Jharkhand High Court
Central University Of Jharkhand vs Dr. Iswar Chand Bidyasagar on 28 July, 2021
Equivalent citations: AIRONLINE 2021 JHA 1056, 2021 (3) AJR 741
Author: Sujit Narayan Prasad
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.171 of 2020
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Central University of Jharkhand, through its Registrar, Sri Harikum, S/o
not known, presently working as Registrar, P.O.-Brambe, P.S.-Mandar,
District-Ranchi .... .... Appellant
Versus
1. Dr. Iswar Chand Bidyasagar, aged about 42 years, son of Late Harihar
Narayan Visvakarma, resident of A/514, Astha Regency, Ratu Road,
Hehal, P.O.-Hehar, P.S.-Sukhdeonagar, District-Ranchi
2. Sri Nand Kumar Yadav 'Indu', son of not known, presently posted as
Vice-Chancellor, Central University of Jharkhand, P.O.-Brambe, P.S.-
Mandar, District-Ranchi .... .... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant-University : Mr. Manoj Tandon, Advocate
For the Respondent No.1 : Mr. Indrajit Sinha, Advocate
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C.A.V. on 03.03.2021 Delivered on 28/07/2021
Per Sujit Narayan Prasad, J.
The matter has been heard through video conferencing with the consent of learned counsel for the parties. They have no complaint about any audio and visual quality.
L.P.A. No.171 of 2020
The instant appeal is under Clause-10 of the Letters Patent Appeal directed against the order/judgment dated 14.02.2020 passed by the learned Single Judge of this Court in W.P.(S) No.5091 of 2019, whereby and whereunder, the orders of suspension dated 09.05.2019 and 06.08.2019 as also the entire disciplinary proceeding initiated vide charge memo dated 26.07.2019 as well as subsequent appointment of Inquiring Authority vide order dated 02.09.2019 and notice of inquiry issued by the Inquiring Authority vide memorandum dated 06.09.2019 has been quashed by allowing the writ petition.
2. The brief facts of the case which required to be enumerated reads 2 as hereunder:-
The writ petitioner was appointed, vide order dated 18.11.2011 issued under the signature of Registrar on the basis of the recommendation of the Selection Committee which has been accepted by the Executive Council in its 9th meeting held on 14.11.2011, as Medical Officer in the appellant-Central University of Jharkhand.
The writ petitioner, after having accepted the terms and conditions contained in the offer of appointment, has started discharging his duty.
The Registrar of the appellant University has issued notice upon the writ petitioner on 16.09.2013 informing the writ petitioner about a decision to dispense with his services w.e.f. 14.09.2013 after paying one month salary and allowances in lieu of notice period.
Thereafter, the writ petitioner has approached this Court by filing writ petition being W.P.(S) No.6163 of 2013 which was disposed of vide order dated 19.02.2016, in pursuance thereto, he was reinstated to the post of Medical Officer of the University with immediate effect with a further direction that the period intervening between the date of removal and the date of reinstatement shall be treated as duty for all purpose and the writ petitioner will be paid full pay and allowances for the intervening period.
It is the grievance of the writ petitioner that thereafter, the salary of the writ petitioner was withheld which compelled the writ petitioner again to approach this Court by filing the writ petition being W.P.(S) No.3449 of 2018, wherein, after issuance of notice by way of ad-interim measure, the respondents have been directed to pay the current salary of the petitioner, if there is no legal impediment.
Further, grievance of the writ petitioner is that since the writ petitioner has been meted out with repeated harassment and ill treatment 3 has instituted an online FIR before the SC/ST Police Station, Ranchi bearing no.03/2019 dated 20.02.2019 against the respondent nos.2 and 3.
The contention of the writ petitioner is that in counter blast to the said FIR, a disciplinary proceeding has been decided to be initiated by putting the writ petitioner under suspension exercising the power conferred under Statute 25(1) read with Section 11(3) of the Central Universities Act, 2009 (hereinafter referred as the Act, 2009) and Rule 19(1) of Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred as the Rules, 1965).
Subsequently, vide order dated 23.05.2019, the appellant-University has issued a direction for payment of subsistence allowance in favour of the writ petitioner.
The appellant-University has also issued memorandum of charge dated 26.07.2019 with a direction upon the writ petitioner to submit his written explanation in defence within 10 days' from the date of receipt of memorandum of charge.
The writ petitioner, after receipt of the aforesaid memorandum of charges has requested the appellant-University vide letter dated 01.08.2019 to amend the memorandum of charges dated 26.07.2019, since as per the CCS (CCA) Rules, 1965, 15 days' time is desirable for submitting the reply in respect of memorandum of charges.
The appellant-University, thereafter, has issued an order on 06.08.2019 mentioning therein that the disciplinary proceeding is yet to complete and as such, the respondent no.2, in exercise of power conferred upon him under Statute 25(1) of the Act, 2009 read with Rule 10(6) of CCS (CCA) Rules, 1965 and on recommendation of a Review Committee has further extended the suspension of the writ petitioner for another period of 180 days.
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The writ petitioner being aggrieved with the aforesaid action of the respondents has preferred the writ petition, which is the subject matter of the present intra-court appeal.
