Dr. Bhim Sen Singh vs The University Of Delhi & Ors.
2016 Latest Caselaw 100 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: January 07, 2016

+                         W.P.(C) 4639/2015

DR. BHIM SEN SINGH
                                                           ..... Petitioner

                          Through:     Ms.Jyoti Singh, Sr. Advocate with
                                       Ms.Tinu Bajwa & Ms.Lakshmi
                                       Gurung, Advocates

                          versus

THE UNIVERSITY OF DELHI & ORS.
                                                        ..... Respondents

                          Through:     Mr.Sudhir Nandrajog, Senior
                                       Advocate with Mr.Mohinder J.S.
                                       Rupal, Adv. for R-1
                                       Mr.Pranav Kr. Jha, Advocate for
                                       R-2 & R-3

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO

V.KAMESWAR RAO, J. (Oral)

1. In view of the order dated May 15, 2015, the only relief that

survives for consideration in this writ petition is the following:

"(a) Allow the present writ petition by issuing a writ of mandamus or any other appropriate writ order/direction to reinstate the petitioner who vide suspension order dated 01.08.2012 had been placed under suspension declaring that such suspension order has not been reviewed and is invalid".

2. It is the submission of Ms. Jyoti Singh, learned Senior Counsel

appearing for the petitioner that even though, the ordinance XII of the

University does not prescribe reviewing of the suspension, on expiry of

certain period, the respondent No. 2-College has adopted the CCS

(CCA) Rules, 1965 („Rules of 1965‟ in short) to govern the departmental

proceedings and the same is clear from page 510 of the paper book

wherein it was noted by the learned Enquiry Officer, on an issue of

applicability of Rules of 1965, on the statement made by Mr. Mittal,

learned counsel for the college, that the college authorities have no

objection in following the principles of Rules of 1965 in respect of

departmental enquiry against the petitioner as well. She states, in view

of such a statement, the Rules of 1965 deemed to have been adopted in

toto to govern the suspension of the petitioner herein as well. In that

regard, she would rely upon the judgment of the Supreme Court in the

case reported as 2010 (2) SCC 222 Union of India Vs. Dipak Mali 1999.

3. She would also state, subject matter of the departmental

proceedings is a charge sheet issued to the petitioner on August 30,

2012. The charges have been enquired into and the Enquiry Officer has

submitted his report to the Management Committee of the College. The

departmental proceedings have concluded, there is no threat of petitioner

influencing the witnesses or fabricating the documents so as to keep him

away from duties. In other words, it is her case that no ground exists to

continue the petitioner under suspension. She would also refer to a

second charge sheet issued to the petitioner in the month of November,

2014, which has also come to an end as the Enquiry Officer has closed

the proceedings and has only to submit his report to the Management

Committee for it to take a decision. Even on that ground, the

continuance of petitioner under suspension is untenable. She also refers

to the letter dated March 2, 2015 to contend, in the said letter, it is the

stand of the University that they have given approval to the decision of

the Governing Body at its meeting held on December 11, 2014 to allow

keeping the petitioner under suspension during the pendency of the

second enquiry. She states, no such decision can be seen from the

proceedings of the Governing Body held on December 11, 2014 as there

was no such agenda item for the said meeting, hence, there is no question

of Vice Chancellor approving the continuance of the petitioner under

suspension. She would also state, the reliance placed by the respondent

No.1 University on the letter dated January 15, 2015 in support of their

letter dated March 2, 2015, is not tenable as Dr. S.P. Gupta had no locus

to write a letter to the Vice Chancellor, seeking his approval for

continuance of the petitioner under suspension both on the ground of

being not competent, as the Governing Body is the appointing authority

and being an interested party, as he is holding the post Acting Principal,

the post earlier held by the petitioner. She would also state whether rules

for review exists or not, the principles of natural justice demand timely

review of suspension must be read in the rules so that the

employee/officer does not remain incarcerated till the end of the

proceedings without justification. In that regard she rely on the

judgment reported as 1999 (7) SCC 739 Yoginath Bagade vs. State of

Maharashtra and 2009 (112) DRJ 391 (DB) Prof. Bidyug Chakraborty

vs. Delhi University & Ors. In the last it is her submission that till date

there is no decision of the Governing Body reviewing the suspension of

the petitioner. She would also rely on judgment of the Supreme Court in

Ajay Kumar Choudhary vs. Union of India through its Secretary &

Anr., Civil Appeal No. 1912/2015 decided on February 16, 2015 in

support of her submissions.

