THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on 04.08.2009
Judgment delivered on: 11.09.2009
+ WP (C) 1439/1996
DR. S.C. BHATIA ... Petitioner
- Versus -
UNIVERSITY OF DELHI AND ANOTHER ... Respondents
Advocates who appeared in this case:-For the Petitioner : Mr Abhinav Vashisht with Ms Harshita Priyanka and
Mr Raman Kumar
For the Respondents : Ms Beenashaw Soni
CORAM:-
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE VEENA BIRBAL
1. Whether Reporters of local papers may be allowed
to see the judgment ? YES
2. To be referred to the Reporter or not ? YES
3. Whether the judgment should be reported in Digest ? YES
BADAR DURREZ AHMED, J
1. Although several prayers had been made in this writ petition, the learned counsel for the petitioner, at the time of hearing of this writ petition, limited the scope thereof to prayers (I) and (IV). The learned counsel for the petitioner, however, submitted that this would be subject to his rights and contentions in the appeal (RFA No. 562/2005) which has been filed on behalf of the Delhi University against the judgment and decree dated WP(C) 1439/96 Page No. 1 of 9 16.05.2005 passed by a learned District Judge in the petitioner's suit No.151/1995.
2. Prayer (I) of the writ petition seeks the quashing of the show cause notice dated 27.03.1996, whereby the petitioner has been called upon to show cause as to why his services be not terminated. Prayer (IV) flows out of prayer (I) inasmuch as the petitioner is seeking a writ, direction or order restraining the respondent University from, in any manner, terminating the services of the petitioner.
3. The main ground urged by the learned counsel for the petitioner is that the impugned show cause notice dated 27.03.1996 is liable to be set aside because the petitioner had already been given the punishment of demoting him to the lower rank of a Reader by virtue of the Office Memorandum dated 15/16.10.1994. Consequently, the impugned show cause notice and the proceedings pursuant thereto would be in the nature of a review for which there is no provision either under the Delhi University Act, 1922 or the Statutes and Ordinances made thereunder. It is the contention of the learned counsel for the petitioner that the power of review has to be expressly given by a statute and, if there is no such power, it is well-settled, that quasi-judicial authorities do not have any inherent power of review. WP(C) 1439/96 Page No. 2 of 9
4. On the other hand, the learned counsel for the respondent University has taken the plea that what is sought to be done by the Executive Council of the University through issuance of the impugned show cause notice is not to undertake a review as it is normally understood, but only to correct a wrong committed by it under a misconception. In other words, what the University is contemplating in doing is merely to recall an order which has been passed mistakenly. According to the learned counsel for the University, the mistake occurred in imposing the penalty on the petitioner after he had been found guilty of gross misconduct. There was confusion as to whether the imposition of penalty of termination of service required a simple majority or a two-thirds majority. Under the impression that the termination of service would require a two-thirds majority, the services of the petitioner were not terminated, but he was given the lesser penalty of demotion to the lower rank of a Reader. According to the learned counsel for the University, this was an error and it was pointed out to the University by the D.O. letter dated 19.02.1996 received from the Secretary, Ministry of Human Resource Development. Thus, according to the learned counsel for the University, there was nothing wrong in the issuance of the show cause notice dated 27.03.1996 and the same ought not to be quashed by this court and further proceedings pursuant to the said notice be permitted.
5. The facts leading upto the present petition are that an inquiry was conducted in respect of allegations against the petitioner. The result of the inquiry was that the petitioner was found guilty of misconduct. Subsequent WP(C) 1439/96 Page No. 3 of 9 thereto, a show cause notice dated 17.08.1994 was issued to the petitioner in connection with the proposed decision of the Executive Council vide its resolution dated 13.08.1994 to impose the penalty of demoting the petitioner to the lower rank of Reader and rendering him ineligible for the rest of his service with the university from holding any administrative post or position. In response to the said show cause notice dated 17.08.1994, the petitioner submitted his reply dated 02.09.1994. The same was considered by the Executive Council in its meeting held on 14.09.1994 and 15.09.1994. The Executive Council came to the conclusion that the petitioner's reply / explanation did not merit a lenient view in the circumstances of the case and, accordingly, in exercise of powers vested in the Executive Council, it decided that the petitioner be demoted to the lower rank of Reader and be rendered ineligible for the rest of his service from holding any administrative post or position. The petitioner was informed of this decision through the said Office Memo dated 15/16.10.1994.
6. The petitioner, being aggrieved by the report, which held him guilty for misconduct and by the penalty order passed by the University, filed a suit (Suit No.151/1995) on 17.01.1995. As mentioned above, the said suit has ultimately been decreed in the petitioner's favour by the learned Additional District Judge on 16.05.2005 and against which the University has filed an appeal before this court being RFA No.562/2005, which is pending.
