Gujarat High Court
Adesh Pal vs University Grant Commissioner (Ugc) on 11 May, 2018
Author: C.L. Soni
Bench: C.L. Soni
C/SCA/17675/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17675 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 17679 of 2017
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ADESH PAL
Versus
UNIVERSITY GRANT COMMISSIONER (UGC)
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Appearance:
MS VYOMA K JHAVERI(6386) for the PETITIONER(s) No. 1
P B VELANI(7465) for the PETITIONER(s) No. 1
MR SHIRISH GOHIL, ASSTT GOVT PLEADER(1) for RESPONDENT No. 4
MR HRIDAY BUCH(2372) for the RESPONDENT(s) No. 2-3
MR MITUL K SHELAT(2419) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 11/05/2018
ORAL ORDER
1. These petitions are filed by one and the same petitioner under Articles 226 and 227 of the Constitution of India. In the first petition, following prayers are made in para 49:-
(A) YOUR LORDSHIPS be pleased to quash and set aside the order dtd. 6.9.2017 passed by the Hon'ble Gujarat Educational Institution Service Tribunal, Ahmedabad (University) [ANNEXURE-A] and thereby be pleased to allow the Misc. application No.4/2017 in Application No.144/2015 in the interest of justice.
(B) YOUR LORDSHIPS be pleased to quash and set aside the order dtd. 6.9.2017 passed by the Hon'ble Gujarat Educational Institution Service Tribunal, Ahmedabad (University) [ANNEXURE-A] and thereby direct the respondent to reinstate the petitioner on his original post with continuity of service and with full back wages in the interest of justice.
(C) YOUR LORDSHIPS be pleased to quash and set aside the order dtd. 6.9.2017 passed by the Hon'ble Gujarat Educational Institution Service Tribunal, Ahmedabad (University) [ANNEXURE-A] and thereby stay the implementation, operation and execution of the order dtd.
7.3.2015, [ANNEXURE-K], 9.3.2015 [ANNEXURE-L] and 22.12.2016 [ANNEXURE-B] in the interest of justice.
Page 1 of 19 C/SCA/17675/2017 ORDER(D) Pending hearing and final disposal of this petition, Your Lordships be pleased to stay the implementation, operation and execution of the order dtd. 6.9.2017 passed by the Hon'ble Gujarat Educational Institution Service Tribunal, Ahmedabad (University) [ANNEXURE-A] and thereby direct the respondents University to reinstate the petitioner on his original post with continuity of service and with full back wages in the interest of justice.
(E) ...."
2. In the second petition following prayers are made in para 49:-
(A) YOUR LORDSHIPS be pleased to quash and set aside the order dtd. 6.9.2017 passed by the Hon'ble Gujarat Educational Institution Service Tribunal, Ahmedabad (University) [ANNEXURE-A] and thereby be pleased to allow the Misc. application No.18/2017 in Application No.144/2015 in the interest of justice.
(B) YOUR LORDSHIPS be pleased to quash and set aside the order dtd. 6.9.2017 passed by the Hon'ble Gujarat Educational Institution Service Tribunal, Ahmedabad (University) [ANNEXURE-A] in Misc. Application No.18/2017 in application No.144/2015 and thereby stay the departmental inquiry No.1/2017 initiated against the petitioner by the respondent University in the interest of Justice.
(C) YOUR LORDSHIPS be pleased to quash and set aside the order dtd. 6.9.2017 passed by the Hon'ble Gujarat Educational Institution Service Tribunal, Ahmedabad (University) [ANNEXURE-A] and thereby stay the implementation, operation and execution of the order dtd.
6.9.2017 in the interest of justice.
(D) Pending the admission, hearing and final disposal of the present petition, Your Lordships be pleased to stay the implementation, operation and execution of the order dtd. 6.9.2017 passed by the Hon'ble Gujarat Educational Institution Service Tribunal, Ahmedabad (University) [ANNEXURE-A] and stay the proceedings of departmental inquiry against the present petitioner and to stay the notice/ letter dated:17.04.2017, No.Mehkam/2615/2017 and Notice/ Letter Dated 03.04.2017, No. Mehakam/2919/2017 in the interest of justice.
