Dr. T.J.O' Brien vs The University Of Delhi And Ors.
2006 Latest Caselaw 653 Del

JUDGMENT

S. Ravindra Bhat, J.

1. In these proceedings the Writ Petitioner has sought various reliefs. This pertains to his grievance in regard to an Order dated 16.4.2001 suspending him from the services of the second Respondent (hereafter called as 'the College').

2. The writ petition had been heard and disposed off by a judgment dated 17.5.2004 in which it was held that the Governing Body of the College was not empowered to suspend or terminate the services of the Petitioner, its Principal, without prior approval of the Executive Council. In the course of hearing the Petitioner had confined his reliefs to claim a challenge to the order of suspension on four specific grounds. The judgment set aside the suspension for the reason that it had been issued by the Governing Body and therefore not authorized by law. It was carried in appeal to the Division Bench which by its judgment dated 7.12.2005 in LPA No. 566/2004, set aside the judgment dated 17.4.2004 It was held that the Governing Body had power to suspend the Petitioner. The Division Bench required a fresh hearing and disposal on the other issues pertaining to the Petitioner's challenge to his suspension.

Facts of the Case :

3. The Petitioner was appointed as Principal of the College. He claims that, in 1999, immediately on assuming charge, he found a low level of academic discipline prevailing in the institution. Therefore, he took steps to restore the same, which was not to the liking of many staff members who got an enquiry instituted against him, which was initially under Justice M.L. Jain (Retd.) and later under Justice Satpal (Retd.). The main charge against the petitioner was of improper admissions and permitting change of course to 18 students in violation of the rules. There were also charges of financial irregularities.

4. The Justice Satpal Committee submitted a report dated 19.12.2000. The petitioner was suspended by order dated 16.4.2001, after the Governing Body of the college in its meeting held on 09.02.2001 had, on prima facie basis, found him guilty of alleged act of misconduct. The petitioner was asked by letter dated 03.04.2001 to offer his explanation regarding such alleged acts of misconduct. It is alleged in the writ petition that the suspension order was issued without following the proper procedure mentioned in the statutes and ordinances of the Delhi University and with ulterior motives. The petitioner further alleges that the Governing Body had not been legally constituted, since the Executive Council of the University had not appointed 8 members, as per provisions of Ordinance XX-B of the University Ordinances. It is alleged that recourse to statute 11-G by the Vice- Chancellor was improper and illegal.

5. In the counter affidavit filed by the College it is stated that after due deliberation of the findings of the Justice Satpal Committee Report, and materials on record before that Committee, the Governing Body of the College decided to initiate disciplinary action against the Petitioner. It is alleged that the Justice Satpal Committee had found the petitioner guilty of permitting change in the courses of students in contravention of the rules, and a serious misconduct which pertains to the core activity of teaching institutions like the college. The College also alleges that the petitioner was guilty of other financial irregularities. A copy of the Report has been produced with the Writ Petition.

6. The counter affidavit also alleges that at the commencement of the term in July 2000, the newly constituted Governing Body was faced with a number of problems. Both the morning and evening colleges were virtually non-functional, indiscipline was rampant, teaching was indifferent and the students of the college were suffering. A large number of teachers were appointed on adhoc basis for many years and regular appointment had not been made. Even Karamcharis of the college were agitating. Hence the new Governing Body systematically, tried to set right the inherited mess and restore the colleges (the Morning and the Evening colleges) to a state of proper management and teaching. It is further alleged in the counter affidavit that the Governing Body was shocked on receipt of the Justice Satpal Committee Report that the petitioner had permitted 18 students to illegally change their courses. This change was a major scandal in the Delhi University and it had become a practice for students with low marks to take admission in some 'Pass' course, having a low cut-off percentage, and thereafter, by suborning the college and the university authorities, switch over to courses of their choice.

7. The Governing Body took a a serious note of such a practice in Deshbandhu College (Evening). It is also alleged that the writ petitioner had taken oral orders regarding financial transactions from the Chairman of the Governing Body without first ascertaining the rules and regulations. He had obtained funds from the college for the air travel of his family and himself. The transactions were allegedly irregular and not in accordance with the rules and regulations. The Governing Body appointed an Agency, the Institute of Public Auditors of India, to examine the Books and Accounts of the college and the Institute has submitted its Report, which is adverse to the writ petitioner.

