Professor Ramesh Chandra vs The University Of Delhi & Anr.
2009 Latest Caselaw 2185 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     WRIT PETITION (CIVIL) 4436/2008 &
      CM APPL.8566/2008, 9382/2008, 11390/2008 & 731/2009

                               Reserved on     : 6th April, 2009
                               Date of Decision: 21st May, 2009

      PROFESSOR RAMESH CHANDRA            ..... Petitioner
                  Through : Mr.R.Venkataramani,
                            Sr.Advocate with Mr.Aljo
                            K.Joseph and Mrs. Neela
                            Gokhale, Advocates.

                         versus



      THE UNIVERSITY OF DELHI & ANR. ..... Respondents
                   Through : Mr. V.P.Singh, Sr.Advocate with
                             Mr.Mohinder Jit Singh Rupal
                             and Mr.Amar Jyoti Srivastava,
                             Advocates for R-1 & R-2.


%     CORAM:

      HON'BLE MR. JUSTICE MADAN B.LOKUR
      HON'BLE MR. JUSTICE SIDDHARTH MRIDUL


      1.    Whether reporters of local papers may be allowed to
            see the judgment?                         Yes.

      2.    To be referred to the Reporter or not?         Yes.

      3.    Whether the judgment should be reported in the
            Digest?                                   Yes.

                          JUDGMENT

SIDDHARTH MRIDUL, J.

1. By way of the present writ petition under Article 226 of

the Constitution of India, the petitioner seeks the following

reliefs:

[WRIT PETITION (CIVIL) 4436/2008] [Page 1 of 26]

(a) Issue of a writ of Certiorari or any other writ

or direction in the nature of Certiorari

quashing the Resolution dated 21st March,

2007 passed by the Executive Council of the

University and the Memorandum dated

22nd March, 2007 and all other orders

issued in pursuance thereof by the

Respondent University;

(b) Declare that further charges referred to the

Enquiry Officer contained in the

Memorandums dated 26th August, 2007 and

16th October, 2007 to be illegal and the

conduct of any enquiry in respect of the said

charges are vitiated by malice in fact and in

law and a writ of mandamus may kindly be

issued restraining the holding of such

enquiry.

(c) Declare that the Petitioner is entitled to

carry on his academic research and related

activities initiated/supervised by him in his

capacity of Director (officiating) ACBR and

Professor, Department of Chemistry.

2. The facts as are necessary for the adjudication of the

present petition are outlined as follows:

a. The University of Delhi, under the auspices of

the Ministry of Welfare, Government of India,

[WRIT PETITION (CIVIL) 4436/2008] [Page 2 of 26] decided to set up Dr.B.R.Ambedkar Biomedical

Research Centre (ACBR).

b. The Petitioner, who holds the substantive post of

Professor in the Department of Chemistry,

University of Delhi, was made the Acting

Director of ACBR by way of an additional charge

which was communicated to him by the

Assistant Registrar (E-NT) of the University vide

letter dated 30th May, 1995.

c. The Petitioner discharged both his substantive

as well as additional duties till 20th September,

1999 on which date he left on deputation to join

his new posting as Vice-chancellor of

Bundelkhand University, Jhansi, Uttar Pradesh.

d. In pursuance thereof, the Registrar, University

of Delhi on 20th September, 1999, notified the

appointment of Professor Vani Brahmachari as

Acting Director of ACBR during the leave period

of the Petitioner. It was, however, resolved that

the Petitioner would continue to provide

academic leadership to ACBR.

e. Although the deputation period of the Petitioner

was scheduled to expire on 31st July, 2005, he

was removed from the post of Vice-Chancellor,

Bundelkhand University, Jhansi on 16th July,

2005.

