Dr. Mahendra Nath Dubey vs His Excellency The Chancellor Of ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 37
 
Case :- WRIT - A No. - 46924 of 2002
 

 
Petitioner :- Dr. Mahendra Nath Dubey
 
Respondent :- His Excellency The Chancellor Of Dr. B.R.A. University &Ors.
 
Counsel for Petitioner :- Kamlesh Shukla,Ashok Kumar Rai,B.P. Singh,H.P. Mishra,H.R. Mishra,K.M. Mishra,Neeraj Tiwari,U.N. Sharma
 
Counsel for Respondent :- S.C.,Anil Tewari,Neeraj Tripathi,S.K. Singh,Sanjay Kumarsingh
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

(Delivered by Hon'ble Rajiv Lochan Mehrotra,J.)

[1] The petitioner has prayed for quashing the order dated 7.7.2000 passed by Executive Council of the University terminating his services and the orders dated 4.5.2002 and 6.7.2002 passed by the Chancellor under Section 68 of the U.P. State Universities Act, 1973 rejecting the representation and review application filed against said termination order.

[2] The facts of the case in brief are that the petitioner was a Professor in Dr. Bheem Rao Ambedkar University, Agra in the Hindi Department. The petitioner was also entrusted with the duties of Director of Institute which comprises of various departments like Modern Indian Foreign Language, Hindi, Linguistic, Foreign Language, Oriental Language and each one of these departments has a separate Head of the Department concerned who is the overall in-charge of the respective department. The role of the petitioner was merely supervisory in nature.

[3] In the year 1993, a viva-voce examination for award of German Certificate Course was held and the said examination was conducted by Professor P.C. Aneja as External Examiner and a guest Lecturer Smt. Renu Aggarwal as an Internal Examiner. Two candidates namely Akhtar Zama Khan and Mohd. Dargahi did not appear in time in the viva-voce examination and it appears that when the said examination was over, both these students had turned up and thereafter they approached the Head of the Department for holding their viva-voce. The Head of the Department recommended both these candidates to approach the Vice Chancellor and both these boys after contacting the Vice Chancellor returned back and informed the Head of the Department that oral permission has been accorded but the External Examiner is not willing to conduct the examination of only these candidates. As the internal examiner had already left, therefore, the external examiner insisted that in case viva-voce is to be held in regard to these two candidates, all the candidates have to face the viva-voce afresh. The Registrar of the University is the over all controller of the examination. The Vice Chancellor directed the petitioner through Registrar for holding of viva-voce examination again. The External Examiner agreed to conduct viva-voce of all the students again. As a result, the examination was re-conducted in the room of the Head of the Department. The list containing the marks awarded to the candidates was kept in a sealed cover and the same was submitted in the office of the petitioner and thereafter sent to the Confidential Section.

[4] The petitioner requested the Vice Chancellor to provide amenities attached to his post and also to correct the date of his appointment on the post of Professor, but no heed was paid by the Authorities. Therefore, the petitioner had to represent his matter to the Chancellor. On this, the Vice Chancellor became highly annoyed and removed the petitioner from the post of Director with effect from 01.07.1994.

[5] In the viva-voce examination which had been conducted in the year 1993, two award lists were prepared by Professor P.C. Aneja and both were posted on 17.09.1994 that is much before the date the petitioner left the office of the Director. The result of the said viva-voce was declared by the University in the year 1997. The son of the petitioner R.N. Dubey was also one of the candidates in the said viva-voce examination and his name also found place in the result of the successful candidates.

[6] Petitioner was again made acting Director on 9.4.1996 of the Institute but without amenities and without correcting his pay scale, hence he moved a representation before the then Vice Chancellor for the same but no action was taken. Hence, the petitioner represented his matter before the Chancellor vide representation dated 9.4.1997 who forwarded it to the Secretary of the State Government. In the meantime, the petitioner also preferred a writ petition before the High Court for the said cause. On account of this the petitioner alleges that the then Vice Chancellor, Shri Manzoor Ahmad became highly annoyed and on account of it, a show cause notice dated 31.12.1997 was served on the petitioner with baseless charges. The petitioner submitted its detailed reply but without going through it, the entire powers of Director was ceased. In the meanwhile, the High Court had finally disposed off the writ petition and directed the University to provide all the facilities and necessary authority which was attached to his post.

