Dr. Anant Prasad Jaiswal vs Birsa Agricultural University ...
2022 Latest Caselaw 4463 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
               Civil Review No. 58 of 2016
                     In
               L.P.A. No. 417 of 2014
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Dr. Anant Prasad Jaiswal, S/o late Banarsi Prasad Jaiswal, at present residing at Flat No. 203/B, Sinhasan Jyoti Vihar Apartment, Gauri Shankar Nagar (Kadru), P.O. P.S. Doranda, District-Ranchi.

        .                                              .....Petitioner
                             Versus

1. Birsa Agricultural University through its Registrar, having its office at Kanke, P.O P.S. Kanke, District-Ranchi, Jharkhand.

2. The Chancellor of Universities, State of Jharkhand, Raj Bhawan, Governor's Secretariat, PO.Kutchery, P.S. Kotwali, District-Ranchi.

                                                -      ....Respondent
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Coram: THE HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY THE HON'BLE MR. JUSTICE RAJESH KUMAR

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For the Petitioner : Mr. Dr. Anant Prasad Jaiswal, in Person For the Respondent No. 1 : Mr. A. Allam, Sr. Advocate

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C.A.V. On 29.07.2022                         Pronounced on 9/11/2022

        Heard the parties.

2. This application has been preferred by the petitioner for review of the order dated 29.07.2016, passed in L.P.A. No. 417 of 2014 whereby and whereunder the order dated 16.09.2014, passed in W.P.S. No. 3897 of 2014 was set aside.

3. The factual aspects of the case has been visited by us and the same reveals that the petitioner was appointed as a Junior Scientist cum Assistant Professor in Birsa Agricultural University. The petitioner was transferred and posted at Zonal Research Station, Dumka on 25.08.2003 and he was relieved on 26.08.2003 by directing him to join at his transferred post, which he did not join and the cascading effect of the same was that the petitioner was put under suspicion vide order dated 29.10.2003, passed by the University pending departmental enquiry. The petitioner was served the Memo of Charges by the disciplinary authority on 6.12.2003. Thereafter vide letter no. 2406 dated 26.06.2004, the disciplinary authority imposed punishment of dismissal from service, against which, the petitioner had preferred an appeal before the appellate authority and vide order dated 10.06.2005, the order of dismissal was set aside. The petitioner was asked to appear before the Enquiry Committee on 29.7.2005 and since the petitioner made objections with respect to constitution of the Enquiry

Committee, another Enquiry Committee was reconstituted by the University vide order dated 21.07.2006. The Enquiry Committee submitted its report on 10.08.2006 before the Vice Chancellor, upon which, a show cause notice was given to the petitioner. The Vice Chancellor on consideration of the charges and the findings of the enquiry report imposed an order of dismissal against the petitioner on 15.05.2008. The petitioner against the order dated 15.05.2008 preferred an appeal before the Chancellor, which was dismissed vide order dated 5.7.2009 and a review application, which followed, also met the same fate on 20.3.2010. The petitioner being aggrieved with the order of dismissal and his appeal and review having also faltered preferred a writ application before this Court in W.P.S. No. 1558 of 2010. The learned Single Judge vide order dated 4.11.2010 allowed the writ application primarily on account of the fact that none of the grounds, on which the dismissal order was passed, had ever been communicated to the petitioner, which was a precondition in terms of Sub section (3) and (4) of clause 13.9 of the Birsa Agricultural University Statute. Consequently, the orders of dismissal, the order in appeal and the order in review were set aside. However, a liberty was given to the disciplinary authority to proceed with the matter relating to imposition of penalty in accordance with law.

4. Pursuant to the order dated 4.11.2010, passed in W.P.S. No. 1558 of 2010, a second show cause notice was issued to the petitioner vide letter no. 4883 dated 6.12.2010, to which a reply was submitted, in which certain documents were sought for including the day to day proceedings of the enquiry as according to the petitioner the same was not conducted in accordance with law. Thereafter a final order was passed on 3.1.2011 by the Vice Chancellor removing the petitioner from service of the University with immediate effect. An appeal was preferred before the Chancellor of the University, which, however, was also rejected and communicated to the petitioner vide letter dated 23.2.2011.

