Madhya Pradesh High Court
Prof. A.D.N. Bajpai vs State Of Madhya Pradesh And Anr. on 13 September, 2007
Equivalent citations: 2008(1)MPHT463
ORDER Abhay M. Naik, J.
1. Facts leading to the petition are that the petitioner joined as 'Kulpati' (Vice Chancellor) of Awadhesh Pratap Singh Vishwavidyalay (hereinafter referred to as 'APS University' for brevity) on 15-9-2003 for a period of four years. Hon'ble Governor of State of Madhya Pradesh in the capacity of 'Kuladhipati' (Chancellor) of the APS University constituted a Committee for making enquiry with respect to various allegations relating to administrative, financial and academic irregularities against the petitioner. It was found prima facie that further enquiry was required against the petitioner within the meaning of Sub-section (3) of Section 14 of M.P. Vishwavidyalay Adhiniyam, 1973 (hereinafter referred to as 'University Act' for short). Accordingly, an order was passed on 23-9-2006 by the 'Kuladhipati' to make an enquiry in public interest vide Annexure A-l. Petitioner was provided with an opportunity to prove his case before the enquiry committee. The Committee levelled in all 19 allegations against the petitioner with respect to 7 financial irregularities, 6 academic irregularities and 6 administrative irregularities. Certain allegations were, ultimately, found as proved by the enquiry committee and on its basis a show-cause notice dated 6-12-2006 contained in Annexure A-3 was issued to the petitioner in exercise of powers under Sub-section (4) of Section 14 of the University Act. Hon'ble 'Kuladhipati' in exercise of powers under Section 14(4) of the University Act directed the petitioner to show cause as to why an order for relinquishment from the post of Vice Chancellor may not be passed against the petitioner for the latter's inability to discharge the duties as provided in Clauses (i), (ii) and (iii) of Sub-section (3) of Section 14 of the University Act. It was further mentioned in the show-cause notice that in case, if, the petitioner wishes to peruse the record or to obtain the copies, he may submit a list of such record/documents to the Registrar of the University. Petitioner submitted his reply to the show-cause notice as contained in Annexure A-6. Writ Petition No. 18476/06 (S) was submitted by the petitioner against the show-cause notice which was dismissed by this Court on 5-12-2006 on the ground that no case for interference was made out. Hon'ble 'Kuladhipati', thereafter, passed the impugned order dated 25-1-2007 contained in Annexure A-8 holding that the petitioner has failed to discharge his duties entrusted to him under the Act and has acted in certain cases against the interest of the University in adverse manner and that the petitioner has been unable to manage the activities of the University. Hon'ble 'Kuladhipati' found that the petitioner's continuance on the post of 'Kulpati' was not in the interest of the University. Accordingly, in exercise of the powers under Sub-section (3) of Section 14 of the University Act, the petitioner was ordered to relinquish the post of Vice Chancellor with effect from 27-1-2007. Simultaneously, Hon'ble 'Kuladhipati' nominated Dr. R.N. Shukla, Professor, Environment Biology, APS University, Rewa to act as 'Kulpati' of the APS University until further orders or until appointment of 'Kulpati' in accordance with Section 13 (1) of the University Act. This order is on record as Annexure A-9.
2. In the aforesaid background, the present petition has been submitted by the petitioner with allegations that the entire action on the part of respondent No. 2 is illegal, arbitrary and malafide. According to the petitioner, the enquiry conducted against the petitioner is in contravention of the mandatory provisions of the University Act. No enquiry has been held under Section 10 of the University Act, which alone could have been resorted to. It is contended that without holding an enquiry under Section 10 of the said Act, the impugned order contained in Annexure A-8 could not have been legally passed. It is further contended that the respondent No. 2 ought to have made a complaint to Lokayukt under Section 10-A of the said Act. Particulars of the complainants were not provided to the petitioner and the same were not even disclosed. Copies of the complaints were also not supplied to the petitioner. Accordingly, it is contended that the impugned order having been passed in violation of the principles of natural justice, is not sustainable in law. Petitioner has not committed any irregularity; financial, academic or administrative and could not have been ordered to relinquish the post of Vice Chancellor in the impugned manner. Enquiry under Section 10 of the said Act is sine qua non for exercise of power under Section 14(3) of the University Act. The impugned order having been passed in exercise of such powers without making an enquiry required mandatorily under Section 10 of the University Act is liable to be quashed. This apart, most of the allegations against the petitioner were found not proved and on the basis of proven charges, the impugned order regarding relinquishment is not sustainable in law being highly disproportionate. Order directing relinquishment was not warranted in the facts and circumstances of the case. Moreover, the impugned order has also been passed ignoring the observations of this Court made in Annexure A-7.
