Research › Search › Judgment

Chhattisgarh High Court · body

2009 DIGILAW 31 (CHH)

L. S. NIGAM v. STATE OF C. G.

2009-01-28

DHIRENDRA MISHRA

body2009
ORDER Hon'ble Shri Dhirendra Mishra, J. :- 1. Heard on IA No.04, application for taking additional documents on record. 2. Not opposed. 3. The application (IA No.04) is allowed. Documents are taken on record. 4. This petition is directed against the order dated 13.10.2008 (Annexure P/1) whereby, the petitioner has been suspended from the post of Professor (Ancient Indian History) pending departmental enquiry. 5. Case of the petitioner, in brief, is that he was appointed as Professor of Ancient Indian History, Culture & Archaeology, on 20th September, 2003 by the respondent No.3/Universlty. His services were confirmed w.e.f. 20th September, 2005. Respondent No.4 took over the charge of Kulpati (Vice.Chancellor) of the University w.e.f May, 2005. After becoming Kulpati, respondent No.4 nourished ill will towards the petitioner. He proposed to merge the Department of History with the Department of Ancient Indian History, Culture & Archaeology. The petitioner submitted a dissenting note against the proposed merger. The Kulpati divested the petitioner of the responsibility of In-charge of Legal Cell of the University. The petitioner also opposed the resolution brought at the behest of Kulpati in the meeting of the Academic Council on 15.4.2007 to recognize one institute of Varanasi (UP) as Research Center of the respondent/University, and the resolution could not be passed. Because of the aforesaid reasons, the Kulpati divested the petitioner of the responsibility of Head of the Department, which he was discharging since the date of his appointment. 6. The petitioner was also removed from the charge of the Institute of Tourism & Hotel Management. Thereafter, the Kulpati introduced yet another resolution of the Academic Council, whereby it was proposed that the postgraduate degree holders of certain subjects cannot conduct research or submit their doctoral theses in any other subject. The petitioner gave his dissenting opinion to this proposal also and the matter was referred to the Chancellor of the University by the Academic Council. 7. The petitioner was posted in Flying Squad at Jagdalpur at the behest of Kulpati and directed him to join his duties at Jagdalpur within 48 hours. However, on representation ofthe petitioner, Chancellor of the University intervened and forbade the Kulpati from posting the petitioner's services in Flying Squad at Jagdalpur. The petitioner and some other teachers continued to oppose the attempt of the Kulpati of uncalled for amendment in Ordinance No.45. However, on representation ofthe petitioner, Chancellor of the University intervened and forbade the Kulpati from posting the petitioner's services in Flying Squad at Jagdalpur. The petitioner and some other teachers continued to oppose the attempt of the Kulpati of uncalled for amendment in Ordinance No.45. The proposal of Kulpatl, in respect of appointment of the petitioner as Reader in the University, in the meeting of the Executive Council could also not be carried out and because of the aforesaid reasons, the petitioner was suspended by the impugned order. 8. Respondent No.3/University, in its return, has denied adverse allegations contained in the petition. The allegation that the Kulpati nourished a grudge against the petitioner because of his stand in the Academic Council, has also been denied. It has been further averred that Kulpati of the University is vested with the emergency power under sub-section (4) of Section 15 of C.G. Vishwavidyalaya Adhiniyam, 1973 (hereinafter referred to as "the Act") and this power also includes power to suspend an employee of the University. Respondent No.3 has admitted that the proposals submitted in the Academic Council could not be carried out because of opposition of the members of the Council, including that of the petitioner, but allegation of malafides on that count has been specifically denied. 9. Respondent No.3 has also admitted that meeting of the Executive, Council was held on 13.10.2008, the date on which the petitioner was suspended. However, it has been stated that the said meeting was an adjourned meeting, in which no fresh matter could be taken in the normal course. It has also been stated that since the petitioner was not maintaining the attendance register properly, he did not comply with the orders and he used language unbecoming for a professor in his representation before the Chancellor against his posting in the Flying Squad at Jagdalpur and he did participate in the demonstration organized by the University employees, therefore, he has been suspended in exercise of emergency powers. 10. Mr. Kanak Tiwari, learned Sr. Advocate appearing with Mr. Varun Sharma, Advocate, vehemently argued that suspension of the petitioner is actuated by malice, as detailed above. After filing of the petition, charge-sheet has been issued to the petitioner. 