Chattisgarh High Court
Dr. Ashish Rastogi vs Guru Ghasidas Central University on 16 November, 2022
Author: Parth Prateem Sahu
Bench: Arup Kumar Goswami, Parth Prateem Sahu
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 440 of 2021
1. Guru Ghasidas Central University through Registrar, Guru
Ghasidas Central University, Koni, Tehsil & District Bilaspur
(CG)
2. Registrar Guru Ghasidas University, Koni, Tehsil & District
Bilaspur (CG).
3. Disciplinary Authority & Vice Chancellor, Guru Ghasidas
Central University, Koni, Tehsil & District Bilaspur (CG)
4. Enquiry Officer (Prof. P.K. Bajpai) Department of Physics,
Guru Ghasidas University, Kon, Tehsil & District Bilaspur,
Bilaspur (CG)
---- Appellants/Respondents
Versus
• Dr. Ashish Rastogi, aged about 44 years, S/o Shri Sitaram
Rastogi, Occupation Service, (Now Removed) Worked as
Lecturer (Selection Grade), equivalent to Assistant Professor,
Department of Computer Science & Information Technology
Guru Ghasidas Central University, Bilaspur, Chhattisgarh, R/o
32, J.P. Vihar Mangla, Bilaspur, Tehsil & District Bilaspur (CG)
---- Respondent
AND
WA No. 23 of 2022
• Dr. Ashish Rastogi S/o Late Shri Sitaram Rastogi, aged about
52 years, R/o 32, J.P. Vihar, Mangla, Bilaspur, Tehsil & District
Bilaspur (CG)
---- Appellant/Petitioner
Versus
1. Guru Ghasidas Central University Through Registrar, Guru
Ghasidas Central University, Koni, Tehsil & District Bilaspur,
Chhattisgarh
2. Registrar Guru Ghasidas Central University, Koni, Tehsil &
District Bilaspur, Chhattisgarh
3. Disciplinary Authority And Vice-Chancellor, Guru Ghasidas
Central University, Koni, Tehsil & District Bilaspur (CG)
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4. Enquiry Officer (Prof. P.K. Bajpai), Department of Physics,
Guru Ghasidas Central University, Koni, Tehsil & District
Bilaspur, Chhattisgarh
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W.A. No.440/2021
For the Appellants : Mr. Ashish Shrivastava, Sr. Advocate
assisted by Mr. Aman Pandey,
Advocate
For the Respondent : Mr. Ranbir Singh Marhas, Advocate.
W.A. No.23/2022
For the Appellant : Mr. Ranbir Singh Marhas, Advocate
For the Respondents : Mr. Ashish Shrivastava, Sr. Advocate
assisted by Mr. Aman Pandey,
Advocate
Judgment Reserved on 08/08/2022
Judgment delivered on 16/11/2022
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Hon'ble Shri Arup Kumar Goswami, Chief Justice
Hon'ble Shri Parth Prateem Sahu, Judge
CAV ORDER
Per Parth Prateem Sahu, J
1. Both the above writ appeals arise out of common order and therefore, they were heard together and are being decided by this common order.
2. Appellant University filed W.A. No.440/2021 challenging legality and sustainability of order dated 24.11.2021 passed in WPS No.1154/2012 by which learned Singe Judge allowed writ petition in part, held punishment of removal from service to be disproportionate, modified punishment of dismissal from service into stoppage of one increment with non-cumulative effect and directed for reinstatement of respondent forthwith with all consequential service benefits.
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3. Appellant Employee also filed W.A. No.23/2022 challenging imposition of penalty of stoppage of one increment with non- cumulative effect vide order dated 24.11.2021 passed in WPS No.1154/2012.
