Chandan Koner vs The State Of West Bengal & Ors
2023 Latest Caselaw 1892 Cal

22.03.2023
 (S/L-01)
   Ct.-18
 (Susanta)

                                    W.P.A. 6850 of 2023

                                    Chandan Koner
                                        -Vs-
                          The State of West Bengal & Ors.

                 Mr. Jaydip Kar,
                 Mr. Billwadal Bhattacharyya,
                 Mr. Pijush Biswas,
                 Mr. Puspasish Gupta,
                 Mr. Abhishek Baran Das,
                 Ms. Srijon Chongdar,

                                                .... For the Petitioner.

                 Mr. Swapan Kumar Datta, AGP,
                 Mr. Tapas Kumar Mandal,
                                           .... For the State.

                 Mr. Arunangshu Chakraborty,
                 Mr. Arijit Bera,
                 Ms. Geniya Mukherjee,
                 Ms. Shrabani Banerjee,
                                  .... For the Respondent no. 2-4.

                 Mr. Srijib Chakraborty,
                                   .... For the Respondent no.5

                 Mr. Sudipta Nayan Ghosh,
                                 .... For the Respondent no.6.


                 Affidavit-of-service   filed    on      behalf   of   the

             petitioner be kept with the record.

                 The petitioner, on January 30, 2023 was

             appointed   as   the   Registrar       of    Kazi    Nazrul

             University on probation for period of one year from

             the date of his appointment.

                 The appointment of the petitioner has been

             terminated with immediate effect by the Vice-

             chancellor of the University vide the impugned
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letter bearing reference no. KNU/VC/23/17 dated

March 14, 2023.

    Mr. Jaydip Kar, learned senior counsel for the

petitioner submits that the order of termination is

wholly    without   jurisdiction   inasmuch   as   the

Executive Council of the University, in exercise of

the power conferred upon it by Section 11(1) of the

Kazi Nazrul University Act, 2012 (hereinafter

referred to as the 'said Act' in short)has appointed

the petitioner and the Council under Section 21(ix)

thereof enjoys the power to suspend, discharge or

otherwise punish the officers/employees of the

University. The Vice-Chancellor alone has no

authority to exercise the powers vested upon the

Council, far less to terminate the service of the

petitioner.

    Mr. Kar places reliance on the judgment of the

Co-ordinate Bench passed in W.P.A. 1668 of

2022(RAJESH K.V. @ RAJESH KALEERAKATH

VENUGOPAL vs. VISVA-BHARATI & ORS.) to

contend that the defect of jurisdiction affects the

foundation of the order of termination. He prays ad

interim order of stay of operation of the impugned

communication of termination.

    Mr.       Arunangshu       Chakraborty,   learned

counsel for the University authorities submits that

though the Vice-Chancellor in the impugned

communication, has referred to Section 32(3) of
                          3




the said Act but in fact he has exercised power

vested on him by Section 10(6) thereof. He further

submits that by virtue of the said provision of the

said Act, the Vice-chancellor is authorized to take

action in any matter of emergent nature, which he

considers expedient. Mr. Chakraborty cites the

decision of the Hon'ble Supreme Court in the case

of THE VICE-CHANCELLOR, JAMMU UNIVERSITY

AND ANOTHER vs. SHRI DUSHIANT KUMAR

RAMPAL reported in (1977) 2 SCC 616 to contend

that the Vice-Chancellor is entrusted to maintain

discipline in the University and the entrustment of

such task carried with it by necessary implication,

power to take whatever action necessary for the

purpose of maintaining discipline.

    Mr. Chakroborty strongly objects to the prayer

of Mr. Kar for an ad interim order of stay on the

ground that if such prayer is allowed, it would be

amounting to allowing of the writ petition itself at

the threshold and ultimately, if the order of

termination is sustained, the University would

suffer irreparable loss and injury.

    Heard the learned counsel for the parties,

perused the materials-on-record.

    The Executive Council of the University,

under Section 11(1) of the said Act, enjoys the

power to appoint the Registrar. The relevant
                                         4




   portion of the said provision of the said Act is

   reproduced below for ready reference:-

 The Registrar      11. (1) The Registrar shall be a whole-time officer of
                    the University and shall be appointed by the Executive
                    Council on the recommendation of a Committee
                    consisting of the Vice-Chancellor as Chairman, a
                    nominee of the Chancellor, two nominees of the
                    Executive Council and a nominee of the State
                    Government, and on such terms and conditions, as
                    prescribed by or under this Act.
                    (2)....
                    (3)...

