Chattisgarh High Court
Dinesh Kumar Lalwani vs Hidayatullah National Law University on 20 July, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
Page 1 of 8
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (S) No. 4383 of 2022
Dinesh Kumar Lalwani, S/o Shri N.K. Lalwani, Aged about 46 years,
R/o 13/15, Panjwani Gali Raipur-492001 Chhattisgarh
---- Petitioner
Versus
1. Hidayatullah National Law University through its Registrar,
Hidayatullah National Law University, Atal Nagar, Raipur, District
Raipur Chhattisgarh.
2. The Vice Chancellor, Hidayatullah National Law University, Atal Nagar
Raipur, District Raipur Chhattisgarh.
3. The Registrar, Hidayatullah National Law University, Atal Nagar
Raipur, District Raipur Chhattisgarh.
4. Shri Mahendra Rathor (Retd. District Judge), Inquiry Officer HIG-I,
D-45 (Aakash), Abhilasha Parisar, Behind Hi-Tech Bus Stand, Tifra,
Bilaspur (C.G.).
5. Dr. Avinash Samal Assistant Professor (Political Science) & Public
Information Officer Hidayatullah National Law University, Atal Nagar
Raipur, District Raipur Chhattisgarh.
6. Dr. Vipan Kumar, Associate Professor & Dean IRAP Hidayatullah
National Law University, Atal Nagar Raipur, District Raipur
Chhattisgarh.
7. Dr. Manish Tiwari, Assistant Grade-III (Personal Assistant to V.C.
Office) Hidayatullah National Law University, Atal Nagar Raipur,
District Raipur Chhattisgarh.
---- Respondents
For Petitioner : Mr. Shashank Thakur, Advocate For Respondents No. 1 to 3 : Mr. Amrito Das, Advocate.
Page 2 of 8Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 20.07.2022
1. The respondent is a National Law University constituted in pursuance of the Hidayatullah National University of Law Chhattisgarh Act, 2003 (for short "the Act of 2003") with an object to advance and disseminated learning and knowledge of law and research. Section 5 of the Act of 2003 deals with the power and function of the University. Section 7 of the Act of 2003 defines visitor of the university, the Hon'ble Chief Justice of India is visitor of the University. The Hon'ble Chief Justice of the High Court of Chhattisgarh will be chancellor of the University. Section 9 of the Act of 2003 defines the powers of visitors and chancellor. Section 10 defines authority of the University which consist of general council, executive council, academic council, finance committee and any such other authorities as may be provided by the regulation.
2. Section 14 of the Act of 2003 defines officer of the university, Section 15 provides statutes of university and section 16 defines ordinances of the university. The section 17 defines regulations and this section provides that the executive council in addition to all the powers vested in it, the power to frame regulations to provide for the administration and management of the affairs of the university. Statutes 19 of the Act defines procedure for appointment and power of the vice chancellor. The sub-clause 7 provides power of the vice chancellor and sub-clause c which is material for adjudication of the present dispute reads as under:-
"c - Have all the powers relating to the proper maintenance of discipline in the university."
3. Statutes 20 defines the Registrar of the University and Sub- section 3 of the statutes provides the duties of the Registrar.
4. The petitioner was initially appointed as "Personal Assistant to Vice Chancellor" with the respondent institution on a consolidated salary of Rs.10,000/- per month w.e.f 31.05.2003 and vide order dated 24.05.2007 he was appointed Personal Page 3 of 8 Assistant on regular basis. It has been contended that the petitioner was suspended on 06.08.2020 by the Registrar of the University contemplating a disciplinary proceeding. The petitioner was suspended upto 24.10.2020 therefore, he preferred an appeal which was rejected on 03.11.2020 thereafter his suspension was revoked on 10.11.2020 and he was again served with suspension order on 11.11.2020, on there being a criminal investigation under Section 13(1)(b) and 13(2) of the P.C. Act, 1988. It has been further contended that on 19.02.2021 the university appointed retired Additional Superintended of Police, who levelled charges against the petitioner. The petitioner again filed writ petition before this Court bearing WPS No. 3391/2021. This court directed the university to consider the petitioner's case in the light of judgment passed by the Hon'ble Supreme Court in case of Ajay Kumar Chaudhary vs. Union of India reported in (2015) 7 SCC 291. Thereafter, he has challenged his investigation done by the retired Superintendent of police by filing WPS No. 3421 of 2021 wherein this Court stayed the prosecution.