[WRIT PETITION (CIVIL) 4436/2008] [Page 3 of 26] f. The Petitioner resumed the duties as Professor,

Department of Chemistry, University of Delhi on

18th July, 2005. The Deputy Registrar of ACBR,

on the same date, issued a notification to the

effect that the Petitioner had fully resumed his

charge as Director of ACBR.

g. Although the University of Delhi subsequently

allowed the Petitioner to resume his substantive

duties as Professor in the Department of

Chemistry, he was not allowed to join his duties

as Acting Director, ACBR.

h. By a letter dated 19th July, 2005 addressed by

the Registrar, University of Delhi to the Deputy

Registrar, ACBR, the University of Delhi

questioned the appointment of the Petitioner as

Director, ACBR by the Registrar of ACBR.

i. Thereafter, by a resolution dated 25th July, 2005,

the earlier Notification dated 18th July, 2005

issued by the Deputy Registrar of ACBR to the

effect that the Petitioner had fully resumed

charge as Acting Director of ACBR, was

consequently withdrawn.

j. The Executive Council of the University of Delhi,

on 17th October, 2005 passed the following three

resolutions against the Petitioner:

1. Professor Ramesh Chandra be not

allowed to hold any administrative

[WRIT PETITION (CIVIL) 4436/2008] [Page 4 of 26] position in Delhi University

henceforth.

2. A show cause notice be issued to

Professor Ramesh Chandra for - (a)

suppressing information with regard

to allegations on account of which he

was removed from the post of Vice-

chancellor of Bundelkhand University

at the time of his premature return to

Delhi University, and

(b) unauthorisedly assuming the office

of the Director, Dr.B.R.Ambedkar

Centre for Biomedical Research, Delhi

University for the period from 18th

July, 2005 to 24th July, 2005 in

contravention of the statutory

provisions of the University; and

3. The decision, if any, taken by at the

instance of Professor Ramesh

Chandra, while unauthorisedly

occupying the post of the Director,

Dr.B.R.Ambedkar Centre for

Biomedical Research, or thereafter, be

treated as null and void.

k. Aggrieved by the decision of the Executive

Council dated 17th October, 2005, the Petitioner

filed a writ petition No.16000/2006. The said

[WRIT PETITION (CIVIL) 4436/2008] [Page 5 of 26] writ petition was dismissed by the judgment and

order dated 11th April, 2008 passed by the

learned Single Bench in writ petition

16000/2006. The said decision dated 11th April,

2008 was impugned by the Petitioner in LPA

229/2008 which was heard simultaneously with

the present writ petition and has been decided

by an independent judgment and order.

l. Vide a resolution dated 21st March, 2007 the

Executive Council of the University of Delhi

initiated a disciplinary inquiry against the

petitioner suspending his services in the

meantime.

m. The resolution dated 21st March, 2007 was

communicated to the petitioner vide a

Memorandum dated 22nd March, 2007.

n. The resolution of the Executive Council of the

University of Delhi dated 21st March, 2007

directing an inquiry against the petitioner and

suspending his services in the meantime and the

Memorandum dated 22nd March, 2007

declaring the suspension of the petitioner

pending the inquiry was, inter alia, challenged

by the petitioner in writ petition 2796/2007.

o. The said writ petition No. 2796/2007 was

dismissed as withdrawn by this Court on the

[WRIT PETITION (CIVIL) 4436/2008] [Page 6 of 26] statement of learned counsel for the Petitioner

vide order dated 24th September, 2007.

p. On 27th August, 2007, the University of Delhi

issued a fresh Memorandum to the Petitioner

alleging therein that he had caused to be

irregularly and unauthorisedly paid an amount

of Rs.16,63,264/- by ACBR during the period

1999-2005 and calling upon him to file a reply.

q. On 16th October, 2007, the University of Delhi

issued another Memorandum to the Petitioner

alleging that he was a signatory to subscribe his

name to the proposed formation of a society

having name Dr.B.R.Ambedkar Centre for

Biomedical Research with the description of its

office, the existing „ACBR‟ under University of

Delhi as its building and calling upon him to

give an explanation in this respect.

r. The Petitioner is aggrieved by the decision of

the Executive Council dated 21st March, 2007

and the Memorandums dated

22nd March, 2007, 26th August, 2007 and

16th October, 2007.