[7] As per resolution of the executive council, other staff members of the university placed in similar situations were promoted on their due date while the petitioner was not accorded the same treatment that was due with effect from 31.5.1993 because of the discriminatory treatment. Many representations against the arbitrary action of the Vice Chancellor were submitted to His Excellency, the Chancellor by the petitioner but being under the influence of the Vice Chancellor Mr. Manzoor Ahmad, the Chancellor did not take notice of them. Ultimately the petitioner had to file a contempt petition before the High Court in which notices were issued to Shri Manzoor Ahmad, Vice Chancellor and Shri Sailendra nath, the Registrar of the University. Acquiring knowledge of the proceedings, the petitioner was prematurely removed from the Executive Council and in an arbitrary manner made junior to Dr. R.C. Sharma who replaced the petitioner in the Executive Council. The Vice Chancellor exerted extraneous pressure on the petitioner to withdraw the contempt proceedings. Threatenings were also extended which were complained by the petitioner to the Chancellor. On account of this malice petitioner was not made member of the Selection Committee which was challenged by the petitioner by way of a writ petition before the High Court. The High Court disposed off the said writ petition with a direction to move a representation before the Chancellor who was supposed to decide it withing four months. On 29.4.1999 the petitioner was again inducted in the Executive Council.

[8] On 30.6.1999, the petitioner was placed under suspension on farcical and irrational charges and an inquiry was initiated against him in which he was given seven days time to submit his reply. A three member Committee was constituted to inquire into the matter which never met and its report was also not signed by all the members. Moreover, no opportunity was provided to the petitioner for submitting his written statement in defence or of being heard in person. The said report was forwarded to the petitioner with a covering letter dated 1.7.1999. After receiving it, the petitioner submitted a detailed reply. It was alleged in the report that the petitioner had made interpolations in the marks provided to his son who had been a student of German Certificate Course of the year 1993. It was also alleged in the report that for getting promoted to the post of professor without completing the due process and also for wrong fixation of his pay, the petitioner manipulated things in his favour by using his undue influence while he was not eligible for it. Petitioner made specific request to the effect that all the documentary evidence made basis of the charges be supplied to him but no such evidence was provided. A letter dated 24.4.2000 was sent to the petitioner by Sri Manzoor Ahmad, Vice Chancellor mentioning therein that the inquiry committee has found the charges true and correct. However, pursuant to the order dated 16.2.2000 of his Excellency the petitioner submitted his explanation again before the disciplinary Committee. Shri Manzoor Ahmad was himself chairman of this Committee. On 2nd May, 2000 the petitioner was called at 12.10 PM and was informed that his reply has been received. Shri Manzoor Ahmad alone was present there, therefore, the petitioner requested him that when other members of the Committee are absent, it would not be appropriate to proceed with the matter inasmuch as for the purposes of cross examination the witnesses are also not present and also the original records were not being shown. The other two members of the Disciplinary Committee namely Dr. Dharam Kirtee and Shri Sharat Chand were not present during this deliberation. Petitioner remained present in the chamber of the Vice Chancellor up to 4.00 PM. The Chancellor had also been apprised of this fact.

[9] Thereafter, vide resolution dated 7.7.2000 of the Executive Council, the services of the petitioner were terminated.

[10] Petitioner had also reliably learnt that some manipulations were made by the Vice Chancellor to the effect that some purported notice dated 25.5.2000 was sent fixing 30th May, 2000 and manipulations had been made in the records about service of the aforementioned notice by getting endorsement procured to the effect that on the visit by the postman it was being informed that the incumbent in question has gone to a doctor and did not meet the postman. The proceedings drawn against the petitioner were ex-parte. The impugned order is in clear violation of principles of natural justice and is illegal and unwarranted. Hence this writ petition.

[11] Respondents have filed a counter affidavit refuting the allegations levelled against them by the petitioner in his writ petition. It is further submitted that the results of the German language was kept pending by the petitioner who was having overall supervision and control in relation to the affairs of the concerned institute. After the viva-voce examination two separate mark-sheets were prepared, out of which one was having the signatures of external examiner and internal examiner both in which the son of the petitioner had secured 30 marks, while the second list was signed by only the external examiner in which the marks of the son of petitioner was interpolated as 38. Moreover, the second list was a forged list which was forwarded by the petitioner in his official capacity as Director. However, after acquiring the said information the Examination Committee took a decision to declare the results on the basis of first list only. With a mala-fide intention the petitioner has levelled personal allegations against Shri Manzoor Ahmad, the then Vice Chancellor of the University. The inquiry proceedings were conducted as per rule. Since Shri S.N. Chaturvedi (member of the Executive Council) was the convener of the inquiry committee, hence he has submitted the inquiry report under his signature. Charges narrated in the charge-sheet are apparently clear. These charges coupled with the inquiry report were considered and discussed in detail in the impugned order. The allegations raised by the petitioner against the then Vice Chancellor and Disciplinary Committee are without any basis or supporting evidence. Moreover, Shri Manzoor Ahmad, the then Vice Chancellor has not been arrayed as a party to the writ petition who could have been the best person to submit a reply against these allegations. There appears to be no irregularity or illegality in the impugned order. Hence the writ petition is liable to be dismissed.

