T. K. KOSHY v. CHANCELLOR, CALICUT UNIVERSITY — 1979 DIGILAW 205 (KER)

JUDGMENT : V.P. Gopalan Nambiyar, J.—The appeal is by the Registrar of the Calicut University against the dismissal of his writ petition to quash Ext. P13 order of suspension pending enquiry, passed against him by the Chancellor of the University, the Governor of Kerala; Ext, P14 communication of the gist of the Governor's order by the Vice-Chancellor; Ext. P15 memo serving the order of suspension and relieving the appellant from his duties as Registrar; and Ext. P16 circular of the Vice-Chancellor announcing that in pursuance of the Chancellor's proceedings, the appellant had been relieved. These were the orders and proceedings sought to be quashed. The learned Judge dismissed the writ petition holding that the Chancellor had authority to pass Ext. P13 order and that the same was not vitiated by want of jurisdiction or the other illegalities alleged against it. 2. The affairs of the Calicut University had been attracting public notice and criticism for some time past. In July, 1978, the State Youth Muslim League had made a representation containing allegations against the functioning of the University and its officials including the appellant. This was referred for investigation to the Director of Vigilance u/s 69(2) of the Act. There was also a report of the Examiner of Local Fund Accounts. Exhibit P13 set out that these, at least prima facie, established serious irregularities and malpractices against the appellant. The Syndicate was directed to examine these irregularities and misconduct and dereliction of duty referred to in the report of the Director of Vigilance and the Audit Report and to take appropriate action against the Registrar. Pending enquiry into these, the Chancellor recorded that it was not in the interests of the University or in public interest to allow the Registrar to continue as Registrar and. therefore, ordered his suspension. The action was statedly taken under Statute 19 of Chapter IV of the First Statutes of the University Act. The action has been challenged as beyond the powers of the Vice-Chancellor, as unjustified by the statutory provision relied on; and as being vitiated by mala fides. 3. therefore, ordered his suspension. The action was statedly taken under Statute 19 of Chapter IV of the First Statutes of the University Act. The action has been challenged as beyond the powers of the Vice-Chancellor, as unjustified by the statutory provision relied on; and as being vitiated by mala fides. 3. The statutory provision to which the impugned action traced is Statute 19(1)(a) of Chapter IV-Part III, of the First Statutes which reads: 19(1) The appointing authority or any authority to which it is subordinate or any other authority empowered by the Syndicate in that behalf may, at any time, place a University employee under suspension-- (a) where a disciplinary proceeding against him is contemplated or is pending; or xxxxxxxx Under the above provision the Chancellor will have the requisite authority if he is either the appointing authority, or an authority to which the appointing authority is subordinate. Let: us see, therefore, if he is either of these. Section 3 of the Act enacts that the Chancellor, the Pro-Chancellor, the Vice-Chancellor, the Pro-Vice Chancellor and the Members of the Senate, the Syndicate and the Academic Council, shall constitute a body by name of the University of Calicut with perpetual succession and common seal. So that, the Chancellor is part of the Corporate body known as the University. Section 7 provides for powers of the Chancellor. We shall extract the Section in full: 7. The Chancellor.--(1) The Governor of Kerala shall, by virtue of his office, be the Chancellor of the University. (2) The Chancellor shall be the head of the University and shall, when present, preside at meetings of the Senate, and at any convocation of the University. (3) The Chancellor may, by order in writing, annul any proceeding of any of the authorities of the University which is not in conformity with this Act, the Statutes, the Ordinances, the Regulations, the rules or the bye-laws: Provided that, before making any such order, the Chancellor shall call upon such authority to show cause why such an order should not be made and consider the cause, if any, shown by such authority within a reasonable time. (4) The Chancellor shall, when an emergency arises, have the right to suspend or dismiss any of the authorities of the University and to take measures for the interim administration of the University. (4) The Chancellor shall, when an emergency arises, have the right to suspend or dismiss any of the authorities of the University and to take measures for the interim administration of the University. (5) Every proposal for the conferment of an honorary degree shall be subject to confirmation by the Chancellor, (6) An appeal shall lie to the Chancellor against any order of dismissal passed by the Syndicate or the Vice-Chancellor against any person in the service of the University. (7) An appeal under Sub-section (6) shall be filed within sixty days from the date of service of the order of dismissal on