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2009 DIGILAW 3825 (ALL)

JONNADA ANANDA VARA PRASAD RAO v. STATE OF U. P.

2009-12-18

ASHOK BHUSHAN, K.N.PANDEY

body2009
JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Sri D.S.P. Singh, learned counsel for the petitioner, Sri B.D. Pandey, learned counsel appearing for respondent Nos. 2, 3 and 4 and learned Standing Counsel. 2. Counter and rejoinder affidavits have been exchanged between the parties and with the consent of the parties, the writ petition is being finally disposed of. 3. By this writ petition, the petitioner has prayed for quashing the order dated 13th October, 2009 whereby the petitioner has been suspended. 4. Brief facts necessary for deciding the writ petition are; the petitioner was appointed as Reader in the University, Department of Biotechnology. The services of the petitioner were terminated by the University vide order dated 5th December, 2008. A writ petition being Writ Petition No. 65975 of 2008 was filed by the petitioner, which was disposed of by this Court quashing the order dated 5th December, 2008. The University was directed to reconsider the matter and take necessary steps in accordance with law after affording fullest opportunity of hearing within a period of two months. After the order of this Court dated 1st September, 2009, the Executive Council of the University met to consider the case of the petitioner on 8th October, 2009 by Agenda Item No. 28 and decision was taken with regard to the petitioner. It was decided by the Executive Council that petitioner be permitted to join and he be suspended with immediate effect and for giving hearing disciplinary committee of three members under the Chairmanship of Vice Chancellor be constituted. In pursuance of the resolution of Executive Council dated 8th October, 2009 the suspension order was issued by the Registrar on 13th October, 2009. 5. Petitioner’s case in the writ petition is that suspension has been ordered due to the reason that a first information report dated 17th March, 2002 was lodged by the petitioner against the then officers of the University in which they had been charge-sheeted. It is submitted that the suspension order has been passed without any consideration. It is further submitted that in the same meeting dated 8th October, 2009 disciplinary committee has been constituted as required to be constituted in accordance with Statute 8.10 of the First Statute of the University and without there being any recommendation of the disciplinary committee as contemplated in Statute 16.07 of the First Statute of the University suspension has been ordered, which is without jurisdiction. It is contended that present case is fully covered by the Division Bench judgment of this Court in the case of Sushil Prakash Gupta (Dr.) v. Executive Council, University of Allahabad and others (2000) 3 UPLBEC 2466 . 6. Sri B.D. Pandey, learned counsel for the University, refuting the submissions of learned counsel for the petitioner, contends that Executive Council has full jurisdiction to direct for suspension. He submits that under Section 21 of the U.P. State Universities Act, 1973 the Executive Council being appointing authority, can very well suspend the petitioner. Sri Pandey further submits that petitioner has remedy to file a reference before the Chancellor under Section 68 of the U.P. State Universities Act, 1973. It is further submitted that suspension ordered by the Executive Council be not interfered with by this Court in exercise of writ jurisdiction. 7. Learned counsel for the University has placed reliance on judgments of this Court in the cases of Manvendra Mishra (Dr.) v. Gorakhpur University, Gorakhpur and others, (2000) 1 UPLBEC 702 ; Sripal Singh v. State of U.P. and others, 2006(2) ESC 1338 (All)(DB); Ram Chandra Pandey and others v. District Administrative Committee and others, 1998(1) ESC 105 and the judgment and order dated 23rd September, 2006 passed in Writ Petition No. 53371 of 2006 (Dr. Rajesh Kumar Mishra v. State of U.P. and others). 8. We have considered the submissions of learned counsel for the parties and perused the record. 9. The issue, which has been raised in this writ petition, is only with regard to suspension of the petitioner as ordered on 13th October, 2009 in pursuance of the resolution of the Executive Council dated 8th October, 2008. The submission, which has been made by learned counsel for the petitioner, is that in the same meeting dated 8th October, 2009 disciplinary committee has been constituted and decision has been taken by the Executive Council to suspend the petitioner, which is not permissible. It has been submitted that suspension of the petitioner could have been ordered only after recommendation is received from the disciplinary committee and without there being any recommendation of the Executive Committee, the suspension could not have been ordered. Reliance has been placed upon Section 21 sub-sections (vi) and (xii) of the U.P. State Universities Act, 1973 and Statutes 8.10, 8.11 and 16.07 of the First Statute of the Gorakhpur University. 