Guru Ghasidas Central University vs Dr. Ashish Rastogi
2022 Latest Caselaw 6829 Chatt

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                                                              AFR

      HIGH COURT OF CHHATTISGARH, BILASPUR

                     WA No. 440 of 2021
1. Guru Ghasidas Central University through Registrar, Guru
   Ghasidas Central University, Koni, Tehsil & District Bilaspur
   (CG)
2. Registrar Guru Ghasidas University, Koni, Tehsil & District
   Bilaspur (CG).
3. Disciplinary Authority & Vice Chancellor, Guru Ghasidas
   Central University, Koni, Tehsil & District Bilaspur (CG)
4. Enquiry Officer (Prof. P.K. Bajpai) Department of Physics,
   Guru Ghasidas University, Kon, Tehsil & District Bilaspur,
   Bilaspur (CG)
                                    ---- Appellants/Respondents
                           Versus
• Dr. Ashish Rastogi, aged about 44 years, S/o Shri Sitaram
  Rastogi, Occupation Service, (Now Removed) Worked as
  Lecturer (Selection Grade), equivalent to Assistant Professor,
  Department of Computer Science & Information Technology
  Guru Ghasidas Central University, Bilaspur, Chhattisgarh, R/o
  32, J.P. Vihar Mangla, Bilaspur, Tehsil & District Bilaspur (CG)
                                                 ---- Respondent
                             AND
                     WA No. 23 of 2022
• Dr. Ashish Rastogi S/o Late Shri Sitaram Rastogi, aged about
  52 years, R/o 32, J.P. Vihar, Mangla, Bilaspur, Tehsil & District
  Bilaspur (CG)
                                         ---- Appellant/Petitioner
                           Versus
1. Guru Ghasidas Central University Through Registrar, Guru
   Ghasidas Central University, Koni, Tehsil & District Bilaspur,
   Chhattisgarh
2. Registrar Guru Ghasidas Central University, Koni, Tehsil &
   District Bilaspur, Chhattisgarh
3. Disciplinary Authority And Vice-Chancellor, Guru Ghasidas
   Central University, Koni, Tehsil & District Bilaspur (CG)
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    4. Enquiry Officer (Prof. P.K. Bajpai), Department of Physics,
       Guru Ghasidas Central University, Koni, Tehsil & District
       Bilaspur, Chhattisgarh
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W.A. No.440/2021 For the Appellants : Mr. Ashish Shrivastava, Sr. Advocate assisted by Mr. Aman Pandey, Advocate For the Respondent : Mr. Ranbir Singh Marhas, Advocate.

W.A. No.23/2022 For the Appellant : Mr. Ranbir Singh Marhas, Advocate For the Respondents : Mr. Ashish Shrivastava, Sr. Advocate assisted by Mr. Aman Pandey, Advocate

Judgment Reserved on 08/08/2022 Judgment delivered on 16/11/2022

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Hon'ble Shri Arup Kumar Goswami, Chief Justice Hon'ble Shri Parth Prateem Sahu, Judge

CAV ORDER

Per Parth Prateem Sahu, J

1. Both the above writ appeals arise out of common order and

therefore, they were heard together and are being decided by

this common order.

2. Appellant University filed W.A. No.440/2021 challenging

legality and sustainability of order dated 24.11.2021 passed in

WPS No.1154/2012 by which learned Singe Judge allowed

writ petition in part, held punishment of removal from service

to be disproportionate, modified punishment of dismissal from

service into stoppage of one increment with non-cumulative

effect and directed for reinstatement of respondent forthwith

with all consequential service benefits.

3. Appellant Employee also filed W.A. No.23/2022 challenging

imposition of penalty of stoppage of one increment with non-

cumulative effect vide order dated 24.11.2021 passed in WPS

No.1154/2012.

4. Brief facts of case are that in the year 1996 respondent-

employee was appointed as Lecturer in the Department of

Computer Science and Information Technology of Guru

Ghasidas University, Bilaspur. He was awarded Ph.D. degree

in the year 2002 and thereafter he was given pay-scale of

'Selection Grade'. On 19.5.2010 one student by name Vikas

Parihaar, who was studying in 2nd Semester of M.Sc.

(Information Technology), came to respondent-employee and

informed that he has been alleged to have been involved in

unfair means while writing exam. Respondent-employee

asked him to inform this fact to the Head of Department.

