Punjab-Haryana High Court
Dr.Jasbir Singh Ahluwalia vs Sri Guru Granth Sahib World University ... on 5 February, 2013
Bench: A.K. Sikri, Rakesh Kumar Jain
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.15063 of 2012 (O&M)
DATE OF DECISION: February 05, 2013
Dr.Jasbir Singh Ahluwalia
.....Petitioner
versus
Sri Guru Granth Sahib World University and others
.....Respondents
CORAM:- HON'BLE MR.JUSTICE A.K. SIKRI, CHIEF JUSTICE
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN, JUDGE
Present: Mr.Puneet Bali, Senior Advocate with
Mr.Vaibhav Jain, Advocate for the petitioner
Mr.Arun Palli, Senior Advocate with
Mr.Tushar Sharma, Advocate for respondent No.1
Mr.Gurminder Singh, Advocate for respondents
No.2,3 and 5
..
A.K. SIKRI, C.J.
1. By means of the present writ petition, the petitioner, who is the Vice Chancellor of Guru Granth Sahib World University, under Article 226 of the Constitution of India assails the orders dated 31.7.2012 vide which he has been placed under suspension with immediate effect, "in view of contemplation of an inquiry into series of charges of misconduct" against him. According to the petitioner, the impugned order is actuated by mala fide and amounts to colourable exercise of powers which came to be exercised after the petitioner refused to toe the line of the respondents, particularly, the respondent No.3. In addition to issuance of writ of certiorari quashing the said order dated 31.7.2012, the petitioner has also sought writ in the nature of CWP-15063-2012 -2- mandamus restraining the respondent No.3 for participating in any decision making process with regard to the petitioner's service as Vice Chancellor. He also prays for an order directing an inquiry by an impartial outside agency into the face of University and allegedly illegal appointments made by the respondent Nos.3 and 4. Numbers of other incidental prayers are also contained in the writ petition. The case of mala fide is sought to be set up by the petitioner, making averments to the following effect.
2. The petitioner, who is an M.A./Ph.D claims that he is a leading Sikh scholar and a Punjabi writer, who has written over three dozens books in Punjabi and English. Some of the petitioner's book are prescribed at Post Graduate level in North Indian Universities. He has been recognized in the history of Punjabi literature as a pioneer of a literary era known as the modernist phase. He is a recipient of the Shriomani Sahitkar (Best Writer Award) of Punjab Government for 1997-98 and also of the Antarashtri Shriomani Sahitkari Award (International Best Writer Award) of the Canada based International Association of Punjabi Authors & Artists Inc. The petitioner was selected and appointed to the Punjab Civil Service and then promoted to the Indian Administrative Service. He has held various important posts for the State of Punjab including that of the Director, Planning and Development (P), Punjabi University, Patiala; Director, Punjab State Text Book Board, Chandigarh; Chairman, Punjab School Education Board; Vice Chancellor, Punjabi University, Patiala, etc. The Guru Granth Sahib 4th Centenary Trust (created under the Indian Trusts Act, 1882) sponsored and made a proposal to the State Government for setting up a private University in the State. The said proposal was CWP-15063-2012 -3- accepted by the State Government. The University was created and established vide the Sri Guru Granth Sahib World University Act, 2008.
3. On 06.6.2008, the petitioner was appointed as the Vice Chancellor of the respondent No.1/University for a tenure of five years with immediate effect on the terms and conditions given under Section 11(3) of the Sri Guru Granth Sahib World University Act, 2008.
4. According to the petitioner, the genesis of the impugned suspension order and the action taken by the respondent is to be traced to events which got triggered from 28.7.2011 onwards. On that date, one Zora Singh came to the office of the petitioner at about 11.00 a.m. and introduced himself as a social and political worker. He stated that he had come with the request for admission of his relative in the institution. He further stated that the candidate was the grandson of his wife's uncle (Massad), who had secured 48% marks. The petitioner expressed his inability to help him since the boy (Vishwajeet Singh) had secured less than 50% marks and was not eligible. Zora Singh requested the petitioner to exercise his discretion and accommodate him. The petitioner expressed helplessness in the matter and told him that rules had to be followed and were binding.
5. The said Zora Singh again came to his Office on 29.7.2011 and again requested for admission of Vishwajeet Singh. When the petitioner expressed his inability, he along with other persons threatened the petitioner. They left the office on that date, but came back on 01.8.2011. At that time, the petitioner was taking round of the University and when he reached near the Notice Board of the main porch of the University, Zora Singh came carrying a pistol in his right CWP-15063-2012 -4- hand and fired two shots one of which hit the petitioner in his face. The petitioner immediately collapsed on the ground. He was taken to Civil Hospital, Fatehgarh Sahib by the employees of the University and ultimately shifted to PGI where he was admitted at about 4.30 p.m. The petitioner had lost consciousness after being shot. At the PGI, the petitioner was admitted to ICU. The petitioner was treated by various specialities of PGI from 01.8.2011 to 08.10.2011 when he was discharged. FIR No.100 dated 01.8.2011 was registered under Section 307 of the Indian Penal Code and under Section 25/54/59 of the Arms Act. Challan has been filed in the Court by the Punjab Police. While the petitioner was incapacitated from performing the duty of Vice Chancellor, the respondent No.4, Mr. Gurnek Singh was working as Acting Vice Chancellor. This appointment was made by Shri Avtar Singh Makkar, respondent No.3. The respondent No.4 prior to his appointment as Acting Vice Chancellor had retired as Professor from Pubjabi University, Patialia. On 07.3.2012, the petitioner could rejoin as Vice Chancellor. During the absence of the petitioner, respondent Nos.3 and 4 had been running the University in a totally arbitrary manner and the joining back of the petitioner was not to their liking.
