Delhi High Court

Dr. S.C. Bhatia vs University Of Delhi And Another on 11 September, 2009

Author: Badar Durrez Ahmed

                THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Judgment reserved on 04.08.2009
                                            Judgment delivered on: 11.09.2009

+      WP (C) 1439/1996


DR. S.C. BHATIA                                                  ...    Petitioner


                                      - Versus -


UNIVERSITY OF DELHI AND ANOTHER                                  ...    Respondents

Advocates who appeared in this case:-

For the Petitioner          : Mr Abhinav Vashisht with Ms Harshita Priyanka and
                              Mr Raman Kumar
For the Respondents         : Ms Beenashaw Soni



CORAM:-
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE VEENA BIRBAL

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 Digest ?              YES

BADAR DURREZ AHMED, J

1. Although several prayers had been made in this writ petition, the

learned counsel for the petitioner, at the time of hearing of this writ petition,

limited the scope thereof to prayers (I) and (IV). The learned counsel for the

petitioner, however, submitted that this would be subject to his rights and

contentions in the appeal (RFA No. 562/2005) which has been filed on

behalf of the Delhi University against the judgment and decree dated

16.05.2005 passed by a learned District Judge in the petitioner's suit

No.151/1995.

2. Prayer (I) of the writ petition seeks the quashing of the show cause

notice dated 27.03.1996, whereby the petitioner has been called upon to

show cause as to why his services be not terminated. Prayer (IV) flows out

of prayer (I) inasmuch as the petitioner is seeking a writ, direction or order

restraining the respondent University from, in any manner, terminating the

services of the petitioner.

3. The main ground urged by the learned counsel for the petitioner is that

the impugned show cause notice dated 27.03.1996 is liable to be set aside

because the petitioner had already been given the punishment of demoting

him to the lower rank of a Reader by virtue of the Office Memorandum

dated 15/16.10.1994. Consequently, the impugned show cause notice and

the proceedings pursuant thereto would be in the nature of a review for

which there is no provision either under the Delhi University Act, 1922 or

the Statutes and Ordinances made thereunder. It is the contention of the

learned counsel for the petitioner that the power of review has to be

expressly given by a statute and, if there is no such power, it is well-settled,

that quasi-judicial authorities do not have any inherent power of review.

4. On the other hand, the learned counsel for the respondent University

has taken the plea that what is sought to be done by the Executive Council of

the University through issuance of the impugned show cause notice is not to

undertake a review as it is normally understood, but only to correct a wrong

committed by it under a misconception. In other words, what the University

is contemplating in doing is merely to recall an order which has been passed

mistakenly. According to the learned counsel for the University, the mistake

occurred in imposing the penalty on the petitioner after he had been found

guilty of gross misconduct. There was confusion as to whether the

imposition of penalty of termination of service required a simple majority or

a two-thirds majority. Under the impression that the termination of service

would require a two-thirds majority, the services of the petitioner were not

terminated, but he was given the lesser penalty of demotion to the lower

rank of a Reader. According to the learned counsel for the University, this

was an error and it was pointed out to the University by the D.O. letter dated

19.02.1996 received from the Secretary, Ministry of Human Resource

Development. Thus, according to the learned counsel for the University,

there was nothing wrong in the issuance of the show cause notice dated

27.03.1996 and the same ought not to be quashed by this court and further

proceedings pursuant to the said notice be permitted.

5. The facts leading upto the present petition are that an inquiry was

conducted in respect of allegations against the petitioner. The result of the

inquiry was that the petitioner was found guilty of misconduct. Subsequent

thereto, a show cause notice dated 17.08.1994 was issued to the petitioner in

connection with the proposed decision of the Executive Council vide its

resolution dated 13.08.1994 to impose the penalty of demoting the petitioner

to the lower rank of Reader and rendering him ineligible for the rest of his

service with the university from holding any administrative post or position.

In response to the said show cause notice dated 17.08.1994, the petitioner

submitted his reply dated 02.09.1994. The same was considered by the

Executive Council in its meeting held on 14.09.1994 and 15.09.1994. The

Executive Council came to the conclusion that the petitioner's reply /

explanation did not merit a lenient view in the circumstances of the case

and, accordingly, in exercise of powers vested in the Executive Council, it

decided that the petitioner be demoted to the lower rank of Reader and be

rendered ineligible for the rest of his service from holding any

administrative post or position. The petitioner was informed of this decision

through the said Office Memo dated 15/16.10.1994.