Thereafter, respondent-employee along with Professor Amit

Saxena (Head of Department), Shri Sadhu Prasad Pandey

and Dr. H.S. Hota, unauthorizedly entered into examination

center / control room and created obstructions in discharge of

duties by the staff posted there. Respondent-employee was

placed under suspension. Charge sheet containing two

charges was served upon respondent-employee. First charge

against respondent employee was that, he unnecessarily/

unauthorizedly entered into examination center without prior

permission or information or direction of any competent

authority and without there being any solid reason, and

thereafter created obstructions in discharge of duties by

officers/teachers posted in examination center/ examination

control room, which amounts to grave indiscipline,

misbehavior and misconduct as also violation of provisions of

the Central Universities Act, 2009 (for short 'the Act of 2009')

read with the University Ordinances / Statutes and the Central

Civil Services (Classification, Control and Appeal) Rules, 1965

(for short 'the Rules of 1965'). Second charge against

respondent employee was to the effect that on 19.5.2010 he

made unnecessary and unwanted interference by arguing in

high pitch with the Invigilator in connection with unfair means

case of Vikas Singh Parihar, student of 2nd semester of M.Sc.

(IT), and also prevented exam staff from sealing answer

sheets and record of said student, which amounts to disloyalty,

irregularity and serious misconduct.

Respondent employee submitted reply to charge sheet

denying charges leveled against him. The Enquiry Officer was

appointed, who on completion of enquiry proceedings,

submitted enquiry report dated 7.8.2010 holding that charges

leveled against respondent employee are found proved except

the charge that he interfered in proceedings of sealing of

answer sheets. It was further recorded that Professor Amit

Saxena, Head of Department, is also found involved, but since

he was not charge sheeted, no comment is being made. On

the basis of enquiry report submitted by the Enquiry Officer,

the Vice Chancellor vide order dated 29.2.2012 inflicted major

penalty of removal from service upon respondent employee.

The order dated 29.2.2012 was put to challenge by

respondent employee by filing writ petition.

Learned Single Judge vide order impugned affirmed

findings recorded by the Enquiry Officer in report dated

7.8.2010 that charges of misconduct leveled against

respondent-employee are found proved, but held that penalty

of removal from service imposed on respondent employee is

shockingly disproportionate to charges of misconduct held

proved against him and consequently, modified penalty of

removal from service into stoppage of one annual increment

with non-cumulative effect and directed for forthwith

reinstatement of respondent employee in service with all

consequential service benefits.

5. Learned Senior Counsel for appellant - Guru Ghasidas

University would submit that the order dated 29.2.2012 was

passed after following due procedure prescribed under the

Rules of 1965. Delinquent employee was given proper

opportunity of hearing, reply was called to the charges and

also to report submitted by Enquiry Officer. Dissatisfied with

reply submitted by respondent employee, the Vice Chancellor

inflicted penalty of removal from service. He contended that

conduct of respondent employee falls within the purview of

'misconduct' as defined in Statute No.31- Conditions of

Service for University Employees. Clause 62 (c) of Part-VI of

Statute 31 says that every employee shall at all times do

nothing which is unbecoming of an employee of the University.

Further, Clause-70 envisages that any infringement of Clause

62 to 69 of the Statute 31 shall be regarded as subversive of

good discipline and misconduct and will well justify initiation of

disciplinary action against such employee. The act of

respondent employee, attracting charges leveled against him,

falls within purview of 'gross misconduct'. Learned Single

Judge without properly appreciating the facts and

circumstances of case as also reply submitted by appellant

University, reduced punishment of removal from service into

minor penalty, which is contrary to law. The High Courts in

exercise of jurisdiction under Article 226 of the Constitution of

India cannot act as an appellate authority in respect of matters

having departmental inquiry and substitute its opinion as an

appellate authority when charges stand proved. Interference

with quantum of punishment, if charges stand proved, is not

permissible merely because the Court finds punishment to be

disproportionate.

He next contended that even if the Court reaches to

conclusion that penalty imposed upon respondent-delinquent

employee was shockingly disproportionate, the imposition of

penalty by High Court itself is beyond the scope of judicial

review in exercise of power under Article 226 of the

Constitution of India. In support of his contention, he placed

reliance on judgment of Hon'ble Supreme Court in cases of

State Bank of Bikaner & Jaipur vs. Nemic Chand Nalwaya,

reported in (2011) 4 SCC 584 and Union of India vs. P.

