Prof. Narsingh vs The State Of U.P.Through ...
2017 Latest Caselaw 8109 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved.
 
Court No. - 5
 

 
Case :- MISC. BENCH No. - 26382 of 2017
 

 
Petitioner :- Prof. Narsingh
 
Respondent :- The State Of U.P.Through Prin.Secy.Higher Edu.Lko. And Ors.
 
Counsel for Petitioner :- Dr. V.K. Singh
 
Counsel for Respondent :- C.S.C.,Brijesh Kumar Shukla,Sameer Kalia,Savitra Vardhan Singh
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Rajesh Singh Chauhan,J.

1. Heard Dr. V.K. Singh, learned counsel appearing for the petitioner, learned Standing Counsel representing the State- respondents, Sri Sameer Kalia, learned counsel representing Chancellor of Lucknow University and Chhatrapati Sahu Ji Mahraj University, Kanpur and Sri Savitra Vardhan Singh, learned counsel representing the University of Lucknow and Chhatrapati Sahu Ji Mahraj University, Kanpur.

2. The present proceedings instituted under Article 226 of the Constitution seek to question the validity of the order dated 6.10.2017 passed by the Chancellor whereby the decision of the Executive Council of the Lucknow University taken in its meeting dated 12.4.2017 constituting a disciplinary committee to conduct a disciplinary inquiry against the respondents no. 6,7 and 8 has been partially modified to the extent that the disciplinary committee constituted by the Executive Council has been scrapped and in its place a new disciplinary committee, with the same mandate of conducting the departmental inquiry against respondents no. 6,7 and 8 has been constituted.

3. The other prayers made in the writ petition are that the respondent no. 3 to 5 may be directed to take appropriate departmental action against the respondents no. 6 to 8 and that respondents no. 2 to 5 may also be directed to initiate criminal proceedings against the respondents no. 6 to 8 in view of the recommendations made in the vigilance inquiry report dated 9.2.2016.

4. The petitioner has also prayed for issuance of a writ of Quo-Warranto requiring the respondent no. 6 to show the authority under which he, at present, is holding the office of Vice Chancellor of Chhatrapati Sahu Ji Mahraj University, Kanpur.

5. So far as the prayer relating to issuance of a writ of Quo-Warranto is concerned, learned counsel for the petitioner at the outset has submitted that the petitioner should be permitted to not press the said prayer with liberty to take recourse to other legal remedies which may be available to the petitioner under law including filing of a fresh writ petition.

6. The said prayer made is allowed.

7. The primary challenge in this petition, thus, which remains to be looked into by this Court is to the order dated 6.10.2017 passed by the Chancellor on the representation preferred by the respondent no. 6 against the decision of the Executive Council dated 12.4.2017 whereby a disciplinary committee was constituted to inquire into the allegations against the respondents no. 6 to 8. Learned counsel for the petitioner Dr. V.K. Singh has canvassed before the Court, while impeaching the order of the Chancellor under challenge herein, that the Chancellor under the scheme of U.P. State Universities Act, 1973 ( hereafter referred to as Universities Act) and the First Statutes of Lucknow University is not vested with any jurisdiction to constitute a fresh disciplinary committee on his own after scrapping the constitution of the disciplinary committee made by the Executive Council in its decision dated 12.4.2017. It has further been submitted by Dr. Singh that even if the Chancellor found the constitution of the disciplinary committee to be unsustainable, all he could have done under the scheme of the Act and the First Statutes was that he would have remitted the matter to the Executive Council to take a decision afresh for constitution of another disciplinary committee and the Chancellor having not done so has exceeded his jurisdiction vested in him under Section 68 of the Act.

8. Drawing the attention of the Court to the provisions of Section 68 of the said Universities Act it has been submitted by learned counsel for the petitioner that on a reference made against any decision of any authority or officer of the University the Chancellor will be well within its power to annul the same, however, in the instant case after annulling the decision of Executive Council whereby the three member disciplinary committee was constituted, the Chancellor ought to have remitted the matter again to the Executive Council for taking decision for constitution of the disciplinary committee in view of the provisions of Statute 8.10 of the First Statutes.