(E) Your Lordships may be pleased to stay the implementation, operation and execution of the order dtd. 6.9.2017 passed by the Hon'ble Gujarat Educational Institution Service Tribunal, Ahmedabad (University) and thereby be pleased to allow the application No.18/2017 filed by the petitioner in Hon'ble Gujarat Educational Institution Service Tribunal, Page 2 of 19 C/SCA/17675/2017 ORDER Ahmedabad in the interest of justice.
(F) ...."
3. The petitioner is the professor of the respondent No.2 University. He came to be suspended by order dated 7.3.2015 issued by the Vice Chancellor pursuant to the decision taken by the Executive Council of the respondent No.2 University to suspend the petitioner. He has challenged such order by filing Appeal No.7 of 2015 before the Gujarat Education Institution Services Tribunal (the Tribunal), which is referred as new Application No.144 of 2015. Such application has been pending as on today. Pending such application, the petitioner made representation to the Vice Chancellor to withdraw inquiry against him and to revoke his suspension. On receipt of such representation, the Vice Chancellor constituted Review Committee on 26.7.2016 which gave its report dated 30.7.2015 with following recommendations:-
RECOMMENDATIONS:
(1). Dr. Adesh Pal's suspension order No.20/2015, vide Letter No./Mahe/Suspension/8117/2015, Dated 07.03.2015 should be immediately withdrawn declared as null and void ab initio Dr. Pal's suspension must be revoked with immediate effect and he should be allowed to resume is duty immediately.
(2). He should be considered as if not suspended at all. And all the benefits and nominations as on 6.3.2015, a day before his suspension on 7.3.2015, and all other benefits falling during the period of his suspension should be given to him immediately.
(3). Once his suspension order is revoked, he shall continue as Head of the Department of English, and Director of the UGC Area Study Centre of India Diaspora and Cultural Studies as he was before his suspension on 6.3.2015.
(4). He should be paid full salary for the period of his suspension.
Hundred percent salaries minus the amount of subsistence allowances paid to him during the period of suspension should be paid to him in the form of arrears at the earliest.
(5). Or any other benefit due to him should be given to him.
(6). Since the Review Committee is unanimous and fully satisfied Page 3 of 19 C/SCA/17675/2017 ORDER with each and every reply of Dr. Pal, and accepts his replies to the issues raised, and comes to the conclusion that no charge or issue is legally tenable and proved against Dr. Adesh Pal, and declares his suspension invalid and null and void, there is no provision, or requirement for any inquiry committee. Therefore, the inquiry committee may be informed accordingly.
(7). The Hon'ble Gujarat Universities Services Tribunal, Office of Hon'ble Governor as the Chancellor of the University and the Department of Education, Government of Gujarat should be informed accordingly.
(8). Having gone through the relevant documents and evidences carefully, it is evident that the whole case is clear example of malafied.
It appears that based on the above report of the Review Committee, the petitioner filed one Misc. Application No.55 of 2016 before the Tribunal seeking implementation of the report of the Review Committee and simultaneously approached this Court by filing Special Civil Application No.15956 of 2016. This Court did not entertain the said petition, leaving it open to the petitioner to make request to the Tribunal for expeditious hearing of his application or to make representation to the second and third respondents. The application filed by the petitioner before the Tribunal for implementation of the report of the Review Committee also came to be rejected by the Tribunal by order dated 3.10.2016. However, the In-charge Vice Chancellor implemented the recommendations of the Review Committee and permitted the petitioner to resume his duty vide his order dated 16.12. 2016. But the new Vice Chancellor cancelled such order and continued the suspension of the petitioner vide order dated 22.12.2016. The petitioner therefore filed Misc. Application No.4 of 2017 in his main application before the Tribunal with following prayers:-
(a) Your Honour be pleased to admit and allow this Application and be further pleased to pass appropriate direction to the Respondent University to not to resist the present applicant while resuming his services as Head of the Department of English and Director of the UGC Area Study Centre of Indian Diaspora and Cultural Studies, in the interest of Justice.Page 4 of 19 C/SCA/17675/2017 ORDER
(b) Pending hearing and final disposal of the old appeal No.07 of 2015 (New Application No.144 of 2015), Your Honour may be pleased to direct the respondents to reinstate the applicant on his original post with continuity of service and with full back wages forth with in interest of the justice.
