Madhya Pradesh High Court
Pramod Tiwari vs Chancellor on 31 October, 2012
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
W.P. No.16824/2007
Pramod Tiwari
Vs.
Chancellor, JNKVV and others
W.P. No.16825/2007
Rasool Shah
Vs.
Chancellor, JNKVV and others
Present: Hon'ble Shri Justice Rajendra Menon.
Shri Arvind Shrivastava, learned counsel for the petitioners.
Shri P. N. Dubey, learned counsel for the respondents.
Whether approved for reporting: Yes/ No
ORDER
( .10.2012 ) As common questions of law and facts are involved in both these petitions and as challenge made to the orders are identical in nature both these petitions are being decided by this common order.
2. For the sake of convenience documents available and pleadings in the record of W.P. No.16824/2007 (s) is being referred to in the order.
3. Petitioner Shri Pramod Tiwari in W.P. No.16824/2007 was working as a Sub Engineer in the Jawaharlal Nehru Krishi Vishwavidhyalaya, Jabalpur (herein after referred to as "the 2 University"). He has completed more than 20 years of service and it is put forth by him that in his entire period of service no action was taken against him and he has an unblemished service record. According to him he was elected as President of the Vishwa Vidyalaya Karmchari Sangh, the sole recognized association of the employees, for two consecutive terms i.e. 2000-2002 and 2002-2004.
4. Similarly, petitioner Rasool Shah. in W.P. No. 16825/2007 was also working in the said University and was posted as Field Extension Officer. He has also completed more than 20 years of service and was elected as Treasurer of the Vishwa Vidyalaya Karmchari Sangh for the same term for which Shri Pramod Tiwari was elected. It is a case of the petitioners that various officers of the University including the Vice Chancellor had been committed various irregularities. As far as Vice Chancellor of the University is concerned it is stated that due to irregularities committed by the Vice Chancellor, the Union through its President Shri Pramod Tiwari has filed complaint against the Vice Chancellor before the Lokayukt of Madhya Pradesh and due to the aforesaid act it is stated that the University and in particular the Vice Chancellor were having bias and prejudice against the petitioners. It is stated that in view of rampant corruption in the university the office bearers and the petitioners were agitating and on 22.5.2003 to discuss certain problems of the employees with regard to irregularities in the account of Provident Fund it is stated that a meeting of office bearers of the University was to be held along with Shri G. S. Marko Controller of the University, it is alleged against the petitioners that on 22.5.2003 while discussing with Shri Marko they behaved in an unbecoming manner and threatened Shri Marko as a result a F.I.R. was lodged by Shri Marko for offences under 3 Section 506 read with Section 34 of IPC. In the FIR lodged specific allegations were made with regard to activities of the petitioners herein. It is stated that on the basis of complaint submitted by Shri Marko, a Committee was constituted consisting of Dr. V. P. Singh, the then Dean of Veterinary Science, Dr. R. A. Khan, Incharge Registrar of the University, Shri C. K. Tekchandani, Dean College of Agricultural Engineering, Shri S. S. Tomar, Dean Students Welfare and one Shri L. N. Verma. The said Committee conducted an enquiry into the matter and submitted a report. However, in the meanwhile, the Union submitted a notice of agitation and thereafter certain agitation started in the University pointing out the irregularities of the Management. According to the petitioners the Committee which was constituted to inquire into the allegations with regard to the incident that took place in the chamber of Shri G. S. Marko on 22.5.2003 so also with regard to certain other incidence between the petitioners and one Shri S. K. Tiwari, Deputy Registrar. The Committee constituted conducted an enquiry, examined more than 9 witnesses, took the statement of petitioners also and submitted their report vide Annexure P/4 on 12th June 2003. On the basis of report so submitted by this Committee both the petitioners were suspended vide order dated 18.6.2003. Thereafter charge sheets were issued to them under Rule 14 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. The charge sheet issued to the petitioners have been filed by the respondents as Annexure R/10 dated 8th July 2003. In the charge sheet the imputation of allegations pertains to the act of the petitioners in misbehaving with Shri G. S. Marko so also with Shri S. K. Tiwari, Deputy Registrar. After the charge sheet was issued, it is the grievance of the petitioners that all of a sudden without conducting any departmental enquiry on the ground that conduct of departmental enquiry is not possible in view of the atmosphere 4 created by the petitioners in the University premises powers were exercised under Rule 19 (ii) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 and the services of the petitioners were terminated without conducting any enquiry. Accordingly challenging the aforesaid termination order passed under Rule 19(ii) of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 as contained in Annexure P/3 dated 5.8.2003 petitioners have filed these writ petitions. Appeals filed to the Board of Management under Rule 23 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 is also dismissed vide Annexure P/ 2 and a review petition filed before the Chancellor of the University namely the Governor having also been dismissed on 12.11.2007 petitioners have approached this Court challenging all the three orders as indicated herein above, which are filed as Annexure P/1, P/2 and P/3.