3. Mr.Venkatramani, learned Senior Advocate appearing on

behalf of the petitioner, firstly submits that the replies to the

Memorandums dated 27th August, 2007 and 16th October, 2007

were never placed before the Executive Council and that,

[WRIT PETITION (CIVIL) 4436/2008] [Page 7 of 26] therefore, the said action on the part of the Respondents is

unfair and unreasonable.

4. Learned Senior Advocate, next submits that the note

purportedly placed before the Executive Council before its

impugned resolution of 21st March, 2007 was never actually

placed or circulated before the Executive Council.

5. It was further argued by learned Senior Advocate that the

removal of the Petitioner was not because of charges of

corruption or moral turpitude and that no case of misconduct is

made out against the Petitioner.

6. The learned Senior Advocate has lastly submitted that the

petitioner acted on the basis of the resolutions of the Governing

Body of the ACBR and, therefore, no blame can be attached to

the said actions of the Petitioner.

7. Per contra, Mr.V.P.Singh, learned Senior Advocate

appearing on behalf of the Respondents submitted that the

power to appoint Director rested only in the Executive Council

and that the appointment of the Petitioner as Acting Director

was made by the Vice-chancellor of the University of Delhi.

8. It was next urged on behalf of the Respondents that the

Petitioner had no lien as the post of Director, ACBR was only an

acting assignment. It was also urged that as the Petitioner had

proceeded to Bundelkhand University as Vice-chancellor,

Professor Vani Brahmachari had been appointed as Acting

Director vide communication dated 20th September, 1999 and

later on Dr.Daman Saluja had been appointed as Acting Director,

ACBR with effect from 2006 to replace Professor Vani [WRIT PETITION (CIVIL) 4436/2008] [Page 8 of 26] Brahmachari, and that the Petitioner had not challenged the said

appointments made in his place.

9. It was further argued on behalf of the Respondents that no

jurisdictional error had been demonstrated while seeking the

quashing of the resolution dated 21st March, 2007 and the

Memorandums dated 22nd March, 2007, 26th August, 2007 and

16th October, 2007.

10. It was lastly argued on behalf of the University of Delhi

that the Petitioner had suppressed in the present writ petition

that he had earlier filed Writ Petition (Civil) No.2796/2007

challenging the resolutions dated 21st March, 2007 and

Memorandums dated 22nd March, 2007, 26th August, 2007 and

16th October, 2007 and that the said writ petition had been

dismissed as withdrawn without liberty on the

24th September, 2007 by this Court. It was, therefore, urged

that the Petitioner being guilty of suppression was not entitled to

any relief.

11. Before adverting to the rival submissions made on behalf

of the parties it is necessary to extract the letters dated

30th May, 1995 and 20th September, 1999, whereby the

Petitioner had been appointed as Acting Director of ACBR, and

had been replaced by Professor Vani Brahmachari as Acting

Director on the petitioner proceeding on deputation to the

Bundelkhand University, Jhansi, Uttar Pradesh, respectively:

"No.Estab.

III/BRAC/95/1936 Delhi, the 30th May, 1995.

Dr.Ramesh Chandra, Research Scientist (Professor), [WRIT PETITION (CIVIL) 4436/2008] [Page 9 of 26] Department of Chemistry, University of Delhi, Delhi - 110 007

Dear Sir,

I am directed to inform you that the Vice Chancellor has been pleased to decide that you will act as the Director of Dr.B.R.Ambedkar Centre for Bio-medical Research, University of Delhi with immediate effect till regular appointment of a Director is made by the University.

                                                    Yours faithfully,




                                               Assistant    Registrar
                                              (E-NT)


Copy for information to:

1. The Dean, Faculty of Science, University of Delhi, Delhi.

2. The Chairman, Board of Research Studies, Faculty of Science, University of Delhi, Delhi-7.

3. The Head of the Department of Chemistry, University of Delhi, Delhi.

4. The Assistant Registrar, A/CS-I), University of Delhi, Delhi.

Assistant Registrar (E-NT)

******

"No.Estab.(T)/V/99/ACCR/35652 Delhi,the 20th September, 1995.

