Delhi High Court

Prof. Ramesh Chandra vs University Of Delhi & Ors. on 1 March, 2012

Author: Rajiv Sahai Endlaw

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 1st March, 2012

+                               W.P.(C) No. 2547/2010

%        PROF. RAMESH CHANDRA                       ..... Petitioner
                     Through: Mr. R. Vekataramani, Sr. Adv. with
                              Mr. Aljo K. Joseph and Mr. R.C.
                              Vasudev, Advs.

                                       Versus

    UNIVERSITY OF DELHI & ORS.                ..... Respondents
                  Through: Mr. V.P. Singh, Sr. Adv. with Mr.
                           Mohinder Rupal & Ms. Shawana
                           Bari, Advs.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                    JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. The petitioner, earlier a Professor in the respondent Delhi

University, has filed this writ petition:

(i) impugning Para 6 of the Annexure (providing Form of

Agreement of Service for University teachers) to Ordinance

XI of the respondent No.1 Delhi University. The said Para 6

empowers the Executive Council of the University to

summarily determine the engagement of a teacher on the

ground of misconduct;

(ii) impugning the Resolutions dated 17.10.2005 and 21.03.2007

of the Executive Council of the University. Vide Resolution

dated 17.10.2005, decision was taken, A) not to allow the

petitioner to hold any administrative position in the

University; B) to issue show cause notice to the petitioner

for, a) at the time of re-joining Delhi University post

deputation, suppressing information of his removal from the

post of Vice Chancellor (VC) of Bundelkhand University,

Jhansi; b) unauthorizedly assuming the office of the Director,

Dr. B.R. Ambedkar Center for Biomedical Research (ACBR)

during the period 18.07.2005 to 24.07.2005; and, C) to annul

the decisions taken by the petitioner while unauthorizedly

occupying the post of Director, ACBR. Vide Resolution

dated 21.03.2007, the Executive Council placed the petitioner

under suspension pending inquiry;

(iii) impugning the memoranda dated 02.11.2005, 27.08.2007 and

16.10.2007. Vide memorandum dated 02.11.2005, the

petitioner was asked to show cause as to why action in

accordance with Para 6 of Annexure to Ordinance XI (supra)

be not taken against him for while rejoining Delhi University

concealing his removal from the post of VC of Bundelkhand

University and for unauthorizedly representing himself as

Director of ACBR. Vide Memorandum dated 27.08.2007, the

petitioner was asked to show cause as to why action in

accordance with Para 6 of Annexure to Ordinance XI (supra)

be not taken against him for making the University incur

expenditure in the total sum of `16,63,264/- on his telephone

bills, security guards at his residence etc. during the time he

was on deputation as VC of the Bundelkhand University.

Vide Memorandum dated 16.10.2007, the petitioner was

asked to show cause as to why action in accordance with Para

6 of Annexure to Ordinance XI (supra) be not taken against

him for formation of a Society by the name of Dr. B.R.

Ambedkar Centre for Biomedical Research in an attempt to

usurp ACBR, an institution of the University;

(iv) impugning the inquiry proceedings held against him on the

ground of being in breach of the principles of fairness and

natural justice and the findings of the Inquiry Officer being

beyond the scope and jurisdiction;

(v) impugning the Resolutions dated 09.02.2010 and 25.03.2010

of the Executive Council of the University whereby the

petitioner was stripped of the opportunity of holding any

administrative position in the University and debarred from

being associated with the affairs of ACBR in any capacity

whatsoever and also disengaged from the services of the

University; and,

(vi) seeking a direction for his restoration as the Director of the ACBR.

2. As the aforesaid description would indicate, the reliefs claimed are

overlapping. The controversy can be narrowed down by recording at the

outset that as far as the memorandum dated 27.08.2007 (supra) is

concerned, in the inquiry in pursuance thereto by a retired Judge of this

Court, vide report dated 23.02.2010, the petitioner has been absolved of the

charge of having made the respondent University unauthorizedly incur the

expenses of `16,63,264/- on his telephone bills and security guards at his

residence while being on deputation as VC of Bundelkhand University. It

was found in the inquiry report that though such expenses were incurred on

telephone bills and security guards at the residence of the petitioner but it

could not be established that the same though unauthorized were

sanctioned by or at the instance of the petitioner. The respondent

University also has not proceeded against the petitioner on the said count.

The counsels also have not addressed on the said aspect. The same is thus

laid to rest.