(c) Pending the admission, hearing and final disposal of old appeal No.07 of 2015 (New Application No.144 of 2015), Your Honour may be pleased to suspend the further execution, implementation and enforcement of the orders dated 07.03.2015 at ANNEXURE-J passed by the respondent No.1 and also the order dated 09.03.2015, passed by the respondent No.3 In-charge Registrar which are at Annexure-K & L and A/1 and further be pleased to direct the respondents, the respondent No.2 and 3, their agents and servants no to obstruct the applicant in discharging duty as professor in subject of English and also as Director of Indian Diaspora and Cultural Studies.
(d) .........."
4. It appears that the Executive Council of the university in its meeting dated 31.01.2017 ratified the action of the new Vice Chancellor and resolved not to accept the report of the Review Committee on finding that its appointment was illegal and whole procedure followed by it was not according to the rules and it decided to appoint new Inquiry Officer and to continue with the departmental inquiry against the petitioner. The petitioner was then issued notices to attend the departmental inquiry and it was at that stage, the petitioner moved another application, being Misc.
Application No.18 of 2017 in his main application pending before the Tribunal, wherein the first prayer made was similar to the first prayer made in his earlier Misc. Application No.4 of 2017 and two more prayers made were to stay the notices issued to him to attend the departmental inquiry.
5. The Tribunal rejected first application vide order dated 6.9.2017 mainly on the reasoning that the Review Committee has no power to declare the suspension as illegal and to cancel the suspension of the petitioner from its original date and that the Page 5 of 19 C/SCA/17675/2017 ORDER Review Committee has no power to review the order of the Executive Council of the University and to examine the legality of the decision of the Executive Council. Against this order of the Tribunal, the first petition is filed.
6. By order of even date, the Tribunal rejected second application also mainly on the reasoning that the departmental inquiry has already commenced and the petitioner will have fair opportunity to present his case in the inquiry and the grievance of the petitioner for his continuous suspension even after expiry of 90 days has no connection with departmental inquiry held against him. It is against this order, the petitioner has filed second petition.
7. Learned advocate Ms. Jhaveri appearing for the petitioner submitted that under the Hemchandracharya North Gujarat University Act, 1986 (the Act), the Vice Chancellor is the highest executive officer and is responsible to control and supervise all acts and affairs of the University. Ms. Jhaveri submitted that the Vice Chancellor having considered the grievance raised by the petitioner in his representation concerning continuous suspension and the departmental inquiry, when decided to appoint Review Committee, it was in exercise of the powers vested with him under Section 11 of the Act. Mr. Jhaveri submitted that when the Review Committee was validly appointed by the Vice Chancellor, it was well within the powers of the Review Committee to revoke the suspension order and to allow the petitioner to resume his duty and to come to the conclusion that no charge or issue was legally tenable and such decision of the Review Committee was rightly accepted and acted upon by the In-charge Vice Chancellor. Ms. Jhaveri submitted that for no good reason, the order passed by the In-charge Vice Chancellor was cancelled by new Vice Chancellor. Ms. Jhaveri submitted that the Tribunal has failed to exercise the Page 6 of 19 C/SCA/17675/2017 ORDER jurisdiction vested with it, in as much as, in connection with the main grievance against the suspension pending before it, when the petitioner filed applications seeking reliefs for reinstatement and for staying the departmental inquiry based on the decisions of the Review Committee, there was no question of examining any issue as regards the power of the Review Committee. Ms. Jhaveri submitted that though general powers for taking decision concerning the discipline of the staff of the University vest with the Executive Council, however the Vice Chancellor being principal executive officer of the University is empowered to take decision in connection with the discipline of the staff of the University when exigency warrants to take such decision and that is what the Vice Chancellor did by appointing the Review Committee and to implement the decision of the Review Committee. Ms. Jhaveri therefore urged to entertain the petitions to interfere with the impugned orders made by the Tribunal.
