HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R. Court No. - 29 Reserved on 29.04.2015 Delivered on 06.05.2015
Civil Misc. Writ Petition No. 62777 of 2008
Prof. Amar Prakash Garg
Versus
Chancellor, Chaudhary Charan Singh University,
Meerut and others
Hon'ble V.K. Shukla,J.
Hon'ble Mrs. Ranjana Pandya,J.
(Delivered by Hon'ble V.K. Shukla,J) Prof. Amar Prakash Garg is before this Court questioning the validity of the Resolution dated 03.05.2008 passed by the Executive Council of Chaudhary Charan Singh University, Meerut, as communicated by the Registrar vide his order dated 17.05.2008, informing the petitioner of the order of punishment of dismissal from service passed against him as well as order dated 18.11.2008 passed by the Chancellor of the University, proceeding to affirm the said action of Executive Council of the University.
Brief background of the case is that petitioner has been performing and discharging his duties as Professor & Head of the Department of Microbiology at Chaudhary Charan Singh University, Meerut. The affairs of the said University in question is to be governed by the provision of Uttar Pradesh State Universities Act, 1973 and First Statutes framed thereunder.
Petitioner has stated that while performing and discharging his duty as Professor, and Head of Department, on the directives issued by the Vice Chancellor and Registrar of the University, on 18.04.2006 petitioner has been appointed as Co-ordinator to conduct the examination of the University for the year 2006. Subsequent thereto Vice Chancellor constituted Evaluation Committee of five persons of which petitioner was not a member. The said Evaluation Committee was responsible for selection of evaluation centres and their evaluation. Petitioner has stated that examinations of the University were conducted smoothly and properly upto 28.07.2006 and there was no complaint whatsoever regarding the work and conduct of the petitioner as Co-ordinator.
Petitioner has come up with the case that Vice Chancellor of the University on 26.07.2006 appointed one Dr. Rajnikant Upadhyaya as In-Charge at Agra for evaluation of the answer books of the Professional Courses Examination 2000. Petitioner has stated that on 29.07.2006 he was asked to get answer sheets evaluated from the eligible examiners by the letter of the Registrar of the University, and approximately 26000 answer books were send to petitioner in three lots between 2.8.2006 to 9.8.2006. The petitioner has stated that out of 26000 answer books, 14000 answer book has been distributed to 29 examiners in consultation with Pro. Vice Chancellor Sri S.N. Rai and balance 14000 answer books had been taken back by the University as in respect of evaluation process of answer books at Agra, large scale irregularities have been recorded and same has been hight lighted in media showing the way and manner of examining the answer sheets of the University by ineligible persons. Scam has emanated from Agra where answer books were send for external examination and were found being examined by students instead of qualified examiners and answer books were found lying scattered at the out skirts of Agra.
On the said out burst, Enquiry Committee was constituted by the District Magistrate, Meerut on 13.08.2008, and on 14.08.2006 notification was issued regarding constitution of the Enquiry Committee by the District Magistrate that comprised of Additional District Magistrate (City), Additional Higher Education Officer, Meerut, Additional City Magistrate, Meerut and said committee also had four nominees of Vice Chancellor i.e. Prof. J.K Pundir, H.O.D., Sociology, Prof. S.K. Chaturvedi, H.O.D. Political Science, Dr. M.P. Tyapgi, Principal, Shivanath Singh Shandilya College, Manchhara, Meerut and Prof. Suraksha Pal Dean Education, Meerut University. On 13.08.2006 Deputy Registrar of the University lodged FIR against Dr. Rajnikant Upadhaya who was appointed as In-charge of Agra Evaluation Centre. On 13.08.2006 second FIR was lodged by the Vice Chancellor against the Registrar of University. Said Enquiry Committee thereafter after making enquiry submitted its report on 20.08.2006 and said report proceeded to record finding to the effect that answer sheet that has been evaluated at Agra was on account of decision taken by the Vice Chancellor of the University and the Vice Chancellor of the University was also responsible for the said episode. Said enquiry report indicted the petitioner also. After the said report has been submitted, petitioner submits that Vice Chancellor lodged the FIR against the Registrar and petitioner and petitioner was arrested on 21.08.2006 and thereafter, as petitioner has been in judicial custody, petitioner was kept under suspension. Petitioner submits that meeting of the Executive Council has been shown to have taken place on 23.08.2006 and therein Disciplinary Committee has been constituted, consisting of Vice Chancellor of the University as Chairman, Mr. Masroor Ahmad and R.K. Upadhyaya as member to conduct the inquiry against the petitioner. Petitioner submits that against the resolution passed by the Executive Council dated 23.08.2006, Civil Misc. Writ Petition No.11986 of 2007 had been filed and said writ petition was dismissed on 07.03.2007 on the ground of alternative remedy. Petitioner has stated that he has been served with the copy of the charge sheet dated 6/7.03.2007 and charges were to the effect that irregularities have been committed by the petitioner in relation to evaluation of the answer sheet of the year 2006.
Petitioner claims that he has filed representation on 31.03.2007 under Section 68 of the Uttar Pradesh State Universities Act, 1973 pursuant to the order passed on 07.03.2007 and petitioner has further informed that on 31.05.2007 since proceeding had already been initiated, the petitioner submitted letter requesting for specific documents with regard to each and every charge, and thereafter he has submitted reply to the charge sheet on 23.06.2007 under protest. In the said reply, specifically and categorically issue has been raised in regard to constitution of Disciplinary Committee, as Vice Chancellor was also interested party in the entire proceeding and issue has also been raised in reference of Mr. Masroor Ahmad and Dr. R.K. Upadhaya that they were not entitled to be part of the committee as there tenure of Council had already come to an end. Petitioner has stated that he has filed two supplementary reply dated 27.06.2007.