3. Respondent No. 2 submitted his return refuting thereby the allegations contained in the writ petition. According to respondent No. 2, the impugned order has been passed by the Hon'ble 'Kuladhipati' after due enquiry and in accordance with the provisions of the University Act. Petitioner was found to have acted against the interest of the University and was found guilty of various charges. He failed to discharge the duties of Vice Chancellor and was unable to manage the administration of the University. Accordingly, the powers under Section 14(3) of the said Act have been rightly and lawfully exercised.
Petitioner submitted his rejoinder with supporting affidavit.
4. Shri K.P. Mishra and Shri Rajendra Tiwari, learned Senior Advocates, argued at length. Their arguments have been considered in the light of the material on record and the law governing the situation in succeeding paragraphs.
5. First submission of Shri K.P. Mishra, learned Senior Counsel is that the copy of complaints were not provided to the petitioner. Even the particulars of the complainants were not disclosed. I am not impressed with the submission for the reason that allegations were levelled against the petitioner with respect to financial, academic and administrative irregularities. This Court is required to examine irrespective of the particulars of the complainants, that whether the charges against the petitioner are established and the powers under the University Act and the statute made thereunder could be legally exercised. There were no personal allegations viz-a-viz the alleged complainants, therefore, non-disclosure of particulars of the complainants did not prejudice the petitioner. Moreover, learned Senior Counsel has been unable to demonstrate that how and in what manner the non-disclosure of complainants would be fatal to his defence. Since the enquiry was made by a duly constituted committee and the petitioner was given an opportunity to adduce his defence, non-supply of complaints is not found to have created any hindrance in participation of the petitioner in the enquiry in an effective manner. Moreover, the complaints on having been prima facie found to contain substance, an enquiry was directed. No reliance is found to have been placed on the alleged complaints or part thereof and the allegations made in the alleged complaints are not found to have been treated as proof of allegations. In this view of the matter, the grievance of the petitioner about non-disclosure of the particulars of the complainants and non-supply of the copies of complaints has no bearing on the present writ petition.
6. It is further submitted that before passing an order under Section 14(3) of the University Act, an enquiry under Section 10 ought to have been made. Without holding such an enquiry, the impugned order contained in Annexure A-8 is without jurisdiction.
7. In order to examine this plea, it is necessary to examine the Scheme of the University Act, moreso, the provisions contained in Sections 10 and 14. Section 10 is reproduced below for convenience:
10. (1) The Kuladhipati may, on his own motion, and shall on a request made by the State Government cause an inspection to be made by such person, or persons as he may direct, of the University, its buildings, laboratories, museums, workshops and equipment and of any College or Institution maintained by the University or admitted to its privileges, and also of the Examinations, teaching and other work conducted or done by the University and cause an inquiry to be made in the manner in respect of any matter connected with the administration or finances of the University, Colleges or Institutions.
(2) The Kuladhipati shall, in every case, give notice of his intention to cause an inspection or inquiry to be made:
(a) to the University, if such inspection or inquiry is to be made in respect of the University, College or Institution maintained by it;
(b) to the management of the College or Institution if the inspection or inquiry is to be made in respect of a college or institution admitted to the Privileges of the University and the University or management, as the case may be, shall be entitled to appoint a representative who shall have the right to be present and be heard at such inspection or inquiry.
(3) Such person shall report to the Kuladhipati the result of such inspection or inquiry and the Kuladhipati shall communicate through the Kulpati to the Executive Council or the said management, as the case may be, his views with reference to the result of such inspection or inquiry and shall after ascertaining the opinion of the Executive Council or the management thereon advise the University or the management upon the action to be taken:
Provided that where an inspection or inquiry is caused on a request from the State Government the Kuladhipati shall take action under this sub-section in consultation with State Government.
(4) The Executive Council or the management as the case may be, shall communicate through the Kulpati to the Kuladhipati such action, if any, as it has taken or may propose to take upon the result of such inspection or inquiry and such report shall be submitted within such time as the Kuladhipati may direct.
(5) Where the Executive Council or the management, does not, within a reasonable time, take action to satisfaction of the Kuladhipati, the Kuladhipati may, after considering any explanation furnished or representation made by the Executive Council or the management, issue, in consultation with the State Government such directions as he may think fit and the Executive-Council or management as the case may be shall comply therewith.
Perusal of the aforesaid provision makes it clear that Sub-section (1) empowers the Kuladhipati to cause inspection of the University, its building laboratories, museums, workshops and equipment and of any college or institution maintained by the University or admitted to its privileges, and also of the Examinations, teaching and other work conducted or done by the University and cause an enquiry to be made in like manner in respect of any matter connected with the administration or finances of the University, Colleges or Institutions.
