Central University Of Jharkhand vs Dr. Iswar Chand Bidyasagar
2021 Latest Caselaw 2583 Jhar

                           1


IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 L.P.A. No.171 of 2020
                              ------
 Central University of Jharkhand, through its Registrar, Sri Harikum, S/o
 not known, presently working as Registrar, P.O.-Brambe, P.S.-Mandar,
 District-Ranchi                                 ....    .... Appellant
                            Versus
1. Dr. Iswar Chand Bidyasagar, aged about 42 years, son of Late Harihar
     Narayan Visvakarma, resident of A/514, Astha Regency, Ratu Road,
     Hehal, P.O.-Hehar, P.S.-Sukhdeonagar, District-Ranchi
2. Sri Nand Kumar Yadav 'Indu', son of not known, presently posted as
     Vice-Chancellor, Central University of Jharkhand, P.O.-Brambe, P.S.-
     Mandar, District-Ranchi                      ....   .... Respondents
                             ------
CORAM : HON'BLE THE CHIEF JUSTICE
              HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                             ------
For the Appellant-University     : Mr. Manoj Tandon, Advocate
For the Respondent No.1          : Mr. Indrajit Sinha, Advocate

                                ------
C.A.V. on 03.03.2021                        Delivered on 28/07/2021
Per Sujit Narayan Prasad, J.

The matter has been heard through video conferencing with the

consent of learned counsel for the parties. They have no complaint about

any audio and visual quality.

L.P.A. No.171 of 2020

The instant appeal is under Clause-10 of the Letters Patent Appeal

directed against the order/judgment dated 14.02.2020 passed by the

learned Single Judge of this Court in W.P.(S) No.5091 of 2019, whereby

and whereunder, the orders of suspension dated 09.05.2019 and

06.08.2019 as also the entire disciplinary proceeding initiated vide charge

memo dated 26.07.2019 as well as subsequent appointment of Inquiring

Authority vide order dated 02.09.2019 and notice of inquiry issued by the

Inquiring Authority vide memorandum dated 06.09.2019 has been

quashed by allowing the writ petition.

2. The brief facts of the case which required to be enumerated reads

as hereunder:-

The writ petitioner was appointed, vide order dated 18.11.2011

issued under the signature of Registrar on the basis of the

recommendation of the Selection Committee which has been accepted by

the Executive Council in its 9th meeting held on 14.11.2011, as Medical

Officer in the appellant-Central University of Jharkhand.

The writ petitioner, after having accepted the terms and conditions

contained in the offer of appointment, has started discharging his duty.

The Registrar of the appellant University has issued notice upon the

writ petitioner on 16.09.2013 informing the writ petitioner about a decision

to dispense with his services w.e.f. 14.09.2013 after paying one month

salary and allowances in lieu of notice period.

Thereafter, the writ petitioner has approached this Court by filing

writ petition being W.P.(S) No.6163 of 2013 which was disposed of vide

order dated 19.02.2016, in pursuance thereto, he was reinstated to the

post of Medical Officer of the University with immediate effect with a

further direction that the period intervening between the date of removal

and the date of reinstatement shall be treated as duty for all purpose and

the writ petitioner will be paid full pay and allowances for the intervening

period.

It is the grievance of the writ petitioner that thereafter, the salary of

the writ petitioner was withheld which compelled the writ petitioner again

to approach this Court by filing the writ petition being W.P.(S) No.3449 of

2018, wherein, after issuance of notice by way of ad-interim measure, the

respondents have been directed to pay the current salary of the petitioner,

if there is no legal impediment.

Further, grievance of the writ petitioner is that since the writ

petitioner has been meted out with repeated harassment and ill treatment

has instituted an online FIR before the SC/ST Police Station, Ranchi

bearing no.03/2019 dated 20.02.2019 against the respondent nos.2 and 3.

The contention of the writ petitioner is that in counter blast to the

said FIR, a disciplinary proceeding has been decided to be initiated by

putting the writ petitioner under suspension exercising the power

conferred under Statute 25(1) read with Section 11(3) of the Central

Universities Act, 2009 (hereinafter referred as the Act, 2009) and Rule

19(1) of Central Civil Services (Classification, Control and Appeal) Rules,

1965 (hereinafter referred as the Rules, 1965).

Subsequently, vide order dated 23.05.2019, the appellant-University

has issued a direction for payment of subsistence allowance in favour of

the writ petitioner.

The appellant-University has also issued memorandum of charge

dated 26.07.2019 with a direction upon the writ petitioner to submit his

written explanation in defence within 10 days' from the date of receipt of

memorandum of charge.

The writ petitioner, after receipt of the aforesaid memorandum of

charges has requested the appellant-University vide letter dated

01.08.2019 to amend the memorandum of charges dated 26.07.2019,

since as per the CCS (CCA) Rules, 1965, 15 days' time is desirable for

submitting the reply in respect of memorandum of charges.

The appellant-University, thereafter, has issued an order on

06.08.2019 mentioning therein that the disciplinary proceeding is yet to

complete and as such, the respondent no.2, in exercise of power

conferred upon him under Statute 25(1) of the Act, 2009 read with Rule

10(6) of CCS (CCA) Rules, 1965 and on recommendation of a Review

Committee has further extended the suspension of the writ petitioner for

another period of 180 days.

The writ petitioner being aggrieved with the aforesaid action of the

respondents has preferred the writ petition, which is the subject matter of

the present intra-court appeal.