Petitioner has stated that not only this he has also lodged FIR against the Vice Chancellor on 22.07.2007 as Circle Officer had submitted report to the S.S.P, Meerut wherein it has been mentioned that Vice Chancellor is also guilty of the irregularities committed in the evaluation of the answer sheet of the year 2006.
Petitioner has stated that on 25.09.2007 request was made before the Vice Chancellor seeking permission to summon the witnesses and also to cross-examine certain witnesses during enquiry proceedings. On 25.09.2007 another application has been moved seeking personal hearing , seeking examination and cross examination of witnesses. Petitioner has stated that without providing reasonable opportunity of hearing order of dismissal was passed on 27.10.2007 by the Executive Council. Subsequent to the same, said order was recalled by Executive Council and show cause notice was issued on 28.02.2008. Thereafter petitioner submitted his reply on 23.03.2008 therein he raised issue of malafide and bias against the Vice Chancellor of the University and also qua the genuineness of the Resolution dated 23.08.2006, but Executive Council proceeded to pass Resolution on 03.05.2008 dismissing the petitioner from service and communication was sent by the Registrar on 17.05.2008. Against the said order, petitioner preferred Civil Misc. Writ Petition No. 26426 of 2008 and said writ petition was dismissed on the ground of alternative remedy to file representation under Section 68 of the Uttar Pradesh Universities Act, 1973. Thereafter petitioner has made representation on 08.06.2008 before the Chancellor and thereafter Chancellor of the University on 19.11.2008 has rejected the same and same has impelled the petitioner to be before this Court.
To the said writ petition, counter affidavit and rejoinder affidavit have been exchanged and thereafter, serious issue has been raised that proceeding dated 23.08.2006 are manipulated proceedings and this Court also took serious note of the same vide order dated 08.05.2014 and pursuant thereto, affidavit of Prof. S.P. Ojha, Vice Chancellor of the University and A.K. Barnawal has also filed. Apart from this, Supplementary affidavit, supplementary counter affidavit and supplementary rejoinder affidavit have also been brought on record to show and substantiate that Resolution dated 23.08.2006 is manufactured one, whereas said situation has been sought to be countered by the University that aforesaid resolutions are valid and genuine one.
Apart from this, original record in reference of the proceedings undertaken by the Executive Council dated 23.08.2006, 09.09.2006 and 03.05.2008 and also Dispatch register have also been produced before this Court.
Sri. Udayan Nandan, learned counsel for the petitioner has assailed the validity of the proceedings that has been so undertaken primarily on three counts:-
(I) Order of dismissal has been passed in utter contravention and violation of principle of natural justice and reasonable opportunity of hearing has never been provided for. Fact of the matter is that at no point of time, Enquiry Officer has taken any evidence to prove the charges in question, rather contrarily burden has been shifted upon the petitioner to prove the charges against him. In view of this, procedure adopted, is violative of the principle of natural justice and entire proceeding as well as order of dismissal are liable to be quashed.
(ii) Entire proceedings are vitiated on account of the fact that there has been malice and bias against the Vice Chancellor of the University concern, who was bent upon to save himself and go out to any extent to make the petitioner scape goat.
(iii) Resolution dated 23.08.2006 is manipulated document and in order to justify the said resolution, agenda has been manufactured and enclosures have been sought to be inserted and in view of this, once such are the deficiencies in the proceeding in question, no credibility could be attached to said proceedings as such writ petition deserves to be allowed.
Sri Neeraj Tripathi, Advocate appearing on behalf of the Chancellor of the University concern has supported the proceedings undertaken by the University concern by contending that petitioner has not at all acted fairly and honestly and has in fact misused his position and has committed gross misconduct, as such proceeding initiated against the petitioner are rightful proceeding and petitioner has been given full opportunity of hearing in the disciplinary proceeding, and in view of this petitioner cannot legitimately make any complaint on this score and on the aspect of bias, it has been submitted that Vice Chancellor has to be there as Chairman of the Disciplinary Committee of the University and as per Statute 8.01, his presence could not have been excluded by any means and under doctrine of necessity, he has to be present, in view of this, bias has no role to play in the fact of the present case.
Sri. Anurag Khanna, Advocate, learned counsel for the respondent-University on the other hand contended that rightful action has been taken in the facts of the present case, and he has also tried to justify before this Court that action is rightful one and records also substantiate the same and there is no manipulation or manoeuvring of the record of Executive Council of the University.
Sri. Anoop Trivedi, learned counsel for the former Vice Chancellor, respondent no.5 and former Registrar on the other hand tried to contend before this Court that there is no short coming in the proceedings that has been so undertaken and there is no illegality in the same and whatsoever authority has been exercised, same has been bonafidely exercised.
After respective arguments have been advanced, first issue that we are adverting to in the present case is as to whether disciplinary inquiry that has been so conducted is in consonance with the principle of natural justice or not?.
Before proceeding to consider this question, we proceed to take note of the statutory provision that holds the field for undertaking disciplinary proceeding. Statute 16.06 of the first Statute of Chaudhary Charan Singh University, Meerut are as follows:-
16.06 (I) No order dismissing, removing or terminating the services of a teacher of the University on any ground mentioned in clause (1) of Statute 16.04 (except in the case of a conviction for an offence involving moral turpitude or of abolition of post), shall be passed unless a charge has been framed against the teacher and communicated to him with a statement of the grounds on which it is proposed to take action and he has been given adequate opportunity.
(I) of submitting a written statement of his defence.
(ii) of being heard in person, if he so desires; and
(iii) of calling and examining such witnesses in his defence as he may desire:
Provided that the Executive Council or an officer authorised by it to conduct the enquiry may, for sufficient reasons to be recorded in writing refuse to call any witness.
(2) The Executive Council may, at any time ordinarily within two months from the date of the Inquiry Officer's report pass a resolution dismissing or removing the teacher concerned from service or terminating his services mentioning the grounds of such dismissal, removal or termination.
(3) The resolution shall forthwith be communicated to the teacher concerned.