5. The petitioner had challenged the order of removal and the consequent dismissal of his appeal in W.P.S. No. 3897 of 2011 with an additional prayer of consequential benefits including salary for the period 15.05.2008 till 1.1.2011. The learned Single Judge had allowed the writ application vide order dated 16.9.2014 and the relevant is quoted hereinunder:-

"19.The record thus, clearly shows that the Enquiry Committee had not offered proper opportunity to the petitioner to defend his case, as even the documents relied upon by the Enquiry Committee, if any, have not been made available to the petitioner. Indeed the letters contained in Annexures-R and R/1, which have been brought on

record by the University itself, show that there was no proceeding at all and even day to day enquiry proceeding was not available.

20. For the forgoing reasons, I find force in the contention of the petitioner that the Enquiry Committee had proceeded in the manner as if it were the representative of the respondent University. In my considered view, the facts of this case are fully covered by the decision of the Supreme Court in State of Uttar Pradesh and Ors., Vs. Saroj Kumar Sinha (supra), as relied upon by the petitioner and the entire proceeding against the petitioner is absolutely vitiated and cannot be sustained in the eyes of law.

21. Consequently, I find and hold that the final order dated 3.1.2011 passed by the Vice-Chancellor of the University as contained in Annexure 6 to the writ application, imposing the punishment of removal from service upon the petitioner, is absolutely illegal, being in contravention of clause 13.9 of the Statute of the University, as also being in violation of the principles of natural justice and fair play. As such, even the order passed by the Appellate Authority as communicated to the petitioner by letter dated 23.2.2011 rejecting the appeal filed by the petitioner against the order passed by the Disciplinary Authority, also cannot be sustained in the eyes of law. Accordingly, both these orders, are hereby, quashed, and the petitioner is reinstated on his post with all consequential benefits. The petitioner has given an undertaking in the Court that he shall join on his transferred post at Z.R.S. Dumka, and accordingly, he is directed to give his joining at the said place. The respondent University is directed to accept the joining of the petitioner and if for any reason, the said post is not vacant, the petitioner shall report his joining to the Registrar of the University, who shall communicate the fresh place of posting to the petitioner, which shall be acceptable to the petitioner and his joining shall be accepted only from the date he reports at the place of his posting as given by the respondent No. 2.

22. Taking into consideration the allegations against the petitioner that he remained absent without leave and that he did not give his joining at his transferred place of posting, as also taking into consideration the fact that this is the third order of punishment, which has been quashed by this Court, I find that the petitioner has been sufficiently punished for his disobedience, if any, in challenging the three illegal dismissal / removal orders passed against him since the year 2004 itself, repeatedly. As such, no further action is warranted against the petitioner, in case there is no further disobedience by the petitioner in joining at Z.R.S. Dumka, or at the fresh place of posting as the case may be.

23. This writ application is accordingly, allowed with the directions as above. The I.A. No. 2681 of 2012 also stands allowed."

6. Aggrieved by the order dated 16.09.2014, passed in W.P.S. No.3897 of 2011, the Birsa Agricultural University preferred an appeal under clause 10 of the Letters Patent Appeal being L.P.A. No. 417 of 2014 and vide order dated 29.7.2016, the appeal was allowed and the order dated 16.09.2014, passed in W.P.S. No. 3897 of 2011 was set aside. The petitioner through this application has sought review of the said order dated 29.07.2014, passed in L.P.A. No. 417 of 2014.

7. The petitioner who has appeared in person has made his submission and has also copiously referred to the written notes of argument and several other summarized petitions submitted at the bar by him.

8. It has been submitted that the appellate court did not

consider/appreciate the findings recorded in W.P.S. No. 3897 of 2011 to the effect that the Enquiry Committee had not afforded proper opportunity to the petitioner to defend his case as even the documents relied upon by the Enquiry Committee were not made available to the petitioner and even day to day proceedings were also not made available to him.

