Patna High Court
Lalan Kumar vs The Vice Chancellor, Baba Saheb Bhim Rao ... on 6 April, 2017
Author: Ahsanuddin Amanullah
Bench: Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1936 of 2017
Along with
Interlocutory Application No. 2002 of 2017
And
Interlocutory Application No. 2123 of 2017
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Lalan Kumar son of Late Sri Bishwanath Singh, Resident of Jagdamba Nagar
(Chauri), Police Station- Ahiyapur, District- Muzaffapur.
.... .... Petitioner/s
Versus
1. The Vice Chancellor, Baba Saheb Bhim Rao Ambedkar Bihar University,
Muzaffarpur.
2. The Registrar, Baba Saheb Bhim Rao Ambedkar Bihar University,
Muzaffarpur.
3. Hon'ble Chancellor of the Universities, Bihar.
.... .... Respondent/s
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Appearance :
For the Petitioner : Mr. Basant Chaudhary, Sr. Advocate with
Mr. Sarva Deo Singh, Advocate
For the B. R. A. Bihar University : Mr. P. N. Shahi, Sr. Advocate with
Mr. Santosh Kumar Jha, Advocate
For the Chancellor : Mr. Rajendra Giri, Advocate
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CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL JUDGMENT
Date: 06-04-2017
Heard Mr. Basant Chaudhary, learned senior counsel,
assisted by Mr. Sarva Deo Singh, learned counsel for the petitioner,
Mr. P.N. Shahi, learned senior counsel, assisted by Mr. Santosh
Kumar Jha, learned counsel for B. R. A. Bihar University,
Muzaffarpur and Mr. Rajendra Giri, learned counsel appearing for the
Chancellor of Universities, Bihar.
2. The petitioner has moved the Court for quashing of
officer order contained in Memo No. 450/R dated 25.01.2017 by
which he has been placed under suspension.
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3. Learned counsel for the petitioner submitted that he was
posted as Administrative Officer in the Directorate of Distance
Education, B.R.A. Bihar University, Muzaffarpur and by the
impugned order has been placed under suspension in violation of the
statutory provisions. Learned counsel submitted that as per Section 39
of the Bihar State Universities Act (hereinafter referred to as the
'Act'), the Vice Chancellor has the overall general power over the
affairs of the Universities including the staff and employees, but in the
case of suspension, there is a separate Statute on General Conditions
of Service of Employees of the Patna, Bihar Ranchi, Bhagalpur,
Magadh, L. N. Mithila and K.S.D. Sanskrit Universities as approved
by the Chancellor on 20.09.1982 vide letter no. BSU- 36/80-5270 GS
(1) dated 18.11.1980 (hereinafter referred to as the 'Statute'), which
governs the field. Learned counsel submitted that Clause 10 of the
Statute provides for placing a university servant under suspension and
the same is restricted to a situation where there is prima facie
evidence available against him and there are good reasons to believe,
on the basis of materials available at the time of initiation of the
proceedings, that he is guilty of gross misconduct or dereliction of
duty or bribery and corruption which, if proved, would lead to his
dismissal or removal. Learned counsel further submitted that as per
the provisions, in cases where such prima facie evidence is lacking at
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the start, the question of suspension of the University servant may be
kept pending till the findings of the enquiring officer are available and
in such cases he should be required to proceed on such leave as may
be due to him, and, if there is no leave to his credit, on extra-ordinary
leave and, on the conclusion of the enquiry, if it is found that the
University servant is guilty of gross misconduct or dereliction of duty
or of bribery or corruption which would entail his dismissal or
removal from service, he should be placed under suspension and in all
other cases where there are reasons to believe that the University
servant, if allowed to continue in active service, might attempt to
tamper with the evidence, he should be required to proceed on such
leave as may be due to him, or, if there is no leave to his credit, on
extra-ordinary leave and if he refuses to proceed on leave, he may be
suspended. Learned counsel submitted that in the present case, such
formality was not adhered to and straight away only on the basis of
some vague charge, the petitioner has been suspended. Learned
counsel submitted that basically the charge relates to having been
party to the conducting of M. Phil. course from Sessions 2014-15 and
2015-16 without there being legal sanction to the same. Learned
counsel submitted that the petitioner was the junior most in the chain
and the matter was considered at the highest level of the Vice
Chancellor and the Syndicate and a draft regulation for running of
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such course was approved and sent to the Chancellor. Learned counsel
submitted that even the starting of the course was not at the behest of
the petitioner and he had only followed the directions of his superior.
