Gujarat High Court
Dr.Hemixaben Vishnuprasad Rao vs Registrar on 4 February, 2016
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/18865/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18865 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DR.HEMIXABEN VISHNUPRASAD RAO....Petitioner(s)
Versus
REGISTRAR, LOKAYUKTA, GUJARAT STATE & 1....Respondent(s)
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Appearance:
MR JAL S UNWALA, ADVOCATE with MS TEJAL A VASHI, ADVOCATE for
the Petitioner(s) No. 1
MS MANISHA L SHAH, ADVOCATE for the Respondent(s) No. 1
MS MAMTA R VYAS, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 04/02/2016
ORAL JUDGMENT
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1. Heard Mr. Jal S. Unwala, learned advocate with Ms. Tejal Vashi, learned advocate for the petitioner, Ms. Manisha L. Shah, learned advocate for respondent No.1 and Ms. Mamta Vyas, learned advocate for respondent No.2.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs: "(A) To hold and declare that the complaint at AnnexureC to the present petition made by the respondent No.2 against the present petitioner is not maintainable before the respondent No.1 herein in view of the provisions of Gujarat Lokayukta Act, 1986 and be further pleased to hold and declare that the respondent No.1 herein has no jurisdiction, powers or authority in the facts and circumstances of the present case to entertain the complaint of the respondent No.2 herein against the present petitioner which is at AnnexureC to the present petition and thereby be pleased to quash and set aside the impugned complaint at AnnexureC dated 163 2015 against the present petitioner; (B) To quash and set aside the order dated 3092015 passed by the respondent No.1 herein which is communicated to the petitioner by way of impugned letter dated 5/6102015 Page 2 of 43 HC-NIC Page 2 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT at AnnexureH to the present petition and thereby be pleased to direct the present respondent No.1 herein to decide the issue and jurisdiction as a preliminary issue and also further direct the respondent No.1 herein to give the certified copy of the said decision/ order as and when passed by the respondent No.1 herein and also be further pleased to direct the respondent No.1 herein to give certified copy of the impugned order dated 3092015 to the petitioner forthwith, by quashing and setting aside the order dated 25102015 and 27102015;
(C) Pending the hearing and final disposal of this writ petition, be pleased to stay all the further proceedings, inquiry and investigation before the respondent No.1 herein in Investigation Case No.4 of 2015 which is at AnnexureC to the present petition initiated by the respondent No.2 herein against the petitioner and further be pleased to direct to the respondent No.1 herein to produce before this Hon'ble Court the copy of the order dated 3092015 passed below the application of the petitioner for deciding the question of jurisdiction as preliminary issue;"
3. Following facts emerge from the record of the petition: 3.1 That, the petitioner is a former Vice Chancellor of Hemchandracharya North Gujarat University. It appears from the record that Page 3 of 43 HC-NIC Page 3 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT Smt. A.J. Savla, Homeopathic Medical College and R.I. Mehsana and Smt. S.H. Gardi Homeopathic/General Hospital at Mehsana run by New Progressive Education Trust passed a Resolution on 31.3.2005 granting permission to one of his faculty - Dr. Pinakin Trivedi. The said Homeopathic College forwarded the proposal to the College for getting recognition from the University. The said proposal was taken up for its consideration in the Executive Council of the University in its meeting held on 19.3.2012, wherein the petitioner was Ex Officio Chairman of the Executive Council and passed a Resolution on the same day granting recognition to the permission and appointment of Dr. Pinakin Trivedi with retrospective effect from 1.1.2005. It appears from the record that the said Dr. Pinakin Trivedi was also appointed as Incharge Principal for two years from 2007 to 2009 and he was removed. Thereafter, he challenged the said action by way of filing an application before the Gujarat Page 4 of 43 HC-NIC Page 4 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT Affiliated Colleges Service Tribunal by way of Application No.4 of 2010 for getting appointment as Principal which came to be allowed vide order dated 20.12.2011 passed by the Tribunal and the said order is challenged by the trust by way of filing a writ petition before this Court being Special Civil Application No.1089 of 2012 which is pending. It is also noteworthy that another writ petition being Special Civil Application No.17203 of 2012 is filed by one Junior Professor, whereby the decision taken by the Executive Council is challenged before this Court. The record also indicates that the trust also made a representation to the University for reconsidering the decision taken in its meeting dated 19.3.2012 on 2.5.2012. However, the said representation was filed by the Executive Council of the University vide decision dated 22.6.2012.