3. The writ petitioner has taken a ground that entire departmental proceeding is nothing but suffers from malice and bias. Since the order of suspension visits the employee with serious civil consequences and loss of reputation and prestige and monetary loss and hence, cannot be passed without following the principle of natural justice and without application of mind.
It has further been agitated before the learned Single Judge that the authority who has passed the order of suspension is having no jurisdiction to issue such order under the provision of Statute 25(1) of the Central Universities Act, 2009.
Further, it has been contended that the Central Civil Services (Classification, Control and Appeal) Rules, 1965 is not applicable in the matter of disciplinary action/suspension against the employee of the University as because Section 26(f) of the Central Universities Act, 2009 specifically speaks with regard to disciplinary action/suspension.
4. Learned counsel for the writ petitioner has relied upon the following judgments i.e:-
(1) State of Punjab Vs. V.K. Khana & Ors., (2001) 2 SCC 330; (2) Abdur Rasheed Vs. Govt. of India, W.P.(C) Nos.21883 and 25651 of 2013;
(3) Tea Board and Ors. Vs. Rasamoy Roy and Ors., G.A. No.1997 of 2004.
5. On the other hand, the appellant-University has contested the case by filing the counter affidavit vehemently opposing the contention of the writ petitioner by making a submission that the writ petitioner having put 5 under suspension in contemplation of departmental proceeding and as such, there is no requirement to follow the principle of natural justice.
It has been contended that departmental proceeding has already been initiated and the memorandum of charge has been served upon the writ petitioner but despite several dates fixed, the writ petitioner has not participated in the departmental proceeding. Since the writ petitioner has committed misconduct and therefore, he is required to face the departmental proceeding.
With respect to the jurisdictional issue in issuance of order of suspension, submission has been made that order of suspension and initiation of departmental proceeding both are within the jurisdiction of the authority, who has passed the order.
6. Learned Single Judge after taking into consideration the aforesaid submission has allowed the writ petition by quashing and setting aside the order of suspension, memorandum of charge and initiation of departmental proceeding, however, with a liberty to the appellant to initiate a fresh proceeding in accordance with law, against the petitioner and conclude the same within a period of three months thereafter.
The aforesaid order is under challenge in the instant intra-court appeal.
7. Mr. Manoj Tandon, learned counsel appearing for the appellant- University has assailed the impugned order on the following grounds:-
(i) There is no requirement to follow the principle of natural justice before putting an employee under suspension;
(ii) The order of suspension has been passed, although, under the signature of Registrar but it is on the basis of the direction of the Vice Chancellor who has taken such decision in exercise of power conferred under Section 11(3) of the Act, 2009 which has subsequently been 6 affirmed by the Executive Council in its 27th meeting, as such, the order of suspension is within the jurisdiction;
(iii) The finding recorded by the learned Single Judge that the memorandum of charge and appointment of the Inquiry Officer are on the same date, is absolutely incorrect, since it is evident from the documents that memorandum of charge has been issued on 26.07.2019 and subsequent thereto, the Inquiry Officer has been appointed vide order dated 02.09.2019;
(iv) The finding recorded by the learned Single Judge about non-
applicability of the Rules, 1965 has also been assailed on the ground that the CCS (CCA) Rules, 1965 is applicable as because the appellant- University is having no Discipline and Appeal Rules, as such, by virtue of the Ordinance notified on 26.03.2017, whereby and whereunder, the subject which is not being covered under the said Ordinance, the rules and norms of the Government of India, will be applicable and to that effect, the UGC has also come out with a circular on 01.05.2018 referring therein that, for service matters, the University should follow the Govt. of India rules/orders as applicable to the Central Govt. Civilian employee.
8. Mr. Indrajit Sinha, learned counsel appearing for the respondent-writ petitioner has contended by replying the contention made on behalf of the appellant-University that the order of suspension cannot be said to be in accordance with Law rather it has been passed only to victimize the writ petitioner as because even accepting the provision of Section 11(3) applicable, then the same stipulates that if the Vice Chancellor is of the opinion that immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or under this Act and shall report to such authority at its next meeting the action taken by him on such matter and according to him, taking into consideration, the nature of 7 misconduct, it is not required to take any immediate action for resorting to the provision of Section 11(3) of the Act, 2009.
He further contends that the order of suspension, although is not a punishment but it is stigmatic one and taking into consideration the nature of allegation, the same cannot be said to be proper.
He further contends that the order of suspension ought to have been written by the competent authority as mandated under the Statute 25(1) of the Act, 2009 but having not done so, the order of suspension cannot be construed to be in accordance with Law.
His further contention is that the order of suspension is required to be passed by the appointing authority as would be evident from the Statute 25(1) but if the order of suspension would be taken into consideration, the same is under the signature of the Registrar and as such, the learned Single Judge after taking into consideration the aforesaid aspect of the matter and having considered about lack of inherent jurisdiction in passing the order of suspension, is right in passing the order of suspension.
Learned counsel further contends about the finding recorded by the learned Single Judge about the observance of the principle of natural justice, according to him, when the petitioner was going to be put under suspension, it was required to follow the principle of natural justice, since the suspension leads to the civil consequences.