3. The same Inquiry Officer (being a retired Judge of this Court) has

however in his separate report dated 24.11.2009 in pursuance to the

Memorandum dated 02.11.2005 held the petitioner guilty of, at the time of

rejoining (post deputation) the respondent University on 18.07.2005

having wilfully suppressed the factum of his removal from the post of VC,

Bundelkhand University and of having unauthorizedly tried to join as

Director of ACBR and representing himself as Director, ACBR. The

Inquiry Officer vide yet another report dated 23.02.2010 in response to

memorandum dated 16.10.2007 (supra) also found the petitioner guilty of

the charge of floating the Society aforesaid in an attempt to usurp the

ACBR.

4. The respondent University also vide its Resolutions (supra)

impugned in this petition has removed the petitioner from the services of

the respondent University on the ground of having attempted to usurp the

ACBR and suppression, at the time of rejoining the Delhi University, of

the factum of removal from Bundelkhand University and thereafter

unauthorizedly taking over charge as Director of ACBR.

5. There has been an earlier round of litigation. The petitioner had

earlier filed W.P.(C) No.16000/2006 impugning the Resolution dated

17.10.2005 (supra) (also impugned in this writ petition) and seeking

mandamus restoring him to the position of Director, ACBR (which relief

also is claimed in this petition). The said writ petition was dismissed by a

learned Single Judge of this Court vide judgment dated 11.04.2008

observing / finding / holding as under:

(i) that the petitioner even under the letter dated 30.05.1995 was

not a regular appointee to the post of Director, ACBR and was

merely appointed as Acting Director till such time a regular

appointment was made and till 1999 when he proceeded on

deputation as VC of Bundelkhand University he remained an

Acting Director only of ACBR, in addition to his post as

Professor of Delhi University;

(ii) that upon the petitioner in the year 1999 proceeding on

deputation as VC of Bundelkhand University, one Professor

Vani Bhramachari was on 20.09.1999 appointed as

Officiating Director (Hony.) of ACBR "during leave period"

of the petitioner and the petitioner was to "continue to provide

academic leadership" to ACBR;

(iii) that though the petitioner had relied on several Resolutions of

the Governing Body of ACBR providing that the petitioner,

even while on deputation as VC of Bundelkhand University,

would continue holding the post of Acting Director, ACBR

but the said Resolution prima facie appeared to be of doubtful

veracity and in any case had no sanctity inasmuch as whether

the petitioner was to continue as Director, ACBR was to be

decided by the Executive Council of the Delhi University and

not by the Governing Body of ACBR;

(iv) that upon the petitioner returning from Bundelkhand

University, the Governing Body of ACBR had issued a

Notification dated 18.07.2005 to the effect that the petitioner

had resumed the charge as Director, ACBR but the Delhi

University vide its letter dated 19.07.2005 had directed

withdrawal of the Notification dated 18.07.2005 and which

was withdrawn on 25.07.2005;

(v) that appointment to the post of Director, ACBR was to be

made at the behest of respondent University and not by the

Governing Body of ACBR;

(vi) that the University of Delhi, when the petitioner in the year

1999 had proceeded on deputation as VC of Bundelkhand

University, had never contemplated the petitioner continuing

to hold charge of Acting Director of ACBR also during his

tenure as VC, Bundelkhand University;

(vii) that the Governing Body of ACBR could not have acted in

contravention of the Delhi University;

(viii) that the petitioner inspite of being aware in July, 2005 itself of

the Delhi University being not agreeable to his assuming the

post of Director, ACBR had not challenged the same;

(ix) that the allegations of the petitioner of malafide particularly

against the then VC of the Delhi University had remained

unsubstantiated;

(x) that during the pendency of the writ petition, when the Inquiry

Officer was appointed, though the petitioner had sought stay

of inquiry proceedings but no stay had been granted;

(xi) that ordinarily there could be no challenge to a mere show

cause notice and the case of the petitioner thereagainst was to

be considered by the Inquiry Officer.

6. The petitioner impugned the dismissal of W.P.(C) No.16000/2006

by filing an Intra-Court appeal being LPA No.229/2008. The petitioner

also filed a writ petition, being W.P.(C) No.4436/2008 impugning the

Resolution dated 21.03.2007 and memoranda dated 22.03.2007,

27.08.2007 and 16.10.2007 (all of which are challenged in the present writ

petition also). The said LPA and the writ petition were heard together by a

Division Bench of this Court and dismissed vide separate judgments both

dated 21.05.2009. It was observed/found/held by the Division Bench in

the judgments:

(i) that the petitioner had not questioned the authority or

competence of the VC to appoint and remove the person from

the office of Director, ACBR;