9. Mr. A. Allam, learned Senior Counsel for the respondent no. 1- University has submitted that the sole point raised by the petitioner for consideration in W.P.S. No. 1558 of 2010 was whether there was compliance of Sub clause 4 of clause 13.9 of the Birsa Agricultural University Statute or not. He has submitted that the enquiry itself was not assailed and therefore it was not open for the subsequent writ court to review the order passed in W.P.S. No. 1558 of 2010 or sit in appeal over the said order.

10. The Appellate Court in L.P.A. No. 417 of 2014 had referred to the order passed in W.P.S. No. 1558 of 2010 while coming to the conclusion that it was not open for the writ court in W.P.S. No. 3897 of 2011 to examine the alleged illegality in Enquiry committed prior to issuance of second show cause notice dated 6.12.2010.

11. Adverting back to the order dated 4.11.2010, passed in W.P.S. No. 1558 of 2010, we find that the petitioner at the time of argument had raised a solitary point with respect to non-furnishing of grounds by the Vice Chancellor before imposing a penalty of termination, which was contrary to clause 13.9 of the Birsa Agricultural University Statutes and finding legitimacy in the said plea, the writ application was allowed with a liberty to the disciplinary authority to proceed with the matter relating to imposition of penalty in accordance with law. In W.P.S. No. 3897 of 2011, despite the order passed in W.P.S. No. 1558 of 2010, the entire episode was initially reconstructed, which the Appellate Court had correctly pointed out and therefore this submission of the petitioner cannot lead to review of the order dated 29.7.2016, passed in L.P.A. No. 417 of 2014.

12. The petitioner in person has submitted that partial as well as irrelevant facts were recorded in the order dated 29.07.2016, passed in L.P.A. No. 417 of 2014, for which reference has once again been made to the order dated 4.11.2010 in W.P.S. No. 1558 of 2010 as it was observed therein that nothing concrete has been placed so as to establish that the enquiry report was served upon the petitioner.

13. Mr. Allam, learned senior counsel has refuted such submission by stating that the appellate court had extracted the relevant facts while coming to a just decision. He has gone on to add that the enquiry report

was supplied to the petitioner.

14. In his written note of argument, the petitioner has quoted from para 8 and para 10 of the order passed in W.P.S. No. 1558 of 2010 stating that those were the relevant facts, which emphasizes that the petitioner had indeed canvassed before the writ court that the enquiry report was not served upon him.

15. We do not agree to such submissions as it was rightly considered by the appellate court that non furnishing of grounds in the second show cause notice was the sole point taken by the petitioner. If we may add further regarding the non supply of the enquiry report, we may profitably quote from the order dated 16.09.2014, passed in W.P.S. No. 3897 of 2011, which reads as follows:-

"These decisions however, are not of any relevance now, and need not be discussed in detail, in view of the fact that the earlier order of dismissal passed against the petitioner was quashed by this Court on the ground of non-supply of the enquiry report also, and thereafter the second show cause notice was issued to the petitioner, which shows that the copy of the enquiry report was furnished to the petitioner, and in any event, it has also been brought on record by the University as Annexure-M to the supplementary counter affidavit. As such, the question of non-supply of enquiry report is no more involved in this case"

16. Therefore, no error or omission is detected in the finding of the appellate court as recorded in paragraphs 12 and 23 of the judgement passed in L.P.A. No. 417 2014.

17. The other submissions advanced by the petitioner in person are that proper consideration was not made to the Principles of Natural Justice as reasonable opportunity was not given to the petitioner to defend his case. He has also drawn the attention of the Court to para 17 and para 37 of the judgement under review, which according to him, is contradictory to each other. Certain factual aspects have also been sought to be highlighted primarily relying upon the order passed in W.P.S. No. 3897 of 2011.

