H. L. CHANDREGOWDA v. BANGALORE UNIVERSITY — 1996 DIGILAW 186 (KAR)

H. N. TILHARI, J. ( 1 ) BY this petition, the petitioner has sought the issuance of a writ of certiorari quashing the punishment imposed on the petitioner by 1st respondent vide order dated 3-6-1988, bearing No. U. o.-est / e1 / 88-89-annexure - d as well as for quashing of the order of 2nd respondent dated 31-8-1989, dismissing appeal contained in Annexure - h to this writ petition. ( 2 ) THE brief facts of the case are that the petitioner had been working as the private secretary to the registrar, Bangalore university. According to the petitioner's case, petitioner reported to the duty as such on January 1st, 1987 and took charge of the post of private secretary on that date. Further, the petitioner's case is that he attended to all the files the charge of which had been made over to him at the time when he assumed office. That no file of Dr. Sreerama reddy, former professor of sericulture was handed over to the petitioner at the time of taking over charge. That in the course of his official duties when he was going through some other records the petitioner noticed in the registrar's personal Section that file of sreerama reddy was also kept in some old records. So, he sent that file to establishment Section on 20-5-1987 and noted down the detailed circumstances in which the said file was addressed or traced with further information that the said file had not been handed over to the petitioner. On 28-5-1987, the petitioner was relieved from the post of private secretary and thereafter, a charge-sheet was issued to the petitioner, a copy of which is annexed as Annexure-A to the writ petition along with the imputation of misconduct appended to it and annexed as annexure-1 to this writ petition. That the charge was put to the effect that the file of sreerama reddy, was referred to the private secretary to the registrar on 28-7-1986, for furnishing certain information and it was received and registered in the personal establishment under No. Rpf 2667, dated 28-8-1986 and that the petitioner had taken charge as private secretary on 1-1-1987. That when the petitioner had taken charge the file was already pending in the personal establishment, but the petitioner failed to attend to this file until 20-5-1987. That when the petitioner had taken charge the file was already pending in the personal establishment, but the petitioner failed to attend to this file until 20-5-1987. When it was put up for being returned to the establishment Section of the petitioner, failed to attend to. This file and thereby, it was mentioned in the cause that the petitioner caused inordinate delay in the disposal of the case relating to g. Sreerama reddy. That it was further mentioned in the charge-sheet that petitioner was in charge of the personal Section of the registrar and it was the petitioner's responsibility to ensure prompt attention to the files received and to take necessary action thereon, but the petitioner had been negligent and left the file unattended to for the period from 1st january, 1987 until 20-5-1987. That the petitioner was charged with lack of devotion to duty and of having committed violation of the Bangalore university employees' service (conduct) rules. ( 3 ) A perusal of Annexure-A shows that the petitioner was called upon to file representation against the said charge - sheet within 15 days of receipt of the notice in accordance with the university statutes. That the petitioner's case is that within a period of 15 days from the date of receipt of the notice, the petitioner filed his representation-annexure-b to this writ petition. Thereafter, petitioner sent certain reminders. The opposite party thereafter, passed the order censuring the conduct of the petitioner on the ground that the file was in the personal Section, but it was lying unattended and the petitioner's defence that the file was not handed over to the petitioner was untenable. The petitioner filed appeal from that order and that order had been affirmed by the chancellor taking the view that necessary procedure prescribed had been followed and no appeal did lay. Having felt aggrieved from the orders passed by respondents 1 and 2, the petitioner has come up in this writ petition before this court. No counter affidavit has been filed on behalf of the opposite parties. ( 4 ) I have heard Sri robert d'souza, learned counsel holding brief for Sri ravivarma kumar, and Sri m. n. sheshadri, learned counsel for respondent 1, that is, the Bangalore university as well the learned counsel for respondent 2. No counter affidavit has been filed on behalf of the opposite parties. ( 4 ) I have heard Sri robert d'souza, learned counsel holding brief for Sri ravivarma kumar, and Sri m. n. sheshadri, learned counsel for respondent 1, that is, the Bangalore university as well the learned counsel for respondent 2. The learned counsel for the petitioner contended