NOTIFICATION

The Vice-Chancellor has been pleased to appoint Prof.Vani Brahmachari as officiating Director (Hony.) of the Dr.B.R.Ambedkar Centre for Bio-Medical Research during leave period of Prof.Ramesh Chandra, who has joined as Vice- Chancellor of Bundelkhand University, Jhansi. He will however continue to provide academic Leadership.

[WRIT PETITION (CIVIL) 4436/2008] [Page 10 of 26] (K.K.PANDA) REGISTRAR

Prof.Vani Brahmachari, Dr.B.R.Ambedkar Centre for Biomedical Research, University of Delhi, DELHI - 110 007.

Copy to:

1. The Director, University of Delhi, Delhi - 7.

2. The Finance Officer, University of Delhi, Delhi -7.

3. The Joint Finance Officer, University of Delhi, Delhi -7.

4. The Joint Registrar, University of Delhi, Delhi -7.

5. The Director, B.R.Ambedkar Centre for Biomedical Research, University of Delhi, Delhi - 7.

12. Before proceeding further, it would be necessary to

consider the referred extracts of the judicial pronouncements

relied upon by the parties in support of the respective

contentions. Learned counsel for the Petitioner relied on the

following judgments:

1. In A.L.Kalra vs. Project and Equipment

Corporation of India Ltd (1984) 3 SCC 316 the

Supreme Court observed that:-

"What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct."

2. In UOI vs. J.Ahmed (1979) 2 SCC 286, the

Supreme Court observed as follows:-

[WRIT PETITION (CIVIL) 4436/2008] [Page 11 of 26] "In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik, (1966) 2 SCR 434, in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India, (1967) 2 SCR 566, the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta, (1964) 2 SCR 104, wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence.

Carelessness can often be productive of more harm than deliberate wickedness [WRIT PETITION (CIVIL) 4436/2008] [Page 12 of 26] or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railway cabinman signals in a train on the same track where there is a stationary train causing head-on collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life. Misplaced sympathy can be a great evil [see Navinchandra Shakerchand Shah v.

                    Manager,        Ahmedabad          Co-op.
                    Department      Stores  Ltd.       (1978)

19 G.L.R. 108 at 120]. But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty."

3. In Pankaj Bhargav vs. Mohinder Nath (1991)

1 SCC 556, the Supreme Court stated that:-

"Suffice it to say that in a collateral challenge the exercise is not the invalidation of a decision, but only to ascertain whether the decision „exists‟ in law at all and to rely upon incidents and effect of its „non- existence‟. The authority of decided cases is to the effect that the permission granted must be presumed to be valid till set aside. Doctrine of collateral challenge will not apply to a decision which is valid ex-hypothesi and which has some presumptive existence, validity and effect in law. Such a decision can be invalidated by the right person in right proceedings brought at the right time. It is only a nullity stemming from lack of inherent jurisdiction or a proceeding that wears the brand of invalidity on its forehead that might afford a defence even against enforcement."

[WRIT PETITION (CIVIL) 4436/2008] [Page 13 of 26]

4. In Gokaraju Rangaraju vs. State of Andhra

Pradesh AIR (1981) S.C. 1473, the Supreme Court

referred to:-

Black on judgments where it is said:

"A person may be entitled to his designation although he is not a true and rightful incumbent of the office, yet he is no mere usurper but holds it under colour of lawful authority. And there can be no question that judgments rendered and other acts performed by such a person who is ineligible to a judgeship but who has nevertheless been duly appointed, and who exercises the power and duties of the office is a de facto judge, and his acts are valid until he is properly removed."

5. In 69 L.Ed.1011, United States vs. Elmo

R.Royer it was observed:

"To constitute an office de-facto it was not a necessary pre-requisite that there should have been an attempted exercise of competent or prima facie power of appointment or election."

