Alok Ranjan vs The National Institute Of ...
2022 Latest Caselaw 970 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                       Civil Writ Jurisdiction Case No.119 of 2020
     ======================================================

Alok Ranjan, son of Sri Giridhary Prasad, male, aged about 42 years, resident of Vishwalok, Mangalsthan, Ramchandrapur, Bihar Sharif, P.O.- Bihar Sharif, District- Nalanda.

... ... Petitioner/s Versus

1. The National Institute of Technology Patna through its Director.

2. The Director, National Institute of Technology, Patna.

3. The Registrar, National Institute of Technology, Patna.

4. Dr. Rajiv Sinha, Professor, Earth Science Department, IIT Kanpur (U.P.).

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Shekhar Singh, Adv.

Mr. Manish Kumar No. 2, Adv.

For the Respondent/s : Mr. Sanjay Kumar Giri, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR C.A.V. JUDGMENT Date : 07-02-2022

Heard Mr. Shekhar Singh, the learned

Advocate for the petitioner and Mr. Sanjay Kumar Giri,

the learned counsel for the respondents.

2. The petitioner has challenged the order

of punishment dated 05.10.2019 issued by the Director

of National Institute of Technology, Patna, removing Patna High Court CWJC No.119 of 2020 dt.07/02/2022

him from services of the National Institute of

Technology, Patna (in short the NIT) where he had been

serving as Assistant Professor in the Electrical

Engineering Department as also for quashing the

memorandum of charges dated 21.09.2015 and all the

consequent proceedings pursuant thereto.

3. While in job in the NIT, the petitioner

had enrolled himself for Ph.D. in the Electrical

Engineering Department at the NIT. He had appeared

in the Mid-Semester Examination for such Ph.D. course

in the month of March, 2014. The invigilator of the

aforesaid exam pointed out a discrepancy in his answer

book as on the answer book submitted by the petitioner,

a different code was mentioned, which answer-book was

not supplied to the candidates in the examination hall.

A notice was thereafter given to the petitioner for

having used unfair means during the examination.

4. To such notice, the petitioner replied on

29.04.2014 by stating that he could not have verified

the answer-book code supplied to him in the Patna High Court CWJC No.119 of 2020 dt.07/02/2022

examination hall to see whether it tallied with the code

number given on other answer-book and, therefore, the

charge of using unfair means in the exam was

absolutely uncalled for.

5. The Unfair Means Committee found that

the petitioner was an invigilator in another room in the

forenoon session of 13.03.2014 and in the second half,

he was himself a candidate. The proceedings of the

Committee further reflects that in the forenoon session,

48 copies with different code number were issued to the

candidates but only 47 candidates had appeared and

those 47 answer-books were returned at the end of

session. One unused answer-book was never returned.

The code number on such answer-book was different

from the code number in the answer-book provided in

the afternoon session of the examination in which the

petitioner was a candidate himself. Thus, it was found

out that the petitioner had pilfered the unused answer

book in the forenoon session of the examination, in

which he was an invigilator, filled it up with the answers Patna High Court CWJC No.119 of 2020 dt.07/02/2022

and, thereafter, submitted it in the afternoon session

where he was a candidate. Such conduct was held to be

unfair by the petitioner, who was also a Faculty

Member.

6. A show-cause notice dated 20.03.2015

was issued to the petitioner as to why a disciplinary

proceeding be not initiated against him for his

misconduct. To the aforesaid notice, the petitioner

appears to have replied on 31.03.2015, claiming

innocence and that he had no idea as to how he was

supplied with an answer-book with a different code.

7. Since the petitioner was found using

unfair means in the examination, his admission in the

Ph.D. course was cancelled and he was debarred forever

from applying for such course in the NIT.

8. The petitioner also took a plea in his

show-cause reply with respect to departmental

proceeding that he was already under lot of mental

stress and constraints for his admission in the Ph.D.

course having been cancelled and he being debarred Patna High Court CWJC No.119 of 2020 dt.07/02/2022

forever from taking admission in future and, therefore,

no useful purpose would be served by subjecting him to

further departmental proceeding for imposing

punishment.

9. The explanation of the petitioner did not

find favour with the authorities and a departmental

proceeding was initiated against him with two charges,

namely, (i) that he took away one blank-answer book of

the Mid-Semester Examination, 2014 while he was on

duty as an invigilator; and (ii) that he used the same

answer-book for answering his own paper in Ph.D.

course in the afternoon session of the examination for

the subject "Power System Protection" on 13.03.2014.

He was further charged that he had brought this

answer-book with pre-written answers and had

submitted it as if he was bona fide examinee.

10. The petitioner was served with the

aforesaid charge memo dated 21.09.2015 and was

directed to submit his reply within ten days of its

receipt. Along with the charge memo, a list of Patna High Court CWJC No.119 of 2020 dt.07/02/2022

documents and name of witnesses by whom the articles

of charges were proposed to be established, were also

supplied.