10. Mr. Kanak Tiwari, learned Sr. Advocate appearing with Mr. Varun Sharma, Advocate, vehemently argued that suspension of the petitioner is actuated by malice, as detailed above. After filing of the petition, charge-sheet has been issued to the petitioner. From bare perusal of the charge-sheet it would be evident that the charges refer to the alleged misconduct of the petitioner committed between 10.3.2008 and 12.4.2008 whereas the petitioner has been suspended on 13.10.2008 on the purported exercise of emergency powers under sub-section (4) of Section 15 of the Act without mentioning any emergency. The appointing authority of the petitioner is the Executive Council. Though, on 13.10.2008 meeting of the Executive Council was held, but disciplinary action against the petitioner was not placed before the Executive Council on that date. 11. Referring to sub-section (4) of Section 15 of the Act, it was argued that before exercising emergency power, the Kulpati has to record an opinion that such emergency has arisen, which requires immediate action. However, from bare perusal of the impugned order, it would be evident that there is not even a whisper of existence of emergent situation calling for immediate action. The order even does not mention that suspension of the petitioner is under sub-section (4) of Section 15 of the Act. There is total non-compliance of the emergency provision, which mandates that action taken under sub-section (4) of Section 15 of the Act, is to be placed before the authority competent (that is, the Executive Council) to deal with the matter in the ordinary course. However, the matter was not placed before the Executive Council, which was admittedly convened on the same date. It was further argued that the emergency power does not extend to any matter relating to appointments as per third proviso to sub-section (4) of Section 15 of the Act. As per Section 16 of the CG General Clauses Act, power to appoint also includes power to suspend and dismiss. 12. Repelling the contention of the respondents, Mr. Tiwari submitted that vide Amendment Act of 1991, the word "disciplinary action" contained in third proviso to sub-section (4) of Section 150fthe Act, was subsequently omitted vide Amendment of 1994 as the earlier expression did not make any harmonious reading and the word "disciplinary action" was superfluous. 12. Repelling the contention of the respondents, Mr. Tiwari submitted that vide Amendment Act of 1991, the word "disciplinary action" contained in third proviso to sub-section (4) of Section 150fthe Act, was subsequently omitted vide Amendment of 1994 as the earlier expression did not make any harmonious reading and the word "disciplinary action" was superfluous. The Executive Council of the University, by virtue of being appointing authority of the teachers of the University, is the disciplinary authority of the petitioner, whereas in the case of Class-III, Class-IV and other employees, the Registrar is the appointing and disciplinary authority. If the Kulpati exercising powers under second proviso to sub-section (4) of Section 15 of the Act is allowed to take disciplinary action, then the Executive Council becomes the appellate authority of all categories of employees, which is against the express provision of the Act and the statute made thereunder. The Executive Council being the appointing authority of the petitioner cannot be relegated to the status of being its own appellate authority. 13. Referring to sub-section (2) of Section 15 of the Act, it was argued that duty is caste upon the Kulpati to ensure that this Act, the Statutes, the Ordinances and the Regulations are faithfully observed and the Kulpati has all the powers necessary for this purpose. Thus, the above provision makes it obligatory on the Kulpati to ensure that Statute 51 read with Statute 31 are faithfully observed. However, by suspending the petitioner in the purported exercise of emergency power under sub-section (4) of Section 15, the Kulpati has, in fact, rendered the above provisions redundant. The Kulpati convened the meeting of Executive Council on 28.11.2008 and put up matter of the petitioner, but the same was never ratified or approved by the Executive Council. In the meanwhile, charge sheet dated 24.11.2008 has been issued by the University to the petitioner at the behest of Kulpati and the charge sheet is also not approved by the Executive Council. 14. Reliance is placed on the judgment in the matters of Marathwada University Vs. Seshrao Sa/want Rao Chavanl. 15. On the other hand, Mr. P.K. Verma, learned Sr. Advocate with Mr. Raghvendra Verma, Advocate appearing for respondents No.2, 3 & 4 contended that Section 15 of the Act deals with the powers and duties of Kulpati. Subsection (4) of Section 15 confers power on the Kulpati in emergent situation. Seshrao Sa/want Rao Chavanl. 15. On the other hand, Mr. P.K. Verma, learned Sr. Advocate with Mr. Raghvendra Verma, Advocate appearing for respondents No.2, 3 & 4 contended that Section 15 of the Act deals with the powers and duties of Kulpati. Subsection (4) of Section 15 confers power on the Kulpati in emergent situation. It also casts a duty upon the Kulpati to report his action to such officer, authority, committee, or other body, who is competent to deal with such matter in the ordinary course at the earliest opportunity after the action is taken. The order of suspension of the petitioner was placed before the Executive Council in its meeting dated 28.11.2008. The petitioner had statutory right to prefer appeal against the action of Kulpati within a period of thirty days when the suspension order was communicated to him. However, the petitioner has approached this Court without exhausting the statutory alternative remedy