8. University has been defined in Section 4(xvii) of the University Act as follows:
4. (xvii) University means,-
(i) the University deemed to be established ynder this Act and specified in Part 1 of the Second Schedule; and (ii) the University which may be established after the commencement of this Act and specified in Part II of the Second Schedule.
9. Sub-section (2) of Section 10 of the University Act, requires the Kurddnipati to give notice of his intention to cause an inspection or inquiry to the University and to the management of the College or Institution. Under Sub-section (3) of the said Act, the report of inspection/enquiry shall be made to the Kuladhipati who is required to communicate through the Kulpati to the Executive Council or the said management as the case may be and is further required after ascertaining the opinion of the Executive Council or the management thereon to advise the University or the management upon the action to be taken. Proviso to this Sub-section does not come into play because the inspection or inquiry in the case in hand was not made on a request from the State Government. Further under Sub-section (4), the Executive Council or the management is required to communicate through the Kulpati to the Kuladhipati of the proposed action. In case of failure on the part of Executive Council or the management to take action within a reasonable time to the satisfaction of the Kuladhipati, the Kuladhipati is empowered under Sub-section (5) to issue the directions after considering the explanation furnished or representation made by the Executive Council or the management. Such directions would be issued to the Executive Council or the management who would be bound to make the compliance of such directions.
10. In totally, Section 10 of the University Act prescribes a procedure for action against the University, College or Institution. The communication of result of the inspection or inquiry is to be made by the Kuladhipati through the Kulpati to the Executive Council or the management.
11. Powers of Executive Council are provided in Section 24 of the University Act, which are to the following effect:
24. Subject to the provisions of this Act, and the Statutes, Ordinances and Regulations made thereunder, the Executive Council shall have the following powers and perform the following duties, namely:
(i) to hold, control and administer the property funds of the University;
(ii) to administer the funds placed at the disposal of the University for specific purposes;
(iii) to adopt annual accounts together with the audit report;
(iv) to frame the annual financial estimates of the University and to place them before the Court for its consideration;
(v) (a) to adopt the annual financial estimates after considering suggestions of the Court, if any;
(b) to fix the limit for the total recurring expenditure and total non-recurring expenditure for the year based on the resources of the University which in the case of productive works may include the proceeds of loans;
(vi) subject to Clause (v), at any time during the financial year:
(a) to reduce the amount of the budget grant;
(b) to sanction the transfer of any amount within a budget grant from one head to another or from a subordinate head under one minor head to a subordinate head under another minor head; or
(c) to sanction the transfer of any amount not exceeding rupees five thousand within a minor head from one subordinate head to another or from one primary unit to another;
(vii) to borrow the lend funds on behalf of the University:
Provided that funds shall not be borrowed on the security of University property without the prior approval of the State Government;
(viii) to transfer any movable or immovable property on behalf of the University:
Provided that no immovable property of the University shall, except with the prior sanction of the State Government, be transferred by way of mortgages, sale, exchange, gift or otherwise;
(ix) to enter into, vary, carry out and cancel contracts on behalf of the University in the exercise of performance of the powers and duties assigned to it by this Act, and the Statutes.
(x) to determine the form of, provide for the custody and regulate the use of the common seal of the University;
(xi) to lay before the Commissioner, Higher Education, annually a full statement of the financial requirements of all colleges and halls;
(xii) to admit colleges to the privileges of the University on the recommendation of the Academic Council and with the previous sanction of the Commissioner, Higher Education and subject to the provisions of this Act and Statutes and to withdraw any of the privileges and to take over the management of the college in the manner and under conditions prescribed by the Statutes and Ordinances;
(xiii) to declare Teaching Department of the University; Schools of Studies or Colleges, autonomous Colleges:
Provided that the extent of autonomy which each such Teaching Department of the University, School of Studies or Colleges may have and the matters in relation to which it may exercise such autonomy, shall be such as may be prescribed by the Statute;
(xiv) to make provision for building, premises, furniture apparatus, books and other means needed for carrying on the works of the University;
(xv) to accept on behalf of the University, trusts, bequests, donations and transfers of any movable or immovable property to the University;
(xvi) to manage and regulate the finances, accounts and investments of the University;
(xvii) to institute and manage;
(a) a Printing, Publication and Translation Bureau;
(b) an Information Bureau;
(c) an Employment Bureau;
(xviii) to make provision for:
(a)(i) Extramural teaching and research,
(ii) University extension activities,
(iii) Correspondence Courses,
(b) Physical Training;
(c) Students Union;
(d) Students Welfare;
(e) Sports and Athletic activities;
(f) Social Service Schemes; and
(g) National Cadet Corps;
(xix) to scrutinise all proposals of the Academic Council with a view to their execution within the framework of the budget;