First submission is that it is not the Chancellor rather the Executive Council which is empowered and enjoys jurisdiction and authority to constitute a disciplinary committee as per the provisions contained in Statute 8.10. Secondly, Dr. V.K. Singh representing the petitioner has also argued that the Chancellor is empowered to exercise his powers well within the bounds of Section 68 where any decision of an authority or officer of the University can be permitted to be challenged only in case, it is shown to be not in conformity with the Universities Act or the First Statutes or the Ordinances made thereunder and if the challenge to any such decision of an authority or officer of the University is made on the ground of malice or ill-motive, the said ground cannot be taken into account by the Chancellor to hear the reference and scrutinize the validity of any such decision of any authority or officer of the University on the said ground of malafide or ill-motive.

9. Per-contra, refuting the aforesaid submissions made by the learned counsel for the petitioner, Sri Sameer Kalia, learned counsel appearing for the Chancellor has submitted that the grounds taken by the petitioner to challenge the order passed by the Chancellor in this petition are not tenable and that the chancellor, in fact as also in law, is fully empowered to have passed the impugned order. He has further submitted that Chancellor while passing the impugned order has reiterated that the disciplinary proceedings against the respondents no. 6 to 8 shall be continued and conducted and he has only changed the complexion of the disciplinary committee and in-fact after scrapping the earlier disciplinary committee has constituted a new committee. The learned counsel representing the Chancellor has, thus, stated that by the impugned order no prejudice is being caused to the petitioner and further that he does not have any locus to challenge the impugned order as he cannot be said to be aggrieved by the order passed by the Chancellor for the reason that it is not that the Chancellor has quashed the disciplinary proceedings against the respondents no. 6 to 8 or has disallowed or discontinued the disciplinary proceedings rather all the Chancellor has done is that he has only changed the constitution of the disciplinary committee for the reason that the respondent no. 6 in his representation / reference made under Section 68 of the Universities Act had expressed strong apprehension of bias against the Chairperson of the Executive Council which had earlier constituted the disciplinary committee. It has further been stated by Sri Sameer Kalia that the matter could not have been remanded to the Executive Council for the reason that the Vice Chancellor himself is the head of the Executive Council in terms of the provisions contained in Section 20 of the Act and the allegations of bias in the matter of constitution of the disciplinary committee was in respect of Vice Chancellor as asserted by respondent no. 6. It has, thus, been submitted that since the earlier disciplinary committee constituted by the Executive Council in its decision dated 12.4.2017 was chaired by the Vice Chancellor himself, hence looking to the allegations of bias it would not have been proper or appropriate for the Chancellor to have remitted the matter to the Executive Council for the reason that in case of remand it is the Vice Chancellor who would have chaired the meeting of Executive Council thereby the apprehension of the element of bias could not be removed.

10. Taking aid of Section 10 of the Universities Act it has been submitted by the learned counsel representing the Chancellor that Chancellor being 'Head of the University' is empowered to exercise all other powers which are otherwise exercisable by the other authorities or officers of the University who are subordinate to the Chancellor in a situation like the instant case has presented before the Chancellor.

11. We have given our thoughtful consideration to the rival submissions made and arguments advanced by the learned counsel representing the respective parties. Before adverting to the arguments advanced in this case, we may briefly narrate certain facts which are essential for appropriate adjudication of the issues involved herein.