that the order impugned did suffer from the violation of principles of natural Justice and rules of procedure prescribed under part iv of Bangalore university statutes dealing with disciplinary penalties. Further, Sri robert submitted that the petitioner had taken the charge of the office as the private secretary to the registrar on January 1st, 1987 and that the personal file of Sri g. Sreerama reddy, former professor had never been handed over to the petitioner under the charge handed over by the earlier private secretary. That during the course of his official duty, when he was going through the old records, the petitioner accidently noticed amongst, the file of Sri g. Sreerama reddy was also kept along with the old files. The learned counsel for the petitioner submitted that by old files what he meant is that the files which were already been disposed of and so, when that file was found on 20th may, 1987, it was sent to establishment Section with the detailed notes as to where and how it was traced. That in reply to the charge-sheet, the petitioner had given a detailed representation seeking personal hearing and enquiry. ( 5 ) THE authorities should have given that opportunity to the petitioner to explain that position, but the opposite parties did not give that opportunity nor did apply their mind to that aspect of the matter. ( 6 ) THE learned counsel for the petitioner submitted that in this case, it was necessary to be found as a fact that before any punishment could be imposed that the file of professor Sri g. Sreerama reddy was in the custody of the petitioner as undisposed of and therefore, the case of the petitioner was wrong that it was traced in old disposed of files. This aspect of the matter required enquiry to be held and particularly, in view of the Provisions of statute 28 (10), but the opposite party without any rhyme or reason did not hold enquiry and give an opportunity to petitioner to explain the position nor did record any finding that the file was with the petitioner under his control under the head-undisposed of files. ( 7 ) THE learned counsel for the petitioner submitted that in these circumstances, the order impugned casting stigma on the petitioner to the effect that the petitioner was guilty of the misconduct or there has been any failure on the part of the petitioner to discharge the duty, that finding recorded is the result of illegal exercise of jurisdiction and power by the punishing authority. The petitioner cannot be blamed for that and therefore, on material question the finding was to be recorded after the enquiry as was required by the petitioner, as per requirements of statute 28 (10) of the Bangalore university statutes, for short 'statutes'. The learned counsel for the petitioner submitted that as such, the order imposing the punishment of censure against the petitioner has been illegal and without jurisdiction, as the authority has to pass the order keeping pace with the requirements of the rules and after following the necessary procedure. Therefore, the authority has acted in breach of the Provisions of university statute and so, the impugned order is and can be said to be an act done not in accordance with law and is one without jurisdiction. That exercise of jurisdiction in the illegal manner and breach of manner prescribed, can be said to be without jurisdiction. The petitioner's counsel submitted that the learned chancellor also failed to exercise jurisdiction vested under Rule 28 (17) of the statutes. That it has wrongly been observed that under the statutes, there is no provision for appeal before the chancellor. That a reading of statutes 28. 20 read with 28. 1v and 28. 21 etc. Will indicate that the appeal did lay to the chancellor and review from order of chancellor to him as well, the learned petitioner's counsel submitted that there are Provisions in Bangalore university statutes and that the chancellor erred in law in assuming that there is no provision for appeal before the chancellor under the statutes. 1v and 28. 21 etc. Will indicate that the appeal did lay to the chancellor and review from order of chancellor to him as well, the learned petitioner's counsel submitted that there are Provisions in Bangalore university statutes and that the chancellor erred in law in assuming that there is no provision for appeal before the chancellor under the statutes. That the chancellor also did not apply his mind to statute 28 (10) of the statutes and did not consider the question whether the enquiry was necessary in view of the allegations made in the representation and whether the vice-chancellor really committed error by not holding the enquiry as per statute 28 (10) (b ). That as such, the appellate authority, i. e. , chancellor himself failed to exercise the appellate jurisdiction vested in him, while disposing the appeal. ( 8 ) ON behalf of the opposite party-university, the learned counsel submitted that censure order is