8. Learned advocate Mr. Buch appearing for the respondent Nos.2 and 3 submitted that power to suspend, terminate or to take any disciplinary action wholly vests with the Executive Council and the Vice Chancellor as principal executive of the University is legally bound to execute and implement the orders/ decisions of the Executive Council. Mr. Buch submitted that when the Vice Chancellor is responsible to implement the decisions of the Executive Council, he cannot pass any order or take any decision to nullify the decisions of the Executive Council. Mr. Buch submitted that after the petitioner was placed under suspension pursuant the decision of the Executive Council, any subsequent decision concerning the suspension of the petitioner could be taken only by the Executive Council and if the Vice Chancellor was of the opinion that the suspension of the petitioner was required to be reviewed, it was required of him to place the matter before the Executive Page 7 of 19 C/SCA/17675/2017 ORDER Council. Mr. Buch submitted that under the Act, the Vice Chancellor is to function as executive officer and not like executive authority. He submitted that while functioning as executive officer, if the Vice Chancellor is to take any decision in emergent situation, he can exercise powers limited to the arena as provided by Section 11(4) of the Act but he has no power to set at naught the decision of the Executive Council. Mr. Buch submitted that the Vice Chancellor has also no power or authority to appoint any committee concerning the acts and affairs of the University which include the matter concerning the discipline of the staff of the University. Mr. Buch submitted that as per Section 60 of the Act, only the authorities mentioned in Section 15 of the Act can appoint any committee or committees from amongst the members of any such authorities. Mr. Buch submitted that the Vice Chancellor is not the authority as contemplated in Section 60 of the Act and therefore, he had no power to appoint Review Committee. Mr. Buch submitted that when the Vice Chancellor had no power to appoint the Review Committee, the decisions taken by the Review Committee could be said to be without authority of law and invalid and could not be allowed to be implemented or acted upon. Mr. Buch submitted that the Review Committee was appointed by the Vice Chancellor without consultation and without knowledge of Executive Council and its decisions were not made known to the Executive Council before implementing the same. Mr. Buch submitted that though in the formation of the Review Committee, one Dr. Kishor H. Chikhaliya was appointed as Chairman of the Review Committee, however such formation was later on secretly changed as per the whims of the then Vice Chancellor and the Review Committee was allowed to be headed by another member who was never appointed as Chairman. Mr. Buch submitted that the meeting of the Review Committee was called on 30.7.2016 and on the very date, the Review Committee of Page 8 of 19 C/SCA/17675/2017 ORDER two members rendered its decision in absence of Mr. Chikhaliya who was originally appointed as Chairman, which clearly appeared as predetermined and preplanned decision just to help the petitioner. Mr. Buch submitted that even otherwise the Review Committee had no power to declare the decision of the Executive Council as regards suspension of the petitioner as illegal, invalid and void and to hold that the charge against the petitioner was not legally tenable. He submitted that the Review Committee had also no power to declare that the whole case against the petitioner was an example of malafide. Mr. Buch submitted that since the appointment of the Review Committee and its decisions to revoke the order of suspension by declaring the same as illegal were without authority of law, the decision of the In-Charge Vice Chancellor to implement the decisions of Review Committee was rightly cancelled by the new Vice Chancellor and the Executive Council since ratified such decision of the new Vice Chancellor and decided to continue the departmental inquiry against the petitioner, the Tribunal could not be said to have committed any error in not accepting the prayers made by the petitioner in his two different applications. He therefore, urged to dismiss both the petitions.
9. Learned Assistant Government Pleader Mr. Shirish Gohil appearing for the respondent No.4 submitted that since the Executive Council has decided not to accept the report of the Review Committee and to continue the departmental inquiry against the petitioner, the Court may not interfere with the impugned orders passed by the Tribunal in exercise of the powers under Articles 226 and 227 of the Constitution of India.