(xx) to institute such Professorships, Readerships, [***] Lecturerships or other teaching posts as may be proposed by the Academic Planning and Evaluation Board:
Provided that no teaching post shall be instituted without the prior approval of the Commissioner, Higher Education;
(xxi) to create administrative, ministerial and other posts with the prior sanction of the State Government;
(xxii) to abolish or suspend, after report from the Academic Planning and Evaluation Board thereon any Professorships, Readerships [***] Lecturerships, or other teaching posts in the University;
(xxiii) to establish, maintain and manage colleges, teaching departments, institutions of research or specialised studies, laboratories, libraries, museums and halls;
(xxiv) to recognise halls and to provide housing accommodation for teachers of the University paid by the University;
(xxv) to arrange for and direct the inspection of affiliated colleges, recognised institutions and halls and to issue instructions for maintaining their efficiency and for ensuring proper conditions of employment for members of their staff, and payment of adequate salaries, and, in case of disregard of such instructions, to modify on the recommendations of the Academic Council the conditions of affiliation or recognition or taking of such other steps as it deems necessary and proper in that behalf;
(xxvi) to prepare a college code laying down therein the terms and conditions of affiliation of colleges other than Government Colleges;
(xxvii) to call for reports, returns and other information from affiliated colleges, recognised institutions or halls;
(xxviii) to supervise and control the admission, residence, conduct and discipline of the students of the University and to make arrangements for promoting their health and general welfare;
(xxix) to recommend to the Kuladhipati the conferment of Honorary degrees and academic distinctions in the manner prescribed by Statutes;
(xxx) to confer or withdraw degrees, diplomas, certificates and other academic distinctions in the manner prescribed by the Statutes;
(xxxi) to institute fellowships, scholarships, studentships, exhibitions, medals and prizes;
(xxxii) save as otherwise provided by this Act, or the Statutes, to appoint the officers other than Kulpati, teachers and other employees of the University, to define their duties and the conditions of their service, and to provide for the filling of temporary vacancies in their posts;
(xxxiii) to regulate and enforce discipline among members of the teaching, administrative and ministerial staff of the University in accordance with the Statutes and Ordinances;
(xxxiv) to recognise a member of the staff of an affiliated college or recognised institution as a teacher of the University and withdraw such recognition;
(xxxv) to fix remuneration of examiners and to arrange for the conduct of and for publishing the results of the University examinations and other tests;
(xxxvi) to cancel examinations in the event of malpractices partially or wholly and to take action against any person or group of persons or institutions found guilty of such malpractices, including rustication of students;
(xxxvii) to take disciplinary action against students enrolled in the University, including candidates for any examinations;
(xxxviii) to take disciplinary action against staff, persons appointed as invigilators, examiners, etc.;
(xxxix) to fix, demand and receive such fees and other charges as may be prescribed by the Ordinances;
(xl) to make, amend and cancel Ordinances;
(xli) to accept, reject or return to the Academic Council for consideration but not to amend, Regulation framed by the Academic Council;
(xlii) to entertain, adjudicate upon and, if deemed fit, to redress grievances of the employees and the students;
(xliii) to exercise such other powers and perform such other duties as may be conferred or imposed on it by or under this Act;
(xliv) to exercise all powers, of the University not otherwise provided for in this Act or the Statutes and all other powers which are requisite to give effect to the provisions of this Act or the Statutes;
(xlv) to delegate by Regulations any of its powers to the Kulpati, the Registrar or such other officer of the University or a Committee appointed by it as it may deem fit.
A bare look at Section 24 of the University Act makes it clear that the Executive Council has no power to take action against the Kulpati. Moreover, the communication under Sub-sections (3) and (4) is required through the Kulpati, who cannot be permitted to be a Judge or participant in the matter of any complaint against himself.
12. This Court may further examine Section 14 of the University Act, which is as follows:
14.(1) The Kulpati shall be a whole time salaried officer of the University and his emoluments and other terms and conditions of service shall be prescribed by the Statutes.
(2) The Kulpati shall hold office for a term of four years and shall not be eligible for appointment for more than two terms;
[***] Provided that notwithstanding the expiry of his term he shall continue to hold office until his successor is appointed and enters upon his office but this period shall not in any case exceed six months.
(2-A) The person holding office of the Kulpati in any University immediately before the commencement of the Madhya Pradesh Vishwavidyalay (Sanshodhan) Adhiniyam, 1988, shall continue to hold his office till the expiry of his term of office notwithstanding anything contained in the first proviso to Sub-section (2).
(3) If at any time upon representation made or otherwise and after making such enquiries as may be deemed necessary, it appears to the Kuladhipati that the Kulpati:
(i) has made default in performing any duty imposed on him, by or under this Act; or
(ii) has acted in a manner prejudicial to the interest of the University; or
(iii) is incapable of managing the affairs of the University the Kuladhipati may, notwithstanding the fact that the terms of office of the Kulpati has not expired, by an order in writing stating the reasons therein, require the Kulpati to relinquish his office as from such date as may be specified in the order.
