Prof.Kona Prakash Reddy vs The Union Of India And 6 Others
2022 Latest Caselaw 5193 Tel

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI

              I.A.NO.3 OF 2022 AND I.A.NO.4 OF 2022
                                    IN
                WRIT PETITION NO.14931 OF 2022
                                  AND
                WRIT PETITION NO.14931 OF 2022

                          COMMON ORDER


      In this Writ Petition, the petitioner is seeking a Writ of Mandamus

declaring the order in proceedings No.EFLU/Admn./F.No.1907/

2022/847 dt.07.03.2022 issued by the 4th respondent as illegal, arbitrary

and in gross violation of principles of natural justice and consequently to

set aside the same and to pass such other order or orders as this Hon'ble

Court may deem fit and proper in the circumstances of the case.

2. Brief facts leading to the filing of the present Writ Petition are

that the petitioner was appointed as a Reader vide proceedings

dt.25.02.2009 by the 4th respondent University and he is discharging his

duties as such since then. It is submitted that vide proceedings

dt.24.07.2015, the petitioner was promoted as a Professor and has been

discharging his duties as such. The petitioner has also worked in

different capacities on administrative side such as Coordinator, Cell for W.P.No.14931 of 2022

disabled, Nodal Officer for Students' Grievance Redressal Portal,

Protector of the University Dean (Foreign Students) and also as a Chief

Vigilance Officer, etc. It is submitted that on 26.03.2021, the petitioner

has received an anonymous e-mail purporting to represent staff and

students of EFLU through which, slanderous allegations have been

levelled against the petitioner and other faculty members named therein

and a copy was furnished to the entire faculty of the 4th respondent

University. The petitioner submits that he has given a reply vide e-mail

dt.26.03.2021 addressing the contents of anonymous mail and marking

copies to the persons mentioned in the said e-mail as a measure of self

defence. It is stated that subsequently the petitioner and others also

submitted a representation dt.29.03.2021 to the 7th respondent about the

commissions and omissions of the 5th respondent with regard to several

irregularities in student related admissions for the academic years 2017-

18 to 2019-20 and the petitioner submitted that he has submitted another

representation dt.02.09.2021 brings to the notice of the 4th respondent

certain incidents which were already brought to the notice of the 5th

respondent relating to acts of certain individuals named therein

committing acts of sexual harassment against women faculty members

and that the culprits are all close associates of the 5th respondent.

W.P.No.14931 of 2022

3. It is submitted that the petitioner was suspended on 03.08.2021 on

the basis of certain baseless allegations and therefore, the petitioner

addressed a letter to his colleagues, bringing to their notice that the 5th

respondent is indulging in acts of victimisation. Thereafter, the

petitioner received a memorandum of charges dt.09.02.2022 whereby

certain articles of charges have been levelled against him and the list of

documents and imputations clearly suggested that the e-mails sent by the

petitioner on 26.03.2021 and 04.08.2021 have been taken as the basis

for framing the articles of charges. It is submitted that the petitioner

submitted written statement of defence vide his explanation

dt.28.02.2022 denying the charges and further stating that the 5th

respondent is highly biased against him and being a party to the dispute,

the 5th respondent cannot proceed further in the disciplinary action as it

would amount to a biased administrative action by violating the concept

of fair play. He submitted that without considering his explanation

dt.28.02.2022, the 4th respondent has straight away appointed the 6th

respondent as an enquiry officer vide proceedings dt.07.03.2022 and

challenging the said proceedings, the present Writ Petition is filed. On W.P.No.14931 of 2022

09.04.2022, this Court had granted interim stay of all further

proceedings pursuant to the proceedings dt.07.03.2022.

4. After filing of the Writ Petition, the 4th respondent has issued a

notice dt.08.04.2022 enclosing the enquiry report of the 6th respondent

seeking explanation of the petitioner. The petitioner has filed I.A.No.3

of 2022 seeking amendment of the prayer to challenge the notice

dt.08.04.2022 issued by the 4th respondent as well and the same is also

heard along with the Writ Petition.

5. Learned Standing Counsel for the 4th respondent University, Sri

P.S.Raja Sekhar, and the learned counsel appearing for the 5th

respondent, Sri Goda Siva, have filed counters of the respondents 4 and

5 respectively and supported the contentions/averments therein.

6. Respondents 2 to 4 have also filed I.A.No.4 of 2022 seeking

vacation of the interim order dt.19.04.2022 granted in I.A.No.1 of 2022.