6. The endeavour of the petitioner in demonstrating the alleged irregularities and illegalities on the part of these respondents is based on the following instances:
(a) The petitioner initially tried to rejoin his duties on 15.12.5011. However, while on his way to Fatehgarh Sahib from Chandigarh, the petitioner was again taken ill and hence could not join on that date. One Dr. Shinderpal Singh arranged a welcome party for the CWP-15063-2012 -5- petitioner consequent upon his recovery. The services of Dr. Shinderpal Singh were terminated by Shri Gurnek Singh, Acting Vice Chancellor on the ground that he was instrumental in drafting and printing the banner depicting the welcoming of the petitioner as Vice Chancellor, which was displayed on 15.12.2011; that he removed the nameplate of the Acting Vice Chancellor;
that he entertained guests in the office of the Vice Chancellor on 14.12.2011 in the absence of the Vice Chancellor; tried to vitiate the atmosphere of the University by promoting factionalism in the University employees; did not attend the meeting convened by Shri Gurnek Singh on 02.1.2012, etc.; Shri Shinder Pal Singh filed C.W.P. No.3744/2012 which is still pending in this High Court.
(b) In a similar manner, the services of one Dr. H.R. Verma, Professor of Science and Technology-cum-Controller (Admission and Examinations) as Controller (Admission and Examination) were terminated vide orders datd 03.2.2012 by the respondent No.4. Dr. H.R. Verma has also filed C.W.P. No.7369 of 2012 in this Court in which notice of motion has been issued.
(c) Main thrust of the petitioner is to the filing of Public Interest Litigation, i.e., W.P.(C) No.6100/2012, which is pending in this Court. The petitioner alleges that during his absence when the respondent No.4 was working as Acting Vice Chancellor, a large number of appointments CWP-15063-2012 -6- were made without any posts being created; without required qualification being determined; without any advertisement; without any selection process and amount of Rs.7 Crores had been spent by the then Acting Vice Chancellor for which there were very few entries. At least, 92 such appointments were made which prompted a public spirited person to file PIL, W.P.(C) No.6100/2012 on 27.3.2012 questioning those alleged illegal appointments. Further, the amount of Rs.7 Cores was spent on purchases for which there were no vouchers and this is also the subject matter of the said PIL. In Para 6 of the said writ petition, following details of alleged appointments made are discussed:
"(a) Amanpreet Singh who happens to be grandson (daughter's son) of Sh. Avtar Singh Makker, President, Shri Gurudwara Parbandhak Committee, has been appointed as Deputy Director Youth Welfare in the pay scale of Rs.35,000/- per month, whereas previously he was working as Lab Supervisor in the pay scale of Rs.6,500/- per month.
(b) Gurpreet Singh has been appointed as System Administrative.
(c) Pawanpreet Kaur has been appointed as Medical Officer.
(d) Harmanpreet who happens to be close relative of Dr. Gurnek Singh (respondent No.2) has been appointed as Additional Electrical Engineer.
(e) Dr. Pritpal Singh has been appointed as Registrar without following the norms.
(f) Dr. Baljinder Singh was appointed as Controller of Admission and Examination. Earlier he was a Lecturer in Punjabi at Shri Guru Gobind Singh College, Sector 26, Chandigarh and he was dismissed from his services due to his bad conduct.
(g) Jasmeet Singh has been appointed as Assistant Director for Students Welfare, who happens to be son of Principal, Guru Gobind Singh Public Senior Secondary School in Daad village on Ludhiana Pakhowal road and this school is being run by CWP-15063-2012 -7- Model Town Extension Gurudwara Trust of which Shri Avtar Singh Makker is the Chairman. "
In this PIL, notice of motion was issued by the Court. By that time, the petitioner had already rejoined as Vice Chancellor of the University and was supposed to file reply to the said writ petition. It is alleged by the petitioner that the respondent No.3 started pressuring to file the reply justifying the appointments and spending of Rs.7 Crores. On the other hand, however, the petitioner wanted to file the reply as per the records, which showed that the allegations made in the PIL were correct and the appointments were made contrary to the well settled legal procedure. The petitioner insisted that he was required to file the reply stating correct position as per the records. This infuriated the respondent No.3 who threatened the petitioner removal from service and implication in criminal cases.
(d) The petitioner has narrated certain instances when according to him, on various occasions, the respondent No.3 had passed illegal orders and directed the petitioner to comply with the same. These are contained in Para 14 of the writ petition. The petitioner states that he did not toe the line of the respondent No.3 and refused to oblige him because of which he became inimical to the petitioner.