3. The writ petitioner has taken a ground that entire departmental

proceeding is nothing but suffers from malice and bias. Since the order of

suspension visits the employee with serious civil consequences and loss

of reputation and prestige and monetary loss and hence, cannot be

passed without following the principle of natural justice and without

application of mind.

It has further been agitated before the learned Single Judge that the

authority who has passed the order of suspension is having no jurisdiction

to issue such order under the provision of Statute 25(1) of the Central

Universities Act, 2009.

Further, it has been contended that the Central Civil Services

(Classification, Control and Appeal) Rules, 1965 is not applicable in the

matter of disciplinary action/suspension against the employee of the

University as because Section 26(f) of the Central Universities Act, 2009

specifically speaks with regard to disciplinary action/suspension.

4. Learned counsel for the writ petitioner has relied upon the following

judgments i.e:-

(1) State of Punjab Vs. V.K. Khana & Ors., (2001) 2 SCC 330;

(2) Abdur Rasheed Vs. Govt. of India, W.P.(C) Nos.21883 and

25651 of 2013;

(3) Tea Board and Ors. Vs. Rasamoy Roy and Ors., G.A.

No.1997 of 2004.

5. On the other hand, the appellant-University has contested the case

by filing the counter affidavit vehemently opposing the contention of the

writ petitioner by making a submission that the writ petitioner having put

under suspension in contemplation of departmental proceeding and as

such, there is no requirement to follow the principle of natural justice.

It has been contended that departmental proceeding has already

been initiated and the memorandum of charge has been served upon the

writ petitioner but despite several dates fixed, the writ petitioner has not

participated in the departmental proceeding. Since the writ petitioner has

committed misconduct and therefore, he is required to face the

departmental proceeding.

With respect to the jurisdictional issue in issuance of order of

suspension, submission has been made that order of suspension and

initiation of departmental proceeding both are within the jurisdiction of the

authority, who has passed the order.

6. Learned Single Judge after taking into consideration the aforesaid

submission has allowed the writ petition by quashing and setting aside the

order of suspension, memorandum of charge and initiation of

departmental proceeding, however, with a liberty to the appellant to initiate

a fresh proceeding in accordance with law, against the petitioner and

conclude the same within a period of three months thereafter.

The aforesaid order is under challenge in the instant intra-court

appeal.

7. Mr. Manoj Tandon, learned counsel appearing for the appellant-

University has assailed the impugned order on the following grounds:-

(i) There is no requirement to follow the principle of natural justice

before putting an employee under suspension;

(ii) The order of suspension has been passed, although, under the

signature of Registrar but it is on the basis of the direction of the Vice

Chancellor who has taken such decision in exercise of power conferred

under Section 11(3) of the Act, 2009 which has subsequently been

affirmed by the Executive Council in its 27th meeting, as such, the order of

suspension is within the jurisdiction;

(iii) The finding recorded by the learned Single Judge that the

memorandum of charge and appointment of the Inquiry Officer are on the

same date, is absolutely incorrect, since it is evident from the documents

that memorandum of charge has been issued on 26.07.2019 and

subsequent thereto, the Inquiry Officer has been appointed vide order

dated 02.09.2019;

(iv) The finding recorded by the learned Single Judge about non-

applicability of the Rules, 1965 has also been assailed on the ground that

the CCS (CCA) Rules, 1965 is applicable as because the appellant-

University is having no Discipline and Appeal Rules, as such, by virtue of

the Ordinance notified on 26.03.2017, whereby and whereunder, the

subject which is not being covered under the said Ordinance, the rules

and norms of the Government of India, will be applicable and to that effect,

the UGC has also come out with a circular on 01.05.2018 referring therein

that, for service matters, the University should follow the Govt. of India

rules/orders as applicable to the Central Govt. Civilian employee.

8. Mr. Indrajit Sinha, learned counsel appearing for the respondent-writ

petitioner has contended by replying the contention made on behalf of the

appellant-University that the order of suspension cannot be said to be in

accordance with Law rather it has been passed only to victimize the writ

petitioner as because even accepting the provision of Section 11(3)

applicable, then the same stipulates that if the Vice Chancellor is of the

opinion that immediate action is necessary on any matter, exercise any

power conferred on any authority of the University by or under this Act and

shall report to such authority at its next meeting the action taken by him on

such matter and according to him, taking into consideration, the nature of

misconduct, it is not required to take any immediate action for resorting to

the provision of Section 11(3) of the Act, 2009.

He further contends that the order of suspension, although is not a

punishment but it is stigmatic one and taking into consideration the nature

of allegation, the same cannot be said to be proper.

He further contends that the order of suspension ought to have

been written by the competent authority as mandated under the Statute

25(1) of the Act, 2009 but having not done so, the order of suspension

cannot be construed to be in accordance with Law.

His further contention is that the order of suspension is required to

be passed by the appointing authority as would be evident from the

Statute 25(1) but if the order of suspension would be taken into

consideration, the same is under the signature of the Registrar and as

such, the learned Single Judge after taking into consideration the

aforesaid aspect of the matter and having considered about lack of

inherent jurisdiction in passing the order of suspension, is right in passing

the order of suspension.

Learned counsel further contends about the finding recorded by the

learned Single Judge about the observance of the principle of natural

justice, according to him, when the petitioner was going to be put under

suspension, it was required to follow the principle of natural justice, since

the suspension leads to the civil consequences.