Gunasekaran, reported in (2015) 2 SCC 610.

He further contended that even if one of charges was

not found proved by the Enquiry Officer, the same would not

curtail power of Disciplinary Authority to impose major penalty,

more so when charges found proved against delinquent

employee are grave in nature. In support of his contention, he

placed reliance upon judgment of Hon'ble Supreme Court in

case of Union of India Vs. Sardar Bahadur, reported in

(1972) 4 SCC 618.

6. Per contra, learned counsel for respondent employee submits

that by filing WA No.23/2022, respondent employee also

challenged the order passed by learned Single Judge mainly

on the ground that Executive Council exceeded jurisdiction

while delegating its power to the Vice-Chancellor of University

to impose any punishment upon delinquent employee.

Statute-25 (2) starts with non-obstante clause and therefore, it

is only Executive Council, who is having jurisdiction to remove

a teacher or principal of academic staff, and not the Vice

Chancellor. Delegation of power by Executive Council to

impose punishment and removing/terminating from service is

not provided under the Statute. The members of Executive

Council were also witnesses against respondent employee

and therefore, they ought to have recused themselves from

meeting that took decision with regard to respondent

employee.

In alternate, he also contended that learned Single

Judge took note of the fact that no action whatsoever has

been taken against other Professors/Lecturers of University

who unauthorizedly entered into examination center along with

respondent employee, hence the University discriminated

between two employees for their one and the same act.

Enquiry Officer also recorded involvement of Professor Amit

Saxena (HoD), but he was not charged for his act. Upon

considering entire material available in enquiry report

submitted by Enquiry Officer, learned Single Judge held that

penalty inflicted upon respondent employee is shockingly

disproportionate to the charges found proved against him.

In support of his contention, learned counsel placed

reliance upon decisions of Hon'ble Supreme Court in cases of

Chandavarkar Sita Ratna Rao vs. Ashalata S Guram,

reported in (1986) 4 SCC 447; Union of India vs. G.M. Kokil,

reported in (1984) Supp. SCC 196; Marathwada University

v. Seshrao Balwantrao Chavan, reported in (1989) 3 SCC

132; Kumar Pankaj Anand v. Central University of

Jharkhand & ors, reported in 2016 SCC Online Jharkhand

829; Dr. P.G. Najpande v. The Jawaharlal Nehru Krishi

Vishwavidhyalay & ors, reported in ILR 1999 MP 200.

7. We have heard learned counsel for the parties and perused

record of writ appeals as also writ petition.

8. As regards writ appeal filed by delinquent employee, the order

of learned Single Judge is challenged primarily on following

grounds that;

(i) learned Single Judge failed to appreciate that order of

punishment is passed by the authority not competent;

(ii) charges framed against employee do not fall within the

ambit of 'misconduct', as provided in Clause 13 of

Statute No.31, and therefore, employee could not have

been punished in department enquiry proceeding

initiated against him.

(iii) Member of Executive Council were also witnesses

against delinquent employee and therefore, they should

have recused themselves from the meeting that took

decision against the employee.

9. As regards second ground raised on behalf of appellant

employee in writ appeal, learned counsel for employee only

referred Clause-13 of the Statute No.31 in support of his

contention wherein grounds of termination are mentioned in

Clause 13 (a), which reads as under:-

"13 (a) The services of a University employee may be terminated on any of the following grounds:-

            (i)     Willful neglect of duty.
            (ii)    Misconduct.
            (iii)   Physical or mental illness.
            (iv)    When the post he is holding is abolished.
            (v)     Conviction in a Court of Law for an offence
                    involving moral turpitude.

10. Clause13 (b) of the Statute No.31 specifies lapses which

would constitute 'misconduct' on the part of persons holding

teaching posts in the University and the same is reproduced

below:-

"(b) The following lapses would constitute misconduct on the part of persons holding teaching posts in the University Teaching Department / Schools of Studies-

(i) Failure to perform his academic duties such as Lectures, demonstration, assessment, guidance, invigilation etc.

(ii) Gross partiality in assessment of students, deliberately over making/ under marking or attempts at victimization on any grounds.