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(e) According to the petitioner, it is in this backdrop that the respondent No.3 first wrote the letter dated 27.7.2012 to the Manager, Canara Bank Branch in the University stating that the power to withdraw or transfer the amount from the University accounts given to the petitioner had been taken away and even four days thereafter, suspension order dated 31.7.2012 was passed in the following manner:
"Office Order In view of contemplation of an inquiry into serious charges of misconduct against you, the Chancellor is pleased to place Dr. Jasbir Singh Ahluwalia, Vice Chancellor, under suspension with immediate effect. He shall hand over the charge of his post along with all record to the Registrar of the Sri Guru Granth Sahib World University, Fatehgarh Sahib and shall make himself available for further proceedings. Being an officer of the University, he shall be entitled to receive 50% of his salary during suspension. As he is not performing the duties of Vice Chancellor, all other facilities shall stand withdrawn forthwith. He shall report at the Planning/Site Office of the Trust at Kalgidhar Niwas, Plot No.6, Sector 27-B, Chandigarh.
Sd/- Avtar Singh Chancellor, Sri Guru Granth Sahib World University."
7. In order to show that the aforesaid allegations are correct, the petitioner has taken support from the minutes of the meeting dated 30.3.2012 of the Syndicate of the University, which are as under:
"Referring to the media news items, as regards the alleged procedural infirmities/improprieties during the previous regime (when Vice Chancellor, Dr. Jasbir Singh Ahluwalia was under
treatment in the PGI, Chandigarh) Sardar R.S. Mann stressed that the same should be looked into and further observed that in future academic/technical/administrative posts should be filled by the Vice Chancellor only after following due procedure including creation of need based jobs, fixing qualification and experience, advertisement and selection through selection committee/search committee, except in exceptional emergency circumstances to be recorded as such. The above suggestions were approved by the Syndicate meeting."
8. On the basis of the aforesaid, the petitioner contends that the syndicate of the respondent/University has already found that the private respondents made appointments without creation of posts, CWP-15063-2012 -9- without laying down qualification, without advertising the posts and without any selection process. According to him, even otherwise, the University record demonstrates the correctness to the same effect. The petitioner has also referred to the communication dated 20.7.2012 received by him in the capacity of Vice Chancellor of the University from the Office of Shiromani Gurudwara Parbandhak Committee ('SGPC' for brevity). This letter states that vide Resolution No.413 dated 20.6.2012, SGPC has given powers to the President to nominate the Members of Sri Guru Garanth Sahib Fourth Centenary Memorial Trust for five years and in exercise of those powers, the President had nominated the Members of the Trust. The first meeting had been fixed for 24.7.2012 at 4.00 p.m. The petitioner was asked to hand over the record of the said Trust, which was kept by the petitioner, being the Principal Secretary of the Trust as the record was required in the meeting dated 24.7.2012. As per the petitioner, it was another deliberate attempt to divest him of the custody of the said records, which the petitioner was supposed to keep. At the time of arguments, Mr. Bali, learned Senior Counsel for the petitioner also drew attention of this Court to the minutes of the meeting which was held on 24.7.2012 as scheduled. As per those minutes, decision was taken to nominate Mr. S. Sukhdev Singh for the post of Member Secretary in place of the petitioner. Another decision was taken alleging irregularities on the part of the petitioner and it was decided to take action against him regarding the irregularities committed by him.
9. The petitioner has also alleged that just five days before the impugned suspension order, i.e., on 26.7.2012, the petitioner was asked to resign and he had written a letter dated 26.7.2011 in this CWP-15063-2012 - 10 -
behalf to the respondent No.4 stating that when the Trust's President did not want him to continue, he was also not keen to continue as Vice Chancellor, but demanded honourable exit with payment of his salary for the remaining period and recording of appreciation of his service as Vice Chancellor. The petitioner points out that vide letter dated 15.7.2011, the petitioner had even tendered his resignation as Vice Chancellor because of humiliating and derogatory treatment meted out there and pointing out detailed irregularities and illegalities committed. However, thereafter, there was a meeting with the Chancellor on 16.7.2011 in which matters were straightened out and respecting the desire of Chancellor, he withdrew his resignation vide letter dated 15 July, 2011.
10. On the aforesaid events, it is contended that it was a systematic and deliberate attempt to sideline the petitioner. On that basis, the petitioner has challenged the suspension order and has also claimed other incidental reliefs. Mr. Bali highlighted these features in support of his submission that the impugned order was motivated and actuated with mala fides.
11. Another ground taken to question the validity of the impugned order is that it was without jurisdiction as Chancellor had no power to suspend the petitioner inasmuch as his Appointing Authority was the Trust and not the Chancellor. Relying upon the judgment of the Supreme Court in Bharat Lal, son of Late Bahraich, Executive Engineer, Construction Division (Maintenance), U.P. Jal Nigam Vs. State of U.P. reported as 2005 3 AWC 2631 = MANU/UP/0100/2005 decided by the Supreme Court, he submitted that such an order warranted to be set aside on this ground alone.