8. Mr. V.P. Chaudhary, learned senior counsel contended that the Petitioner's active involvement in the College and the strict measures taken by him led to resentment by employees, and other members of the staff. This created hostility and even though allegations of wrongful conduct on his part had been referred to a Committee known as the `Chibber Committee', which has exonerated, him another Committee, headed by Justice (Retired) M.L. Jain was constituted. Since the Committee was unable to finalise the report Justice (Retired) Satpal was appointed to look into the allegations levelled against the Petitioner. At that time the reference was made to Justice (Retired) Satpal, the Petitioner was asked to go on leave. This order dated 26.2.2000 was challenged in previous writ petition being WP(C) No. 1529/2000. During its pendency the third Respondent Shri P.K. Kaul was appointed as Chairman of the Governing Body on 27.6.2000. WP(C)No. 1529/2000 was allowed on 19.8.2000 and the Respondents were directed to permit the Petitioner to function. Despite directions, they did not comply with the order, which led to filing of contempt proceedings in which notice was issued on 28.8.2000, returnable on 9.11.2000. It was submitted that the Court had required the presence of the Chairman namely third Respondent in the contempt proceedings. The Respondents instead of complying with the directions of the Court filed a Letters Patent Appeal after initiation of the contempt proceedings. The Division Bench however deferred the hearing of the Appeal in view of the enquiry by Justice Satpal (Retired). Learned counsel submitted that Justice Satpal (Retired) submitted is report on 19.12.2000 in which the Petitioner was exonerated of all the charges except the allegation with regard to change of course of students from one discipline to another. He claimed that this did not involve any act of misconduct. In this background the Governing Body metting was held on 8.8.2001. It was submitted that neither the report of the Justice Satpal (Retired) was in the agenda nor even was any residual item mentioned. The Governing Body reconvened on 9.2.2001 and even then no copy of report was made available. There were total 16 members of the Governing Body and not all could attend. In this background a highly irregular and illegal decision was taken to suspend the Petitioner, on 9.2.2001.

9. Learned counsel submitted that the entire proposal to suspend the Petitioner was taken at the behest of third Respondent who had become hostile on account of the Petitioner having initiated contempt proceedings. Learned counsel submitted that only 12 persons were present on the date and the minutes had been improperly recorded. He submitted that some of the members of the Governing Body had protested and pointed out that the Petitioner had been exonerated by Justice Satpals Committee.

10. Learned counsel submitted that Ordinance XX-B of the University Ordinances which deals with Deshbandhu College, prescribes the composition of the Governing Body. As per Sub-clause (iv) between 5 to 8 members can be appointed by the Executive Committee. It was submitted that 4 persons whose term came to an end on 12.4.2000 were renominated by the Vice Chancellor for one year. They were Professor R.S. Dhankar, Professor T.K.V. Subramaniam, Professor A.K. Maurya and Professor V. Jhingran. It was submitted that the Director of Campus by a Note dated 14.7.2000 had recommended to the Vice Chancellor to nominate the 4 members of the Governing Body and that it had to be reported to the Executive Council. Pursuant to this proposal Vice Chancellor nominated 4 other members namely Shri Prakash Singh, Shri Ashok Aggarwal, Dr. Y.C. Halan and Dr. Ved Pratap Vidik. It was submitted that only power available to the Vice Chancellor was under Statute 11-G (iv) which was available in emergent circumstances. Learned counsel submits that the records produced by the University, disclose that there was no emergency. He relies upon the decision of this Court in Bhupender Singh v. University of Delhi 1989 (2000) DLT 66.

11. Learned counsel disputed the propriety of participation by Professor S.K. Vij, who appointed as OSD, by the Governing Body of the College with effect from 10.11.2000 and could not have been a Member of the Governing Body. He relies upon Section 2(d) of the Delhi University Act to say that in the absence of a Principal only a Vice Principal could be treated as a head of the College. There was no question of Professor Vij becoming an Acting Member since he had been designated as OSD. It was submitted that his participation was therefore illegal. Objection was also taken to the participation of Dr. A.P. Raaste appointed as officiating member with effect from 1.1.2001 due to absence of approval of the Executive Council to his appointment. A similar objection was taken to the participation of Dr. Sarla Gupta, who had participated in the meeting dated 9.2.2001 as a teacher's representative.