Learned counsel further submitted that the courses were held and the
students were allocated to various Departments where they pursued
their study and in the meeting of the Academic Counsel, such M. Phil.
course was noticed. Learned counsel submitted that the petitioner had
no personal or separate role in running of the M. Phil. course and
whatever has been done was in the capacity of an Administrative
Officer only to manage the said course and that too at the direction of
his superiors. Learned counsel submitted that the order impugned is a
cryptic order and only reference to various communications made by
the Governor's Secretariat and citing that as a reason the petitioner
has been placed under suspension. Learned counsel submitted that the
said letters deal with only allegation of the M. Phil. course being run
without due approval of the Chancellor and the ground mentioned in
the impugned order of suspension of there being prima facie ground
of misconduct, dereliction of official duties, illegal gratification,
omission and commission, is not made out either by the letters
referred in the order of suspension or even in the impugned order of
suspension. Learned counsel submitted that the order, thus, cannot be
sustained in view of the law settled by the Hon'ble Supreme Court in
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the case of Mahinder Singh Gill v. Chief Election Commissioner
reported as AIR 1978 SC 851, where it has been held that an order
cannot be supplanted by fresh grounds later on or in a Court
proceeding by way of an affidavit. Learned counsel submitted that on
the date the order was passed, there was no enquiry to prima facie
hold the petitioner guilty of any misconduct, illegal gratification or
dereliction of official duties or even omission and commission.
Learned counsel further submitted that even if there would have been
some evidence, at best, the petitioner could have been directed to go
on leave, but suspension could not have been resorted to in terms of
Clause 10 of the Statute. Learned counsel further submitted that the
Chancellor in fact has also communicated to the University by letter
dated 17.02.2017 directing that his earlier direction, to take action
against the petitioner and Director, be implemented. Learned counsel
submitted that since the Statute has provided for a special mode
relating to suspension, the same has to be strictly followed. For such
proposition, he relied upon a decision of the Hon'ble Supreme Court
in the case of Dipak Babaria v. State of Gujarat reported as (2014)
3 SCC 502, the relevant being at paragraphs no. 72 and 73.
4. Learned counsel for the University submitted that the
contentions of learned counsel for the petitioner are misconceived. It
was further submitted that the petitioner has not been singled out and
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in fact the Director of the Directorate of Distance Education has also
been suspended. Learned counsel submitted that in the advertisement
printed in the daily newspaper on 03.11.2014, applications were asked
from students for enrolling in M. Phil. course for the session 2014-15
under the joint signature of the Director and the petitioner. Learned
counsel submitted that though the same mentions that it was under the
directions of the Vice Chancellor but the same Vice Chancellor
himself suspending the petitioner clearly indicates that there was no
such permission, either written or oral. Learned counsel submitted that
the fundamental issue involved in the present case is that the running
of M. Phil. course by the Directorate of Distance Education was
totally illegal and, thus, impermissible. He submitted that though the
draft regulations were prepared, but without there being any approval
it could not have been acted upon, muchless, the course started.
Learned counsel submitted that in the University there is no record to
show that there was any order of any competent authority or even the
Vice Chancellor of the University approving or directing for calling
persons to apply for the M. Phil. course. Learned counsel submitted
that even otherwise the M. Phil. course has been held to be a regular
course and thus, it could not have been conducted through the
Directorate of Distance Education and this falsifies the stand of the
petitioner that it was being done after due permission of the higher
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authority. Learned counsel submitted that the courses having been run
without there being an approved regulation by the Chancellor and also
without any due permission of any competent authority, being illegal,
both in terms of money spent on such course as well as the career of
the students being put into jeopardy, the action taken by the
University cannot be faulted. It was further submitted that in terms of
Clause 10 of the Statue, the University found prima facie evidence
against the petitioner and thus notice was given to him to which he
has replied, which is reflected from the order impugned itself and
such calling for application from prospective students in the daily
newspaper which has also been signed by the petitioner also, clearly
indicates gross misconduct and dereliction of duty, for which the
petitioner could be dismissed. Learned counsel submitted that later on
evidence has come that there was also grave financial
mismanagement, inasmuch as, the petitioner had got Rs. 50 Lakhs
from the Directorate of Distance Education transferred in his account
after almost one month of his suspension. Learned counsel submitted
that such conduct strongly indicates corruption.
5. Learned counsel for the petitioner, by way of reply,
submitted that though the charge relating to there being financial
irregularity was not a ground on which he has been suspended and
cannot be argued for the purposes of defending the order impugned,
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but still the same was easily explainable and does not go against him.