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12. Further, by placing reliance on the same judgment, he submitted that the power of suspension is not to be exercised in an arbitrary manner and without any reasonable ground. Such an extreme step has to be resorted to only in a case where there is a strong prima facie case against the employee and the allegations involve moral turpitude, grave misconduct or indiscipline or refusal to carry out the orders of the superior authority and where the contents of strong prima facie case against him, if proved, would ordinarily result in reduction in rank, his removal or dismissal from service. In that very case, the Supreme Court also held that the power to suspend can be exercised only when the statutory Rules permit such an action. An authority which has the supervisory/administrative control over an employee, can initate disciplinary proceedings and pass an order of suspension unless the statutory rules provide to the contrary. If the statutory rules authorize a particular authority by natural corollary, all other persons stand excluded from exercising the power to suspend and no one other than the authority named in the rules, can pass the suspension order.
13. Mr. Bali also banked upon the judgment of the Kerala High Court in the case of K. Vikraman Nair Vs. State of Kerala and others reported as ILR 2008 (4) Kerala 395 for the proposition that if victimization is discernible from the facts of the case or if suspension is arbitrary or illegal, interference in exercise of power under Article 226 of the Constitution of India is justified and warranted. He particularly referred to the following passage from the said judgment:
"11. Suspension of an employee pending disciplinary proceedings and departmental enquiry is not automatic, but is discretionary. One of us (J.B. Koshy, J.), speaking for the Division Bench in Surendran v. Government of Kerala (2008 (3) CWP-15063-2012 - 12 -
KHC 738) pointed out that the object of placing an employee under suspension pending enquiry is to enable the administration to conduct the proceedings smoothly so as to establish the allegations or charge against that employee. If victimisation is discernible from the facts of the case or, suspension is arbitrary or illegal, interference in exercise of the power under Article 226 of the Constitution is justified and warranted.
12. The appointing authority or the disciplinary authority while considering whether an employee should be placed under suspension pending disciplinary proceedings and departmental enquiry should certainly consider the seriousness of the misconduct sought to be enquired into or investigated and the nature of the materials place before such authority. It must be on proper application of mind that the disciplinary authority should decided on the question of suspension. The order of suspension cannot be issued merely as an administrative routine or as automatic following the decision to initiate disciplinary proceedings. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. Public interest of the impact of the delinquent's continuance in office while facing departmental enquiry is also a matter which the authority concerned should bear in mind while deciding whether the delinquent employee must be placed under suspension (See State of Orissa v. Bimal Kumar Mohanty (1994) 4 SCC 126)."
14. Another judgment on which Mr. Bali placed strong reliance is a decision of Delhi High Court in the case of K.K. Bhardwaj and Ors. Vs. Delhi Vidyut Board, 78 (1999) DLT 325 , wherein continued suspension was held to be unjustified when there was undue delay of the trial of the criminal case and for long period, even a single witness has not been examined. It was held that the seriousness of allegations cannot be justified for keeping officer under suspension. That was a case where the appellant had been under suspension for many years and no progress had been made in the criminal case filed against him and continuation of suspension was treated justified in those circumstances.
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15. Other judgments, which the learned Senior counsel took support of, are the following:
(i) Capt. M. Paul Anthony Vs. Bhart Gold Mines Ltd. and Anr. (1999) 3 SCC 679 wherein the Court deprecated the morbid tendency of some officers to place subordinate under suspension on trivial lapses. The Court also held that where there was no provision for payment of lesser amount as subsistence allowance, the suspended employee was entitled to full salary as employee/employer relationship subsists even during suspension.
(ii) Pratap Singh Vs. State of Punjab, AIR 1964 SC 72, a locus classicus on the law relating to mala fide, wherein the Court made following pertinent observations:
"10. Before entering on a discussion of the question whether the appellant has established that the action of Government was vitiated by mala fides, we consider it Pertinent to make a few preliminary observation. In considering the evidence we have kept in view the high position which the Chief Minister holds in the State and are conscious of the fact that charges of personal nature made against such a dignitary are not to be lightly accepted. We have also borne in mind that charges of personal hostility are easily and very often made by persons who are subjected to penal or quasi penal proceedings against those who initiate them, and have therefore made full allowance for these factors, and we have examined and weighed the evidence with anxious care. We would only add that the fact that two of our brethren feel differently on this matter has heightened our responsibility and in the care to be bestowed in appreciating the evidence. The Constitution enshrines and guarantees the rule of law and Art. 226 is designed to ensure that each and every authority in the State, including the Government, acts bona fide and within the limits of its power and we consider that when a Court is satisfied that there is an abuse or misuse of power and its Jurisdiction is invoked, it is incumbent on the Court to afford justice to the individual. It is with these considerations in mind that we approach the facts of this case."