5. On the other hand, learned counsel appearing for the respondent

No.2 College would state that the Rules of 1965 are not applicable to the

University of Delhi and its constituent colleges. He would refer to

Clause 7 of the Ordinance XII, which inter alia, contemplates suspension

of an employee. According to him, there is no provision in the

Ordinances adopting the Rules of 1965, which governs the suspension,

departmental proceedings etc. According to him, the contention of the

learned Senior Counsel for the petitioner that the Rules of 1965 have

been made applicable by placing reliance on the proceedings held against

one Dr. S.C.Garg and also statement given by counsel appearing for the

College before the Ld. Enquiry Officer in the proceedings against the

petitioner, is only to follow the rules for the conduct of the departmental

proceedings against Dr. Garg and the petitioner as the said rules lays

down a definite procedure for holding departmental proceedings. The

statement cannot be read to mean, adopting the Rules of 1965, as a

whole. According to him, no statement to govern the suspension of the

petitioner under Rule 10 of the Rules of 1965 has been made. In the

absence of any provision for a periodical review, the suspension cannot

be held to be bad. According to him, the reliance placed by the learned

Senior Counsel for the petitioner on the judgment of the Supreme Court

in the case reported as 2010 (2) SCC 222 Union of India & Ors. Vs.

Dipak Mali is untenable and the same is not applicable, as the judgment

deals with a situation under the Rules of 1965. That apart, it is his

submission, even if the Enquiry Officer has submitted his report, that

would not entail revocation of the suspension of the petitioner. He states,

the respondent No. 2 College has recommended the termination of the

petitioner to the respondent No.1 University and the College is awaiting

the decision on that. He also states, noting the position, the petitioner

held in the college, the revocation of his suspension would not like to be

allowed by this Court. That apart, it is his submission that departmental

proceedings qua the second charge sheet have only been closed by the

Enquiry Officer but he is yet to give his report. Till such time the

proceedings culminate in the final order(s), the plea of revocation of

suspension is untenable. He relied upon the judgment of this Court in

the case reported as 2009 (112) DRJ 54 (DB) Professor Ramesh

Chandra vs. University of Delhi & Anr.

6. Mr.Sudhir Nandrajog, learned counsel appearing for the

respondent No.1 University would submit, the communication dated

March 02, 2015 of the University was rightly issued and the same has to

be read in conjunction with the letter dated January 15, 2015 of Dr. S.P.

Gupta, written in his capacity as the Member Secretary of the Governing

Body, wherein approval of the Vice-Chancellor was sought for

continuance of the petitioner‟s under suspension in view of second

charge-sheet. He states, the Governing Body in its meeting dated

November 02, 2015 did consider the letter dated January 15, 2015

written by Dr. S.P. Gupta but did not comment otherwise, on the letter,

which means, the Governing Body had accepted/agreed with the

approval sought for continuance of the petitioner under suspension.

According to him, even though the learned Enquiry Officer had absolved

the petitioner against some of the charges in the first charge-sheet,

pursuant to a note of disagreement given to the petitioner, the Governing

Body after considering the reply filed by the petitioner has decided to

terminate the services of the petitioner. The decision has been sent to the

Vice-Chancellor for approval. According to him, it is a case of loss of

confidence, and his reinstatement in such circumstances is undesirable.

He seeks the dismissal of the writ petition.