available to him under second proviso to sub-section (4) of Section 15 of the Act. 16. It is further argued that prior to amendment of 1994 in the third proviso to sub-section (4) of Section 15, it contained a provision that Kulpati's emergency power would not extend in the matters of a disciplinary action or appointment,' but word "a disciplinary action or" has been consciously omitted by the Amencln).ent Act No.19 of 1994, thus, bringing the disciplinary action within the emergency power of the Kulpati. The matter regarding suspension of the petitioner was placed before the Executive Council in its meeting dated 28.11.2008 and since the Executive Council did not refer the matter to the Kuladhipati (Chancellor), as provided under sub-section (5) of Section 15 and as no appeal has been filed by the petitioner against his suspension before the Executive Council, suspension of the petitioner by the Kulpati under sub-section (4) of Section 15 of the Act shall be deemed to be an action taken by the appropriate authority i.e. the Executive Council, as per sub-section (6) of Section 15 of the Act. 17. 17. It was further contended that since the matter has now been placed before the Executive Council, as required under sub-section (4) of Section 15 and the Executive Council has accepted the report and did not refer it to the Kuladhipati, notwithstanding any irregularity in exercise of emergency power, the petitioner stands suspended by the Executive Council as per deeming provision of Section 15 of the Act. Further, the petitioner has already been served with the charge sheet on 24.11.2008, therefore, it is open to the petitioner to reply to the charges and take appropriate defences, including the defence that the suspension is actuated by malice. Since the charge sheet has been issued following suspension, the same cannot be quashed at the threshold. 18. I have heard learned counsel for the parties and perused the material on record. 19. The petitioner has impugned his suspension order on the following grounds: (i) that the emergency power of Kulpati does not extend to the power to suspend the employees/officers of the University, (ii) that even if it is held that the Kulpati has emergency power to suspend its employees/officers, the same has been exercised malafidely as no emergent situation was existing on the date when the petitioner was placed under suspension. 20. Mr. Kanal Tiwari vehemently argued that third proviso to sub-section (4) of Section 15 excludes the matter relating to appointment also. Referring to Section 16 of the General Clauses Act, it was argued that where any en::1ctmcnt confers power to make appointment on any authority, then it also empowers the authority to suspend or dismiss any person appointed by it in exercise of that power. 21. The question before this Court is - whether intention of the legislature in omitting the word "disciplinary action" from the third proviso to sub-section (4) of Section 15 of the Act, was to give the earlier expression harmonious reading as the word "appointment" includes disciplinary action also and the word "disciplinary action" was superfluous, or it was with an intention to extend the emergency power to Kulpati in the matters of disciplinary action against the employees/officers of the University? 22. In Principles of Statutory Interpretation, Eighth Edition, 2001 by Hon 'ble Shri Justice G.P. Singh (Former Chief Justice MP. 22. In Principles of Statutory Interpretation, Eighth Edition, 2001 by Hon 'ble Shri Justice G.P. Singh (Former Chief Justice MP. High Court), there is a reference of "Rule in Heydon s case; purposive construction; mischief rule", under which it has been observed thus: "When the material words are capable of bearing two or more constructions the most fly established rule for construction of such words "of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law)" is the rule laid down in Heydon's case which has "now attained the status of a classic. The rule which is also known as 'purposive construction' or 'mischief rule', enables consideration offour matters in construing an Act: (i) What was the law before the making of the Act, (ii) What was the mischief or defect for which the law did not provide, (iii) What is the remedy that the Act has provided, and (iv) What is the reason of the remedy. The rule then directs that the courts must adopt that construction which "shall suppress the mischief and advance the remedy". 23. It is not in dispute that the authority which is competent to appoint a person is also a disciplinary authority of a person so appointed. In the instant case also, the power to take disciplinary action against the petitioner lies with the Executive Council in the ordinary course. However, the legislature has conferred emergency power upon the Kulpati in emergent situation to take disciplinary action against its errant employees/officers. The third proviso to sub-section (4) of Section 15 was inserted in the Statute by 23 rd Amendment of 1991 and the emergency power to take disciplinary action and the matters relating to appointment were excluded from the emergency power of the Kulpati. However, the word "disciplinary action" has been consciously omitted from the Statute. The only inference drawn from exclusion of the word "disciplinary action" is that the Kulpati has power to take disciplinary action under the emergent situation. However, the word "disciplinary action" has been consciously omitted from the Statute. The only inference drawn from exclusion of the word "disciplinary action" is that the Kulpati has power to take disciplinary action under the emergent situation. However, to safeguard the interest of the employees/officers, a duty has been cast upon the Kulpati to place the action taken by him in exercise of emergency power before the competent authority to deal with the matter in the ordinary course at the earliest opportunity after the action is taken, and such authority has been vested with the power to refer the action so taken, if it does not approve of it, to the Kuladhipati. 