THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
I.A.NO.3 OF 2022 AND I.A.NO.4 OF 2022
IN
WRIT PETITION NO.14931 OF 2022
AND
WRIT PETITION NO.14931 OF 2022
COMMON ORDER
In this Writ Petition, the petitioner is seeking a Writ of Mandamus
declaring the order in proceedings No.EFLU/Admn./F.No.1907/
2022/847 dt.07.03.2022 issued by the 4th respondent as illegal, arbitrary
and in gross violation of principles of natural justice and consequently to set aside the same and to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.
2. Brief facts leading to the filing of the present Writ Petition are that the petitioner was appointed as a Reader vide proceedings dt.25.02.2009 by the 4th respondent University and he is discharging his duties as such since then. It is submitted that vide proceedings dt.24.07.2015, the petitioner was promoted as a Professor and has been discharging his duties as such. The petitioner has also worked in different capacities on administrative side such as Coordinator, Cell for W.P.No.14931 of 2022 2 disabled, Nodal Officer for Students' Grievance Redressal Portal, Protector of the University Dean (Foreign Students) and also as a Chief Vigilance Officer, etc. It is submitted that on 26.03.2021, the petitioner has received an anonymous e-mail purporting to represent staff and students of EFLU through which, slanderous allegations have been levelled against the petitioner and other faculty members named therein and a copy was furnished to the entire faculty of the 4th respondent University. The petitioner submits that he has given a reply vide e-mail dt.26.03.2021 addressing the contents of anonymous mail and marking copies to the persons mentioned in the said e-mail as a measure of self defence. It is stated that subsequently the petitioner and others also submitted a representation dt.29.03.2021 to the 7th respondent about the commissions and omissions of the 5th respondent with regard to several irregularities in student related admissions for the academic years 2017- 18 to 2019-20 and the petitioner submitted that he has submitted another representation dt.02.09.2021 brings to the notice of the 4th respondent certain incidents which were already brought to the notice of the 5th respondent relating to acts of certain individuals named therein committing acts of sexual harassment against women faculty members and that the culprits are all close associates of the 5th respondent.
W.P.No.14931 of 2022 3
3. It is submitted that the petitioner was suspended on 03.08.2021 on the basis of certain baseless allegations and therefore, the petitioner addressed a letter to his colleagues, bringing to their notice that the 5th respondent is indulging in acts of victimisation. Thereafter, the petitioner received a memorandum of charges dt.09.02.2022 whereby certain articles of charges have been levelled against him and the list of documents and imputations clearly suggested that the e-mails sent by the petitioner on 26.03.2021 and 04.08.2021 have been taken as the basis for framing the articles of charges. It is submitted that the petitioner submitted written statement of defence vide his explanation dt.28.02.2022 denying the charges and further stating that the 5th respondent is highly biased against him and being a party to the dispute, the 5th respondent cannot proceed further in the disciplinary action as it would amount to a biased administrative action by violating the concept of fair play. He submitted that without considering his explanation dt.28.02.2022, the 4th respondent has straight away appointed the 6th respondent as an enquiry officer vide proceedings dt.07.03.2022 and challenging the said proceedings, the present Writ Petition is filed. On W.P.No.14931 of 2022 4 09.04.2022, this Court had granted interim stay of all further proceedings pursuant to the proceedings dt.07.03.2022.
4. After filing of the Writ Petition, the 4th respondent has issued a notice dt.08.04.2022 enclosing the enquiry report of the 6th respondent seeking explanation of the petitioner. The petitioner has filed I.A.No.3 of 2022 seeking amendment of the prayer to challenge the notice dt.08.04.2022 issued by the 4th respondent as well and the same is also heard along with the Writ Petition.
5. Learned Standing Counsel for the 4th respondent University, Sri P.S.Raja Sekhar, and the learned counsel appearing for the 5th respondent, Sri Goda Siva, have filed counters of the respondents 4 and 5 respectively and supported the contentions/averments therein.
6. Respondents 2 to 4 have also filed I.A.No.4 of 2022 seeking vacation of the interim order dt.19.04.2022 granted in I.A.No.1 of 2022.