6. In State of Punjab vs. V.K.Khanna & Ors.

AIR (2001) SCC 343, the Supreme Court said:-

"...33. While it is true that justifiability of the charges at this stage of initiating a disciplinary proceeding cannot possibly be delved into by any Court pending inquiry but it is equally well settled that in the event there is an element of malice or malafide, motive involved in the matter of issue of a charge-sheet or the concerned authority is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law [WRIT PETITION (CIVIL) 4436/2008] [Page 14 of 26] Courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law Courts ought to rise up to the occasion and the High Court in the contextual facts has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings.

34. The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an Inquiry Officer to substantiate the frame of mind of the authorities and thus depicting bias - What bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindset viz.: the inquiry shall proceed irrespective of the reply - Is it an indication of a free and fair attitude towards the concerned officer? The answer cannot possibly be in the affirmative. It is well settled in Service Jurisprudence that the concerned authority has to apply its mind upon receipt of reply to the charge-sheet or show-cause as the case may be as to whether a further inquiry is called for.

In the event upon deliberations and due considerations it is in the affirmative - the inquiry follows but not otherwise it is this part of Service Jurisprudence on which reliance was placed by Mr.Subramaniam and on that score, strongly criticized the conduct of the respondents here and accused them of being biased. We do find some justification in such a [WRIT PETITION (CIVIL) 4436/2008] [Page 15 of 26] criticism upon consideration of the materials on record."

7. In Delhi Development Authority vs.

H.C.Khurana, 1993 (2) SLR, 509 the Supreme

Court stated:-

"the question now, is: what is the stage, when it can be said, that „a decision has been taken to initiate disciplinary proceedings‟? We have no doubt that the decision to initiate disciplinary proceedings cannot be subsequent to the issuance of a charge-sheet, since issue of the charge-sheet is a consequence of the decision to initiate disciplinary proceedings. Framing the charge- sheet, is the first step taken for holding the inquiry into the allegations, on the decision taken to initiate disciplinary proceedings. The charge-sheet is framed on the basis of the allegations made against the Government Servant; the charge- sheet is then served to him to enable him to give his explanation; if the explanation is satisfactory, the proceedings are closed, otherwise, the enquiry is held into the charges; if the charges are not proved, the proceedings are closed and the Government Servant exonerated; but if the charges are proved, the penalty follows.

13. Mr.V.P.Singh, Sr.Advocate, relied on the following

decisions:

1. In M.V. Janardhan Reddy vs. Vijaya Bank and

Ors. (2008) 7 SCC 738, where the Supreme

Court observed that :-

"It is true that the Recovery Officer confirmed the sale in favour of the Petitioner. But as we have already noted, in view of the condition imposed by the Company Court, the [WRIT PETITION (CIVIL) 4436/2008] [Page 16 of 26] Recovery Officer did not have the power to confirm sale. An order passed by an officer having no authority of law has no effect. It neither creates any right in favour of a party for whom such order is made nor imposes any obligation on the opposite party against whom it was passed."

2. In S.S. & Company vs. Orissa Mining

Corporation Ltd. (2008) 5 SCC 772, the

Supreme Court stated that :-

"33. We are in complete agreement with the view taken by the High Court. As a matter of fact, for rejecting the allegation that the impugned amendment was introduced in Clause 8(i) of the NIT at the instance of the Managing Director, without obtaining prior approval of the Board of Directors we need not even go to the rebuttal- affidavit filed by the Addl. General Manager. The Board of Directors is the apex policy-making body. It may lay down broad guidelines but it is impossible to conceive that all the NITs (over a hundred in number) issued by the Corporation for different purposes every year should come before it for consideration and approval of their respective clauses or any amendment proposed in any clause in any of the NITs. (We fail to see any good reason why the matter should not be finalized by the Managing Director or, depending upon the nature of the contract, even at some lower level).