(4) No order under Sub-section (3) shall be passed unless the particulars of the grounds on which such action is proposed to be taken are communicated to the Kulpati and he is given a reasonable opportunity of showing cause against the proposed order.
(5) As from the date specified in the order under Sub-section (3), the Kulpati shall be deemed to have relinquish the office and the office of the Kulpati shall fall vacant.
(6) In the event of the occurrence of any vacancy including a temporary in the office of the Kulpati by reason of his death, resignation leave, illness or otherwise the Rector and if no Rector has been appointed or if the Rector is not available, the Dean of any faculty or the senior most Professor of University teaching department nominated by the Kuladhipati for that purpose shall act as the Kulpati until the date on which the Kulpati appointed under Sub-section (1) or Sub-section (7) of Section 13, enters or re-enters as the case may be, upon his office:
Provided that the arrangement contemplated in this sub-section shall not continue for a period of more than six months.
A perusal of the aforesaid provision makes legislative intent clear that Section 14 is not made dependent of Section 10. There is no reference to any of the provisions of Section 10 in Section 14 of the University Act. Thus, the legislative intent behind Section 14 is clear that no enquiry under Section 10 is contemplated for exercise of powers under Section 14 either expressly or by necessary implication. Section 14 deals with Emoluments and Conditions of service of Kulpati. Sub-section (3) of Section 14 is very much clear that Kuladhipati, if, finds that the Kulpati has made default in performing any duty imposed on him or has acted in a manner prejudicial to the interest of the University or is incapable of managing the affairs of the University, may require the Kulpati to relinquish his office. From the language of Section 10 as well as Section 14, one thing is clear that for exercise of power under Section 14(3), an enquiry under Section 10 was not required to be made; nor was it contemplated. A complete procedure is prescribed under Section 14 whose observance is necessary on the part of Kuladhipati before requiring the Kulpati to relinquish his office. This being so, the contention of the petitioner's learned Senior Counsel that absence of enquiry as prescribed under Section 10 of the University Act, would vitiate the impugned order, is not accepted.
13. Shri Mishra, learned Senior Counsel submitted that since the procedure of inquiry is prescribed under Section 10 of the University Act, the impugned order having been passed without following the prescribed procedure under Section 10, is not sustainable in law.
14. I do not find myself in a position to favour this submission because the scope of Sections 10 and 14 is altogether different. Section 14 empowers the Kuladhipati to take action against the Kulpati, whereas, Section 10 has been provided to empower the Kuladhipati to take action against the University, College or Institution. Since an action under Section 10 is to be proposed by the Executive Council or the management and the Executive Council or the management is not empowered to propose any action against Kulpati, provisions of Section 10 are not liable to be invoked while exercising powers under Section 14.
15. Further contention of Shri Mishra, learned Senior Counsel is that the Kuladhipati instead of passing the impugned order ought to have referred the matter to Lokayukt or UP-1okayukt for enquiry under Section 10-A of the University Act. Section 10-A is reproduced below for convenience:
10-A. (1) Notwithstanding anything contained in Section 10, the Kuladhipati may refer to the Lokayukt or UP-1okayukt for enquiry, any complaint or allegation against Kulpati, Rector or Registrar.
(2) On receiving the report of the Lokayukt or UpLokayukt, pursuant to the Provisions of Sub-section (1) or otherwise, the Kuladhipati may, in his discretion, take action without following the procedure laid down in Sub-sections (3), (4) and (5) of Section 10, but in accordance with other relevant provisions of the Adhiniyam and the Rules or Statutes made thereunder.
Aforesaid is an enabling provision under which a reference could have been made by the Kuladhipati to the Lokayukt or UP-1okayukt for enquiry, who could have inquired in the complaint/allegation against the Kulpati. Sub-section (2) of Section 10-A of the University Act, makes it clear that in addition to the power of reference, the Kuladhipati may take action in accordance with other relevant provisions of the Adhiniyam and the Rules or Statutes made thereunder. This itself goes to show that powers under Section 10-A and Section 14 work in different spheres and the action can well be taken under other relevant provisions of the University Act and the Rules or the Statutes made thereunder. On scrutiny of Section 10-A in the light of the provisions contained in M.P. Lokayukt and UP-1okayukt, 1981, it is found that this Section is merely of enabling nature and it does not divest the Kuladhipati of his powers under other relevant provisions of the University Act and the Rules or Statutes made thereunder. Thus, it was not obligatory on the part of Kuladhipati to refer the complaint or allegations against Kulpati to the Lokayukt or UP-1okayukt for enquiry and the Kuladhipati is well within his powers to act in accordance with Section 14 of the University Act.