12. There appears to be longstanding feud between the petitioner and the respondents no. 6 to 8 who at one time have together been faculty members in the Department of Applied Economics of Lucknow University. The petitioner at present has retired after serving the University in the said Department for quite a long period of time. Respondent no. 6 is presently serving as Vice Chancellor of Chhatrapati Sahu Ji Mahraj University, Kanpur though he still maintain his lien in the Department of Applied Economics, Faculty of Commerce of Lucknow University. Respondents no. 7 and 8 are working at present as Faculty members in the Department of Applied Economics, Faculty of Commerce, Lucknow. In relation to an incident relating to alleged tempering and interpolation of marks awarded by the examiners in the answer-sheets of the examination paper 'Quantitative Technique for Economic Analysis of M.Com-Second Semester Examination of Lucknow University held in the year 2010, there have been allegations and counter-allegations between the petitioner and the respondents no. 6 to 8. The Vigilance Department of the Government of U.P. referred the matter for open inquiry by the Vigilance Establishment. The Vigilance Establishment after completing the open inquiry recommended to the State Government for considering justification for taking departmental action against the respondent no. 6 to 8 vide letter dated 10.9.2015. The Vigilance Establishment of the State Government referred the matter to the Department of Higher Education vide leter dated 9.2.2016 annexing the report of the open vigilance inquiry conducted by the Vigilance Establishment. The State Government in the Department of Higher Education vide its letter dated 9.11.2016 sent the matter to Hon. the Chancellor for taking decision on the recommendation of the State Government for taking disciplinary action against the respondents no. 6 to 8 for the reason that appointing authority of the Vice Chancellor is the Chancellor under the provisions of the Universities Act. The Chancellor, accordingly, decided to send the matter to the Executive Council of the Lucknow University for taking action on the Vigilance Inquiry report and Principal Secretary to the Chancellor vide letter dated 14.12.2016 addressed to the Vice Chancellor required the entire matter to be placed before the Executive Council. The Executive Council, accordingly, considered the matter and took a decision on 12.4.2017 for constituting a three-member disciplinary committee comprising of (i) Professor S.P. Singh, Vice Chancellor, Lucknow University, (ii) Hon. Justice Alok Kumar Singh, Former Judge, Allahabad High Court, and (iii) Sri K.L. Gupta, Former Director General of Police, U.P. The said disciplinary committee was constituted by the Executive Council to inquire into the allegations against the respondents no. 6 to 8.

13. On 9/12-5-2017 respondent no. 6 made a Reference Petition under Section 68 of the Universities Act to the Chancellor against the decision of Executive Council and also prayed that the inquiry being conducted by the three-member disciplinary committee be deferred. The Chancellor by means of an order dated 4.7.2017 appears to have stayed further disciplinary proceedings being conducted by three-member committee constituted by the Executive Council in its meeting held on 12.4.2017. The petitioner, thereafter challenged the stay order of Chancellor dated 4.7.2017 by filing Writ Petition No. 17561(M/B) of 2017 which was disposed of by a Division Bench of this Court on 3.8.2017 by observing that the Chancellor will finalize the matter after affording opportunity to the parties concerned at an early date. The Division Bench further observed that the Chancellor shall also take decision on the issue as to whether respondent no. 6 is entitled to be continued as Vice Chancellor of Kanpur University.

14. On 4.7.2017 the Chancellor also required the petitioner to file his reply to the reference petition preferred by the respondent no. 6 challenging the decision of the Executive Council taken in its meeting held on 12.4.2017. The petitioner submitted his reply on 18.7.2017 and it is on consideration of the aforesaid reference petition, other relevant material and the reply of the petitioner as well, that the Chancellor has passed the order dated 6.10.2017 which is under challenge herein.

15. Taking up the issue of maintainability of this petition at the instance of the petitioner as has been submitted by the learned counsel appearing for the Chancellor, we may notice that though by the impugned order dated 6.10.2017 the petitioner is personally not going to be affected in any manner, however, to hold that he does not have locus to challenge the order passed by the Chancellor would not be appropriate. The very fact that it is the Chancellor himself who had required the petitioner to file his reply to the reference petition preferred by the respondent no. 6 under Section 68 of the Universities Act gives ample locus standi to the petitioner to challenge the order dated 6.10.2017. Thus, we hold that the submission of learned counsel appearing for the Chancellor that the petitioner does not have any locus to challenge the impugned order merits rejection, which we hereby overrule.

16. Coming to the challenge made by the petitioner to the impugned order passed by the Chancellor, the issue which needs determination by this Court in the background of the arguments advanced by the learned counsel appearing for the respective parties is as to whether in exercise of his jurisdiction under Section 68 of the Universities Act, the Chancellor could have constituted the disciplinary committee himself or he ought to have remitted the matter to the Executive Council for taking decision on constitution of disciplinary committee in terms of the provisions contained in Statute 8.10 of the First Statutes of Lucknow University. For determination of such an issue we need to throw some light on the nature and extent of powers of the Chancellor under the provisions of the Universities Act, 1973 read with the First Statutes.