                      34.     The normal work of any
                      organization      or        government
                      department     would     be    seriously

hampered if every tendering party would claim the right to raise objection that one or the other clause in a NIT or any amendment introduced in any of its clauses did not have the prior sanction of the highest policy-making body of the [WRIT PETITION (CIVIL) 4436/2008] [Page 17 of 26] organization. In this case particularly there is no occasion to go into that question as there is neither any material to suggest, even remotely, that the Managing Director harboured any malice against the Petitioner nor is the Managing Director made a party to this case in his personal capacity."

3. In Triveni Shankar Saxena vs. State of U.P.

and others; (1992) Supp (1) SCC 524 the

Supreme Court stated that :-

"17. We shall now examine what the word 'lien' means. The word 'lien' originally means "binding" from the Latin ligamen. Its lexical meaning is "right to retain". The word 'lien' is now variously described and used under different context such as 'contractual lien', 'equitable lien', 'specific lien', 'general lien', 'partners lien', etc. In Halsbury's Laws of England, (Fourth Edition, Volume 28 at page 221, para 502) it is stated :

"In its primary or legal sense "lien" means a right at common law in one man to retain that which is rightfully and continuously in his possession belonging to another until the present and accrued claims are satisfied."

18. In Stroud's Judicial Dictionary, (5th Edition, Volume 3 at page 1465) the following passage is found :

"Lien. (1) A lien-(without effecting a transference of the property in a thing)-is the right to retain possession of a thing until a claim be satisfied; and it is either particular or general. So, as regards Scotland, "lien" is defined as including „the right of retention‟ [Sale of Goods [WRIT PETITION (CIVIL) 4436/2008] [Page 18 of 26] Act 1893 (c. 71), S. 62], or it "shall mean and include right of retention" [Factors (Scotland) Act, 1890 (c. 40), S.1]; Great Eastern Railway Co. v. Lord‟s Trustees (1909) A.C. 109.

19. In words and Phrases, Permanent Edition, Vol. 25 the definition of word 'lien' when used to explain the equitable lien, is given thus :

"A 'lien' from a legal standpoint, embodies the idea of a deed or bond, and necessarily implies that there is something in existence to which it attaches."

24. A learned Single Judge of the Allahabad High Court in M.P. Tewari v. Union of India 1974, All LJ 427 following the dictum laid down in the above Paresh Chandra case (1970) 3 SCC 870 and distinguishing the decision of this Court in P.L. Dhingra v. Union of India AIR 1958 SC 36, has observed that "a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier", with which view we are in agreement."(emphasis ours)

14. In the present case, it is seen that the ACBR was set up by

the University of Delhi. Under the provisions of sub-clause 4 of

Clause 6 of Ordinance XX of the Delhi University Act, 1922 the

appointment of the Director of ACBR could only be made by the

Executive Council. The appointment of the Petitioner as Acting

Director was made by the Vice-Chancellor vide communication

dated the 30th May, 1995. Thereafter, when the Petitioner

proceeded on deputation as Vice-Chancellor, Bundelkhand

University, Jhansi, the Vice-chancellor vide communication dated [WRIT PETITION (CIVIL) 4436/2008] [Page 19 of 26] 20th September, 1999 was pleased to appoint Prof. Vani

Brahmachari as officiating Director of ACBR in place of the

Petitioner.

15. The Petitioner has not questioned the authority or

competence of the Vice-Chancellor to do so at any stage.

Therefore, it does not lie in his mouth now to urge that the

Governing Body of ACBR had the power or authority to appoint

or continue him as the Acting Director of the ACBR. Even

otherwise it is seen that vide notification dated 25 th July, 2005,

the earlier notification dated 18th July, 2005, permitting the

Petitioner to join back as full time Director, was withdrawn by

the ACBR itself, on a communication in this behalf by the Delhi

University. Therefore, the issue whether or not the Petitioner

could continue holding charge as Acting Director of ACBR was to

be decided by the Executive Council or Vice-Chancellor of the

University of Delhi and not the Governing Body of the ACBR. It

is equally clear that the Governing Body of the ACBR could not

continue the Petitioner as Acting Director of ACBR contrary to

the decision in this behalf of the University of Delhi. The above

cited Ordinance XX makes it evidently clear that the Governing

Body of the ACBR was to function and manage its affairs under

the control and supervision of the Executive Council of the

University of Delhi and not in opposition to it.