3.2 It appears from the record of the petition that respondent No.2 herein filed a complaint to Page 5 of 43 HC-NIC Page 5 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT Lokayukta on 16.3.2015 against the present petitioner who was Vice Chancellor and Ex Officio Chairman of the said Committee which came to be registered as preliminary Inquiry No.9 of 2015. After following the due procedure as provided under the Gujarat Lokayukta Act, 1986 (hereinafter referred to as "the Lokayukta Act") and after considering the reply as well as preliminary objection to the maintainability of the complaint and jurisdiction of the Lokayukta, the Lokayukta has registered a case being Investigation Case No.4 of 2015. The record indicates that Lokayukta issued a notice on 7.8.2015 to the petitioner in the said Investigation Case.
3.3 As averred in the petition, the petitioner appeared before the Lokayukta and also raised a preliminary issue of jurisdiction of Lokayukta for trying the Investigation Case in question with a prayer to decide the question as a preliminary issue by an application dated 21.9.2015. The said request has been rejected Page 6 of 43 HC-NIC Page 6 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT by an order dated 30.9.2015 and the petitioner was accordingly informed by communication dated 5/6.10.2015. As averred in the petition, the petitioner applied for certified copy of the said order by an application dated 20.10.2015 which came to be rejected and both these orders are challenged before this Court by way of this petition.
3.4 As far as challenge to the bailable warrant is concerned, even according to the learned advocate for the petitioner, the same does not survive any more as the petitioner has thereafter appeared before the Lokayukta.
4. Mr. Jal S. Unwala, learned advocate for the petitioner has taken this Court through the factual matrix as well as the grounds raised in the petition. The learned advocate for the petitioner has referred to Sections 2(1), 2(2), 2(7), 7, 8, 9(2), 11(2), 11(5) and 11(6) of the Lokayukta Act and Sections 10, 11, 19, 20(xxvi) and 20(5) of the Hemchandracharya North Gujarat Page 7 of 43 HC-NIC Page 7 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT University Act, 1986 (hereinafter referred to as "the 1986 Act") and has contended as under: [a] It was contended that Section 2(7)(d) specifically includes only the Vice Chancellor as a public functionary and not the University. It was contended that the said provision incorporates the individual decision and not a collective decision of the Council. It was further contended that the intention of the legislature was not to bring within its purview the decision taken by the Executive Council of the University and therefore, the legislature has deliberately excluded the University or Council and therefore, any collective decision where the petitioner is party as ExOfficio Chairman or a Vice Chancellor cannot be called into question as an action is defined under Section 2(1) of the Lokayukta Act and in her individual capacity as Vice Chancellor. [b] It was contended that as provided under Section 2(1) of the Lokayukta Act, what is provided is Page 8 of 43 HC-NIC Page 8 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT an action by the person in his or her individual capacity as Vice Chancellor and not an action taken by her as Chairman of the Executive Council.
[c] Referring to the complaint which is pending consideration before Lokayukta, it was contended by the learned advocate for the petitioner that even in the complaint, the allegations are made against the University and the Executive Committee and not the Vice Chancellor and therefore, the provisions of the Act are not attracted.
[d] It was contended that when the petitioner acts as Chairman of the Executive Council, she is not acting or functioning as Vice Chancellor and that his or her function as Vice Chancellor and the Chairman of the Executive Committee are distinct and different.
[e] It was contended that even if the allegations are taken at its face value, it does not constitute any acts falling within the Page 9 of 43 HC-NIC Page 9 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT definition of word "allegation" as defined under Section 2(2) of the Lokayukta Act. [f] It was contended that the decision taken by the Executive Committee is also challenged and is pending before this Court in Writ Petitions and therefore, Lokayukta has no jurisdiction to inquire into the same. Referring to Section 20(xxvi) of the 1986 Act, it was contended by the learned advocate for the petitioner that it is one of the functions of the Executive Council and therefore, the petitioner in her ExOfficio position as Chairman and Vice Chancellor cannot be made individually liable as it was a collective decision. [g] The learned advocate for the petitioner further contended that Dr. Pranav Trivedi was Incharge Principal and after issuing show cause notice as the charge was taken away by the trust, the same was challenged before the Tribunal and the Tribunal has decided in favour of Dr. Trivedi which is also subject matter of a Writ Page 10 of 43 HC-NIC Page 10 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT Petition, which is pending before this Court. It was also contended by the learned advocate for the petitioner that since this Court is looking to the very same allegations, the Lokayukta has no jurisdiction. [h] It was further contended that as provided under Section 11, more particularly, Sections 11(2) and 11(5) of the Lokayukta Act and on conjoint reading by a deeming fiction, Lokayukta shall be a Civil Court and word "shall" has to be considered as mandatory and not directory. It would be a Civil Court for the purpose of Section 9 of the Code of Civil Procedure, 1908. It was contended that even if this Section was not there, in view of Section 11(6) of the Lokayukta Act, it is a judicial proceeding and not a quasijudicial proceeding and when it is so, the question of jurisdiction assumes more importance and therefore, the application filed by the petitioner to decide the jurisdiction as a preliminary issue ought to have been decided by the Lokayukta.