9. So far as the argument advanced on behalf of the appellant- University to the effect about the issuance of memorandum of charge and appointment of Inquiry Officer on different dates, he by making reference of Agenda No.EC/2019/27/017(Annexure-16) to the memo of appeal that approval of charge sheet as also the appointment of Inquiry Officer is on the same date and not only that in the same meeting, the memorandum of 8 charges have also been proved with the approval of the appointment of the Inquiry Officer, namely, Shri Sudhir Kumar Sinha, Retired Additional District and Sessions Judge and therefore, the learned Single Judge has considered this aspect of the matter and has come to the conclusion about the malice and biasness.
10. Mr. Sinha, further argues that CCS (CCA) Rules, is not applicable and whatever has been contended about the adoption of the CCS Rules by virtue of the Ordinance notified on 26.03.2017 but it would be evident from the perusal of the said documents that the said decision has been taken in exercise of power conferred under Section 28 of the Act, 2009, but Section 28 stipulates about the power to make Ordinances.
But the aforesaid Section does not refer about the applicability of CCS Rules by virtue of its adoption rather there is no iota of reference about any Discipline and Conduct Rules as also in the Ordinance, save and except with stipulation that a particular subject or an individual case which is not covered by the Ordinance, Regulations and Rules of the University shall be dealt with in accordance with the rules and norms of the Government of India, as applicable from time to time but it also does not refer about the adoption of the CCS Rules to deal with the employees of the University in the matter of disciplinary proceeding.
11. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge.
12. Before proceeding to examine the legality and propriety of the impugned order, this Court deem it fit and proper to refer certain factual aspects which is not in dispute i.e., the writ petitioner has been appointed on the recommendation of the Selection Committee by the authorities of the Executive Council in its 9th meeting held on 14.11.2011, whereas the 9 letter of appointment has been issued under the signature of the Registrar.
The writ petitioner has started discharging his duty as Medical Officer. He, on the earlier occasion was terminated from service but the same has been quashed and set aside vide order dated 19.02.2016 passed by this Court in W.P.(S) No.6163 of 2013 with a direction upon the respondents to reinstate the petitioner. In the meanwhile, the respondent- University vide its letter dated 23.02.2016 reinstated the petitioner treating the period between the date of removal and the date of reinstatement as on duty for all purpose and the petitioner was allowed full pay and allowances for that period.
Further, he has again approached this Court by filing the writ petition being W.P.(S) No.3449 of 2018 when his salary has been stopped and by way of ad-interim measure, an order on 11.09.2018 has been passed to pay the current salary of the petitioner, if there is no other legal impediment.
Thereafter, the petitioner has been put under suspension vide order dated 09.05.2019 in pursuant to the decision taken by the Vice Chancellor in exercise of power conferred under the statute 25(1) read with Section 11(3) of Central Universities Act, 2009 and sub-rule (1) of Rule 10 of Central Civil Services (Classification, Control and Appeal) Rules, 1965 having the said order been issued under the signature of the Registrar of the University.
The writ petitioner was served with memorandum of charge dated 26.07.2019 alleging therein that he is in the habit of disobeying orders/instructions conveyed to him from time to time.
He was directed to furnish the details of earnings through employment but in spite of repeated reminders and letters, he did not declare his income from employment.
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Further, he was asked as to whether he was under any gainful employment during the intervening period or not and it has come to surface by the report submitted by one man Fact Finding Committee that he was under employment during such period in Santevitta Hospital, Ranchi and Devkamal Hospital, Ranchi.
In Santevitta Hospital, he has earned salary of Rs.42,000/- per month for the period from 06.02.2014 to 10.07.2015 and earned Rs.7,20,048/- from that employment. Further, worked in Medica Hospital, Ranchi and Devkamal Hospital, Ranchi for a period from 20.07.2015 to 20.03.2016 and was paid an amount of Rs.10,14,964/- for working in Medica Hospital and Devkamal Hospital, Ranchi in the said period.
But in spite of repeated requests made about the details of his income from employment, he has not furnished the said details which constitute misconduct of gross dereliction of duty, willful insubordination and disobedience of lawful order of his superior and conduct unbecoming of an employee of the University under Rule 3(1)(ii), (iii) & (xix) of CCS (Conduct) Rules, 1964 read with GID (23)(1), (4) below Rule 3-C of CCS (Conduct) Rules, 1964.
The second charge has been levelled against the writ petitioner that although he was reinstated in service of the University w.e.f. 23.02.2016 but even then, he continued to work in the Medica Hospital up to 20.03.2016 even after his reinstatement in the University which also constituted misconduct of gross moral misconduct-act subversive of discipline and conduct unbecoming of an employee of the University under Rule 3(1)(i), 3(1)(ii), 3(1)(iii), 15(1)(b) and 15(4) of CCS (Conduct) Rules, 1964 read with GID 23(1), (4) below Rule 3-C of CCS (Conduct) Rules, 1964.
While charge no.3 pertains to levelling false and frivolous charges 11 against the higher officers whenever he has been asked for some explanation or called upon to show cause on his acts of omission and commission, since a show cause notice was issued on 14.05.2018 for putting obstacles in the smooth functioning of the University. He, wrote a letter to the Vice Chancellor on 01.10.2018 for lodging criminal case and initiate disciplinary action against Professor S.L. Hari Kumar, Registrar for harassing him being a person coming from Scheduled Tribe. He further threatened that if the University fails to lodge criminal case and initiate disciplinary action against Professor S.L. Hari Kumar, Registrar in four days' time, he will take legal action against Professor S.L. Hari Kumar, for which, one man Fact Finding Committee was constituted.