[12] The petitioner has filed a rejoinder affidavit refuting the version of the counter affidavit and reiterating therein the averments made already in the petition.

[13] We have heard Shri Mishra, learned counsel for the petitioner, Shri Neeraj Tripathi, learned counsel for the Chancellor, Shri Sanjay Kumar Singh, learned counsel for the University and the Learned Standing Counsel for the State.

[14] The impugned order is mainly assailed on the ground that at the level of the appellate authority i.e. His Excellency the Chancellor three new charges have been sought to be substituted in place of original charges. New circumstances have been introduced in the body of the impugned order in regard to the second mark-sheet the external examiner Shri P.C. Aneja, who was not examined during the inquiry. The respondents have yet not explained as to how two candidates who have been shown absent in the first mark-sheet have been shown present and further both these candidates have been shown as passed and one candidate whose name was not placed in the first mark-sheet, his name finds place in the result declared. The copy of the purported inquiry report was never supplied to the petitioner and the impugned order is based on surmises and conjectures.

[15] In para 10 of the writ petition it is clearly asserted that on the recommendation of the Head of the Department and the Vice Chancellor the viva-voce examination was re-arranged because the external examiner was not ready to conduct the examination of only two students recommended by the head of the department and Vice Chancellor. Thus, in these circumstances under the control of Registrar the viva-voce was re-arranged in the presence of the external examiner Shri Aneja. It is further submitted that by that time the internal examiner Ms. Aggarwal had left the examination centre. The list so prepared by the external examiner was transmitted to the confidential section of the university by the concerned clerk. Respondents while replying this paragraph of the petition stated that the result of the examination was kept pending by the petitioner and it is only after his leaving the post of Officiating Director the preparation of second forged list could have come to the knowledge of all the respondents. The respondents nowhere denied this fact that the absentee candidates were re-examined and their result was subsequently declared by the respondents. Annexure 23 to the writ petition is photocopy of result of German language declared by the university showing therein the name of Akhtar Zama Khan as a successful candidate. Thus it is proved that while declaring the result, the cognizance of the second mark-sheet was also taken by the respondents. Therefore it cannot be said to be a forged list.

[16] Though the second list is said to have been a forged list but it is an admitted fact that the external examiner Shri Aneja was appointed by the University and both these lists bear the signatures of Shri Aneja and Shri Jitendra Raghuvanshi, Head of the Department. It is evident on record that the result of the two absentee students, as shown in the first list, namely Akhtar Zama Khan and Mohd. Dargahi, was declared by the university and this fact is nowhere denied in the counter affidavit by the respondents. This apparent contradiction has not been answered by the respondents.

[17] In para 129 and 135 of the writ petition the petitioner again reiterated that the two absentee candidates, who were absent in the first list, were declared passed by the University on the basis of the second list. The respondents did not controvert the facts mentioned in these paragraphs specifically in their counter affidavit. It is pertinent to mention here that the said second list also bears the signatures of the external examiner Shri Aneja as well as Mr. Jitendra Raghuvanshi, Head of the Department of German language and this fact of its being forged was never verified by the respondent by examining Shri Aneja and Shri Raghuvanshi.

[18] It is specifically mentioned in the writ petition in several paragraphs that the said viva-voce had been conducted in the chamber of Head of the Department of German Mr. Jitendra Raghuvanshi and this fact has not been controverted specifically by the respondents. Thus in case of any manipulation, the matter must have been reported by Shri Raghuvanshi immediately to the authorities. Therefore, the allegation to the effect that the petitioner committed forgery or made interpolation in the list did not get any support from the pleadings and evidence available on the record. It is also important to mention here that the Registrar Examination did not report any such matter to the university. Moreover, had there been any interpolation or any sort of forgery in the second list, the absentee candidates namely, Akhtar Zama Khan and Mohd. Dargahi Ahmad would not have been declared passed on the basis of this list.

[19] Now, we have to see as to whether any fair inquiry was conducted in the manner and if so as per law laid down by Hon'ble the Apex Court.

[20] It shall again be proper to mention here that the petitioner before being placed under suspension had leveled so many allegations against the then Vice Chancellor and on so many occasions even transmitted his representations to this effect to the Chancellor of the University also. It is specifically mentioned in the writ petition that on account of it the Vice Chancellor became annoyed and had been keeping animosity with the petitioner. It is alleged by the petitioner in the writ petition that without placing any material before the Disciplinary Committee and without its recommendation, petitioner was placed under suspension.

