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Madhya Pradesh High Court · body

2009 DIGILAW 1010 (MP)

Asharfilal Sharma v. State of M. P.

2009-08-21

SHANTANU KEMKAR

body2009
ORDER Shantanu Kemkar, J. 1. Petitioner was working as a Professor in Devi Ahilya Vishwavidyalaya, Indore (for short University). He was appointed as Vice Chancellor of the University by the second respondent Chancellor of the University in exercise of his powers under section 52(3) of the M. P. Vishwavidyalaya Adhiniyam, 1973 (for short Adhiniyam) vide Notification dated 20-2-2004 (Annexure P-4). The Chancellor vide Notification dated 3-11-2004 (Annexure P-1) removed the petitioner from the said post of Vice Chancellor and instead appointed the third respondent on the said post vide Notification dated 3-11-2004 (Annexure P-2). Feeling aggrieved, the petitioner has filed this petition. 2. Through this petition initially the petitioner had sought quashment of the Notification dated 3-11-2004 (Annexure P-1) by which he was removed from the post of Vice Chancellor as also of the Notification dated 3-11-2004 (Annexure P- 2 2) by which the third respondent was appointed as Vice Chancellor of the University in his place. However, the prayer for quashment of the said notifications Annexures P-1 and P-2 and also the prayer for restoring him to the post of Vice Chancellor of the University was deleted by amending the prayer clause of the writ petition. By way of amendment he made a limited prayer seeking only the quashment of the observations made against him by the Chancellor in Paragraph 3 of the notification Annexure P-1. 3. Briefly stated, the case of the petitioner is that he was appointed as Vice Chancellor of the Uhiversity by the Chancellor of the University in exercise of powers under section 52(3) of the Adhiniyam vide Notification dated 20-2-2004. On receiving some complaints against the petitioner the second respondent vide order dated 4-9-2004 (Annexure P-6) appointed one B. L. Verma Assistant Inspector General of Police (Retired) as Enquiry Officer to enquire into the said complaints received against him. 4. The petitioner raised objection about appointment of said B. L. Verma as Enquiry Officer before the respondents and filed a Writ Petition No. 2552/04(s) before this Court challenging the validity of the order dated 4-9-2004 by which the said B. L. Verma was appointed as Enquiry Officer to hold enquiry about the complaints received against him. 4. The petitioner raised objection about appointment of said B. L. Verma as Enquiry Officer before the respondents and filed a Writ Petition No. 2552/04(s) before this Court challenging the validity of the order dated 4-9-2004 by which the said B. L. Verma was appointed as Enquiry Officer to hold enquiry about the complaints received against him. The said writ petition was dismissed by this Court vide order dated 17-9-2004 observing that "Kuladhipati (the second respondent) has only ordered an enquiry which is purely of administrative nature and it is like a preliminary fact finding enquiry to ascertain facts". 5. Thereafter the said enquiry was continued and completed. After receipt of the enquiry report the Chancellor issued the Notification dated 3-11-2004 (Annexure P-1) removing the petitioner from the post of Vice Chancellor observing therein that the petitioner was unable to perform the duties entrusted to him resulting adverse effect upon the interest of the University. It was also observed by the Chancellor that the petitioner had failed to manage the affairs of the University in accordance with law and his continuation on the post is not in the interest of the University. 6. The grievance of the petitioner, is that the said observations made in Annexure P-1 are based upon the report of the enquiry which was conducted behind his back. According to the petitioner the Enquiry Officer submitted his report without supplying copy of the material collected in the enquiry to him and without affording opportunity of hearing to him. He stated that the said enquiry being conducted in flagrant violation of the principles of natural justice the observations made in Annexure P-1 based upon the said enquiry are liable to be quashed. He also stated that the said observations being stigmatic cannot be sustained. 7. The respondents No. 2 and 4 have filed their replies. It has been stated by them that the petitioner was removed by the second respondent in exercise of powers conferred upon him under section 14 as substituted by the operation of the III Schedule by virtue of section 52 of the Adhiniyam. According to the second respondent, III Schedule provides section 14 which empowers the Chancellor to appoint Vice Chancellor in consultation with the State Government and also authorises the Chancellor to remove the Vice Chancellor in the like manner. According to the second respondent, III Schedule provides section 14 which empowers the Chancellor to appoint Vice Chancellor in consultation with the State Government and also authorises the Chancellor to remove the Vice Chancellor in the like manner. Thus, according to the respondents the Chancellor has committed no error in passing the order removing the petitioner from the post of Vice Chancellor. According to the respondents the enquiry conducted against the petitioner was only an administrative fact finding enquiry which was conducted to aid the second respondent in taking proper decision while exercising his powers under section 14 (as modified in the III Schedule of the Adhiniyam). It has been stated that the said enquiry which was conducted by Shri B. L. Verma was not a statutory enquiry and in the circumstances petitioner cannot assail its procedure or the findings. 