10. The Court, having heard learned advocates, finds that as per Section 8 of the Act, the Vice Chancellor is one of the officers of the University and as provided in Section 11(1), the Vice Page 9 of 19 C/SCA/17675/2017 ORDER Chancellor is the Principal Executive and Academic officer of the University. He is also ex-officio Member and Chairman of the Executive Council. The Executive Council is one of the authorities of the University as provided in Section 15 of the Act. Under Section 20 of the Act, the Executive Council is conferred with different powers which include the power to appoint academic, administrative and other staff of the University, to fix their emoluments and to define their duties and conditions of their service and to take disciplinary action against them. The power to take disciplinary action includes the power to dismiss, suspend, and impose any punishment on the persons in the service of the University or teachers of the University. Section 11(5) provides that the Vice Chancellor is legally bound to give effect to the orders of the Executive Council regarding appointment, dismissal, suspension and punishment of the persons in service of the University or teachers of the University. He is also responsible for discipline of the University in accordance with the Act, Statute and the Ordinance framed under the Act. As could be seen from the copy of the order of suspension dated 7.3.2015 annexed with the petitions, the petitioner is suspended by the Vice Chancellor following the decision taken by the Executive Council through the resolution passed by it. Thus, it could be said that as required by Section 11(5) of the Act, the Vice Chancellor gave effect to the order of the Executive Council of suspending the petitioner. The petitioner had challenged the order of suspension dated 7.3.2015 before the Tribunal. However, pending such challenge, the petitioner made representation to the Vice Chancellor requesting to revoke his suspension and to withdraw the inquiry initiated against him and the Vice Chancellor, on receipt of such representation, appointed the Review Committee of three members, namely Dr. Kishor Chikhaliya, Dr. Mallika Shrivastava and Dr. H.S. Kher. From three members, Dr. Kishor Chikhaliya was to head the committee Page 10 of 19 C/SCA/17675/2017 ORDER as Chairman of the committee. However, such power to appoint the committee was not exercised in concurrence with the Executive Council nor such appointment of Review Committee was approved by the Executive Council. The Vice Chancellor, being legally responsible to give effect to the orders/ decisions of the Executive Council would not exercise the powers which are within the domain of the Executive Council. The Vice Chancellor would also not meddle with such powers through any other body like the Review Committee to decide whether the decision taken by the Executive Council should be allowed to continue or revoked. Therefore, when the petitioner made representation voicing grievance against his continuous suspension and the inquiry, it was required of the Vice Chancellor to place the representation before the Executive Committee for its consideration. But, instead, he decided to appoint the Review Committee which power he does not have. Section 11(6) provides that where the Vice Chancellor after making some inquiry deems it fit or is of the opinion that the execution of any order or resolution of any authority specified in or declared under Section 15 of the Act or doing of anything which is about to be done or being done, by or on behalf of the University is inconsistent with the provisions of the Act or of any Statute or Ordinance or is not in the interest of the University or is likely to lead to breach of peace, he may forward copy of the orders/ resolutions for reconsideration of the authority for being rescinded or reviewed or modified in the manner stated by him and on making such proposal, decision as per the procedure provided therein shall be taken. Therefore, it appears that if the Vice Chancellor is of the opinion that any order, decision or resolution is required to be reconsidered or modified, he is to follow proper procedure and will not unilaterally decide to appoint any committee for the purpose of rescinding or revoking the order or decision of the authority. Chapter-X of the Act provides for Page 11 of 19 C/SCA/17675/2017 ORDER appointment of different committees, like committee for selection of University teachers, examiner`s committee, inspection committee, college development committee and joint consultative committee. Section 60 of this very Chapter provides that any of the authorities of the University referred to in Section 15 of the Act may from time to time appoint such other committees, consisting of such persons from amongst its members as the authority thinks fit and may refer or entrust to any such committee for inquiry and report or for opinion on any of the matters dealt with by the authority and may at any time discontinue or alter the constitution of any such committee. From the provisions of Section 60 of the Act, it clearly appears that in respect of any matter to be dealt with by any authority of the University, it is that authority which has power to appoint any committee for inquiry or for its report or for opinion on any matter falling within the domain of such authority. Therefore, appointment of any such committee for any matter to be dealt with by any authority of the University by any person other than such authority, can be said to be without any authority of law and when appointment of any committee is without any authority of law, all decisions/ opinion of such illegally and unauthorizedly appointed committee would stand vitiated unless ratified by the concerned authority. As stated above, the Executive Council has resolved not to accept the report of the Review Committee as it was illegally appointed.
