Abdul Subhan v. Ranchi University — 1992 DIGILAW 27 (PAT)

Judgment NARAYAN ROY, J. By this writ application the petitioner has prayed for quashing of the order dated 19.2.91 as contained in annexure 1 by which he has been put under suspension by the Vice Chancellor, Ranchi University in exercise of the powers vested in him under the Bihar State Universities Act, 1976 (hereinafter to be referred to as the Act) read with the statutes as amended upto date. 2. The petitioner at the relevant time, when the order as contained in annexure 1 was served on him, was working as Principal, Mander College in the district of Ranchi. It appears that while he Was discharging his duties as Principal of Mander college, certain irregularities and certain acts of omissions and commissions were detected and for those reasons he, vide annexure 1, was placed under suspension. 3. Mr. S.B. Gadodia, Sr. advocate appearing on behalf of the petitioner has urged several grounds but has mainly confined his argument to the extent that the order as contained in annexure 1 has been passed by the respondents contrary to the provisions laid down under the Act, and the statutes framed thereunder. Mr. Gadodia has further argued that section 69 of the Act, provides for putting a teacher under suspension. A bare perusal of Section 69 of the Act, demonstrates that when a person is put behind the bar or a criminal charge is pending against him, then he can be put under suspension by the authorities of the University. Section 69 of the Act, postulates provisions only for a case where a person is facing criminal charge or is in custody. Mr. Gadodia then argued that since the order as contained in annexure 1 has been passed by the authority concerned in contemplation of a departmental proceeding, the same cannot be allowed to sustain in law as there is no such provision in the Act, or under the statute framed under the Act, placing the petitioner under suspension in a contemplated departmental proceeding. 4. Mr. Gadodia has further drawn my attention to section 34 of the Act, and submitted that there is no provision in section 34 also empowering the authorities concerned to make any statute contrary to the provisions of the Act, to put the petitioner under suspension for a contemplated charge. 4. Mr. Gadodia has further drawn my attention to section 34 of the Act, and submitted that there is no provision in section 34 also empowering the authorities concerned to make any statute contrary to the provisions of the Act, to put the petitioner under suspension for a contemplated charge. He has further taken me to the statutes of the University framed under this Act, particularly with reference to Article 10 (2) of the Statutes. Article 10 of the Statutes postulates; firstly that a person who is a university servant and who is being prosecuted on criminal charge, should be placed under suspension; secondly in cases of criminal prosecution, a university servant should be suspended if the charge against him is such that on being found guilty of it, he is likely to be sentenced to a term of imprisonment or on which he would be dismissed or removed from services. It further stipulates that in such cases, however, where a departmental inquiry is pending, a servant of the University can be put under suspension and action can be taken. 5. Article 10 (2) of the Statute further provides that a university servant who is facing a departmental charge of gross misconduct, bribery, corruption or dereliction of duty, the question of suspension should be considered with reference to prima facie, evidence available against him. It further states that if there are good reasons to believe on the basis of the material available at the time of the initiation of the proceedings that the university servant has been guilty of gross misconduct or dereliction of bribery or corruption which, if proved, would lead to his dismissal or removal, he should be placed under suspension. 6. Here it appears from clause (2) of Article 10 of the Statute that in this situation when a university servant has been found guilty of those charges and if the charges are proved, then he can be suspended. Since the word ‘if proved' has been qualified, it appears that in that situation only the university servant can be suspended when the charges are there and they have been proved. 7. Mr. Gadodia has then urged that a bare reading of sections 69 and 34 of the Act, and "the statutes of the University framed under the Act, do not empower the authorities concerned to put the petitioner under suspension in a contemplated departmental proceeding. 7. Mr. Gadodia has then urged that a bare reading of sections 69 and 34 of the Act, and "the statutes of the University framed under the Act, do not empower the authorities concerned to put the petitioner under suspension in a contemplated departmental proceeding. With reference to this Mr. Gadodia has drawn my attention to the order as contained in annexure 1 and has submitted that a plain reading of the order as contained in annexure 1 gives an impression that the same has been passed in a contemplated departmental proceeding against the petitioner. 8. I have metaculously examined the order as contained in annexure 1 and to me as well it appears that this is an order suspending the petitioner in a contemplated departmental proceeding. Mr. Gadodia has further drawn my attention to paragraph 10 of the supplementary counter affidavit filed by the Vice Chancellor of the University himself where he has categorically stated that this order of suspension against the petitioner has been passed in a contemplated departmental proceeding. Faced with this situation I am to infer that the order as contained in annexure 1 is nothing but an order passed in a contemplated departmental proceeding. 9. Mr. Gadodia, learned counsel for the petitioner, in support of his proposition, has placed reliance in case of P. R. Nayak Vers. Union of India AIR 1972 Supreme court, 554). In case of P. R. Nayak Vs. Union of India (supra) the supreme court has held that initiation of a 'disciplinary proceeding is a condition precedent for putting a delinquent under suspension. It has further been held that even immediately after the order of suspension, the charges having been served on the delinquent, it will not be sufficient to say that the order suspending the delinquent has been cured. In paragraphs 13, 15 and 18 of this case, it has categorically been held that a delinquent cannot be put under suspension in a contemplated departmental inquiry and particularly in absence of a rule empowering them to suspend in a contemplated departmental proceeding. 