12. All these, it was submitted cumulatively showed that the Governing Body was illegally constituted and conducted its proceedings in a highly improper and illegal manner. Therefore, its decision to suspend the Petitioner, by Resolution dated 9.2.2001 as well as the impugned suspension order, were arbitrary and illegal.

13. Ms. Nitya Ramakrishnan, learned Counsel appearing for the second Respondent, refuted the allegation of illegal or improper constitution of the Governing Body of the College. She relied upon Statute 11-G (4) to say that the in the opinion of the Vice Chancellor an emergency situation existed, which necessitated recourse to the power, that had been ratified by the Executive Committee. She relied upon a noting of the Director, South Campus of May, 2000 to say that special circumstances had arisen which led to the entire matter being placed before the Vice Chancellor. Reliance was placed upon the nothings which indicted that letters had been written on 16.3.2000 and 19.5.2000, by which the then Chairman of the Governing Body expressed his desire to resign. He had also expressed his anguish on account of the existing state of affairs of the College. The 4 nominees' term ended on 12.4.2000. Two Members were continuing; Professor Chibber resigned and some action had to be taken in respect of two members, namely Professor Rangaswamy and Professor S.K. Grover.

14. It was also claimed that the management of the College was in a chaotic state of affairs and Dr. Balbir Singh, of the morning College had been asked to proceed on leave on orders of the Court. In these circumstances, nominations were made by the Vice Chancellor, in respect of 4 persons with effect from 13.4.2000 for a period of one year. The Vice Chancellor also decided to appoint the third Respondent, a former Cabinet Secretary, as Chairman with effect from 27.6.2000 and he also took action in nominating four others as Governing Body members for a period of one year. It was submitted that all these members were eminent in their fields. Learned counsel also relied upon the Resolution of the Executive Council dated 26.8.2000 ratifying the decisions of the Vice Chancellor and accepting the nominations of various members as well as that of the Principal. Counsel also defended the participation of Dr. Raaste and Dr. Sarla Gupta.

15. Counsel submitted that there was nothing improper or illegal in the procedure adopted by the College in holding a meeting on 8.2.2001 and subsequently on 9.2.2001. The Justice Satpal committee report was considered by no less than 12 persons who were present on 9.2.2001. Counsel relied upon a copy of the minutes of meeting to say that the Governing Body consciously took into consideration not only the summary (of the report) but the entire report which was before it, recommending the Petitioner's suspension. It was submitted that the overwhelming majority of the members were in agreement with the proposal. It was claimed that even members who expressed reservation or indicted their dissent did not dispute or complain of lack of opportunity in considering the report or allege that short notice had been given for the purpose.

16. Learned counsel submitted that the Petitioner cannot claim to be aggrieved, and invoke the extraordinary jurisdiction of this Court. It was submitted that there was rampant in-discipline amongst the staff which had seriously undermined academic work. The induction of new Governing Body members and measures taken after the appointment of the third Respondent, redeemed the situation to a great extent. It was also submitted that the findings of the Satpal Committee did not exonerate the Petitioner entirely. The charge of his permitting a large number of students to switch over from B.A. (Pass) to B. Com (Pass), was found to be highly irregular and merited further enquiry. It was also submitted that even though the Justice Satpal Committee had cleared the Petitioner of certain other charges, the Governing Body, which was in charge of the Management, acted within its powers to require the re-examination through departmental proceedings. Counsel for the Delhi University, Ms. Manider Acharya, supported the contentions of the College; she also produced copies of the proceedings of the Executive Committee of the University.

17. In the light of the above narrative and submissions, the following points arise for consideration:

(1) The legality and regularity of composition of the Governing Body;

(2) Whether the decision taken by the Governing Body dated 9.2.2001 was procedurely improper and therefore arbitrary;

(3) Whether the order of suspension was vitiated on account of mala fides.

18. Ordinance XX-B of the Ordinances of the University deals with Deshbandhu College. Clause 2 of that Ordinance lays down the composition of the Governing Body. That clause, so far as it is relevant for the purpose of this case, reads as under:

2. The executive Council shall constitute for the College, a Governing Body to administer affairs of the College, constituted as follows:

(i) A person appointed by the Vice-Chancellor-Chairman

(ii) Treasurer (Ex-officio)

(iii) The Principal of the College (Ex-officio)-Member-Secretary

(iv) Not less than five and not more than eight members appointed by the Executive Council, not necessarily from among themselves.