(4) The Executive Council may, instead of dismissing ,removing or terminating the services of the teacher, pass a resolution inflicting one or more of the lesser punishments, namely reducing the pay of the teacher for a specified period not exceeding three years, stopping increments of his salary for a specified period and depriving the teacher of his pay (but not the subsistence allowance) during the period of his suspension , if any.
Bare perusal of the provision quoted above would go to show that no order dismissing, removing or terminating the services of a teacher of the University on any ground mentioned in clause (1) of Statute 16.04, shall be passed unless a charges have been framed against the teacher and communicated to him with a statement of the grounds on which it is proposed to take action and he has been given adequate opportunity of submitting a written statement of his defence and of being heard in person, if he so desires; and calling and examining such witnesses in his defence as he may desire. Proviso has been added to the same that the Executive Council or an officer authorised by it to conduct the enquiry may, for sufficient reasons to be recorded in writing refuse to call any witness. Scheme of things provided for under Statute 16.06 ensures adequate opportunity of submitting a written statement of his defence and of being heard in person, if he so desires; and calling and examining such witnesses in his defence as he may desire. The said Statute is silent and no where provides for as to in what way and manner charges levelled have to be substantiated and at what stage said right of calling witnesses in his defence is to be exercised by the incumbent charged. Obviously as far as opportunity of submitting a written statement of his defence is concern certainly such first stage would arise at the point of time when he has been given the charge sheet and asked to submit his reply. Second stage of giving adequate opportunity i.e. of being heard in person would arise, if he so desires, at the point of time when University is proceeding to substantiate the charges by leading evidence in support of the charges and then the incumbent who chooses to be heard in person can proceed to cross-examine the witnesses etc. Stage third would arise after charges are prima facie substantiated then incumbent charged can call and examine such witnesses in his defence as he may desire.
Apex Court in the case of State of Uttaranchal and others Vs. Kharak Singh (2008) 8 SCC 236 has laid down the principles that are to be adhered to at the point of time, enquiry is to be conducted. Relevant para 15 is being extracted below:-
15.From the above decision, the following principles would emerge;
(I) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
(ii) If an officer is a witness to any of the incidents, which is the subject matter of the enquiry or if the enquiry was initiated on the report of an officer, then in all fairness he should not be the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and given an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary-punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his view, if any.
Apex Court in the case of Kumaon Mandal Vikas Nigam Ltd. Vs. Girja Shankar Pant and others 2001(1) SCC 182 has taken the view that the bare minimum requirement in disciplinary enquiry at an enquiry facts have to be proved and the person proceeded against must have an opportunity to cross examine witnesses and to give his own version or explanation about the evidence on which he is charged and to lead his defence. Apex Court scrutinised the report of the Enquiry Officer and found that though report of Enquiry Officer was lengthy but basic exercise has not been undertaken . Paragraph 21,22 of the said judgement provides for as follows:-
21.Incidentally, Hidyatullah, C.J. in Channabasappa Basappa Happali v. The State of Mysore (AIR 1972 SC 32) recorded the need of compliance of certain requirements in a departmental enquiry at an enquiry facts have to be proved and the person proceeded against must have an opportunity to cross-examine witnesses and to give his own version or explanation about the evidence on which he is charged and to lead his defence on this state of law a simple question arises in the contextual facts: Has this being complied with? The answer however on the factual score is an emphatic no.
22. The sixty-five page Report has been sent to the Managing Director of the Nigam against the Petitioner recording therein that the charges against him stand proved what is the basis? Was the Inquiry Officer justified in coming to such a conclusion on the basis of the charge-sheet only? The answer cannot possibly be in the affirmative: If the records have been considered, the immediate necessity would be to consider as to who is the person who has produced the same and the next issue could be as regards the nature of the records unfortunately there is not a whisper in the rather longish report in that regard. Where is the Presenting Officer? Where is the notice fixing the date of hearing? Where is the list of witnesses? What has happened to the defence witnesses? All these questions arise but unfortunately no answer is to be found in the rather longish Report. But if one does not have it - Can it be termed to be in consonance with the concept of justice or the same tantamounts to a total miscarriage of justice. The High Court answers it as miscarriage of justice and we do lend our concurrence therewith. The whole issue has been dealt with in such a way that it cannot but be termed to be totally devoid of any justifiable reason and in this context a decision of the Kings Bench Division in the case of Denby (William) and Sons Limited v. Minister of Health (1936 (1) K.B. 337) may be considered. Swift, J. while dealing with the administrative duties of the Minister has the following to state: I do not think that it is right to say that the Minister of Health or any other officer of the State who has to administer an Act of Parliament is a judicial officer. He is an administrative officer, carrying out the duties of an administrative office, and administering the provisions of particular Acts of Parliament. From time to time, in the course of administrative duties, he has to perform acts which require him to interfere with the rights and property of individuals, and in doing that the courts have said that he must act fairly and reasonably; not capriciously, but in accordance with the ordinary dictates of justice. The performance of those duties entails the exercise of the Ministers discretion,and I think what was said by Lord Halsbury in Sharp v. Wakefield and others (1891 A.C.173, 179) is important to consider with reference to the exercise of such discretion. He there said: Discretion means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice,not according to private opinion : Rookes case (1598 5 Rep. 99b, 100a; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.
Apex Court, in the case of State of U.P. and others Vs. Saroj Kumar Sinha 2010(2) SCC 772 has dealt with in extenso, as to what is the status of enquiry officer and as to what are the duties of enquiry officer. An enquiry officer acting in a quasi judicial authority is in the position of independent adjudicator. He is not supposed to be representative of Department/Disciplinary /Government, his functions are as follows;
27. A bare perusal of the aforesaid sub-Rule shows that when the respondent had failed to submit the explanation to the charge sheet it was incumbent upon the inquiry officer to 18 fix a date for his appearance in the inquiry. It is only in a case when the Government servant despite notice of the date fixed failed to appear that the enquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the enquiry officer to record the statement of witnesses mentioned in the charge sheet. Since the Government servant is absent, he would clearly lose the benefit of cross examination of the witnesses. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge.
28. Enquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department / disciplinary authority / Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been 19 taken into consideration to conclude that the charges have been proved against the respondents.
30. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
33. As noticed earlier in the present case not only the respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the enquiry officer failed to fix any date for conduct of the enquiry. In other words, not a single witness has been examined in support of the charges levelled against the respondent. The High Court, therefore, has rightly observed that the entire proceedings are vitiated having been conducted in complete violation of principles natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to offer an explanation against the allegations made in the charge sheet.
On these parameter inquiry that has been conducted in the present case is being examined. From the copy of the inquiry report that forms part of the record (Annexure-25 to the writ petition) dated 23.10.2007 what we find that petitioner has been in jail since 21.08.2008 to 09.02.2007 and thereafter he has been released on bail on 06.02.2007 on the orders of this Court and he came out of jail on 09.02.2007 from District Jail, Meerut and then order dated 12.02.2007 was passed asking Dr. Amar Prakash Garg that he would be attached with the office of Vice Chancellor and would appear before the Disciplinary Committee. Charge sheet in question dated 6/7.03.2007 had been submitted to him and petitioner was asked to submit his reply. Petitioner was given reminder on 05./09.04.2007 and 21.05.2007 to submit his reply and it has been mentioned in the inquiry report that said request of the Disciplinary Committee was not accepted by the petitioner, rather he was entering into unnecessarily communication and buying time Enquiry report proceeds to deal with the opportunity that has been provided to the petitioner again and again. Under the heading of the first opportunity, it has been mentioned that petitioner was required to submit his reply on 21.03.2007 alongwith proof, but he did not submit any report and to the contrary wrote a letter dated 21.03.2007 wherein he questioned the validity of meeting dated 23.08.2006 itself and all other consequential action, including the action of issuance of charge sheet and also raised unwarranted issues. Second opportunity has been described by mentioning that letter of petitioner dated 11.03.2007 has been responded vide letter dated 09.04.2007 of the University and he was asked to submit his reply by 20.04.2007 but no reply came forward. Third opportunity has been provided for by writing letter dated 21.05.2007 and petitioner was asked to submit reply by 31.05.2007. Petitioner thereafter, submitted his belated reply on 23.06.2007 under protest and therein he once again imputed motive to the Vice Chancellor and also questioned the validity of proceedings dated 23.082006 and 2.9.2006 of the Executive Council. At this juncture of enquiry, note has been made in the enquiry report, that in this manner, adequate opportunity has been provided to petitioner of submitting his written defence. Fourth opportunity that has been provided for is that on 24.09.2007 documents that has been asked for, had been supplied and then opportunity was given to the petitioner to put forth his point of view and 29.09.2007 was the date fixed and he was also asked to produce the list of witnesses whom he intended to produce in his defence. Petitioner pursuant to the letter dated 24.09.2007 did not respond in its correct perspective and raised counter allegations and thereafter, it is reflected that all these charges have been found to be substantiated on the basis of purported reply submitted by petitioner.
The twenty five page report has been send by the Disciplinary Committee to the Executive Council for further follow up action, after recording finding to the effect that charges against him stands proved. What we find from the record that after the first stage was over i.e. of submitting written statement in defence, the second stage of proving the charges has been given a complete goodbye. Once Disciplinary Committee has framed the charges against the petitioner and petitioner has already entered upon his defence and denied the said charges, then it was incumbent and obligatory on the part of the disciplinary authority to take steps first to lead evidence against the petitioner, who had been charged and provide opportunity of hearing to cross-examine the witnesses of the University and only when, the charge in question stood substantiated, then thereafter, petitioner ought to have been given opportunity to lead evidence about evidence that that has been led against him i.e. the third stage. In the present case, most surprising feature of the inquiry report is that, at no point of time, Disciplinary Committee has ever proceeded to take steps to lead evidence against the petitioner to substantiate the charges, and it appears that Disciplinary Committee has proceeded with the presumption that charges are proved and now it is for the petitioner to prove that the charges are unsustainable. Once Disciplinary Committee has undertaken disciplinary proceeding, then burden lies upon the employer/department/University to take steps first to lead evidence against the charged incumbent and give opportunity to him to cross-examine witnesses of employer and in case entire charge is based on documents and there are no witness of the fact, then said document should be got proved from the incumbents producing them and then, fixing responsibility. Peculiar feature of the case is that Disciplinary Committee has though in its wisdom that petitioner has been provided repeated opportunity of hearing and petitioner has appeared before the Committee and charges stood substantiated. The way and manner, in which present inquiry has been conducted, cannot be approved of for the simple reason that an incumbent charged, cannot be asked to appear before the inquiry officer to lead evidence for rebuttal that he is not guilty. Firstly employer/department/University will have to take steps first to lead the evidence in support of the charges and at the said point of time opportunity to cross-examination has to be provided. After such stage is over and charges are prima facie substantiated, then charged incumbent is to be asked to lead evidence in his defence. In the present case, such exercise has not at all been undertaken. Not only this, the most surprising feature of Enquiry report is that there is no Presenting Officer on behalf of the University and the Disciplinary Committee on its own, on the basis of reply submitted by petitioner have drawn presumptions and have concluded that petitioner is guilty of charges. Even if there has been non-co-operation on behalf of the petitioner, the charges could have been brought home only by leading evidence in support of the charges and not in the manner as it has been done in the present case. Enquiry in the fact of case is vitiated on the face of it and same has resulted in miscarriage of justice. Disciplinary Committee on the face of the enquiry report has acted as a prospector as well as judge. Accordingly once inquiry report on its face value is vitiated then resultant exercise undertaken by the Executive Council and Chancellor based on the said enquiry report, cannot be approved of by any means and dismissal order in all eventuality has to go.