10. Reliance has been placed upon Section 21 sub-sections (vi) and (xii) of the U.P. State Universities Act, 1973 and Statutes 8.10, 8.11 and 16.07 of the First Statute of the Gorakhpur University. 10. The submission, which has been pressed by the learned counsel for the University is that the Executive Council being the appointing authority has full jurisdiction to place the petitioner under suspension. 11. The Division Bench judgment relied by the learned counsel for the petitioner in Sushil Prakash Gupta’s case (supra) was a case where Executive Council has directed suspension of an officer of the University. Similar issue was raised that without there being recommendation of the disciplinary committee the suspension could not have been ordered. The similar submission raised by the University was rejected by the Division Bench in paragraph 12 of the said judgment. Paragraphs 12, 13, 14 and 15, which are relevant for the purpose, are quoted below : “12. Learned Counsel for the respondents submitted that since the Executive Council has power under Sections 21 and 31 of the Act to make appointment such power to appoint includes the power to suspend in view of the General Clauses Act. There is no dispute that it is only the Executive Council which can suspend a teacher which includes a Director vide Section 2(18). However, the question remains as to the manner in which this power of suspension is to be exercised. Since the Statute provides that suspension can be on recommendation of the Disciplinary Committee in our opinion no suspension order can be passed by the Executive Council without a recommendation from the Disciplinary Committee. Hence this point is sufficient to allow this writ petition and we are not going into the other points raised by the learned Counsel for the petitioner. 13. Learned Counsel for respondents, Dr. Padia, submitted that the power to suspend flows out of the power to appoint under Sections 21 and 31 of the Act and those provisions in the Act do not have any such restriction that the power to suspend can only be exercised on the recommendation of the Disciplinary Committee. Hence he submitted that the University Statutes, which are only a piece of delegated Legislation, cannot control the power under the parent Legislation. We do not agree. Hence he submitted that the University Statutes, which are only a piece of delegated Legislation, cannot control the power under the parent Legislation. We do not agree. In this connection reference may be made to the Supreme Court decision in Ramana D. Shetty v. The International Airport Authority of India and others, AIR 1979 SC 1628 , in which (in para 10) the following observation of Mr. Justice Frankfurter of the U.S. Supreme Court has been quoted with approval : “An executive agency must be rigorously held to the standards by which it professes its action to be judged...... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed...... This judicially evolved rule of administrative law is now firmly established and, If I may add, rightly so. He that takes the procedural sword shall perish with the sword.” Since the University Statute has prescribed the manner of exercising the power of suspension it must be exercised only in that manner. 14. In the counter-affidavit various allegations of fact have been made against the petitioner, but we are not going into the same as we are allowing this petition only on the short ground that there was no recommendation of the Disciplinary Committee. If we accept the argument of the learned Counsel for the respondents that the Executive Council can suspend without any recommendation of the Disciplinary Committee then it will give the Executive Council power to pick and choose. Whenever the Executive Council is so inclined it may call for the report of the Disciplinary Committee and when it is not so inclined it may not. This in our opinion would lead to discrimination, which is violative of Article 14 of the Constitution. Hence, we have to accept the contention that in all cases when a teacher (which includes a Director) is sought to be suspended there must be a recommendation of the Disciplinary Committee. Dr. R.G. Padia learned Counsel for the University submitted that there might be a very urgent case requiring immediate suspension and hence in such cases the requirement to obtain the recommendation of the Disciplinary Committee would create difficulties. In our opinion even if immediate suspension is called for this can be done by immediately constituting a Disciplinary Committee and obtaining its recommendation. In our opinion even if immediate suspension is called for this can be done by immediately constituting a Disciplinary Committee and obtaining its recommendation. The Disciplinary Committee of course has also to hold the enquiry, which may take a longer time, but there is no reason why it cannot make a quick recommendation to suspend a teacher if the situation so requires. 