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[i] The learned advocate for the petitioner has relied upon the following judgments: [I] Bhuri Nath & Ors. Vs. State of J & K & Ors., reported in (1997) 2 SCC 745 (Paragraphs 14, 15, 19, 20, 21, 22 and
25).
[II] ViceChancellor, University of Allahabad & Ors. Vs. Dr. Anand Prakash Mishra & Ors. reported in (1997) 10 SCC 264 (Paragraphs 9 and 11).
[III] Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology & Ors., reported in (2002) 5 SCC 111 (Paragraphs 48, 49 and
101).
In view of the same, it was submitted that the petition requires consideration and deserves to be allowed as prayed for.
5. Per contra, Ms. Manisha L. Shah, learned advocate for respondent No.1 has submitted as under: Page 12 of 43 HC-NIC Page 12 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT [a] That the petition is premature. [b] Referring to the objects and reasons of the Lokayukta Act, it was contended that in order to protect the public functionaries against whom the inquiry is to be held under the provisions of the Lokayukta Act, huge powers are provided for and the secrecy is to be maintained as provided for.
[c] It was contended that the provisions of Section 11(2) of the Lokayukta Act are circumscribed and the same are provided for empowering Lokayukta to carry out the investigation in a meaningful manner. It was further contended that Lokayukta has powers and trappings of the Civil Court. It was also pointed out that the power is provided in the Lokayukta Act to refer the matter even to the Criminal Court in case of false evidence or insult of the Presiding Officer, more particularly, because of the fact that Lokayukta is looking into corruption charges, powers conferred under the Lokayukta Page 13 of 43 HC-NIC Page 13 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT Act and the Rules are vast to ensure that proper investigation is carried out by Lokayukta. Referring to Sections 16, 17, 18 and 20 of the Lokayukta Act, it was contended that the legislature has provided for following of whole procedure to enable Lokayukta to inquire into the allegations made in the complaint after conducting a preliminary inquiry. [d] It was contended that in facts of the case, as such the petition is premature as the investigation is still to be carried out by Lokayukta. On facts, it was pointed out that the power to circulate agenda is with the Vice Chancellor and therefore, contention was raised by the petitioner that it was a collective decision of the Executive Council and therefore, the petitioner has not acted in her capacity as Vice Chancellor, is not tenable. [e] The learned advocate for respondent No.1 has relied upon the decisions in the case of Amarsinhbhai Bhilabhai Chaudhary Vs. State of Page 14 of 43 HC-NIC Page 14 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT Gujarat & Anr., reported in 2001 (3) GLR 2441 and Rang Nath Mishra Vs. State of Uttar Pradesh & Ors., reported in (2015) 8 SCC 117. It was therefore submitted that the petition is misconceived and the same deserves to be dismissed.
6. Ms. Mamta Vyas, learned advocate for respondent No.2 has adopted the arguments made by Ms. Manisha Shah, learned advocate for respondent No.1 and has also relied upon the affidavitin reply filed by respondent No.2.
7. No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties.
8. Before reverting to the submissions made by the learned advocates appearing for the respective parties, it would be appropriate to refer to the provisions of Sections 2(1), 2(2), 2(7), 7, 8, 9(2), 11(2), 11(5) and 11(6) of the Lokayukta Act, which read as under: Page 15 of 43 HC-NIC Page 15 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT "2(1) "action" means action taken whether before or after the commencement of this Act by way of decision, recommendation or finding or in any other manner includes failure to act, and all other expressions connoting action shall be construed accordingly;
2(2) "allegation" in relation to a public functionary and with reference to any action taken by him, means any affirmation that such public functionary in his capacity as a public functionary
(a) is guilty of corruption, or lack of integrity; or
(b) was actuated in the discharge of his functions by personal interest or improper or corrupt motives; or
(c) has abused his position to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person;
2(7) "public functionary" means a person who holds or has held an office of
(a) a Minister;
(b) the Chairman or the Vice Chairman or a nonofficial director or a nonofficial member of a Government Company within the meaning of section 617 of the Companies Act, 1956 in which not less than fifty one per cent of Page 16 of 43 HC-NIC Page 16 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT its paid up share capital is held by the State Government and the Chairman or the Vice Chairman or a nonofficial director or a non official member of a Company which is subsidiary of a Company in which not less than fifty one per cent of its paid up share capital is held by the State Government;
(c) the Chairman or the Vice Chairman or a nonofficial director or a nonofficial member of a Corporation or Board established by or under Bombay Act or the Gujarat Act or by the State Government and owned or controlled by the State Government;
(d) the ViceChancellor or a University established by law in the State of Gujarat;
7(1) Subject to the provisions of this Act, the Lokayukta may investigate any action which is taken by, or with the general or specific approval of a public functionary in any case where a complaint involving an allegation is made in respect of such action or such action can be or could have been in the opinion of the Lokayukta the subject of an allegation.