7. Sri V. Mallik, learned Senior Counsel representing Sri N.S.Arjun Kumar, learned counsel for the petitioner, while reiterating the submissions made in the writ affidavit, submitted that only because the petitioner has brought out the irregularities committed by the 5th W.P.No.14931 of 2022 5 respondent, the present disciplinary proceedings have been initiated against him. He submitted that the impugned proceedings have been issued by the 4th respondent, of which the 5th respondent is a member and therefore, the bias is established and thus the said order has to be set aside.
8. The learned counsel for the petitioner placed specific reliance upon the judgments of the Hon'ble Apex Court in the cases of Gullapalli Nageswara Rao and others Vs. Andhra Pradesh State Road Transport Corporation1 and Ashok Kumar Yadav Vs. State of Haryana2 for the proposition that a person interested in one party or the other should not, even formally, take part in the proceedings, though in fact he does not influence the mind of the person who finally decides the case. In support of his contention that the de facto complainant cannot conduct a fair enquiry and when the enquiry officer is subordinate in rank to the complainant, he could not have been appointed as an enquiry officer, and in such circumstances, the enquiry officer cannot be expected to exercise his discretion freely, he placed reliance upon the judgment of the Hon'ble Supreme Court in the case of M.L.L.Kumar 1 AIR 1959 SC 308 2 AIR 1987 SC 454 W.P.No.14931 of 2022 6 Vs. Divisional Manager, APSRTC3 which has been followed by the A.P. High Court in the case of M.Koteswara Rao Vs. APSRTC4. In support of the contention that wherever there is a real likelihood of bias, the Court should interfere, he placed reliance upon the judgment of the Kerala High Court in the case of V.Abusali Vs. Commandant5, wherein the law laid down in R.L.Sharma Vs. Managing Committee6 has been followed.
9. It is further submitted that the 4th respondent is headed by the 5th respondent and the 5th respondent being the de facto complainant has to be treated as a witness in the present proceedings and therefore, the action taken by the Executive Council in appointing the enquiry officer who is lower in rank than the de facto complainant is untenable. In support of this contention, the learned counsel for the petitioner placed reliance upon the judgment of the Hon'ble Supreme Court in the case of State of U.P. Vs. Mohd. Nooh7.
3 1989 FLR 597 4 1997 (3) ALD 491 5 1995 (1) LLJ 547 6 AIR 1993 SC 2155 7 AIR 1958 SC 86 W.P.No.14931 of 2022 7
10. In the counter filed by the 4th respondent, the allegations made by the petitioner in the writ affidavit are denied. It is submitted that the EFLU is a Central University established under the English and Foreign Languages University Act, 2006 and has campuses in Hyderabad, Shillong and Lucknow. It is submitted that the petitioner has been promoted as a Professor on 24.07.2015 and that he has sent e-mails to the teachers of the University making wild allegations and unwarranted comments against them vide his e-mails dt.26.03.2021 and 04.08.2021 as admitted by the petitioner himself. It is submitted that the petitioner was placed under suspension by the decision made by the Executive Council of the EFLU which is the competent authority being the appointing and disciplinary authority for teachers of the University vide order dt.03.08.2021 and subsequently a charge memo was issued to the petitioner vide Memo dt.09.02.2022 by the Executive Council. It is admitted that the petitioner submitted his explanation to the charge memo on 28.02.2022 and the 6th respondent was appointed as the enquiry officer by the Executive Council, vide order dt.07.03.2022. It is submitted that the enquiry proceedings were conducted on 14.03.2022, 17.03.2022 and 23.03.2022, well before the notice was ordered by this W.P.No.14931 of 2022 8 Court on 27.03.2022, but the petitioner had absented himself from the enquiry proceedings in spite of receipt of notice of the hearings of the enquiry. It is submitted that the petitioner did not furnish any valid reason for being absent in the enquiry proceedings and therefore the proceedings were concluded ex parte. It is submitted that instead of appearing in the enquiry proceedings, the petitioner has written to the 6th respondent and the Registrar, EFLU on 13.03.2022, 14.03.2022 and 17.03.2022 seeking adjournment of the proceedings by stating that he was intending to move the Hon'ble High Court. Since the petitioner could not furnish any valid reason for not participating in the enquiry, the enquiry officer has concluded the enquiry ex parte the petitioner on 23.03.2022 and submitted the enquiry report on 24.03.2022. It is submitted that in accordance with principles of natural justice, a copy of the enquiry report was served on the petitioner with an