Once inquiry has been held to be vitiated, issue is that should we go into any other question that has been raised before us i.e. issue of bias and issue of validity of proceeding dated 23.08.2006.
Learned Counsel for the parties have submitted that this Court should give its opinion on the issue of bias and validity of the meeting also. Before us on these points also, parties have addressed and accordingly we proceed to consider the issue of bias and issue of validity of the meeting also.
In the present case, issue of bias has been raised by contending that Vice Chancellor right from beginning was interested in protecting himself and under the scheme of thing provided for under Statute 8.01, Executive Council ought to have constituted another committee to look into the matter and in the present case Vice Chancellor ought to have kept himself away from the proceeding by recusing himself, even if he happens to be there as Chairman of the Disciplinary Committee and as the Chairperson of the Executive Council. Said claim has been resisted by submitting that Vice Chancellor holds unique position under U.P. State Universities Act 1973 and the First Statutes of Chaudhary Charan Singh University, Meerut and without the Vice Chancellor there can be no Disciplinary Committee and there can be no Chairman of Executive Council, and as per necessity he has to be there and has to take decision.
In order to appreciate respective arguments, Statute 8.01 is being extracted below:-
8.01. (1) The Executive Council shall constitute, for such term as it things fit, a Disciplinary Committee in the University which shall consist of the Vice Chancellor and two other persons nominated by it.
Provided that if the Executive Council considers it expedient, it may constitute more than one such Committees to consider different cases or classes of cases.
(2) No teacher against whom any case involving disciplinary action is pending shall serve as a member of the Disciplinary Committee dealing with the case.
(3) The Executive Counsel may at any stage transfer any case from one Disciplinary Committee to another Disciplinary Committee.
Perusal of Statute 8.01 would go show that Executive Council is empowered to constitute for such term as it thinks fit, a Disciplinary Committee in the University which shall consist of the Vice Chancellor and two other persons nominated by it. Proviso of clause (1) of Statue provides that if the Executive Council considers it expedient, it may constitute more than one such Committees to consider different cases or classes of cases. Clause-3 provides that Executive Council may at any stage transfer any case from one Disciplinary Committee to another Disciplinary Committee. Scheme of things provided under Statute 8.01 thus confers Executive Council the authority to constitute one Disciplinary Committee or more than one Disciplinary Committee and Disciplinary committee has to consist of Vice Chancellor.
The centripodal issues that emerges for consideration are, whether the constitution of Disciplinary Committee with the Vice Chancellor and two members was vitiated as there was prima facie material available on record of Vice Chancellor having interest in the matter thus there being perception of likelihood of bias in the decision making process and once Vice Chancellor was the Chairman of Disciplinary Committee, and had submitted report against the petitioner, then his chairing the meeting and active participation in the meeting of Executive Council vitiated the proceedings.
The fundamental principles of natural justice are ingrained in the decision making process to prevent miscarriage of justice. It is also fundamental facet of principle of natural justice that the decision maker should be free from bias i.e. conscious or unconscious prejudice to either of the parties. Bias is an insegrable facet of concept of natural justice as a genus.
Apex Court , in the case of Union of India Vs. Sanjai Jethi 2013 (16) SCC 116 has culled out the principle when the issue of bias is raised and the basis on which such issues are to be answered. Same are as follows.
37.At this juncture, we may refer with profit to Halsbury's Laws of English, 4th Edn. Vol. 2. para 551, where it has been observed;
"551. Want of impartiality or bias; fraud. The test for bias is whether a reasonable intelligent man, fully apprised oif all the circumstances, would feel a serious apprehension of bias"
38.In Transport Deptt. Vvs. Munuswamy Mudaliar, while dealing with the contept of bias as a part of natural justice, the Court observed that;
12..... A predisposition to decide for or against one party, without proper regard to the true merits of the dispute is bias. There must be reasonable apprehension of that predisposition. The reasonable apprehension must be based on cogent materials".
51. The principle that can be culled out from the number of authorities fundamentally is that the question of bias would arise depending on the facts and circumstances of the case. It cannot be an imaginary one or come into existence by an individual's perception based on figment of imagination. While dealing with the plea of bias advanced by the delinquent officer or an accused a court or tribunal is required to adopt a rational approach keeping in view the basic concept of legitimacy of interdiction in such matters, for the challenge of bias, when sustained, makes the whole proceeding or order a nullity, the same being coaram non judice. One has to keep oneself alive to the relevant aspects while accepting the plea of bias. It is to be kept in mind that what is relevant is actually the reasonableness of the apprehension in this regard in the mind of such a party or an impression would go that the decision is dented and affected by bias. To adjudge the at tractability of plea of bias a tribunal or a court is required to adopt a deliberative and logical thinking based on the acceptable touchstone and parameters for testing such a plea and not to be guided or moved by emotions or for that matter by one's individual perception or misguided institution.
To the said principle enumerated above, there is an exception and the said exception is that where doctrine of necessity is applicable compliance with the principle of natural justice would be excluded.
Doctrine of necessity is applicable which is an exception to the rule of ' memo judex in causa sua'. An adjudicator who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person competent or authorised to adjudicate of quorum could not be formed without him or if no other competent Tribunal could be constituted. In such category of cases principle of natural justice would have to give way to necessity for otherwise there would be no means for deciding the matter and the machinery of justice or administration would break down. See J. Mohapatra and Co. Vs. State of Orissa AIR 1987 SC 454.
Apex Court in the case of State of U.P. Vs. Sheo Shankar Lal Srivastava 2006(3) SCC 276 has held as follows.
13. It is true that the principle of natural justice is based on two pillars : (I) nobody shall be condemned without hearing; and (ii) nobody shall be a judge in his own cause.