(2) No matter in respect of which a complaint is made under this Act shall be referred to a commission for inquiry under the Commissions of Inquiry Act, 1952 except on the recommendation or with the concurrence of the Lokayukta:
Provided that nothing in this sub section shall prevent the State Page 17 of 43 HC-NIC Page 17 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT Government from referring the matter to such commission for inquiry if in its opinion the matter is exceptionally a matter of definite public importance.
(3) Notwithstanding anything contained in subsection (1) the Lokayukta shall, before proceeding to investigate any action, make such preliminary inquiry as he deems fit for ascertaining whether there exist reasonable ground for conducting the investigation and if he finds that there exist no such grounds, he shall record a finding to that effect and thereupon the matter shall be closed and the complaint shall be informed accordingly.
(4) An investigation under this section of an action taken by or with the general or specific approval of a public functionary shall not be affected merely on the ground that subsequent to such action such public functionary ceased to hold the capacity in which the action was taken by him or with his approval or ceased to be such public functionary.
8(1) The Lokayukta shall not investigate any action,
(a) in respect of which a formal and public inquiry has been ordered under the Public Servants (Inquiries) Act, 1850 with his prior concurrence, or
(b) in respect of a matter which has been referred for inquiry under the Commissions of Inquiry Act, 1952 on his recommendation or Page 18 of 43 HC-NIC Page 18 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT with his prior concurrence or by the State Government under the proviso to subsection (2) of section 7, or
(c) in respect of a matter which has been inquired into under the enactments referred to in clauses
(a) and (b) or has been finally decided by a competent court.
(2) The Lokayukta shall not investigate any complaint which is excluded from his jurisdiction by virtue of a notification issued under Section 20.
(3) The Lokayukta shall not inquire into any matter concerning any person if he has any bias in respect of such matter or person and if any dispute arises in this behalf, the Governor shall, on an application made by the party aggrieved, obtain in such manner as may be prescribed, the opinion of the Chief Justice of the High Court and decide the dispute in conformity with such opinion.
(4) The Lokayukta shall not inquire into any complaint if the complaint is made after the expiry of five years from the date on which the action mentioned in such complaint is alleged to have been taken.
9(2) Every complaint shall be made in such form and shall be accompanied by such affidavits as may be prescribed. 11(2) For the purpose of any such investigation (including the preliminary inquiry), the Lokayukta shall have all the powers a civil Page 19 of 43 HC-NIC Page 19 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT court while trying a suit under the Code of Civil Procedure, 1908 in respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on
affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses or documents;
(f) such other matters as may be prescribed.
(5) The Lokayukta shall be deemed to be a Civil Court and when any offence as is described in section 175, section 178, section 179 or section 180 of the Indian Penal Code is committed in the view or presence of the Lokayukta, the Lokayukta may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1973, forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him under section 346 of the Code of Page 20 of 43 HC-NIC Page 20 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT Criminal Procedure, 1973.
(6) Any proceeding before the Lokayukta shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code."
Sections 10, 11, 19, 20(xxvi) and 20(5) of the 1986 Act read as under: "10. (1) The ViceChancellor shall be appointed by the Chancellor in consultation with the State Government from amongst three persons recommended under sub section (3) by a committee appointed for the purpose under sub section (2).
(2) (a) For the purposes of sub section (1) the Chancellor shall appoint a committee which shall consist of the following members, namely:
(i) two members (not being persons connected with the University or with any affiliated college, recognised institution or approved institution) out of whom one shall be a person nominated in the manner prescribed by the Statutes by the Executive Council and the Academic Council jointly and the other shall be a person nominated in the manner prescribed by the Statutes by the ViceChancellors of all the Universities established by law in the State of Gujarat;
(ii) one member to be nominated by the Chancellor;Page 21 of 43
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(iii) one member to be nominated by the Chairman of the University Grants Commission.
(b) The Chancellor shall appoint one of the four members of the committee as its Chairman.
(3) The Committee so appointed shall, within such time and in such manner as may be prescribed by the Statutes, select three persons whom it considers fit for being appointed as Vice Chancellor and shall recommend to the Chancellor the names of the Persons so selected together with such other particulars as may be prescribed by the Statutes (4) The ViceChancellor shall hold office for a term of three years and he shall be eligible for reappointment to that office for a further term of three years only.
(5) The emoluments to be paid to the ViceChancellor, and the terms and conditions subject to which he shall hold office shall be such as may be determined by the Stale Government; Provided that such emoluments or such terms and conditions shall not, during the currency of the term of the holder of that office, be varied to his disadvantage without his consent. (6) (a) During the leave or absence of the ViceChancellor, or
(b) in the event of a permanent vacancy in the office of the Vice Page 22 of 43 HC-NIC Page 22 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT Chancellor, until. an appointment is made under ",subsection (1) to that office, the Pro ViceChancellor, and in the absence of the Pro ViceChancellor, one of the Deans nominated by the Chancellor for that purpose shall carry on the current duties of the office of the Vice Chancellor.