5. The petitioner was served charge sheet on 06.08.2021 wherein on 22.02.2022 the retired Additional District and Sessions Judge was appointed as inquiry officer. The petitioner has challenged the said inquiry before this Court by filing WPS No. 2008/2022 wherein this Court has granted interim protection to the petitioner. Thereafter, another charge sheet dated 02.05.2022 was issued to the petitioner wherein certain charges have been levelled. The petitioner has challenged the issuance of charge sheet on the count of competence of the respondent to issue charge sheet as according to the petitioner that competent authority has been defined under Section 2(6) of the Regulation, 2015. As per the regulation the executive council or any authority to which the power is delegated by or under this regulation is the competent authority. The regulation 35 empowers this competent authority to place any employee under suspension and regulation 36 defines the power of competent authority to initiate Page 4 of 8 proceeding against any employee of the institute.
6. Learned counsel for the petitioner submits that neither the Registrar nor the vice chancellor is the competent authority to issue the charge sheet. To substantiate his submission he would refer to judgment of Hon'ble Supreme Court in case of Marathwada University v. Seshrao Balwant Rao Chavan reported in (1989) 3 SCC 132, wherein it was held that without there being any delegation, the delegating authority will have no power to act, unless the authority delegating has expressly delegated the power, and further held in para 30 which is reads as under :
"30......... held that there was no prior delegation of power to the Vice-Chancellor to take disciplinary action against the respondent. There was no subsequent delegation either. Therefore, neither the action taken by the Vice-Chancellor, nor the retification by the Executive counsel could be sustained."
7. The petitioner relied upon the judgment of Hon'ble Supreme Court in case of Gwalior Rayon and Silk Manufacturing Company vs The Assistant Commissioner of Sales Tax and Others (1974) 4 SCC 98 and would refer to para 37 of the judgment which is quoted below:
"37In this context it is necessary to have a clear idea of the concept of delegation. Delegation is not the complete handing over or transference of a power from one person or body of persons to another. Delegation may be defined as the entrusting, by a person or body of persons, of the exercise of a power residing in that person or body of persons, to another person or body of persons, with complete power of revocation or amendment remaining in the grantor or delegator. It is important to grasp the implications of this, for, much confusion of thought had unfortunately resulted from assuming that, delegation involves, or may involve the complete abdication or abrogation of a power. This is precluded by the definition. Delegation often involves the Page 5 of 8 granting of discretionary authority to another, but inch authority is purely derivative. The, ultimate power always remains in the delegator and is never renounced.
8. Learned counsel for the petitioner also tried to point out the alleged discrepancy while conducting departmental inquiry and would submit that charge sheet dated 02.05.2022 and enquiry proceedings being conducted vide order dated 19.05.2022 Annexure P/2 and suspension of the petitioner vide order 06.08.2020 Annexure P/4 be kindly quashed. He has filed the present writ petition assailing the competency
9. On the other hand, learned counsel for the respondents No. 1 to 3 would submit that the impugned order is in accordance with Rules, Regulation and statutes of the University and the University has the power to delegate all its power to the Vice Chancellor or Registry of the University and by exercising the same, the Registrar of the University has issued the Charge- sheet dated 2.5.2022 and consequent departmental enquiry as well as the order of suspension dated 06.08.2020 are well founded, which do not call for any interference in the instant petition. He would further submit that as per the provisions of the Act and Statutes which confer all powers upon the vice chancellor to take action for maintaining discipline in the university amongst the university employee.
10.I have heard learned counsel for the parties and perused the documents available on record.