9. So far as the argument advanced on behalf of the appellant-

University to the effect about the issuance of memorandum of charge and

appointment of Inquiry Officer on different dates, he by making reference

of Agenda No.EC/2019/27/017(Annexure-16) to the memo of appeal that

approval of charge sheet as also the appointment of Inquiry Officer is on

the same date and not only that in the same meeting, the memorandum of

charges have also been proved with the approval of the appointment of

the Inquiry Officer, namely, Shri Sudhir Kumar Sinha, Retired Additional

District and Sessions Judge and therefore, the learned Single Judge has

considered this aspect of the matter and has come to the conclusion

about the malice and biasness.

10. Mr. Sinha, further argues that CCS (CCA) Rules, is not applicable

and whatever has been contended about the adoption of the CCS Rules

by virtue of the Ordinance notified on 26.03.2017 but it would be evident

from the perusal of the said documents that the said decision has been

taken in exercise of power conferred under Section 28 of the Act, 2009,

but Section 28 stipulates about the power to make Ordinances.

But the aforesaid Section does not refer about the applicability of

CCS Rules by virtue of its adoption rather there is no iota of reference

about any Discipline and Conduct Rules as also in the Ordinance, save

and except with stipulation that a particular subject or an individual case

which is not covered by the Ordinance, Regulations and Rules of the

University shall be dealt with in accordance with the rules and norms of

the Government of India, as applicable from time to time but it also does

not refer about the adoption of the CCS Rules to deal with the employees

of the University in the matter of disciplinary proceeding.

11. We have heard the learned counsel for the parties, perused the

documents available on record as also the finding recorded by the learned

Single Judge.

12. Before proceeding to examine the legality and propriety of the

impugned order, this Court deem it fit and proper to refer certain factual

aspects which is not in dispute i.e., the writ petitioner has been appointed

on the recommendation of the Selection Committee by the authorities of

the Executive Council in its 9th meeting held on 14.11.2011, whereas the

letter of appointment has been issued under the signature of the Registrar.

The writ petitioner has started discharging his duty as Medical

Officer. He, on the earlier occasion was terminated from service but the

same has been quashed and set aside vide order dated 19.02.2016

passed by this Court in W.P.(S) No.6163 of 2013 with a direction upon the

respondents to reinstate the petitioner. In the meanwhile, the respondent-

University vide its letter dated 23.02.2016 reinstated the petitioner treating

the period between the date of removal and the date of reinstatement as

on duty for all purpose and the petitioner was allowed full pay and

allowances for that period.

Further, he has again approached this Court by filing the writ

petition being W.P.(S) No.3449 of 2018 when his salary has been stopped

and by way of ad-interim measure, an order on 11.09.2018 has been

passed to pay the current salary of the petitioner, if there is no other legal

impediment.

Thereafter, the petitioner has been put under suspension vide order

dated 09.05.2019 in pursuant to the decision taken by the Vice Chancellor

in exercise of power conferred under the statute 25(1) read with Section

11(3) of Central Universities Act, 2009 and sub-rule (1) of Rule 10 of

Central Civil Services (Classification, Control and Appeal) Rules, 1965

having the said order been issued under the signature of the Registrar of

the University.

The writ petitioner was served with memorandum of charge dated

26.07.2019 alleging therein that he is in the habit of disobeying

orders/instructions conveyed to him from time to time.

He was directed to furnish the details of earnings through

employment but in spite of repeated reminders and letters, he did not

declare his income from employment.

Further, he was asked as to whether he was under any gainful

employment during the intervening period or not and it has come to

surface by the report submitted by one man Fact Finding Committee that

he was under employment during such period in Santevitta Hospital,

Ranchi and Devkamal Hospital, Ranchi.

In Santevitta Hospital, he has earned salary of Rs.42,000/- per

month for the period from 06.02.2014 to 10.07.2015 and earned

Rs.7,20,048/- from that employment. Further, worked in Medica Hospital,

Ranchi and Devkamal Hospital, Ranchi for a period from 20.07.2015 to

20.03.2016 and was paid an amount of Rs.10,14,964/- for working in

Medica Hospital and Devkamal Hospital, Ranchi in the said period.

But in spite of repeated requests made about the details of his

income from employment, he has not furnished the said details which

constitute misconduct of gross dereliction of duty, willful insubordination

and disobedience of lawful order of his superior and conduct unbecoming

of an employee of the University under Rule 3(1)(ii), (iii) & (xix) of CCS

(Conduct) Rules, 1964 read with GID (23)(1), (4) below Rule 3-C of CCS

(Conduct) Rules, 1964.

The second charge has been levelled against the writ petitioner that

although he was reinstated in service of the University w.e.f. 23.02.2016

but even then, he continued to work in the Medica Hospital up to

20.03.2016 even after his reinstatement in the University which also

constituted misconduct of gross moral misconduct-act subversive of

discipline and conduct unbecoming of an employee of the University

under Rule 3(1)(i), 3(1)(ii), 3(1)(iii), 15(1)(b) and 15(4) of CCS (Conduct)

Rules, 1964 read with GID 23(1), (4) below Rule 3-C of CCS (Conduct)

Rules, 1964.