11. (1) The ViceChancellor shall be the Principal executive and academic officer of the University and shall, in the absence of the Chancellor, preside at meetings of the Court and any convocation of the University. He shall be an exOfficio member and Chairman of the Executive Council and of the Academic Council. He shall be entitled to be present with the right to speak at any meeting of any other authority or body of the University, but, shall not be entitled to vote thereat unless he is a member of that authority or body.
(2) The viceChancellor shall have power to convene meetings of the Court, the Executive Council, the Academic Council and such other authorities of the University of which he is the Chairman. He may delegate this power to any other officer of the University.
(3) It shall be the duty of the Vice Chancellor to ensure that this Act, the Statutes, Ordinances, Regulations and Rules are faithfully observed and he shall have all powers necessary for this purpose.
(4) (a) In any emergency which, in the Page 23 of 43 HC-NIC Page 23 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT opinion of the ViceChancellor requires that immediate action should be taken, he shall take such action as he deems necessary and shall at the earliest opportunity thereafter furnish information regarding his action to such officer, authority or body, would have in the ordinary courses dealt with the matter.
(b) When action taken by the Vice Chancellor under this subsection affects any person in the service of the University such person shall be entitled to prefer an appeal through the said officer, authority or body to the Executive Council within fifteen days from the date on which such action is communicated to him. (5) The ViceChancellor shall give effect to the orders of the Executive Council regarding the appointment, dismissal, suspension and punishment of the persons in the service of the University or teachers of the University or regarding the recognition or withdrawal of the recognition of any such teacher and shall exercise general control over the affairs of the University. He shall be responsible for the discipline of the University. in accordance with this Act, the Statutes and Ordinances.
(6) (a) Subject to the provisions contained in subsection (4) and notwithstanding anything contained in subsection (5), where the Vice Chancellor after making such inquiry as may be deemed fit is of the opinion that the execution of any order or resolution of an authority specified Page 24 of 43 HC-NIC Page 24 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT in or declared under section 1 5, or the doing of anything which is about to be done or is being done by or on behalf of the University.~
(i) is inconsistent with provisions of this Act or of any Statutes, Ordinances, Regulations or Rules, or
(ii) is not in the interest of the University, or
(iii) is likely to lead to breach of peace.
he may forward a copy of the order or resolution or, as the case may be. refer the doing of the thing, with a statement of reasons, to the authority which made the order or passed the resolution or proposes to do the thing for reconsideration by that authority as to whether the said order or resolution may not be rescinded, or revised, or modified in the manner stated by him or the doing of the thing be refrained from.
(b) Where the authority after reconsideration revises or modifies the order or the resolution in the manner stated by the Vice Chancellor, then notwithstanding anything contained in clause (a) such revised or modified order or resolution shall revive from the date of such revision or modification.
(c) Where the authority revises or modifies the order or resolution in such manner as is inconsistent with the manner stated by the Vice Chancellor the ViceChancellor shall refer the matter to the Chancellor for Page 25 of 43 HC-NIC Page 25 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT his decision.
(d) The Chancellor may, on such reference being made, revise or modify the order or resolution or direct that the order or resolution shall continue to be in force with or without modification permanently or for such period as it may specify;
Provided that the order or resolution shall not be revised or modified or continued by the Chancellor without giving the concerned authority a reasonable opportunity of showing the cause against the order proposed to be made by him.
(e) The order, resolution or, as the case may be the doing of thing shall remain in abeyance from the date of the action of the ViceChancellor of forwarding the copy of order or resolution or of making reference under clause (a) till the date of the order of the Chancellor under clause
(d).
19. (1) The Executive Council shall be the executive authority of the University and shall consist of the following, namely:
(i) The ViceChancellorExOfficio Chairman;
(ii) The Pro ViceChancellor;
(iii) The Director of Higher Education, Gujarat State or the officer designated under clause (i) of paragraph (8) of ClassI of subsection (1) of section 16;Page 26 of 43
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(iv) The Director of Technical Education, Gujarat State or the officer designated under clause (ii) of paragraph (8) of ClassI of subsection (1) of section 16;
(v) The Director of Health and Medical Services and Medical Education, Gujarat State, or the officer designated under clause (iii) of paragraph (8) of ClassI of sub section (1) of section 16;
(vi) Two Deans of Faculties nominated by the ViceChancellor from amongst the Deans of Faculties by rotation in the manner prescribed by the Statutes;
(vii) Two persons to be elected by the Court from amongst its members who are not teachers or members of the teaching staff of the University affiliated colleges, recognised institutions and approved institutions and students;
(viii) Two Principals of the affiliated colleges nominated by the Vice Chancellor by rotation in the manner specified by the Statutes;
(ix) One University professor not being a Dean of a Faculty nominated by the ViceChancellor by rotation in the manner prescribed by the Statutes;
(x) One Reader nominated by the Vice Chancellor by rotation in the manner prescribed by the Statutes;
(xi) Two persons to be nominated by the Chancellor from amongst distinguished educationists, teachers Page 27 of 43 HC-NIC Page 27 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT and such other class of persons irrespective of whether they are members of the Court or not;
Provided that a member nominated under clauses (vi), (viii), (ix) and (x) or elected under clause (vii) shall cease to hold office as such member if he ceases to be, a Dean, a Principal, a University Professor, a Reader or, as the case may be, a member of the Court.
