Karnataka High Court
Chancellor Of Universities vs Prof. H B Walikar on 24 November, 2015
Bench: Anand Byrareddy, S.Sujatha
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2015
PRESENT
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
AND
THE HONOURABLE MRS.JUSTICE S.SUJATHA
WRIT APPEAL Nos.100035 OF 2015 AND 100052-100055
OF 2015 (GM-RES)
CONNECTED WITH
WRIT APPEAL Nos.100083-100087 OF 2015 (GM-RES)
WRIT APPEAL Nos.100115-100119 OF 2015 (GM-RES)
IN
WRIT PETITION Nos.109881 OF 2014 AND 109931-109934
OF 2014 (GM-RES)
IN W.A.Nos. 100035 OF 2015
AND 100052-100055 OF 2015
BETWEEN:
The Chancellor of Universities
In Karnataka and his Excellency,
The Governor of Karnataka,
Raj Bhavan, Bengaluru 560 001,
Represented by its Principal Secretary.
...APPELLANT
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(By Shri K.M.Nataraj, Senior Advocate for Shri Mahesh
Wodeyar, Advocate)
AND:
1. Prof. H.B.Walikar,
Age: 64 years,
Occupation: Vice-Chancellor
(Now Ex Vice Chancellor),
Karnataka University, Dharwad,
Now resident of Plot No.B-4,
II Main, Shivagiari,
Near Pawan School,
Dharwad.
2. The State of Karnataka,
Represented by its Special Public Prosecutor,
Karnataka Lokayukta,
High Court of Karnataka,
Dharwad Bench,
Through the Deputy Superintendent of
Police, Lokayukta Police Station,
Dharwad.
3. The Registrar,
Karnataka University,
Pawate Nagar,
Dharwad.
...RESPONDENTS
(By Shri Jayakumar S Patil, Senior Advocate for Shri
M.H.Patil, Advocate for Respondent No.1;
Shri B.V.Acharya, Senior Advocate for Shri Mallikarujun S
Hiremath, Advocate for Respondent No.3;
Shri Mallikarjunswamy B Hiremath, Advocate for Respondent
No.2)
These Writ Appeals filed under Section 4 of the
Karnataka High Court Act, 1961, praying to allow this writ
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appeal and set aside the order dated27.11.2014 passed by the
learned Single Judge in Writ Petition No.109881/2014 and
W.P.Nos. 109931-109934/2014 and consequently dismiss the
W.P.No.109881/2014 and W.P.Nos. 109931-109934/2014.
IN W.A.Nos.100083-100087 OF 2015
BETWEEN:
The Registrar,
Karnataka University,
Pavate Nagar,
Dharwad 580 003.
...APPELLANT
(By Shri B.V.Acharya, Senior Advocate for Shri Mallikarjun S
Hiremath, Advocate)
AND:
1. Prof. H.B.Walikar,
Age: 63 years,
Occupation: Ex.Vice-Chancellor,
Resident of Plot No.B-4,
2nd Main, Shivagiri,
Near Pawan School,
Dharwad - 01.
2. The Chancellor of Universities,
In Karnataka and his Excellency,
The Governor of Karnataka,
Rajabhavan,
Bangalore 560 001,
By its Principal Secretary.
3. The State of Karnataka,
Represented by Special Counsel and
Public Prosecutor,
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Karnataka Lokayukta,
High Court of Karnataka,
Dharwad Bench,
By its Deputy Superintendent of Police,
Lokayukta Police Station,
Dharwad -01. ...RESPONDENTS
(By Shri. Jayakumar S Patil, Senior Advocate for Shri
M.H.Patil, Advocate for Respondent No.1;
Shri K.M.Nataraj, Senior Advocate for Mahesh Wodeyar,
Advocate for Respondent No.2;
Shri Mallikarjunswamy B Hiremath, Advocate for Respondent
No.3)
These Writ Appeals filed under Section 4 of the
Karnataka High Court Act, 1961, praying to set aside the
learned single judge's order dated 27.11.2014 passed in
W.P.No.109881/2014 and W.P.Nos.109931-934/2014 (GM-
RES).
IN W.A.Nos.100115-100119 OF 2015
BETWEEN:
The State of Karnataka,
Represented by Special Counsel and
Public Prosecutor,
Karnataka Lokayukta,
High Court of Karnataka,
Dharwad Bench,
Through the Deputy Superintendent of
Police, Lokayukta Police Station,
Dharwad.