5. Shri Arvind Shrivastava, learned counsel appearing for the petitioner took me through the material available on record, reasons given by the Vice Chancellor for dispensing with the enquiry and terminating the services of the petitioners and argued that the reasons given for dispensing with the enquiry is that threats were extended by the petitioners to the officers who were to conduct departmental enquiry and to the witnesses. Shri Arvind Shrivastava, learned counsel emphasized that three reasons have been given in the order Annexure P/3 dated 5.8.2003 for dispensing with the enquiry. They are : that the enquiry officers who are appointed in the matter have refused to conduct an enquiry due to the threat extended to them by the petitioners. The second ground was that petitioners are threatening and intemidating the witnesses and therefore the witnesses are not coming forward to give their statements in the departmental enquiry, and finally it is said that due 5 to the agitation undertaken by the petitioners' and the employees Union after the petitioners suspended a tense and violent situation has been created in the University, due to which conduct of departmental enquiry is not practicable and therefore, the power is exercised under Rule 19(ii) of M.P. Civil Services (Classification, Control and Appeal), Rules 1966. Shri Arvind Shrivastava emphasized that the aforesaid reason given are not at all proper. It is only an excuse for somehow terminating the services of the petitioners without conducting an enquiry. Shri Arvind Shrivastava took me through the proceedings held in the preliminary enquiry conducted by five Senior Officers of the University and argued that when the preliminary enquiry was conducted, more than 9 witnesses were examined and based on the report submitted by the preliminary enquiry Committee as contained in Annexure P/4, charge sheet was issued to the petitioners after suspending them. In the charge sheet the main allegations against the petitioners were with regard to two incidents that have taken place. The first incident took place on 20th of May, 2003 in the chamber of Shri G. S. Marko and the second incident took place on 22.5.2003 involving Shri G. S. Marko and Shri S. K. Tiwari, Deputy Registrar. With regard to both these incidents preliminary enquiry was conducted and it is based on the preliminary enquiry report that the charge sheet was issued. Petitioners denied the allegations leveled in the charge sheet and thereafter no orders were passed appointing an Enquiry Officer. Surprisingly these three persons who are said to have been appointed as enquiry officers and have expressed their inability to conduct the enquiry. Shri Shrivastava invites my attention to Annexure R/16 dated 30th July, 2003 submitted by Dr. M. C. Agrawal, the communication Annexure R/17 dated 29.7.2003 by Dr. V. K. Agrawal and the communication dated 30th July, 2003 by Shri R. P. S. Baghel Annexure R/18 and argued that all the three 6 persons have indicated that they are appointed as Enquiry Officer and they are unable to conduct the enquiry. Referring to the communications made by them as contained in Annexure R/16, R/17 and R/18, Shri Arvind Shrivastava emphasized that the order of appointment of Enquiry Officer as referred to in these three letters is dated 29th July, 2003, all the three persons have been appointed on the same date and all of them refused to conduct the enquiry on the ground that they are received threat from the petitioners. It is submitted by Shri Arvind Shrivastava that the orders appointing the enquiry Officer are not available and after the appointment of three persons on the same date or the next day i.e. 30.7.2003, they expressed their inability to conduct the enquiry, it is argued that the aforesaid plea of the enquiry officers submitting their letter is nothing but an act of procuring of these letters by the University authorities with a way to create an excuse for not conducting the enquiry and invoking the extra ordinary power under Rule 19(ii) of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 on such circumstances which are extraneous in nature and which are not established, action taken is unsustainable.
