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Allahabad High Court · body

2017 DIGILAW 1924 (ALL)

K. K. SHUKLA v. BANARAS HINDU UNIVERSITY

2017-08-21

MUKHTAR AHMAD, SUDHIR AGARWAL

body2017
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Udayan Nandan, learned counsel for the petitioner and Sri Vikram D. Chauhan, learned counsel appearing for University. 2. Petitioner, a Health Officer and working at Banaras Hindu University (hereinafter referred to as “BHU”) has received a punishment order dated 20/22.3.2007 passed by Vice Chancellor (hereinafter referred to as “VC”) of BHU imposing punishment of reduction to a lower stage in the time scale of pay by four stages till retirement i.e. 30.4.2007 with cumulative effect, under Rule 11 (v) of Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as “Rules 1965”) and has challenged this order by means of present writ petition under Article 226 of Constitution of India. 3. Facts in brief are that petitioner was placed under suspension by VC, BHU vide order dated 5.3.2001 in a pending disciplinary proceeding. A charge-sheet dated 22.11.2001 was served upon petitioner, containing 18 charges, basically alleging violation/contravention of Rule 2.1 (a) (b) (c) of Ordinances governing terms and condition of employees, other than teachers of BHU. 4. By order dated 4.7.2005 VC, BHU appointed one Dr. S.P. Mathur, Deputy Registrar (Examinations) as Presenting Officer, under Rule 14 (5) (c) of Rules 1965, for the purpose of proving charges against petitioner before inquiry officer. 5. Petitioner raised an objection about applicability of Rules 1965, vide letter dated 5.11.2005. BHU vide latter dated 10.11.2005 informed petitioner that as per resolution of Executive Council, BHU, terms and conditions of service as applicable to corresponding Government of India’s employees had been made applicable to the employees of BHU. Petitioner was advised to participate in disciplinary proceeding. 6. Oral inquiry was conducted by Sri B. Das Gupta, retired Joint Secretary/Chief Vigilance Officer of M/s Steel and Mines, Government of India. He submitted report dated 17.10.2016. He held charges No. 1 to 17, proved and charge No. 18 proved to the extent of allegation of misbehavior towards seniors and showing insubordination, but allegation regarding financial irregularities was not proved. 7. A show-cause notice was issued to petitioner, supplying copy of inquiry report, giving him opportunity to make representation in respect of findings of inquiry officer. Consequently petitioner submitted reply dated 30.11.2006. Thereafter, VC, BHU passed punishment order dated 20/22.3.2007, which has been challenged in this writ petition. 8. The grounds of challenge included, inter alia, as under : (a) Punishment could have been imposed by Executive Council. Consequently petitioner submitted reply dated 30.11.2006. Thereafter, VC, BHU passed punishment order dated 20/22.3.2007, which has been challenged in this writ petition. 8. The grounds of challenge included, inter alia, as under : (a) Punishment could have been imposed by Executive Council. Vice Chancellor has no authority. There was no emergency and, therefore, Section 7-C(v) of BHU Act 1915 is not attracted. (b) Punishment order is contrary to Statutes-32 (1) of the Statutes of BHU. (c) Appointing Authority of petitioner is Executive Council, hence punishment imposed by an authority other than appointing authority is without jurisdiction. 9. Petitioner has also filed a supplementary-affidavit giving details of his appointment. Executive Counsel in its meeting dated 15.6.1980 resolved to appoint petitioner as Health Officer, Notified Area Committee of BHU and placed him on probation for a period of two years. The aforesaid decision and appointment was communicated to petitioner by Deputy Registrar (Administration), BHU vide letter dated 16/17.6.1980. The appointment letter also shows that terms and conditions of petitioner shall be such as are covered by BHU Act, Statutes, Ordinances, Rules and Regulations applicable from time to time. 10. A charge-sheet was issued to petitioner on 22.11.2001 under Clause 23.2 of Ordinances governing terms and conditions of non teaching staff of University. Petitioner raised an objection vide letter dated 25.1.2002 that Executive Council is only competent authority who can initiate proceedings against petitioner or by any authority empowered by Executive Council. Executive Council has never delegated power to Vice Chancellor to initiate proceedings against petitioner and therefore, proceeding initiated under instruction of Vice Chancellor are illegal. 11. Presenting Officer replied the said objection vide letter dated 15.3.2002 that under Clause 1.7 of Ordinances, Vice Chancellor is competent to order investigation and complete all procedural formalities connected with disciplinary proceedings up to the stage of imposition of penalty under Rule 20 read with Section 7 (c)(5) BHU Act 1915. Petitioner again raised an objection that inquiry is illegal and without jurisdiction vide objection dated 25.3.2002 to which reply was submitted by Presenting Officer on 11.4.2002. 12. Before inquiry officer also petitioner raised objection vide letter dated 5.11.2005 that Rules 1965 are not applicable since petitioner is not a Government servant. Petitioner again raised an objection that inquiry is illegal and without jurisdiction vide objection dated 25.3.2002 to which reply was submitted by Presenting Officer on 11.4.2002. 12. Before inquiry officer also petitioner raised objection vide letter dated 5.11.2005 that Rules 1965 are not applicable since petitioner is not a Government servant. Presenting Officer by letter dated 10.11.2005 referred to certain letters of UGC dated 17/20.12.1997, 8.4.1998, 10.4.1998 and stated that provisions applicable to Central Government Employees of correspondent rank are applicable to the staff of BHU also. Petitioner reiterated his objection vide letter dated 16.11.2005 but inquiry continued under Rules 1965. A copy of inquiry report was served upon petitioner alongwith letter dated 27.10.2006 sent by I/c Vigilance & Confidential Section of BHU. Petitioner raised serious objection with regard to the procedure followed by inquiry officer, complaining about denial of adequate opportunity of defence to petitioner and sought further time to submit his reply to the findings recorded in inquiry report vide letter dated 28.10.2006. 