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(iii) P.R. Nayak Vs. Union of India, 1972 (1) SCC 332 where, on interpretation of Rule 3 of All India Services (Discipline & Appeal) Rules, 1969, the Court was categorical in holding that the suspension order could be passed only in those cases in which the Government is possessed of sufficient material, whether after preliminary investigation or otherwise, and the disciplinary proceedings have in fact commenced and not merely when they are contemplated. Relevant portion of Rule 3 of the said Rules, which was interpreted, is as under:
"Rule 3 of All India Services (Discipline and Appeal,) Rules, 1969 which provides for suspension during disciplinary proceedings reads :
"3. Suspension during disciplinary proceedings-(1) If, having regard to the nature of the charges and the circumstances in any case, the Government which initiates any disciplinary proceedings is satisfied that it is necessary or desirable to place under suspension the member of the Service against whom such proceedings are started, that Government may-
(a) if the member of the Service is serving under it, pass an order placing him under suspension, or
(b) if the member of the Service is serving under another Government, request that Government to place him under suspension, pending the conclusion of the inquiry and the passing of the final order in the case :
Provided that, in case where there is a difference of opinion between two State Governments, the matter shall be referred to the Central Government for its decision.
xxx xxx xxx (3) A member of the Service in respect of, or against, whom an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Government under which he is serving, be placed under suspension until the termination of all proceedings relating to that charge, if the, charge is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude."
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Arguments predicated can be found in Para 67 of the judgment, which read as under:
"67. The next argument pressed before us on behalf of the appellant was that under Rule 3 of the All India Services (Discipline and Appeal) Rules, 1969 the appellant could be placed under suspension only after disciplinary proceedings with respect to a definite charge or charges against him were actually initiated or started and not merely when they were in contemplation as the impugned order of the President dated March 23, 1971 expressly purports to do. Reference to Takru Commission, according to this argument, could by no means be considered to be the initiation or commencement of disciplinary proceedings. The language of r. 3, according to the learned counsel, is clear and unambiguous and it is not permissible on plain reading of sub-rule (1) to order the appellant's suspension merely because there are some accusations or imputations against him which call for an enquiry : in the guise of interpretation Courts cannot re-write a rule to accord with their view of what it should be. The order of suspension dated March 23. 1971, argued 'the counsel, must, therefore, be held to be illegal and liable to be quashed."
This contention was accepted by the Court in the following words:
"69. In our view, the second contention possesses merit and deserves to be upheld. In case we uphold this contention it would be unnecessary for us to express any considered opinion either way on the other contentions. Rule 3 of the All India Services (Discipline and Appeal) Rule 1969, which has already been set out in extenso, provides for suspension during disciplinary proceedings. Sub-rule (1) of this rule on its plain reading empowers the Government, which initiates any disciplinary proceedings on being satisfied, having regard to the nature of the charges and the circumstance, of the necessity, or desirability of placing under suspension, the member of the Service against whom such proceedings are started, to pass an order placing, him under suspension or if he is serving under another Government to request that Government to suspend him. (,emphasis supplied). It does not suggest that suspension can be ordered merely when disciplinary proceedings are contemplated. The language used in sub-rules (4) to (7) also suggests that these rules do not authorise order of suspension of the delinquent member of the Service merely because disciplinary proceedings against him are contemplated. Suspension under those sub-rules may be ordered only either after conviction (deeming provision under sub-rule 4) or when criminal proceedings are actually in progress (sub-rule 5) or when after the penalty imposed on him having been set aside, the disciplinary authority decides to hold further enquiry (deeming provision under sub-rule 6). Clause (b) of sub- rule (7) similarly provides for continuation of order of suspension. If any other, disciplinary proceeding is CWP-15063-2012 - 16 -
commenced against the delinquent member of the service. during the continuance of the earlier suspension- actual or deemed. The legislative scheme underlying Rule 3 is thus clearly indicative of the intention of the rule making authority to restrict its operation only to those cases in which the Government concerned is possessed of sufficient material whether after preliminary investigation or otherwise and the disciplinary proceedings have in fact commenced and not merely when they are contemplated An order of suspension before the actual initiation or commencement of disciplinary proceedings appears to us, therefore, to be clearly outside the ambit of Rule 3 and we find no cogent ground for straining the plain language of Rule 3 ( 1 ) so as to extend it to cases ill which disciplinary proceedings are merely contemplated and not actually initiated or commenced.
xxx xxx xxx
73. There is no gainsaying that there is no inherent power of suspension postulated by the Fundamental Rules or any other rule governing the appellant's conditions of service. Except for Rule 3 of the A.I.S. (D & A) Rules, 1969 no other rule nor any inherent power authorising the impugned order of suspension was relied upon in this Court in its support. Therefore, if Rule 3, which is the only rule on which the appellant's suspension pending disciplinary proceedings can be founded, does not postulate an order of suspension before the initiation of disciplinary proceedings and the Government initiating such proceedings can only place under suspension the member of the Service against who such proceedings are started, then, the impugned order of suspension which in clearest words merely states that disciplinary proceedings against the appellant are contemplated, without suggesting actual initiation or starting of disciplinary proceedings, must be held to be outside this rule. The impugned order of suspension, it may be pointed out, is not like an order of suspension which, without adversely affecting the rights and privileges of the suspended Government servant merely, prohibits or restrains him from discharging his official duties or obligations. An order of that nature may perhaps be within the general inherent competence of an appointing authority when dealing with the Government servant. The impugned order made under Rule 3 of A.I.S. (D & A) Rules, 1959 on the other hand seriously affects some of the appellant's rights and privileges vesting in him under his conditions of service. To mention some of the disabilities resulting from his suspension, he is ,not entitled to get his full salary during suspension, but is only to be paid subsistence allowance and in certain circumstances some other allowances : in. order to be entitled to the subsistence allowance he is prohibited from engaging in any other employment.