WP(C) 1439/96 Page No. 4 of 9
7. It appears that some representations were received by the Ministry of Human Resource Development, Government of India seeking enhancement of the penalty imposed on the petitioner. Based thereupon, the Secretary, Ministry of Human Resource Development, sent the said letter dated 19.02.1996 to the Vice-Chancellor, University of Delhi with the request that the decision with regard to penalty be reviewed. The reasoning adopted in the letter dated 19.02.1996 was that when the Executive Council imposed the punishment of demotion in rank, it perhaps did so under the misconception that for the purposes of termination of service, a two-thirds majority was necessary. As per the contents of the letter dated 19.02.1996, it appears that the penalty of termination of service did not find support of two-thirds of the members of the Council, but did have the support of a majority of the members. As per the said letter dated 19.02.1996, the interpretation placed on the relevant provisions was that a two-thirds majority was not necessary and, if a simple majority of the members of the Executive Council felt that termination of the service of the petitioner was the adequate punishment, then it could have been so imposed. The view taken was that the requirement of the two-thirds majority was not applicable to the case of termination of service on the ground of misconduct. The Secretary, Ministry of Human Resource Development wondered whether this position had been known to the members of the Executive Council and it is on the basis of this that a request was made for reviewing the decision with regard to the appropriate punishment to be given to the petitioner. WP(C) 1439/96 Page No. 5 of 9
8. Thereafter, a meeting of the Executive Committee of the University was held on 19.03.1996, which considered the said D.O. letter dated 19.02.1996 received from the Secretary, Ministry of Human Resource Development. It appears that after detailed discussion, the Executive Council resolved that the services of the petitioner be terminated as per the provisions of Clause 6 (Revised Form of Agreement of Service of University Teachers) of Annexure to Ordinance XI and that a show cause notice to this effect be issued to the petitioner. Thereupon, the impugned show cause notice dated 27.03.1996 has been issued to the petitioner asking him to show cause as to why his services in terms of the said decision of the Executive Council taken in its meeting held on 19.03.1996 be not terminated as per the provisions of clause 6 (Revised Form of Agreement of Service of University Teachers) (Annexure to Ordinance XI). The petitioner sent in a reply to the impugned show cause notice on 10.04.1996. However, since according to the petitioner, this raised a legal issue as to whether the Executive Council had the power to review its earlier decision, the petitioner was constrained to file the present writ petition. As indicated above, several reliefs were sought in the writ petition, but the same have been limited to prayers (I) and (IV), which, essentially, deal with the impugned show cause notice dated 27.03.1996 and the proposed termination of service of the petitioner.
9. It is an admitted position that there is no power given to the Executive Council to review its decisions with regard to punishment / penalty. There WP(C) 1439/96 Page No. 6 of 9 is no such provision either in the said Act or the Statutes or the Ordinances made thereunder. It is also clear that the Executive Council does not act administratively, but acts quasi-judicially in considering the quantum of penalty / punishment to be meted out in cases of misconduct. The entire process of natural justice is required to be followed before the penalty is imposed. A show cause notice is issued. The reply, if any, is considered and it is only thereafter that the appropriate penalty is decided upon. These are beyond the realm of the pure administrative actions or ministerial functions. The Executive Council clearly functions as a quasi-judicial body while deciding upon the appropriate penalty to be imposed. Consequently, the decision taken by the Executive Council as communicated through the Office Memo dated 15/16.10.1994 was a quasi-judicial decision. That being the case, it cannot be recalled or reviewed unless and until there is a clear provision for such recall / review. The decision cited by the learned counsel for the petitioner in the case of Dr (Smt.) Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and Others: 1987 (4) SCC 525 is applicable in the present case. The Supreme Court, in Dr (Smt.) Kuntesh Gupta (supra) held:-
"It is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice-Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasi-judicial authority. It is not disputed that the provisions of the U.P. State Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the Vice- Chancellor. In the circumstances, it must be held that the Vice- Chancellor acted wholly without jurisdiction in reviewing her order dated January 24, 1987 by her order dated March 7, 1987.WP(C) 1439/96 Page No. 7 of 9
The said order of the Vice-Chancellor dated March 7, 1987 was a nullity."
10. In view of the settled position in law, since there is no power of review given to the Executive Council in respect of the decisions taken pertaining to imposition of penalty / punishment, the penalty of demotion already awarded to the petitioner cannot be reopened. We may also make it clear that it is not at all necessary that in all cases of misconduct, the only punishment is termination of service. It is upto the Executive Council to award a penalty / punishment which, in an extreme case, may result in the termination of service. There is no way of establishing that the Executive Council, when it decided to impose the penalty of demoting the petitioner to a lower rank of Reader, did not consider all the pros and cones. The arguments of the learned counsel for the respondent based upon an interpretation of Clauses 6 and 7 of the Revised Form of Agreement of Service of University Teachers as annexed to Ordinance XI based upon the D.O. letter dated 19.02.1996 are of no consequence inasmuch as the Executive Council does not have the power to review or recall its earlier resolution whereby the penalty of demotion was imposed upon the petitioner.
11. Thus, the writ petition succeeds insofar as prayers (I) and (IV) are concerned. The show cause notice dated 27.03.1996 is quashed. The necessary corollary of this would be that the University cannot, now, terminate the service of the petitioner. It is once again made clear that the WP(C) 1439/96 Page No. 8 of 9 petitioner's pleas have been limited to prayers (I) and (IV) of the writ petition and the fact that he has not pressed the other prayers are without prejudice to his rights and contentions in the pending appeal being RFA No.562/2005.
The writ petition is allowed to the aforesaid extent. The parties shall be responsible for their respective costs.
BADAR DURREZ AHMED, J VEENA BIRBAL, J September 11, 2009 dutt WP(C) 1439/96 Page No. 9 of 9