4. Brief facts of case are that in the year 1996 respondent- employee was appointed as Lecturer in the Department of Computer Science and Information Technology of Guru Ghasidas University, Bilaspur. He was awarded Ph.D. degree in the year 2002 and thereafter he was given pay-scale of 'Selection Grade'. On 19.5.2010 one student by name Vikas Parihaar, who was studying in 2nd Semester of M.Sc. (Information Technology), came to respondent-employee and informed that he has been alleged to have been involved in unfair means while writing exam. Respondent-employee asked him to inform this fact to the Head of Department. Thereafter, respondent-employee along with Professor Amit Saxena (Head of Department), Shri Sadhu Prasad Pandey and Dr. H.S. Hota, unauthorizedly entered into examination center / control room and created obstructions in discharge of duties by the staff posted there. Respondent-employee was placed under suspension. Charge sheet containing two charges was served upon respondent-employee. First charge against respondent employee was that, he unnecessarily/ unauthorizedly entered into examination center without prior permission or information or direction of any competent authority and without there being any solid reason, and 4 thereafter created obstructions in discharge of duties by officers/teachers posted in examination center/ examination control room, which amounts to grave indiscipline, misbehavior and misconduct as also violation of provisions of the Central Universities Act, 2009 (for short 'the Act of 2009') read with the University Ordinances / Statutes and the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short 'the Rules of 1965'). Second charge against respondent employee was to the effect that on 19.5.2010 he made unnecessary and unwanted interference by arguing in high pitch with the Invigilator in connection with unfair means case of Vikas Singh Parihar, student of 2nd semester of M.Sc. (IT), and also prevented exam staff from sealing answer sheets and record of said student, which amounts to disloyalty, irregularity and serious misconduct.
Respondent employee submitted reply to charge sheet denying charges leveled against him. The Enquiry Officer was appointed, who on completion of enquiry proceedings, submitted enquiry report dated 7.8.2010 holding that charges leveled against respondent employee are found proved except the charge that he interfered in proceedings of sealing of answer sheets. It was further recorded that Professor Amit Saxena, Head of Department, is also found involved, but since he was not charge sheeted, no comment is being made. On the basis of enquiry report submitted by the Enquiry Officer, the Vice Chancellor vide order dated 29.2.2012 inflicted major 5 penalty of removal from service upon respondent employee. The order dated 29.2.2012 was put to challenge by respondent employee by filing writ petition.
Learned Single Judge vide order impugned affirmed findings recorded by the Enquiry Officer in report dated 7.8.2010 that charges of misconduct leveled against respondent-employee are found proved, but held that penalty of removal from service imposed on respondent employee is shockingly disproportionate to charges of misconduct held proved against him and consequently, modified penalty of removal from service into stoppage of one annual increment with non-cumulative effect and directed for forthwith reinstatement of respondent employee in service with all consequential service benefits.
5. Learned Senior Counsel for appellant - Guru Ghasidas University would submit that the order dated 29.2.2012 was passed after following due procedure prescribed under the Rules of 1965. Delinquent employee was given proper opportunity of hearing, reply was called to the charges and also to report submitted by Enquiry Officer. Dissatisfied with reply submitted by respondent employee, the Vice Chancellor inflicted penalty of removal from service. He contended that conduct of respondent employee falls within the purview of 'misconduct' as defined in Statute No.31- Conditions of Service for University Employees. Clause 62 (c) of Part-VI of Statute 31 says that every employee shall at all times do 6 nothing which is unbecoming of an employee of the University. Further, Clause-70 envisages that any infringement of Clause 62 to 69 of the Statute 31 shall be regarded as subversive of good discipline and misconduct and will well justify initiation of disciplinary action against such employee. The act of respondent employee, attracting charges leveled against him, falls within purview of 'gross misconduct'. Learned Single Judge without properly appreciating the facts and circumstances of case as also reply submitted by appellant University, reduced punishment of removal from service into minor penalty, which is contrary to law. The High Courts in exercise of jurisdiction under Article 226 of the Constitution of India cannot act as an appellate authority in respect of matters having departmental inquiry and substitute its opinion as an appellate authority when charges stand proved. Interference with quantum of punishment, if charges stand proved, is not permissible merely because the Court finds punishment to be disproportionate.
He next contended that even if the Court reaches to conclusion that penalty imposed upon respondent-delinquent employee was shockingly disproportionate, the imposition of penalty by High Court itself is beyond the scope of judicial review in exercise of power under Article 226 of the Constitution of India. In support of his contention, he placed reliance on judgment of Hon'ble Supreme Court in cases of State Bank of Bikaner & Jaipur vs. Nemic Chand Nalwaya, 7 reported in (2011) 4 SCC 584 and Union of India vs. P. Gunasekaran, reported in (2015) 2 SCC 610.