13. Thereafter, detailed explanation was submitted by petitioner (Annexure 9 to the writ petition), but without considering the same, punishment order has been passed. Petitioner reiterated his objection regarding competence of Vice Chancellor of BHU in imposing punishment and claim that power vested in Executive Council, who has not authorized or delegated the same to Vice Chancellor, BHU. 14. Respondents have filed counter-affidavit sworn by Sri C. N. Chakrovarty, Senior Assistant (Legal Cell) in the office of Registrar BHU. It is said that services of employees of BHU are governed by Service Ordinance framed under Act 1915 and Rules 1965. Executive Council is the highest administrative body and authorized to appoint salaried officials of BHU as per Article 17(3). It can make new or additional Statue or amend or repeal any Ordinance. vide resolution No. 66 dated 25.7.1970, Executive Council framed Ordinances governing terms and conditions of service of employees other than teachers. As per Article 17(3), Rule 21, Executive Council is appointing authority of petitioner and may impose any penalty on the employees covered by Act, Statutes and Ordinance of University. Petitioner was appointed as Health Officer vide letter dated 16.6.1980, by Executive Council of BHU, in the pay scale of Rs.700-1300/- 15. Vide resolution No. 111 dated 6/7.9.2002 Executive Council delegated/authorized VC, BHU to institute an inquiry against any teacher, non teaching employee and students of BHU, whenever VC, BHU think it necessary. Petitioner was appointed as Health Officer vide letter dated 16.6.1980, by Executive Council of BHU, in the pay scale of Rs.700-1300/- 15. Vide resolution No. 111 dated 6/7.9.2002 Executive Council delegated/authorized VC, BHU to institute an inquiry against any teacher, non teaching employee and students of BHU, whenever VC, BHU think it necessary. 16. vide Executive Council’s resolution No. 279 dated 9.6.1979 it was resolved that whenever University Ordinances regarding terms and conditions of service are silent or incomplete, University employees will be governed with Rules applicable to comparable Central Government Employees, for example Rules 1965, Conduct Rules, Fundamental Rules etc. The legal cell, BHU, sought some clarification in the light of facts that there were some inconsistencies between existing Rules of BHU and Ordinances as also the resolutions adopting corresponding Rules of Central Government, hence Executive Council resolution No. 271 dated 23-24 December, 2003 Ordinance under heading “G”-Application of Government of India Rules of Chapter IV of BHU Calendar, framed under Article 18(1) (k) of Act has been amended as under, so as to bring it in terms of Section 18(7) of BHU Act. The amended provision was notified vide notification dated 23.2.2005 and reads as under : “Whenever the University Ordinances regarding terms and conditions of service are silent or incomplete or self inconsistent i.e. inconsistency within the provisions of University rules, the University employees will be governed by rules applicable to comparable Central Government Employees” (emphasis added) 17. Earlier Executive Counsel vide resolution No. 559 dated 13-14 August, 1994 and 12-15 October, 1997 had resolved as under : “Resolved that the Executive Council authorizes the Vice Chancellor to institute an inquiry committee against any teacher of the Banaras Hindu University whenever the Vice-Chancellor thinks it necessary.” (emphasis added) 18. The aforesaid resolution dated 13-14 August, 1994 and 12-15 October, 1997 were considered by Executive Council of University and vide resolution No. 111 dated 6.7.2002 it was resolved as under : “Resolved that the Executive Council authorizes the Vice-Chancellor to institute an inquiry committee against any teacher/non-teaching employee/student of the Banaras Hindu University whenever the Vice-Chancellor thinks it necessary.” (emphasis added) 19. Vice Chancellor, a delegated authority, was competent to initiate disciplinary proceedings and impose penalty. Moreover the punishment order of petitioner was ratified by Executive Council of BHU vide resolution No. 12 dated 30.6.2007. Vice Chancellor, a delegated authority, was competent to initiate disciplinary proceedings and impose penalty. Moreover the punishment order of petitioner was ratified by Executive Council of BHU vide resolution No. 12 dated 30.6.2007. It is also said that in view of inconsistency of service Rules, VC, BHU passed order under Rule 11(V) of Rules 1965 in the capacity of disciplinary authority. The allegations made otherwise with regard to disciplinary inquiry etc. are denied in various paragraphs of counter-affidavit and lastly it is contended that petitioner has a statutory alternative efficacious remedy by making an appeal before Executive Council against the order of VC and thereafter to make a representation before Visitor, BHU. 20. A supplementary counter-affidavit has also been filed which is basically a reply to the averments made in supplementary-affidavit, wherein mostly facts stated in the counter-affidavit have been repeated and reiterated. It is said that vide Executive Council’s resolution No. 559 dated 13-14.8.1997 and 12-15.10.1997, VC was initially authorized to institute an inquiry against any teacher of University, whenever it is necessary. Thereafter it was amended vide resolution No. 111 dated 6-7 September, 2002. Both these resolutions have already been quoted above. 21. Executive Council passed a further resolution No. 271 dated 23-24.12.2008 clarifying inconsistency between Rules of BHU and Central Government Rules and the said amended resolution reads as under : “Resolved that it be clarified that (i) ECR No. 32.29 dated July 19-20, 2002 only contemplates that in absence of any provision in the Act, Statutes, Ordinances, rules, regulations & ECR governing any particular matter relating to the services of the employees of the University, the rules applicable to the employees of Government of India shall apply; (ii) in case provision does exist in the University in respect of any matter relating to the service of the University employees, but the said provision suffers from inconsistency within the provision, then the rules applicable in the case of Government of India employees shall be taken resort to by the University to resolve the inconsistency in the provision already existing in the University; & (iii) in the event of an apparent and clear inconsistency between provisions existing in the Banaras Hindu University and Government of India rules, the provisions existing in Banaras Hindu University shall prevail. Resolved further that in view of the above clarifications, the phrase “not in agreement with GOI rules and regulations” be replaced with “self inconsistent i.e. inconsistency within the provisions of University rules” in ECR No. 32.29 dated July 19-20, 2002 and amended ECR be read as under : “Where the University Ordinances regarding terms and conditions of service are silent or incomplete or self inconsistent i.e. inconsistency within the provisions of University rules, the University employees will be governed by rules applicable to comparable Central Government employees.” (emphasis added) 22. The basic issue which has been raised before this Court is whether order of punishment of petitioner has been passed by competent authority or not. The incidental issue relevant would be that VC of BHU, if not competent to impose punishment upon petitioner, whether it stood validated after ratification by Executive Council by resolution dated 23-24.12.2008. 