[21] As per charge-sheet, annexure 14 to the writ petition, two charges were leveled against the petitioner. The first was in relation to the alleged manipulation in the mark-sheet and the second was in relation to wrong fixation of his pay to the post of professor prior to its due date by using his undue influence. The petitioner was required to submit his explanation/written statement by 2nd May, 2000.

[22] On 2nd May, 2000, the petitioner appeared before Vice Chancellor in his chamber and told him that he has already transmitted his explanation yesterday by speed post but for ready reference he has also provided a copy of his explanation in the office of the Vice Chancellor on 2nd May, 2000 itself. The Vice Chancellor admitted that the explanation so transmitted by the petitioner has already been received in his office. As per this annexure 16 on the said date i.e. 2nd May, 2000, members of the Disciplinary Committee, Dr. Dharam Kirtee and Sharat Chand were not present in the chamber of Vice Chancellor. When objected by the petitioner regarding quorum of the Disciplinary Committee, the Registrar, Mr. Shailendra Nath present there started taking notes on the indication of Vice Chancellor which was never shown to the petitioner even after his request.

[23] A copy of the recommendations of the Disciplinary Committee is filed by the petitioner alongwith the supplementary affidavit dated 6.11.2016, a perusal of which shows that the petitioner appeared before the Disciplinary Committee on 2nd May 2000 and on his request the Disciplinary Committee decided to afford him another opportunity of personal hearing on 10th May, 2000. A notice to this effect was sent on 3rd May, 2000 but the petitioner was not found available on his address. Another notice dated 25th May, 2000 was again sent fixing the next date as 30th May 2000 but the notice could not be served again on account of non-availability of the petitioner at the address given by the petitioner. The Committee finally fixed 17th June 2000 and again a notice dated 8.6.2000 was sent to petitioner for information but as per report of process server the petitioner was not traceable. Therefore, the Committee decided the matter on the basis of written explanation already submitted by the petitioner as well as the evidence available on record. However, the petitioner denied any such exercise done by the Disciplinary Committee.

[24] It shall again be proper to mention here that following two charges were framed for the inquiry against the petitioner:-

(I) That while taking advantage of his position he manipulated the mark-sheet of diploma in German for the year 1993 to the benefit of his son Shri Raghvendra Nath Dubey.

(II) That he got his salary fixed in the grade of professor before being promoted under the undue influence of his office thereby causing financial loss to the university.

[25] The committee observed that the mark-sheet with his forwarding note for declaration of the result was transmitted to the university by the petitioner after great persuasion and later on it was found that two lists were prepared on the same day. The petitioner justified it through his reply by saying that the absentee students, who could not appear in the viva-voce, later on requested the external examiner for the conduct of their examination who acceded to their request on the condition that in such a case viva-voce would be conducted once again for all the students. The Committee was not satisfied with the reply of the petitioner on the ground that the act done by the petitioner was against the examination rules of the university. The Committee in its report further observed that vide explanation dated 30.4.2000, the petitioner changed his above stand and submitted that he had absolutely no connection with the award list and it was, in fact, others who were responsible for the manipulation. Thus the Committee observed that the charge leveled against the petitioner to this effect was proved.

[26] As discussed above, the said list contains the signature of Mr. Jitendra Raghuvanshi, Head of the Department of German language as well as Mr. Aneja, external examiner. If for the sake of argument it is presumed that the petitioner submitted two contradictory explanations before the Committee, it was the duty of the Committee to examine Mr. Jitendra Raghuvanshi as well as Mr. Aneja to verify the contention of the petitioner which was not done in the present case. They were neither summoned nor examined either orally or otherwise. Moreover, the absentee candidates of the first list were declared successful on the basis of the second list alleged to be forged. Therefore, without any substantive evidence on record, it cannot be assumed that any sort of forgery was committed in the second award list that can be even remotely attributed to the petitioner.

[27] It is observed by the Committee in relation to the second charge that the petitioner was appointed as Reader in the university on 25th May, 1978 and was promoted as Professor thereafter. It is further observed that the elilgibility for promotion is operative after 10 years of continuous service as Reader. The petitioner became eligible to be promoted as Professor on 25.8.1988 but since he had taken charge of the said post on 14.4.1993, therefore, he was eligible to draw the salary of Professor with effect from 14.4.1993 but against rules and regulations the petitioner got his salary revised without being so promoted from the date of eligibility by misrepresentation of facts and under his undue influence.