7. Having considered the submissions advanced by the learned

counsel for the parties, insofar as the submission of Ms. Jyoti Singh,

learned Senior Counsel for the petitioner, on the applicability of the

Rules of 1965 by placing reliance on the order passed by the learned

Enquiry Officer in the proceedings held against the petitioner, suffice to

state, the statement made by Mr Mittal is very clear, that he has no

objection in following the principles of the Rules of 1965 in respect of

departmental proceedings against Dr. Singh, the petitioner herein. The

said statement was noted by the Enquiry Officer (at page 510) in the

following terms:-

"Faced with the said argument Mr. Mittal appearing for the college, has fairly submitted that the college authorities have no objection in following the principles of CCS/CCA rules also in respect of departmental enquiry against Dr. Singh. Further Mr. Mittal submitted that the

said rules are made applicable in the departmental proceedings against Dr. Singh. Further Mr. Mittal submitted that the said rules are made applicable in the departmental proceedings against Dr. Sigh to the extent possible."

8. The aforesaid statement has to be read in the context that there is

no detail procedure laid down in the Ordinances of the University for

conducting the departmental proceedings and the Rules of 1965

encompasses in itself the principles of natural justice/fair procedure.

Surely, a "departmental enquiry" would not contemplate „suspension‟ as

a departmental enquiry starts with the issuance of charge-sheet and

culminate with a final order. No doubt, the Rules of 1965, vide Rule 10

stipulates, „suspension‟, but that is not part of the procedure governing

the „departmental enquiry‟. Further, as noted above there is a provision

for „suspension‟ in the Ordinance XII which does not contemplate timely

review. The procedure to review the suspension after a particular time

period, need to be prescribed in the Rules by the rule making authority,

as prescribing such a provision would impose an obligation on the

authority to review periodically. That apart, a procedure needs to be laid

down as to in what manner the review needs to take place. That apart,

any violation thereof leads to a particular consequence, that is the

suspension becomes invalid. A statement made by a counsel would not

make the complete Rules of 1965 applicable. This submission needs to

be rejected. The judgment of the Supreme Court in Dipak Mali (supra)

is not applicable, as the CCS (CCA) Rules are not applicable.

9. Insofar as the submission of Ms. Jyoti Singh, by relying upon the

judgment of the Supreme Court in the case of Yoginath D. Bagde Vs.

State of Maharashtra and Another, 1999 (7) SCC 739, more

specifically para 28 to contend that the principles of natural justice

require that the suspension must be reviewed periodically, and such a

procedure must be read in the rules, is concerned, suffice to state, the

observation of the Supreme Court was in the context, where the

principles of natural justice, giving a hearing to the delinquent employee

when the disciplinary authority disagreed with the finding recorded by

the Enquiry Officer, has been denied. The Supreme Court in that

situation held, the principles of natural justice must be read into the

rules. Such a proposition cannot be read in the case of this nature where

there is no provision at all in the Rules to review a suspension after a

particular period. Reading the opportunity of hearing in a rule is not the

same as reading into a rule procedure, which imposes an obligation on

the authority with a consequence i.e. making suspension invalid. So such

a process cannot be read into the Rules on the premise that the same is in

violation of the principles of natural justice. No doubt, the competent

authority otherwise is required to review the suspension of an officer

from time to time without any obligation of time limit.

10. Insofar as the submission made by Ms. Jyoti Singh, relying upon

the judgment of this Court in the case of Prof. Bidyug Chakraborty Vs.