23. It is admitted case of parties that BHU is governed by Act, 1915, Statutes, Ordinances, Rules and Regulation framed thereunder. 24. Earlier, there was a Hindu University at Varanasi, run by Hindu University Society, registered under Society Registration Act 1860 (hereinafter referred to as Act 1860). By Act 1915, aforesaid society was dissolved and all property rights of the said society were vested in Varanasi Hindu University, established and incorporated by and under the said Act. Act 1915 got assent of Governor General on 1.10.1915, but came into force on 1.4.1916. The authorities of University are described in Section 8A, which reads as under : “8A. The following shall be the authorities of the University: The Court, The Executive Council, The Academic Council, (Omitted) The Finance Committee, The Faculties, Such other authorities as may be declared by the Statutes to be the authorities of the University.” 25. The power and functions of Executive Council are provided in Section 10, which reads as under : “10. (1) The Executive Council shall, subject to the control of the Visitor, be the executive body of the University and shall have charge of the management and administration of the revenue and property of the University and the conduct of all administrative affairs of the University not otherwise provided for. (2) Subject to the provisions of this Act, the Executive Council shall exercise such other Powers and perform such other duties as may be conferred or imposed on it by the Statutes or the Ordinances.” (emphasis added) 26. (2) Subject to the provisions of this Act, the Executive Council shall exercise such other Powers and perform such other duties as may be conferred or imposed on it by the Statutes or the Ordinances.” (emphasis added) 26. The conditions of service of the officers and teachers of University are governed by Section 16B, which reads as under : “16B. (1) Every salaried officer and teacher of the University shall be appointed under a written contract, which shall be lodged with the University and a copy of which shall be furnished to the officer or teacher concerned. (2) Any dispute arising out of a contract between the University and any of its officers or teachers shall, at the request of the officer or teacher concerned or at the instance of the University, be referred to a Tribunal of Arbitration consisting of one member appointed by the Executive Council, one member nominated by the officer or the teacher concerned and an umpire appointed by the Visitor. (3) The decision of the Tribunal of Arbitration shall be final and shall not be questioned in any Court of law. (4) No suit or proceeding shall lie in any Court of law in respect of any matter which is required by sub-section (2) to be referred to the Tribunal of Arbitration. (5) The Tribunal of Arbitration shall have power to regulate its own procedure. (6) Nothing contained in any law for the time being in force relating to arbitration shall apply to arbitrations under this section. (emphasis added) 27. Section 17 talks of the matters which are to be provided by Statutes and Sub-section 1(c) thereof reads as under : “17. (1)(c) the appointment, powers and duties of the officers of the University,” (emphasis added) 28. Statutes may be amended or replaced or repealed by Executive Council by virtue of power conferred under Section 17(3) but by virtue of Sub-section (4) every amendment etc. will require previous approval by Visitor. Section 18(1)(b) also provided the matters to be governed by Ordinances and Sub-section 18(1)(k) and (mm) reads as under : “18 (1)(b). the courses of study to be laid down for all degrees, diplomas and certificates of the University; 18(1)(k). the emoluments and terms and conditions of service of employees of the University; (mm) the powers and duties of teachers and salaried offices and the powers which may be delegated to them” 29. the courses of study to be laid down for all degrees, diplomas and certificates of the University; 18(1)(k). the emoluments and terms and conditions of service of employees of the University; (mm) the powers and duties of teachers and salaried offices and the powers which may be delegated to them” 29. By virtue of Sub-section (3) of Section 18, Ordinances may also be amended, repealed or added by Executive Council, but Sub-section (6) provides that the Ordinances made by Executive Council shall be submitted, as soon as may be, to Visitor who has power to disallow or remit to Executive Council for further consideration. Visitor also has power to suspend any Ordinance made by Executive Council under Section 18 (7). Schedule to Act 1915 contains Statutes of University and Schedule 14 provides constitution of Executive Council, as under : “14. (1) The Executive Council shall consist of the following members, namely : The Vice-Chancellor, ex-officio, Eight persons nominated by Visitor, (2) Five members of the Executive Council shall from the quorum, (3) The members of the Executive Council shall hold office for a term of three years. (emphasis added) 30. Statutes 15 deals with power of Executive Council and Clause (iii) thereof reads as under : “15(iii) to appoint the Registrar, the Dean of Students, the Chief Proctor, the Librarian and other salaried officers and staff of the University and to fix their emoluments and define their duties and conditions of service;” (emphasis added) 31. Statutes 32(1) is a provision dealing with the removal of employees other than the teachers reads as under : “32. Statutes 32(1) is a provision dealing with the removal of employees other than the teachers reads as under : “32. (1) Notwithstanding anything contained in the terms of his contract of service or of his appointment, an employee of the University, other than a teachers may be removed by the authority which is competent to appoint the employee- “(a) if he is of unsound mind or is a deaf-mute or suffers from contagious leprosy; (b) if he is an undischarged insolvent; (c) if he has been convicted by a Court of law of an offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than six months; (d) if he is otherwise guilty of misconduct; Provided that no officer of the University shall be removed from his office unless a resolution to that effect is passed by the Executive Council by a majority of two-thirds of its members present and voting.” (emphasis added) 32. It is thus evident that Act 1915 is the principal enactment which governs the entire matter. The next subordinate legislation is Statutes and thereafter comes Ordinances and then Regulations. In other words, a Statute must conform the provision of Act 1915. Similarly, an Ordinance must be consistent with Act 1915 and the Statutes and similarly Regulations must be in conformity with Act 1915, Statutes and Ordinances. 