11. Learned advocate Ms. Jhaveri however submitted that as provided in Section 11(4) of the Act, the Vice Chancellor when finds that any immediate action is required, he is always empowered to take any decision concerning such immediate action being the principal executive of the University and he being the Chairman of the Executive Council and responsible to deal with the matters concerning the discipline of the staff and teaching members Page 12 of 19 C/SCA/17675/2017 ORDER of the University, no illegality could be found in his action of appointing the Review Committee when he received representation from the petitioner. Ms. Jhaveri also referred Section 11(5) to press for her submission that the Vice Chancellor is exercising general control over the affairs of the University and since responsible for the discipline in the University, his powers concerning taking of disciplinary action is to be read co-extensively with the powers of the Executive Council. Ms. Jhaveri submitted that when there is no prohibition contained in any of the provisions of the Act against appointment of the Review Committee by the Vice Chancellor for the purpose of reviewing the disciplinary action taken against the staff or teaching member of the University, it cannot be said that the Vice Chancellor had no power to appoint the Review Committee. Ms. Jhaveri submitted that if the Review Committee was legally appointed by the Vice Chancellor, the decision of the Review Committee was required to be implemented and since not implemented, the petitioner was justified in approaching the Tribunal. The court finds that such contention cannot be accepted in view of the powers defined in the Act for the Executive Council, Vice Chancellor and the authorities as discussed above.
12. In the context of somewhat pari materia provision as regards the powers of the Vice Chancellor under Section 11 of the Maharashtra University Act, Hon'ble Supreme Court has held and observed in para 10 to 20 of its decision case of Marathwada University Vs. Seshrao Balwant Rao Chavan reported in (1989)3 SCC 132, as under:-
10. In order to appreciate these submissions, we must outline the statutory provisions of the Marathwada University Act, 1974 (called shortly "the Act"). Section 8 specifies the officers of the University. The Vice-Chancellor is one of the officers.
Section 10 provides for appointment of the Vice- Chancellor. He shall be appointed by the Chancellor and shall ordinarily hold office for a term of three years. Section 11 reads, so far Page 13 of 19 C/SCA/17675/2017 ORDER as material, as follows :
"11(1) : The Vice-Chancellor shall be the principal executive and academic officer of the University, and shall in the absence of the Chancellor, preside at the meetings of the Senate and at any Convocation of the University ............."
"11(3): It shall be the duty of the Vice-Chancellor to ensure that the provisions of this Act, the Statutes, Ordinances and Regulations are faithfully observed. The Chancellor shall, for this purpose, have the power to issue directions to the Vice- Chancellor who shall give effect to any such directions."
"11(4) : If there are reasonable grounds for the Vice- Chancellor to believe that there is an emergency which requires immediate action to be taken, he shall take such action as he thinks necessary and shall, at the earliest opportunity, report in writing the grounds for his belief that there was an emergency, and the action taken by him to such authority or body as would, in the ordinary course, have dealt with the matter ............"
"11(6)(a) : It shall be lawful for the Vice-Chancellor, as the principal executive and academic officer, to regulate the work and conduct of the officers, and of the teaching, academic and other employees of the University, in accordance with the provisions of this Act, the Statutes, Ordinances and Regulations.
"11(7) : The Vice-Chancellor shall exercise such other powers and perform such other duties as are prescribed by the Statutes, Ordinances and Regulations."
11. Section 19 enumerates the authorities of the University. The Executive Council is one of the authorities specified thereunder.
12. Section 23 to the extent necessary is in the following terms :
"23(1): The Executive Council shall be the principal executive authority of the University, and shall consist of the following members, namely : (i) the Vice-Chancellor- ex-officio Chairman."
13. Section 24 deals with the powers and duties of the Executive Council. These powers and duties are wide and varied and it is sufficient if we read sub-sections(1), (xxix) and (xli) of S.
24. They are as follows :
"24(1) : Subject to such conditions as are prescribed by or under this Act, the Executive Council shall exercise the following powers and perform the following duties, namely..................."Page 14 of 19 C/SCA/17675/2017 ORDER
"24(1)(xxix) : appoint officers and other employees of the University, prescribe their qualifications, fix their emoluments, define the terms and conditions of their service and discipline and where necessary, their duties."
"24(1)(xli) : delegate, subject to the approval of the Chancellor, any of its powers (except the power to make Ordinances), to the Vice-Chancellor, the Registrar or the Finance Officer, or such other officers or authority of the University or a committee appointed by it, thinks fit."
14. Two other provisions are material, namely, Ss. 37 and 84.
Section 37, omitting the unnecessary, is in these terms :
S. 37. Subject to the conditions prescribed by or under this Act, the Senate may make the Statutes to provide for all or any of the following matters namely :-
(xvi) : The term of office, duties and conditions of service of officers, teachers and other employees of the University, the provisions of pension insurance and provident fund and the manner of termination of their service and other disciplinary action and their qualifications, except those of teachers."