10. Mr. Gadodia has further placed reliance in a Bench decision of this court in case of N. Sundram V. State of Bihar (1977 L.I.C. 1344). Here in this case also a Bench of this court has held that in a contemplated departmental proceeding a person cannot be put under suspension in absence of a specific rule. 10. Mr. Gadodia has further placed reliance in a Bench decision of this court in case of N. Sundram V. State of Bihar (1977 L.I.C. 1344). Here in this case also a Bench of this court has held that in a contemplated departmental proceeding a person cannot be put under suspension in absence of a specific rule. Here, I must mention that the Bench while delivering the said judgment was perhaps not aware (If specific rule 49A incorporated in Bihar Civil Services (Classification, Control and Appeals) Rules, 1030 which Was introduced in 1973. The court, having not noticed that provision, has passed the said judgment. However, I am not concerned with the case aforesaid i.e. the case of N. Sundram V. State of Bihar (supra). 11. Mr. Gadodia has further placed reliance in case of Dr. Kapil Singh Vs. State of Bihar (1982 PLJR 503). In this case also this court was faced with similar situation and when rule 49A incorporated under the Bihar Civil Services (Classification Control and Appeals) Rules. 1930 was shown to the court, the court was clothed in exercising powers under Article 226 of the Constitution. It has been observed that a delinquent can be put under' suspension if there is a rule empowering the authorities concerned to do so. 12. In the light of these decisions aforesaid, Mr. Gadodia has urged that there is nothing on the record to show that there is a like provision as rule 49A of the Bihar Civil Services (Classification Control & Appeals) Rules 1930 and/or any statute and, as such, the order as contained in annexure 1 is without jurisdiction and the same cannot be allowed to sustain. 13. I have gone through the entire records of this case and it appears from the supplementary counter affidavit filed on behalf of the Vice Chancellor particularly paragraph 10 that this order of suspension as contained in annexure 1 has been passed against the petitioner in a contemplated departmental proceeding. 14. Mr. Debi Prasad, Sr. Advocate appearing on behalf of the university, has tried to justify the order as contained in annexure 1 by saying that the authorities concerned, on having been satisfied that a prima facie case has been made out and if proved, it ultimately leads to a conclusion that the petitioner be dismissed or discharged, it is not an order passed in a contemplated departmental proceeding. In my view a faint attempt has been made by Mr. Prasad to show that this order as contained in annexure-1 is not an order passed in a contemplated departmental proceeding. 15. By placing his reliance in case of State of U.P. Vs. Jai Singh Dixit (1975 volm. II S.L.R. 754), Mr. Prasad has tried to impress upon me that when the authorities concerned were satisfied with regard to a prima facie case, it will amount to initiation of a departmental proceeding. In case of State of U.P. Vs. Jai Singh Dixit, (supra) is a case where there was specific provision like rule 49A of the Rules aforesaid. While dealing with the case where there was a specific provision for suspending a delinquent in a contemplated departmental proceeding, their lordships have led emphasis that there must be a formal departmental proceeding. Their Lordships were lying stress by saving that before putting a person under suspension, there must be a formal departmental proceeding. 16. Mr. Gadodia, learned counsel for the petitioner, has too placed reliance on the decision in case of State of U.P. Vs. Jai Singh Dixit, (supra) and has emphatically urged that this case supports the case of the petitioner to the externt that their Lordships have also held that there must be a formal departmental proceeding before a delinquent is put under suspension. In this situation I am afraid to accept the proposition urged by Mr. Prasad and at the same time I am also afraid to justify the order as contained in annexure 1 which has been passed in a contemplated departmental proceeding in absence of specific rule like rule 49A, as noticed above. 17. Mr. Prasad, faced with this situation however, urged that now the charges have been framed and the same have been served on the petitioner which will amount to curing the defects in passing the order as contained in annexure 1. I am unable to accept this submission of Mr. Prasad and I repel it by saying that the order as contained in annexure 1 have been passed in absence of a rule and, as such, the same is without jurisdiction and there is no question of curing the same. 18. Mr. I am unable to accept this submission of Mr. Prasad and I repel it by saying that the order as contained in annexure 1 have been passed in absence of a rule and, as such, the same is without jurisdiction and there is no question of curing the same. 18. Mr. Prasad has further drawn my attention to section 66 of the Act, and has tried to impress upon me that the service conditions of the officers and teachers of the university are controlled by this Act. Be that as it may, but nonetheless, he has not been able to show me any provision, Act, or any statute framed under the Act, that there is a provision by which a university teacher or university employee can be put under suspension pending a contemplated departmental proceeding. 19. On considering the pros and cons of the case and the submissions of the parties, I am of definite view that there is no provision under the Act, or the statutes framed thereunder empowering the authorities concerned to put a delinquent under suspension in a contemplated departmental proceeding I must point out here that the petitioner was put under suspension on 19.2.91. The charges have been issued, vide annexure A to the counter affidavit on the petitioner, on 26.3.91 and the petitioner has filed this writ application on 13.3.91. This aspect 0f the matter also reflects that the charges were not there when the order as contained ill annexure 1 was passed putting the petitioner under suspension and, accordingly, it must be held that the order as contained in annexure 1 is without jurisdiction and bad in law. 20. In the result, this writ application succeeds. The order as contained in annexure 1 is quashed. However, there will be no order as to costs. It is made clear that since the order as contained in annexure l has been quashed, the petitioner shall be entitled to get all the consequential benefits and the University shall also be at liberty to proceed afresh in the matter in accordance with law. Application allowed.