6. The petitioner, being aggrieved by the report, which held him guilty

for misconduct and by the penalty order passed by the University, filed a

suit (Suit No.151/1995) on 17.01.1995. As mentioned above, the said suit

has ultimately been decreed in the petitioner's favour by the learned

Additional District Judge on 16.05.2005 and against which the University

has filed an appeal before this court being RFA No.562/2005, which is

pending.

7. It appears that some representations were received by the Ministry of

Human Resource Development, Government of India seeking enhancement

of the penalty imposed on the petitioner. Based thereupon, the Secretary,

Ministry of Human Resource Development, sent the said letter dated

19.02.1996 to the Vice-Chancellor, University of Delhi with the request that

the decision with regard to penalty be reviewed. The reasoning adopted in

the letter dated 19.02.1996 was that when the Executive Council imposed

the punishment of demotion in rank, it perhaps did so under the

misconception that for the purposes of termination of service, a two-thirds

majority was necessary. As per the contents of the letter dated 19.02.1996,

it appears that the penalty of termination of service did not find support of

two-thirds of the members of the Council, but did have the support of a

majority of the members. As per the said letter dated 19.02.1996, the

interpretation placed on the relevant provisions was that a two-thirds

majority was not necessary and, if a simple majority of the members of the

Executive Council felt that termination of the service of the petitioner was

the adequate punishment, then it could have been so imposed. The view

taken was that the requirement of the two-thirds majority was not applicable

to the case of termination of service on the ground of misconduct. The

Secretary, Ministry of Human Resource Development wondered whether

this position had been known to the members of the Executive Council and

it is on the basis of this that a request was made for reviewing the decision

with regard to the appropriate punishment to be given to the petitioner.

8. Thereafter, a meeting of the Executive Committee of the University

was held on 19.03.1996, which considered the said D.O. letter dated

19.02.1996 received from the Secretary, Ministry of Human Resource

Development. It appears that after detailed discussion, the Executive

Council resolved that the services of the petitioner be terminated as per the

provisions of Clause 6 (Revised Form of Agreement of Service of

University Teachers) of Annexure to Ordinance XI and that a show cause

notice to this effect be issued to the petitioner. Thereupon, the impugned

show cause notice dated 27.03.1996 has been issued to the petitioner asking

him to show cause as to why his services in terms of the said decision of the

Executive Council taken in its meeting held on 19.03.1996 be not terminated

as per the provisions of clause 6 (Revised Form of Agreement of Service of

University Teachers) (Annexure to Ordinance XI). The petitioner sent in a

reply to the impugned show cause notice on 10.04.1996. However, since

according to the petitioner, this raised a legal issue as to whether the

Executive Council had the power to review its earlier decision, the petitioner

was constrained to file the present writ petition. As indicated above, several

reliefs were sought in the writ petition, but the same have been limited to

prayers (I) and (IV), which, essentially, deal with the impugned show cause

notice dated 27.03.1996 and the proposed termination of service of the

petitioner.

9. It is an admitted position that there is no power given to the Executive

Council to review its decisions with regard to punishment / penalty. There

is no such provision either in the said Act or the Statutes or the Ordinances

made thereunder. It is also clear that the Executive Council does not act

administratively, but acts quasi-judicially in considering the quantum of

penalty / punishment to be meted out in cases of misconduct. The entire

process of natural justice is required to be followed before the penalty is

imposed. A show cause notice is issued. The reply, if any, is considered

and it is only thereafter that the appropriate penalty is decided upon. These

are beyond the realm of the pure administrative actions or ministerial

functions. The Executive Council clearly functions as a quasi-judicial body

while deciding upon the appropriate penalty to be imposed. Consequently,

the decision taken by the Executive Council as communicated through the

Office Memo dated 15/16.10.1994 was a quasi-judicial decision. That being

the case, it cannot be recalled or reviewed unless and until there is a clear

provision for such recall / review. The decision cited by the learned counsel

for the petitioner in the case of Dr (Smt.) Kuntesh Gupta v. Management of

Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and Others: 1987 (4) SCC

525 is applicable in the present case. The Supreme Court, in Dr (Smt.)

Kuntesh Gupta (supra) held:-

"It is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice-Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasi-judicial authority. It is not disputed that the provisions of the U.P. State Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the Vice- Chancellor. In the circumstances, it must be held that the Vice- Chancellor acted wholly without jurisdiction in reviewing her order dated January 24, 1987 by her order dated March 7, 1987.