intention to provide him an opportunity to present his version and to submit his written representation or submission within 15 days of receipt of the notice vide Memo dt.08.04.2022. It is submitted that in spite of service of such a Memo, the petitioner has not responded. In respect of the contention of the petitioner that the petitioner and others have made representation to the 7th respondent on 29.03.2021 against respondent W.P.No.14931 of 2022 9 No.5, it is submitted that the EFLU is not aware of the same. It is further submitted that it is only after suspension of the petitioner on 03.08.2021, that the petitioner has resorted to making wild allegations against respondent No.5 and others and therefore, the allegations are wild and baseless and are being made against respondent No.5 only to stall the enquiry proceedings initiated against the petitioner for his misconduct. The allegations of bias and malice made by the petitioner against respondents 5 and 6 are also denied and it is submitted that though respondent No.6 is subordinate to respondent No.5 or to the Executive Council, the allegation that he is influenced by the 4th and 5th respondents, does not hold any water. It is submitted that if this proposition is accepted, no higher authority can take any disciplinary action against the misconduct of any subordinate. It is further submitted that respondent No.5 had recused himself from participating in the 35th EC meeting held on 04.03.2022 when the matter pertaining to appointment of respondent No.6 as the enquiry officer was taken up and also in its 36th meeting for considering the enquiry report submitted by the enquiry officer. Therefore, the allegations of the petitioner of bias against respondents No.4 and 5 are misplaced and are liable to be rejected. The allegation of respondent No.5 being a party to the dispute W.P.No.14931 of 2022 10 is also denied. In support of his contentions, relevant documents are also filed by the learned Standing Counsel. He has drawn the attention of this Court to the constitution of the Executive Council to demonstrate that there are 7 Members in the Executive Committee who shall form a quorum for meeting of the Executive Council and the Vice Chancellor is one of such Members. Therefore, according to him, there are other Members of the Council also in the Committee and therefore the allegation of bias against the petitioner by the 4th respondent is unsubstantiated.
11. The 5th respondent also filed counter affidavit reiterating the averments made in the counter affidavit of the 4th respondent and also stating that action has been initiated against the petitioner on account of the objectionable e-mails sent officially by the petitioner to the teachers of the University, some of whom are also the Members of the Executive Council, Academic Council, etc. He further supported the stand of the University that in the meeting held to enquire into the alleged misconduct of the petitioner, the 5th respondent had recused himself and therefore he was not part of the decision on the issue and therefore, there was no bias, let alone any shadow of bias by the respondent No.5.
W.P.No.14931 of 2022 11
12. The petitioner has also filed a reply affidavit denying the allegations made in the counter affidavits filed by the 4th and 5th respondents.
13. The learned counsel for the petitioner has placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Mohinder Singh Gill and another Vs. Chief Election Commissioner, New Delhi and others8 for the proposition that the impugned order must stand on its own feet and cannot be supplemented subsequently by filing affidavits or otherwise. This Court finds that the said ratio is applicable to the facts of the case before this Court and that the impugned action of the respondents has to be tested on its own legs and not on the basis of the averments made in the counter affidavits filed by the 4th and 5th respondents.
14. In the Judgment of the Hon'ble Supreme Court of India in the case of Rattan Lal Sharma Vs. Managing Committee, Hari Ram (Co-Education) Higher Secondary School9, the issue was whether there was a real likelihood of bias and it was held that it depends not 8 (1978) 1 SCC 405 9 1993 LawSuit(SC) 487 W.P.No.14931 of 2022 12 upon what actually was done but upon what might appear to have been done. Similar finding is given in the case of A.K. Kraipak and others Vs. Union of India and others10.
15. The learned counsel for the respondents, on the other hand, relied upon the judgment of the Hon'ble Supreme Court in the case of Rajneesh Khajuria Vs. Wockhardt Limited and another11, wherein it has been held that the burden of establishing malice is very heavily on the person who alleges it. It is submitted that the petitioner has miserably failed to prove that the enquiry officer has been appointed at the behest and at the instance of the 5th respondent.