(ii) that the issue whether or not the petitioner was to continue

holding the charge as Acting Director was to be decided by

the Executive Council or the VC of the Delhi University and

not by the Governing Body of ACBR;

(iii) that as per Ordinance XX of the Delhi University, the

Governing Body of 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

thereto;

(iv) the submission of the petitioner that there could be no

collateral challenge to the Governing Body Resolutions or

that the Governing Body of ACBR had the authority to enable

the petitioner to continue to function as Director, ACBR had

no merit. That though the petitioner had challenged his

removal from the post of VC, Bundelkhand University by

filing a writ petition in the Allahabad High Court and which

writ petition had since been allowed but the same was of no

avail since the charge against the petitioner was of having at

the time of rejoining the Delhi University suppressed the

factum of his removal from the post of VC, Bundelkhand

University and which suppression remained unaffected by

subsequent judgment of the Allahabad High Court allowing

his challenge to the said removal. The decision of the

Allahabad High Court absolving him of the charge on which

he had been removed from Bundelkhand University did not

absolve the petitioner from the factum of not disclosing to the

respondent Delhi University that he had been so removed

prematurely from the post of VC, Bundelkhand University;

(v) the charge against the petitioner contained in the

Memorandum dated 02.11.2005 of upon return from

Bundelkhand University unauthorizedly usurping the post of

Director, ACBR was prima facie made out and thus the

initiation of inquiry proceedings against the petitioner could

not held to be bad;

(vi) no grounds had been set out by the petitioner for seeking the

quashing of the Resolution dated 17.10.2005;

(vii) that prima facie the charge against the petitioner of having

attempted to usurp ACBR by unauthorizedly forming the

Society aforesaid tantamount to misappropriation of the assets

of the University maintained institution for a purpose other

than one authorized by the Executive Council of the Delhi

University and constituted a ground and sufficient reason to

hold the inquiry;

(viii) that the petitioner had no lien to the post of Acting Director,

ACBR since it was merely an officiating assignment which

came to an end on the appointment of Professor Vani

Brahmachari to the said post;

(ix) that there was no jurisdictional error in Resolution dated

21.03.2007 or steps in pursuance thereto of suspension of the

petitioner;

(x) that the petitioner in the writ petition was also not entitled to

any relief for the reason of having suppressed the filing of

earlier writ petition being W.P.(C) No.2796/2007 also

impugning the Resolution dated 21.03.2007 and

Memorandum dated 22.03.2007 and which writ petition was

withdrawn on 24.09.2007.

7. The petitioner preferred SLP (C) No.13753/2009 and SLP (C)

No.14150/2009 before the Apex Court impugning the dismissal of the

LPA and the writ petition (supra). The said SLPs were dismissed by the

Supreme Court vide order dated 05.04.2010 as under:

"Special leave petitions are dismissed reserving liberty to

challenge the termination. All contentions and question of law are left open. We are sure that if and when the petitioner challenges the termination, it will be disposed of expeditiously."

8. It is the case of the petitioner, that since during the pendency of the

SLPs, there was no stay of the inquiry proceedings and which had

concluded and order of termination of his services had been passed by the

respondent Delhi University, the SLPs aforesaid were dismissed reserving

the liberty to the petitioner to challenge the termination and leaving all the

contentions and questions of law raised in the SLPs open.

9. The respondent Delhi University in its counter affidavit to the

present writ petition has inter alia taken a plea that in view of the

judgments dated 21.05.2009 in LPA No.229/2008 and W.P.(C)

No.4436/2008 earlier preferred by the petitioner, the petitioner cannot in

this writ petition raise issues regarding the illegality of initiation of inquiry

against him and the present writ petition is to be thus confined to the

challenge if any to the inquiry proceedings and of the action taken by the

respondent University in furtherance thereto.

10. The petitioner however controverts the said position and contends

that in view of the order dated 05.04.2010 (supra) of the Supreme Court

leaving all contentions and question of law open, the judgments dated

21.05.2009 in LPA No.229/2008 and W.P.(C) No.4436/2008 earlier

preferred by the petitioner cannot be said to have attained finality and it is

open to the petitioner to re-agitate even those issues decided against him in

the said judgments.

11. The petitioner filed IA No.10/2010 in SLP (C) No.14150/2009

(supra) seeking clarification / modification of the order dated 05.04.2010.