11. The petitioner appears to have

represented to the Director of the NIT on 28.09.2015

for making available to him the documents mentioned in

the list appended to the charge memo for his better

defense. On 07.10.2015, the petitioner further

requested for being provided with the schedule of the

Mid-Semester Examination and the Invigilators' Duty

Chart of the Teachers.

12. It is the contention of the petitioner that

without providing the documents demanded by him and

without affording adequate opportunity to defend

himself, the enquiry was concluded in a haste and a

report was submitted on 10.02.2016, holding him guilty

of both the charges.

13. The aforesaid enquiry report was

communicated to the petitioner on 28.02.2016, asking

him to submit his representation with respect to the Patna High Court CWJC No.119 of 2020 dt.07/02/2022

quantum of punishment. The aforesaid communication

is said to have been received by him on 17.04.2017.

14. The respondents content that after the

completion of the enquiry, the petitioner had been

absconding from his duty and, therefore, the Board of

Governors of the NIT, in its meeting dated 12.12.2016,

had resolved to publish such notice in the daily-

newspaper for necessary information to the petitioner.

15. A perusal of the enquiry report reveals

that all the formalities of a domestic enquiry was

complied with, including the approval of the Board of

Governors and that the petitioner had deliberately taken

one blank answer-book from the forenoon session of the

examination for using it unauthorizedly and dishonestly

in the afternoon session.

16. The case of the petitioner was referred

to the C.V.C. vide letter dated 15.02.2017 for second

stage advise/consultation, which confirmed that the

charges against the petitioner were proved and

imposition of suitable major penalty was advised. The Patna High Court CWJC No.119 of 2020 dt.07/02/2022

petitioner was asked to submit his representation

against the C.V.C. advise which was never furnished.

17. Finding the defense of the petitioner to

be absolutely unworthy of acceptance, the disciplinary

authority passed the order for his removal from the

service of Assistant Professor in the Electrical

Engineering Department of the Institute with effect

15.10.2019.

18. The petitioner has challenged the

aforesaid order on several counts, namely, (i) non-

supply of documents demanded by him; (ii) the

disciplinary proceeding having been concluded in hot

haste; (iii) personal bias of the Enquiry Officer, namely,

respondent No. 4, who was also a Member of Board of

Governors in the NIT; and (iv) that the enquiry was held

in pursuance to a Rule [Central Civil Services

(Classification, Control and Appeal) Rules, Rule 14],

which was not existent at the time of initiation of the

departmental proceeding against him.

19. It has also been urged that an answer- Patna High Court CWJC No.119 of 2020 dt.07/02/2022

book cannot be pre-written as an examinee would not

know the questions which shall be asked in the

examination. Lastly, it has been urged that the

punishment of removal is far more harsh than what

would have been in consonance with the gravity of the

offence.

20. The counsel for the respondents has

however denied all such assertions.

21. After having heard the counsel for the

parties, it appears rather clearly that the petitioner had

purloined one answer-book while invigilating in the

forenoon session, which he used it in the afternoon

session when he himself was an examinee. The

contention of the petitioner that he would not have

known the questions which would be asked in the

afternoon session of the examination, gets strongly

repelled by the report of the Unfair Means Committee

which had initially found that the petitioner had

answered a question which was never asked and that he

had tried to deposit the answer-book only within thirty Patna High Court CWJC No.119 of 2020 dt.07/02/2022

minutes of the commencement of the examination.

22. This makes it very obvious that the

answer-book submitted by the petitioner in the

afternoon session was pre-written on the answer-book

with a different code which answer-book had been

circulated in the forenoon session of the examination

and not in the afternoon session.

23. The petitioner was given the list of

documents which were proposed to be used in the

departmental proceeding which included the relevant

answer-book deposited by him; the report of the

invigilators and the finding of the Unfair Means

Committee. The petitioner actually wanted those

documents as also the Invigilators Duty Chart.

24. Whatever may have been the reason for

the petitioner not being provided with the aforesaid

documents, it appears that it has not caused any

prejudice to him as what was relevant was the

document demonstrating the necessity of putting the

petitioner to departmental proceeding. Patna High Court CWJC No.119 of 2020 dt.07/02/2022

25. The complaint of the petitioner

regarding personal bias of respondent No. 4 could not

be established by him as the two reasons ascribed in

support of the proceeding being biased are that the

respondent No. 4, while discharging his duties as

Enquiry Officer was also a Member of the Board of

Governors and, therefore, for all practical purposes, he

would be treated as a disciplinary authority and that that

in the enquiry report, the respondent No. 4 has also

suggested the quantum of punishment. Merely because

the Enquiry Officer was also the Member of the Board of

Governors of the NIT, that by itself would not prove any

bias, more so, when element of personal bias has not

been shown. The Board of Governors comprise

Members of Academic Faculties and the decision of the

Board is unanimous. The suggestion of respondent No.