...APPELLANT
(By Shri Mallikarjunaswamy B Hiremath, Advocate)
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AND:
1. Prof. H.B.Walikar,
Aged about 64 years,
Occupation: Ex. vice-chancellor,
Plot No.B-4, II Main,
Shivagiri,
Near Pawan School,
Dharwad.
2. The Chancellor of Universities,
In Karnataka and his Excellency,
The Governor of Karnataka,
Rajbhavan,
Bengaluru 560 001,
Represented by its Principal Secretary.
3. The Registrar,
Karnataka University,
Pawate Nagar,
Dharwad.
...RESPONDENTS
(By Shri B.V.Acharya, Senior Advocate for Shri Mallikarjun S
Hiremath, Advocate for Respondent No.3;
Shri Jayakumar S Patil, Senior Advocate for Shri M.H.Patil,
Advocate for Respondent No.1;
Shri K.M.Nataraj, Senior Advocate for Shri Mahesh Wodeyar,
Advocate for Respondent No.2)
These Writ Appeals filed under Section 4 of the
Karnataka High Court Act, 1961, praying to set aside the order
dated 27.11.2014 passed by the learned Single Jude in Writ
Petition No.109881/2014 and W.P.Nos. 109931-109934/2014
and consequently dismiss the Writ Petition No.109881/2014
and W.P.Nos. 109931-109934/2014.
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These appeals having been heard and reserved on
07.10.2015 at Dharwad Bench, Dharwad and coming on for
pronouncement of Orders at the Principal Bench, Bengaluru,
this day, Anand Byrareddy .J, delivered the following:-
JUDGMENT
These appeals are heard and disposed of by this common judgment.
2. The brief facts of the case are as follows:
The writ petitioner, Prof. H.B.Walikar, was said to have been appointed as the Vice Chancellor of the Karnatak University, Dharwad, as on 25.10.2010. He is said to be an eminent scholar with a sound academic career. It was said that certain persons with a hidden agenda and with political affiliations, had, with an intention to tarnish the image of the petitioner, are said to have met and discussed with the Chancellor of the University - namely, the Governor of Karnataka State, of the manner of management and administration of the University under the petitioner, complaining of maladministration. It is stated that the said discussion had even been given wide publicity through the :7: media. On the basis of the malicious campaign, the Chancellor is said to have appointed a retired judge of the High Court of Karnataka, Justice B. Padmaraj, to hold an enquiry in to the allegations against the petitioner. This was said to be in terms of Section 8(1) read with Section 12 of the Karnataka State Universities Act, 2000 (Hereinafter referred to as the 'KSU Act', for brevity), vide notification dated 12.9.2014.
The petitioner, who was said to have been pained and taken aback at this action on the part of the Chancellor and being in doubt as to such power being available under the above said provision, had made enquiries in writing, and ascertained that the State Government, which in fact could have directed such an enquiry - if it was warranted, had not initiated the same, as was said to have been informed, by letter dated 17.9.2014.
It transpired that the Chancellor had, by a letter dated 12.9.2014, directed the petitioner not to make any recruitment, award any tenders for construction work or purchases, till such time that the enquiry, which was ordered was completed. :8:
It is stated that Justice Padmaraj, the enquiry officer had camped at the University campus from 17.9.2014 to 23.9.2014 , to prepare and submit a report. Though the petitioner is said to have made a representation in writing seeking an opportunity of hearing, the same had been ignored by the enquiry officer.
On the basis of the enquiry report, the Chancellor is said to have directed the Registrar of the University to lodge a complaint against the petitioner and others for abuse of office, criminal misconduct, breach of trust - constituting offences punishable under the provisions of the Prevention Corruption Act, 1988 (Hereinafter referred to as the 'PC Act', for brevity) and the Indian Penal Code, 1860, (Hereinafter referred to as the 'IPC' for brevity) However, no explanation was said to have been called for, from the petitioner.
By a further letter dated 1.10.2014, the Chancellor is said to have further directed the petitioner not to convene any meetings either of the Syndicate, the Academic Council, the Finance Committee or any other body and not to issue any :9: appointment orders - practically to stop functioning as the Vice Chancellor.