the person concerned. (8) The Chancellor shall, before passing any order on an appeal under Sub-section (6), refer the matter for advice to a Tribunal appointed by him for the purpose. (9) The Chancellor shall have power to remove the Vice-Chancellor or the Pro-Vice-Chancellor from office by an order in writing on charges of misappropriation or mismanagement of funds or misbehaviour; Provided that such charges are proved by an enquiry conducted by a person who is or has been a Judge of the High Court or the Supreme Court appointed by the Chancellor for the purpose: Provided further that the Vice-Chancellor or the Pro-Vice-Chancellor shall not be removed under this section unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken against him. (10) The Chancellor shall have such other powers as may be conferred on him by this Act or the Statutes The provisions of Clauses (3), (4) and (6) of the above section are particularly important. The first of these, gives the Chancellor the power to annul proceedings of any of the authorities of the University; the second gives him a power of suspension of any of the authorities; and the third, constitutes the Chancellor an Appellate Authority against any orders of dismissal passed by the Syndicate or the Vice-Chancellor against any of the employees of the University. Under Clause (2) he is to be head of the University. Section 9 enumerates officers of the University; among them is the Registrar. So that, the Chancellor's rights under Sections 7(3) and 7(4) and right of appeal u/s 7(6) shall cover and extend to actions taken against the Registrar as well. Section 12 provides for the Registrar. Section 16 enumerates the authorities of the University. Section 9 enumerates officers of the University; among them is the Registrar. So that, the Chancellor's rights under Sections 7(3) and 7(4) and right of appeal u/s 7(6) shall cover and extend to actions taken against the Registrar as well. Section 12 provides for the Registrar. Section 16 enumerates the authorities of the University. Section 21 deals with Syndicate which is to be the Chief Executive Body of the University. Section 23 deals with the powers of the Syndicate and Clause (x) thereof deals with the power to suspend, discharge, dismiss or otherwise take any disciplinary action against teachers and other employees of the University. Section 32 enacts: 32. Other authorities of University,--The constitution, powers and duties of such other authorities as may be declared by the Statutes to be the authorities of the University, shall be prescribed by the Statutes. Section 69 provides for the Government's power to cause inspection of the affairs of the University. Under Sub-clauses (2) to (6) of the section, the University is to be given notice of the Government's proposal to cause such inspection or enquiry to be made; the result of the inspection or enquiry is to be communicated to the Syndicate for its views; and, after ascertaining, if necessary, the views of the Senate the Government may advise the University on the action to be taken. The Syndicate is to report to the Government the action taken or proposed to be taken on the report. 4. Turning now to the provisions of the First Statutes, we have Chapter II, dealing with the Officers of the University. Statutes 17 to 31 of this Chapter deal with the conditions of service of the Registrar. Under Statute 17, the right of appointment, and under Statute 23, the right of termination, of the Registrar, both belong to the Syndicate. Chapter IV of the Statutes deal with terms and conditions of service of the non-teaching staff. Part III thereof deals with disciplinary procedure. Under Statute 18 the terms "appointing authority" and "disciplinary authority", are defined as follows: 'Appointing authority' means the authority empowered to make appointments to the post which the University employee for the time being holds. 'Disciplinary authority' in relation to the imposition of a penalty on a University employee, means the authority competent under these Statutes to impose on him that penalty. Statute 19 deals with suspension. 'Disciplinary authority' in relation to the imposition of a penalty on a University employee, means the authority competent under these Statutes to impose on him that penalty. Statute 19 deals with suspension. In so far as it is material, it has already been quoted. Statute 32 of Chapter IV deals with a formal enquiry into a complaint or a report of an investigation against an employee of the University. As this provision is strongly relied on, we may quote the said provision: 32. Formal inquiry how and when ordered: (a) Whenever a complaint is received or on consideration of the report of an investigation, or for other reasons, the disciplinary authority or the appointing authority or any other authority empowered by the Syndicate in his behalf is satisfied that there is prima facie case for taking action against a University employees, such authority shall frame definite charge or charges which shall be communicated to the University employee, together with statement of the allegations on which each charge is based and of any other circumstances