15. Section 84 is as follows :
"Delegation of powers : Subject to the provisions of this Act and Statutes any officer or authority of the University may, by order, delegate his or its powers, except the power to make Statutes, Ordinances and Regulations, to any other officer or authority under his or its control, and subject to the conditions that the ultimate responsibility for the exercise of the powers so delegated shall continue to vest in the officer or authority delegating them."
16. With these provisions, we turn to consider the first question urged for the appellant. The question is whether the Vice- Chancellor was competent to direct disciplinary action against the respondent. In this context, we may make a few general observations about the position and powers of the Vice-Chancellor. The University Education Commission in its report (Vol. I December 1948 to August 1949) has summarised the powers and duties as follows (at p. 421) :
"Duties of Vice-Chancellor - A Vice-Chancellor is the chief academic and executive officer of his university. He presides over the Court (Senate) in the absence of the Chancellor, Syndicate (Executive Council), Academic Council, and numerous committees including the selection committees for; appointment of staff. It is his duty to know the senior members of the staff intimately and to be known to all members of the staff and students. He must command their confidence both by adequate academic reputation and by strength of personality. He must know his university well Page 15 of 19 C/SCA/17675/2017 ORDER enough to be able to foster its points of strength and to foresee possible points of weakness before they become acute. He must be the 'keeper of the university's conscience', both setting the highest standard by example and dealing promptly and firmly with indiscipline and malpractice of any kind. All this he must do and it can be done as constitutional ruler; he has not and should not have autocratic power. Besides, this he must be the chief liaison between his university and the public, he must keep the university alive to the duties it owes to the public which it serves, and he must win support for the university and understanding of its needs not merely from potential benefactors but from the general public and its elected representatives. Last, he must have the strength of character to resist unflinchingly the many forms of pressure to relax standards of all sorts, which are being applied to universities today."
17. This has been approved by the Education Commission. 1964-
66. In the report of the Education Commission, 1971 (pages 610-611 para 13.32) it was stated :
"The person who is expected, above all, to embody the spirit of academic freedom and the principles of good management in a university is the Vice-Chancellor. He stands for the commitment of the university to scholarship and pursuit of truth and can ensure that the executive wing of the university is used to assist the academic community in all its activities, His selection should, therefore, be governed by this overall consideration."
18. Dr. A. H. Homadi in his wise, little study about the role of the Vice-Chancellor in the university administration in developing countries has this to state (at p. 49) :
The President or the Vice- Chancellor :
"The President must be willing to accept a definition of educational leadership that brings about change to the academic life of the institution. He must be fired by a deep concern for education. He should instil a spirit and keenness about growth and development in such a way that the professiriate feels that their goals are interlinked with those of the University, that their success depends upon the success of the University. The professors should be given detailed information about the jobs that they have to perform and their good performance should be given due recognition by administration leadership. Even such small encouragement will boost their morale to greater heights. The President should have faith in his own abilities as well as on the abilities of other professors and administrators and should provide guidelines about the kind of efforts he would like his professors and administrators to make, setting an example by his own actions and exercises. The negative force of fear, when used and no one denies that an element Page 16 of 19 C/SCA/17675/2017 ORDER of hard headedness is, some times required as a persuasive inducement to professors and administrators of university should be employed judiciously. Under no circumstances should the apathy and belligerence of the professors and administrators be aroused. These call for strong but sympathetic leadership in the President."
19. The Vice-Chancellor in every university is thus the conscious keeper of the University and constitutional ruler. He is the principal executive and academic officer of the University. He is entrusted with the responsibility of overall administration of academic as well as non-academic affairs. For these purposes, the Act confers both express and implied powers on the Vice-Chancellor. The express powers include among others, the duty to ensure that the provisions of the Act, Statutes, Ordinances and Regulations are observed by all concerned [Section 11(3)]. The Vice-Chancellor has a right to regulate the work and conduct of officers and teaching and other employees of the University [Section 11(6)(a)]. He has also emergency powers to deal with any untoward situation [Section 11(4)] . The power conferred under S. 11(4) is indeed significant. If the Vice-Chancellor believes that a situation calls for immediate action, he can take such action as he thinks necessary though in the normal course he is not competent to take that action. He must, however, report to the concerned authority or body who would, in the ordinary course, have dealt with the matter. That is not all. His pivotal position as the principal executive officer also- carries with him the implied power. It is the magisterial power which is, in our view, plainly to be inferred. This power is essential for him to maintain domestic discipline in the academic and non- academic affairs. In a wide variety of situations in the relationship of tutor and pupil, he has to act firmly and promptly to put down indiscipline and malpractice. It may not be illegitimate if he could call to aid his implied powers and all emergency powers to deal with all such situations.