It was submitted that in a regular meeting of the Building
Construction Committee of the Directorate of Distance Education, a
decision was taken to transfer money to an account to be managed by
the petitioner for the purposes of construction of a new building in
view of there being frequent requirement of transactions. Learned
counsel submitted that thus the amount having been transferred
pursuant to such decision, he cannot be held guilty of any financial
irregularity. Learned counsel further submitted that even the
communication by the Registrar dated 11.11.2014 to the Secretary,
Distance Education Bureau, University Grants Commission, New
Delhi, indicates that M. Phil. course for the academic year 2014-15 in
the regular mode was being conducted. Learned counsel submitted
that the Building Construction Committee of the Directorate of
Distance Education of the University had also approved transfer of
Rs. 50 Lakhs as advance to the petitioner in view of the progress of
the building which was in its final stages. Learned counsel submitted
that the time allowed for calling for applications by the advertisement
initially published, was later extended after due approval by the then
Registrar and Vice Chancellor. Learned counsel submitted that even
the present Registrar is the same person who was, at the relevant time,
the Director of the University and in that capacity had taken part in
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the meeting of the Academic Committee where in the minutes, the
running of M. Phil. course was also taken note of.
6. Learned counsel for the University, at the very outset,
submitted that the present Registrar had joined on 17.02.2017 and the
Vice Chancellor on 27.02.2017. Learned counsel submitted that in
terms of Section 39 of the Act there are various bodies which have to
first approve the Draft Regulation and finally the same has to be
approved by the Chancellor before it comes into existence and only
after the Regulation having come into effect the next step of taking
action in accordance with the Regulation, that is, of starting the course
and admitting the students, can be permitted. It was further submitted
that the present Vice Chancellor has in fact constituted a fresh
Committee on 03.03.2017 to look into the charge against both the
Director as well as the petitioner. Learned counsel submitted that the a
Committee of Mr. B. B. Lal was constituted which has submitted a
report raising suspicion about the appointment of the petitioner on the
ground of him not fulfilling the eligibility criteria. Learned counsel
submitted that the said Committee consists of six senior persons and
had to submit its report within a fortnight. He submitted that because
of ending of the financial year, the Committee has not yet submitted
its report.
7. Interlocutory Application No. 2002 of 2017 has been
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filed by one Ashok Kumar Chaudhary seeking permission to intervene
as a respondent in the present case. Though, the Court is of the
opinion that in a matter concerning the suspension of a person, no
third party has any locus standi and thus the applicant cannot be
permitted to intervene, but in view of the fact that a detailed
Interlocutory Application has been filed, learned counsel has been
heard. Basically, the stand of learned counsel for the proposed
intervener is that against the petitioner there are various criminal cases
and that he has also been accused of tampering with the resultsheets
and also of there being an unholy nexus between him and the firm of
which he is the proprietor and which used to supply the answersheets
to the University for various examinations. Learned counsel submitted
that the firm was blacklisted and still the petitioner later on has been
employed, for which he has already filed a complaint before the Vice
Chancellor and based on his complaint, in an enquiry conducted,
report has been submitted in which the very appointment of the
petitioner has been held to be doubtful in view of him not possessing
the basic qualification for the post of Administrative Officer. Learned
counsel submitted that on 30.03.2017, during the course of hearing, he
had brought to the notice of the Court that the petitioner was present
in Court and had left his headquarter unauthorisedly. Learned counsel
submitted that the query of the Court in this regard was replied to by
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the petitioner categorically stating that he had taken leave/permission
from the Director. Learned counsel submitted that in view of the
communication made by the Director dated 30.03.2017 to the Vice
Chancellor, it was clear that the petitioner had been absent on that day
from the headquarter assigned to him and where he was required to be
present, i.e, at Muzaffarpur.
8. Learned counsel for the petitioner objected to allowing
the intervener applicant to be made a party and submitted that besides
him having no locus standi it is only with a view to harass the
petitioner and further that he too has some vested interest with other
persons who were not able to succeed in their ulterior design of trying
to get contract from the University for various works. Learned counsel
submitted that there may be many things which may go against the
petitioner but for the purposes of considering his prayer for quashing
of his order of suspension, such things are not relevant. However, he
submitted that the allegations made by the petitioner were referred to
a three member Committee which has not found any illegality
committed by the petitioner. Learned counsel further submitted that
he had taken due leave from the Director while appearing before the
Court on 20.03.2017 and 24.03.2017 and on 30.03.2017 he had sent
such request through courier at 11:30 a.m. which was refused to be
accepted by the Director. Learned counsel has annexed photocopies of
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his application as well as the receipt of the courier company.