8. Heard learned counsel for the parties and perused the annexures. 9. At the outset it has been stated by Shri A. S. Garg, learned Senior counsel for the petitioner that grievance of the petitioner is only against the stigma attached to him by way of the observations made in Paragraph 3 of the notification Annexure P-1. He submitted that the observations as made in the notification Annexure P-1 would affect the petitioner's future career/prospects. He argued that the action of removal taken against the petitioner by attaching stigma on his conduct without giving him an opportunity of hearing is liable to be quashed. In support he placed reliance on the judgments of the Supreme Court in the case of Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others, (1999) 3 SCC 60 and in the case of Umrao Singh Choudhary (Dr.) vs. State of M. P. and another, 1994 JLJ 587 . 10. Shri B. L. Pavecha, learned Senior counsel on the other hand argued that the observations contained in the impugned notification Annexure P-1 cannot be termed to be stigmatic or punitive. He argued that the action of petitioner's removal from the post of Vice Chancellor was taken on the basis of the report of the fact finding enquiry which was conducted only to aid the second respondent to exercise his powers in proper manner. According to him the findings are not to the effect holding the petitioner guilty of any misconduct or holding him guilty of allegations of moral turpitude. According to him the findings are not to the effect holding the petitioner guilty of any misconduct or holding him guilty of allegations of moral turpitude. In the circumstances, it has been argued by him that the order being not a stigmatic order the apprehension of the petitioner that it will affect his future prospect is not tenable. In support he placed reliance on the judgments of the Supreme Court in the case of Pavendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences and another, (2002) 1 SCC 520 and Municipal Committee, Sirsa vs. Munshiram, (2005)2 SCC 382 , 11. In order to appreciate the controversy which is now narrowed down in view of the limited prayer made by the petitioner as mentioned above I deem it fit to extract Paragraph 3 of the Notification dated 3-11-2004 (Annexure P-1) by which the petitioner was removed by the Chancellor from the post of Vice Chancellor :- 12. In the case of Pavendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences and another (supra) the Supreme Court has held that one of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was a full-scale formal enquiry into allegations involving moral turpitude or misconduct which culminated in a finding of guilt. If all the three factors (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt are present, the termination has to be held to be punitive irrespective of the form of termination order and if any one of the three factors is missing the termination has to be upheld. It has also been observed by the Supreme Court that it cannot be held that the enquiry held prior to the order of termination turned the otherwise innocuous order into one of punishment. An employer is entitled to satisfy, itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge-sheet merely details the allegations so that the employee may deal with them effectively. In order to amount to a stigma the order must be in a language which imputes something over and above mere unsuitability for the job. A charge-sheet merely details the allegations so that the employee may deal with them effectively. In order to amount to a stigma the order must be in a language which imputes something over and above mere unsuitability for the job. 13. On going through the observations of the notification Annexure P-1 which are extracted above and after considering the law laid down by the Supreme Court on which reliance has been placed by learned Senior Counsel for the parties, I am of the view that the said observations made in Annexure P-1 are not in the nature involving allegations about moral turpitude or misconduct on the part of the petitioner. I find myself in complete agreement with the contentions of the learned counsel for the respondents that the observations are made on the basis of a preliminary enquiry which was ordered to enable the Chancellor to exercise his powers in a proper manner. The said observations cannot be construed to mean that on account of some misconduct by way of penalty the petitioner has been removed. On the other hand, the same are made only to justify the action of the petitioner's removal. The observations referred to above on the face of it cannot be termed as stigmatic and the same cannot be said to be punitive or holding the petitioner guilty of misconduct or guilty of moral turpitude. 14. Accordingly, agreeing with the submissions made by the learned counsel for the respondents to the extent that the aforesaid observations made in the impugned notification are not stigmatic and punitive in nature and will not affect the petitioner's future career, I am inclined to dispose of this petition by holding that the aforesaid observations of the Notification dated 3-11-2004 (Annexure P-1) are not stigmatic or punitive in nature and shall not be treated as such. The same shall also not adversely affect or come in the way of the petitioner's future career. 15. With the aforesaid, this petition stands disposed of. No orders as to the costs.