The petitioner is said to have requested for a copy of the allegations made against him and the enquiry report and other documents if any. It is stated that there was no response to the request. However, it is said that the Chancellor had directed the Registrar to initiate criminal proceedings against the petitioner. And accordingly, a complaint dated 2.10.2014 is said to have been lodged with the Superintendent of Police, Karnataka Lokayukta, Dharwad, and a case in Crime no.11/2014 is said to have been registered on 7.10.2014, for offences punishable under Sections 13(1)(c) and (d) read with Section 13(2) of the PC Act. Aggrieved by these sequence of events and the several courses of action taken against him, the writ petitions came to be filed. The said petitions having been allowed, the present appeals are filed.
3. The Writ Appeals in WA 100035/2015 & WA 100052- 100055/2015 are filed on behalf of the Chancellor. The appeals in WA 100083-100087/2015 are filed by the : 10 : Karnatak University. The appeals in WA 100115- 100119/2015 are filed by the Lokayukta. The appellants were respondents nos.1, 2 and 3, respectively, in the writ petition.
4. The learned Senior Advocate, Shri B.V. Acharya, appearing for the counsel for the learned counsel for Respondent no.3, leading the arguments contends that the learned single judge was not justified in quashing the First Information Report (FIR) and the criminal complaint. The reasoning adopted, in the impugned order, according to Shri Acharya, that upon the quashing of the notification appointing Justice Padmaraj to hold an enquiry, the report filed by him and the letter issued by the Chancellor to the Registrar to file a criminal complaint against the petitioner - necessarily resulted in quashing the complaint, is without any legal basis.
It is contended that a FIR and the consequent investigation can be quashed only if any one of the grounds or parameters laid down in State of Haryana vs. Bhajanlal, AIR 1992 SC 604, are made out. In the impugned order, there is no finding as to any such ingredient being present. Hence, there : 11 : was no justification to quash the FIR, merely because the other impugned actions were set at naught.
It is contended that even if there was any irregularity in the other impugned acts, the legality of the action of the Registrar in filing the complaint on the direction of the Chancellor could not be faulted. The complaint did disclose offences cognizable, both under the PC Act and the IPC. The irregularity, if any, in obtaining such information - regarding the commission of those offences, cannot affect the legality of the complaint or the registration of the FIR.
It is contended that, as the head of the institution, the Chancellor on receiving several complaints of misconduct and commission of offences by the petitioner, by way of abundant caution, having chosen to have the veracity of the complaints verified through Justice Padmaraj, who had in turn examined the same and affirmed that there was prima facie material to initiate action against the petitioner and the Chancellor had the inherent power to initiate action, as the head of the Institution. : 12 : It is asserted that no authority of any specific provision of law was required to enable him to do so. It was his duty.
It is contended that the reference to Section 8 of the KSU Act, requiring the Chancellor to refer the matter, in such circumstances, to the Government would be relevant only where there is a need for the Government to take any action. When the Chancellor finds that, prima facie, criminal offences had been committed by the petitioner, in any event, Sub- Section (7) of Section 8 provides that the Chancellor is the final authority in initiating such action.
It is urged that the learned Single Judge was in error in finding that the Vice Chancellor is not an employee of the University and hence the impugned action could not have been initiated by the Chancellor. In coming to such a conclusion, the reasoning that the Vice Chancellor was an officer appointed for a term and not a regular employee, it is contended, was erroneous. It is pointed out that various employees including the Librarian, the Director of Physical Education and the Director of Students Welfare are designated officers, as : 13 : provided under Section 11 of the KSU Act. It is not in dispute that the said officers are amenable to disciplinary proceedings. It is contended that the learned Single Judge had, after noticing that an 'employee', was not defined under the KSU Act, erred in placing reliance on the CCA and Conduct Rules, to hold that a Vice Chancellor is not an employee. That a relationship of employer and employee exists, between the University and a Vice Chancellor - would be evident from an instance, where a Professor of the University is appointed as a Vice Chancellor, he retains his lien on his post, vide Section 14(11) of the KSU Act. Besides, under Section 14, the Vice Chancellor is appointed and can be removed by the Chancellor. Hence, the finding that the Chancellor had no authority to take action against the Vice Chancellor was unsustainable.