33. Chapter III and IV of BHU Calendar contains various Ordinances of BHU. In the present case, Chapter IV B.I. Section(1), deals with the conduct, Penalty, disciplinary authorities and appeals, relevant for us. Clause 16 Chapter IV B.I. of the Ordinances, defines the terms “Appointing Authority”, “Disciplinary Authority” and “employee”, which read as under : “16. In this chapter unless the context otherwise requires: (a) “Appointing Authority” means the authority empowered to make appointment in a cadre in which the employee is for the time being included vide Rule 5.6 of Group “B”. Clause 16 Chapter IV B.I. of the Ordinances, defines the terms “Appointing Authority”, “Disciplinary Authority” and “employee”, which read as under : “16. In this chapter unless the context otherwise requires: (a) “Appointing Authority” means the authority empowered to make appointment in a cadre in which the employee is for the time being included vide Rule 5.6 of Group “B”. (b) “Disciplinary Authority” : In relation to the imposition of penalty on an employee means the authority competent under these rules to impose on him any of the penalties specified in Rule 20.” (c) “Employee” means any person in the service of the University who is a member of a cadre on one of the categories of posts created under the university and includes any such person on foreign service or whose services are temporarily placed at the disposal of another University/College or any other authority by the University; and also any person in the service of a State Government or Central Government or a local or other authority or any other autonomous body whose services are temporarily placed at the disposal of the University. (emphasis added) 34. Chapter IV.B.I. Section 3, Clause 20 deals with “Penalties”, Clause 21 deals with “Disciplinary Authorities” and Clause 22 deals with “Authority to Institute Proceedings”. The aforesaid provisions are reproduced as under : “20. Penalties; The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on an employee namely: Minor Penalties : (i) Censure; (ii) With-holding of promotion; (iii) Recovery from the pay of the whole or part of any pecuniary loss caused by him to the University by negligence or breach of orders: (iv) With-holding of increments of pay. Major Penalties : (v) Reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the employee will earn increments to pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the further increments of his pay. (vi) Reduction to a lower time scale of pay, grade or post which shall ordinarily be a bar to the promotion of the employee, with or without further directions regarding conditions of restoration of the grade or post from which the employee was reduced and the seniority and pay on such restoration to that grade or post. (vii) Compulsory retirement. (viii) Removal from service. (ix) Dismissal from Service. Explanation: The following shall not amount to a penalty within the meaning of this rule, namely : (i) Stoppage of an employee at the efficiency bar in the time-scale of pay on the ground of his unfitness to cross the bar: (ii) Non-promotion of an employee, whether in a substantive or officiating capacity, after consideration of his case for promotion to a grade or post to which the employee is eligible; (iii) Reversion of an employee, appointed on probation to any other grade or post, to his permanent grade or post during or at the end of the period of probation in accordance with the terms of his appointment, or the rules and order governing such probation. (iv) Reversion of an employee officiating in a higher grade, or post to a lower grade or post on the ground that the employee is considered to be unsuitable for such higher grade or post or on any administrative ground unconnected with the conduct. (v) Replacement of the service of an employee, whose services had been borrowed from outside authority at the disposal of such authority. (vi) Compulsory retirement of an employee in accordance with the provision relating to his superannuation or retirement. (vii) Termination of the services: (viii) (a) of an employee appointed on probation during or at the end of the period of his probation in accordance with the terms of his appointment or the rules and orders governing such probation: Or (b) of a temporary employee in accordance with the rules made in that behalf by the University; Or (c) of an employee employed under an agreement, in accordance with the terms of such agreement. 21. Disciplinary Authorities: 21.1 The Executive Council may impose any of the penalties specified in Rule 20 on any employee. 21. Disciplinary Authorities: 21.1 The Executive Council may impose any of the penalties specified in Rule 20 on any employee. 21.2 Without prejudice to the provision of such rule, any of the penalties specified in rule 20 may be impose by the appointing authority or by any other authority empowered in this behalf by a general or special order of the Executive Council. 22. Authority to institute proceedings : 22.1 The Executive Council or any other authority empowered by it by general or special order may: (a) institute disciplinary proceedings against any employee. (b) direct a disciplinary authority or institute disciplinary proceedings against any employee on whom that disciplinary authority is competent to impose under these rules any of the penalties specified in rule 20. 22.2 A disciplinary authority competent under these rules to impose any of the penalties specified in clause (i) to (iv) of rule 20 may institute disciplinary proceedings against any employee for the imposition of any of the penalties specified in clause (v) to (ix) of rule 20 notwithstanding that such disciplinary authority is not competent under those rules to impose any of the latter penalties.” (emphasis added) 35. Chapter IV.B.I., Section 4 contains provision dealing with procedure for inquiry. For our purposes Clauses 23.1, 23.2, 23.3 and 23.6 to 23.23 are relevant and reproduced as under : “23. Procedure for imposing penalties: 23.1 No order imposing any of the penalties specified in clauses (v) to (ix) of rule 20 shall be made except after an enquiry hold as may be in the manner provided in this rule and rule 24. 