14. It is, however, well known that the principles of natural justice can be excluded by a statute. It can also be waived.
15.In a case where doctrine of necessity is applicable compliance of the principles of natural justice would be excluded.
16.Referring to the doctrine of necessity, Sri William Wade in his Administrative Law stated.
"But there are many cases where no substitution is possible, since no one else is empowered to act. National justice then has to give way to necessary; for otherwise there is no means of deciding and the machinery of justice of administration will break down.
"In administrative cases the same exigency may arise. Where the statute empowers a particular minister or official to act, he will usually be the one and only person who can do so. There is then no way of escaping the responsibility, even if he is personally interested. Transfer of responsibility is, indeed, a recognised type of ultra vires. In one case it was unsuccessfully argued that the only minister competent to confirm a compulsory purchase order for land for an airport had disqualified himself by showing bias and that the local authority could only apply for a local Act of Parliament.
Apex Court in the case of Election Commission of India and another Vs. Dr. Subramaniam Swamy and another (1996) (4) SCC 104 was called upon to decide limited question regarding participation of Chief Election Commissioner in decision making having regard to the allegation of bias against him. IN the said case submission has been that under the scheme of Article 324 of Constitution it must comprise Chief Election Commissioner as Chairman, in other words there cannot be properly constituted Election Commission, without its Chairman and hence his participation in the decision making cannot be excused and must be permitted on the doctrine of necessity. Apex Court has answered the said issue as follows.
15. The next question then is if the Chief Election Commissioner, for reason of possible bias, is disqualified from expressing an opinion, how should the Election Commission conduct itself? As appointed out earlier Shri Sanghi, the learned counsel for the appellant, has very frankly and with his usual fairness stated that the Chief Election Commissioner preferred this appeal only because he genuinely believed that the scheme of Article 324 did not conceive of a decision by majority, but if the Court comes to the conclusion that a decision can be reached without the Chief Election Commissioner participating in decision-making in the special circumstances of the case, the latter is not at all keen or anxious to hear and adjudicate upon the matter at issue before the Election Commission. We are quite conscious of the high office the Chief Election Commissioner occupies. Ordinarily we would be loath to uphold the submission of bias but having regard to the wide ramification the opinion of the Election Commissioner would have on the future of Ms. J. Jayalalitha, we think that the opinion, whatever it be, should not be vulnerable. The participation of the Chief Election Commissioner in the backdrop of the findings recorded by the learned Single Judge as well as the Division Bench of the High Court would certainly permit an argument of prejudice, should the opinion be adverse to Ms. J. Jayalalitha. Therefore, apart from the legal aspect, even prudence demands that the Chief Election Commissioner should recuse himself from expressing any opinion in the matter. However, the situation is not so simple, it is indeed complex, in that, what would happen if the two Election Commissioners do not agree and there is a conflict of opinion between them? That would lead to a stalemate situation and the Governor would find it difficult to take a decision based on any such opinion. In such a situation, can the doctrine of necessity be invoked in favour of the Chief Election Commissioner?
16 We must have a clear conception of the doctrine. It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the authorise to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit therefrom. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If all the Judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play. If the choice is between allowing biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to promote decision-making. In the present case also if the two Election Commissioners are able to reach a unanimous decision, there is no need for the Chief. Election Commissioner to participate, if not the doctrine of necessity may have to be he invoked.
17. We think that is the only alternative in such a situation. We are, therefore. of the opinion that the proper course to follow is that the Chief Election Commissioner should call a meeting of the selection Commission to adjudicate on the issue of disqualification of Ms. J.Jayalalitha on the groands alleged by Dr.Swamy. After calling the meeting he should act as the Chairman but then he may recuse himself by announcing that he would not participate in the formation of opinion. If the two Election Commissioners reach a unanimous opinion, the Chief Election Commissioner will have the opinion communicated to the Governor. If the two Election Commissioners do not reach a unanimous decision in the Matter of expressing their opinion on the issue referred to the Election Commission, it would be necessary for the Chief Election Commissioner to express his opinion on the doctrine of necessity. We think that in the special circumstances of this case this course of action would he the most appropriate one to follow because if the two Election Commissioners do not agree, we have no doubt that the doctrine of necessity would compel the Chief Election Commissioner to express his views so that the majority opinion could be communicated to the Governor to enable him to take a decision in accordance therewith as required by Article 192(1) of the Constitution.
Apex Court in the case of Institute of Chartred Accountants of India Vs. L.K. Ratna and others 1986 (4) SCC 537, wherein subordinate body comprising members of superior body took decision and submitted report before the superior body took the view that then members constituting the subordinate body are disqualified from participating in deliberations of the superior body while taking decision. Apex Court held as follows.
24.There can be no dispute that the function of the Disciplinary Committee of holding an enquiry under s. 21(1) of the Act into the conduct of the member calls for a recording of evidence by the Committee. Its duty does not end there. It must consider the evidence and come to its conclusions. As s. 21(2) of the Act plainly says, it must report "the result of its enquiry" to the Council. In the absence of express or implied statutory intendment to the contrary, it appears to us that the members of such a Committee would be disqualified from participating in the deliberations of the Council when it proceeds to consider the report in order to find whether the member is guilty of misconduct. For that alone would be consistent with the fundamental principle that justice must not only be done but must also appear to be done. The nature of the function discharged by the Council in rendering its finding is quasi judicial, and we are reminded of the observations of this Court as far back as Manek Lal v. Dr. Prem Chand, [1957] SCR 575.
"It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done."