It is urged that the Chancellor being the pater familias of the University is vested with the inherent power to initiate an inquiry and obtain a report as to the affairs of the University, generally and particularly against any individual engaged in the functioning of the University. For otherwise, to fetter the : 14 : powers of the Chancellor would result in the discipline and dignity of the University being jeopardized.
It is contended that the argument as to any action being taken against the Vice Chancellor could only be with reference to Section 14(7) or (8) of the KSU Act, is incorrect. Those sub- sections mainly deal with the question of removal of the Vice Chancellor from his office or regarding penalty to be imposed on him after due enquiry. The said provisions are akin to provisions pertaining to impeachment of Judges of the higher judiciary. The same are totally untenable where the allegation against the Vice Chancellor is with respect to the commission of an offence either under the PC Act or the IPC. In this regard, the following passage from the decision in K.Veeraswamy v. Union of India, (1991)3 SCC 655, is cited :
"The proved "misbehaviour" which is the basis for removal of a Judge under clause (4) of Article 124 of the Constitution may also in certain cases involve an offence of criminal misconduct under section 5(1) of the Act. But that is no ground for withholding criminal prosecution till the Judge is removed by Parliament as suggested by counsel for the appellant. One is the power of Parliament and the other is the jurisdiction of a : 15 : Criminal Court. Both are mutually exclusive. "Even a Government servant who is answerable for his misconduct which may also constitute an offence under the IPC or under Section 5 of the Act is liable to be prosecuted in addition to a departmental enquiry. If prosecuted in a criminal court he may be punished by way of imprisonment or fine or with both but in departmental enquiry, the highest penalty that could be imposed on him is dismissal. The competent authority may either allow the prosecution to go on in a Court of law or subject him to a departmental enquiry or subject him to both concurrently or consecutively. It is not objectionable to initiate criminal proceedings against public servant before exhausting the disciplinary proceedings, and a fortiori, the prosecution of a Judge for criminal misconduct before his removal by Parliament for proved misbehaviour is unobjectionable. It is thus contended that the provision for removal or imposition of penalty after a departmental enquiry is different from initiation of a criminal proceeding.
As regards the propriety of having appointed Justice Padmaraj to conduct an inquiry into the veracity of the complaints against the petitioner, the decision in Baliram Waman Hiray vs. Justice B Lentin, 1988 (4) SCC 41, is cited, : 16 : to state the position and function of a Commission of enquiry, wherein the Supreme Court observed thus:-
"A Commission of Inquiry is not a court properly so called. A Commission is obviously appointed by the appropriate government 'for the information of its mind' in order for it to decide as to the course of action to be followed. It is therefore a fact finding body and is not required to adjudicate upon the rights of the parties and has no adjudicatory functions.
The government is not bound to accept its recommendations or act upon its findings".
Further, the Supreme Court has quoted with approval the following passage of the Privy Council in Maharaja Madhav Singh vs. Secretary of State, LR (1905)31 IA 239:-
"It is sufficient to say that the Commission in question was one appointed by the Viceroy himself for the information of his own mind, in order that he should not act in his political and sovereign character otherwise than in accordance with the dictates of justice and equity, and was not in any sense a court, or, if a court, was not a court from which an appeal lies to his Majesty in Council".
And the apex court has observed that the ratio decidendi in that case was that the Commissioners were not a : 17 : court and held that the observations made by the Judicial Committee apply mutatis mutandis to a Commission of Inquiry constituted under the Commission of Inquiry Act, and observed thus:-
"The Commission in question was obviously appointed by the State Government "for the information of its own mind. In order that it should not act, in exercise of its executive power, "otherwise than in accordance with the dictates of justice and equity" in ordering a departmental enquiry against its officers. It was therefore a fact-finding body meant only to instruct the mind of the government without producing any document of a judicial nature."
In the light of the above, it is urged that the impugned order be set aside.
5. The learned Senior Advocate, Shri K.M.Nataraj, appearing for the counsel for the appellant in WA 100035/2015, would contend that as regards the question whether the Vice Chancellor is an employee of the University, the findings recorded by the learned Single Judge on this issue results in two consequences, not contemplated by the Act, namely, (i) that the : 18 : Chancellor cannot exercise the powers under sub-section (1) of Section 8 of the KSU Act with respect to the officers named in clauses (c) to (m) of Section 11 and; (ii) that the Chancellor can exercise the aforesaid powers only with respect to those who are in Group "C" and "D" employment of the University. It is contended that this finding is erroneous as it defeats the object of Section 9 and sub-section (2) of Section 12 of the Act.