business, profession or vocation (vide Rule 4) : the appellant is not permitted to retire during the period of suspension : indeed, the impugned order specifically prohibits the appellant even from leaving New Delhi during the period of suspension, without obtaining the previous permission of the Central Government. The fact that these prejudicial consequences automatically flow from the impugned order under the rules also lends support to our view that the clear and explicit language CWP-15063-2012 - 17 -
of Rule 3 must not be so strained to the appellant's prejudice as to authorise an order of suspension on the mere ground that disciplinary proceedings against him are contemplated. The precise words of Rule 3 are unambiguous and must be construed in their ordinary sense. The draftsman must be presumed to have used the clearest language to express the legislative intention. The meaning being plain, courts cannot scan its wisdom or policy."
16. There is stout and robust resistance put forth by all the respondents. The respondent No.1 and the respondent No.3 have filed their separate replies contesting the petition. In the detailed written submission on behalf of the respondent No.1/University, not only various allegations of mala fides are refuted, there is rather a counter attack launched by the University alleging that the petitioner has committed various acts of illegalities and irregularities resulting into huge finance losses to the University, on the basis of which inquiry was contemplated against the petitioner and he was placed under suspension. It is stated that the true facts are not what have been projected by the petitioner in the writ petition. Knowing the illegalities committed by him, which would be exposed and even criminal case procedure might be attracted, he has filed this petition to avoid such a situation, as a pre-emptive measure. It is further submitted that since the financial irregularities committed by him are under investigation, it became necessary to put the petitioner, who is the Vice Chancellor of the University, under suspension as in that capacity he had control over the entire University and it was not possible to conduct the inquiry in the absence of any record. It is, thus, stated that the suspension became inevitable. The gist of the various alleged irregularities committed is stated in Para 4 of the reply. It is stated that keeping in view the instances contained in the said para, meeting of the Trust was held on 24.7.2012 wherein these issues were discussed and the CWP-15063-2012 - 18 -
Members of the Trust unanimously decided to authorize the Chancellor to take an appropriate action in this behalf as contained in Resolution No.2 of the said meeting. Armed with this power, the Chancellor passed the impugned order and, therefore, such an order is perfectly valid. It is also sought to be explained that the respondent No.2, Trust, through its Chairman, constituted a Two Member Committee to hold a preliminary inquiry into the allegations made against the petitioner vide Office Order dated 02.8.2012. This Committee consisted of a firm of Chartered Account and a firm of Architects. The committee has carried out an in-depth inquiry into the affairs of the University and very serious irregularities pertaining to huge financial loss caused to the University have been discovered. The findings of the Preliminary Inquiry Report submitted by the said Committee are also stated in detail in Para 9 of the Preliminary submission in the reply.
17. The respondent No.3 has filed a short affidavit followed by another detailed affidavit. In the short affidavit, averments on merits as made by the respondent No.1 are adopted and allegations leveled against him in his individual capacity have been specifically refuted. It is particularly stated that the petitioner was appointed as the founder Vice Chancellor with the responsibility of setting up the University and running it in an honest and diligent manner. The appointment of the petitioner was done under the provisions of Section 11 of the 2008 Act. This appointment was done on the recommendations of the Trust. In this Trust Deed, there is a power conferred upon the Trust to determine the tenure, terms and conditions and frame statutes regarding the powers of the Vice Chancellor. The clause reads as under:
"Powers and Duties of the Board of Trustees:-
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(ix) The Board shall appoint the Vice-Chancellor of University and determine his tenure, terms and conditions and frame statutes regarding the powers and functions of the Vice Chancellor."
Even otherwise, the action cannot be said to be without jurisdiction as an authority which has the power to do an act also has the power to undo it. It is pointed out that in the General Clauses Act, 1897, Section 16 provides that the power to appoint includes the power to suspend or dismiss. Therefore, the order which has been passed by the Chancellor on the recommendation of the Trust is legal and valid as also within the jurisdiction.
18. It was the submission of Mr. Arun Palli, learned Senior Counsel appearing for the respondent No.1 as well as Mr. Gurminder Singh, learned counsel for the respondent Nos. 2, 3 & 5 that having regard to the aforesaid position, the action of putting the petitioner under suspension was a bona fide move, which was justified by the compelling circumstances. It was also argued that the Chancellor had power to pass the order of suspension when he was specifically authorized by the Trust to do so. It was also argued that the interim suspension pending inquiry was the right of the employer and even in the absence of any specific Rule in this behalf, the only right of the employee was to draw the full salary and allowances during this period.