18. Dr. Jaiswal in support of his contentions has relied upon the case of Bihar School Examination Board Vs. Suresh Prasad Sinha, reported in (2009) 8 SCC 483, wherein it has been held as follows:-

"20. In Sarva Shramik Sanghatana (KV) v. State of Maharashtra this Court cited the following passage from Quinn v. Leathem with approval: (AC p. 506) "... Now, before discussing Allen v. Flood and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law,

but [are] governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all." (emphasis supplied).

19. Reliance has also been placed at para 22 of the aforementioned judgement, which reads as follows:-

"22.As held in Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani a decision cannot be relied on without disclosing the factual situation. In the same judgment this Court also observed: (SCC pp. 584-85, para 9) "9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of [the] statute and that too taken out of [the] context. These observations must be read in the context in which they appear to have been stated."

(emphasis supplied)

20. Mr. Allam has submitted that there is no error apparent on the face of the record so as to cause interference in the order dated 29.7.2016, passed in L.P.A. No. 417 of 2014 and in support of which, he has placed reliance in the case of Shanti Conductors Pvt. Ltd. Vs. Assam State Electricity Board and others reported in (2020) 2 SCC 677, wherein it has been held as follows:-

"25. Insofar as the other submissions of Dr Singhvi that the 1993 Act is retroactive in nature and further amount due at the time of the commencement of the Act ought to attract interest of the 1993 Act, all these submissions have been elaborately considered in the judgment dated 23-1-2019, which have been considered on merits. The scope of review is limited and under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions, which have already been addressed and decided. The scope of review has been reiterated by this Court from time to time. It is sufficient to refer to the judgment of this Court in Parsion Devi v. Sumitri Devi, wherein in para 9 the following has been laid down: (SCC p. 719) "9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise"."

21. In the context of the rival submissions, we may take note of the findings recorded in para 27 of the order, under review, which reads as follows:-

"27. To conclude, the controversy, if any, in respect of conduct of departmental proceeding, must set at rest after decision in W.P.(S) No.

1558 of 2010. As rightly contended by Mr. A.K. Sinha, the learned Senior counsel for the appellant-University, in view of order dated 04.11.2010 passed in W.P.(S) No. 1558 of 2010 it was not open to the Writ court to reopen the entire issue. Whether second show-cause notice dated 06.12.2010 complies with the statutory requirement under sub-clause (4) to Clause 13.9 of the Statute, that is, whether it contains the grounds on which one of the major penalties is proposed, or not, and may be the quantum of punishment are the issues which, in view of order dated 04.11.2010, could have been examined in the present writ proceeding. Order passed in W.P.(S) No. 1558 of 2010 effectively limits the scope of any further enquiry. The impugned order dated 16.09.2014 travels beyond the limits of enquiry limited by order passed in W.P.(S) No. 1558 of 2010, and for this reason alone findings recorded by the Writ Court in respect of legality of enquiry are liable to be set-aside"

22. No error appears to be present in the aforesaid finding as the Writ Court in W.P.(S) No. 3897 of 2011 was precluded from considering the entire issue from its very inception. Rather, as has been rightly held, after the order dated 4.11.2010 was passed in W.P.(S) No. 1558 of 2010 the only issue open for consideration was whether the second show cause notice contained the grounds, on which, the major punishment is proposed and nothing beyond. As has been held in Shanti Conductors (Supra), the scope of review is limited and the petitioner cannot be allowed to re-argue and re-agitate his grievance in the guise of a review. In the present application, though the petitioner has raised several grounds for reviewing the order dated 29.07.2016, passed in L.P.A. No. 417 of 2014 but the same appears to be more in the form of an appeal rather than a review. The contentions raised by the petitioner do not point to any error apparent on the face of the record and infact traverses beyond the limited arena within which a review application functions.

23. Thus, on consideration of the discussions made herein above, we do not find any reason to review the order dated 29.7.2016 passed in L.P.A. No. 417 of 2014 and consequently this application sans merit is hereby dismissed.

(Rongon Mukhopadhyay,J)

(Rajesh Kumar, J) Rakesh/-