ble Division Bench did not specify as to whether such reference to the Executive Council was in terms of proviso to Section 10(6) of the Act or not. In fact in the order of the Hon'ble Division Bench passed on 10th May 2010, it was directed that in the event the Executive Council did not decide to suspend the writ petitioner from service, the petitioner was to be reinstated in service without prejudice to any enquiry/investigation which may be pending against him. Thereafter the review petition was filed and the review petition was 30 disposed of modifying the order to the extent that instead of direction to the writ petitioner to join the post if the Executive Council decided in his favour, it was specified that he was to remain on leave upto 10th July 2010, and the matter was left to be decided by this Court. This arrangement has continued thereafter by order of this Court.
34. In the order passed on 20th May 2010, the Hon'ble Division Bench did not adjudicate the issue on merits. It was also specified in the said order that in the event the writ petitioner ultimately succeeded in the hearing of the writ petition it would be open to this Court to grant appropriate reliefs including a direction that the period during which the petitioner had to remain on leave, he should not be put to any disadvantage and shall be treated to be on duty for all purposes. In my opinion, in view of these directions and observations of the Hon'ble Division Bench, the order of suspension remains live and cannot be said to have been obliterated by or merged with the decision of the Executive Council taken in their 256th meeting.
35. The order of suspension thus is required to be tested on its own merit. The decision of the Executive Council was taken in this matter in pursuance of the direction of the Hon'ble Division Bench, and the decision of the Council cannot be said to have dissolved the order of suspension issued by the respondent no. 3. If the validity of the order was made dependent upon the decision of the Executive Council, and if the course prescribed in proviso to Section 10(6) was 31 contemplated, then the question of further hearing of the case on merit would not have arisen. But the Hon'ble Division Bench in the order passed on 20 May 2010 specifically observed that since the writ petition was pending before this Court, Their Lordships did not propose to express any opinion on merits of the controversy. The main writ petition was thus left to be decided on merits.
36. I have already held that the impugned order of suspension cannot be sustained in law. The jurisdiction of the Executive Council to exercise their power under Section 10(6) of the Act can subsist only if there is a subsisting order of the Vice-Chancellor in exercise of emergency power. If that order itself is found to be invalid, then the question of further examination of the order for approval or disapproval by the Executive Council cannot arise. In the instant case, thus, the foundation of the resolution of the Executive Council, taken as per direction of the Hon'ble Division Bench gets eroded. There cannot be any question of determining legitimacy of an order issued by a statutory forum with power similar to that of an appellate or revisional authority if the original order is quashed by a judicial decree, unless of course such judgment or decree of the Court is reversed by an Appellate forum.
37. So far as the present proceeding is concerned, since the order at the first instance is in my opinion not sustainable in law, the decision of the Executive Council in respect of the same order cannot place it on the track contemplated in Section 10(6) of the Act requiring its further reference before the learned 32 Chancellor. The judgment of the Hon'ble Supreme Court in the case of Ritesh Tewari & Anr. Vs. State of U. P. & Ors. [(2010) 10 SCC 677] is relevant on this point. In this judgment it has been held:-
"32. It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful in its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits."
38. I am not examining in this judgment the question as to whether the impugned order of suspension has been issued at the external diktat or not as in my opinion a decision on that issue is not necessary for adjudication of this writ petition. Since the order impugned did not record formation of opinion on the part of the respondent no. 3 that there was matter of urgent or emergent nature which required suspension of the writ petitioner in exercise of emergency power under Section 10(6) of the Act, I am of the view that the impugned order cannot be sustained in law. No further enquiry on the question of legality of the order is necessary in this proceeding. I also do not consider it necessary, for the same reason, to come to a finding on the question as to whether the opinion of the learned Advocate General was a valid ground for issuing the impugned order. The impugned order is accordingly quashed. The respondents shall permit the 33 petitioner to join duty. The entire period during which the writ petitioner enjoyed leave, he shall be treated to be on duty.
39. This order however, shall not prevent the Executive Council from reexamining the matter and they shall be at liberty to take appropriate decision taking into consideration the relevant factors pertaining to the subject of controversy. This order shall also not prevent the respondent no. 3 from further exercising his power under Section 10(6) of the Act concerning the petitioner if in his opinion there are grounds which may give rise to urgency warranting exercise of such emergency power. So far as the disciplinary proceeding against the writ petitioner is concerned, the same shall continue, if it has already not been concluded and shall be decided on its own merit.
40. The writ petition is allowed in the above terms, but without any order as to costs.
41. Let the original records be returned to the learned Advocate for the respondents.
42. Let an urgent Photostat certified copy of this judgment be supplied to the learned Advocate for the parties, if applied for, upon compliance with all requisite formalities.
34
(ANIRUDDHA BOSE, J.) Later:
Prayer is made for stay of operation of the judgment and order, which is opposed by the learned Counsel for the petitioner. However, considering the rival submissions on this point, there shall be a stay of operation of this judgment and order for a period of two weeks, in the same terms in which the interim order was continuing till now.
(ANIRUDDHA BOSE, J.)