(v) Two members of the teaching staff from among the teachers of the Day Classes and two members of the teaching staff from among the teachers of the Evening Classes by rotation according to seniority for a term of one year.

...

Under Clause 3, ex-officio members are to hold office for a period of 1 year.

19. Statute 11-G(4) which confers emergency powers upon the Vice Chancellor reads as follows:

If, in the opinion of the Vice-chancellor, any emergency has arisen which requires that immediate action should be taken, the Vice-Chancellor shall take such action as he deems necessary and shall report the same for confirmation at the next meeting to the authority which, in the ordinary course, would have dealt with the matter:

Provided further if the action taken by the Vice-Chancellor is not approved by the authority concerned he may refer the matter to the Visitor whose decision thereon shall be final:

Provided further that where any such action taken by the Vice-Chancellor affects any person in the service of the University, such person shall be entitled to prefer, within thirty days from the date on which he receives notice of such action, an appeal to the Executive Council.

20. There can be no dispute about the fact that ordinarily the power to nominate members of the Governing Body vests with the Executive Council of the Delhi University. This is in view of the special circumstance that the College falls directly under the supervision of the University. In this case the materials on record disclose that in April, 2001 as indeed a few months later, there was turmoil in the College. The then Chairman of the Governing Body had resigned and also expressed his disinclination to continue in the institution. The materials also disclose that another Principal of the Governing Body had proceeded on leave and the tenure of several members of the Governing Body had ended or was coming to an end. All these were put to the Vice Chancellor who took decisions in keeping the overall state of affairs in mind. The first batch of members nominated by the Vice Chancellor was for period of 12.4.2001 to 12.4.2002. The second batch of 4 members was nominated again for one year's tenure namely 13.7.2001 and 13.7.2002. It was contended on behalf of the Petitioners that although these decisions were ratified, by Resolution No. 66 dated 26.8.2000 by the Executive Council the original decision itself was illegal and improper since there was no emergency and as a consequence the order of suspension was unsustainable in law.

21. The note placed on record and produced before the Court as also the Resolution had not explicitly used the term 'emergency'. However, for the purpose of determining legality of such an order, the terminology used cannot be conclusive unless there is positive obligation cast by the provision of law to record such state of affairs in the order itself. If on an overall consideration of the materials which emerges that an emergency like situation existed, the mere omission to use the expression, in my opinion cannot vitiate the order. Therefore, what is material and important for the Court is to discover whether an emergency situation could be said to have existed.

22. As noticed earlier the College was passing trough troubled times. The Principal of the morning College had been asked to proceed on leave. The Chairman of the Governing Body and also a Member of the Governing Body had resigned. Judicial notice can also be taken note of the fact that these events occurred at a time when the academic session in the College as indeed the University was coming to a close in the year 2001. These factors were also considered by the Vice Chancellor who by separate orders nominated 4 persons at each time, as Members of the Governing Body. No disqualification was shown or even urged as to the entitlement of such persons to be nominated as members. The Petitioner had not questioned the nominations nor has he imp leaded the members (whose continuation has been challenged) as parties to these proceedings. It is a matter of record that the nominations were also ratified by the Executive Council subsequently. One added factor is that what constitutes an emergency is normal and ordinarily a matter of administrative determination. The Court will step in exceptional situations where it can be established that the normal procedure ought to and could have been followed and there was mala fides or unreasonableness of some sort, in following the procedure under Statute 11-G(4).

23. There is considerable body of case law indicative of restricted scope of judicial review in cases where executive determination of urgency or emergency is made. (Ref. Munshi Singh v. Union of India ; Nandeshwar Prasad v. State of UP and Union of India v. Mukesh Hans ). In such cases, notably those pertaining to invocation of the 'urgency clause' under Section 17 of the Land Acquisition Act, 1894, the Courts have emphasized that the law requires existence of materials, and application of mind, as the basis of bona fide exercise of power. I am of the opinion, on the basis of the records produced, that the invocation of Section 11-G(4) and ratification of the action, were neither improper or arbitrary.