25. We must remember that the President and the Vice- President of the Council and 3 members of the Council compose the Disciplinary Committee. The President and the Vice-President do certainly hold significant status in the meetings of the Council. A member whose conduct has been the subject of enquiry by the Disciplinary Committee ending in conclusions adverse to him can legitimately entertain an apprehension that the President and the Vice-President of the Council and the other members of the Disciplinary Committee would maintain the opinion expressed by them in their report and would press for the acceptance of the report by the Council. To the member whose conduct has been investigated by the Committee, the possibility of the Council disagreeing with the report in the presence of the President and the Vice-President and the other members of the Committee would so rather remote. His fears would be aggravated by the circumstance that the President would preside over the meeting of the Council, and would thus be in a position to control and possibly dominate the proceedings during the meeting. We do not doubt that the President and the Vice-President, and also the three other members of the Disciplinary Committee, should find it possible to act objectively during the decision-making process of the Council. But to the member accused of misconduct, the danger of partisan consideration being accorded to the report would seem very real indeed.
26 The objection on the ground of bias would have been excluded if the statute had expressed itself to the contrary. But nowhere do we find in the Act any evidence to establish such exclusion. It is true that by virtue of s. 17(3) it is obligatory that the Disciplinary Committee should be composed of the President and the Vice-President of the Council and three other members of the Council. While that is so, there is nothing in the Act to suggest that the meetings of the council must always be presided over by the President or the Vice-President, and that no meeting can be held in their absence. We find that Regulation 140 framed under the Act contemplates that the Council may meet in the absence of the President and the Vice-President, and provides that in their absence a member elected from among the members who are present should preside. There is an element of flexibility which makes it possible for the Council to consider the report of the Disciplinary Committee without the participation of the members of the Committee. Because of the 'flexibility' potential in the scheme, the doctrine of necessity, to which reference has been made on behalf of the Institute, cannot come in to play. We must admit that it does appear anomalous that the President and the Vice-President of the Council should be disabled from participating in a meeting of the 1070 Council because they are bound by statute to function as the Chairman and the Vice-Chairman of the Disciplinary Committee, and were it not for the factor of flexibility which we see in the scheme, we would have been compelled to the conclusion that the Act implies an exclusion of the doctrine of bias. But as we have observed, no such exclusion is implied by the scheme of the Act or its policy. We suggest the removal of the anomaly by suitable legislative amendment of s. 17(3) of the Act so that the constitution of the Disciplinary Committee should not necessarily include the President and the Vice-President of the Council. It is only appropriate that due recognition should be given to the fundamental principles and accepted axioms of law.
Apex Court, in the case Cantonment Board Executive Officer Vs. Vijay D. Wani AIR 2008 SC 2953, after following the judgement in the case of Institute of Chartered Accountants of India (supra), has reiterated the same view that once three members who conducted disciplinary enquiry were also members of Cantonment Board and once their report is to be considered by Cantonment Board, they would be interested to see that report is accepted. Participation of said members in decision making process for finding delinquent guilty and ordering his dismissal from service has been described as bias which is apparent and real.
In the present case, factual situation that has so emerged that there has been evaluation scam and same has been high lighted in the print media as well as electronic media and this much is also reflected that after the said scam in question has been hight lighted in media, then District Magistrate concerned proceeded to constitute Fact Finding Committee on 14.08. 2006 and said Fact Finding Committee comprised of three nominees of the District Magistrate namely Additional District Magistrate (City), Additional Higher Education Officer, Meerut and Additional City Magistrate and four nominee of the Vice Chancellor namely Prof. J.K Pundir, H.O.D., Sociology, Prof. S.K. Chaturvedi, H.O.D. Political Science, Dr. M.P. Tyagi, Principal, Shivanath Singh Shandilya College, Manchhara, Meerut and Prof. Suraksha Pal Dean Education, Meerut University. This particular Enquiry Committee submitted its report to District Magistrate on 20.08.2006 and said report prima facie reflects complicity of the Vice Chancellor and finding has also been recorded mentioning therein that decision to get evaluation of answer sheet of the year 2006 at Agra was of the Vice Chancellor of the University and Vice Chancellor prima facie responsible for the entire episode. On 21.8.2006 FIR was lodged by the Vice Chancellor against the petitioner and Registrar, bearing Case Crime No. 270 of 2006 under Sections 420,477A of I.P.C. mentioning therein that there is total complicity of Registrar. B.L. Arya and alongwith him petitioner is also involved and evidence to the said effect has been produced before him, and both these persons orally and in writing have made recommendation to him wherein he has accorded formal approval of Centres and Evaluators. Thus this much is clear that there was material that prima facie reflected complicity of the Vice Chancellor in the entire episode and the Vice Chancellor has tried to make his position clear by lodging FIR against the Registrar and petitioner, and by mentioning that approval accorded by him qua Centres and Evaluators was formal. The Vice Chancellor has been feeling the heat of the episode and has been trying to save his position and this is also fully fortified from the fact, that on 23.08.2006 a resolution has been passed by Executive Council expressing full faith in the Vice Chancellor. Not only this on 23.08.2006 another resolution has been shown to have been passed, wherein an enquiry committed headed by retired High Court Judge was to be constituted to find out the actual role of each player in the said scam but till today no further follow up action has been taken. Once such has been the backdrop of the case that Nodal Center at Agra for evaluation of answer book was proposed by Registrar on the request of Dr. Rajni Kant Upadhaya and same has been approved by the Vice Chancellor on the same day, and in this background petitioner in his turn has been requesting from the very beginning that Vice Chancellor of the University should keep himself away from the disciplinary proceeding as with him in the driver seat, petitioner would not get fair justice, in the facts of case apprehension on the part of the petitioner cannot be said to be unfounded and the Vice Chancellor cannot be said to be free from bias.
It is true under the Statute 8.01 that has been quoted above, it does provide that Vice Chancellor shall be there in the Disciplinary Committee, but it is also equally true that the concept of constitution of multiple disciplinary committee is also there alongwith authority of transfer but Vice Chancellor has to there as Chairman. Doctrine of necessity comes into play when there is no other authority to decide and when no substitution is possible and there is only one person to act and no one else is empowered to act. Once Vice Chancellor has to be there as one of the member of the disciplinary committee and there are two other members then the Vice Chancellor after convening the meeting of Disciplinary Committee as its Chairperson ought to have recused himself and further refrained from participating in disciplinary proceedings. Vice Chancellor ought to have kept him away from the proceeding, once qua his conduct allegations had come forward and once he had already expressed his mind by proceeding to lodge FIR against the petitioner.