The petitioner in the said application sought clarification / modification

from the Supreme Court that he is entitled to in this writ petition re-agitate

matters which stand concluded by the judgments dated 21.05.2009 in LPA

No.229/2008 and W.P.(C) No.4436/2008 (supra). The said application of

the petitioner was however dismissed by the Supreme Court on 20.08.2010

vide order as under:

"I.A. No.10 of 2010 is dismissed."

12. In the aforesaid state of affairs, it is the contention of the senior

counsel for the respondent University that the matters which stand

concluded vide judgments dated 21.05.2009 in LPA No.229/2008 and

W.P.(C) No.4436/2008 (supra) cannot be re-agitated by the petitioner at

least before this Court and the challenge in the present petition is to be

confined only to the inquiry proceedings and to the decision in pursuance

thereto of dismissal of the petitioner from service and to the vires of para 6

of Annexure to Ordinance XI (supra). The senior counsel for the

petitioner, though has controverted the said position but faintly.

13. We are of the view that upon the dismissal of the SLPs preferred by

the petitioner against the judgments dated 21.05.2009 in LPA No.229/2008

and W.P.(C) No.4436/2008 earlier preferred by the petitioner reserving

liberty to the petitioner to challenge the termination, the petitioner is not

entitled to re-agitate the matters which stand concluded in the said

judgments and the challenge if any in this writ petition can be to

termination proceedings insofar as lacuna if any in the inquiry proceedings

and illegality if any in the order in pursuance thereto. We are further of the

opinion that the observation of the Supreme Court in the order dated

05.04.2010 that "all contentions and question of law are left open" does

not amount to giving liberty to the petitioner to re-agitate before this Court

the matters which stood concluded vide judgments dated 21.05.2009 in

LPA No.229/2008 and W.P.(C) No.4436/2008 and only meant that the

same were open for consideration by the Supreme Court itself if need for

the petitioner to urge the same arises from challenge to termination

proceedings. This is abundantly clear from the dismissal by the Supreme

Court of the clarification application preferred by the petitioner. Had the

Supreme Court intended to grant liberty to the petitioner to re-agitate the

challenges earlier decided against him, in the challenge to the order of

termination, the Supreme Court would have set aside the judgments of this

Court and / or remanded the matter to this Court. On the contrary, the

Supreme Court chose to dismiss the SLPs and which has the effect of the

judgments of this Court attaining finality and it is now not open to this

Bench to reconsider the matters already decided.

14. We in this writ petition are thus not concerned with the validity of

the initiation of the disciplinary proceedings / inquiry against the petitioner

and other matters aforesaid which stand concluded vide judgments of this

Court in the earlier round of litigation. Of course the question of vires of

Para 6 of Annexure to Ordinance XI and owing whereto this writ petition

is before this Bench instead of before a Single Judge of this Court, will

also have to be adjudicated.

15. The senior counsel for the respondent University has next contended

that the present writ petition is replete with the same averments as in the

earlier round of litigation and there is hardly any challenge in the present

writ petition to the inquiry proceedings. Attention is invited to Para 79 of

the writ petition where the petitioner has pleaded that the Inquiry Officer

"did not allow oral evidences and most of the relevant documents required

were not provided and legal defence assistance was not allowed." He

contends that the same cannot be said to be a sufficient plea to challenge

the inquiry proceedings inasmuch as neither is it pleaded as to what oral

evidences would have been led and as to how it would have swayed the

report of the inquiry and what other documents were not supplied to the

petitioner. It is highlighted, as also apparent from the reports of the

Inquiry Officer that the petitioner fully participated in the inquiry

proceedings.

16. The senior counsel for the respondent University on the challenge by

the petitioner to the vires of Para 6 of Annexure to Ordinance XI has

contended that notwithstanding the show cause notices in the earlier round

of litigation having been for action under the said provision only, the

petitioner at that time did not challenge the vires of the said provision. It is

also contended that the petitioner has no cause of action for the said

challenge.

17. We will first take up the challenge to the vires of Para 6 of Annexure

to Ordinance XI (supra).

18. The petitioner has challenged the vires of the same averring that the

same does not provide any guidelines or safeguards in protection of

principles of natural justice; the same confers unguided and unchannelized

powers in the VC or the Executive Council in the matter of initiation of

and conduct of disciplinary proceedings against teaching staff; that the

same are sketchy and capable of being used in an arbitrary manner; that

proceedings to hold a person guilty of misconduct on general concepts are

unfair and arbitrary - reliance is placed on A.L. Kalra Vs. Project &

Equipment Corporation of India Ltd. (1984) 3 SCC 316; that the

proceedings against him are in violation of Para 7 of the Annexure to

Ordinance XI.