23.2 Whenever the disciplinary authority is of the opinion that there are grounds for inquiry into the truth of any imputation of misconduct or misbehavior against any employee, it may itself enquire into, or appoint under this rule an authority to inquire into the truth thereof. Explanation: Where the disciplinary authority itself holds the inquiry any reference in sub-rule (7) to sub-rule (20) and in sub-rule (22) to the enquiring authority shall be construed as a reference to the disciplinary authority. Explanation: Where the disciplinary authority itself holds the inquiry any reference in sub-rule (7) to sub-rule (20) and in sub-rule (22) to the enquiring authority shall be construed as a reference to the disciplinary authority. 23.3 Where it is proposed to hold an enquiry against an employee under this rule and rule 24 the disciplinary authority shall draw up or cause to be drawn up: (i) The substance of the imputations of misconduct or misbehavior into definite and distinct articles of charge; (ii) a statement of the imputations of misconduct or misbehavior in support of each article of charge which shall contain : A statement of all relevant facts including any admission or confessions make by the employee; A list of documents by which and a list of witness by whom the articles of charge are proposed to be sustained. 23.6 The disciplinary authority shall, where it is not the inquiring authority forward to the inquiring authority. (i) a copy of the articles of charge and th statement of the imputations of a misconduct or misbehavior; (ii) a copy of the written statement of defence, if any, submitted by the employee; (iii) a copy of the statement of witnesses, if any referred to in sub-rule (3); (iv) evidence proving the delivery of the documents referred to in sub-rule (3) to them; (v) a copy of the order appointing the “Presenting Officer’. 23.7 The employee shall appear in person before the inquiring authority on such day and at such time within fifteen working days from the date of receipt by him of the articles of charge and the statement of the imputations or misconduct or misbehavior as the inquiring authority may, by a notice in writing specify in this behalf or within such further time, not exceeding fifteen days, as the inquiring authority may allow. 23.8 The employee may take the assistance of any other employee to present the case on his behalf but may not engage a legal practitioner for the purpose. 23.8 The employee may take the assistance of any other employee to present the case on his behalf but may not engage a legal practitioner for the purpose. 23.9 If the employee who has not admitted any of the articles of charge in his written statement of defence or has not submitted any written statement of defence appears before the enquiring authority such authority shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the inquiring authority shall record the plea, sign the record and obtain the signature of the employee thereon. 23.10 The inquiring authority shall return finding of quality in respect of those articles of charge to which the employee pleads guilty. 23.11 The inquiring authority shall, if the employee fails to appear within the specified time or refuses or omits to plead guilty, require the presenting officer to produce the evidence by which he propose to prove the articles of charge and shall adjourn the case to a later date not exceeding thirty days after recording an order that the employee may, for the purpose of preparing his evidence: (i) inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow, the documents specified in the list referred to in sub-rule (3). (ii) Submit a list of witness to be examined on his behalf. Note: If the employee applies orally or in writing for the supply of copies of the statement of witnesses mentioned in the list referred to in sub-rule (3) the inquiring authority shall furnish to the employee with such copies as early as possible and in any case not less than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority. (iii) give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow for the production of any documents which are in the possession of the University but not mentioned in the list referred to in sub-rule (3). Note: The employee shall indicate the relevance of the documents required by him to be produced by the university. Note: The employee shall indicate the relevance of the documents required by him to be produced by the university. 23.12 The inquiring authority shall, on receipt of the notice for the production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of the document by such date as may be specified in such requisition; Provided that, the inquiring authority may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are, in its opinion not relevant to the case. 23.13 On receipt of the requisition referred to on sub-rule (12) every authority having the custody or possession of the requisitioned documents shall produce the same before the inquiring authority; Provided that, if the authority having the custody or possession the requisitioned documents is satisfied or reasons to be recorded by it in writing that the production of all or any of such documents could be against the public interest, it shall inform the enquiring authority accordingly, and the inquiring authority shall, on being so informed, communicate the information to the employee and withdraw the requisition made by it for the production of such documents. 23.14 On the date fixed for the inquiry the oral and documentary evidence by which the articles of charge are proposed to be provided shall be produced by or on behalf of the disciplinary authority. The witness shall be examined by or on behalf of the employee. The Presenting Officer shall be entitled to re-examine the witnesses on any point on which they have been cross-examined. The inquiring authority may also put such questions to the witness as it thinks fit. The witness shall be examined by or on behalf of the employee. The Presenting Officer shall be entitled to re-examine the witnesses on any point on which they have been cross-examined. The inquiring authority may also put such questions to the witness as it thinks fit. 23.15 If it shall appear necessary befor the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the employee, or itself call for new evidence or recall and re-examine any witness and in such case the employee shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of inquiry for at least three days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give the employee an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the employee to produce new evidence, if it is of the opinion that the production of such evidence is necessary in the interest of justice. Not: New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally. 23.16 When the case for the disciplinary authority is closed, the employee shall be required to state his defeence orally or in writing as he may prefer the employee shall be required to sign the record. In other case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed. 23.17 The evidence on behalf of the employees shall then be produced. Employee may examine himself in his own behalf if he so prefers. The witnesses produced by the employee shall then be examined and shall be liable to cross-examination or re-examination by the inquiring authority. 