17. At this juncture, we may notice that the Chancellor while passing the order dated 6.10.2017 has not varied or rescinded the decision of the Lucknow University to institute the disciplinary proceedings against the respondents no. 6 to 8. The Chancellor on the allegations of bias and prejudice has only changed the constitution of the disciplinary committee. The petitioner thus, can not have any grievance so far as the impugned order is concerned for the reason that his interest is to be confined only to ensure that disciplinary proceedings are taken against the respondents no. 6 to 8 in terms of the report submitted and recommendation made by the Vigilance Establishment in its report. The Chancellor has only changed the constitution of the disciplinary committee after scrapping the constitution of the earlier disciplinary committee made by the Executive Council vide its decision dated 12.4.2017. The Chancellor has not set aside the entire decision; rather has directed the newly constituted three-member committee to prepare a fresh charge-sheet against the respondents no. 6 to 8 and seek the approval thereof from him. Chancellor has further directed that newly constituted disciplinary committee shall complete the inquiry within the time stipulated in the order itself and that the inquiry committee shall conduct the inquiry proceedings in a just, fair and impartial manner by observing the relevant Statutes and the principles of natural justice. The inquiry committee has further been required to submit the inquiry report to the Vice Chancellor in a sealed cover and thereafter the Vice Chancellor has been required to place the inquiry report kept in the sealed cover before the Executive Council of the University which has further been required to consider the inquiry report and proceed further to take appropriate decision thereon in accordance with law. Thus, so far as the disciplinary proceedings against the respondents no. 6 to 8 are concerned, the impugned order dated 6.10.2017 passed by the Chancellor, in-fact, appears to be in furtherance of the requirement of taking just and fair action on the report submitted by the Vigilance Establishment. The petitioner in this regard, in our opinion, thus, cannot have any grievance.

18. So far as the submission of the learned counsel for the petitioner in regard to scrapping of the constitution of the disciplinary committee constituted by the Executive Council in its meeting held on 12.4.2017 and thereafter constitution of a fresh disciplinary committee is concerned, we may refer to certain provisions of Universities Act and the First Statutes. The first such provision is Section 68 of the Universities Act which runs as under :

"68. Reference to the Chancellor. - If any question arises whether any person has been duly elected or appointed as, or is entitled to be, member of any authority or other body of the University, or whether any decision of any authority or officer of the University [(including any question as to the validity of a Statute, Ordinance or Regulation, not being a Statute or Ordinance made or approved by the State Government or by the Chancellor)] is in conformity with this Act or the Statutes or the ordinance made thereunder, the matter shall be referred to the Chancellor and the decision of the Chancellor thereon shall be final :

Provided that no reference under this section shall be made -

(a) more than three months after the date when the question could have been raised for the first time;

(b) by any person other than an authority or office of the University or a person aggrieved :

Provided further that the Chancellor may in exceptional circumstances -

(a) act suo motu or entertain a reference after the expiry of the period mentioned in the preceding proviso;

(b) where the matter referred relates to a dispute about the election and the eligibility of the person so elected is in doubt, pass such orders of stay as he thinks just and expedient;

[(c) * * *]"

19. The other provision which is relevant and needs a reference here is Section 10 of the Universities Act which is extracted herein below :

"10. The Chancellor. - (1) The Governor shall be the Chancellor of the University. He shall, by virtue of his office, be the Head of the University and the President of the Court and shall, when present, preside at meeting of the Court and at any convocation of the University.

(2) Every proposal for the conferment of an honorary degree shall be subject to the confirmation of the Chancellor.

(3) It shall be the duty of the Vice-Chancellor to furnish such information or records relating to the administration of the affairs of the University as the Chancellor may call for.

(4) The Chancellor shall have such other powers as may be conferred on him by or under this Act or the Statutes.

20. The next provision which will be relevant for appropriate decision in this case is Statute 8.10 of the First Statutes of Lucknow University which is also extracted herein below for ready reference :

"8. 10 (1) The Executive Council shall constitute for such time as it thinks fit a Disciplinary Committee in the University which shall consist of the Vice-Chancellor, or the Pro Vice Chancellor nominated by him, an two persons nominated by it.

Provided that it' the Executive Council considers it expedient, it may constitute more than one such Committee to consider different cases or classes of cases.

(2) No teacher against whom any case involving disciplinary action is pending shall serve as member of the Disciplinary Committee dealing with the case.