While charge no.3 pertains to levelling false and frivolous charges

against the higher officers whenever he has been asked for some

explanation or called upon to show cause on his acts of omission and

commission, since a show cause notice was issued on 14.05.2018 for

putting obstacles in the smooth functioning of the University. He, wrote a

letter to the Vice Chancellor on 01.10.2018 for lodging criminal case and

initiate disciplinary action against Professor S.L. Hari Kumar, Registrar for

harassing him being a person coming from Scheduled Tribe. He further

threatened that if the University fails to lodge criminal case and initiate

disciplinary action against Professor S.L. Hari Kumar, Registrar in four

days' time, he will take legal action against Professor S.L. Hari Kumar, for

which, one man Fact Finding Committee was constituted.

He, even, has levelled false allegation against the Incharge

Professor A.K. Sharma for harassing him and even showing arms to him.

The 4th charge has been levelled that he has requisitioned for

purchase of branded medicines in place of requisition of purchase of

generic medicines which is lesser in cost.

Further, it has been alleged by way of charge no.5 that he has

managed the procurement, storing and disbursement of medicines very

poorly which led to loss of public money.

Charge no.6 pertains to installation of CCTV Camera in his chamber

where he examined the patients without obtaining permission from the

competent authority of the University nor did he inform the competent

authority of the University that he has installed a CCTV Camera in his

chamber which is not only objectionable but also unethical and by doing

that he has violated the norms of privacy of a patient on the one hand and

defied the set procedure of obtaining the permission from the competent

authority for installing such a sensitive instrument on the other.

The aforesaid memorandum of charges have been appended with

the list of documents.

Subsequently, one communication has been made about

amendment in the memorandum of charges as also the Inquiry Officer has

been appointed vide order dated 02.09.2019.

13. The writ petitioner in pursuant to the stipulation made in the charge

sheet to furnish his explanation as also making objection about

appointment of not appointing the person against whom allegation has

been levelled on the principle that an Officer cannot be the judge of his

own cause.

The writ petitioner, at that moment, has filed the writ petition

questioning the entire disciplinary proceeding as also for quashing of the

order of suspension and the memorandum of charge on the ground as

referred hereinabove.

14. This Court after taking into consideration the submission advanced

on behalf of the parties, think it proper the following issues for its

consideration.

(i) Whether before issuance of order of suspension, the principle of

natural justice is required to be followed;

(ii) The authority who has issued the order of suspension is having

jurisdiction;

(iii) The issuance of charge sheet vis-à-vis the appointment of the

Inquiry Officer is on the same date;

(iv) The CCS Rules, 1965 is applicable in the facts of this case, if

not, whether the delinquent employee in absence of non-applicability of

the CCS Rules will not be subjected to any disciplinary proceeding.

15. So far as the issue no.(i) which pertains to the observance of the

principle of natural justice before issuance of the order of suspension is

concerned, it is not in dispute that an order of suspension is not a

punishment rather the power to put the delinquent employee under

suspension is only to deactivate the delinquent employee from active

service, so that, he may not be able to temper with the evidence or

initiation of departmental proceeding in any way, since the order of

suspension is not a punishment rather it is by way of ad-interim measure

i.e., during the pendency of the departmental proceeding, the services are

being deactivated, therefore, there is no question of infringement of any

right by putting the delinquent employee under suspension, hence, the

principle of natural justice will not be applicable.

The principle of natural justice is only made to be applicable in a

case where the vested or accrued right is being taken away leading to civil

consequences and in that circumstances, a person who is going to be

adversely affected leading to civil consequences, such person cannot be

condemned without providing opportunity of hearing but as has been

settled that order of suspension being not a punishment rather deactivate

the delinquent employee from active service, therefore, there is no

question of taking away any accrued or vested right.

In this regard, reference may be made to the judgment rendered by

the Hon'ble Apex Court in Mohammad Ghouse Vrs. State of Andhra,

AIR 1957 SC 246, wherein, at paragraph-9, it has been held that in a case

of suspension pending final orders by the Government, such an order is

neither one of dismissal nor of removal from service within Article 311 of

the Constitution of India.

The Kerala High Court judgment rendered in Mayuranathan Vrs.

State of Kerala & Anr., 1960 SCC Online Kerela 263, after relying upon

the judgment rendered by the Hon'ble Apex Court in the case of

Mohammad Ghouse Vrs. State of Andhra, (supra) has laid down that an

order of suspension pending an enquiry cannot be regarded as a

punishment within the purview of Article 311(2) of the Constitution of India

and in that view neither any question of opportunity to show cause nor of

violation of the principles of natural justice arises in this case.

Further, the suspension pending enquiry into charges of misconduct

of Government servants without providing an opportunity of hearing before

passing of the order of suspension has been considered by the Calcutta

High Court in Kali Prosanna Roy Vrs. State of West Bengal, AIR 1952

Cal. 769, Venkateswarlu Vrs. State of Madras, AIR 1954 Mad. 587,

Gurudeva Narayan Vrs. State of Bihar, AIR 1955 Patna 131, Thimma

Reddy Vrs. State of Andhra, AIR 1958 Andhra Pradesh 35,

Gopalkrishna Naidu Vrs. State of Madhya Pradesh, AIR 1952 Nagpur

170, wherein, it has been held by the High Courts that no prior notice is

necessary to validate the order of suspension.

The Hon'ble Apex Court in the case of Union of India and Anr. Vrs.

Ashok Kumar Aggarwal, (2013) 16 SCC 147, has been pleased to lay

down at paragraph-27 that suspension is a device to keep the delinquent

out of the mischief range. The purpose is to complete the proceedings

unhindered. Suspension is an interim measure in the aid of disciplinary

proceedings so that the delinquent may not gain custody or control of

papers or take any advantage of his position.