[2] The term of office of the elected and nominated members of the Executive Council shall be three years.
20(xxvi) to recognise a member of the staff of an affiliated college or recognised institution or approved institution as professor, reader, lecturer or teacher of the University and withdraw such recognition; 20(5) The exercise of the powers by the Executive Council under clauses (xxix) and (xxx) of subsection (1) in so far as they relate to the laying down and regulating salary scales and allowances of officers [other than the Chancellor, the ViceChancellor and the ProViceChancellor] and members of the teaching other academic and nonteaching staff of the University, affiliated colleges and recognised or approved institutions, shall be subject to the approval of the State Government."
9. The learned advocate for the petitioner has relied upon the following judgments to buttress Page 28 of 43 HC-NIC Page 28 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT his contention that the Lokayukta has no jurisdiction over the Chairman of the Executive Committee and that the petitioner being Vice Chancellor has acted as the Chairman of the Executive Committee, which is an ExOfficio and not as a Vice Chancellor of the University and therefore, the Chairman would not be included in the words "public functionary" as defined under Section 2 of the Lokayukta Act.
10. Relying upon the judgment of the Apex Court in the case of Bhuri Nath & Ors. (supra), it was sought to be contended that the function of the Chairman of the Executive Council and that of Vice Chancellor are separate and distinct and for the decision which is taken collectively by the Executive Council cannot be termed as decision of the Vice Chancellor. The Apex Court, while examining the constitutional validity of Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988 has in fact considered the function of the Governor of a State as provided under Article 166 of the Constitution Page 29 of 43 HC-NIC Page 29 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT of India and as ExOfficio Chairman of the Shrine. The Apex Court, while examining the constitutional mechanism of the State and taking into consideration the specified business rules, has come to the conclusion that as Chairman of the Shrine, the Governor, Jammu and Kashmir shall not take advice of the Council of the Ministers headed by Chief Minister. In facts on hand, the function of the Vice Chancellor and the function of Vice Chancellor as the ExChairman of the Executive Committee are not separate and distinct. The Executive Committee as such is the creature of the Hemchandracharya North Gujarat University Act itself under which the petitioner was the Vice Chancellor. The fact situation in this case being different, the ratio laid down by the Apex Court in Bhuri Nath & Ors. (supra) would not be applicable and hence, it cannot be said that the Lokayukta has no jurisdiction and that the function of the petitioner as Executive Chairman of the Executive Council is Page 30 of 43 HC-NIC Page 30 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT different, distinct and separable from the functions as a Vice Chancellor.
11. The learned advocate for the petitioner has also relied upon the judgment in the case of ViceChancellor, University of Allahabad & Ors. (supra), more particularly, Paragraphs 9 and 11 of the said judgment. In the said case also, the Hon'ble Supreme Court has taken into consideration the constitutional function of the Governor under Article 163 of the Constitution of India and under Section 68 of the 1986 Act. However, as stated hereinabove, the petitioner has functioned as Vice Chancellor and therefore, the said judgment is also not applicable to the facts of the present case.
12. The learned advocate for the petitioner has also relied upon the Constitutional Bench judgment of the Apex Court in the case of Pradeep Kumar Biswas (supra). At the outset, it deserves to be noted that the petitioner has Page 31 of 43 HC-NIC Page 31 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT placed reliance upon Paragraph 101 of the said judgment. The petitioner has wrongly relied upon the observations made in Paragraph 101 of the said judgment, which is dissenting view. The Apex Court in the said case has considered the aspect whether the Council of Scientific and Industrial Research is a State under Article 12 or not and on that basis, the Apex Court in Paragraphs 48 to 50 has observed thus: "48. When the Government of India resolved to set up CSIR on 2621942, it also decided that the Governing Body would consist of the following members:
(1) The Honourable Member of the Council of His Excellency the governor General in charge of the portfolio of Commerce (ex officio).
(2) A representative of the Commerce Department of the Government of India, appointed by the Government of India.
(3) A representative of the Finance Department of the Government of India, appointed by the Government of India.