(3) The Executive Council may at any stage transfer any case form one Disciplinary Committee to another Disciplinary Committee .

21. Section 10 of the Universities Act, thus, provides that the Governor of the State of U.P. is the Chancellor of the University and further that by virtue of his office he is 'Head of the University' and is also 'President of the Court'. It also provides that when the Chancellor is present he shall preside at the meeting of the Court and at any convocation of the University. Sub-Section 3 of Section 10 mandates the Vice Chancellor to furnish any record or information relating to administration of the affairs of the University which may be called for by the Chancellor. Sub-Section 4 provides that Chancellor shall have such other powers as may be conferred on him by or under the Universities Act or the First Statutes.

22. What is of relevance to notice is that under Section 10, the Chancellor is 'Head of the University'. The Chancellor thus, heads the entire family and the highest executive authority of the University i.e. the Vice Chancellor is mandated not only to report to the Chancellor but he is also under statutory duty cast on him to submit all information and record as the Chancellor may require from him to be submitted in relation to administration and transaction of business or the affairs of the University. Sub-Section 3 of Section 10 has, thus, to be interpreted with the aid of the phrase 'Head of the University' occurring in sub-Section 1 of Section 10 of the Universities Act, 1973. Thus, as Head of family the Chancellor has all access to information and records relating to administration of the affairs of the University. Section 10(3) of the Universities Act provides access to the Chancellor to all the information and records relating to administrative affairs of the University, that would mean that after perusal of such records or after going through such information submitted to the Chancellor in relation to administration of the affairs of the University, he will take appropriate decision and action thereon. Mere perusal of information or document by the Chancellor cannot be the purpose of enactment of sub-Section 3 of Section 10 of the Universities Act, 1973. As 'Head of the University' the Chancellor on perusal of information and record furnished to him under sub-Section 3 of Section 10, cannot be held to be an authority vested only with the power of perusal of such record or information and not to act upon them in case any irregularity or malfunctioning of the administration of the University is noticed or found by him.

23. We have no hesitation to hold that as Head of the University, the Chancellor is bestowed with a moral and legal duty to safeguard the interest of the University and to ensure that the administration of the affairs of the University are carried out in a just, fair and proper manner. It is his duty to ensure that the affairs of the University are being governed in an efficient manner and that the University authorities adhere to Rule of Law. As 'Head of the Family' the Chancellor has vast responsibilities to perform which makes him Parens Patriae of the University. In his capacity as Parens Patriae or Partiarch of the University he has a duty to ensure that any individual does not suffer from any illegality and is treated in a fair, unbiased and transparent manner.

24. Section 68 provides for making a reference to the Chancellor challenging any decision of an authority or officer of the University. The Chancellor under Section 68 is, thus, empowered to decide the validity of any decision of any authority of the University and in that process he has to see if the decision challenged before him is in conformity with the Universities Act, 1973 and the First Statutes and the Ordinances made under the said Act. If the provisions of Section 68 of the Universities Act are read in conjunction with Section 10 of the said Act, the same gives ample authority to the Chancellor to look into the illegality of a decision of an authority not only on the ground of the decision being not in conformity with the Act or the Statutes or the Ordinances but on any other legally tenable ground. An argument has been made by the learned counsel for the petitioner that malafide or ill-intent is not a ground available to the Chancellor under Section 68 to set aside any decision of the Executive Council of the University. Such a ground, in our considered opinion. is not tenable for the reason that Chancellor's authority under Section 68 cannot be confined to annul a decision of the authority of the University on the ground of same being not in conformity of Universities Act or the Statutes or the Ordinances as confining powers of the Chancellor to the said extent only would render the provisions of Section 10, especially Section 10(3) of the Universities Act meaningless and redundant.

25. In the discussion made above, we have already observed that after having been empowered to summon any information or record relating to administration of the affairs of the University under sub-section 3 of Section 10 of the Universities Act, the Chancellor cannot be supposed to sit silent even if he notices any illegality or irregularity or violation of any settled norms or principles of law.