which is proposed to take into consideration in passing orders on the case. The accused University employee shall be required to submit within a reasonable time to be specified in that behalf a written statement of his defence and also to state whether he desires to be heard in person. The University employee, may on his request be permitted to peruse or to take extracts from the records pertaining to the case for purpose of preparing his written statement provided that the disciplinary or other authority referred to above may, for reasons to be recorded in writing refuse him such access if in its opinion such records are not strictly relevant to the case or it is not desirable in the interests of the University to allow such access. After the written statement is received within the time allowed, the authority referred to above may, if it is satisfied that a formal enquiry should be held into the conduct of the University employee, hold the formal enquiry itself or forward the record of the case to the authority or officer referred to in Clause (b) and order that a formal enquiry may be conducted. (b) The formal inquiry may be conducted by-- (i) The Syndicate; or (ii) An officer authorised by the Syndicate; or (iii) An officer authorised by the appointing authority. 5. (b) The formal inquiry may be conducted by-- (i) The Syndicate; or (ii) An officer authorised by the Syndicate; or (iii) An officer authorised by the appointing authority. 5. In the light of the above provisions, it was strongly contained by counsel for the appellant that positively, the appointing authority, and authority to take disciplinary action, are both, the Syndicate, under Statutes 17 and 23 of Chapter IT, and 32 of Chapter IV, of the First Statutes. Negatively, it was added, that it cannot possibly be the Chancellor, and that Statute 19 of Chapter IV which deals with the power of suspension must be read and understood so as to harmonise with Statute 32. Even if a right of suspension were to be spelt out from Statute 19 of Chapter IV, it was contended that the Syndicate is not "subordinate" to the Chancellor within the meaning of that Statute; and, therefore, again the latter cannot claim to have a power of suspension. 6. We are not persuaded by these arguments of counsel for the appellant. That the Chancellor is the apex of the officers of the University, is clear from Section 3 of the Act. Section 7(2) expressly refers to him as the Head of the University. Section 7(3) gives power to the Chancellor to annul proceedings of any of the authorities of the University, and Sub-section (4) of the Section confers the right to dismiss any of the authorities of the University in a state of emergency. Section 9 shows that the Registrar is one of the authorities of the University. Sub-section (6) of Section 7 confers a right of appeal to the Chancellor against any order of dismissal passed by the Syndicate against any of the employees of the University. Chapter IV, Part III, Statute 27, of the First Statutes provides for the disciplinary authority by which the penalties specified in Statute 25 may be imposed, Statute 28 provides that the powers under Statute 27 shall be exercisable by higher authorities also. 7. In the light of these provisions we have to consider the question whether the Chancellor has got the right of taking disciplinary action against the Registrar. That suspension pending enquiry is part of the disciplinary powers against the employee has been ruled under Art. 314 of the Constitution of India in R.P. Kapur Vs. Union of India (UOI) and Another, AIR 1964 SC 787 . That suspension pending enquiry is part of the disciplinary powers against the employee has been ruled under Art. 314 of the Constitution of India in R.P. Kapur Vs. Union of India (UOI) and Another, AIR 1964 SC 787 . The principle was re-affirmed in P.R. Nayak Vs. Union of India (UOI), (1972) 1 SCC 332 . While Statute 32 of Chapter IV, Part III expressly vests the power of enquiry on the Syndicate, Statutes 17 and 23 of Chapter It gives the right of appointment and termination vis-a-vis, the Registrar to the Syndicate. Consistent with these, the appointing authority referred to in Statute 32 of Chapter IV, Part III of the First Statutes, can also be only the Syndicate. So much is clear. Section 23 Clause (10) of the Act itself confers the right to suspend otto take any disciplinary action against employees of the authorities of the University, including the Syndicate. But this is subject to the provisions of the Statutes, which would attract Statute 19 in Part III of Chapter IV, already noted. Statute 28 of Chapter IV is also to the effect that the powers of a disciplinary authority under Statute 27, shall be exercisable by higher authorities also. One of the powers thus exercisable under Statute 27(d) is the disciplinary power of the Syndicate over an officer, of and above, the rank of the Deputy Registrar. 