Rajesh K.V. @ Rajesh Kaleerakath ... vs Visva-Bharati & Ors
2022 Latest Caselaw 1662 Cal

                IN THE HIGH COURT AT CALCUTTA
             CONSTITUTIONAL WRIT JURISDICTION
                          APPELLATE SIDE

Present:
The Hon'ble Justice Moushumi Bhattacharya
                         WPA 1668 of 2022
              Rajesh K.V. @ Rajesh Kaleerakath Venugopal
                                 Vs.
                         Visva-Bharati & Ors.



For the Petitioner                 : Mr. Arunava Ghosh, Adv.
                                       Mr. Puspal Chakraborty, Adv.
                                       Ms. Prisanka Ganguly, Adv.


For the University                 : Mr. Pranit Kumar Bag, Adv.
                                       Mr. Anuj Kumar Mishra, Adv.


Last Heard on                      : 16.03.2022.

Judgment on                        : 30.03.2022.



Moushumi Bhattacharya, J.

1. The petitioner prays for quashing of a show-cause and a Charge-

sheet dated 24th and 27th February, 2021 respectively and orders of

suspension issued to the petitioner from 13th March, 2021 onwards.

2. The petitioner is an Assistant Professor of Drama in the

Department of Rabindra Sangit, Dance and Drama, Sangit-Bhavana in

the Visva-Bharati University and was confirmed to the said post with

effect from 19th March, 2012. The petitioner is also the General

Secretary of Visva-Bharati Adhyapaka Sabha (Visva-Bharati Teachers'

Association).

3. The impugned show-cause was issued to the petitioner on 24th

February, 2021 asking the petitioner to explain why appropriate

administrative measures will not be taken against him for negligence of

duty and misconduct. The said letter was issued by the Registrar

(Acting) of the University. The petitioner replied to the show-cause by a

letter dated 26th February, 2021 disputing the allegation of negligence of

duty and misconduct. The impugned Charge-sheet was issued against

the petitioner on 27th February, 2021 by the Registrar (Acting) of the

University; the Article of Charge states that the petitioner was involved

in negligence of duty and misconduct. The petitioner addressed his

defence to the Memorandum of Charges by way of a letter dated 8th

March, 2021. The impugned order of suspension was issued thereafter

on 13th March, 2021 by the Registrar (Acting) of the University by which

the petitioner was placed under suspension with immediate effect

pending disposal of the disciplinary proceedings. The disciplinary

proceedings were extended several times thereafter which would be

evident from orders until 20th December, 2021 by which the period of

suspension was also extended.

4. Learned counsel appearing for the petitioner takes a point of

jurisdiction in that the Registrar of the University was not empowered to

issue the impugned notices or take any disciplinary action against the

petitioner. Counsel relies on The Visva-Bharati Act, 1951 for this

purpose. It is also submitted that the Vice-Chancellor of the University

also does not have the power to initiate any disciplinary action against

any person of the petitioner's position. Counsel submits that since the

Registrar did not have the jurisdiction to initiate disciplinary

proceedings under the Act, all subsequent steps would be null and void.

Counsel further submits that the Memorandum of Charge is vague as it

does not contain any particulars of misconduct by reason of which the

Charge-sheet should be quashed.

5. Learned counsel appearing for Visva-Bharati University submits

that there has been no delegation of power or duty by the Vice-

Chancellor to the Registrar and that the impugned disciplinary

proceedings have been initiated and are being carried on through

express direction of the Vice-Chancellor. Counsel relies on Office Notes

to urge that the Registrar has been expressly authorized to take all steps

by the Vice-Chancellor which would be evident from the signature of the

latter on the Office Notes. Counsel relies on a Handbook published in

2019 by the University Grants Commission to submit that the Vice-

Chancellor has the power to delegate his powers in special

circumstances but that in the present case, there is no delegation of

power and the direction of the Vice-Chancellor have been duly

communicated to the petitioner by the Registrar of the University.

6. Since learned counsel appearing for the petitioner had taken the

point of jurisdiction of the Registrar to issue the impugned notices, this

point should first be dealt with.

7. Under clause 5.1 of The Statutes of the University, as amended

upto May, 2012- the Karma-Sachiva (Registrar), sub-clause 4(a) states

that the "the Karma-Sachiva (Registrar) shall have power to take

disciplinary action against such of the employees, excluding adhyapakas

of the University and other members of the academic staff, as may be

specified by the Karma-Samiti (Executive Council), by order, ...."

8. Under section 3(c) of The Visva-Bharati Act, 1951, Adhyapaka

"includes a Professor, Leader, Lecturer and any other person engaged in

imparting instruction in relation to any learning process....". The

petitioner is admittedly an Adhyapaka and hence the Registrar did not

have the power under the Statutes of the University to issue the

impugned notices of show-cause and suspension.