(iii) Inciting students against other students, colleagues or administration. This does not interfere with the right of a teacher to express his difference on principles in seminars or other places where students are present.

(iv) Raising questions of caste, creed, religion, race or sex in his relationships with his colleagues and trying to use the above considerations for improvement of his prospects.

(v) Refusal to carry out the decisions by appropriate administrative and academic bodies and/or functionaries of the University. This will not inhibit his right to express his differences with their policies or decision."

11. Part-VI of the Statute No.31 deals with 'miscellaneous'

provisions. Relevant clauses of Part-VI are quoted below for

ready reference:-

"62. Every employee shall at all times:

(a) maintain absolute integrity;

(b) show devotion to duty; and

(c) do nothing which is unbecoming of an employee of the University.

63.No employee shall join or continue to be a member of such association the objects or activities of which are prejudicial to the University or Public Order, decency, or morality.

64. No employee shall:-

(i) engage himself or participate in any demonstration which is prejudicial to the interest of the University, public order, decency or morality or which involves in contempt of Court, defamation or incitement to an offence, or

(ii) resort to or, in any way, abet any form of violence in connection with any matter pertaining to his service or the service of any employee.

70. Any infringement of provisions of paras 62 to 69 of this Statute shall be regarded as subversive of good discipline and misconduct and will well justify the initiation of disciplinary action against such employee."

12. From perusal of provisions under Clauses 62 & 63 of the

Statute No.31, it is clear that infringement of any of the

provisions under Part-VI of the Statute No.31 amounts to

'misconduct' and will justify initiation of disciplinary action

against such employee. Learned counsel for delinquent

employee only referred some portion of the provisions of Part

VI specifying misconduct with respect to teachers only but not

pleaded and made submissions with respect to conduct of all

employees of the University including teaching staff.

13. So far as the ground with respect to competency of authority

who passed the order imposing major penalty of removal from

service on delinquent employee is concerned, perusal of order

dated 29.2.2012 (Annexure P-1 to writ petition) would show

that it was passed by the Vice-Chancellor-cum-Disciplinary

Authority. True it is that Clause-25 of the Second Schedule of

the Act of 2009 grants power to the Executive Council to

remove a teacher or member of academic staff or other

employee, as the case may be, on the ground of misconduct

after providing opportunity of hearing. Statute under the Act of

2009 provides for delegation of powers. Clause 39 of the

Second Schedule of the Act of 2009 provides that any officer

or authority of the University may delegate his or its power to

any other officer or authority or person under his or its

respective control and subject to the condition that overall

responsibility for the exercise of the powers so delegated shall

continue to vest in the officer or authority delegating such

powers. Clause-39 reads thus:-

"39. Subject to the provisions of this Act and the Statutes, any officer or authority of the University may delegate his or its power to any other officer or authority or person under his or its respective control and subject to the condition that overall responsibility for the exercise of the powers so delegated shall continue to vest in the officer or authority delegating such powers."

14. Section 9 of the Act of 2009 prescribes the officers of the

University, which includes Vice-Chancellor. Section 11 says

that Vice-Chancellor shall be appointed by the Visitor in such

manner as may be prescribed by the Statute. Section 11 (2)

says that Vice-Chancellor shall be Principal executive and

academic officer of the University and shall exercise general

supervision and control over affairs of the University and give

effect to the decisions of all the authorities of the University.

'Executive Council' is one of the authorities of the University

prescribed in Section 19 of the Act of 2009.

15. Respondent University has taken a specific plea that

Disciplinary Authority is Executive Council. The Executive

Council in its meeting dated 14.2.2012 resolved to delegate

power/ authorization to Vice-Chancellor cum Chairman to take

action against teaching and non-teaching staff of University

based on enquiry report and in support thereof, respondent

University placed on record copy of Minutes of Emergent

Meeting of Executive Council dated 14.2.2012 along with an

application for taking additional submissions and documents

on record.

16. Perusal of minutes of meeting dated 14.2.2012 would show

that total seven members, which includes Chairman &

Secretary, were present in meeting; several agendas were

considered out of which six agendas were under the heading

"any other matter with permission of Chairman". Under

this heading, Item No.5 relates to taking of action against

teaching and non-teaching staff of University based on enquiry

reports. On this agenda, the Executive Council concluded

and resolved that Vice-Chancellor -cum- Chairman is

authorized to take action based on enquiry reports. Minutes of

Meeting further shows that it bears signature of only Vice-

Chancellor-cum-Chairman and Registrar (Acting) -cum-

Secretary of Executive Council. It does not bear signatures of

other members who were shown to be present in meeting of

Executive Council held on 14.2.2012. In such a situation, it is

to be considered whether meeting dated 14.2.2012 is validly

convened or not.