(4) Two members of the Board of Scientific and Industrial Research elected by the said Board.Page 32 of 43
HC-NIC Page 32 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT (5) Two members of the Industrial Research Utilization Committee elected by the said Committee.
(6) The Director of Scientific and Industrial Research.
(7) One or more members to be nominated by the Government of India to represent interest not otherwise represented.
49. The present Rules and Regulations, 1999 of CSIR provide that:
"(a) The Prime Minister of India shall be the ex officio President of the Society.
(b) The Minister in charge of the ministry or department, dealing with the Council of Scientific and Industrial Research shall be the ex officio VicePresident of the Society:
Provided that during any period when the Prime Minister is also such Minister, any person nominated in this behalf by the Prime Minister shall be the VicePresident.
(c) Minister in charge of Finance and Industry (ex officio).
(d) The members of the Governing Body.
(e) Chairman, Advisory Board.
(f) Any other person or persons appointed by the President, CSIR."
The Governing Body of the Society is constituted by the:
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(a) Director General;
(b) Member Finance;
(c) Directors of two national laboratories;
(d) Two eminent Scientists/ Technologists, one of whom shall be from academia;
(e) Heads of two scientific departments/agencies of the Government of India.
50. The dominant role played by the Government of India in the Governing Body of CSIR is evident. The Director General who is ex officio Secretary of the Society is appointed by the Government of India [Rule 2(iii)]. The submission of the learned Attorney General that the Governing Body consisted of members, the majority of whom were nongovernmental members is, having regard to the facts on record, unacceptable. Furthermore, the members of the Governing Body who are not there ex officio are nominated by the President and their membership can also be terminated by him and the Prime Minister is the ex officio President of CSIR. It was then said that although the Prime Minister was ex officio President of the Society but the power being exercised by the Prime Minister is as President of the Society. This is also the reasoning in Sabhajit Tewary. With respect, the reasoning was and the submission is erroneous. An ex officio appointment means that the appointment is by virtue of the office; without any other warrant or appointment than that Page 34 of 43 HC-NIC Page 34 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT resulting from the holding of a particular office. Powers may be exercised by an officer, in this case the Prime Minister, which are not specifically conferred upon him, but are necessarily implied in his office (as Prime Minister), these are ex officio."
13. Sections 11(1), 11(2) and 11(3) of the 1986 Act relate to powers of the Vice Chancellor. Considering the aforesaid provisions, the duties or the powers of the Vice Chancellor, though ExOfficio, are not separate and distinct. Though the petitioner, by virtue of her office as Vice Chancellor has acted as Ex Officio Chairman of the Executive Council which is one of the powers of the Vice Chancellor and such actions are not separate and distinct as tried to be canvassed by the learned advocate for the petitioner and therefore, the judgment of Pradeep Kumar Biswas (supra) would not be applicable. In view of the aforesaid therefore, the contention raised by the petitioner that the Vice Chancellor, while acting as an Ex Officio Chairman of the Executive Council is Page 35 of 43 HC-NIC Page 35 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT not a public functionary and therefore, the contention that the Lokayukta has no jurisdiction deserves to be negatived. In primafacie opinion of this Court, it cannot be said that Lokayukta has no jurisdiction.
14. Relying upon the decision in the case of Rang Nath Mishra (supra), the learned advocate for respondent No.1 contended that as per the provisions of the Lokayukta Act, Lokayukta can exercise his discretion to adopt such procedure as may be considered appropriate in the given case.
15. It clearly appears from the record of the petition that the petitioner was ExOfficio Chairman of the Executive Council and therefore, it cannot be said that she has not acted as Vice Chancellor. The agenda of the meeting dated 19.3.2012 even as per the provisions applicable is issued by the petitioner in her capacity as a Vice Chancellor. Even as contended by respondent Page 36 of 43 HC-NIC Page 36 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT No.2 in his affidavit, which is not controverted by the petitioner, that the College by letter dated 7.3.2012 has specifically objected before the University that the earlier Resolution of granting promotion is rejected by the University and that the College was not proposing to give promotion to Dr. Trivedi. Still however, the matter was taken in the meeting of the Executive Committee of the University held on 19.3.2012 and that too, promotion is given with effect from 1.1.2005. The record indicates that Lokayukta has scrupulously followed the procedure at the stage of preliminary inquiry and as it can be seen from the points of determination which are formulated by Lokayukta, which is also part of the record of this petition, shows that Lokayukta has elaborately included all aspects including the aspects which are sought to be canvassed by the learned advocate for the petitioner. It deserves to be noted that over and above other Page 37 of 43 HC-NIC Page 37 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT aspects, the Lokayukta has also framed the points for determination, which deserve to be mentioned at this stage, which are as under: "6. Whether the acts amount to acts of favouritism within the meaning of sub section (1) and (2) of section 2 of the Act.