He, even, has levelled false allegation against the Incharge Professor A.K. Sharma for harassing him and even showing arms to him.
The 4th charge has been levelled that he has requisitioned for purchase of branded medicines in place of requisition of purchase of generic medicines which is lesser in cost.
Further, it has been alleged by way of charge no.5 that he has managed the procurement, storing and disbursement of medicines very poorly which led to loss of public money.
Charge no.6 pertains to installation of CCTV Camera in his chamber where he examined the patients without obtaining permission from the competent authority of the University nor did he inform the competent authority of the University that he has installed a CCTV Camera in his chamber which is not only objectionable but also unethical and by doing that he has violated the norms of privacy of a patient on the one hand and defied the set procedure of obtaining the permission from the competent authority for installing such a sensitive instrument on the other.
The aforesaid memorandum of charges have been appended with 12 the list of documents.
Subsequently, one communication has been made about amendment in the memorandum of charges as also the Inquiry Officer has been appointed vide order dated 02.09.2019.
13. The writ petitioner in pursuant to the stipulation made in the charge sheet to furnish his explanation as also making objection about appointment of not appointing the person against whom allegation has been levelled on the principle that an Officer cannot be the judge of his own cause.
The writ petitioner, at that moment, has filed the writ petition questioning the entire disciplinary proceeding as also for quashing of the order of suspension and the memorandum of charge on the ground as referred hereinabove.
14. This Court after taking into consideration the submission advanced on behalf of the parties, think it proper the following issues for its consideration.
(i) Whether before issuance of order of suspension, the principle of natural justice is required to be followed;
(ii) The authority who has issued the order of suspension is having jurisdiction;
(iii) The issuance of charge sheet vis-à-vis the appointment of the Inquiry Officer is on the same date;
(iv) The CCS Rules, 1965 is applicable in the facts of this case, if not, whether the delinquent employee in absence of non-applicability of the CCS Rules will not be subjected to any disciplinary proceeding.
15. So far as the issue no.(i) which pertains to the observance of the principle of natural justice before issuance of the order of suspension is concerned, it is not in dispute that an order of suspension is not a 13 punishment rather the power to put the delinquent employee under suspension is only to deactivate the delinquent employee from active service, so that, he may not be able to temper with the evidence or initiation of departmental proceeding in any way, since the order of suspension is not a punishment rather it is by way of ad-interim measure i.e., during the pendency of the departmental proceeding, the services are being deactivated, therefore, there is no question of infringement of any right by putting the delinquent employee under suspension, hence, the principle of natural justice will not be applicable.
The principle of natural justice is only made to be applicable in a case where the vested or accrued right is being taken away leading to civil consequences and in that circumstances, a person who is going to be adversely affected leading to civil consequences, such person cannot be condemned without providing opportunity of hearing but as has been settled that order of suspension being not a punishment rather deactivate the delinquent employee from active service, therefore, there is no question of taking away any accrued or vested right.
In this regard, reference may be made to the judgment rendered by the Hon'ble Apex Court in Mohammad Ghouse Vrs. State of Andhra, AIR 1957 SC 246, wherein, at paragraph-9, it has been held that in a case of suspension pending final orders by the Government, such an order is neither one of dismissal nor of removal from service within Article 311 of the Constitution of India.
The Kerala High Court judgment rendered in Mayuranathan Vrs. State of Kerala & Anr., 1960 SCC Online Kerela 263, after relying upon the judgment rendered by the Hon'ble Apex Court in the case of Mohammad Ghouse Vrs. State of Andhra, (supra) has laid down that an order of suspension pending an enquiry cannot be regarded as a 14 punishment within the purview of Article 311(2) of the Constitution of India and in that view neither any question of opportunity to show cause nor of violation of the principles of natural justice arises in this case.
Further, the suspension pending enquiry into charges of misconduct of Government servants without providing an opportunity of hearing before passing of the order of suspension has been considered by the Calcutta High Court in Kali Prosanna Roy Vrs. State of West Bengal, AIR 1952 Cal. 769, Venkateswarlu Vrs. State of Madras, AIR 1954 Mad. 587, Gurudeva Narayan Vrs. State of Bihar, AIR 1955 Patna 131, Thimma Reddy Vrs. State of Andhra, AIR 1958 Andhra Pradesh 35, Gopalkrishna Naidu Vrs. State of Madhya Pradesh, AIR 1952 Nagpur 170, wherein, it has been held by the High Courts that no prior notice is necessary to validate the order of suspension.
The Hon'ble Apex Court in the case of Union of India and Anr. Vrs. Ashok Kumar Aggarwal, (2013) 16 SCC 147, has been pleased to lay down at paragraph-27 that suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the proceedings unhindered. Suspension is an interim measure in the aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his position.