24. The purpose behind the provision of extending emergency power to Kulpati in the matters of disciplinary action, is for the reason that meeting of the Executive Council, consisting large number of members, cannot be convened in a short notice to take immediate disciplinary action against the errant officers/ employees indulging in conduct prejudicial to the interest of the University and therefore, the word "disciplinary action" has been consciously omitted from the third proviso to sub-section (4) of Section 15 of the Act. 25. So far as the argument of Mr. Tiwari that right to appeal of the petitioner to the Executive Council has been taken away as it has been made appellate authority, is concerned, from bare perusal of sub-section (4) of Section 15 it is evident that the action taken under emergency power is to be reported to the Executive Council at the earliest opportunity and in case, it does not approve the action, the same is to be referred to the Kuladhipati and if it is approved by the Executive Council, the concerned employee/officer has a right to prefer an appeal before the Kuladhipati as per the statutory provision. Therefore, argument of learned counsel for the petitioner that the power under sub-section (4) of Section 15 does not extend in the matter of disciplinary action, is not acceptable. 26. Therefore, argument of learned counsel for the petitioner that the power under sub-section (4) of Section 15 does not extend in the matter of disciplinary action, is not acceptable. 26. Now, as for the next argument that since no emergent situation existed for exercise of emergency power at the relevant time, action of the Kulpati was, in fact, actuated with malice, Charge No.1 pertains to a letter dated lcf.3.2008 whereby the petitioner has expressed his inability to work as a member of Flying Squad constituted by the Kulpati to undertake surprise inspection, Charge No.2 pertains to a letter dated 10.3.2008 wherein the petitioner has made allegation of ill will and prejudice against the University administration; Charge No.3 also pertains to letter dated 10.3.2008 wherein the petitioner has made allegations of mental and physical torture against the University administration; and Charge No.4 also pertains to his letter dated 10.3.2008 wherein similar allegations, as above, have been leveled against the Kulpati. Charge No.5 is with regard to petitioner's availing half-pay leave to avoid the examination duties and his participation in the meeting of teachers ' association, Charge No.6 pertains to conduct of the petitioner of past years as on inspection his signatures were not found in the attendance register, whereas Charge No.7 is in relation to his letter dated 15.10.2007. Thus, all the misconduct alleged against the petitioner were allegedly committed by him more than six months' before the date of his suspension under the purported exercise of emergency power by the Kulpati. 27. From the averments in the petition and the reply of the University, it is clear that the petitioner was one of the members of the Academic Council, he had successfully opposed certain proposals introduced in the Academic Council at the behest of Kulpati; he was divested of the charge of Head of the Department and some other posts by the University, and he was also made a member of Flying Squad for conducting surprise inspection in Jagdalpur in the month of March, 2008. The petitioner had approached the Kuladhipati against his inclusion in the Flying Squad and addressed certain letters attributing ill will, prejudice and malafides against the University administration in general and Kulpati, in particular for making him a member of Flying Squad at Jagdalpur. The petitioner had approached the Kuladhipati against his inclusion in the Flying Squad and addressed certain letters attributing ill will, prejudice and malafides against the University administration in general and Kulpati, in particular for making him a member of Flying Squad at Jagdalpur. It is also evident that no action was taken against him for his refusal to be a member of Flying Squad at that time and only six months thereafter, he was suspended vide order of Annexure P /1, which has been passed by the Kulpati. However, the order impugned does not mention that suspension is in exercise of emergency power under sub-section (4) of Section 15 of the Act. Though the petitioner has admitted that the matter relating to him, was placed in the meeting of Executive Council convened on 28.11.2008, however, he has contended that no approval was accorded to the action of the Kulpati against the petitioner. 