16. It is also evident that from the withdrawal of the

notification dated 18th July, 2005, the following conclusions can

be deduced:-

[WRIT PETITION (CIVIL) 4436/2008] [Page 20 of 26]

(i) firstly, and perhaps most importantly, any

appointment to the post of Director, ACBR, and

even termination thereof, was to be done at the

instance of the University of Delhi and not the

Governing Body of ACBR;

(ii) secondly, the decision of the Registrar,

University of Delhi to revoke the notification

dated 18th July, 2005 clarified that the

University of Delhi, vide letter dated 20th

September, 1999, had never contemplated the

Petitioner to continue holding the charge of

Acting Director of ACBR during his tenure as

Vice-Chancellor of Bundelkhand University,

Jhansi;

(iii) thirdly, the resolutions issued by the

Governing Body, ACBR, stipulating that the

Petitioner was to continue as Director of ACBR,

if any, were de hors the notification dated 25 th

July, 2005 whereby the Governing Body

revoked its earlier notification dated 18th July,

2005. The Governing Body once having

revoked its notification dated 18th July, 2005,

obviously could not have issued the said

Resolutions; and

(iv) fourthly, the Petitioner was aware of the

Respondents‟ decision of not allowing him to

continue as Acting Director, ACBR as far back

[WRIT PETITION (CIVIL) 4436/2008] [Page 21 of 26] as on 25th July, 2005, but he never confronted

the University of Delhi in this respect at that

time.

17. In this view of the matter, the submissions made by the

Petitioner to the effect that there can be no collateral challenge

to Governing Body Resolutions or that the Governing Body or the

Petitioner had de facto authority to enable the Petitioner to

continue to function as Director, ACBR, hold no water. The

rulings relied upon by the Petitioner in the context of the facts

and circumstances of those particular cases, cannot be

engrafted on the present case in a blanket manner. It is also to

be emphasized that it is well established that if a statute

empowers a specific body to exercise power, it must be

exercised by that body alone and no other body can usurp or

exercise that power without the authority of law. Therefore, the

purported resolutions of the Governing Body of the ACBR do not

come to the aid of the Petitioner.

18. It is next contended that the allegations set out against the

Petitioner do not constitute misconduct. In this respect it is

seen that certain security guards and a peon were deputed at

the residence of the Petitioner as "former director" of ACBR and

their bills including the peon‟s medical reimbursement had come

to the ACBR for payment. Besides the bills of the residence

phone of the Petitioner were also paid by the ACBR including for

the period when the Petitioner was Vice-Chancellor,

Bundelkhand University. Moreover the Petitioner required the

ACBR to make payments for his personal mobile No.9810240532

[WRIT PETITION (CIVIL) 4436/2008] [Page 22 of 26] as "founder director" of ACBR. The Petitioner has been charged

with causing to be paid unauthorisedly an amount of

Rs.16,63,264 by ACBR towards the unauthorized expenditures

incurred by him as above mentioned at a time when the

Petitioner had already been relieved and was on deputation as

Vice-Chancellor of Bundelkhand University.

19. The other charge leveled against the Petitioner is that he is

one of the signatories who subscribed their names to the

proposed formation of a society by the name "Dr. B.R. Ambedkar

Centre for Biomedical Research" with the description of its

office the address of the existing ACBR under the University of

Delhi. Thus the Petitioner has appropriated for the use of the

said Society registered on 7th September, 2006, by furnishing an

affidavit in this behalf, the building in which the ACBR of the

University of Delhi is situated, and this act was tantamount to

misappropriation of the assets of the University maintained

institution for a purpose other than the one authorized by the

Executive Council of the University of Delhi. Without prejudicing

in any manner the conduct of the enquiry against the Petitioner,

prima facie, it appears that the University of Delhi does have just

grounds for conducting an enquiry into the acts complained of in

the Memorandum dated the 27th August, 2007 and 16th October,

2007. The alleged usurpation of the post of Director ACBR for

the purposes elaborated above, in our opinion, constitute

sufficient reason, prima facie, to enquire into the conduct of the

Petitioner.