20. Counsel for the appellant argued that the express power of the Vice-Chancellor to regulate the work and conduct of officers of the University implies as well, the power to take disciplinary action against officers. We are unable to agree with this contention. Firstly, the power to regulate the work and conduct of officers cannot include the power to take disciplinary action for their removal. Secondly, the Act confers power to appoint officers on the Executive Council and it generally includes the power to remove. This power is located under S. 24(1)(xxix) of the Act. It is, therefore, futile to contend that the Vice- Chancellor can exercise that power which is conferred on the Executive Council. It is a settled principle that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by others unless it is delegated. The law must also provide for such delegation. Halsbury's Laws of England (Vol. I, 4th Ed., para 32) summarises these principles Page 17 of 19 C/SCA/17675/2017 ORDER as follows :
"32. Sub-delegation of powers. In accordance with the maxim delegatus non potest delegate, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub-delegation of the power is authorised by express words or necessary implication. There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub-delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind."
13. In light of the above and having considered the provisions of the Act, the Court finds that the Vice Chancellor had no power to appoint Review Committee and when the Vice Chancellor had no power to appoint Review Committee, opinion/ decision of the Review Committee for revocation of the suspension order and for declaring the charge against the petitioner as not tenable and initiation of inquiry as malafide, would not stand scrutiny of law and consequently, the order of the In-charge Vice Chancellor to permit the petitioner to resume his duty would be rendered unsustainable. The Court finds that the Tribunal has committed no error in observing that the Review Committee had no power to give its decision for revocation of the suspension order. It needs to be noted that as stated in the Affidavit-in-Reply before the Tribunal, which could be seen from the original file, after formation of three members committee with Dr. Kishor Chikhaliya as Chairman, there was a change in such formation whereby Mr. Kher was allowed to head the Committee as a Chairman, and in the meeting of the Review Committee held on 30.7.2017, Dr. Chikhaliya was shown as member absent. The Court finds in the facts of the case that the Tribunal has not committed any error in not accepting the prayer made by the petitioner to allow him to resume his duty. When the Executive Council has decided to continue the departmental inquiry against the petitioner, the petitioner is to face such inquiry unless the charge leveled against him is quashed by any competent Page 18 of 19 C/SCA/17675/2017 ORDER authority or Tribunal or any Court. In the pending application before the Tribunal, when the grievance is voiced only against the order of suspension, the Tribunal has rightly not entertained the prayer made by the petitioner to stay the departmental inquiry.
14. At this stage, the court is informed by learned advocate Mr. Buch that since the suspension of the petitioner has been continued as departmental inquiry is initiated against him , the Executive Council has taken decision vide its resolution dated 1.5.2018 to grant 100% subsistence allowance to him.
15. For the reasons stated above, no interference is required by this Court in the impugned orders in exercise of the powers under Articles 226 and 227 of the Constitution. The petitions are therefore dismissed. Notice discharged.
16. However, non- interference by this Court in the impugned orders would not mean that the challenge to the order of suspension made by the petitioner before the Tribunal is not required to be examined on merits. Therefore, it will remain open to the Tribunal to examine the legality or otherwise of the order of suspension and/or continuous suspension of the petitioner. The challenge made by the petitioner to his suspension has been pending before the Tribunal right from 2015. The Court finds that since long time has passed in examining such challenge by the Tribunal, it would be in the interest of justice if the Tribunal is directed to decide the main application of the petitioner within the shorted possible time period. Accordingly, the Tribunal is directed to finally hear and decide the Application No.144 of 2015 filed by the petitioner at the earliest by 15th June 2018.
(C.L. SONI, J.) OMKAR Page 19 of 19