He further contended that even if one of charges was not found proved by the Enquiry Officer, the same would not curtail power of Disciplinary Authority to impose major penalty, more so when charges found proved against delinquent employee are grave in nature. In support of his contention, he placed reliance upon judgment of Hon'ble Supreme Court in case of Union of India Vs. Sardar Bahadur, reported in (1972) 4 SCC 618.
6. Per contra, learned counsel for respondent employee submits that by filing WA No.23/2022, respondent employee also challenged the order passed by learned Single Judge mainly on the ground that Executive Council exceeded jurisdiction while delegating its power to the Vice-Chancellor of University to impose any punishment upon delinquent employee. Statute-25 (2) starts with non-obstante clause and therefore, it is only Executive Council, who is having jurisdiction to remove a teacher or principal of academic staff, and not the Vice Chancellor. Delegation of power by Executive Council to impose punishment and removing/terminating from service is not provided under the Statute. The members of Executive Council were also witnesses against respondent employee and therefore, they ought to have recused themselves from meeting that took decision with regard to respondent employee.
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In alternate, he also contended that learned Single Judge took note of the fact that no action whatsoever has been taken against other Professors/Lecturers of University who unauthorizedly entered into examination center along with respondent employee, hence the University discriminated between two employees for their one and the same act. Enquiry Officer also recorded involvement of Professor Amit Saxena (HoD), but he was not charged for his act. Upon considering entire material available in enquiry report submitted by Enquiry Officer, learned Single Judge held that penalty inflicted upon respondent employee is shockingly disproportionate to the charges found proved against him.
In support of his contention, learned counsel placed reliance upon decisions of Hon'ble Supreme Court in cases of Chandavarkar Sita Ratna Rao vs. Ashalata S Guram, reported in (1986) 4 SCC 447; Union of India vs. G.M. Kokil, reported in (1984) Supp. SCC 196; Marathwada University v. Seshrao Balwantrao Chavan, reported in (1989) 3 SCC 132; Kumar Pankaj Anand v. Central University of Jharkhand & ors, reported in 2016 SCC Online Jharkhand 829; Dr. P.G. Najpande v. The Jawaharlal Nehru Krishi Vishwavidhyalay & ors, reported in ILR 1999 MP 200.
7. We have heard learned counsel for the parties and perused record of writ appeals as also writ petition. 9
8. As regards writ appeal filed by delinquent employee, the order of learned Single Judge is challenged primarily on following grounds that;
(i) learned Single Judge failed to appreciate that order of punishment is passed by the authority not competent;
(ii) charges framed against employee do not fall within the ambit of 'misconduct', as provided in Clause 13 of Statute No.31, and therefore, employee could not have been punished in department enquiry proceeding initiated against him.
(iii) Member of Executive Council were also witnesses against delinquent employee and therefore, they should have recused themselves from the meeting that took decision against the employee.
9. As regards second ground raised on behalf of appellant employee in writ appeal, learned counsel for employee only referred Clause-13 of the Statute No.31 in support of his contention wherein grounds of termination are mentioned in Clause 13 (a), which reads as under:-
"13 (a) The services of a University employee may be terminated on any of the following grounds:-
(i) Willful neglect of duty.
(ii) Misconduct.
(iii) Physical or mental illness.
(iv) When the post he is holding is abolished.
(v) Conviction in a Court of Law for an offence
involving moral turpitude.
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10. Clause13 (b) of the Statute No.31 specifies lapses which would constitute 'misconduct' on the part of persons holding teaching posts in the University and the same is reproduced below:-
"(b) The following lapses would constitute misconduct on the part of persons holding teaching posts in the University Teaching Department / Schools of Studies-
(i) Failure to perform his academic duties such as Lectures, demonstration, assessment, guidance, invigilation etc.
(ii) Gross partiality in assessment of students, deliberately over making/ under marking or attempts at victimization on any grounds.
(iii) Inciting students against other students, colleagues or administration. This does not interfere with the right of a teacher to express his difference on principles in seminars or other places where students are present.