28. From the above undisputed facts, it can be inferred without hesitation that on 13.10.2008 when the petitioner was placed under suspension in the purported exercise of emergency power under sub-section (4) of Section 15 of the Act, in fact, no such emergency existed warranting exercise of emergency power. The undisputed fact that on the same date meeting of the Executive Council was convened and in the said meeting, matter relating to the petitioner was not placed, also establishes the allegation of the petitioner that there is complete noncompliance of Section 15(4) of the Act. 29. So far as contention of Mr. Verma, learned Sr. Advocate appearing for the respondents that notwithstanding any irregularity in exercise of emergency power, since the matter was placed before the Executive Council on 28.11.2008 and it did not refer the same to the Kuladhipati, suspension of the petitioner is deemed to be passed by the Executive Council, is concerned, if the Kulpati, who is statutorily obliged to ensure that the Act, Statutes, Ordinances and the Regulations are faithfully observed and who is empowered to take necessary action for this purpose, has himself suspended a senior professor in purported exercise of emergency power without there being any emergency, this Court is compelled to draw an inference that action of the Kulpati is actuated with malice. 30. In the matter of Marathwada University] the Hon'ble Apex Court has underlined the role of Vice Chancellor of the University. 30. In the matter of Marathwada University] the Hon'ble Apex Court has underlined the role of Vice Chancellor of the University. Paragraph-19 of the above judgment is reproduced as under: "9. The Vice-Chancellor in every university is thus the conscience keeper of the University and constitutional ruler. He is the principal executive and academic officer of the University. He is entrusted with the responsibility of overall administration of academic as well as non-academic affairs. For these purposes, the Act confers both express and implied powers 'on the Vice-Chancellor. The express powers include among others, the duty to ensure that the provisions of the Act, Statutes, Ordinances and Regulations are observed by all concerned [Section 11 (3)]. The Vice-Chancellor has a right to regulate the work and conduct of officers and teaching and other employees of the University [Section 11(6)(a)]. He has also emergency powers to deal with any untoward situation [Section 11(4)]. The power conferred under Section 11 (4) is indeed significant. If the Vice-Chancellor believes that a situation calls for immediate action, he can take such action as he thinks necessary though in the normal course he is not competent to take that action. He must, however, report to the concerned authority or body who would, in the ordinary course, have dealt with the matter. That is not all. His pivotal position as the principal executive officer also carries with him the implied power. It is the magisterial power which is, in our view, plainly to be inferred. This power is essential for him to maintain domestic discipline in the academic and non-academic affairs. In a wide variety of situations in the relationship of tutor and pupil, he has to act firmly and promptly to put down indiscipline and malpractice. It may not be illegitimate if he could call to aid his implied powers and also emergency powers to deal with all such situations." 31. Thus, from the above, it is clear that Kulpati is the guardian and father figure in the University, he is responsible for overall welfare of the University as also its staff members and the students. He is also responsible to maintain the academic standard of the University and for this purpose, to ensure that the peaceful and harmonious academic atmosphere prevails in the campus. He is also responsible to maintain the academic standard of the University and for this purpose, to ensure that the peaceful and harmonious academic atmosphere prevails in the campus. He is entrusted with the responsibility of overall administration of academic as well as non-academic affairs and for the aforesaid purposes; the Act confers both express and implied powers on the Kulpati. It is unfortunate that the professor of a University is required to complain against his own Kulpati to the Kuladhipati of harassment and vindictive attitude. In these circumstances, r am not inclined to justify the exercise of emergency power by the Kulpati under sub-section (4) of Section 15 of the Act. 32. It is settled law that even the powers which are conferred to be exercised on the subjective satisfaction of a particular authority, the condition precedent for exercise of such powers must exist. However, in the instant case, from perusal of the impugned order, documents filed by the petitioner including the charge sheet subsequently issued to the petitioner after his suspension; and the reply filed by the respondents, I am unable to hold that the necessary circumstances for exercise of emergency power for suspending the petitioner existed, which became emergent for the Kulpati to invoke the said power with the aid of emergency power under Section 15(4) of the Act. 33. On the basis of aforesaid analysis, the petition is allowed. Impugned order of Annexure P/1 dated 13.10.2008 issued by respondent No.2/University suspending the petitioner from the post of Professor (Ancient Indian History) is hereby quashed. 34. No order as to costs. Petition Allowed.