The Karnataka University Employees Service (Conduct) Rules, a Statute made under Section 35(m) of the KSU Act, which is continued under Section 83 of the Act, defines an "Employee" as any person appointed to any class or post in the University. That this Statutory Rule supports the interpretation that the word 'employee' in sub-section (1) of Section 8 cannot be given a literal meaning and that the word 'employee' includes those in the employment of the University described as officers, is not appreciated by the learned Single Judge.
The Karnataka University Employees Classification, Control and Appeal Rules, 1998, a statute made under Section : 19 : 35(m), states that the University service consists of four classes, which classification is based on the scales of pay. As the Vice- Chancellor would be a Group "A" employee, the finding of the learned Single Judge makes that Statute inapplicable to a Vice- Chancellor, which could have been done only by a legislative amendment.
The learned Single Judge is in error in not applying the ratio in the case of Ajay Maken v. Adesh Kumar Gupta, (2013) SCC 489, that literal construction of a statute, without examining its context and scheme would be incorrect, and interpretation is best where the textual interpretation matches the contextual and that the literal construction, which leads to absurdity, must be avoided.
The literal interpretation of the word "employee" in sub- section (1) of Section 8 by the learned single judge has resulted in annulling the powers of the Chancellor under Section 8, as though by amendment by the Legislature.
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It is contended that the learned Single Judge has erred in holding that the allegations against the Vice-Chancellor can be inquired into only under sub-section (8) of Section 14. That sub-sections (7) and (8) prescribe the procedure for removal of the Vice-Chancellor from the office and the said provisions have no application to the facts of the case, has been overlooked. The distinction between the Chancellor causing an inquiry to be made under sub-section (1) of Section 8 of the KSU Act into specific allegations and removal of the Vice- Chancellor from the office is not noticed by the learned Single Judge.
It is further contended that the quashing of Annexure "R", the First Information Report, which registers the offences under Section 13 of the PC Act and Section 409 of the IPC is opposed to the law declared by the Supreme Court in (2003) 6 SCC 195 Union of India vs. Prakash P. Hinduja, that interference under Articles 226 or 227 of the Constitution or under Section 482 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'CrPC', for brevity), with : 21 : investigations under the Code of Criminal Procedure from the stage of lodging of the first information report till the report under Section 173(2) CrPC, is impermissible as the field is exclusively reserved for the investigating agency. Reliance is placed on the following authorities:-
a) P.M.Unni Raja and others vs. Principal, Medical College, Trivandrum and others, AIR 1983 Kerala 200 (1),
b) R.C.Thampan and others vs. The Principal, Medical College, Calicut, AIR 1979 Kerala 171,
c) Hitendra Singh vs. Dr.P.D.KrishiVidyapeeth, (2014)8 SCC 369
d) The Registrar, Visvesvarayya Technological University vs. The Chancellor, Visvesvarayya Technological University, Writ Appeal No.100143/2015 dated 24.4.2015,
e) T.T.Antony vs. State of Kerala, (2001)6 SCC 181,
f) Prof.H.H.Annaiah Gowda vs. Chancellor, ILR 1990 KAR 2360
6. The learned Senior Advocate, Shri Jayakumar S. Patil, appearing for the learned counsel for the petitioner - respondent would seek to justify the impugned order of the learned single judge and places reliance on the following authorities. : 22 :
a) State of Bihar vs. Lal Krishna Advani and others, (2003) 8 SCC 361,
b) Bangalore Medical Trust vs. B.S.Muddappa, AIR 1991 SC 1902
c) Babu Verghese vs. Bar Council of Kerala, AIR 1999 SC 1281(1),
d) State of Uttar Pradesh vs. Singhara Singh, AIR 1964 SC 358
e) Writ appeal No.2843/2014 dated 9.2.2015 (DB)
f) Goa Foundation vs. Union of India and others, (2014) 6 SCC 590,
g) Arun Shankar Shukla vs. State of U.P AIR 1999 SC 2554,
h) M/s Ram Chand and Sons Sugar Mills Private Limited vs. Kanhaya Lal Bhargava and others, AIR 1966 SC 1899.