7. Sri V. Mallik, learned Senior Counsel representing Sri N.S.Arjun

Kumar, learned counsel for the petitioner, while reiterating the

submissions made in the writ affidavit, submitted that only because the

petitioner has brought out the irregularities committed by the 5th W.P.No.14931 of 2022

respondent, the present disciplinary proceedings have been initiated

against him. He submitted that the impugned proceedings have been

issued by the 4th respondent, of which the 5th respondent is a member

and therefore, the bias is established and thus the said order has to be set

aside.

8. The learned counsel for the petitioner placed specific reliance

upon the judgments of the Hon'ble Apex Court in the cases of

Gullapalli Nageswara Rao and others Vs. Andhra Pradesh State

Road Transport Corporation1 and Ashok Kumar Yadav Vs. State of

Haryana2 for the proposition that a person interested in one party or the

other should not, even formally, take part in the proceedings, though in

fact he does not influence the mind of the person who finally decides the

case. In support of his contention that the de facto complainant cannot

conduct a fair enquiry and when the enquiry officer is subordinate in

rank to the complainant, he could not have been appointed as an enquiry

officer, and in such circumstances, the enquiry officer cannot be

expected to exercise his discretion freely, he placed reliance upon the

judgment of the Hon'ble Supreme Court in the case of M.L.L.Kumar

AIR 1959 SC 308

AIR 1987 SC 454 W.P.No.14931 of 2022

Vs. Divisional Manager, APSRTC3 which has been followed by the

A.P. High Court in the case of M.Koteswara Rao Vs. APSRTC4. In

support of the contention that wherever there is a real likelihood of bias,

the Court should interfere, he placed reliance upon the judgment of the

Kerala High Court in the case of V.Abusali Vs. Commandant5,

wherein the law laid down in R.L.Sharma Vs. Managing Committee6

has been followed.

9. It is further submitted that the 4th respondent is headed by the 5th

respondent and the 5th respondent being the de facto complainant has to

be treated as a witness in the present proceedings and therefore, the

action taken by the Executive Council in appointing the enquiry officer

who is lower in rank than the de facto complainant is untenable. In

support of this contention, the learned counsel for the petitioner placed

reliance upon the judgment of the Hon'ble Supreme Court in the case of

State of U.P. Vs. Mohd. Nooh7.

1989 FLR 597

1997 (3) ALD 491

1995 (1) LLJ 547

AIR 1993 SC 2155

AIR 1958 SC 86 W.P.No.14931 of 2022

10. In the counter filed by the 4th respondent, the allegations made by

the petitioner in the writ affidavit are denied. It is submitted that the

EFLU is a Central University established under the English and Foreign

Languages University Act, 2006 and has campuses in Hyderabad,

Shillong and Lucknow. It is submitted that the petitioner has been

promoted as a Professor on 24.07.2015 and that he has sent e-mails to

the teachers of the University making wild allegations and unwarranted

comments against them vide his e-mails dt.26.03.2021 and 04.08.2021

as admitted by the petitioner himself. It is submitted that the petitioner

was placed under suspension by the decision made by the Executive

Council of the EFLU which is the competent authority being the

appointing and disciplinary authority for teachers of the University vide

order dt.03.08.2021 and subsequently a charge memo was issued to the

petitioner vide Memo dt.09.02.2022 by the Executive Council. It is

admitted that the petitioner submitted his explanation to the charge

memo on 28.02.2022 and the 6th respondent was appointed as the

enquiry officer by the Executive Council, vide order dt.07.03.2022. It is

submitted that the enquiry proceedings were conducted on 14.03.2022,

17.03.2022 and 23.03.2022, well before the notice was ordered by this W.P.No.14931 of 2022

Court on 27.03.2022, but the petitioner had absented himself from the

enquiry proceedings in spite of receipt of notice of the hearings of the

enquiry. It is submitted that the petitioner did not furnish any valid

reason for being absent in the enquiry proceedings and therefore the

proceedings were concluded ex parte. It is submitted that instead of

appearing in the enquiry proceedings, the petitioner has written to the 6th

respondent and the Registrar, EFLU on 13.03.2022, 14.03.2022 and

17.03.2022 seeking adjournment of the proceedings by stating that he

was intending to move the Hon'ble High Court. Since the petitioner

could not furnish any valid reason for not participating in the enquiry,

the enquiry officer has concluded the enquiry ex parte the petitioner on

23.03.2022 and submitted the enquiry report on 24.03.2022. It is

submitted that in accordance with principles of natural justice, a copy of

the enquiry report was served on the petitioner with an intention to

provide him an opportunity to present his version and to submit his

written representation or submission within 15 days of receipt of the

notice vide Memo dt.08.04.2022. It is submitted that in spite of service

of such a Memo, the petitioner has not responded. In respect of the

contention of the petitioner that the petitioner and others have made

representation to the 7th respondent on 29.03.2021 against respondent W.P.No.14931 of 2022