This Court after taking into consideration the aforesaid ratio laid

down by the Hon'ble Apex Court as also by the different High Courts is of

the view that the contention raised by the learned counsel for the writ

petitioner about observance of principle of natural justice, the order of

suspension is bad in the eye of Law, is not acceptable by this Court,

accordingly, the said ground is rejected.

However, if the order of suspension is being passed by way of

punishment if provided under the list of punishment, then certainly the

principle of natural justice will be attracted as because the order of

punishment being a punishment can only be given by providing a

reasonable opportunity of being heard but herein the order of suspension

is not inflicted by way of punishment rather it is in contemplation of

departmental proceeding, therefore, the principle of applicability of natural

justice will not be applicable.

16. So far as the issue no.(ii) pertaining to the authority who has issued

the order of suspension having no jurisdiction is concerned, herein, it has

been agitated by the learned counsel for the writ petitioner by making

reference of the Statute 25(1) that order of suspension is to be passed by

the authority competent to appoint, for ready reference, the provision of

Statute 25(1) is being referred which reads as hereunder:-

"(1) where there is an allegation of misconduct against a teacher, a member of the academic staff or other employee of the University, the Vice-Chancellor, in the case of the teacher or a member of the academic staff, and the authority competent to appoint (hereinafter referred to as the appointing authority) in the case of other employee may, by order in writing, place such teacher, member of the academic staff or other employee, as the case may be, under suspension and shall forthwith report to the Executive Council the circumstances in which the order was made."

It is evident from the aforesaid provision that where there is an

allegation of misconduct against a teacher, a member of the academic

staff or other employee of the University, the Vice-Chancellor, in the case

of the teacher or a member of the academic staff, and the authority

competent to appoint, in the case of other employee may, by order in

writing, place such teacher, member of the academic staff or other

employee, as the case may, under suspension and shall forthwith report to

the Executive Council the circumstances in which the order was made.

It has been contended that order of suspension since has been

passed by the Registrar who is having no jurisdiction to take such decision

and therefore, the same will without jurisdiction.

17. We have considered the order of suspension and found therefrom

that the order of suspension dated 09.05.2019 has been issued under the

signature of Registrar but by the order of the Vice Chancellor in exercise

of power conferred under the Statute 25(1) read with Section 11(3) of the

Central Universities Act, 2009 and sub-rule (1) of Rule 10 of the Central

Civil Services (Classification, Control and Appeal) Rules, 1965.

18. We have gone across the provision of Section 11(3) of the Act, 2009

which confers power upon the Vice Chancellor that if he is of the opinion

that immediate action is necessary on any matter, exercise any power

conferred on any authority of the University by or under this Act and shall

report to such authority at its next meeting the action taken by him on such

matter.

Provided that if the authority concerned is of the opinion that such

action ought not to have been taken, it may refer the matter to the Visitor

whose decision thereon shall be final.

Provided further that any person in the service of the University who

is aggrieved by the action taken by the Vice-Chancellor under this sub-

section shall have the right to represent against such action to the

Executive Council within three months from the date on which decision on

such action is communicated to him and thereupon the Executive Council

may confirm, modify or reverse the action taken by the Vice-Chancellor.

Therefore, sub-section (3) of Section 11 of the Act, 2009 confers

power upon the Vice-Chancellor that if he considers that immediate action

is necessary, he can take such decision and if such provision would be

read out along with Statute 25(1) which confers power upon the authority

competent to put an employee under suspension and shall forthwith report

to the Executive Council, the circumstances in which the order was made.

Herein, admittedly the Vice Chancellor has taken a decision to put

the writ petitioner under suspension and under his order, the Registrar of

the University, has issued the order of suspension dated 09.05.2019 and

therefore, it will be construed to be issued in exercise of power conferred

under Section 11(3) of the Act, 2009.

19. This Court has also perused the confirmation of the order of

suspension by the Executive Council and as would be evident from the

27th meeting of the Executive Council as available under Annexure-17 to

the memo of appeal, whereby and whereunder, the decision of the Vice

Chancellor putting the writ petitioner under suspension has been placed

before the Executive Council and vide resolution dated 03.06.2019 of 27th

meeting of the Executive Council, the decision to put the writ petitioner

under suspension has been confirmed by ratifying the order of Vice

Chancellor, meaning thereby the decision of suspension taken by the Vice

Chancellor as under Section 11(3) of the Act, 2009 has been ratified by

the Executive Council in pursuant to the provision of Statute 25(1) of the

Act, 2009.

Since herein, the Executive Council is the appointing authority and

once the order has been approved by the Executive Council, it cannot be

said that the order of suspension is beyond jurisdiction as because, it has

specifically been stipulated as under Statute 25(1) that the authority

competent to appoint, put the employees under suspension, he shall

forthwith report to the Executive Council.

Therefore, according to our considered view, the provision

contained under Section 11(3) of the Act, 2009 is to be read together with

Statute 25(1).

So far as the jurisdictional issue is concerned, it is not in dispute

that the Executive Council is the appointing authority, is required to take

decision about putting the employee under suspension but the provision

contained under Statute 25(1) cannot render the provision of Section 11(3)

redundant rather if the Vice Chancellor is of the subjective satisfaction

taking into consideration immediate decision required to be taken, he can

resort to the provision contained under Section 11(3) of the Act, 2009 and

herein the Vice Chancellor taking into consideration the nature of

allegation if taken such decision to put the writ petitioner under

suspension which subsequently has been confirmed by the Executive

Council, the decision to put the writ petitioner under suspension cannot be

said to suffer from any jurisdictional error.