This Court after taking into consideration the aforesaid ratio laid down by the Hon'ble Apex Court as also by the different High Courts is of the view that the contention raised by the learned counsel for the writ petitioner about observance of principle of natural justice, the order of suspension is bad in the eye of Law, is not acceptable by this Court, accordingly, the said ground is rejected.
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However, if the order of suspension is being passed by way of punishment if provided under the list of punishment, then certainly the principle of natural justice will be attracted as because the order of punishment being a punishment can only be given by providing a reasonable opportunity of being heard but herein the order of suspension is not inflicted by way of punishment rather it is in contemplation of departmental proceeding, therefore, the principle of applicability of natural justice will not be applicable.
16. So far as the issue no.(ii) pertaining to the authority who has issued the order of suspension having no jurisdiction is concerned, herein, it has been agitated by the learned counsel for the writ petitioner by making reference of the Statute 25(1) that order of suspension is to be passed by the authority competent to appoint, for ready reference, the provision of Statute 25(1) is being referred which reads as hereunder:-
"(1) where there is an allegation of misconduct against a teacher, a member of the academic staff or other employee of the University, the Vice-Chancellor, in the case of the teacher or a member of the academic staff, and the authority competent to appoint (hereinafter referred to as the appointing authority) in the case of other employee may, by order in writing, place such teacher, member of the academic staff or other employee, as the case may be, under suspension and shall forthwith report to the Executive Council the circumstances in which the order was made."
It is evident from the aforesaid provision that where there is an allegation of misconduct against a teacher, a member of the academic staff or other employee of the University, the Vice-Chancellor, in the case of the teacher or a member of the academic staff, and the authority competent to appoint, in the case of other employee may, by order in writing, place such teacher, member of the academic staff or other employee, as the case may, under suspension and shall forthwith report to the Executive Council the circumstances in which the order was made. 16
It has been contended that order of suspension since has been passed by the Registrar who is having no jurisdiction to take such decision and therefore, the same will without jurisdiction.
17. We have considered the order of suspension and found therefrom that the order of suspension dated 09.05.2019 has been issued under the signature of Registrar but by the order of the Vice Chancellor in exercise of power conferred under the Statute 25(1) read with Section 11(3) of the Central Universities Act, 2009 and sub-rule (1) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
18. We have gone across the provision of Section 11(3) of the Act, 2009 which confers power upon the Vice Chancellor that if he is of the opinion that immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or under this Act and shall report to such authority at its next meeting the action taken by him on such matter.
Provided that if the authority concerned is of the opinion that such action ought not to have been taken, it may refer the matter to the Visitor whose decision thereon shall be final.
Provided further that any person in the service of the University who is aggrieved by the action taken by the Vice-Chancellor under this sub- section shall have the right to represent against such action to the Executive Council within three months from the date on which decision on such action is communicated to him and thereupon the Executive Council may confirm, modify or reverse the action taken by the Vice-Chancellor.
Therefore, sub-section (3) of Section 11 of the Act, 2009 confers power upon the Vice-Chancellor that if he considers that immediate action is necessary, he can take such decision and if such provision would be read out along with Statute 25(1) which confers power upon the authority 17 competent to put an employee under suspension and shall forthwith report to the Executive Council, the circumstances in which the order was made.
Herein, admittedly the Vice Chancellor has taken a decision to put the writ petitioner under suspension and under his order, the Registrar of the University, has issued the order of suspension dated 09.05.2019 and therefore, it will be construed to be issued in exercise of power conferred under Section 11(3) of the Act, 2009.
19. This Court has also perused the confirmation of the order of suspension by the Executive Council and as would be evident from the 27th meeting of the Executive Council as available under Annexure-17 to the memo of appeal, whereby and whereunder, the decision of the Vice Chancellor putting the writ petitioner under suspension has been placed before the Executive Council and vide resolution dated 03.06.2019 of 27th meeting of the Executive Council, the decision to put the writ petitioner under suspension has been confirmed by ratifying the order of Vice Chancellor, meaning thereby the decision of suspension taken by the Vice Chancellor as under Section 11(3) of the Act, 2009 has been ratified by the Executive Council in pursuant to the provision of Statute 25(1) of the Act, 2009.
Since herein, the Executive Council is the appointing authority and once the order has been approved by the Executive Council, it cannot be said that the order of suspension is beyond jurisdiction as because, it has specifically been stipulated as under Statute 25(1) that the authority competent to appoint, put the employees under suspension, he shall forthwith report to the Executive Council.
Therefore, according to our considered view, the provision contained under Section 11(3) of the Act, 2009 is to be read together with Statute 25(1).
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So far as the jurisdictional issue is concerned, it is not in dispute that the Executive Council is the appointing authority, is required to take decision about putting the employee under suspension but the provision contained under Statute 25(1) cannot render the provision of Section 11(3) redundant rather if the Vice Chancellor is of the subjective satisfaction taking into consideration immediate decision required to be taken, he can resort to the provision contained under Section 11(3) of the Act, 2009 and herein the Vice Chancellor taking into consideration the nature of allegation if taken such decision to put the writ petitioner under suspension which subsequently has been confirmed by the Executive Council, the decision to put the writ petitioner under suspension cannot be said to suffer from any jurisdictional error.