6. That apart, Shri Arvind Shrivastava, learned counsel for the petitioner invites my attention to the communications made by the so called witnesses vide Annexure R/11 to R/15 and submits that all these letters are issued between 20th July, 2003 to 30th July, 2003 and by obtaining these letters between the period 20.7.2003 to 30.7.2003 an excuse is created for dispensing with the enquiry. Inter alia contending that the letters have been procured by the University's authority only as an excuse for dispensing with the enquiry. Shri Arvind Shrivastava emphasized that grounds for dispensing with the enquiry are not available, action is taken in violation of principles of natural justice and the same is 7 unsustainable. Shri Arvind Shrivastava thereafter submitted that after the action was taken against the petitioners, they approached the Chancellor of the University namely, the Governor of the State seeking exercise of the powers conferred on him under Rule 14 of J.N.K.V.V. Act, it is stated that on the basis of material submitted by the University and their memorandum submitted, under Section 14 Annexure P/8, the Secretariat of the Chancellor, after conducting a fact finding enquiry as is evident from note sheets collectively filed as Annexure P/8 and P/9 and in this fact finding enquiry which was conducted by the said office of the Chancellor, prima facie finding recorded is that the enquiry has been dispensed with on extraneous consideration and without there being enough material to do so. He invites my attention to the note sheet available vide Annexure P/8 and submits that in all these note sheets the findings recorded are that the enquiry has been dispensed with in an illegal manner and therefore, finding the action taken against the petitioner to be contrary to requirement of law a show cause notice was issued to the University vide Annexure P/10 on 31st August 2005 by the office of the Chancellor and it was indicated in this show cause notice that the action taken against the petitioners are illegal and therefore, as to why orders of termination dated 5.3.2003 be not annulled and set aside. However, after having done so, surprisingly the Secretariat of the Governor office indicated that it is not a fit case where under Section 14 of the Adhiniyam should be exercised, but petitioners were directed to file a appeal. Thereafter petitioners filed an appeal before the Board of Management. Appeal filed by the petitioners having been rejected it is stated that petitioners have filed this writ petition, after the revision was also dismissed by the Chancellor. Shri Arvind Shrivastava took me through various findings recorded in the fact finding enquiry conducted in the office of Chancellor, the reasons given by the Vice Chancellor in the note sheet and 8 emphasized that reasons given for dispensing with the enquiry are based on the ipse dixit and assumption of the Vice Chancellor and as the action is taken inconsistent to law, the same be interfered with. Shri Arvind Shrivastava submitted that once a charge sheet was issued and as the allegations in the charge sheet were serious in nature, proper departmental enquiry should have been conducted and on the grounds as has been put forth the decision for dispensing with the enquiry is not sustainable. in support of his contention he invites my attention to the law laid down by the Supreme Court in the case of Sachdev Singh Vs. Union of India and others - 2003 AIR SCW Page 940 and argues that the powers conferred under Rule 19(ii) of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 which is akin to powers available under Article 311(2) of the Constitution of India cannot be exercised without any cogent and justifiable reason available for dispensing with the enquiry. It is stated that merely on the assumption or ipse dixit of the authority that the atmosphere created is not congenial for conducting an enquiry action cannot be taken. He further invites my attention in this regard to the judgment of the Supreme Court in the case of Jaswant Singh Vs. State of Punjab - AIR 1991 SC Page 385 in support of his contention. It is in sum and substance the contention of the petitioner that on the grounds indicated in the order of removal and the reasons given therein a case for dispensing with the departmental enquiry is not made out and therefore, the entire action which is tainted with malafide is nothing but an arbitrary and illegal action of the Vice Chancellor, therefore, orders impugned be held to be unsustainable and quashed.
7. Shri P. N. Dubey, learned counsel appearing for the University refuted the aforesaid and took me through the documents available on record, note sheet prepared by the office of Vice 9 Chancellor, advise given by the legal adviser of the University and emphasized that initially the petitioners committed misconduct by entering into the chamber of Shri Marko and thereafter Shri S. K. Tiwari and acted in a manner which was unbecoming of an employee and on a prima facie case being made on the basis of preliminary enquiry conducted both the petitioners were suspended vide Annexure R/4 on 18th June, 2003. After they were suspended it is stated that petitioners became violent, started harassing and intimidating all the officers of the University and ultimately the District Administration had to declare the University area as a prohibited area and inspite thereof petitioners and office bearers of the Union started picketting before the residence of the Vice Chancellor, created an atmosphere of tension, threatened and intimidated the officers of the University, particularly the officers who had conducted the departmental enquiry and who were witnesses in the departmental enquiry, they entered the chamber of Shri C. K. Tekchandani on 15th of July 2003 and threatened him with dire consequence if he tried to interfere with the activities of the petitioners. It is stated that the atmosphere created by the petitioners were so tense and serious that no employee of the University or officer was willing to conduct