Punjab-Haryana High Court
Dr. Nilanjan Roy vs The Union Of India Through The Secretary on 24 January, 2012
Author: K. Kannan
Bench: K. Kannan
C.W.P. No.6810 of 2011 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No.6810 of 2011
Date of Decision.24.01.2012
Dr. Nilanjan Roy .....Petitioner
Versus
The Union of India through the Secretary, Department of
Pharmaceuticals (DOP), Ministry of Chemicals and Fertilizer, New Delhi
and others
.....Respondents
Present: Mr. Puneet Sharma, Advocate for the petitioner.
Mr. K. K. Gupta, Advocate for respondent No.2.
None for other respondents.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ? No
2. To be referred to the Reporters or not ? No
3. Whether the judgment should be reported in the Digest? No
-.-
K. KANNAN J.
1. The petition is at the instance of an Associate Professor in the Department of Biotechnology with the National Institute of Pharmaceuticals Education and Research (NIPER) against the said Institute, the Union and the Chief Officials of NIPER namely the Officiating Director, the Dean and the Acting Registrar seeking to quash the order passed constituting an enquiry and removing the petitioner from several institutional Committees and constituting an enquiry for some alleged misconduct. The petitioner has alleged mala fides against the respondents for constituting the enquiry. Before the arguments got under-way, learned counsel appearing for the respondents stated that C.W.P. No.6810 of 2011 -2- the enquiry has been completed and it only awaited the final stage of submission of report. Having regard to the subsequent event after the institution of the writ petition, when the enquiry constituted against the petitioner has passed through several stages, I had asked the counsel for the petitioner to only argue on the preliminary point of whether the constitution of the enquiry itself was vitiated. The argument has, therefore, proceeded against the competency of the Officiating Director to institute the enquiry.
2. Learned counsel for the petitioner would contend that he was only Officiating Director and at the time when the enquiry was constituted on 24.03.2011, his tenure of office as Officiating Director had already expired and therefore, he was not competent to initiate the enquiry. Through the impugned order dated 24.03.2011, he had also been suspended and such power of suspension also did not reside with the Officiating Director. The office of the Director is a creature of statute and therefore, it would become necessary to examine the power of the Director as delineated under the Act. The NIPER has been established under the National Institute of Pharmaceutical Education and Research Act of 1988. It has been enacted to declare the institution of NIPER to be an institution of national importance and to provide for its incorporation and matters connected therewith. Director as defined under Section 3 (e) is the Director of the Institute appointed under Section 16 of the Act. Section 16 (1) allows for the appointment of the Director with the prior approval of the Visitor. The relevant portion of Section 16 is reproduced to examine his powers:-
"16(2) The Director shall be the principal academic and C.W.P. No.6810 of 2011 -3- executive officer of the Institute and shall be responsible for the proper administration and academic performance of the Institute and for imparting the instruction and maintenance of discipline therein (emphasis supplied).
(3) xxx xxx xxx (4) The Director shall exercise such other powers and perform such other duties as may be assigned to him by this Act or the Statutes or the Ordinances.
3. The Statutes and Ordinances are defined under Section 3 (j) as referring to the Statutes and Ordinances made under the Act. The Statute is made under Section 27 by the Board with the previous approval of the visitor and a copy of the same is laid before the House of the Parliament. All the appointments of the staff of Institute except that of the Director is required to be made in accordance with the procedure laid down by the Statutes. All the appointments of the academic staff in the post of Assistant Professor and above is made by the Board in terms of Section 25 of the Act. The petitioner is appointed, therefore, by the Board is not in dispute. This becomes essential to consider whether a person, who is lower than the Appointing Authority is entitled to constitute an enquiry and issue the charge-sheet. The Central Government has published the first Statutes under Section 36(1) of the 1998 Act on 30.10.2003. Rule 14 of the Statutes provides for powers, duties and functions of the Director, Dean, Head of Department and Registrar of the Institute respectively. Table II of Rule 14 (r) is relevant for our purposes relating to examining the tenure of the post of the Director. It reads as follows:-
"(r) shall hold office for a term of five years from the date on which he enters upon his office and shall be eligible for reappointment.
Provided that the Visitor may direct that a Director, whose term of C.W.P. No.6810 of 2011 -4- office has expired, shall continue in office for such period, not exceeding a total period of one year, as may be specified in the direction."