8. On these provisions, there can be little doubt that the "appointing authority" with respect to the Registrar is the Syndicate. The disciplinary authority over him is also the Syndicate, vide Statute 27(d) of Chapter IV of the first Statutes and also Chapter II, Statutes.17 and 23. But the power is exercisable also by any authority to which the appointing authority is subordinate--Statute 28 of Chapter IV. Examining the requirement whether the Syndicate is subordinate to the Chancellor, we see that the Chancellor is given the right of annulling the proceedings of any authority including the Syndicate--Vide Section 7 Clause (3). He is also given a right of appeal against any order of dismissal passed by the Syndicate by Section 7(6). The Chancellor is, besides, the Head of the University--ride Section 7(2). These are sufficient to constitute the Syndicate an authority "subordinate" to the Chancellor. He is also given a right of appeal against any order of dismissal passed by the Syndicate by Section 7(6). The Chancellor is, besides, the Head of the University--ride Section 7(2). These are sufficient to constitute the Syndicate an authority "subordinate" to the Chancellor. In AIR 1945 156 (Privy Council) subordination of the Home Minister to the Governor was found in the power of appointment and dismissal possessed by the Governor over the Ministry. Even so, we are of the opinion that the right of appeal, of annulling proceedings of the Syndicate, and the Chancellor's position as the titular head of the University are sufficient to constitute the Syndicate an authority "subordinate" to the Chancellor. If that is so, Statute 19(1) Part III of Chapter IV of the First Statutes is attracted ; and under Statute 28, the disciplinary powers are clearly exercisable by the Chancellor. For these reasons, we hold that the plea of want of jurisdiction or authority in the Chancellor to suspend the Registrar must be rejected. We do so. 9. We then pass on to the complaint of non-application of the mind by the Chancellor in passing the order of suspension. It was complained that the conclusion recorded in Ext. P13 that the Vigilance Report disclosed serious irregularities and misconduct against the Registrar is completely opposed to the report itself, that the report had totally absolved the Registrar, and, therefore, the Chancellor had totally failed to acquaint herself with the true import and implications of the said report. We are afraid this drags us to regions where we should tread warily in proceedings under Art. 226. May be, that if, as contended, there was a complete and total misreading of the report or the report had given a completely clean chit to the Registrar, and the Chancellor had branded him otherwise, there might be some ground for us to interfere. But such is not the position disclosed. The Vigilance report itself is not produced, but was referred to ; and a copy of the same was made available at the hearing of the appeal. But such is not the position disclosed. The Vigilance report itself is not produced, but was referred to ; and a copy of the same was made available at the hearing of the appeal. Exhibit P12 filed with the writ petition is only a communication from the Director of Vigilance, Investigation, to the Chancellor forwarding the enquiry report and other connected records of the Deputy Inspector General of Police, Vigilence, on the allegations contained in the memorandum presented by the State Muslim Youth League Committee, together with the remarks of the Director. This communication itself contains enough to implicate the Registrar, although on many matters he has been absolved. The adequacy of the material is not our concern in these proceedings. The learned Additional Advocate-General further submitted with reference to the Vigilance report itself, that there was enough material to implicate the Registrar and to warrant the Chancellor's statement. We are satisfied that there is no substance in the petitioner's complaint that there had been a complete misreading of the report in recording that the same disclosed serious irregularities and misconduct against the Registrar. 10. Objection was taken to the Chancellor having referred in Ext. P13 to the Audit Report of the Examiner of Local Accounts. It was complained that this report contravenes the provisions of Sub-clauses (2) to (6), of Section 69 of the Act. We are not satisfied that, at this stage of recommending an investigation by the Syndicate, and placing the Registrar under suspension pending disciplinary action by the Syndicate, the Chancellor was wrong in referring to the Audit Report of the Examiner of Local Fund Accounts. Even eschewing the Audit Report, there was enough in the Vigilance report on which the Chancellor's assessment could be rested. 