16. Contention of Shri Mishra, learned Senior Counsel is that the powers under Sub-section (3) of Section 14 of the University Act, could not have been exercised without holding an enquiry prescribed under Section 10, and the impugned order contained in Annexure A-8 is vitiated in the absence of such an enquiry.
17. Under Sub-section (3) of Section 14 of the University Act, the Kuladhipati, if, it appears to him after making such inquiries, as may be deemed necessary that the Kulpati has made default in performing any duty imposed on him by or under the University Act, or has acted in a manner prejudicial to the interest of the University, or is incapable of managing the affairs of the University may require Kulpati to relinquish his office. On the basis of the language used in Sub-section (3), it cannot be said that this provision has been made dependent of Section 10 in any manner for the purpose of enquiry. On the contrary, it has been clearly mentioned in Sub-section (3) that the Kuladhipati may make such inquiries as may be deemed necessary. Had the legislature intended to make the enquiry as prescribed under Section 10 compulsory, it could have been clearly mentioned in this Sub-section. Sub-section (3), thus, speaks about the subjective satisfaction of the Kuladhipati with regard to failure on the part of the Kulpati in respect of the situations enumerated therein. It is no doubt true that the University is constituted by virtue of Section 5 of the University Act by the Kuladhipati, Kulpati, members of the Court, of the Executive Council and the Academic Council, but the action against Kulpati by the Kuladhipati is contemplated under Section 14 of the Act, which by no stretch of imagination can be said to be dependent in any manner of Section 10. Under Sub-section (2) of Section 10, the Kuladhipati shall give notice of his intention to cause an inspection or enquiry to be made to the University and/or to the management of the College or Institution. Result of such inspection/inquiry is to be reported to the Kuladhipati who communicates his views with reference to the result of such inspection or inquiry through the Kulpati to the Executive Council or the said management. The Kuladhipati after ascertaining the opinion of the Executive Council or management shall advise the University or the management upon the action to be taken. Since the University or the Executive Council or management has no power to take action against Kulpati, the provisions contained in Section 10 of the University Act cannot be invoked in the matter of relinquishment of the post of Kulpati. On the other hand, the Kuladhipati by virtue of Sub-section (4) of Section 14 is required to communicate the particulars of the grounds on which action under Sub-section (3) is proposed to be taken and is further required to give a reasonable opportunity to the Kulpati of showing cause of the proposed order under Sub-section (3).
18. Under Section 10 of the University Act, the University or management alone is entitled to be heard at the time of inspection or inquiry, whereas, under Sub-section (4) of Section 14, the Kulpati is to be necessarily provided with a reasonable opportunity of showing cause against the particulars of the grounds as well as the proposed order. Thus, the enquiry contemplated under Sub-section (4) of Section 14 is quite independent and Section 14 cannot be treated as dependent of Section 10.
19. Here, I may also refer to Section 52 of the University Act, which empowers the State Government to supersede the University when the State Government is satisfied that the administration of the University, cannot be carried out in accordance with the provisions of the Act. In this situation also, the Kulpati of the University would stand superseded by the Kulpati appointed by the Kuladhipati by virtue of supersession of University. However, this being not a position in the present case, this Court is not required to dwell upon it any more.
20. Shri Mishra, learned Senior Counsel further contended that the Kuladhipati in exercise of powers under Section 12 of the University Act could have annulled the alleged irregularities under Sub-section (4). No order of annulment has been passed which is indicative otthemalafides on the part of the Kuladhipati. Referring to Page 87, it is contended that the petitioner is found to have awarded Ph.D., in contravention of Clause 22 of Statute 30 read with Section 24 of the University Act. However, the Ph.D. has not been withdrawn and the Kuladhipati has not annulled the proceedings of awarding Ph.D., which was held to be in contravention of law. Thus, it is contended that the action against the petitioner is malafide and the impugned order is not, therefore, sustainable in law. It is contended by Shri Mishra that at Pages 103 and 104 of the writ petition, there are certain suggestions made by the enquiry committee which have not been implemented and they were not followed up. According to the learned Counsel, this also amounts to malafide on the part of respondents.
21. I am not impressed with this submission for the reason that there is no statutory provision obliging the respondents to act in pursuance of the suggestions. Moreso, absence of follow up action in this regard would not amount to malafide so far as the petitioner's case is concerned.
22. It is true that the power of annulment is vested in the Kuladhipati by virtue of Sub-section (4) of Section 12 of the University Act and there is no justification with the respondents not to initiate for withdrawal of Ph.D. which was found to have been awarded in violation of law. However, 9 charges were found to be proved against the petitioner. Therefore, merely, on account of absence of annulment of the order awarding Ph.D. the entire inquiry report containing findings about proven charges cannot be treated as vitiated. It is always easy to term an action as malafide, but is not easy to establish it. Hon'ble Supreme Court of India in the case of E.P. Royappa v. State of Tamil Nadu has held:
We must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations oimalafides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility.