15. Since the Disciplinary Committee made no recommendation for suspending the petitioner this petition is allowed. The impugned resolution dated 9.3.2000 of the Executive Council and orders of the Registrar dated 10.3.2000 and 11.3.2000 are quashed.” 12. From the above Division Bench judgment, it is clear that the Executive Council can direct for suspension in accordance with the procedure as prescribed in the Statute. There cannot be any dispute to the proposition that Executive Council being appointing authority has jurisdiction to suspend, but jurisdiction to suspend is to be exercised in accordance with the procedure as prescribed in the Statute. In the present case the disciplinary committee itself has been constituted by the same resolution by which the petitioner was placed under suspension. The suspension of the petitioner on the basis of the resolution dated 8th October, 2009 is, thus, clearly contrary to the law as laid down by the Division Bench in Sushil Prakash Gupta’s case (supra). 13. The submission of Sri B.D. Pandey that petitioner has remedy under Section 68 of the U.P. State Universities Act, 1973 is supported by Division Bench judgment of Manvendra Mishra’s case (supra). There cannot be any dispute that Section 68 provides for a alternative remedy to challenge the decision of the University but it is well settled that where very jurisdiction of an authority, who passed the order, is challenged on the ground that it has not been passed in accordance with the statutory provisions, the writ petition cannot be thrown on the ground of alternative remedy. There is no dispute of facts in the present case that there was no recommendation of the disciplinary committee for suspension of the petitioner nor in the counter-affidavit any such plea has been taken. Thus we are not persuaded to relegate the petitioner to the alternative remedy under Section 68 of the U.P. State Universities Act, 1973. 14. There is no dispute of facts in the present case that there was no recommendation of the disciplinary committee for suspension of the petitioner nor in the counter-affidavit any such plea has been taken. Thus we are not persuaded to relegate the petitioner to the alternative remedy under Section 68 of the U.P. State Universities Act, 1973. 14. The judgment, which has been next relied by counsel for the University is in Ram Chandra Pandey’s case (supra) which was a case where the Full Bench of this Court was considering the power of suspension under the U.P. Primary Agricultural Cooperative Credit Societies Centralised Service Rules, 1976 and the Regulations, 1978. The Full Bench has laid down that appointing authority is empowered to suspend an employee pending inquiry into his conduct. It was held that “words ‘’supervision and control’ are wide enough to include the power of passing the order of suspension pending disciplinary inquiry”. There cannot be any dispute to the proposition laid down by the Full Bench but the suspension can be resorted to in accordance with the procedure as laid down in the Statute as has been laid down by the Division Bench in Sushil Prakash Gupta’s case (supra). The submissions of the petitioner are fully supported by the Division Bench judgment in Sushil Prakash Gupta’s case (supra). 15. The judgment in Sripal Singh’s case (supra) was a case where it was held that Member Secretary can suspend a member of the centralised service even in the absence of a decision of suspension of the District Committee. The Court was considering the suspension of a member of centralised service of a cooperative society and was concerned with different rules and regulations. The said case is clearly distinguishable. 16. The judgment in Dr. Rajesh Kumar Mishra’s case (supra), which has been relied by the learned counsel for the University, was a case where this Court was considering the question of appointment of a teacher under Section 31(3) of the U.P. State Universities Act, 1973. The Division Bench in that context has observed that selection process undertaken by the Executive Council should not normally be interfered with by this Court. There cannot be any dispute to the proposition as laid down in the above case. The Division Bench in that context has observed that selection process undertaken by the Executive Council should not normally be interfered with by this Court. There cannot be any dispute to the proposition as laid down in the above case. Normally the decision of the Executive Council is not interfered by this Court but when the decision is taken by the Executive Council in breach of statutory provisions of law, i.e., first Statute of the University, such decision cannot be sustained. 17. Taking into consideration overall facts and circumstances of the case, we are satisfied that order dated 13.10.2009 deserves to be and is hereby set-aside. We, however, leave it open for the Executive Council to take a fresh decision after recommendation is received in accordance with the first Statute of the Gorakhpur University. 18. The writ petition is disposed of accordingly. ————