No.5, it is submitted that the EFLU is not aware of the same. It is further

submitted that it is only after suspension of the petitioner on 03.08.2021,

that the petitioner has resorted to making wild allegations against

respondent No.5 and others and therefore, the allegations are wild and

baseless and are being made against respondent No.5 only to stall the

enquiry proceedings initiated against the petitioner for his misconduct.

The allegations of bias and malice made by the petitioner against

respondents 5 and 6 are also denied and it is submitted that though

respondent No.6 is subordinate to respondent No.5 or to the Executive

Council, the allegation that he is influenced by the 4th and 5th

respondents, does not hold any water. It is submitted that if this

proposition is accepted, no higher authority can take any disciplinary

action against the misconduct of any subordinate. It is further submitted

that respondent No.5 had recused himself from participating in the 35th

EC meeting held on 04.03.2022 when the matter pertaining to

appointment of respondent No.6 as the enquiry officer was taken up and

also in its 36th meeting for considering the enquiry report submitted by

the enquiry officer. Therefore, the allegations of the petitioner of bias

against respondents No.4 and 5 are misplaced and are liable to be

rejected. The allegation of respondent No.5 being a party to the dispute W.P.No.14931 of 2022

is also denied. In support of his contentions, relevant documents are also

filed by the learned Standing Counsel. He has drawn the attention of this

Court to the constitution of the Executive Council to demonstrate that

there are 7 Members in the Executive Committee who shall form a

quorum for meeting of the Executive Council and the Vice Chancellor is

one of such Members. Therefore, according to him, there are other

Members of the Council also in the Committee and therefore the

allegation of bias against the petitioner by the 4th respondent is

unsubstantiated.

11. The 5th respondent also filed counter affidavit reiterating the

averments made in the counter affidavit of the 4th respondent and also

stating that action has been initiated against the petitioner on account of

the objectionable e-mails sent officially by the petitioner to the teachers

of the University, some of whom are also the Members of the Executive

Council, Academic Council, etc. He further supported the stand of the

University that in the meeting held to enquire into the alleged

misconduct of the petitioner, the 5th respondent had recused himself and

therefore he was not part of the decision on the issue and therefore, there

was no bias, let alone any shadow of bias by the respondent No.5.

W.P.No.14931 of 2022

12. The petitioner has also filed a reply affidavit denying the

allegations made in the counter affidavits filed by the 4th and 5th

respondents.

13. The learned counsel for the petitioner has placed reliance upon

the judgment of the Hon'ble Supreme Court in the case of Mohinder

Singh Gill and another Vs. Chief Election Commissioner, New Delhi

and others8 for the proposition that the impugned order must stand on

its own feet and cannot be supplemented subsequently by filing

affidavits or otherwise. This Court finds that the said ratio is applicable

to the facts of the case before this Court and that the impugned action of

the respondents has to be tested on its own legs and not on the basis of

the averments made in the counter affidavits filed by the 4th and 5th

respondents.

14. In the Judgment of the Hon'ble Supreme Court of India in the

case of Rattan Lal Sharma Vs. Managing Committee, Hari Ram

(Co-Education) Higher Secondary School9, the issue was whether

there was a real likelihood of bias and it was held that it depends not

(1978) 1 SCC 405

1993 LawSuit(SC) 487 W.P.No.14931 of 2022

upon what actually was done but upon what might appear to have been

done. Similar finding is given in the case of A.K. Kraipak and others

Vs. Union of India and others10.

15. The learned counsel for the respondents, on the other hand, relied

upon the judgment of the Hon'ble Supreme Court in the case of

Rajneesh Khajuria Vs. Wockhardt Limited and another11, wherein it

has been held that the burden of establishing malice is very heavily on

the person who alleges it. It is submitted that the petitioner has

miserably failed to prove that the enquiry officer has been appointed at

the behest and at the instance of the 5th respondent.