20. So far as the third issue which pertains to the memorandum of charges and the appointment of the Inquiry Officer is on the same date, which according to the writ petitioner suggests the biasness and malice on the part of the disciplinary authority.
The factual aspect which requires to be considered considering the argument advanced on behalf of the learned counsel appearing for the appellant-University that memorandum of charge has been issued on 26.07.2019 while the Inquiry Officer has been appointed on 02.09.2019 and therefore, according to him, the finding recorded by the learned Single Judge for deriving the conclusion about malice and biasness on the basis of the fact that memorandum of charge framed and appointment of Inquiry Officer is on the same date, is not correct.
21. Per Contra, Mr. Indrajit Sinha, learned counsel appearing for the writ petitioner has submitted by referring to the Agenda No.EC/2019/27/017 as under Annexure-16 to the memo of appeal that charge sheet has been approved by the Executive Council and on the same date, the Inquiring 19 Authority and Presenting Officer have been appointed and therefore, merely issuance of memorandum of charge on 26.07.2019, an order of appointment of the Inquiry Officer on 02.09.2019 cannot be construed to support the contention of the learned counsel appearing for the appellant- University that there is no malice and biasness rather, according to him, the authority before framing of the charges has made up their mind to appoint the Inquiry Officer which suggests about the malice and biasness on the part of the disciplinary authority.
22. We have examined the Agenda No.EC/2019/27/017, wherein the agenda pertains "to consider and approve the Charge sheet to be served upon Dr. Ishwar Chand Bidyasagar, Medical Officer and appointment of Inquiring Authority and presenting Officer in the same case.
It transpires from the said Minutes that draft of the charge sheet has been approved vis-à-vis the appointment of the Inquiring Authority and Presenting Officer has been approved by appointing one Shri Sudhir Kumar Sinha, Retired Additional District and Sessions Judge to act as Inquiring Authority to inquiry into the charges.
The disciplinary authority based upon such approval of charge sheet and appointment of the Inquiry Officer has issued the charge sheet on 26.07.2019 which has been served to the writ petitioner and the Inquiry Officer has been appointed by virtue of the office order dated 02.09.2019.
23. The apprehension of the learned counsel for the appellant- University cannot be lost sight of, since he is right in saying that the draft of the charge has been approved on the same date when the Inquiry Officer has been appointed.
The question herein is that if the departmental proceeding is being initiated even the said proceeding which is quasi-judicial in nature but the fairness and transparency are of paramount importance. 20
Admittedly herein, the memorandum of charge framed and appointment of Inquiry Officer have been approved on the same date.
It has further been admitted that in the charge sheet, there is reference to provide an opportunity to the delinquent employee to make a representation in his defence and when such stipulation has been made, it was not required by the Disciplinary Authority/Executive Council to approve the appointment of the Inquiry Officer on the same date when the draft of memo of charge has been approved, it is for the reason that when the memorandum of charge stipulates a condition to provide an opportunity by making representation in his defence, it was incumbent upon the authority to first consider the representation about necessity of initiating departmental proceeding by considering the reply and if not satisfied by taking a decision and then only to take decision for appointment of the Inquiry Officer but deviating from the same, it will be construed to be an action with pre-occupied mind, which cannot be said to be proper as because providing opportunity to file reply at the stage may not be a mere formality.
However, the memorandum of charge was served upon the writ petitioner on 26.07.2019 and the Inquiry Officer has been appointed by separate order dated 02.09.2019 but even though, these are on two different dates but that cannot be considered to be justified action of the disciplinary authority ignoring the decision of the Executive Council being competent to issue memo of charge and to appoint Inquiry Officer approving the memorandum of charge with the decision of the appointment of the Inquiry Officer which are on the same date, otherwise providing opportunity to file representation as referred in the memo of charge will become a mere formality and therefore, finding to that effect recorded by the learned Single Judge in this regard cannot be said to 21 suffer from infirmity but the question herein is that even accepting the Executive Council is committed gross error but can on this ground the entire disciplinary proceeding be quashed from the threshold, which according to our considered view, cannot be said to be proper as has been done by the learned Single Judge.
According to our considered view, if such finding has been arrived at by the learned Single Judge, it was incumbent upon the learned Single Judge to quash the proceeding to the effect from the stage of the appointment of the Inquiry Officer by providing an opportunity to make representation as stipulated in the memorandum of charge and for its consideration then a direction upon the disciplinary authority to appoint the Inquiry Officer.
In view thereof, quashing of the entire departmental proceeding, according to our view, cannot be said to be justified and as such, it is held to be incorrect finding, hence, declared to be illegal.
24. So far as the fourth issue about applicability of the CCS Rule is concerned, it has been contended by Mr. Manoj Tandon, learned counsel appearing for the appellant-University that the CCS Rules should be applicable and to support his argument he has relied upon the Ordinance of the Central University of Jharkhand notified on 26.03.2017 and the communication issued by the UGC dated 01.05.2018.
25. We have considered the rival submissions made on behalf of the learned counsel for the parties as indicated above and in order to answer the issues, deem it fit and proper to go through the Ordinance notified on 26.03.2017.