7. In the light of the several grounds raised in the appeals and arguments canvassed as well as with due regard to the legal provisions and the case law cited, we proceed to consider whether the learned Single Judge was justified in arriving at the findings on the points he had framed for consideration.
The learned Single judge had framed the following points for consideration:
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"1. Whether the petitioner is an employee of the University?
2. Whether the inquiry initiated by the first respondent under Section 8(1) read with Section 12 of the Karnataka State Universities Act, 2000 is proper?
3. Whether the impugned notification, orders, directions, inquiry report and first information report vide Annexures-H, L, N,P and R call for interference?
4. Whether the petitioner has acquiesced for investigation and therefore, he has waived his right to challenge the investigation and the proceedings?"
In answering Point no.1, on an analysis of Sections 11, 14 and 15 of the KSU Act, it is concluded thus:-
"58. It is clear from Sections 14, 11 and 15 of the Act, the Vice-Chancellor is appointed by the Chancellor with the concurrence of the State Government and he is an Officer of the University. The employees of the University are appointed under Chapter VIII and Sections 53 and 57 of the Act. The Vice-Chancellor is the ex-officio Chairman of the Boards which select the candidates for appointment of University employees. The term 'employee' defined under Karnataka University Employees Service (Conduct) Rules or Karnataka University Employees Classification Control and Appeal Rules, 1998 does not include Vice-Chancellor. Therefore, it is clear, the Vice-Chancellor is not an 'employee' of the University and he is an Officer of the University. Point No.1 answered, accordingly.: 24 :
In our opinion, however, another view is more plausible. The Vice Chancellor is an officer of the University along with the Chancellor and the Pro-Chancellor, who are also officers of the University - along with a host of others as enumerated under Section 11 of the KSU Act.
The Governor of Karnataka is, by virtue of office, the Chancellor. Similarly, the Minister in-charge of Higher Education in Karnataka is, by virtue of office, the Pro- Chancellor of the University.
However, the Vice Chancellor is a whole time officer of the University. The Chancellor appoints him with the concurrence of the State Government. He holds office, subject to the pleasure of the Chancellor, for a term of four years and is not eligible for reappointment for a second term. The emoluments and other conditions of service of the Vice Chancellor shall be such as may be determined by the Chancellor. He is the principal executive and academic officer : 25 : of the University and exercises general control over the affairs of the University.
Whereas the other officers referred to in Section 11 of the KSU Act, are appointed or assume office, in terms of the provisions under Chapter III. It is noticed that it is the appointment of the Vice Chancellor alone that stands on a special footing.
The Chancellor or the Pro-Chancellor, though are deemed to be officers of the University, they are not whole time officers and are not paid any emoluments for their service in that capacity. The Vice Chancellor is a whole time officer and is paid for his services. He can also be removed from service, during his tenure. There is hence a contractual and legal relationship of employer and employee as between the State and the Vice Chancellor. But certainly circumscribed by a special procedure in the Vice Chancellor being proceeded against, in the event of the Vice Chancellor being found guilty of willful omission or abuse of power- as is spelt out under Sub-sections (7) and (8) of Section 14 of the KSU Act. : 26 :
However, the Vice Chancellor cannot be considered on par with other employees in so far as the exercise of power by the Chancellor under Section 8 of the KSU Act, which provides for disciplinary action, inspection and control, over all employees of the University, generally, which could be exercised by the Chancellor, suo motu, or on the recommendation of the State. Further, since the Vice Chancellor himself has a role to play in respect of proceedings initiated pursuant to an order under Section 8 of the KSU Act, it would be wholly incongruous to invoke the said provision against the Vice Chancellor. This would be our interpretation, in the light of the special procedure prescribed in so far as acts of misconduct on the part of the Vice Chancellor, is concerned.
However, it would be incorrect to conclude that, as the Chief Executive Officer of the University, the Vice Chancellor is not employed by the State or the University.