23. In the case in hand 19 charges were levelled against the petitioner; out of which, charge Nos. 1, 2, 4, 6, 7 (partly), 8, 10, 13, 15 and 17-B are found to have been proved. This being so, merely, absence of annulment in case of two out of 9 proven charges, will not vitiate the entire proceedings. Moreso, it was the petitioner who is found to have committed the financial, academic and administrative irregularities as revealed in the enquiry report contained in Annexure A-2.
24. Shri Mishra, learned Senior Counsel referring to point No. 7 of enquity as contained at page Nos. 61 to 63, submitted that the petitioner was not found to have committed any irregularity in allotting the quarter to Shri Shyam Kumar Jha and the petitioner could not have been found guilty with respect to this charge.
25. On perusal, it is found that this charge involved question of recovery/realisation of licence fees from Shyam Kumar Jha (Clerk) at less than prescribed rate. As regards allotment, the petitioner is not found guilty. However, as regards monetary loss, it has been found that Shyam Kumar Jha was allotted 'E' Type quarter which was available at the licence fees of Rs. 700/- per month. Instead, Rs. 425/- per month were recovered from him by virtue of the petitioner's order dated 15-2-2005, which has caused monetary loss to the University. In this view of the matter, the petitioner cannot be said to be fully exonerated of enquiry point No. 7.
26. Shri Mishra, learned Senior Counsel further took this Court through the enquiry report and contended that no work was executed or caused to be executed by the petitioner without financial sanction.
Issue No. 1 (charge No. 1) at Page 34 relates to the allegation regarding absence of financial sanction. Neither in the enquiry nor before this Court an effort was made to place on record or to requisition the financial sanction. On perusal, it is found that at Pages 41 and 42 of the writ petition, it has been clearly found that the petitioner had a right to spend in excess of Rs. 20,000/- only after obtaining administrative and financial sanction. Petitioner was found to have spent excess money in exercise of his powers without obtaining the requisite sanction. Surprisingly, the petitioner has nowhere averred in the writ petition that there were necessary financial sanctions. In the absence of such averment and equally the proof on his part, the petitioner would not be benefited, unless he establishes that the financial sanction was not required at all. Petitioner has been unable to demonstrate that he has spent money within his limitation according to the Financial Code. Details of the money spent by the petitioner in the capacity of Kulpati are already on record in the enquiry report which could have been spent by him only after obtaining the requisite sanction. In the absence of any such sanction, no fault is found with the findings contained in the enquiry report.
27. It has been contended that the University Grants Commission did not raise any objection about financial sanction. This, too, will not give any benefit to the petitioner because the financial sanction was required under the University Financial Code and the petitioner cannot be absolved in the absence of financial sanction, merely, on the ground that no such objection was raised by the University Grants Commission. It is further submitted that the petitioner was not given an opportunity to requisition the financial sanction during enquiry. This submission will not detain this Court any more for the reason that the petitioner has nowhere averred in the writ petition that the requisite financial sanction was available and the entire money was spent by him only after obtaining due financial sanction.
28. Much emphasis has been made on the order of this Court contained in Annexure A-7, passed in Writ Petition No. 18476/06. Suffice it to say, that the said writ petition was submitted when the show-cause notice was issued and served upon the petitioner. Learned Dy. Advocate General in the said petition stated that the decision pursuant to show-cause notice would be taken after considering all the relevant provisions contained in the University Act. Applicability of Section 10-A and/or Section 12 of the University Act was not acknowledged/admitted as revealed in Annexure A-7. Application of a particular provision is always a matter of law and the petitioner having failed to demonstrate the applicability of the said provision cannot be allowed to make grievance. Accordingly, the impugned order is not found to have been passed in violation of Annexure A-7.
29. It is further contended that copies of various documents mentioned in the show-cause notice ought to have been provided to the petitioner and the same was objected to by him as contained in the reply to show-cause notice marked as Annexure A6. In Paragraph 8 of the s how-cause notice, it was clearly mentioned that the petitioner if desirous of making inspection of the record or of obtaining copies, may submit a list of such documents to the Registrar of the University. In the reply contained in Annexure A-6, although, an objection is raised, but the petitioner had not specifically demanded the inspection or copy of any of the documents. The petitioner was given an opportunity vide Paragraph 8 of the show-cause notice. He does not seem to have submitted any such list of documents to the Registrar. This apart, there is no averment in the writ petition nor any such prayer for inspection or for obtaining copies of the documents is made before this Court. This being so, I find that an adequate opportunity of hearing was given to the petitioner.