19. Mr. Palli made various legal propositions ingrained in the following judgments:
(i) Balvantrai Ratilal Patel Vs. State of Maharashtra, AIR 1968 SC 800, wherein it was held:
"The general principle therefore is that an employer can suspend an employee pending an inquiry into his misconduct and the only question that can arise in such CWP-15063-2012 - 20 -
suspension will relate to payment during the period of such suspension. If there is no express term relating to payment during such suspension or if there is no statutory provision in any enactment or rule the employee is entitled to his full remuneration for the period of his interim suspension. On the other hand, if there is a term in this respect in the contract of employment or if there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension, the payment will be made in accordance therewith. This principle applies with equal force in a case where the Government is an employer and a public servant is an employee with this qualification that in view of the peculiar structural hierarchy of Government administration, the employer in the case of employment by Government must be held to be the authority which has the power to appoint the public servant concerned. It follows therefore that the authority entitled to appoint the public servant is entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or statutory rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. On general principles therefore the government like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. The Government may also proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. As we have already pointed out, the question as to what amount should be paid to the public servant during the period of interim suspension or suspension as a punishment will depend upon the provisions Of the statute or statutory rules made in that connection."
(ii) R.P. Kapur Vs. Union of India, AIR 1964 SC 787, wherein it was held as under:
CWP-15063-2012 - 21 -
"11. The general principle therefore is that an
employer can suspend an employee pending an enquiry into his conduct and the only question that can arise on such suspension will relate to the payment during the period of such suspension. If there is no express term in the contract relating to suspension and payment during such suspension or if there is no statutory provision in any law or rule, the employee is entitled to his full remuneration for the period of his interim suspension; on the other hand if there is a term in this respect in the contract or there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension, the payment would be in accordance therewith. These general principles in our opinion apply with equal force in a case where the government is the employer and a public servant is the employee with this modification that in view of the peculiar structural hierarchy of government, the employer in the case of government, must be held to be the authority which has the power to appoint a public servant. On general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. This general principle is illustrated by the provision in s. 16 of the General Clauses Act, No. X of 1897, which lays down that where any Central Act or Regulation gives power of appointment that includes the power to suspend or dismiss unless a different intention appears. Though this provision does not directly apply in the present case, it is in consonance with the general law of master and servant. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. This suspension must be distinguished from suspension as a punishment which is a different matter altogether depending upon the rules in that behalf. On general principles therefore the government, like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal CWP-15063-2012 - 22 -
proceedings; this may be called interim suspension. Or the Government may proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. These general principles will apply to all public servants but they will naturally be subject to the provisions of Art. 314 and this brings us to an investigation of what was the right of a member of the former Secretary of State's Services in the matter of suspension, whether as a penalty or otherwise."
(iii) Government of India, Ministry of Home Affairs and others Vs. Tarak Nath Ghosh, AIR 1971 SC 823 wherein the it was held that the Government is entitled to place an officer under suspension even before definite charges are communicated to him, when the preliminary investigation has been made into his conduct following allegations of corrupt or malpractice leveled against him. The judgment of Gujarat High Court in the case of Kaushik T. Patel Vs. Gujarat Water Resources Dev. Corporation Ltd., 1997 (3) S.C.T. 769 on the same proposition, which followed the Tarak Nath Ghosh (supra) and various other judgments.
(iv) Gurbachan Singh Bachi Vs. State of Punjab and Other, 2005 (1) S.C.T. 681. In this case, the Division Bench of this Court held that during the suspension, the employees are entitled to subsistence allowance in accordance with the law and in the absence of law, they would be entitled to pay full pay and allowances.
(v) In RT. REV. B.P. Sugandhar Bishop In Medak Vs. D. Dorothy Dayasheela Ebeneser, (1996) 4 SCC 406 & State of Orissa and others Vs. Md. Illiyas, (2006) 1 CWP-15063-2012 - 23 -
SCC 275, the Apex Court in this case held that at this stage when a person is suspended on the basis of preliminary inquiry, scope of judicial review under Article 226 is very limited.
20. Mr. Gurminder Singh, Advocate referred to the various judgments in addition to the judgments relied upon by the learned Senior counsel for the University, albeit, on the same propositions as noted below:
(i) Dr. Bool Chand Vs. Chancellor, Kurukshetra University, AIR 1968 SCC 292 for the proposition that power to appoint employees, includes the power to terminate as well.
(ii) R.K. Kapoor Vs. UOI & Ans., AIR 1964 SCC 787, wherein it was held that the words "disciplinary matters" in Article 314 of the Constitution of India must be given widest meaning consistent with what disciplinary matters may reasonably include, and holding that the suspension by way of punishment also as an interim measure pending departmental inquiry or pending a criminal proceedings must be comprised within the words "disciplinary matters".
21. Law of suspension is well grounded in catena of case law, many of which are already taken note of above. It is not now necessary to re- state the principles, as the exercise would become repetitive. We can, however, sum up the position in this behalf. Suspension is, primarily, of two types. There can be suspension of an employee in contemplation and during the pendency of disciplinary proceedings against an employee or when such an employee is involved in a criminal case. First type of CWP-15063-2012 - 24 -
suspension is not by way of punishment. The only purpose is to keep the employee away from work so long as he is under the cloud of departmental proceedings/criminal case. Second type of suspension can be by way of arrangement which can be imposed as one of the penalties prescribed. This punishment of suspension would be inflicted, however, after holding the enquiry in which charge levelled against the delinquent employee stands proved.