9. Having considered the rival contentions, the Court does
not find any merit in the present writ application. The petitioner has
raised technical objections before the Court by way of referring to the
various provisions in the Act and Statute to indicate the scope of
power of suspension available to the Vice Chancellor. The same
cannot be read in isolation and has to be judged on the facts and
circumstances of a particular case. In this case, the petitioner, being an
Administrative Officer, may not have had a role, had he not been
associated with the running of the course, but his association is clear
from the fact that he is a co-signatory on the advertisement which was
printed in the daily newspaper calling applications for M. Phil. course.
The Head of the Department or the authorized person of the
University is the only competent person who can call for such
application and the petitioner in the capacity of Administrative Officer
is not one such person. Further, the fact that no records are available
with regard to the Vice Chancellor even having given such approval,
the starting of the course by calling for nomination/application was
impermissible. The petitioner has not been singled out and the
Director has also been suspended. It is worthwhile to note that it was
the same person who was the Vice Chancellor on 03.11.2014, when
an advertisement was published, who has issued the impugned order
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on 25.01.2017 suspending the petitioner. Thus, the contention of
learned counsel for the University that even the then Vice Chancellor
had never approved such advertisement, and which is also not
reflected from the records maintained in the University, lend credence
to the fact that there was no such approval given by the then Vice
Chancellor. Even if it is assumed that there may have been some
communication by the Vice Chancellor, the actual act of calling for
applications and allocating the students and running the M. Phil.
course has to be owned by the Director and the petitioner and they
cannot be given the benefit of doubt that they were unaware of the
requirements of law. Once the law in clear terms does not provide for
any course to be started without there being approved Regulation to
do so, the fact that no such Regulation has till date been approved,
was enough for the petitioner not to be party to such conducting of M.
Phil. course. It is surprising that a regular full time course was
conducted by the Directorate of Distance Education which does not
contemplate any regular or formal course/training. The said M. Phil.
Course, thus, being in the regular mode, as is clear from the
advertisement itself, was also, perhaps, not a permissible mode in law,
to be conducted by the Directorate of Distance Education. Though,
the contention of learned counsel for the petitioner is correct that facts
which have not been stated in the order of suspension may not be
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taken note of, but the issue of suspension itself has to be viewed
holistically moreso, for the purposes of deciding a petition filed under
the extraordinary prerogative writ jurisdiction under Article 226 of the
Constitution of India, where all things have to be viewed, including
the conduct of the petitioner. The petitioner having credited Rs. 50
Lakhs to his personal account clearly is something which cannot be
lost sight of. Even the resolution of the Building Committee which the
petitioner has brought on record indicates that a decision was taken
for opening a new account to be operated by the petitioner for
managing the building account but getting the money transferred in
his personal name and account was impermissible. The resolution of
the Building Committee to permit depositing of Rs. 50 Lakhs in the
name of the petitioner was taken by the Director and the petitioner
himself and thus, the same does not given him any legal umbrella or
protection. The Court has also taken judicial note of the fact that on
30.03.2017at 4:15 p.m. when the Court was about to rise, on a query made to the petitioner as to whether he was present in Court after taking leave, his categorical answer to the Court was that he had taken leave from the Director. Today, in the 3rd supplementary affidavit filed on behalf of the petitioner it has been brought on record that at 11:30 a.m. on 30.03.2017, he had sent an application through courier from Patna to Muzaffarpur. Such fact should have been honestly Patna High Court CWJC No.1936 of 2017 dt.06-04-2017 15/15 stated before the Court that he had forwarded his application but he could not have stated to the Court that he was allowed permission by the Director. Further, from the materials on record, copy of the receipt of the courier shows that the same was handed over to the courier company at 11:30 a.m. on 30.03.2017 at Patna whereas on the next page it shows endorsement that it was refused to be accepted. Surprisingly, the time of such purported refusal is also 11:30 a.m. and the date is 30.03.2017. The Court is surprised as to how a packet which was delivered to the courier company at 11:30 a.m. on 30.03.2017 at Patna was also delivered on 30.03.2017 at 11:30 a.m. at Muzaffarpur, where, as per the endorsement it was refused to be accepted.
10. Having regard to the aforesaid facts and circumstances of the case, especially the conduct of the petitioner, the Court is not inclined to interfere in the matter in its extraordinary, prerogative and discretionary writ jurisdiction. Accordingly, the writ petition stands dismissed.
11. Interlocutory Applications No. 2002 of 2017 and 2123 of 2017 stand disposed off.
(Ahsanuddin Amanullah, J) Anjani/-
AFR/NAFR AFR U