11. A bare perusal of the aforesaid Act, 2003, statutes of the Hidaytullah Law University and chapter 7 of Regulation 2015 deal with the disciplinary rules and applicability of provisions, rules, and regulations of Chhattisgarh State Government to employees of the universities. The Regulation 35 deals with the suspension, penalty and disciplinary authorities. The Regulation 2(6) of Regulation 2015 defines competent authority in relation to exercise of any power means the executive council and any authority to which the power is delegated by or under this regulation. The regulation 37 defines the appellate authority Page 6 of 8 which provides that if any penalty is imposed on any employee by the Registrar the employees concerned can prefer an appeal to the Executive Council within 30 days. The Statutes further provides that if punishment order is passed by the Executive Council then the employee concerning may file an appeal to the vice chancellor within 30 days from the date of the order.
12. From the bare perusal of Statutes 19 (7) the University it is quite clear that the vice chancellor of the university has all powers relating to proper maintenance of discipline in the university. From the bare perusal of the appointment of the petitioner Annexure P/3 it is quite clear that the appointment of the petitioner on the post of assistant grade III was issued by the order of Vice Chancellor of the university as such the vice chancellor of the university is the appointing authority and the Registrar of the university as per Act, 2003 has to work as per Section 20 of the Act, 2003, Registrar has to comply with all the directions and orders of the Executive Council and Vice Chancellor, therefore, the charge sheet has been rightly issued. Even the appellate provisions made in Regulation 37 also provide the appellate mechanism against the punishment order, therefore, if the order is passed by the Registrar, appeal has to be preferred before the Vice Chancellor of the University and if the punishment order is passed then the Exeuctive Council. The petitioner is unable to point out that the Executive Council of the University is the appointing authority, therefore, the judgment Marathwada University v. Seshrao Balwant Rao Chavan (supra) is clearly distinguishable to the facts of the present case. Even otherwise it is well settled position of law normally the charge sheet should not be quashed unless the competency of the authority is raised at the initial stage. In the present case petitioner has participated in the inquiry proceeding and thereafter he has filed present petition raising objection about the competency of the authority and also taken grounds which touches the merit of case. The same cannot be examined at this juncture.
Page 7 of 813.It is well settled position that intermittent intervention in the disciplinary proceeding is not preferable and only on exceptional circumstances, the Court can issue a direction against the proceedings. It is also well settled position that judicial review cannot extend to the examination of the correctness or reasonableness of the decision as a matter of fact. The purposes of judicial review is to ensure that the individual receive fair treatment and judicial review is not an appeal from decision but a review of the manner in which the decision is taken. The reason why ordinarily a writ petition should not be entertained a mere show cause or charge sheet is that at that stage the writ petition may be held to be premature. A mere charge sheet or show cause notice does not give rise to any cause of action because it does not amount to an adverse order which effects the right of any party unless the same has been issued by a person having no jurisdiction to do so. The Hon'ble Supreme Court in case of Secretary Ministry of Defence vs Prabhash Chandra Mirdha (2012) 11 SCC 565) has observed in paragraphs No. 10, 11 and 12 as under:-
"10Ordinarily a writ application does not lie against a chargesheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, chargesheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a chargesheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court. (Vide : State of U.P. v. Brahm Datt Sharma, AIR 1987 SC 943; Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh & Ors., (1996) 1 SCC 327; Ulagappa & Ors. v. Div. Commr., Mysore & Ors., AIR 2000 SC 3603 (2); Special Director & Anr. v. Mohd. Ghulam Ghouse & Anr., AIR 2004 SC 1467; and Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906).
12. In State of Orissa & Anr. v. Sangram Keshari Misra & Anr., (2010) 13 SCC 311, this Court held that normally a chargesheet is not quashed prior to the conclusion of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that correctness or truth of the charge is the function of the disciplinary authority.
(See also: Union of India & Ors. v. Upendra Singh, (1994) 3 SCC
357).
13. Thus, the law on the issue can be summarised to the effect that chargesheet cannot generally be a subject matter of challenge as it Page 8 of 8 does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the chargesheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings.
14. In view of the foregoing discussion, the writ petition, being devoid of substance, is liable to be and is hereby dismissed. It is made clear that this Court has not expressed anything on the merit of the charges or conduction of the enquiry. It is for the inquiry officer to consider the material, evidence brought on record during the enquiry who will decide the departmental enquiry in accordance with law.
Sd/-
(Narendra Kumar Vyas) Judge Amita