20. So far as the third issue which pertains to the memorandum of

charges and the appointment of the Inquiry Officer is on the same date,

which according to the writ petitioner suggests the biasness and malice on

the part of the disciplinary authority.

The factual aspect which requires to be considered considering the

argument advanced on behalf of the learned counsel appearing for the

appellant-University that memorandum of charge has been issued on

26.07.2019 while the Inquiry Officer has been appointed on 02.09.2019

and therefore, according to him, the finding recorded by the learned Single

Judge for deriving the conclusion about malice and biasness on the basis

of the fact that memorandum of charge framed and appointment of Inquiry

Officer is on the same date, is not correct.

21. Per Contra, Mr. Indrajit Sinha, learned counsel appearing for the writ

petitioner has submitted by referring to the Agenda No.EC/2019/27/017 as

under Annexure-16 to the memo of appeal that charge sheet has been

approved by the Executive Council and on the same date, the Inquiring

Authority and Presenting Officer have been appointed and therefore,

merely issuance of memorandum of charge on 26.07.2019, an order of

appointment of the Inquiry Officer on 02.09.2019 cannot be construed to

support the contention of the learned counsel appearing for the appellant-

University that there is no malice and biasness rather, according to him,

the authority before framing of the charges has made up their mind to

appoint the Inquiry Officer which suggests about the malice and biasness

on the part of the disciplinary authority.

22. We have examined the Agenda No.EC/2019/27/017, wherein the

agenda pertains "to consider and approve the Charge sheet to be served

upon Dr. Ishwar Chand Bidyasagar, Medical Officer and appointment of

Inquiring Authority and presenting Officer in the same case.

It transpires from the said Minutes that draft of the charge sheet has

been approved vis-à-vis the appointment of the Inquiring Authority and

Presenting Officer has been approved by appointing one Shri Sudhir

Kumar Sinha, Retired Additional District and Sessions Judge to act as

Inquiring Authority to inquiry into the charges.

The disciplinary authority based upon such approval of charge

sheet and appointment of the Inquiry Officer has issued the charge sheet

on 26.07.2019 which has been served to the writ petitioner and the Inquiry

Officer has been appointed by virtue of the office order dated 02.09.2019.

23. The apprehension of the learned counsel for the appellant-

University cannot be lost sight of, since he is right in saying that the draft

of the charge has been approved on the same date when the Inquiry

Officer has been appointed.

The question herein is that if the departmental proceeding is being

initiated even the said proceeding which is quasi-judicial in nature but the

fairness and transparency are of paramount importance.

Admittedly herein, the memorandum of charge framed and

appointment of Inquiry Officer have been approved on the same date.

It has further been admitted that in the charge sheet, there is

reference to provide an opportunity to the delinquent employee to make a

representation in his defence and when such stipulation has been made, it

was not required by the Disciplinary Authority/Executive Council to

approve the appointment of the Inquiry Officer on the same date when the

draft of memo of charge has been approved, it is for the reason that when

the memorandum of charge stipulates a condition to provide an

opportunity by making representation in his defence, it was incumbent

upon the authority to first consider the representation about necessity of

initiating departmental proceeding by considering the reply and if not

satisfied by taking a decision and then only to take decision for

appointment of the Inquiry Officer but deviating from the same, it will be

construed to be an action with pre-occupied mind, which cannot be said to

be proper as because providing opportunity to file reply at the stage may

not be a mere formality.

However, the memorandum of charge was served upon the writ

petitioner on 26.07.2019 and the Inquiry Officer has been appointed by

separate order dated 02.09.2019 but even though, these are on two

different dates but that cannot be considered to be justified action of the

disciplinary authority ignoring the decision of the Executive Council being

competent to issue memo of charge and to appoint Inquiry Officer

approving the memorandum of charge with the decision of the

appointment of the Inquiry Officer which are on the same date, otherwise

providing opportunity to file representation as referred in the memo of

charge will become a mere formality and therefore, finding to that effect

recorded by the learned Single Judge in this regard cannot be said to

suffer from infirmity but the question herein is that even accepting the

Executive Council is committed gross error but can on this ground the

entire disciplinary proceeding be quashed from the threshold, which

according to our considered view, cannot be said to be proper as has

been done by the learned Single Judge.

According to our considered view, if such finding has been arrived at

by the learned Single Judge, it was incumbent upon the learned Single

Judge to quash the proceeding to the effect from the stage of the

appointment of the Inquiry Officer by providing an opportunity to make

representation as stipulated in the memorandum of charge and for its

consideration then a direction upon the disciplinary authority to appoint the

Inquiry Officer.

In view thereof, quashing of the entire departmental proceeding,

according to our view, cannot be said to be justified and as such, it is held

to be incorrect finding, hence, declared to be illegal.

24. So far as the fourth issue about applicability of the CCS Rule is

concerned, it has been contended by Mr. Manoj Tandon, learned counsel

appearing for the appellant-University that the CCS Rules should be

applicable and to support his argument he has relied upon the Ordinance

of the Central University of Jharkhand notified on 26.03.2017 and the

communication issued by the UGC dated 01.05.2018.

25. We have considered the rival submissions made on behalf of the

learned counsel for the parties as indicated above and in order to answer

the issues, deem it fit and proper to go through the Ordinance notified on

26.03.2017.