19. Paragraphs 6 & 7 of the Annexure to the Ordinance XI are as under:

"6.(1) Notwithstanding anything hereinbefore contained, the Executive Council of the University shall be entitled summarily to determine the engagement of the teacher on the ground of misconduct in accordance with the provisions hereinafter set forth.

(2) The Vice-Chancellor may, when he deems it necessary, suspend the teacher on the ground of misconduct. When he suspends the teacher, he shall report it to the next meeting of the Executive Council.

(3) The Executive Council shall investigate all matters reported to it by the Vice-Chancellor about the misconduct of the teacher whether he has been suspended or not. The Executive Council may appoint a Committee for the purpose. The teacher shall be notified in writing of the charges against him and shall be given not less than three week's time to submit his explanation in writing.

The Executive Council or the Committee may hear the teacher and take such evidence as it may consider necessary. The Executive Council may determine the engagement of the teacher where it deems that the misconduct of the teacher deserves to be dealt with in that manner, after it has considered the explanation and the

evidence, if any, and / or the report of the Committee, if one has been appointed.

(4) Where the termination of the service on the ground of misconduct is after suspension by the Vice- Chancellor as aforesaid, the termination of service may be from the date of suspension, if the Executive Council so directs.

7. The engagement under these provisions shall not, save as aforesaid be determined by the Executive Council except by a resolution passed by a vote of not less than a two- thirds majority of the members present at the meeting, provided that the two thirds majority is not less than half the total number of members of the Executive Council. The resolution shall state the reasons for the termination. Before a resolution, under this clause is passed the Executive Council shall give notice to the teacher of the proposal to determine the engagement and not less than three weeks' time to make such representation as the teacher may like to make. Every resolution terminating the service under this clause shall be passed only after consideration of representation, if any, of the teacher. The teacher whose services are terminated under this clause shall be given not less than three months' notice from the

date on which he is notified of the resolution of the termination of service or not less than three months' salary in lieu of notice."

20. The respondent University in its counter affidavit has pleaded that

Paras 6 & 7 (supra) are independent of each other and operate in different

fields which are mutually exclusive; while termination of service on the

ground of misconduct is covered by Para 6, termination of service for

reasons unconnected with misconduct is dealt with in Para 7 as is apparent

from the words "save as aforesaid" in the opening sentence of Para 7; that

the petitioner‟s engagement having been determined on the ground of

misconduct after due inquiry, he cannot rely on Para 7 at all; that the

petitioner at the time of joining the services of the respondent University

having entered into an agreement as per Annexure to Ordinance XI, cannot

now wriggle out of the same; that the petitioner had been in service of the

respondent University since 1996 and cannot now challenge the terms of

the agreement; that Article 311 of the Constitution of India is not

applicable to the respondent University or to the employees of the

respondent University and the petitioner cannot now claim any parity

therewith.

21. The petitioner in his rejoinder has further pleaded that Para 6 of the

Annexure (supra) does not prescribe any procedure for conducting inquiry

against any teacher or any procedure for disengagement of service; that

most of the other Central Universities in the absence of their own conduct

rules in the case of teachers have adopted the Central Civil Services

(Classification, Control & Appeal) Rules, 1965 of the Government of

India; that since the respondent University does not possess any Conduct

Rules for its teachers and since it is following the Government of India

Rules for payment of Subsistence Allowance, it ought to implement CCS

(CCA) Rules also; that Para 6 (supra) is violative of Article 14 of the

Constitution of India inasmuch as it does not provide for a reasonable

opportunity to the concerned teacher for defending himself / herself in

accordance with the principles of natural justice.

22. The senior counsel for the petitioner during the hearing has relied on

Delhi Transport Corporation Vs. DTC Mazdoor Congress 1991 Supp. (1)

SCC 600 (Para 230) in support of the argument of the need to minimize

the scope of arbitrary use of power. In the written arguments, it is also

contended that Annexure to Ordinance XI is discriminatory inasmuch as

the same places a University appointed teacher disadvantageously in

comparison to College appointed teachers who enjoy the benefit of Section

45(2) of the Delhi University Act, 1922 providing for arbitration of the

disputes and appeal thereagainst and which is not available to University

appointed teachers.

23. We may record that the petitioner neither in the writ petition nor in

the rejoinder has challenged the entire Annexure to Ordinance XI; what is

challenged therein is only the vires of Para 6 thereof. In fact the learned

senior counsel for the petitioner during the oral submissions before us also

did not challenge the vires to the entire Annexure to Ordinance XI.