[28] It is nowhere said in the report of the Committee that the petitioner was drawing and disbursing officer (DDO) of the University and he himself fixed his salary. No evidence is relied upon by the Committee during the deliberations on this point. It appears that only on the basis of hypothetical thoughts and surmises the charge was presumed to have been proved against the petitioner. It is nowhere discussed in the report as to who else was responsible for wrong fixation of the salary and upon whom the undue influence of the petitioner was exerted. Therefore, for want of of any such evidence this charge also cannot be said to have been proved. The findings recorded against the petitioner are therefore perverse.

[29] However, the services of the petitioner were terminated on the basis of the recommendation of the Executive Council of the university and an order to this effect was communicated on 7.7.2000 by the Registrar of the University against which the petitioner preferred a representation/appeal & thereafter a review before the Chancellor which were also rejected vide order dated 4th May, 2002 & 6.7.2002 respectively.

[30] A perusal of recommendations made by the Disciplinary Committee in the matter of petitioner makes it clear that while conducting the inquiry due process was not followed. Both the charges leveled against the petitioner require adequate evidence - oral as well as documentary but in the present case the Committee did not deem it necessary to record any such evidence.

[31] It is undisputed that the petitioner before initiation of the inquiry had levelled many allegations against the Vice Chancellor.

[32] A Division Bench of this Court in [2015(3) ESC 1462 (All)(DB)], Prof. Amar Prakash Garg Vs. Chancellor, Chaudhary Charan Singh University, Meerut and others laid down certain principles in relation to the inquiry. Para 32 of the said case law runs as under:-

"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."

[33] The Apex Court in the case of State of U.P. Vs. Sheo Shankar Lal Srivastava, 2006(3)SCC276, 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."

[34] A Division Bench of this Court in Subhash Chandra Sharma Vs. Managing Director and another, 2000(1)UPLBEC 541, "considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subhash Chandra Sharma Vs. U.P. Cooperative Spinning Mills and others, 2001(2)UPLBEC 1475 and Laturi Singh Vs. U.P. Public Service Tribunal and others, Writ Petition No. 12939 of 2001, decided on 6.5.2005.

An oral inquiry would be necessary even if the delinquent employee has failed to submit reply to the charge-sheet. In State of U.P. And another Vs. T.P. Lal Srivastava, 1997 (1) LLJ 831, the Hon'ble Apex Court held that even if the employee has failed to submit reply to the charge-sheet, it would not absolve the Inquiry Officer from proceeding with the oral inquiry and submit report as to whether charge is proved or not. After recording of evidence, he will find out whether the charge is proved or not and submit report to the disciplinary authority."

[35] The Hon'ble the Apex Court in the case of Roop Singh Negi Vs. Punjab National Bank and others (2009) 1 Supreme Court Cases (L&S) 398 in paragraph No. 14 of the said judgment has held as under:-

"(14) Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."

[36] In Kaptan Singh Vs. State of U.P. and another. 2014(8) ADJ 16 (DB), a Division Bench of this Court has held that the documentary evidence have to be examined on the date fixed for inquiry whether in the presence of the delinquent or in absentia (ex-parte).

[37] In the present case the departmental inquiry was not conducted as per the law laid down by the Courts. Neither the oral evidence was led nor any opportunity of defence was provided to the petitioner. Shri Aneja and Shri Jitendra Nath were also not examined to prove the first charge. Moreover, as the results were declared on the basis of the second list, therefore, it shall not be proper to presume this list as a forged list.

[38] None of the witnesses were examined to prove the fact that the petitioner used his undue influence for getting his salary fixed in the grade of professor before its due date.

[39] All the aforesaid issues which were raised by the petitioner before the learned Chancellor as is evident from his representations yet the learned Chancellor not only ignored the relevant aspects as discussed hereinabove but to the contrary new circumstances that had been introduced as pointed out hereinabove were taken into consideration which vitiates the impugned order. The same was also not corrected on the filing of a review application.

[40] On the basis of above discussions, it is clear that impugned orders dated 7.7.2000 terminating his services based on the basis of said inquiry report and the orders dated 4.5.2002 and 6.7.2002 suffer from perversity and are not sustainable. Hence, the impugned orders are hereby set aside and the writ petition is accordingly allowed.

[41] The petitioner shall be entitled to all such benefits including pay and other allowances to which he was entitled prior to the passing of the impugned order including the order of suspension after adjusting the subsistence allowance paid to him already deeming him to be in continuous service. As the petitioner is now retired, therefore, the respondents particularly, respondent no. 3 is directed to provide all such consequential benefits admissible to the petitioner within three months from the date of production of a certified copy of this order. No orders as to costs.

Order Date: 20.9.2017

BKM/-