26. It is evident from the notification dated 26.03.2017 which has been

issued under Section 28 of the Central Universities Act, 2009 that the

provision of Section 28 of the Central Universities Act, 2009 which

stipulates about the power to make Ordinances, for ready reference, the

said provision is being referred hereinbelow:-

"28. Power to make Ordinances.-(1) Subject to the provisions of this Act and the Statutes, the Ordinances may provide for all or any of the following matters, namely:-

(a) the admission of students to the University and their enrolment as such;

(b) the courses of study to be laid down for all degrees, diplomas and certificates of the University;

(c) the medium of instruction and examination;

(d) the award of degrees, diplomas, certificates and other academic distinctions, the qualifications for the same and the means to be taken relating to the granting and obtaining of the same;

(e) the fees to be charged for courses of study in the University and for admission to examinations, degrees and diplomas to the University;

(f) the conditions for award of fellowships, scholarships, studentships, medals and prizes;

(g) the conduct of examination, including the term of office and manner of appointment and the duties of examining bodies, examiners and moderators;

(h) the conditions of residence of the students of the University;

(i) the special arrangements, if any, which may be made for the residence and teaching of women students and the prescribing of special courses of studies for them;

(j) the establishment of Centres of Studies, Boards of Studies, Specialised Laboratories and other Committees;

(k) the manner of co-operation and collaboration with other Universities, Institutions and other agencies including learned bodies or associations;

(l) the creation, composition and functions of any other body which is considered necessary for improving the academic life of the University;

(m) the institution of fellowships, scholarships, studentships, medals and prizes;

(n) the setting up of machinery for redressal of grievances of employees and students; and

(o) all other matters which by this Act, or, the Statutes, are to be, or, may be, provided for by the Ordinances.

(2) The first Ordinances shall be made by the Vice- Chancellor with the previous approval of the Executive Council and the Ordinances so made may also be amended, repealed or added to at any time by the Executive Council in the manner prescribed by the Statutes:

Provided that in the case of Guru Ghasidas Vishwavidyalaya and Doctor Harisingh Gour Vishwavidyalaya, and Hemvati Nandan Bahuguna Garhwal University, till such time as the first Ordinances are not so made, in respect of the matters that are to be provided for by the Ordinances under this Act and the Statutes, the relevant provisions of the Statutes and the Ordinances made immediately before the commencement of this Act under the provisions of the Madhya

Pradesh Vishwavidyalaya Adhiniyam, 1973 (Madhya Pradesh Act 22 of 1973), and the Utter Pradesh State Universities Act, 1973 (President's Act 10 of 1973), respectively, shall be applicable in so for as they are not inconsistent with the provisions of this Act and the Statutes."

It is evident from the provision as quoted and referrred hereinabove

that the same stipulates about the power to make ordinances, providing

for all or any of the following matters, namely:-

(a) the admission of students;

(b) The courses of study;

(c) The medium of instruction;

(d) The award of degrees, diplomas and other academic distinctions

etc;

(e) The fees to be charged;

(f) The conditions for award of fellowships, scholarships etc;

(g) The conduct of examination etc.;

(h) The conditions of residence of students of the University;

(i) The special arrangements, if any, which may be made for the

residence and teaching of women students;

(j) The establishment of Centres of studies etc;

(k) The manner of co-operation and collaboration with other

Universities etc.;

(l) The creation, composition and functions of any other body which

is considered necessary for improving the academic life of the

University;

(m) The institution of fellowships, scholarships, studentships;

(n) The setting up of a machinery for redressal of grievance of

employees and students; and

(o) All other matters which by this Act, or, the Statutes, are to be,

or, may be, provided for by the Ordinances.

27. Mr. Manoj Tandon, learned counsel for the appellant has

emphasized upon the last one i.e., all other matters by this Act, or the

Statutes, are to be, or, may be, provided for by the Ordinances, which

according to him, under the said conditions the disciplinary action will also

come.

He further submits that the University Grants Commission has also

issued a communication on 01.05.2018, wherein also, for service matters,

the University should follow the Govt. of India rules/orders, as applicable

to the Central Govt. Civilian Employee and in view thereof, according to

him, the provision of CCS Rules, will be applicable

28. This Court, after perusing the provision of Section 28 of the Act,

2009 vis-à-vis the Ordinances, has not found therefrom that there is any

stipulation made about adoption of the Conduct and Discipline Rules i.e.,

the CCS Rules, 1965 in the present case.

It is settled that unless the Discipline and Conduct Rules will be

adopted by any employer, no proceeding can be initiated under any of the

statutory provision as because under the Conduct and Discipline Rules,

the matter pertains to dealing with the concerned employee by inflicting

punishment which can only be in accordance with Law, since the same

pertains to civil consequences and snatching of the rights can only be

done in pursuance to the applicable statutory provision.

The power conferred under Section 28 stipulates about any

provision to adopt the Conduct and Discipline Rules, since the Conduct

and Discipline Rule is outside the purview of Section 28 and further even

in the Ordinance, there is no reference about taking any decision for

adoption of Discipline and Conduct Rules.

So far as the communication dated 01.05.2018 is concerned, the

same being a communication and merely a communication does not

entitle the employer to adopt the CCS Rules, 1965, in order to deal with

the employee in a case of misconduct.