4 regarding the quantum of punishment only reflects his

concern about the nature and gravity of offence which

was proved, but that does not at all speak of bias.

26. The proceedings also do not appear to Patna High Court CWJC No.119 of 2020 dt.07/02/2022

have been concluded in haste.

27. The enquiry report could not be served

upon the petitioner because of his absence from duty or

else there would have been no necessity of issuing a

public notice to him through newspaper.

28. So far as the grievance of the petitioner

regarding initiation of the departmental proceeding

under Rule 14 of the Central Civil Services

(Classification, Control and Appeal) Rules, 1965 is

concerned, such grievance is non-existent as in the first

Statues of all the National Institute of Technologies

dated 23rd of April, 2019, Section 24 there of clearly

states that the employees of the Institute shall be

governed by Central Civil Services (Conduct) Rules,

1964. By amendment made in the Statute on 21 st of

July, 2017, Section 25 has been amended to read as

"The code of conduct for employees shall be made by

each Institute in consultation with the Central

Government and till such time the code of conduct for

an employee is framed, the Institute shall follow the Patna High Court CWJC No.119 of 2020 dt.07/02/2022

Central Civil Services (Classification, Control and

Appeal) Rules, 1965. The aforesaid amendment of

Section 25 of the Statute is only clarificatory.

29. The petitioner was appointed on the

post of Assistant Professor as per the recruitment rule

issued by the M.H.R.D. dated 15.01.2014, in which it

has clearly been stated that for matters not covered by

the Statutes, the corresponding Central Rules shall be

applicable in respect of other service conditions. In

Section 24(5) of the first Statute, the employees of the

NIT is stated to be governed by Central Civil Services

(Conduct) Rules, 1964. This Rule only provides for the

do's and don'ts for the central government employees,

but it does not specify the manner in which disciplinary

proceedings are conducted and penalties are imposed

against the delinquent employees. Clause 26 of the first

Statute also does not state anything about the

procedure to be followed for imposing penalty. It is

precisely for this reason that the procedure and the

penalty provided in Central Civil Services (Classification, Patna High Court CWJC No.119 of 2020 dt.07/02/2022

Control and Appeal) Rules, 1965 has been applied in the

case of the petitioner as is done in cases of other

employees as well.

30. The petitioner never raised such

objection at the stage of receiving the memorandum of

charge and ever thereafter. The objections were raised

only on 29.08.2019, though the fact remains that the

first Statute was amended on 21.07.2017.

31. The Central Civil Services

(Classification, Control and Appeal) Rules, 1965 is a

procedural law which has been framed, enabling the

employees to be dealt with fairly, keeping in mind the

principle of natural justice provided in those rules. No

prejudice can be said to have been caused to the

petitioner on that account; rather he has been given an

advantageous position in facing the departmental

proceeding as it puts several obligations on the

disciplinary authority.

32. This Court is conscious of the fact that

against the order passed by the respondents, debarring Patna High Court CWJC No.119 of 2020 dt.07/02/2022

the petitioner from pursuing his Ph.D. course for ever

and canceling his admission in such course, he had put

up a challenge vide C.W.J.C. No. 19403 of 2016, but

the same was dismissed by order dated 23.11.2017.

33. Notwithstanding the aforesaid fact, this

Court does not find that the punishment of removal is

disproportionate to the gravity of the misdemeanor

which has been committed by the petitioner.

34. The law with respect to testing an

administrative order on grounds of proportionality is no

longer debatable. To judge the validity of an

administrative order, normally the wednesbury the test

is to be applied, but only for the limited purpose of

testing whether the decision is illegal or suffers from

procedural improprieties or that the sentence is such

that no sensible decision-maker would, on the materials

available before him and within the framework of law,

have arrived at.

35. This Court can only take into account

whether all relevant materials were taken into account Patna High Court CWJC No.119 of 2020 dt.07/02/2022

and that the decision was bona fide.

36. This Court would not like to go into the

correctness of the choice made by the disciplinary

authority with respect to the nature of punishment

imposed on the petitioner. Many alternatives were open

to the disciplinary authority but it would not be

appropriate for this Court to substitute its decision with

that of the disciplinary authority.

37. Since the order of removal in a

misdemeanor of this kind does not shock the conscience

of the Court nor can it ever be called perverse, more so

when the petitioner himself was a Faculty Member and

misused his capacity as an invigilator in taking away an

unused answer-book for submitting it as his own

answer-bok in the Ph.D. examination, no interference

ought to be made with order impugned.

38. For the reasons afore-stated, this Court

does not find any fault with the entire process of

conducting the disciplinary proceeding against the

petitioner as also the punishment imposed on him. Patna High Court CWJC No.119 of 2020 dt.07/02/2022

39. The petition is dismissed but with no

order as to cost.

(Ashutosh Kumar, J)

Praveen-II/-

AFR/NAFR                AFR
CAV DATE                17.01.2022
Uploading Date          07.02.2022
Transmission Date       N/A