[WRIT PETITION (CIVIL) 4436/2008] [Page 23 of 26]

20. In this respect we also find considerable force in the

submission made on behalf of the Respondent that the Petitioner

did not have any lien on the post of Acting Director, ACBR, since

it was merely an officiating assignment which came to an end on

the appointment of Prof. Brahmachari vide notification dated

20th September, 1999, and the subsequent appointment of Dr.

Daman Saluja as Acting Director in place of Prof. Vani

Brahmachari, which appointments have not been challenged by

the Petitioner.

21. From the note circulated before the Executive Council

prior to its resolution dated the 21st March, 2007 it is clear that

the Executive Council was duly apprised of the conduct of the

Petitioner and the various allegations leveled against him and,

therefore, the Executive Council considering the seriousness of

the charges, placed the Petitioner under suspension in terms of

the provisions contained in Annexure to Ordinance XI of the

University of Delhi pending enquiry. Therefore, the contention

of the Petitioner that the relevant material was never placed

before the Executive Council is without any substance. Further

the submissions of the Petitioner imputing mala fides to the

Respondents, do not hold any water since the Petitioner has not

brought on record a single document which would prima facie,

give reason for the Court to believe that the resolution dated the

21st March, 2007 were the result of the mala fide intention on

the part of the Respondents.

22. There is nothing urged on behalf of the Petitioner to show

that there was any jurisdictional error on the part of the

[WRIT PETITION (CIVIL) 4436/2008] [Page 24 of 26] Respondents in either passing the resolution dated 21st March,

2007 or the steps taken that have been taken thereafter by the

University of Delhi. Although, a bald assertion has been made

that under the CCA (CCS) Rules the suspension could not have

continued beyond a period of 90 days, nothing has been shown

to substantiate the submission that the CCA(CCS) Rules would in

fact apply to the faculty of the University of Delhi.

23. It is also observed that it is well settled by a catena of the

decisions of the Apex Court that ordinarily no writ may be

entertained against a charge-sheet or show cause notice since a

mere charge-sheet or show cause notice does not give rise to

any cause of action, because it does not amount to an adverse

order which affects the rights of any party, unless the same is

issued by a person having no jurisdiction to do so. In the

present case, it has not been urged by the Petitioner that the

Respondents were not competent to issue the show cause notice

impugned in the present petition.

24. Even otherwise, the Petitioner is not entitled to any relief under

writ jurisdiction for having suppressed the fact that in an earlier

proceeding being Writ Petition No.2796/2007, which had been

dismissed as withdrawn on 24th September, 2007 by this Court, the

Petitioner had sought a similar prayer to quash the resolution dated

21st March, 2007 and the Memorandum dated the 22nd March, 2007.

The effect of suppression of a relevant fact was considered by a

Division Bench of this Court in M/s Hillcrest Realty Sdn. Bhd. vs.

Hotel Queen Road Pvt. Ltd.-MANU/DE/0023/2009 decided on

14th January, 2009 wherein it was observed in paragraph 34 of the

decision that a litigant approaching a Court must disclose all relevant

[WRIT PETITION (CIVIL) 4436/2008] [Page 25 of 26] facts, for the failure to do so amounts to playing a fraud on the Court

and the opposing party. It is of no consequence which way the facts

may impact - they are required to be disclosed if they are likely to

affect the decision of the Court one way of the other. Under the

circumstances, we also decline to entertain this writ petition on the

ground of suppression of a material and relevant fact.

25. For the foregoing reasons, we are of the view that the present

writ petition is devoid of merit. Consequently, the writ petition is

dismissed, however, with no order as to costs.

SIDDHARTH MRIDUL, J

MADAN B. LOKUR, J

May 21, 2009 bp

[WRIT PETITION (CIVIL) 4436/2008] [Page 26 of 26]