not a major punishment, it is a minor punishment, so there has been no need of enquiry. The files were in possession of the private secretary whether disposed of or undisposed of and it was his duty to look into the files, there was a default on his part when he did not look to that file. That the authorities found that there was a dereliction of duty in this regard on the part of the petitioner, that finding could not be challenged. The appellate authority confirmed the finding and therefore, this writ petition deserves to be dismissed. ( 9 ) I have applied my mind to the contentions made by the learned counsels for both the parties. That as regards the question whether the appeal was maintainable or not in my opinion, the appeal from the order of censure was maintainable and it has wrongly been held that appeal was not maintainable specially in view of the Provisions of statute 28. 17, statute 28. 20 and statute 28. 22 (2 ). Statute 28. 17 reads as under : "28. 17. (1) every employee shall be entitled to appeal to the extent, and to the authorities, as hereinafter provided and not otherwise from an order passed by an authority : (a) imposing any of the penalties specified in statute 28. 5, whether made by the vice-chancellor or any other subordinate officer ; statute 28. 17 reads as under : "28. 17. (1) every employee shall be entitled to appeal to the extent, and to the authorities, as hereinafter provided and not otherwise from an order passed by an authority : (a) imposing any of the penalties specified in statute 28. 5, whether made by the vice-chancellor or any other subordinate officer ; statute 28. 20 further provides as per clause (3) that such appeals should be submitted to the chancellor for consideration. This per se indicates that appeals did lay to the chancellor from the order impugned, as the punishment of censure is a punishment under statute 28. 5. Under statute 28. 22, clause (2), the power to consider and dispose of the appeal on merits vests in the chancellor. So, the observation made in the order annexnre - h appears to be erroneous apparently in law that the appeal did not lay from the order of censure. Apart from that, the appellate authority as mentioned earlier failed to apply its mind to the material questions involved. ( 10 ) CENSURE is a punishment, may not be as severe as dismissal or removal from the post. But, order of censure has also got civil consequences on the carrier of an employee. Specific rules deal with the manner of punishment also and provide a mode, then in those cases, the rules have to be followed and if the authorities thought that enquiry is not necessary, it should have recorded reasons positively that it is not necessary specially when the petitioner demanded enquiry and when the petitioner demanded personal hearing, on matter involved. The material questions to be considered before the authorities were, whether the file in question had been in the custody of the petitioner as working file and not as undisposed of files or whether it was kept in disposed of files, then if it was kept in undisposed of files, it was also to be enquired by whom it was placed and whether if it was an act of the previous private secretary or of the petitioner before the petitioner could not all be blamed ? These are the questions which required an enquiry and hearing. ( 11 ) IN the present case, statute 28. 10 of the statutes had been applicable. These are the questions which required an enquiry and hearing. ( 11 ) IN the present case, statute 28. 10 of the statutes had been applicable. The vice-chancellor should have applied its mind and should have first recorded its finding that it was net necessary to hold enquiry as petitioner had claimed for personal hearing and enquiry. When statute 28. 10 of the statutes has not been followed before recording finding as to the guilt or charge against the petitioner, in my opinion, the authorities did not act according to law, nor did they act in conformity with the procedure prescribed by law, particularly, when law requires the power to be exercised after following certain procedures. In my opinion, the order impugned can be said to be without jurisdiction and it is a nullity and in this view of the matter, this writ petition deserves to be allowed. ( 12 ) IT is hereby allowed. The impugned order dated 3-6-1988 and 31-8-1989, contained in annexures-d and h are hereby quashed. As sufficiently long time has passed since 1988, the petitioner really appears to have suffered much mental torture for long, i do not think it proper and necessary to order any further enquiry or keep the proceedings in the matter pending against the petitioner. The orders impugned contained in Annexure-D , dated 3-6-1988 and Annexure - h, dated 31-8-1989 are hereby quashed. Let no further enquiry be made regarding that matter. Censure entry if any made shall stand removed. Cost of this writ petition are made easy. --- *** --- .