22. In the present case, we are concerned with the suspension of former kind. This is based on the fundamental principle that it is the prerogative of the employer to take or not to take work from the employee. However, when there are no rules governing the suspension and it is not a part of service conditions, even when employer makes the employee sit idle, the employer will have to pay full salary and other emoluments which the employee would have been entitled to on rendering his personal services. On the other hand, if the service conditions stipulate placing the employee under suspension and payment of specific allowance, commonly known as "subsistence allowance", then the employee has to be satisfied with that subsistence allowance only. Of course, during the period of suspension, the employer-employee relationship continues to subsist. Since the suspended employee may get less emoluments than the normal by way of subsistence allowance, jurisprudence has developed through judgments that power to suspend an employee, particularly when he is a civil servant or an employee of a statutory/government body or a workman protected under the Industrial Disputes Act, 1947 has to be exercised bona fide and there should be absence of arbitrariness. It is for this reason that some judgments have laid down the principle that suspension of an employee pending CWP-15063-2012 - 25 -
disciplinary proceedings and departmental enquiry is not automatic; object of placing an employee under suspension pending enquiry is to enable the administration to conduct the proceedings smoothly; the act of suspension should be resorted to in those cases where the charges of misconduct are serious; there is some material before the competent authority making out a strong prima facie case against the employee; and such suspension should not continue without any justifiable reason.
23. The order of suspension is subject to judicial review under Article 226 of the Constitution and while undertaking this exercise of judicial review, the Court would be governed by the aforesaid parameters. The order of suspension would normally be not interfered with unless it is vitiated by mala fides or is arbitrary or is against the specific provisions relating to suspension. It is without jurisdiction in the sense that if it is passed by an authority which was not empowered to take such an action.
24. In the present case, the order is challenged, primarily, on two grounds, namely: (i) the impugned order of suspension is motivated and actuated with mala fides; (ii) it is without jurisdiction as the Chancellor has no power to suspend the petitioner, inasmuch as, the appointing authority was the Board of Trustees and not the Chancellor.
25. Insofar as first argument is concerned, no doubt Mr. Bali, learned senior counsel has taken pains to narrate the circumstances under which the suspension order was passed and on that basis endeavour is made to show that the whole objective was to sideline the petitioner whose actions were not palatable to the respondents and the respondents did not like the petitioner's attempt to highlight the alleged irregularities, financial or otherwise, purportedly, being committed by the CWP-15063-2012 - 26 -
respondents. However, we find it to be one-sided version of the petitioner. Whether the respondents have committed the irregularities, as pointed out by the petitioner, or not, is not the question in the present case. The relevant factor is as to whether there is some material which is found against the petitioner, justifying holding of enquiry and, in the meantime, placing him under suspension. The respondents have narrated in detail various alleged irregularities which are allegedly committed by the petitioner. Details thereof are given in para-4 of the reply filed by respondent No.1, on the basis of which it was highlighted that these amount to serious financial irregularities and are under investigation. It would be worthwhile to mention here that before placing the petitioner under suspension, a fact finding enquiry was conducted wherein the purported material against the petitioner was surfaced. Since the petitioner holds the post of Vice Chancellor of the University and in that capacity, had control over the affairs of the University as well as records, it could not have been possible to conduct the enquiry without placing the petitioner under suspension. It has, thus, become inevitable from these averments, which were highlighted by the respondents, that the petitioner has not been able to make out a case of mala fides.
26. Insofar as power of Chancellor to issue such an order is concerned, the respondents have produced on record the minutes of meeting of the Trust held on 24.7.2012 wherein the issue pertaining to alleged irregularities of the petitioner were deliberated at length and the members of the Trust unanimously decided to authorise the Chancellor to take an appropriate action in this behalf. Such a power is clearly discernible from resolution No.2 of the said meeting. On the conferment of this power, the Chancellor has passed the impugned order. It is clear CWP-15063-2012 - 27 -
from the provisions of Section 11 of the 2008 Act that the appointment is by the Trust and the power of appointment of Vice Chancellor is with the Board of Trustees. Therefore, the power also lies with the Board of Trustees. The Board of Trustees has duly delegated this power to the Chancellor. We, thus, do not find that the power is without jurisdiction.
27. Nem passé we would like to comment that during the hearing, Mr. Bali had suggested that having regard to the high position of Vice Chancellor being occupied by the petitioner and in the larger public interest wherein matter pertains to an educational institution, the petitioner was still ready to step down and, thus, was willing to resign. Though at that time the counsel for the respondents had showed their reservation to this course of action, we feel that in the interest of all parties, it would still be a better course of action to give quietus to the entire controversy which may also allow the prestige of such an institution to remain intact. The Board of Trustees may, therefore, still consider this option. However, without any further ado, we leave this matter to the entire discretion of the trustees after weighing the pros and cons of the issues involved.
28. Except for the aforesaid observations, the petition is dismissed.
( A.K. SIKRI )
CHIEF JUSTICE
February 05, 2013 (RAKESH KUMAR JAIN)
pc JUDGE