Similarly no challenge in the writ petition is to be found to Para 6 also on

the ground of the same being discriminatory vis-à-vis the College

appointed teachers. No oral arguments also in this regard were addressed

and the said arguments have been smuggled into the summary in brief

handed over to us. The written arguments cannot be used to smuggle in

new pleas not contained in the pleadings and not addressed at the time of

hearing. We are thus not inclined to entertain the same. The Apex Court

in Kamakshi Builders Vs. Ambedkar Educational Society (2007) 12 SCC

27 refused to look into a plea even as to lack of jurisdiction raised for the

first time in the written submissions.

24. We are even otherwise not impressed with the challenge made out to

Para 6 of the Annexure to Ordinance XI. There is also some merit of the

plea of the respondent University that the petitioner having agreed to

employment in the respondent University on the terms contained therein is

not entitled to challenge the same. A Division Bench of this Court in

Shital Prasad Tyagi Vs. The Principal, Central Institute of Education,

Delhi ILR (1969) I Delhi 1184 held that Ordinance XI incorporates the

requisite safeguards to ensure a good standard of education and teaching in

the University and a lecturer in the University having been informed at the

time of appointment that the service was not a government service cannot

avail of protection of Article 311 of the Constitution. Another Full Bench

of this Court in Dr. Mohd. Khan Durrany Vs. The Principal, Shivaji

College ILR (1970) II Delhi 414 held that the appointment of a lecturer, in

that case in a College functioning under the Delhi University is dominantly

contractual and the teachers do not hold a statutory office and have not

been given a legislative status; termination of their service in contravention

of model conditions of service cannot be said to be violation of mandatory

statutory obligation and the remedy for such wrongful termination is

therefore, by way of damages and not by way of reinstatement.

25. What we find in the present case is that the grounds on which the

vires of Para 6 (supra) is challenged are factually not established. Though

Para 6(1) uses the expression "summarily determine the engagement of the

teacher on the ground of misconduct" but the same has to be "in

accordance with the provisions hereinafter set forth". Sub-Paras (2) to (4)

of Para 6 provide for investigation of misconduct, appointment of a

Committee for the purpose of the said investigation, notifying the

delinquent teacher in writing of the charges against him / her; providing of

not less than three weeks‟ time to submit the explanation and to hear the

teacher and take such evidence as may be necessary and taking of decision

of determination of engagement only after considering such explanation

and evidences.

26. We thus find that the procedure prescribed in Para 6 cannot be said

to be violative of the principles of natural justice or unfair. Para 6 confers

the powers of determination of engagement of teacher on the ground of

misconduct on the Executive Council. The Executive Council, under

Section 21 of the Act is the executive body of the University, empowered

under Section 29 to make new or additional Statutes and to amend or

repeal the Statutes of the University. In the hierarchy of the authorities of

the University prescribed in Section 17 of the Act, the Executive Council is

next only to the Court which is the supreme authority of the University.

As per Statute 5 of the University, the Executive Council comprises of

Vice Chancellor, Pro-Vice-Chancellor, Dean of Colleges, Director (South

Campus), Director (Campus of Open Learning), Treasurer, Proctor, three

Deans, three Principals, four Elected Representatives from amongst

Members of the Court of the University, two elected representatives from

amongst the teachers of the University, two persons nominated by the

Visitor to the University and one person to be nominated by the Chancellor

of the University. As per Statute 6, the Executive Council has the

management, administration of the revenue and property of the University

including the powers of appointment of teachers of the University. It

would thus be seen that the Executive Council is the apex executive body

of the University which has exercised the power of the appointment of the

petitioner. It thus cannot be said that Para 6 (supra) has vested the power

of termination in a junior / menial body / person.

27. It is the settled position in law that mere possibility of misuse cannot

be a ground for challenging the vires of the provision. The Supreme Court

in D.K. Trivedi & Sons Vs. State of Gujarat 1986 Supp. SCC 20 held that

where a statute confers discretionary powers upon the Executive or an

administrative authority, the validity or Constitutionality of such power

cannot be judged on the assumption that the Executive or such authority

will act in an arbitrary manner in the exercise of discretion conferred upon

it; if the Executive or the administrative authority acts in an arbitrary

manner its action will be bad in law and liable to be struck down but the

possibility of abuse of power or arbitrary exercise of power cannot

invalidate the statute conferring the power or the power which has been

conferred by it. Similarly in Organo Chemical Industries Vs. UOI (1979)

4 SCC 573 also it was observed that the bogie of absence of guidelines and

the consequential possibility of authority running berserk does not frighten

- what is not explicit may still be implicit. Delhi Transport Corporation

(supra) relied on by the petitioner does not negate the said proposition.