an enquiry. As a result it is stated that the action has been taken. Shri P. N. Dubey emphasized that even the police authorities were not cooperating with the University in the matter and taking action against the petitioners, on the FIR lodged, no case was registered and as no action was taken by the police authorities, the University had no option but to proceed with dispensing with the enquiry. It is emphasized by Shri P. N. Dubey that the reasons given by the Vice Chancellor in his impugned order particularly the note sheets filed by the petitioners as Annexure P/16, the disciplinary authority namely the Vice Chancellor has referred to the atmosphere created 10 and as under the said atmosphere and tense situation it was not possible to conduct an enquiry, the act of dispensing with the enquiry is proper and does not call for any interference. It is argued by Shri P. N. Dubey that the petitioners were terrorizing and intimidating not only the enquiry officer and witnesses but all who were functioning for the administration of the University and as the situation created was beyond the control of the University the action taken is proper. Referring to the Constitution Bench judgment of Supreme Court in the case of AIR 1985 SC 1416 - Union of India Vs. Tulsiram Patel and the mandate of Article 311(2) of the Constitution which is considered by the Supreme Court in the aforesaid judgment and analyzing it in the backdrop of the situation created by the petitioners it is argued that in the circumstances it was not reasonably practicable for the University to hold the enquiry and therefore, the enquiry has been dispensed with. It is stated that when the employees and its association were indulged in terrorizing, threatening the witnesses, departmental enquiry to the matter is not practicably possible and therefore, if the principles laid down in the case of Tulsiram Patel (supra) is applied in the facts and circumstances of the present case, act of the respondents has to be upheld. Further reliance in this regard is placed on another judgment of the Supreme Court in the case of Indian Railway Constructions Co. Ltd. Vs. Ajay Kumar- 2003(4) SCC 579. Placing reliance on both these judgments Shri P. N. Dubey emphasized that law permits for dispensing with an enquiry and take action not only by virtue of provisions contained in Article 311(2) but also in view of the statutory provisions as is contained in Rule 19(ii) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. As the material available in the present case makes out a case for dispensing with an enquiry, no case is made out for interference. It is stated by Shri P. N. Dubey, that once the 11 disciplinary authority has satisfactorily analyzed the factual situation and has arrived at a decision, the same cannot be subjected to further judicial review by this Court on the ground that it is malafide or that it is not based on the facts which are made out from the record. It is stated that material available on record overwhelmingly shows that petitioners were responsible for having created a tense situation and the atmosphere in the University premises was such that conduct of a departmental enquiry was not possible and in such circumstances powers exercised under Rule 19(ii) of M.P., Civil Services (Classification, Control and Appeal) Rules, 1966 cannot be termed as illegal or arbitrary warranting interference by this Court in a petition under Article 226 of the Constitution. Accordingly, it was argued by Shri P. N. Dubey that it is not a fit case for interference and therefore, he prays for dismissal of this writ petition.
8. In rebuttal, Shri Arvind Shrivastava took me again through the material available on record and indicated that in the charge sheet seven charges were levelled with regard to misbehaviour of the petitioners with Shri G. S. Marko and Shri S. K. Tiwari. Thereafter when the dismissal orders were issued two more incidents pertaining to the agitation and misbehavior with Shri C. K. Tekchandani have been added for dispensing with the enquiry, however with regard to these two subsequent incidents there is no police report, no complaint by the University to any authority, no FIR, no criminal case is registered and therefore, merely on the basis of certain documents procured from the University, action taken is nothing but a false and fabricated case made against the petitioners only on paper for dispensing with the enquiry as contemplated under Rule 19(ii). It is argued by Shri Arvind Shrivastava that based on the documents produced by the University the allegations against the petitioner about intimidating 12 the witnesses or the enquiry officer is not established and therefore, it is not a fit case where the documents can be taken cognizance of and the action upheld. Accordingly, he emphasized that documents adduced is not sufficient enough to make out a case and therefore, he seeks for interference into the matter.
9. I have heard learned counsel for the parties at length and have gone through the record. It is a case where services of the petitioners who have put more than 20 years of service and against whom there is no previous record of misconduct or punishment, brought to the notice of this Court have been removed for the reasons as indicated herein above and while doing so, normal rule of conducting a departmental enquiry after issuance of charge sheet as contemplated under Rule 14 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 is dispensed with and action is taken by following the extra ordinary procedure contemplated under Rule 19(ii) of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 i.e. by dispensing with the departmental enquiry. That being so, before proceeding to assess the rival contentions based on the material available on record, it is thought appropriate to take note of the law with regard to taking action by invoking the procedure available to the authorities under Article 311(2) of the Constitution or Rule 19(ii) of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966.