26. In the instant case the ground of challenge made by respondent no. 6 to the decision of the Executive Council dated 12.4.2017 was that Chairman of the disciplinary committee appointed by the Executive Council, namely the Vice Chancellor bears some prejudice against the respondent no. 6 for certain reasons which have been elaborately dealt with by the Chancellor in the impugned order dated 6.10.2017. The Chancellor in our opinion, has taken a correct view by scrapping the disciplinary committee constituted by the Executive Council on 12.4.2017 which comprised of the Vice Chancellor as well as its Chairperson for the reason that the said decision by the Chancellor, as is reflected from perusal of the impugned order, has been taken only with a view of ensure that the disciplinary proceedings against respondents no. 6 to 8 are conducted in absolute fairness and impartiality and that such inquiry must not come under the cloud of any prejudice of any authority having any influence or a say in the conduct or outcome of the inquiry.

27. The Chancellor in his order has expressly stated that the constitution of the disciplinary committee constituted by the Executive Council on 12.4.2017 has been changed only to alleviate any fear or apprehension of any prejudices or partiality during the course of conduct of the inquiry against the respondent no. 6 and two other teachers.

28. We would not like to go into the reasons stated by the Chancellor regarding apprehension of prejudice or malice expressed by the respondent no. 6 in his representation as it would not serve any purpose. It is settled law that 'justice should not only be done but it should appear to have been done'. Keeping in mind this well recognized principle, if respondent no. 6 had any apprehension of malice or prejudice on account of presence of disciplinary committee headed by the Vice Chancellor in the disciplinary committee, that in our view would suffice to change the constitution of the disciplinary committee. Such a change does not in any manner prejudice the cause of the petitioner whose interest is not being marred for the reason that the Chancellor in the impugned order has directed for conclusion of the disciplinary inquiry against the respondents no. 6 to 8 and placing the inquiry report before the Executive Council for further consideration of the matter.

29. It is true that under Statute 8.10 it is the Executive Council which has been empowered to constitute the disciplinary committee, however, since in this case the allegation of malicious intent is against the Vice Chancellor himself who chairs the meetings of Executive Council, remitting the matter to the Executive Council by the Chancellor after scrapping the constitution of earlier disciplinary committee would not have been in the fitness of things and the same would have again been infested with apprehension of an element of bias and unfairness. It is in these circumstances that the Chancellor has taken upon himself the function of constitution of the disciplinary committee instead of remitting the matter to the Executive Council. This exercise by the Chancellor by which he has constituted the disciplinary committee comprising of (i) Hon. Justice R.B. Mishra, Former Acting Chief Justice, Himanchal Pradesh, High Court, as its Chairman, and (ii) Sri. Piyush Ranjan Agarwal, Former Vice Chancellor, Veer Bahadur Singh Purvanchal University, Jaunpur and presently Dean, School of Management Studies, Motilal Nehru Institute of Technology and (iii) Sri V.K. Khatri, Former District Judge as other mambers, is well within his authority and powers vested in him under Section 68 read with Section 10 of the Universities Act, 1973.

30. So far as the prayer made in the writ petition seeking a direction to take appropriate departmental action against the respondents no. 6 to 8 is concerned, the Chancellor himself in his order dated 6.10.2017 has directed the departmental proceedings to be undertaken and inquiry therefor to be conducted as such no direction in this regard is required.

In respect of the prayer made for issuing a direction for initiation of criminal proceedings against the respondents no. 6 to 8, we may only observe that the Vigilance Establishment itself in its report has recommended for taking departmental action and not for initiating criminal proceedings. The said recommendation has been accepted by the Vigilance Department of the State Government and accordingly the matter for initiation of departmental proceedings was forwarded by the Vigilance Department to the Higher Education Department which required the Chancellor to take appropriate action on the recommendation made in the inquiry report. Thus, in view of the recommendation for taking departmental action and not criminal action against the respondents no. 6 to 8 on the basis of the inquiry report submitted by the Vigilance Establishment, the said prayer cannot be granted.

31. In view of the aforesaid discussions made and reasons given, we are not inclined to interfere in the impugned order passed by the Chancellor.

32. Resultantly, the writ petition is hereby dismissed, however, in the circumstances of the case, parties to bear their own costs.

Order Date :- 19.12.2017

Om.

.

[Rajesh Singh Chauhan, J.] [Devendra Kumar Upadhyaya, J.]