The provision for termination of service for consideration in that case was

without holding any inquiry and found to be violative of rules of natural

justice. It was for this reason that it was struck down as providing

unguided, unrestricted and arbitrary power of termination. It is not so in

the present case. Para 6 of Ordinance XI provides for termination only in

case of misconduct and provides for a proper inquiry complying with the

principles of natural justice.

28. We are also in agreement with the plea of the respondent University

that Paras 6 & 7 of Annexure to Ordinance XI operate in different fields.

Para 7 is intended to provide security of tenure to teachers of the

University by providing for termination of their engagement on other

grounds even if not found to have mis-conducted themselves, by providing

for the same being possible only vide a resolution passed by a vote of not

less than two-thirds majority of the members present at the meeting being

not less than half of the total members of the Executive Council. On the

contrary, such condition of Resolution passed by a vote of not less than

two-thirds majority of the members of the Executive Council is

conspicuously absent from Para 6. Else Statute 5 (4) provides for seven

members Executive Council forming a quorum.

29. Misconduct though not defined in the Act or in Ordinance XI or in

the Annexure thereto, is a well understood term and Para 6 (supra) cannot

be held to be bad and liable to be struck down merely for the reason of

"misconduct" having not been defined. Para 6 having provided for

termination of engagement of the teacher on the ground of misconduct and

having vested the power thereunder in the Executive Council, it is obvious

that the "misconduct" for which such powers can be exercised cannot be

trivial and has to be of the nature and gravity so as to invite the extreme

punishment of determination of engagement. The Apex Court in State of

Punjab Vs. Ex-Constable Ram Singh (1992) 4 SCC 54 was also faced

with a Rule where misconduct was not defined. It was however held that

the ambit of the word misconduct has to be construed with reference to the

subject matter and the context wherein the term occurs regard being had to

the scope of the statute and the public purpose it seeks to serve. Similarly

in Caltex (India) Ltd. Vs. Presiding Officer, Labour Court AIR 1966 SC

1729 also, failure to define misconduct was held not to invalidate the

provision on the ground of excessive delegation. As far back as in W.M.

Agnani Vs. Badri Das (1963) I LLJ (SC) 684 also it was observed that

what conduct can be considered as misconduct has to be dealt with

reasonably and in accordance with common sense and depends upon the

circumstances of each case. Reference in this regard can also be made to

observations in UOI Vs. Annam Ramalingam (1985) 2 SCC 443 though

not in the context of misconduct. As far as the reliance by the petitioner on

A.L. Kalra (supra) is concerned, the Supreme Court in Secretary to

Government Vs. A.C.J. Britto (1997) 3 SCC 387 held that A.L. Kalra

cannot be held as laying down that it is obligatory on the employer to

specify and define with precision misconduct. Moreover, all decisions of

the Executive Council under Section 18 of the Act and Statute 6 can be

reviewed by the Court of the University (and which opportunity the

petitioner availed but the Court refused to interfere) and are subject to

judicial review of this Court and thus for this reason also it cannot be said

that Para 6 (supra) is arbitrary or liable to be set aside / quashed on this

ground.

30. As far as the facts of the present case are concerned, the senior

counsel for the petitioner has been unable to show any violation of

procedure in the inquiry proceeding. Rather the report of the inquiry on

Memorandum dated 27.08.2007 of the petitioner being guilty of

misappropriation of `16,63,264/- is in favour of the petitioner. The

petitioner has been unable to establish any case of any defect or violation

of principles of natural justice in the inquiry.

31. Moreover, we are of the view that the facts are not really in dispute.

The penalty of determination of engagement has been imposed on the

petitioner finding the petitioner guilty of:

(i) not informing the respondent University at the time of

rejoining (post deputation) in the year 2005, of his removal

from the post of VC of the Bundelkhand University;

(ii) having thereafter on his own and / or in collusion with the

Governing Body of ACBR taken over as the Director of

ACBR and acted so without the respondent University having

allowed so;

(iii) having formed a Society to usurp the ACBR.

32. The explanation of the petitioner for his aforesaid action is:

(i) having orally informed of his removal as Vice Chancellor of

Bundelkhand University;

(ii) that he had got the Society registered as an agent of the

Governing Body of ACBR;

(iii) that the respondent University had never objected to the

Resolutions of the Governing Body of ACBR;

(iv) that two members of the Executive Council were also in the

Governing Body of ACBR;

(v) it thus could not be said that the actions of the Governing

Body of ACBR were behind the back of the respondent

University;

(vi) that the formation of the Society was in consonance with the

thought at the time of setting up of ACBR of the same

ultimately becoming an autonomous body / University /

deemed University;

(vii) that no action has been taken against the other members of the

Governing Body of ACBR.