9. The power to suspend an Adhyapaka or other member of the

academic staff is provided under section 38.A of the Act which includes

the power of the Upacharya (Vice-Chancellor) to place an Adhayapaka

or a member of the academic staff under suspension upon fulfilment of

the conditions in section 38.A (1). 38.A (2) however requires the order of

suspension to be reported forthwith to the Karma-Samiti (Executive

Council) and 38.A (3) empowers the Karma-Samiti to revoke the order of

suspension if it is of the opinion that the circumstances of the case do

not warrant the suspension. The Upacharya is also empowered to take

immediate action in any matter under section 14 of the Act but such

action shall be reported to the authority which in turn may refer the

matter to the Paridarsaka (Visitor) whose decision on the matter shall

thereafter be final. The second proviso to section 14(3) contains the

provision for appeal by an employee against the action taken by the

Upacharya. The appeal shall be placed before the Karma-Samiti

(Executive Council) which has the power of confirming, modifying or

reversing the action taken by the Upacharya. The aforesaid provisions,

i.e., sections 38 and 14 stipulate a specific procedure for an order of

suspension of an Adhyapaka or a member of academic staff. The

procedure is democratic and takes due care against any arbitrary or

unilateral act of suspension of an Adhyapaka or of the employee of the

University by referring the same to the Karma-Samiti (Executive Council)

which has a power to revoke the order of suspension or confirm/reverse

the action taken by the Upacharya.

10. The admitted facts in the present case, as would be apparent from

the records, do not indicate that the University followed the procedure

provided for under sections 38 or 14. The issue of the show-cause

notice, the Memorandum of Charges and the order of suspension are

contrary to the Act and the Statutes of the University since a Registrar

cannot initiate any disciplinary action against an Adhyapaka (clause 5.1

of the Statutes). Further, even if it is assumed that the Registrar was

acting under the direction of the Vice-Chancellor in issuing the

impugned notices, the procedure provided under sections 38 and 14 of

the Act, which empowered the Vice-Chancellor to suspend an

Adhyapaka or take steps against an employee, has not been followed.

The impugned order of suspension states, inter alia, that "the

undersigned is directed to communicate that Shri Rajesh K.V, Assistant

Professor, ...... is placed under suspension with immediate effect". There

is no indication in any of the impugned notices as to who has directed

the Registrar to take the steps complained of. In fact, there is no

reference in the impugned documents of the Vice-Chancellor being the

authority who has directed issuance of the show-cause, the Charge-

sheet or the order of suspension. The order of suspension mentions the

"competent authority" without any further reference as to the identity of

the authority. The Office Notes relied upon by counsel appearing for the

University shows handwritten endorsements with the words "Vice-

Chancellor" on the notes but under the letter head of the "Visva-Bharati

Establishment -III". These Notes cannot be taken as evidence that the

Vice-Chancellor was the directing authority in connection with the main

action. The UGC Handbook and Gambhirdan K. Gadhvi vs State of

Gujarat; 2022 SCC OnLine SC 256, placing reliance on the handbook is

not an authority for the proposition that precipitate action can be taken

against an Adhyapaka or an employee of a University without having

the power to do so under the relevant Statutes.

11. Moreover, the Charge-sheet is vague and devoid of particulars.

The Memorandum/Charge-sheet as stated is that "Shri Rajesh K.V., ......

was involved in negligence of duty. Such act may be regarded as

misconduct." The term misconduct has not been defined in the Visva-

Bharati Act, 1951 read with the Statutes of the University. Hence, it was

imperative for the person competent to issue the Charge-sheet to define

the term misconduct and in what manner the petitioner was guilty of it.

Significantly, the list of documents by which the article of charge was

framed only consists of the show-cause notice and the reply of the

petitioner to such show-cause notice. There are no other documents

included in the list for proposing the charge of misconduct against the

petitioner. The Supreme Court in A.L. Kalra vs Project and Equipment

Corporation of India Ltd.; (1984) 3 SCC 316 noticed the grey area in

cases of misconduct, particularly where the relevant statute does not

define the term, and held that it is obligatory on the employer to specify

and define the term with decision where misconduct entails penal

consequences. The Supreme Court in Union of India vs J. Ahmed; (1979)

2 SCC 286, quoted Stroud's Judicial Dictionary to describe misconduct

as that arising from ill motive and not acts of negligence, errors of

judgment or innocent mistake (underlined for emphasis).

12. This Court is of the view that since the Registrar (Acting) did not

have the power to initiate disciplinary action against the petitioner, who

is an Adhyapaka of the University, the defect of jurisdiction goes to the

root of the matter and nullifies all subsequent steps taken thereafter.

The Charge-sheet and the order of suspension are hence without

authority and should be quashed on that basis. In other words, to quote

the legal maxim sublato fundamento cadit opus, if the foundation of the

action is removed, the superstructure must fall; refer Chairman-cum-

M.D., Coal India Ltd. vs. Ananta Saha; (2011) 5 SCC 142.

13. In view of the above reasons, WPA 1668 of 2021 is allowed in

terms of prayers (a) and (b). The impugned show-cause notice dated 24th

February, 2021, the Charge-sheet dated 27th February, 2021 and the

orders of suspension commencing from 13th March, 2021 are revoked.

The writ petition is disposed of accordingly.

Urgent Photostat certified copies of this judgment, if applied for,

be given to the respective parties upon fulfillment of requisite

formalities.

(Moushumi Bhattacharya, J)