24. This point relates to the allegations of improper procedure followed by the Governing Body in the conduct of meetings held on 8-2-2001 and 9-2-2001. It was urged that the agenda note for the meeting dated 8.2.2001, did not disclose the subject matter of the proposed suspension. Resultantly, several members could not attend this meeting. The subsequent, adjourned meeting was not preceded by notice, and was therefore attacked as illegal. It was also urged that the entire report had not been circulated.

25. The undisputed position, emerging from the materials on record, is that a meeting was held on 8.2.2001. Undoubtedly, the agenda did not contain a reference to the proposed suspension of the Petitioner. The meeting was adjourned for the next day. The proceedings and minutes of 9.2.2001, show that 12 members were present. The minutes- as also the note/endorsement of the dissenting members reveal that the full copy of the committee's report was circulated, and considered, after which Governing Body resolved to suspend the Petitioner. Interestingly, two of the members who did not agree with the majority had been nominated by the Vice-Chancellor; the nominations were objected by the Petitioner. Even the dissenting members did not object to the manner of recording of the decision; they did not agree with the views of the other members.

26. On an overview of these circumstances, and in the absence of any statutory condition prescribing the procedure for conduct of meetings of the Governing Body, I am not persuaded to exercise jurisdiction under Article 226. The procedure adopted cannot be characterised as arbitrary or perverse, as to impel the Court to exercise judicial review.

Point No. 3.

27. The last issue concerns the legality of the impugned order; it is attacked as mala fide, and not founded upon any material.

28. The pleadings and documents on record show that there were, in the main about four allegations against the Petitioner. The Justice Satpal Committee reported that some material existed on the irregularity in transfer of 18 students from B.A.(pass) to B. Comm (Pass) course. The committee cleared the petitioner of the other changes. The petitioner urges that the decision to suspend him is based on no material; the college asserts that the committee's report and the materials gathered, warrant a full departmental enquiry, and that there were sufficient materials to suspend the Petitioner.

29. The correctness of the opinion to issue charge-sheet, in my opinion, is not open to scrutiny in these proceedings, in view of the order of the Division Bench which remitted the matter for consideration on other aspects relating to suspension. Hence, the wisdom or other-wise, of the Governing Body, on the question of the charge-sheet is beyond scope of the proceedings.

30. The Justice Satpal Committee Report admittedly did not exonerate the petitioner fully; his role in permitting transfer or switching over, of courses by 18 students had been adversely commented upon. As far as the other allegations are concerned, the report did not find his involvement or conduct objectionable. It was urged on behalf of the petitioner that even the report, so far as the issue of transfer is concerned, could not have been accepted and in any case the role of the petitioner was not blame worthy as the college did not suffer any loss nor was prejudiced. It was also submitted that the report of the auditors, who had gone into the issues of financial irregularities, on the basis of the report and materials, could not be said to to be conclusive or in any manner indicative of mis-conduct.

31. The role of the Court in scrutinizing materials, in the context of challenge to an order of suspension, is extremely limited. The opinion or determination of an employer to suspend its employee from services, pending enquiry into his conduct, ought to be based on some objection materials. However, the adequacy of such materials or the prima facie view expressed by somebody about the lack of guilt due to one head of mis-conduct or the other, does not afford sufficient ground for judicial intervention under Article 226. Unless it can be shown by strong and convincing materials that the order of suspension is motivated by malice or is contrary to law the Courts ordinarily desist from interdicting the order. This position has been recognised in several decisions of the Supreme Court such as U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Ranjan 1993 Supp.(3) SCC 483, State of Orissa v. B.K. Mohanty , A.K. Jadhav v. State of M.P. , etc.

32. In the present case the mere circumstance that apart from an adverse comment on one issue, the Justice Satpal Committee cleared the petitioner of other allegations by itself does not constitute sufficient reason for intervention under Article 226 of the Constitution of India. The role of the petitioner in claiming amounts which were considered by the management to be prima facie improper as indeed his decision to permit transfer of students were deemed sufficient basis for placing him under suspension. The materials on record do not warrant a conclusion that the opinion of the management was motivated by malice or was perverse or illegal. Therefore, on this point, the petitioner has not been able to establish that the decision to suspend him was either arbitrary or illegal.

33. In view of the above findings recorded on the three points, the petitioner cannot claim any relief in these writ proceedings. The writ petition is accordingly dismissed. Rule discharged. No costs.