26. It is evident from the notification dated 26.03.2017 which has been issued under Section 28 of the Central Universities Act, 2009 that the provision of Section 28 of the Central Universities Act, 2009 which 22 stipulates about the power to make Ordinances, for ready reference, the said provision is being referred hereinbelow:-
"28. Power to make Ordinances.-(1) Subject to the provisions of this Act and the Statutes, the Ordinances may provide for all or any of the following matters, namely:-
(a) the admission of students to the University and their enrolment as such;
(b) the courses of study to be laid down for all degrees, diplomas and certificates of the University;
(c) the medium of instruction and examination;
(d) the award of degrees, diplomas, certificates and other academic distinctions, the qualifications for the same and the means to be taken relating to the granting and obtaining of the same;
(e) the fees to be charged for courses of study in the University and for admission to examinations, degrees and diplomas to the University;
(f) the conditions for award of fellowships, scholarships, studentships, medals and prizes;
(g) the conduct of examination, including the term of office and manner of appointment and the duties of examining bodies, examiners and moderators;
(h) the conditions of residence of the students of the University;
(i) the special arrangements, if any, which may be made for the residence and teaching of women students and the prescribing of special courses of studies for them;
(j) the establishment of Centres of Studies, Boards of Studies, Specialised Laboratories and other Committees;
(k) the manner of co-operation and collaboration with other Universities, Institutions and other agencies including learned bodies or associations;
(l) the creation, composition and functions of any other body which is considered necessary for improving the academic life of the University;
(m) the institution of fellowships, scholarships, studentships, medals and prizes;
(n) the setting up of machinery for redressal of grievances of employees and students; and
(o) all other matters which by this Act, or, the Statutes, are to be, or, may be, provided for by the Ordinances.
(2) The first Ordinances shall be made by the Vice-
Chancellor with the previous approval of the Executive Council and the Ordinances so made may also be amended, repealed or added to at any time by the Executive Council in the manner prescribed by the Statutes:
Provided that in the case of Guru Ghasidas Vishwavidyalaya and Doctor Harisingh Gour Vishwavidyalaya, and Hemvati Nandan Bahuguna Garhwal University, till such time as the first Ordinances are not so made, in respect of the matters that are to be provided for by the Ordinances under this Act and the Statutes, the relevant provisions of the Statutes and the Ordinances made immediately before the commencement of this Act under the provisions of the Madhya 23 Pradesh Vishwavidyalaya Adhiniyam, 1973 (Madhya Pradesh Act 22 of 1973), and the Utter Pradesh State Universities Act, 1973 (President's Act 10 of 1973), respectively, shall be applicable in so for as they are not inconsistent with the provisions of this Act and the Statutes."
It is evident from the provision as quoted and referrred hereinabove that the same stipulates about the power to make ordinances, providing for all or any of the following matters, namely:-
(a) the admission of students;
(b) The courses of study;
(c) The medium of instruction;
(d) The award of degrees, diplomas and other academic distinctions etc;
(e) The fees to be charged;
(f) The conditions for award of fellowships, scholarships etc;
(g) The conduct of examination etc.;
(h) The conditions of residence of students of the University;
(i) The special arrangements, if any, which may be made for the residence and teaching of women students;
(j) The establishment of Centres of studies etc;
(k) The manner of co-operation and collaboration with other Universities etc.;
(l) The creation, composition and functions of any other body which is considered necessary for improving the academic life of the University;
(m) The institution of fellowships, scholarships, studentships;
(n) The setting up of a machinery for redressal of grievance of employees and students; and
(o) All other matters which by this Act, or, the Statutes, are to be, or, may be, provided for by the Ordinances.24
27. Mr. Manoj Tandon, learned counsel for the appellant has emphasized upon the last one i.e., all other matters by this Act, or the Statutes, are to be, or, may be, provided for by the Ordinances, which according to him, under the said conditions the disciplinary action will also come.
He further submits that the University Grants Commission has also issued a communication on 01.05.2018, wherein also, for service matters, the University should follow the Govt. of India rules/orders, as applicable to the Central Govt. Civilian Employee and in view thereof, according to him, the provision of CCS Rules, will be applicable
28. This Court, after perusing the provision of Section 28 of the Act, 2009 vis-à-vis the Ordinances, has not found therefrom that there is any stipulation made about adoption of the Conduct and Discipline Rules i.e., the CCS Rules, 1965 in the present case.
It is settled that unless the Discipline and Conduct Rules will be adopted by any employer, no proceeding can be initiated under any of the statutory provision as because under the Conduct and Discipline Rules, the matter pertains to dealing with the concerned employee by inflicting punishment which can only be in accordance with Law, since the same pertains to civil consequences and snatching of the rights can only be done in pursuance to the applicable statutory provision.
The power conferred under Section 28 stipulates about any provision to adopt the Conduct and Discipline Rules, since the Conduct and Discipline Rule is outside the purview of Section 28 and further even in the Ordinance, there is no reference about taking any decision for adoption of Discipline and Conduct Rules.
So far as the communication dated 01.05.2018 is concerned, the same being a communication and merely a communication does not 25 entitle the employer to adopt the CCS Rules, 1965, in order to deal with the employee in a case of misconduct.