16. Having regard to the rival contentions and the material on record, this Court finds that the only issue in this case is whether there was bias or any likelihood of bias against the petitioner by or at the behest of the 5th respondent and whether he has in any way influenced the decision of the 4th respondent in appointing the enquiry officer and in conducting the enquiry against the petitioner. The 5th respondent is the Vice Chancellor of the University and is one of the Members of the Executive 10 1969 (2) SCC 262 11 (2020) 3 SCC 86 W.P.No.14931 of 2022 13 Council which is both appointing as well as disciplinary authority. He being the Vice Chancellor and being part of the Executive Council, his participation in any proceedings against any of the employees of the University cannot be avoided except where his presence is expressly not required. However, with regard to the specific complaint against the petitioner which has resulted in his suspension and thereafter issuance of charge memo, it is to be seen whether any specific allegations were made against the 5th respondent. A copy of the memorandum of charges is filed along with the counter affidavit. As seen therefrom, the charge memo was issued on 09.02.2022 and the charges are: (1) that the behaviour of the petitioner is unbecoming of an employee; (2) is abusive and disturbing the peace at the place of employment; (3) his acts are subversive of discipline and (4) are abusive and disturbing the peace at the place of employment, wilful insubordination, disobedience and causing damage to the reputation. On going through the same, it appears that the petitioner has been making abusive statements against the teachers of the University and also certain allegations were made against the Vice Chancellor, i.e., the 5th respondent in this Writ Petition. A copy of the minutes of the 35th meeting of the Executive Council held on 04.03.2022 at 5 pm at the EFL University, Hyderabad is also furnished, W.P.No.14931 of 2022 14 according to which, item No.35.38 is to consider and decide on further course of action consequent upon the Memorandum of Charges served on Prof. K. Prakash Reddy, Department of English Literature. As seen therefrom, the Vice Chancellor is not part of the Members present and who have taken the decision. The meeting was chaired by Pro-Vice Chancellor Prof. Revathi Srinivas. Copies of orders dt.07.03.2022 appointing Prof. M.E. Veda Sharan as the enquiry officer to enquiry into the charges framed against Prof. K. Prakash Reddy and the proceedings appointing Dr. Muralidhar Tadi, Joint Registrar as the Presenting Officer are also filed before this Court. Copies of the adjournment letters filed by the petitioner before the enquiry officer are also filed.
17. After going through the relevant documents, it is noticed that the 5th respondent is, in fact a person against whom certain allegations have been made by the petitioner, and in order to rule out any bias or even shadow of bias or any likelihood of bias, he should not be part of the Executive Council which has taken a decision to suspend the petitioner and to appoint the enquiry officer to enquire into the allegations against the petitioner. On going through the minutes of the meeting in which the decision was taken to appoint the enquiry officer, it is clear that W.P.No.14931 of 2022 15 respondent No.5 had recused himself and was not part of the meeting in which the decision to appoint the enquiry officer was taken. Therefore, the allegation of the petitioner that the 5th respondent was instrumental in appointing Prof. M.E. Veda Sharan as the enquiry officer and therefore the de facto complainant has appointed the enquiry officer is not correct and therefore cannot be entertained. The allegation of bias by the respondents 4 and 5 against the petitioner is clearly ruled out.
18. Coming to the enquiry report and the notice dt.08.04.2022, this Court finds that it is ex parte the petitioner. Since the petitioner had filed applications for adjournment, it cannot be said that he was absent intentionally. Therefore, without going into the merits of the charges alleged against the petitioner, this Court is of the opinion that the enquiry report has to be set aside and the enquiry officer should conduct the enquiry afresh and the petitioner being a Professor, has to cooperate and participate in the enquiry proceedings. Therefore, both the enquiry report as well as the notice enclosing the enquiry report dt.08.04.2022 are set aside and the enquiry officer is directed to conduct de novo enquiry into the allegations made against the petitioner as directed by the 4th respondent expeditiously. The petitioner shall be given a fair and W.P.No.14931 of 2022 16 reasonable opportunity of hearing and presenting evidence and witnesses on his behalf in accordance with law.
19. In the result,
20. (i) I.A.No.3 of 2022 is allowed;
(ii) I.A.No.4 of 2022 is closed in view of the disposal of the
main Writ Petition.
(iii) With the above directions, the Writ Petition is partly allowed. No order as to costs.
21. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 19.10.2022 Svv