Had Vice Chancellor acted consciously and not sticked to the chair of Chairman Disciplinary Committee, in-spite of adverse report against him, such a situation certainly would have advanced the cause of justice and the two other member could have very well concluded the enquiry and said proceedings were clearly saved by the provisions of Section 66 of U.P. State Universities Act. Doctrine of necessity is not at all attracted here as here the two other members were there to conduct disciplinary proceedings and quorum without the Vice Chancellor was complete and Vice Chancellor in the facts of case should have convened the meeting but should have kept himself away from the Disciplinary Proceedings. Participation by the Vice Chancellor in disciplinary proceeding has clearly vitiated the disciplinary proceeding.
There is one more angle to it. Disciplinary Committee, headed by Vice Chancellor submitted its report and the said report has been considered in the meeting of Executive Council headed by the Vice Chancellor. Once report has been submitted by the Vice Chancellor as Chairman of Disciplinary Committee giving his opinion by holding petitioner guilty of the charges, then it may be true that he is the Chairman of the Executive Council, and necessarily has to be in chair but at the point of time when such matter has been taken up, he should have withdrawn himself from the Chair of Chairman Executive Council and this possibility cannot be ruled out that the incumbent, who has submitted his report would try to influence the proceedings and would endeavour that his report be accepted. Viewed from this point of view also the decision of Executive Council dismissing the services of petitioner is vitiated.
In the present case much emphasis has been placed on the fact that proceeding dated 23.08.2006 are manufactured proceeding. Before us, original record have also been produced and the way and manner in which records are maintained by the University, is certainly a matter of concern as records are maintained on loose sheets and thus giving room and opportunity of manipulation and manoeuvring.
This Court on 8.5.2014 took serious note of the matter and asked Sri S.P. Ojha and Sri A.R. Barnwal to file their affidavits, and pursuant thereto their affidavit has come on record. As far as meeting of Executive Council dated 23.08.2006 is concerned, certainly meeting has taken place, but the issue that is being raised before us is that on 23.08.2006 at no point of time any resolution was passed for constitution of Disciplinary Committee for taking action against the petitioner, and large scale manipulation and manoeuvring has been made in the records. University itself is responsible in the present case for giving such an impression, as when petitioner asked for copy of agenda initially then the University informed the petitioner that there is no such agenda available on the record of the University and thereafter agenda has surfaced on record, showing therein agenda no.1 as consideration of report of Examination Committee dated 22.08.2006 and agenda no.2 to consider the matter of petitioner and Dr. B.L. Arya and to constitute Disciplinary Committee. We have failed to convince ourself, when we see the resolution dated 23.08.2006 as to whether it has been faithfully recorded or not, as Resolution No. 1,2,3 have been transcribed in Hindi whereas Resolution No. 4 to 9 have been transcribed in English. Before us Resolution dated 9.9.2006 and 5.3.2008 passed by Executive Council has been produced, but therein there is no such half Hindi/ half English recording. On record there are deliberations dated 23.08.2006 and such deliberations on its face value are at variance with each other and the agenda item no.2 has been shown in a big way as even statutory provisions have been quoted therein and at the point of time deliberation, page 33 of Supplementary affidavit shows that a Committee has been constituted. Said discussion has been shown at the bottom of page 33 of supplementary affidavit and there is no mention of petitioner being under suspension. Sri. S.P. Ojha in his affidavit has mentioned that after aforesaid meeting press conference was held, and on next day i.e. 24.8.2006, the said meeting and resolution passed therein were, duly published in news paper "Danik Jagaran". We have perused the said press report also, and the said news paper report talks of every other item, but does not talk of constitution of Disciplinary Committee and of suspension. Much emphasis has been placed that said minutes have been confirmed on 9.9.2006. Earlier entire records of meting dated 9.9.2006 has been misplaced, the University itself lodged FIR and then all of a sudden records have emerged on the scene. We in exercise of our authority under Article 226 cannot substitute ourself as Enquiry Officer and come to a definitive conclusion that resolution dated 23.08.2006 has been manipulated and certainly a fact finding enquiry committee is required for the said purpose but on prima facie basis element of manipulation cannot be ruled out. As of now on the scene all major players who were active at the said point of time are not there, and accordingly we leave it open to the Vice Chancellor to address the issue through Executive Council, the principle executive body of the University, so that such incidents dont recur and the purity of examinations is maintained and the Degrees, Diplomas and other academic distinctions be not treated farce in the eyes of general public. University should learn lesson from this entire episode and large scale reformatory measures be undertaken to improve the system of education keeping in view the duties that has been assigned under Section 7 of U.P. State Universities Act.
Consequently, in the fact of the present case, orders dated 03.05.2008 passed by the Executive Council of Chaudhary Charan Singh University, Meerut as communicated by the Registrar vide his order dated 17.05.2008 informing the petitioner of the order of punishment of dismissal from service passed against him as well as order dated 18.11.2008 passed by the Chancellor of University are hereby quashed and set aside.
Issue is that there has been scam in the evaluation of answer sheet of examination 2006, and it is duty of the University to see that guilty person should not go unpunished, we ask the Executive Council of University to take fresh decision as to whether enquiry is required against the petitioner or not and in case inquiry is required, then University is free to initiate proceeding and conclude the same in accordance with law, preferably within period of next four months from the date or production of certified copy of this order. In case Executive Council, resolves not to hold enquiry against the petitioner within the time frame provided for, then petitioner be reinstated with consequential benefits.
With these observations/directions, present writ petition is allowed.
Order Date :- 06.05.2015 T.S.