In view thereof, according to our considered view, the appellant- University since has not adopted the CCS Rules, 1965 by taking decision in this regard by the competent authority, therefore, the applicability of CCS Rules in the present fact of the case cannot be said to be justified and to that effect the finding recorded by the learned Single Judge about non-applicability of the CCS Rules, cannot be said to be unjustified but the question herein is that when the learned Single Judge has recorded a finding about non-applicability of the CCS Rules will it not be proper for the writ Court to answer the issue that in case of non-availability or non- adoption of CCS Rules or any Discipline and Conduct Rules, can a delinquent employee working under the establishment be not dealt with, if there is any allegation of misconduct but the learned Single Judge has failed to answer the issue but on technical ground, the entire proceeding is quashed from its inception.
Since we are answering the issue about non-applicability of CCS Rules that does not mean that the reference of CCS Rule has been made in the memorandum of charge or the other document which does not vitiate the memorandum of charge due to the settled position of Law that mere reference of wrong provision of Law, the order of the Administrative Authority will not vitiate.
Further, the memorandum of charge will also not be vitiated as because we have already held hereinabove that the Executive Council of the appellant-University being the competent authority is having power under the provision of Section 16 of the General Clauses Act being the appointing authority is competent enough to take decision to initiate the departmental proceeding as also the memorandum of charge, as such, 26 the memorandum of charge is held to be within the jurisdiction of the appellant-University, since Section 16 of the General Clauses Act provide which reads hereunder as:-
"16.Power to appoint to include power to suspend or dismiss.-Where, by any [Central Act] or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having [for the time being] power to make the appointment shall also have power to suspend or dismiss any person appointed [whether by itself or any other authority] in exercise of that power."
29. According to us, it is settled that if there is no statutory provision to deal with the Discipline and Conduct Rules, in that circumstances, the applicability of Section 16 of the General Clauses Act, 1897 is required to be considered which provides power to appoint to include power to suspend or dismiss and therefore, according to our considered view that even if the provision of CCS Rules is not applicable, disciplinary proceeding cannot be quashed, however, the order of remand is there but without deciding the issue as to under which provision of Law, the departmental proceeding will be initiated afresh.
Further, again the question would be to provide a reasonable opportunity, we have considered the provision of Statute 25(4) which provides that no teacher, member of the academic staff or other employee shall be removed under clause (2) or clause (3) unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him which also suggests that the power upon the employer has been vested under the provision of Statute 25(4) read with Section 16 of the General Clauses Act, 1897.
30. According to our considered view, the disciplinary proceeding is required to be initiated by the appointing authority which has appointed the writ petitioner in exercise of power conferred under Section 16 of the General Clauses Act, 1897 read with Statute 25(4) of the Central 27 Universities Act, 2009 in order to provide reasonable opportunity of hearing to defend the case.
31. This Court after having answered the issues as framed hereinabove has gone across the impugned order passed by the learned Single Judge and found therefrom that the learned Single Judge has not considered the facts in right perspective i.e., about position of Law in issuance of order of suspension without following the principle of natural justice.
32. Learned Single Judge has not appreciated the fact in right perspective about the power conferred to the Vice Chancellor under the Statute 25(1) read with Section 11(3) of the Act, 2009 as discussed hereinabove and therefore, the order passed by the learned Single Judge cannot be said to be proper and justified.
Further, also on the ground that the learned Single Judge has not considered the fact that if there is an allegation of misconduct, an inquiry is required to be initiated in order to come to the rightful conclusion about proving or disproving of the charges.
33. This Court after taking into consideration the facts in entirety as discussed hereinabove, is of the view that the order passed by the learned Single Judge suffers from error, accordingly, quashed and set aside.
34. In the result, writ petition being W.P.(S) No.5091 of 2019 stands dismissed.
35. Accordingly, the instant appeal stands allowed with the following directions:-
(i) The departmental proceeding is revived to the stage of memorandum of charge dated 26.07.2019;
(ii) The appellant-University will provide an opportunity to make representation as stipulated in the memorandum of charge;
(iii) It is left open upon the appellant-University to take decision 28 for appointment of Inquiry Officer, if reply furnished by the writ petitioner in terms of the opportunity to file representation as has been referred in the memorandum of charge is found to be unsatisfactory and conclude the proceeding by providing reasonable opportunity of hearing to the writ petitioner;
(iv) The departmental proceeding must be concluded within the period of three months' from the date of receipt/production of copy of the order; and
(v) The parties are directed to cooperate with the proceeding.
Needless to say that in case of non-cooperation in the departmental proceeding by the writ petitioner, the appellant-University will be at liberty to take decision in accordance with Law.
36. Since we are passing an order for conclusion of departmental proceeding within three months' from the date of receipt of copy of the order taking into consideration the fact that suspension is a device to keep the delinquent out of the mischief range in order to achieve the purpose to complete the proceedings unhindered and the delinquent may not be able to impede the departmental proceeding in any way, therefore, we are not interfering with the order of suspension dated 09.05.2019
37. In Consequent to disposal of this appeal, Interlocutory Applications being I.A.No.2889 of 2020 and I.A.No.3618 of 2020 also stand disposed of.
I agree (Dr. Ravi Ranjan, C.J.)
(Dr. Ravi Ranjan, C.J.)
(Sujit Narayan Prasad, J.)
Rohit/-
A.F.R.