Rule 14 (q) of the Statute empowers the Director to take disciplinary action on the following terms:-
"(q) To take disciplinary action against the employees, and to suspend them pending inquiry to administer warnings to them or to impose any penalty in accordance with the rules.
Provided that no such penalty shall be imposed unless the person concerned has been given a reasonable opportunity of being heard and showing cause against the action proposed to be taken in regard to him."
4. The power to take disciplinary action against the employees surely, therefore, resides with the Director. It would be immaterial that he was not himself the Appointing Authority so long as the Rules specifically provide for such a course. As regards the contention that the five years period for the Director had already expired, it is contended on behalf of the respondents that he was appointed as Officiating Director on 12.01.2010 and on completion of one year, an extension has been given to him by the Board.
6. It is brought to the attention of the Court by the respondents that at the 54th meeting of the Board of Governors on 02.08.2011, the levy of charge-sheet and suspension of the petitioner had been placed before the Board and the relevant extracts of the Minutes of the Meeting has also been filed before the Court. It has referred its earlier response to yet another agenda emphasizing that if the Director of the institute takes any decision within the frame work of rules as stipulated under the Act, Statutes, Ordinances or other governing Rules, which otherwise empower the Director to take decisions, those decisions could C.W.P. No.6810 of 2011 -5- be placed before the Board for information only. What is brought out through these Minutes is that it had not disapproved of the action taken and it had merely affirmed the real position that if the Director had the power to initiate action, it did not require any ratification from the Board and it was to be treated as merely placed before Board in information. If a Director has a power to initiate action in terms of Section 16 and Rule 14(q), I will not fetter such right as unavailable for an Officiating Director. An Officiating Director assumes all the powers unless in the manner of such officiation itself any power is withdrawn from the Director.
7. The petitioner also wanted to contend that in terms of Rule 10 of Civil Services Conduct Rules, no enquiry could be constituted without a preliminary enquiry. Learned counsel would refer to Rule 14 that contemplates a preliminary enquiry before levying a charge sheet. Preliminary enquiry is merely facilitative to ensure that valuable time and resources are not lost by proceeding against their own employees without adequate information and without adequate data. The provision ought not to be seen as mandatory in every case where disciplinary action is taken. If the management has decided to proceed against constitution of an enquiry and charges, I would not find the absence of preliminary enquiry as vitiating the constitution of the enquiry itself. I find that the Officiating Director of NIPER has the power to constitute enquiry. I also find that there is no need for securing any sanction either from the Visitor or from the Board for initiating departmental action against any of the employees. The fact that the Director himself is not the Appointing Authority for the C.W.P. No.6810 of 2011 -6- Assistant Professor is irrelevant since the Rules specifically provide for such a power to the Director to initiate action. In relation to service that is not civil service protected under Art 311 of the constitution, Rules could always provide for a particular authority who is not lower in rank than the delinquent to be the disciplinary authority, as held by the Supreme Court in Krishna Mohan Mookherjee v State Bank of India (1984) 1 SCC 191. A person, who is not a member of Civil Services of the Union or Civil Services of the State or who does not hold a civil post under the Union or a State, cannot seek any protection under Article 311 of the Constitution. He can claim only such rights, which have been conferred under the Regulations applicable to him. If the Regulation does not say that such a person shall not be dismissed or removed by an authority subordinate to that by which he was appointed, he can be dismissed, removed by any other authority specified in the Regulations applicable to him, in terms of law laid down by the Hon'ble Supreme Court in State Bank of India Vs. Vijay Kumar AIR 1991 SC 79. It has also been held in Sh. Kailash Nath Gupta Vs. Enquiry Officer, Allahabad Bank where the Rules specified an authority lower than the appointing authority to be the disciplinary authority, such lower authority is competent to take disciplinary action. No exception could be taken as to the competency of such lower authority who acts as the disciplinary authority.
8. For all these reasons, I would hold that the enquiry constituted against the petitioner is competent and the petitioner would be entitled to take up all defences which are available to him including the contention that the charges have no factual basis or that C.W.P. No.6810 of 2011 -7- they are vitiated by mala fides and personally biased against him. I cannot pre-judge the quality of the outcome of decision and it will be always open to the petitioner to contend that the decision taken, if it is adverse to him, is not in accordance with law before a competent forum.
10. With these observations, the writ petition is disposed of.
(K. KANNAN) JUDGE January 24, 2012 Pankaj*