17. When under any rule, law or statute a body is constituted like

Executive Council consisting of more than one member and

any decision is to be taken with majority consensus by such

body, then presence of members of such body in meeting and

their agreement on any decision taken on any agenda/ issue,

is mandatory requirement. Presence of members of the

Executive Council could be ascertained from their signatures

in proceeding drawn on the date of meeting stated to be held

by Executive Council. Mere mentioning of names of members

or participants in meeting of Executive Council will itself not be

sufficient to say that meeting of Executive Council was

conducted with full quorum. In Minutes of Meeting dated

14.2.2012 placed before this Court it is mentioned that

following were present and seven names were mentioned, but

Minutes of Meeting was signed by only two persons at the end

of proceeding drawn and not by all seven members.

Ordinarily, Minutes of Meeting is to be signed by all members

who were present in meeting as a mark of their agreement to

decision/resolution drawn in the meeting. If minutes of

meeting is not signed by all members shown to be present,

then, it cannot be said that they attended the meeting.

Presence of members shown to be present is not proved. In

the aforementioned facts of case, as are reflecting from

documents placed on record by respondent University, this

Court is of the view that respondent University failed to

establish that Meeting of Executive Council stated to be held

on 14.2.2012 resolved to authorize Vice-Chancellor to take

action based on enquiry reports along with other decision. As

such, it cannot be said that Vice-Chancellor-cum Chairman of

Executive Council was having any authorization to pass order

dated 29.2.2012 (Annexure P-1 to writ petition).

18. Learned Single Judge framed two issues for consideration i.e.

(i) whether the Executive Council was well within its

jurisdiction to delegate its power to impose any of punishment

upon Vice Chancellor / respondent No.3 and that has rightly

been exercised by the Vice-Chancellor of the respondent

University; and (ii) Whether the order of punishment of

removal from service of the petitioner is disproportionate to

the misconduct found proved against him?. Learned Single

Judge dealt with Issue No.2 first and relying on decisions of

Hon'ble Supreme Court recorded finding on Issue No.2 that

punishment of removal from service imposed on delinquent

employee (petitioner) is disproportionate to misconduct found

proved against him and reduced punishment. After giving

finding on Issue No.2, learned Single Judge did not consider it

appropriate to decide Issue No.1.

19. In view of our above discussion, it is hereby declared that

order dated 29.2.2012 (Annexure P-1 to writ petition) is

without jurisdiction. Resultantly, WA No.23/2022 preferred by

delinquent employee is allowed. Impugned order passed by

learned Single Judge dated 24.11.2021 in WPS No.1154/2012

as also order dated 29.2.2012 (Annexure P-1 to writ petition)

are set aside. As we have held the order (Annexure P-1 to writ

petition) passed on the basis of enquiry report to be without

jurisdiction, WA No.440/2021 filed by appellant University is

dismissed.

20. Now the question arises as to what will be procedure to be

followed after setting aside of order of removal of delinquent

employee. The Constitution Bench of Hon'ble Supreme Court

in case of Managing Director, ECIL, Hyderabad etc. etc. v.

B. Karunakar, etc. etc., reported in AIR 1994 SC 1074

considered that in case removal/dismissal of employee is set

aside on technical grounds i.e. of committing some procedural

mistake, then the matter is required to be sent back to

authority concerned with liberty to proceed with inquiry

proceedings from the stage where procedural mistake had

crept in and to pass fresh orders in accordance with law.

21. In given facts and circumstances of case and in light of

decision of Hon'ble Supreme Court in B. Karunakar (supra),

the matter is remanded back to the Disciplinary Authority to

take appropriate decision and pass order based on enquiry

report in accordance with law.

22. In the result;

• WA No.440/2021 stands dismissed.

• WA No.23/2022 stands allowed in part.

                      Sd/-                                   Sd/-
           (Arup Kumar Goswami)                    (Parth Prateem Sahu)
                Chief Justice                            Judge
roshan/-