(iv) Raising questions of caste, creed, religion, race or sex in his relationships with his colleagues and trying to use the above considerations for improvement of his prospects.
(v) Refusal to carry out the decisions by appropriate administrative and academic bodies and/or functionaries of the University.
This will not inhibit his right to express his differences with their policies or decision."
11. Part-VI of the Statute No.31 deals with 'miscellaneous' provisions. Relevant clauses of Part-VI are quoted below for ready reference:-
"62. Every employee shall at all times:11
(a) maintain absolute integrity;
(b) show devotion to duty; and
(c) do nothing which is unbecoming of an employee of the University.
63.No employee shall join or continue to be a member of such association the objects or activities of which are prejudicial to the University or Public Order, decency, or morality.
64. No employee shall:-
(i) engage himself or participate in any demonstration which is prejudicial to the interest of the University, public order, decency or morality or which involves in contempt of Court, defamation or incitement to an offence, or
(ii) resort to or, in any way, abet any form of violence in connection with any matter pertaining to his service or the service of any employee.
70. Any infringement of provisions of paras 62 to 69 of this Statute shall be regarded as subversive of good discipline and misconduct and will well justify the initiation of disciplinary action against such employee."
12. From perusal of provisions under Clauses 62 & 63 of the Statute No.31, it is clear that infringement of any of the provisions under Part-VI of the Statute No.31 amounts to 'misconduct' and will justify initiation of disciplinary action against such employee. Learned counsel for delinquent employee only referred some portion of the provisions of Part VI specifying misconduct with respect to teachers only but not 12 pleaded and made submissions with respect to conduct of all employees of the University including teaching staff.
13. So far as the ground with respect to competency of authority who passed the order imposing major penalty of removal from service on delinquent employee is concerned, perusal of order dated 29.2.2012 (Annexure P-1 to writ petition) would show that it was passed by the Vice-Chancellor-cum-Disciplinary Authority. True it is that Clause-25 of the Second Schedule of the Act of 2009 grants power to the Executive Council to remove a teacher or member of academic staff or other employee, as the case may be, on the ground of misconduct after providing opportunity of hearing. Statute under the Act of 2009 provides for delegation of powers. Clause 39 of the Second Schedule of the Act of 2009 provides that any officer or authority of the University may delegate his or its power to any other officer or authority or person under his or its respective control and subject to the condition that overall responsibility for the exercise of the powers so delegated shall continue to vest in the officer or authority delegating such powers. Clause-39 reads thus:-
"39. Subject to the provisions of this Act and the Statutes, any officer or authority of the University may delegate his or its power to any other officer or authority or person under his or its respective control and subject to the condition that overall responsibility for the exercise of the powers so delegated shall continue to vest in the officer or authority delegating such powers."13
14. Section 9 of the Act of 2009 prescribes the officers of the University, which includes Vice-Chancellor. Section 11 says that Vice-Chancellor shall be appointed by the Visitor in such manner as may be prescribed by the Statute. Section 11 (2) says that Vice-Chancellor shall be Principal executive and academic officer of the University and shall exercise general supervision and control over affairs of the University and give effect to the decisions of all the authorities of the University. 'Executive Council' is one of the authorities of the University prescribed in Section 19 of the Act of 2009.
15. Respondent University has taken a specific plea that Disciplinary Authority is Executive Council. The Executive Council in its meeting dated 14.2.2012 resolved to delegate power/ authorization to Vice-Chancellor cum Chairman to take action against teaching and non-teaching staff of University based on enquiry report and in support thereof, respondent University placed on record copy of Minutes of Emergent Meeting of Executive Council dated 14.2.2012 along with an application for taking additional submissions and documents on record.
16. Perusal of minutes of meeting dated 14.2.2012 would show that total seven members, which includes Chairman & Secretary, were present in meeting; several agendas were considered out of which six agendas were under the heading "any other matter with permission of Chairman". Under this heading, Item No.5 relates to taking of action against 14 teaching and non-teaching staff of University based on enquiry reports. On this agenda, the Executive Council concluded and resolved that Vice-Chancellor -cum- Chairman is authorized to take action based on enquiry reports. Minutes of Meeting further shows that it bears signature of only Vice- Chancellor-cum-Chairman and Registrar (Acting) -cum- Secretary of Executive Council. It does not bear signatures of other members who were shown to be present in meeting of Executive Council held on 14.2.2012. In such a situation, it is to be considered whether meeting dated 14.2.2012 is validly convened or not.