7. Whether the act or omission on the part of the respondent would amount to lack of integrity within the meaning of the said Act.
8. Whether acts or omissions on the part of the respondent were actuated in the discharge of function by improper motives or whether the respondent has abused her position as Public Functionary to obtain favour to Dr. Trivedi and caused undue hardship to the Institution or College.
9. Whether the respondent acted as Public Functionary while taking actions as aforesaid?
10. Whether the acts/omissions on the part of the respondent amount to "action" within the meaning of section 2(1) and 2(2) of the Gujarat Lokayukta Act, 1986."
16. Therefore, it clearly bornes out that Lokayukta has also formulated points to the effect which concerns the provisions of the Lokayukta Act which is relied upon by the learned advocate Page 38 of 43 HC-NIC Page 38 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT for the petitioner, more particularly, Sections 2(1), 2(2) and 2(7)(d). Ms. Shah has rightly contended that the provisions of Section 11 which provides for the manner of evidence as circumscribed for the purposes which are mentioned in Sections 11(2), 11(5) and 11(6). In opinion of this Court, the Lokayukta is free to follow its own procedure which are in fact provided under the provisions of the Lokayukta Act and the Rules and Code of Civil Procedure, 1908 as a whole would not apply stricto senso to the proceedings before the Lokayukta under the provisions of the Lokayukta Act. The legislature in its wisdom has provided for certain powers which are provided in the Code of Civil Procedure, 1908 and the same is not illustrative, but definite. Over and above the powers which are vested in Lokayukta under Section 11 of the Lokayukta Act, the Lokayukta is free to adopt his own procedure. Section 10 of the Lokayukta Act also makes it clear as to what procedure the Lokayukta has to follow when Page 39 of 43 HC-NIC Page 39 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT the Lokayukta decides to conduct and investigate under the Lokayukta Act. On reading the complaint which is forming part of the record of the petition, as the allegations leveled against the petitioner also relate to her action as ExOfficio Chairman in her capacity as Vice Chancellor, in the primafacie opinion of this Court, it cannot be said that the complaint is not against the public functionary, but against the University and the Executive Council of the University. Suffice it to say that in the complaint itself, the petitioner is named. Therefore, it cannot be said that while acting as Chairman of the Executive Council, the petitioner ceases to be the Vice Chancellor of the University. As observed hereinabove, the Lokayukta has formulated points for determination which also includes the points which are raised in the preliminary application which was filed and which has been rejected. Considering the provisions of the Lokayukta Act and the Page 40 of 43 HC-NIC Page 40 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT purpose, objects and reasons of the Lokayukta Act, enough safeguard is provided and it cannot be said that the impugned order, rejecting the application filed by the petitioner to decide the question of jurisdiction and as a preliminary issue, is erroneous. Even at the cost of repetition, it deserves to be noted that the points of determination are so elaborate and wide enough that the investigation by the Lokayukta would not prejudice the petitioner in any manner. Considering the provisions of Section 16 of the Lokayukta Act and the Rules, this Court is of the opinion that this is not a fit case, wherein respondent No.1 is required to be directed to give certified copy of the order dated 30.9.2015. In facts and circumstances of the case, this Court is not called upon to embark upon any inquiry into validity of the order passed by the Tribunal and therefore, the pendency of two Writ Petitions challenging the order of the Tribunal would not be affected.
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C/SCA/18865/2015 JUDGMENT
The contention raised by the learned advocate for the petitioner that as two petitions are pending, the Lokayukta has no jurisdiction to inquire and investigate, deserves to be negatived. The reference made to the referred provisions of the Lokayukta Act would not take the case of the petitioner any further in view of the fact that the petitioner was appointed as a Vice Chancellor and was ExOfficio Chairman of the Executive Council only recites the powers of the Vice Chancellor. On the contrary, subsection (3) of Section 11 of the Lokayukta Act provides that it shall be the duty of the Vice Chancellor to ensure that the Act, Statutes, Ordinances, Rules and Regulations are faithfully observed. In facts of the case therefore, this is not a fit case for interference of this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India. The petitioner is to be given ample opportunity as per the points of determination formulated. It deserves to be Page 42 of 43 HC-NIC Page 42 of 43 Created On Fri Feb 05 02:53:52 IST 2016 C/SCA/18865/2015 JUDGMENT noted that the Lokayukta has formulated points for determination which are also raised in this petition and therefore, it is provided that the finding of this Court shall not in any manner prejudice the rights of the petitioner to raise all contentions before the Lokayukta on each of the points for determination as framed.
17. Resultantly, the petition fails and is hereby dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
Sd/-
(R.M.CHHAYA, J.) mrp Page 43 of 43 HC-NIC Page 43 of 43 Created On Fri Feb 05 02:53:52 IST 2016