He is certainly not immune from disciplinary proceedings or the criminal law of the land.: 27 :
In so far as the finding of the learned Single Judge with regard to Point no.2 , it is to the following effect :
"91. From the above decisions, it is clear, an opportunity needs to be given when serious civil consequences will follow and the reputation of the person is involved. In the present case, no opportunity was given to the petitioner. Apart from this, the inquiry has been initiated under Section 8(1) read with Section 12 of the Act. Section 14(7) and 14(8) of the Act provide for an inquiry against the Vice-Chancellor. Therefore, the action of the first respondent in initiating inquiry under Section 8(1) read with Section 12 of the Act is without authority of law. Point no.2 answered accordingly.
We respectfully agree with the learned Single Judge on this point. The Chancellor acting under the provisions of the KSU Act shall do so only in accordance with the same. It cannot be said that acting under Section 12 of the Act, the Chancellor could invoke his inherent power in ordering a Commission of Inquiry to address the allegations against the petitioner, in the face of express provisions providing for the procedure, under Section 14 (7) and (8) of the Act, in the : 28 : eventuality of allegations of acts of misconduct by the Vice Chancellor.
In so far as Point no. 3, as framed by the learned Single Judge, is concerned - the finding that the appointment of a one man Commission of enquiry, by the Chancellor, was not in accordance with law, as such appointment was made in terms of Section 8 of the KSU Act and hence the report submitted by the Commission of enquiry and any further action taken pursuant to the report also being vitiated in law, cannot be faulted. This is especially so in the face of the circumstance that the complaint that was lodged against the petitioner was the fact that pursuant to a direction issued by the Chancellor directing the Registrar, Karnatak University to lodge a complaint against the petitioner and others, for abuse of office, criminal misconduct and breach of trust under the provisions of the PC Act and the IPC, based on the report of the Commission of enquiry and the Registrar thereafter having forwarded the said report itself to the Superintendent of Police, Lokayukta, Dharwad to take further action, the question whether the criminal action initiated can be : 29 : sustained, is no longer res integra. The point is squarely covered by the judgment of the Supreme Court in the case of Goa Foundation, supra. In the said case a Commission of Enquiry having been appointed to inquire into illegal mining in the State of Goa, the Commission had submitted a report where there was a finding of illegal mining by certain lessees, who had not been heard by the Commission. The lessees having challenged the said finding, the State Government and the Central Government had declared before the Court that no action would be taken against the said lessees , on the basis of the report. It was in that context, the Apex Court had observed thus :
"We find that Section 8-B of the Commissions of Inquiry Act, 1952 provides that if a person is likely to be prejudicially affected by the inquiry, the Commission shall give to that person a reasonable opportunity of being heard and to produce evidence in his defence and Section 8-C of the Commissions of Inquiry Act, 1952 provides that every such person will have a right to cross-examine and the right to be represented by a legal practitioner before the Commission. As the State Government of Goa has taken a stand before us that no action will be taken against the mining lessees only on : 30 : the basis of the findings in the report of the Justice Shah Commission without making its own assessment of facts and without first giving the mining lessees the opportunity of hearing and the opportunity to produce evidence in their defence, we are not inclined to quash the report of the Justice Shah Commission on the ground that the provisions of Sections 8-B and 8-C of the Commissions of Inquiry Act, 1952 and the principles of natural justice have not been complied with. At the same time, we cannot also direct prosecution of the mining lessees on the basis of the findings in the report of the Justice Shah Commission, if they have not been given the opportunity of being heard and to produce evidence in their defence and not allowed the right to cross-examine and the right to be represented by a legal practitioner before the Commission as provided in Sections 8-B and 8-C respectively of the Commissions of Inquiry Act,, 1952. We will, however, examine the legal and environmental issues raised in the report of the Justice Shah Commission and on the basis of our findings on these issues consider granting the reliefs prayed for in the writ petition filed by Goa Foundation and the reliefs prayed for in the writ petitions filed by the mining lessees, which have been transferred to this Court."
In the instant case on hand, it is evident that the petitioner was not afforded a hearing though there were : 31 : findings against him which led to serious civil consequences. Hence the report could not have been acted upon.
It is in this background, that while leaving it open to the University to initiate independent action, the proceedings completely prompted by the report of the Commission has been set at naught. We are in complete agreement with the learned Single judge.
Point no.4 has been correctly answered by the learned Single Judge and does not merit reconsideration.
In the result, the appeals are found to be without merit and are dismissed.
Sd/-
JUDGE Sd/-
JUDGE nv*