11. It was said that the Chancellor had statedly taken action in Ext. P13 "pending enquiry and disciplinary action by the Syndicate". This, it was said, showed a complete non-application of the mind, as no proceedings were "pending" before the Syndicate. Nor, it was complained could the Chancellor predicate with any definiteness or certainty, as she chose to do that disciplinary proceedings are in contemplation by the Syndicate and proceed on that basis to make the suspension ; for, the contemplation of disciplinary proceedings was a matter entirely for the Syndicate and not for the Chancellor. Nor, it was complained could the Chancellor predicate with any definiteness or certainty, as she chose to do that disciplinary proceedings are in contemplation by the Syndicate and proceed on that basis to make the suspension ; for, the contemplation of disciplinary proceedings was a matter entirely for the Syndicate and not for the Chancellor. These, it was contended, indicated' a non-advertence of the mind, and the action was vitiated. Being a suspension of a high level officer such as the Registrar, by the Chancellor, the head of the University, we would have been happy if the relevant statutory rules and the provisions had been scrupulously taken note of, and. adhered to. The lapses pointed out should have been avoided. The power of suspension, which is relevant, is contained in Clause (a) of Statute 19(1) extracted earlier, viz., when disciplinary proceedings are in contemplation or is pending. This latter contingency is absent, and reference to it should have been avoided in Ext. P13. The notion of public interest, and interest of the University to which reference is seen in Ext. P13, are quite beside the point. But, from the context, it is plain that Ext. P13 uses the expression "pending enquiry and disciplinary action by the Syndicate", only in the sense that proceedings were to be thought of by the Syndicate. The source of the power being Statute 19(1)(a), the straying away from its requirements is not so serious or substantial as to vitiate the exercise of the power itself. 12. The question then remains whether the Chancellor could suspend on the ground that proceedings are in contemplation by the Syndicate. Could the Chancellor predicate the contemplation of the disciplinary proceedings by a body such as the Syndicate?; and is this comprehended in Statute 19(1)(a)? That Statute, in its ordinary acceptation seems to envisage suspension by a disciplinary authority which itself contemplates the launching of disciplinary action. But then Statute 25 of Chapter IV, lists the penalties, minor and major; and Statute 28 enacts that the power of imposition of any of the penalties in Statute 25, exercisable by the authority under Statute 27, shall be exercisable by a higher authority also. This principle seems also to underline the provisions of Section 7(4) which we have extracted earlier. This principle seems also to underline the provisions of Section 7(4) which we have extracted earlier. In these circumstances there appears to be no bar the Chancellor exercising the right of suspension pending enquiry, although the right of termination of service and of disciplinary action against the Registrar, normally belong to the Syndicate. 13. Counsel for the petitioner cited the decision of the Full Bench of the Orissa High Court in Registrar of the Orissa High Court Vs. Baradakanta Misra and Another, AIR 1973 Ori 244 that although the right of appointment of District Judges belonged to the Government, the supervision and control over them belonged to the High Court under Article 235, and, therefore, under the relevant rule in question, the power to suspend District Judges also belonged to the High Court. By analogy, counsel would contend that the normal power of disciplinary proceedings against the Registrar was in the Syndicate, although an exceptional power of disciplinary action could possibly be spelt out in the Chancellor. It was the counsel's submission that in order to harmonise the two powers the right of suspension pending enquiry should be confined only to the Syndicate. Having regard to the provisions which we have noticed already, and to the scheme and position of the Chancellor in the set up of the authorities under the Act, we are unable to accept this submission. We think the right of suspension was rightly exercised by the Chancellor. 14. Legal mala fides was alleged only in the sense of violation of statutory provisions. On examination of the provisions, we have held that there has been no violation of these, in the action of the Chancellor in directing suspension pending enquiry. Legal mala fides was also sought to be spelt out on the ground that there was non-application of the mind and advertence to irrelevant materials such as to Local Fund Audit Report. We have already held that we are not satisfied that the complaint made is tenable. We reject the plea of mala fides. 15. We see no force or merit in the attack against the order of suspension pending enquiry. We dismiss this writ appeal but in the circumstances without costs. 16. We wish to record the statement made by Shri T.C.N. Menon, learned Additional Advocate-General that the Syndicate has decided to process the disciplinary proceedings against the appellant. 17. 15. We see no force or merit in the attack against the order of suspension pending enquiry. We dismiss this writ appeal but in the circumstances without costs. 16. We wish to record the statement made by Shri T.C.N. Menon, learned Additional Advocate-General that the Syndicate has decided to process the disciplinary proceedings against the appellant. 17. We place on record our appreciation of the arguments of Shri Ram Jethmalani for the appellant and the Additional Advocate-General, for the Chancellor.