Delhi University and Ors., 2009 (112) DRJ 391 (DB) is concerned, no

doubt in the said case, this Court based on the judgment of the Supreme

Court in Medha Kotwal Lele and Ors. Vs. Union of India and Ors.,

W.P.(C) 173-177 of 1999 decided on April 26, 2004 wherein, the

Supreme Court has held that the Complaints Committee envisaged in

Vishaka and Ors. Vs. State of Rajasthan and Ors., (1997) 6 SCC 241

will be deemed to be an Enquiry Authority for the purposes of the Rules

of 1965 and the report of the complaints committee shall be deemed to

be an inquiry report under the Rules of 1965, and read into the

Ordinance XV-D, „Complaints Committee‟ to mean Enquiry Authority,

which did not contain identical Clause (16) and (17) of Rule 14 of the

Rules of 1965. Suffice to state, such a procedure was evolved by the

Supreme Court in the cases of sexual harassment only, to obviate a

situation of a woman employee facing two enquiries, one, fact finding

enquiry pursuant to a complaint and two, an enquiry under the conduct

rules. It is in view of the dicta of the Supreme Court, this Court has read

into the Ordinance XV-D, the report of the Complaints Committee to

mean the report of the Enquiry Authority. There is no dispute to the fact

that this Court was in fact, dealing with a case of sexual harassment in

Prof. Bidyug Chakraborty (supra), which is not the case here. Hence

the submission of Ms. Jyoti Singh, needs to be rejected.

11. Insofar as the submission of Ms. Jyoti Singh that the decision of

the Vice Chancellor communicated through letter dated March 2, 2015 to

state that no such decision was taken by the Governing Body of the

College, hence, the decision was totally extraneous, is concerned, suffice

to state, a perusal of the letter dated March 2, 2015 does refer to a

communication dated January 15, 2015, seeking approval of the Vice

Chancellor to the continuance of suspension of the petitioner, even after

issuance of second charge sheet. The said letter was written by Dr.

S.P.Gupta as Member Secretary of the Kirori Mal College Governing

Body and which reads as under:

        The Vice Chancellor                  Date- 15.01.2015
        University of Delhi
        Delhi-110007

        Sir,

As directed by the Chairman of the college Governing Body on 14.01.2015, I am writing this letter.

The Governing Body at its meeting held on 11.12.2014 considered the reply of Dr. Bhim Sen Singh, Principal (under suspension) to the memorandum dated 6.11.2014 issued to him. The Governing Body decided to set up an enquiry in the matter because Dr. Bhim Sen Singh had denied all the charges in the memorandum dated 6.11.2014 and it further authorized the Chairman to

appoint the Enquiry Officer as well as the Presenting Officer.

A copy of the memorandum is enclosed herewith.

Please allow the Governing Body to keep the suspended Principal Dr. Bhim Sen Singh under suspension during this enquiry.

With regards, Yours Sincerely

(Dr. S.P. Gupta) Member Secretary, K.M. College Governing Body."

12. The letter reveals that the same was written by Dr. Gupta on the

directions of the Chairman of the Governing Body. The Governing Body

which is the Disciplinary Authority, did note the letter dated January 15,

2015 in its meeting held on November 12, 2015 and did not decide to

revoke the suspension of the petitioner. This submission is also rejected.

13. The submission of Mr.Nandrajog that the Governing Body, being

the Disciplinary Authority, having prima facie found that the charges

framed against the petitioner are sustainable, decided to terminate the

services of the petitioner, which decision is pending approval of the

Vice-Chancellor, and in such situation the suspension should not be

revoked is appealing. Till such time the decision is taken by the Vice-

Chancellor, the Governing Body‟s decision to terminate the services of

the petitioner cannot be overlooked, in deciding the issue of revocation

of his suspension.

14. In view of the aforesaid peculiar facts, the judgment of the

Supreme Court in Ajay Kumar Choudhary (supra), relied upon the

learned Senior Counsel for the petitioner would also not be applicable.

No doubt, the Supreme Court in para 14 held that the currency of

suspension order should not extend beyond three months if within such

period the Memorandum of Charge/Charge-sheet is not served on the

delinquent officer/employee. The Supreme Court further held, if the

Memorandum of Charges/Charge-sheet is served, a reasoned order must

be passed for the extension of suspension, as according to the Supreme

Court the Government is free to transfer the concerned person to any

department in any of its offices within or outside the State so as to sever

any local or personal contact which he may have and which he may

misuse for obstructing the investigation against him. The Supreme Court

although in the said case noting that the charge-sheet has been served,

had not interfered with the suspension, however observed the appellant

may challenge his continuous suspension in any manner known to law

and the action of the respondents will be subject to judicial review.

15. In view of the above discussion, I do not see any merit in the

petition. The same is dismissed.

(V.KAMESWAR RAO) JUDGE JANUARY 07, 2016/akb/km