           The      offer     letter        to    the      petitioner    for

   appointment on probation for one year in the post

   of Registrar was issued under the direction of the

   Executive         Council       of       the    University      on    the

   recommendation of the Standing Committee.

           The Executive Council of the University,

   therefore, has appointed the petitioner in exercise

   of      the      powers       vested           on    it    under      the

   aforementioned provision of the said Act.

           Section 21 of the said Act specifies the powers

   and        duties     of    the      Executive          Council,     sub-

   section(ix)         thereof       empowers           the       Executive

   Council, inter alia, to suspend, discharge or

   otherwise punish the officers/employees of the

   University.         The     relevant          portion     of   the   said

   provision of the said Act, for better appreciation, is

   quoted below:-

Powers and duties   "21. Subject to the provisions of this Act, the
 of the Executive   Executive Council shall exercise the following
      Council
                    powers and perform the following duties:-
                    ........

(ix) to appoint Officers and employees of the University and to fix their emoluments and define their duties and other terms and conditions of service in accordance with the

Statutes and the Ordinances and to suspend, discharge and otherwise punish in accordance with the Statutes and the Ordinances such Officers and employees.

..........

The Vice-Chancellor has invoked Section 32(3)

of the said Act to issue the letter of termination.

The said provision of the said Act need to be

quoted to appreciate its scope:-

32. .........

Letter of (3) If, at any time during the period of Appointment of Teachers, probation, the probationer's work is not Officers and considered satisfactory, the probationer shall Employees be discharged by the authority concerned."

The Vice-Chancellor, not being the appointing

authority, cannot be the 'authority concerned'

within the meaning of the said provision of the

said Act.

The power of the Vice-Chancellor to take

action in urgent situations under Section 10(6) of

the said Act is subject to confirmation by the

authority or Body which in the ordinary course,

would have dealt with the matter. The relevant

portion of the said provision is quoted below for

ready reference:-

Powers and 10. ......

duties of the (6) The Vice-Chancellor may take on behalf of Vice-Chancellor the University such action as he may deem expedient in any matter, which, in his opinion, is either urgent or of an emergent nature and shall report the same for confirmation at the next meeting to the authority or body, which, in the ordinary course, would have dealt with the matter :

Provided that if the action taken by the Vice- Chancellor is not approved by the authority or body concerned, the matter shall immediately

be referred to the Chancellor whose decision thereon shall be final.

The jurisdiction to terminate the service of the

petitioner vests exclusively with the Executive

Council in ordinary course, as such, the decision

of the Vice-Chancellor to terminate the service of

the petitioner is subject to the confirmation of the

Executive Council.

The letter of communication of termination of

service of the petitioner, being issued by the

authority having no jurisdiction affects its

foundation, therefore, the judgment of the Co-

ordinate Bench cited by Mr. Kar is a pointer to the

issue.

The judgment of the Hon'ble Supreme Court

reported in (1977) 2 SCC 616 relied on by Mr.

Chakroborty lacks relevance at this stage.

Generally, the operation of an order of

termination of service shall not be stayed pending

final disposal of the challenge to it as the said

course would be amounting to allowing the main

lis itself at the beginning but when the action of

termination is prima facie found to be without

jurisdiction, the operation of the action must be

stayed.

The apprehension of the respondents of

irreparable loss and injury in the event the stay, as

prayed for, is granted has no basis inasmuch as in

the event the impugned action is sustained, the

respondents would have the remedy of damages.

Therefore, the operation of the impugned

letter of communication of termination of service of

the petitioner is stayed for a period of three weeks

from date, or until further orders, whichever is

earlier.

The matter, however requires further

consideration after exchange of affidavits between

the parties.

The respondents, therefore shall affirm their

affidavits-in-opposition to the writ petition within a

week from date; reply thereto, if any, be affirmed

by the petitioner within one week from the date of

receipt of the copy of the said affidavits.

Matter to be listed after two weeks for final

disposal.

Urgent photostat certified copy of this order, if

applied for, be supplied to the parties upon

compliance with all requisite formalities.

(Biswajit Basu, J.)