23.18 The inquiring authority may, after the employee closes his case, generally question him on the circumstances appearing against the employee in the evidence for the purpose of enabling the employee to explain any circumstances appearing in the evidence against him. 23.18 The inquiring authority may, after the employee closes his case, generally question him on the circumstances appearing against the employee in the evidence for the purpose of enabling the employee to explain any circumstances appearing in the evidence against him. 23.19 The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, appointed and the employee, to permit them to file written briefs of their respective case, if they so desire. 23.20 If the employee to whom the copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose, or does not appear before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex parte. 23.21 (a) Where a disciplinary authority competent to impose any of the penalties specified in clauses (i) to (iv) of rule 20 (but) not competent to impose any of the penalties specified in clauses (v to (ix) to the rule has itself enquired into or caused to be enquired into the articles of any charge and that authority, having regard to it own findings or having regard to its decision on any of the findings of any inquiring authority appointed by it, is of the opinion that the penalties specified in clauses (v) to (ix) of rule 20 should be imposed on the employee, that authority shall forward the records of the inquiry to such disciplinary authority as is competent to impose the last mentioned penalties. (b) The disciplinary authority to which the record are so forwarded may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witnesses is necessary in the interests of justice, recall the witness and examine, cross-examine and re-examine the witness and may impose on the employee such penalty as it may deem fit in accordance with these rules. 23.22 Whenever any inquiring authority, after having heard any recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another inquiring authority which has any which exercises, such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor or partly recorded by its predecessor and partly recorded by itself. Provided that, if the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice it may recall examine, cross-examine and re-examine any such witnesses as herein before provided. 23.23. After the conclusion of the inquiry, a report shall be prepared and it shall contain : (a) The articles of charge and statement of the imputations of misconduct or misbehavior; (b) The defence of the employee in respect of each article of charge; (c) An assessment of the evidence in respect of each article of charge; (d) The findings on each article of charge and the reasons therefore. Explanation: If in the opinion of the inquiry authority the proceedings of the inquiry establish any article of charge different from the original articles of the Charge, it may also record its findings on such article of charge; Provided that the findings on such article of charge shall not be recorded unless the employee has either admitted to facts on which such articles of charge is based, or has had a reasonable opportunity of defending himself against such article of charge. The inquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include: (a) The report prepared by it under clause (i) ; (b) The written statement of defence, if any submitted by the employee ; (c) The oral and documentary evidence produced in the course of the enquiry ; (d) Written brief, if any, filed by the presenting officer or the employee or both during the course of the inquiry ; and (e) The order in brief, if any, made by the disciplinary authority, andi the inquiring authority in regard to the inquiry. (emphasis added) 36. (emphasis added) 36. The penalty is to be imposed by disciplinary authority as provided under clause 24.4 which reads as under : “24.4 If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (v) to (ix) of rule 20 should be imposed on the employee, it shall: (a) Furnish to the employee a copy of the report of the inquiry held by it and its findings on each article of charge or where the inquiry has been held by an inquiring authority appointed by it, a copy of the report of such authority and a statement of its findings on each article of charge together with brief reasons for the inquiring authority. (b) Give the employee a notice stating the penalty proposed to be imposed on him and calling upon him to submit within fifteen days of receipt of the notice or such further time not exceeding fifteen days, as may be allowed, such representation as he may wise to make on the proposed penalty on the basis of the evidence adduced during the inquiry held under rule 23. The disciplinary authority shall consider the re-presentation, if any, made by the employee in pursuance of the notice given to him under clause (1) and determine what penalty, if any, should be imposed on him and made such order as it may deed fit. (emphasis added) 37. Chapter IV.B.I., Section 5 deals with the Appeal, Clause 31 provides the cases where no appeal lies and reads as under : “31. Orders against which no appeal lies: Notwithstanding anything contained in this part, no appeal shall lie against: (i) Any order made by the Executive Council: (ii) any order of an interlocutory nature or of the nature of a step-in-aid for the final disposal of a disciplinary proceedings other than an order of suspension; (iii) any order passed by an inquiring authority in the course of an inquiry under rule 23.” 38. Though vehemently it was argued that inquiry was not conducted properly, but no specific ground has been raised or argued before us as to what manner inquiry was not properly conducted or has resulted in denial of adequate opportunity of defence to the petitioner or that the procedure prescribed under the relevant statutory provisions as reproduced above for holding departmental inquiry have not been found. The only argument raised vehemently is that appointment of the petitioner was made by Executive Council and order of punishment has been passed by VC, therefore, this is an order of punishment by competent authority and patently illegal. 