33. A perusal however of the reports of the Inquiry Officer shows:

(i) that the petitioner on 18.07.2005 wrote a letter to the

respondent University that after completing his tenure as VC

of Bundelkhand University, he had returned back and reported

for duty as Professor. The petitioner in the said letter did not

disclose the factum of his removal from the said post and

concealed the same;

(ii) that the petitioner simultaneously on 18.07.2005 itself also got

the Deputy Registrar, ACBR to issue a Notification of the

petitioner having joined back as full time Director in the

afternoon of 18.07.2005 when there was no such sanction

from the respondent University and when till then he had not

even been allowed to join back his substantive post of

Professor in the respondent University;

(iii) the petitioner has throughout also set up a false case of his

having been allowed to remain as the Acting Director of

ACBR even during the time when he was on deputation as

VC of Bundelkhand University when as per the Notification

dated 20.09.1999, the petitioner during the said time was

merely to provide academic leadership to ACBR.

(iv) the petitioner wrote a letter dated 08.08.2005 to the VC

signing the same as Founder Director, ACBR when neither he

was at any time conferred the post of Founder Director nor

was on that date the Director of ACBR and which charge he

was earlier merely holding additionally and which also he had

ceased to hold on going on deputation as aforesaid;

(v) that the aforesaid amounted to usurpation of the post of

Director, ACBR;

(vi) that the claim of the petitioner that ACBR was his brainchild

and not of the respondent University was false;

(vii) that the claim of the petitioner that the memorandum issued to

him were not at the instance of the Executive Council was

false in view of the Resolutions of the Executive Council

including of appointment of a retired Judge to enquire into the

charges of misconduct;

(viii) that the version of the petitioner of having orally informed the

VC, Delhi University of his removal from the post of VC,

Bundelkhand University was not established;

(ix) that merely because the idea of setting up of ACBR was

conceived by the petitioner and he was actively involved in

setting up thereof does not allow him to proclaim himself as

the Founder Director of ACBR or to contend that he cannot be

removed from the said post;

(x) that the petitioner inspite of knowledge of objection having

been taken by the respondent University to his taking over as

Director of ACBR on 18.07.2005 continued to unauthorizedly

represent himself as Director of ACBR and was not justified

in describing himself so;

(xi) that his action of so describing himself as Director of ACBR

was misleading;

(xii) that the case of the petitioner during the inquiry proceedings

of having held the post of Acting Director, ACBR while

holding the post of VC, Bundelkhand University itself was a

misconduct;

(xiii) that the effort of the petitioner of hiving off ACBR from being

a University maintained Institute to an independent body was

also without authority of the respondent University;

(xiv) that the petitioner had illegally attempted to convert a

University maintained institution into a registered society and

the University building as registered office of the Society;

(xv) that out of the signatories to the Memorandum of Association

of the Society only the petitioner was in the employment of

the University and therefore the proceedings could be initiated

only against the petitioner;

(xvi) that the action of the petitioner of describing himself as

Director of ACBR while forming the Society, when he was

then not even a Director of ACBR amounted to misconduct;

(xvii) that the petitioner had attempted to describe the property of

the University where the ACBR was situated as his own and

given an affidavit of „No Objection‟ for registered office of

the Society at the said premises describing the said premises

as his own.

34. We are of the view that the actions aforesaid of the petitioner which

are not disputed; of attempting to rejoin the Delhi University by concealing

the factum of his removal from Bundelkhand University; of attempting to

thereafter take over as Director of ACBR; of while being VC of

Budelkhand University continuing to claim himself to be Acting or

Honorary Director of ACBR and of availing the amenities of telephone and

security guards at his residence at the expense of ACBR (even though the

charge of sanctioning the said expenditure was not established); on taking

steps without authority of University with respect to ACBR and to convert

the same into an independent Society from being an institution of the Delhi

University definitely fall within the definition of "misconduct" and were

grave enough for the action taken by the respondent University of

terminating the engagement of the petitioner and to not call for any

interference in exercise of powers of judicial review. This Court is not

sitting in appeal over the disciplinary action of the respondent University

and is only to satisfy itself whether sufficient material for forming an

opinion exists or not and whether the punishment is proportionate to the

misconduct proved. We are satisfied on both counts.