In view thereof, according to our considered view, the appellant-

University since has not adopted the CCS Rules, 1965 by taking decision

in this regard by the competent authority, therefore, the applicability of

CCS Rules in the present fact of the case cannot be said to be justified

and to that effect the finding recorded by the learned Single Judge about

non-applicability of the CCS Rules, cannot be said to be unjustified but the

question herein is that when the learned Single Judge has recorded a

finding about non-applicability of the CCS Rules will it not be proper for

the writ Court to answer the issue that in case of non-availability or non-

adoption of CCS Rules or any Discipline and Conduct Rules, can a

delinquent employee working under the establishment be not dealt with, if

there is any allegation of misconduct but the learned Single Judge has

failed to answer the issue but on technical ground, the entire proceeding is

quashed from its inception.

Since we are answering the issue about non-applicability of CCS

Rules that does not mean that the reference of CCS Rule has been made

in the memorandum of charge or the other document which does not

vitiate the memorandum of charge due to the settled position of Law that

mere reference of wrong provision of Law, the order of the Administrative

Authority will not vitiate.

Further, the memorandum of charge will also not be vitiated as

because we have already held hereinabove that the Executive Council of

the appellant-University being the competent authority is having power

under the provision of Section 16 of the General Clauses Act being the

appointing authority is competent enough to take decision to initiate the

departmental proceeding as also the memorandum of charge, as such,

the memorandum of charge is held to be within the jurisdiction of the

appellant-University, since Section 16 of the General Clauses Act provide

which reads hereunder as:-

"16.Power to appoint to include power to suspend or dismiss.-Where, by any [Central Act] or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having [for the time being] power to make the appointment shall also have power to suspend or dismiss any person appointed [whether by itself or any other authority] in exercise of that power."

29. According to us, it is settled that if there is no statutory provision to

deal with the Discipline and Conduct Rules, in that circumstances, the

applicability of Section 16 of the General Clauses Act, 1897 is required to

be considered which provides power to appoint to include power to

suspend or dismiss and therefore, according to our considered view that

even if the provision of CCS Rules is not applicable, disciplinary

proceeding cannot be quashed, however, the order of remand is there but

without deciding the issue as to under which provision of Law, the

departmental proceeding will be initiated afresh.

Further, again the question would be to provide a reasonable

opportunity, we have considered the provision of Statute 25(4) which

provides that no teacher, member of the academic staff or other employee

shall be removed under clause (2) or clause (3) unless he has been given

a reasonable opportunity of showing cause against the action proposed to

be taken in regard to him which also suggests that the power upon the

employer has been vested under the provision of Statute 25(4) read with

Section 16 of the General Clauses Act, 1897.

30. According to our considered view, the disciplinary proceeding is

required to be initiated by the appointing authority which has appointed

the writ petitioner in exercise of power conferred under Section 16 of the

General Clauses Act, 1897 read with Statute 25(4) of the Central

Universities Act, 2009 in order to provide reasonable opportunity of

hearing to defend the case.

31. This Court after having answered the issues as framed hereinabove

has gone across the impugned order passed by the learned Single Judge

and found therefrom that the learned Single Judge has not considered the

facts in right perspective i.e., about position of Law in issuance of order of

suspension without following the principle of natural justice.

32. Learned Single Judge has not appreciated the fact in right

perspective about the power conferred to the Vice Chancellor under the

Statute 25(1) read with Section 11(3) of the Act, 2009 as discussed

hereinabove and therefore, the order passed by the learned Single Judge

cannot be said to be proper and justified.

Further, also on the ground that the learned Single Judge has not

considered the fact that if there is an allegation of misconduct, an inquiry

is required to be initiated in order to come to the rightful conclusion about

proving or disproving of the charges.

33. This Court after taking into consideration the facts in entirety as

discussed hereinabove, is of the view that the order passed by the learned

Single Judge suffers from error, accordingly, quashed and set aside.

34. In the result, writ petition being W.P.(S) No.5091 of 2019 stands

dismissed.

35. Accordingly, the instant appeal stands allowed with the following

directions:-

(i) The departmental proceeding is revived to the stage of

memorandum of charge dated 26.07.2019;

(ii) The appellant-University will provide an opportunity to make

representation as stipulated in the memorandum of charge;

(iii) It is left open upon the appellant-University to take decision

for appointment of Inquiry Officer, if reply furnished by the writ petitioner in

terms of the opportunity to file representation as has been referred in the

memorandum of charge is found to be unsatisfactory and conclude the

proceeding by providing reasonable opportunity of hearing to the writ

petitioner;

(iv) The departmental proceeding must be concluded within the

period of three months' from the date of receipt/production of copy of the

order; and

(v) The parties are directed to cooperate with the proceeding.

Needless to say that in case of non-cooperation in the departmental

proceeding by the writ petitioner, the appellant-University will be at liberty

to take decision in accordance with Law.

36. Since we are passing an order for conclusion of departmental

proceeding within three months' from the date of receipt of copy of the

order taking into consideration the fact that suspension is a device to keep

the delinquent out of the mischief range in order to achieve the purpose to

complete the proceedings unhindered and the delinquent may not be able

to impede the departmental proceeding in any way, therefore, we are not

interfering with the order of suspension dated 09.05.2019

37. In Consequent to disposal of this appeal, Interlocutory Applications

being I.A.No.2889 of 2020 and I.A.No.3618 of 2020 also stand disposed

of.

       I agree                                 (Dr. Ravi Ranjan, C.J.)


(Dr. Ravi Ranjan, C.J.)
                                              (Sujit Narayan Prasad, J.)


 Rohit/-
A.F.R.