39. Learned counsel for BHU bound by its on pleadings did not dispute that petitioner was actually appointed by Executive Council and Executive Council was appointing authority. He also could not dispute that the power of punishment of removal or dismissal could have been exercise by the person competent to appoint i.e. Executive Council. 40. However, he sought to rely on resolutions of Executive Council whereby VC was authorized to constitute Disciplinary Committee, but these resolutions also refers to only constitution of Disciplinary Committee, but nowhere confer power upon VC to impose punishment of dismissal or removal upon any teaching or non-teaching staff. The power of punishment to an officer or like petitioner, vested in no other authority but Executive Council. Therefore, from the provisions as we have discussed above in detail and also from admitted facts that petitioner was appointed by Executive Council, we are certain that petitioner could have been imposed punishment by Executive Council only. We have not been shown any resolution or delegation by the Executive Council delegating or conferring power of imposition of major penalty or even appointment of an officer equal in status with petitioner, upon VC. Therefore, we find substance in submissions that appointing and disciplinary authority of petitioner being Executive Council, order passed by VC was is without jurisdiction as he had not such authority. 41. Now comes the alternative question which has been raised on behalf of University that Executive Counsel has ratified the order of VC, impugned in this writ petition, and the aforesaid ratification relates back so as to validate order passed by VC making it is an order of competent authority i.e. Executive Council and for that reason order of punishment cannot be set-aside. 42. Reliance is placed on certain authorities on both the sides. 42. Reliance is placed on certain authorities on both the sides. On behalf of petitioner a Single Judge Judgment in Naresh Chandra Gupta v. U.P. State Road Transport Corporation, Lucknow and others, 2003 (3) AWC 1931 , has been relied, wherein it was held, if an authority has no power or jurisdiction to take a particular decision or action and still such an authority takes such an action or decision, then there cannot be any question of ratification of such action or decision. In para 43 of the judgment after referring to certain earlier authorities of Apex Court, learned Single Judge has observed as under : “43. In my opinion, therefore, the following principles can be derived from the aforesaid decisions : If under the existing provisions of the relevant statute/rules/regulations/orders, etc., an authority has power/jurisdiction to take a particular action/decision provided certain procedural requirements are. fulfilled prior to such action/decision, and if such an authority takes such action/decision without prior fulfilment of such procedural requirements, then the action/decision can be ratified by fulfilling the procedural requirements subsequent to such action/decision. However, if under the existing provisions of the relevant statute/rules/regulations/orders, etc., an authority has no power/jurisdiction to take a particular action/decision, and still such an authority takes such action/decision, then there cannot be any question of ratifying such action/decision by fulfilling any procedural requirements. In other words, where an authority takes a particular action/decision which such authority has no power to take under the existing provisions of the relevant statute/rules/regulations/orders etc./then such action/decision cannot be ratified. Such action/decision is null and void and without jurisdiction, and there cannot be any ratification of such action/decision.” (emphasis added) 43. In arising at the aforesaid inference, learned Single Judge has relied on judgments in Marathwada University v. Shesh Rao Balawant Rao Chavan, (1989) 3 SCC 132 , Shree Parmeshwari Prasad Gupta v. Union of India, (1973) 2 SCC 543 and Punjab University v. V.N. Tripathi and another, (2001) 8 SCC 179 . 44. Another Single Judge decision relied by petitioner is Mashhoor Ahmad Etc. v. State of U.P. and others, 2012(7) ADJ 647 , wherein Court held that under the Statue, inquiry could have been conducted by Director, but therein it was conducted by Deputy Director, who was not authorized, therefore, action of Director based on such inquiry conducted by an unauthorized person was bad in law. 45. v. State of U.P. and others, 2012(7) ADJ 647 , wherein Court held that under the Statue, inquiry could have been conducted by Director, but therein it was conducted by Deputy Director, who was not authorized, therefore, action of Director based on such inquiry conducted by an unauthorized person was bad in law. 45. Lastly the judgment relied by petitioner is the Marathwada University v. Shesh Rao Balawant Rao Chavan (Supra), which is a two judges judgment. In Marathwada University, Sesh Rao Balawant Rao Chauhan (hereinafter referred to as “Sesh Rao”) was the Deputy Registrar in the University. One Mr. Yelikar, Controller of Examination proceeded on leave and Sesh Rao was directed to discharge duties of Controller of Examination. In respect to certain functions as Controller of Examination, a Disciplinary Enquiry was conducted by four members Committee including Vice Chairman appointed by Executive Council, who submitted report giving a clean chit to Sesh Rao. The report was considered by Executive Council and it authorized Vice Chancellor to take a decision. He directed for a departmental inquiry and appointed an Advocate Enquiry Officer, who submitted report on 26.10.1979, holding Sesh Rao guilty of charges. This report was accepted by Vice Chancellor and he imposed punishment of dismissal. The dismissal order was challenged in High Court and it took a decision that the matter should have been considered by Executive Council and directed matter to be placed before Executive Council. The Executive Council passed a resolution ratifying action of Vice Chancellor confirming dismissal of Sesh Rao. The matter again came to High Court when it held that since order of Vice Chancellor was without authority, ratification by Executive Council was also without authority, thus quashed the punishment. Supreme Court upheld the said decision by dismissing University’s Appeal and in para 26 of the judgment, said as under : “These principles of ratification, apparently do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and cannot be ratified.” (emphasis added) 46. Here Supreme Court also relied on an earlier judgment in Shree Parmeshwari Prasad Gupta v. Union of India (Supra), wherein termination of a Company Secretary was made by Chairman, which was confirmed by Board of Directors. It is ab initio void and cannot be ratified.” (emphasis added) 46. Here Supreme Court also relied on an earlier judgment in Shree Parmeshwari Prasad Gupta v. Union of India (Supra), wherein termination of a Company Secretary was made by Chairman, which was confirmed by Board of Directors. Court held that ratification would always relate back to the date of the act ratified but resolution of Board of Directors passed on 16.12.1953 to terminate service of Company Secretary itself was invailed, the order passed by Chairman was also bad and that could not have been ratified. 