30. It is further contended that there is no allegation of misappropriation or embezzlement of money against the petitioner. Therefore, the impugned order directing the relinquishment from the post of Kulpati is highly arbitrary and illegal besides being extremely disproportionate. Reliance has been placed on the Supreme Court decisions in Rio. Ram Ashray Yadav Bangalore Medical Trust v. B.S. Muddappa and Ors. , Dr. K.C. Malhotra v. H.P. University Shimla .
31. In case of Dr. Ram Ashray Yadav (supra), no charge of misbehaviour was found to be established, whereas, in the instant case about 9/10 charges are found to be proved against the petitioner.
32. In the case of Bangalore Medical Trust decision (supra), it is held:
Even where Statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbitrarily. It should be guided by reasonableness and fairness.
Further in Paragraph 52, it has been held:
The Section authorises the Government to issue directions to ensure that the provisions of law are obeyed and not to empower it itself to proceed contrary to law. What is not permitted by the Act to be done by the Authority cannot be assumed to be done by State Government to render it legal. An illegality cannot be cured only because it was undertaken by the Government. The Section authorises the Government to issue directions to carry out purposes of the Act. That is the legislative mandate should be carried out. And not that the provision of law can be disregarded and ignored because what was done was being done by State Government and not the Authority. An illegality or any action contrary to law does not become in accordance with law because it is done at the behest of the Chief Executive of the State. No one is above law. In a democracy what prevails is law and rule and not the height of the person exercising the power.
Accordingly, it has been contended that Kuladhipati who happens to be the Governor of the State, cannot be permitted to pass the impugned order under Section 14(3) of the University Act without making an enquiry prescribed under Section 10.
33. It has been already found by this Court that no enquiry prescribed under Section 10 is contemplated for exercising the powers under Section 14(3). An ppportunity of hearing as contemplated under Sub-section (4) of Section 14 was the requirement in the present case which was duly complied with.
34. Shri Mishra, learned Senior Counsel on the basis of Dr. K.C. Malhdtra's decision (supra), submitted that the removal of the petitioner is bad in law on account of illegal inquiry against him. In Dr. K.C. Malhotra's case (supra), the High Court of Himachal Pradesh found that the enquiry conducted against the said K.C. Malhotra was vitiated on account of violation of principles of natural justice. Here the enquiry against the petitioner is not found to have been vitiated as revealed in the preceding paragraphs.
35. Shri Rajendra Tiwari, learned Senior Advocate, contended that the impugned order marked as Annexure A-8 is based on the subjective satisfaction of the Kuladhipati which cannot be challenged on the basis of sufficiency of the material which formed basis for the subjective satisfaction. He placed reliance on the Supreme Court decision in the case of High Court of Judicature at Bombay v. Shashikant S. Patil , wherein it has been held:
The settled legal position is that if there is some legal evidence on which the finding can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court (in a writ petition filed under Article 226 of the Constitution.
36. It is almost a settled law that it is a decision making process which is liable to scrutiny and not the decision itself. It cannot be overlooked that this Court in exercise of powers under Article 226 of the Constitution of India does not act as an Appellate Authority. If the conclusion upon consideration of the evidence reached by the departmental authorities is perverse or suffers from apparent patent error on the face of the record or based on no evidence at all, writ may be issued. In the present case, the enquiry report could not be assailed substantially by the petitioner in successful manner. This being so, no interference is warranted in Annexure A-8.
37. As regards, the plea of highly disproportionate penalty, Shri Rajendra Tiwari, learned Senior Counsel relied upon Ganesh Santa Ram Sirur v. State Bank of India . Accordingly, he submitted that the objection on the ground of absence of misappropriation or embezzlement is not available to the petitioner as he was found to have committed defaults and incapable of managing the affairs within the meaning of Sub-section (3) of Section 14 of the University Act. The Hon'ble Supreme Court in the case of Ganesh Santaram (supra), has approved the submission that "good conduct and discipline are inseparable for the functioning of every officer, Manager or employee of the Bank, who deals with public money and there is no defence available to say that there was no loss or profit resulted in the case, when the Manager acted without authority and contrary to the rules and the scheme which is formulated to help the Educated Unemployed Youth.
38. Hon'ble Supreme Court in the case of Regional Manager, U.P.S.R.T.C., Etawah and Ors. v. Hod Lal and Anr. , has held as under:
If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of the learned Single Judge upholding the order of dismissal.
39. In the result, the enquiry report holding the petitioner to be guilty of number of charges is not found to have been vitiated. The petitioner has been unable to establish, that the enquiry was conducted in contravention of any statutory rule, or in violation of principles of natural justice. It cannot be said to be based on no evidence. Consequently, the impugned order based upon the enquiry report, also cannot be said to be unsustainable.
40. In the result, I do not find any merit in the writ petition. The same is, hereby, dismissed. However, without order as to costs.