16. Having regard to the rival contentions and the material on record,

this Court finds that the only issue in this case is whether there was bias

or any likelihood of bias against the petitioner by or at the behest of the

5th respondent and whether he has in any way influenced the decision of

the 4th respondent in appointing the enquiry officer and in conducting

the enquiry against the petitioner. The 5th respondent is the Vice

Chancellor of the University and is one of the Members of the Executive

1969 (2) SCC 262

(2020) 3 SCC 86 W.P.No.14931 of 2022

Council which is both appointing as well as disciplinary authority. He

being the Vice Chancellor and being part of the Executive Council, his

participation in any proceedings against any of the employees of the

University cannot be avoided except where his presence is expressly not

required. However, with regard to the specific complaint against the

petitioner which has resulted in his suspension and thereafter issuance of

charge memo, it is to be seen whether any specific allegations were

made against the 5th respondent. A copy of the memorandum of charges

is filed along with the counter affidavit. As seen therefrom, the charge

memo was issued on 09.02.2022 and the charges are: (1) that the

behaviour of the petitioner is unbecoming of an employee; (2) is abusive

and disturbing the peace at the place of employment; (3) his acts are

subversive of discipline and (4) are abusive and disturbing the peace at

the place of employment, wilful insubordination, disobedience and

causing damage to the reputation. On going through the same, it appears

that the petitioner has been making abusive statements against the

teachers of the University and also certain allegations were made against

the Vice Chancellor, i.e., the 5th respondent in this Writ Petition. A copy

of the minutes of the 35th meeting of the Executive Council held on

04.03.2022 at 5 pm at the EFL University, Hyderabad is also furnished, W.P.No.14931 of 2022

according to which, item No.35.38 is to consider and decide on further

course of action consequent upon the Memorandum of Charges served

on Prof. K. Prakash Reddy, Department of English Literature. As seen

therefrom, the Vice Chancellor is not part of the Members present and

who have taken the decision. The meeting was chaired by Pro-Vice

Chancellor Prof. Revathi Srinivas. Copies of orders dt.07.03.2022

appointing Prof. M.E. Veda Sharan as the enquiry officer to enquiry into

the charges framed against Prof. K. Prakash Reddy and the proceedings

appointing Dr. Muralidhar Tadi, Joint Registrar as the Presenting

Officer are also filed before this Court. Copies of the adjournment letters

filed by the petitioner before the enquiry officer are also filed.

17. After going through the relevant documents, it is noticed that the

5th respondent is, in fact a person against whom certain allegations have

been made by the petitioner, and in order to rule out any bias or even

shadow of bias or any likelihood of bias, he should not be part of the

Executive Council which has taken a decision to suspend the petitioner

and to appoint the enquiry officer to enquire into the allegations against

the petitioner. On going through the minutes of the meeting in which the

decision was taken to appoint the enquiry officer, it is clear that W.P.No.14931 of 2022

respondent No.5 had recused himself and was not part of the meeting in

which the decision to appoint the enquiry officer was taken. Therefore,

the allegation of the petitioner that the 5th respondent was instrumental

in appointing Prof. M.E. Veda Sharan as the enquiry officer and

therefore the de facto complainant has appointed the enquiry officer is

not correct and therefore cannot be entertained. The allegation of bias by

the respondents 4 and 5 against the petitioner is clearly ruled out.

18. Coming to the enquiry report and the notice dt.08.04.2022, this

Court finds that it is ex parte the petitioner. Since the petitioner had filed

applications for adjournment, it cannot be said that he was absent

intentionally. Therefore, without going into the merits of the charges

alleged against the petitioner, this Court is of the opinion that the

enquiry report has to be set aside and the enquiry officer should conduct

the enquiry afresh and the petitioner being a Professor, has to cooperate

and participate in the enquiry proceedings. Therefore, both the enquiry

report as well as the notice enclosing the enquiry report dt.08.04.2022

are set aside and the enquiry officer is directed to conduct de novo

enquiry into the allegations made against the petitioner as directed by

the 4th respondent expeditiously. The petitioner shall be given a fair and W.P.No.14931 of 2022

reasonable opportunity of hearing and presenting evidence and

witnesses on his behalf in accordance with law.

19.   In the result,


20.   (i)     I.A.No.3 of 2022 is allowed;


      (ii)    I.A.No.4 of 2022 is closed in view of the disposal of the

              main Writ Petition.

(iii) With the above directions, the Writ Petition is partly

allowed. No order as to costs.

21. Pending miscellaneous petitions, if any, in this Writ Petition shall

stand closed.

___________________________ JUSTICE P. MADHAVI DEVI Date: 19.10.2022 Svv