17. When under any rule, law or statute a body is constituted like Executive Council consisting of more than one member and any decision is to be taken with majority consensus by such body, then presence of members of such body in meeting and their agreement on any decision taken on any agenda/ issue, is mandatory requirement. Presence of members of the Executive Council could be ascertained from their signatures in proceeding drawn on the date of meeting stated to be held by Executive Council. Mere mentioning of names of members or participants in meeting of Executive Council will itself not be sufficient to say that meeting of Executive Council was conducted with full quorum. In Minutes of Meeting dated 14.2.2012 placed before this Court it is mentioned that following were present and seven names were mentioned, but Minutes of Meeting was signed by only two persons at the end 15 of proceeding drawn and not by all seven members. Ordinarily, Minutes of Meeting is to be signed by all members who were present in meeting as a mark of their agreement to decision/resolution drawn in the meeting. If minutes of meeting is not signed by all members shown to be present, then, it cannot be said that they attended the meeting. Presence of members shown to be present is not proved. In the aforementioned facts of case, as are reflecting from documents placed on record by respondent University, this Court is of the view that respondent University failed to establish that Meeting of Executive Council stated to be held on 14.2.2012 resolved to authorize Vice-Chancellor to take action based on enquiry reports along with other decision. As such, it cannot be said that Vice-Chancellor-cum Chairman of Executive Council was having any authorization to pass order dated 29.2.2012 (Annexure P-1 to writ petition).
18. Learned Single Judge framed two issues for consideration i.e.
(i) whether the Executive Council was well within its jurisdiction to delegate its power to impose any of punishment upon Vice Chancellor / respondent No.3 and that has rightly been exercised by the Vice-Chancellor of the respondent University; and (ii) Whether the order of punishment of removal from service of the petitioner is disproportionate to the misconduct found proved against him?. Learned Single Judge dealt with Issue No.2 first and relying on decisions of Hon'ble Supreme Court recorded finding on Issue No.2 that 16 punishment of removal from service imposed on delinquent employee (petitioner) is disproportionate to misconduct found proved against him and reduced punishment. After giving finding on Issue No.2, learned Single Judge did not consider it appropriate to decide Issue No.1.
19. In view of our above discussion, it is hereby declared that order dated 29.2.2012 (Annexure P-1 to writ petition) is without jurisdiction. Resultantly, WA No.23/2022 preferred by delinquent employee is allowed. Impugned order passed by learned Single Judge dated 24.11.2021 in WPS No.1154/2012 as also order dated 29.2.2012 (Annexure P-1 to writ petition) are set aside. As we have held the order (Annexure P-1 to writ petition) passed on the basis of enquiry report to be without jurisdiction, WA No.440/2021 filed by appellant University is dismissed.
20. Now the question arises as to what will be procedure to be followed after setting aside of order of removal of delinquent employee. The Constitution Bench of Hon'ble Supreme Court in case of Managing Director, ECIL, Hyderabad etc. etc. v. B. Karunakar, etc. etc., reported in AIR 1994 SC 1074 considered that in case removal/dismissal of employee is set aside on technical grounds i.e. of committing some procedural mistake, then the matter is required to be sent back to authority concerned with liberty to proceed with inquiry proceedings from the stage where procedural mistake had crept in and to pass fresh orders in accordance with law. 17
21. In given facts and circumstances of case and in light of decision of Hon'ble Supreme Court in B. Karunakar (supra), the matter is remanded back to the Disciplinary Authority to take appropriate decision and pass order based on enquiry report in accordance with law.
22. In the result;
• WA No.440/2021 stands dismissed.
• WA No.23/2022 stands allowed in part.
Sd/- Sd/-
(Arup Kumar Goswami) (Parth Prateem Sahu)
Chief Justice Judge
roshan/-