47. Per contra, learned counsel for University has relied on a three Judges’ Judgment in High Court of Judicature for Rajasthan v. P.P. Singh and another, (2003) 4 SCC 239 ; and in Maharashtra State Mining Corporation v. Sunil, (2006) 5 SCC 96 and two subsequent judgments of Division Bench i.e. State of Uttaranchal and others v. Kharak Singh, (2008) 8 SCC 236 ; and Union of India and others v. Prakash Kumar Tandon, (2009) 2 SCC 541 . 48. In High Court of Judicature for Rajasthan v. P.P. Singh and another (Supra), Court, in para-42 said, that, even if, initial action is illegal, same can be ratified by competent body. It relied on the judgment in Marathwada University v. Shesh Rao Balawant Rao Chavan (Supra) and Shree Parmeshwari Prasad Gupta v. Union of India (Supra) and two others i.e. Babu Verghese and others v. Bar Council of Kerala, (1999) 3 SCC 422 and Barnard World v. National Dock Labour Board, (1953) 1 All India Report 1113. 49. Subsequently a three Judges Bench in Maharashtra State Mining Corporation v. Sunil (Supra), said as under : “7. The High Court was right when it held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act cannot be subsequently ‘rectified’ by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim ‘Ratihabitio priori mandato aequiparatur’ namely ‘ a subsequent ratification of an act is equivalent to a prior authority to perform such act’. Therefore ratification assumes an invalid act which is retrospectively validated. 8. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim ‘Ratihabitio priori mandato aequiparatur’ namely ‘ a subsequent ratification of an act is equivalent to a prior authority to perform such act’. Therefore ratification assumes an invalid act which is retrospectively validated. 8. In Parmeshwari Prasad Gupta, the services of the General Manager of a company had been terminated by the Chairman of the Board of Directors pursuant to a resolution taken by the Board at a meeting. It was not disputed that that meeting had been improperly held and consequently the resolution passed terminating the services of the General Manager was invalid. However, a subsequent meeting had been held by the Board of Directors affirming the earlier resolution. The subsequent meeting had been properly convened. The Court held: “Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Directors passed on December 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorized to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorized, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on December 17, 1953”. The view expressed has been recently approved in the case of High Court of Judicature for Rajasthan v. P.P. Singh (supra). 9. The same view has been expressed in several cases in other jurisdictions. Thus in Hartman v. Hornsby (142 Mo 368, 44 SW 242, 244) it was said “Ratification’” in the approval by act, word, or conduct, of that which was attempted (of accomplishment), but which was improperly or unauthorizedly performed in the first instance”. 10. 9. The same view has been expressed in several cases in other jurisdictions. Thus in Hartman v. Hornsby (142 Mo 368, 44 SW 242, 244) it was said “Ratification’” in the approval by act, word, or conduct, of that which was attempted (of accomplishment), but which was improperly or unauthorizedly performed in the first instance”. 10. In the present case, the Managing Director’s order dismissing the respondent from the service was admittedly ratified by the Board of Directors on 20th February 1991, and the Board of Directors unquestionably had the power to terminate the services of the respondent. On the basis of the authorities noted, it must follow that since the order of the Managing Director had been ratified by the Board of Directors such ratification related back to the date of the order and validated it. 11. Reliance on the decision in Krishna Kumar v. Divisional Assistant Electrical Engineer, (1979) 4 SCC 289 , by the respondent is misplaced. In that case, the appellant had been appointed by the Chief Electrical Engineer, the departmental head. He was removed from service by the Divisional Assistant Engineer. The question for determination was whether the appellant had been removed from the service by an authority subordinate to that which had appointed him in violation of Article 311(1) of the Constitution. Having considered the affidavits filed, the Court came to the conclusion that the appellant had been removed from the service by an officer who was subordinate in rank to the officer by whom he was appointed. The Divisional Assistant Engineer was, subsequent to the appellant’s appointment, given the power to make an appointment to the post which the appellant held. It was urged by the respondent State that he, therefore, had the power to remove all persons holding that post. The submission was rejected on the grounds first that the right under Article 311(1) is vested in an employee on the date of his appointment and that subsequent authorization of any subordinate officer would not confer the power on such subordinate officer to remove the employee. Secondly, merely because the subordinate officer was vested with the power to appoint would not make him equal in rank with the officer making the appointment. Secondly, merely because the subordinate officer was vested with the power to appoint would not make him equal in rank with the officer making the appointment. In other words, the Divisional Engineer did not cease to be subordinate to the Chief Electrical Engineer merely because the latter’s power to make appointment to the post had been delegated to him. 12. That was not a case of ratification but of empowerment subsequent to the operative date. The case is, therefore, distinguishable not only on facts but also on the law applicable.” 50. Both these decisions have been followed in subsequent judgment in State of Uttaranchal and others v. Kharak Singh (Supra). 51. In view thereof, the issue of ratification is answered in favour of University and ratification made by Executive Council validate the order of punishment. 52. No other point has been argued. 53. In view of the above, the writ petition is dismissed. No costs.