ivil Appeal No 1739 of 1973
Appeal by Special Leave from the Judgment and Order dated 22101973 of the Jammu and Kashmir High Court in Letters Patent Appeal No 972 FS Nariman OC Mathur PN Tiwari and DN Mishra for the appellants
Dushiant Kumar Rampal respondent
in person The Judgment of the Court was delivered by BHAGWATI J
 We pronounced our order on this appeal on 17th December 1976 and we now proceed to give our reasons
We may point out that the respondent was not represented by a lawyer and he argued case in person and though he is a lay man not well versed in the science of law and in the art and skill of advocacy we must admit that he argued his case with conspicuous ability
Prior to 5th September 1969 there was only one Univer sity for the entire territory of the State of Jammu  Kash mir namely the University of Jammu  Kashmir
It was constituted under the Jammu  Kashmir University Act 1965 hereinafter referred to as the Act of 1965 and as provid ed in section 20 its central authorities included the Senate and the Central Council
The Central Council was the executive body of the University and it had the power inter alia to appoint teachers and to define their duties
The respondent was appointed as a lecturer in English by the Central Council on 25th April 1966 and after his period of probation was over he was confirmed as lecturer with effect from 29th April 1967
The conditions of service of the respondent like those of other confirmed teachers were regulated by the Statutes made by the Senate from time to time under the provisions of Act of 1965
Statute 2 provided that every salaried teacher of the University shall have to execute a written contract with the UniverSity and the conditions of service of teachers appointed by the University shall be those embodied in the agreement of service annexed to the Statutes and every teacher shall execute such agreement before he enters upon his duties or as soon as possible thereafter
It appears that though Statute 2 required an agreement of service to be executed by a teacher no such agreement of service was executed by the respondent on his appointment as 47 lecturer
But it was common ground between the parties that the conditions of service of the respondent were governed by the provision set out in the form of agreement of service annexed to the Statutes
Clause 6 of this agreement and this clause admittedly governed the respondent stipulated that in all matters the teacher would abide by the Stat utes and Regulations from time to time in force in the University and in particular by those determining his her grade increment conditions of service rules of superannu ation and provident fund rules provided that no change in the Statutes and Regulations in this regard shall be deemed to have adversely affected the teacher
 The respondent was thus clearly bound by any changes which might be made in the Statutes from time to time and no change made in the Stat utes was to be regarded as having adversely affected the respondent and he could not complain against it
The case of the respondent was that he satisfactorily carried on his duties as lecturer and earned his increments from year to year
On 5th September 1969 the Governor of Jammu  Kashmir promulgated Ordinance No 10 of 1969 establishing in place of the University of Jammu  Kashmir two separate univer sities namely the University of Kashmir for the Kashmir division and the University of Jammu for the Jammu division of the State
This Ordinance was replaced by the Jammu  Kashmir University Act 1969 hereinafter referred to as the Act of 1969 which came into force on 30th October 1969
TheAct of 1969 made a slight departure from the earlier Act in the constitution of the various authorities of each University Section 20 of the Act of 1969 provided that the authorities of each university shall include the University Council and the Syndicate
The University Coun cil was constituted supreme authority of the university while the Syndicate was entrusted with the chief executive authority
Whereas under the earlier Act the power to appoint all teachers of the University was entrusted to the Central Council
there was bifurcation of this power between the University Council and the Syndicate under the Act of 1969
The University Council was given the power to appoint teachers of the status of a reader and above white the power to appoint teachers below the status of a reader was en trusted to the Syndicate
The Syndicate was thus the au thority under the Act of 1969 vested with the power to appoint and that power would also carry with it the power to dismiss teachers below the status of a reader
Since the University of Jammu  Kashmir came to an end on the repeal of the Act of 1965 and two new universities one of Kashmir and the other of Jammu were established some provision had to be made in the Act of 1969 for continuance of the Stat utes and Regulations so that there might be no hiatus or break causing dislocation in the functioning of the two new universities
Section 51 of the Act of 1969
therefore
provided that all Statutes and Regulations made under the Act of 1965 and in force immediately before the commencement of the Act of 1969 shall so far as may be consistent with the provisions of the latter Act continue to be in force in each University and section 48
sub sec
2 gave power to the special officer to examine the Statutes and Regulations continued under section 51 of this Act and propose such modifica 48 tions alterations and additions therein as may be necessary to bring such Statutes and Regulations in conformity with the provisions of this Act and provided that the modifica tions alterations and additions proposed by the Special officer shall if approved by the Vice Chancellor be deemed to have been made by the competent authority under the Act of 1969 and shall continue in force until altered or superseded by the authority constituted under the Act of 1969
There was also the problem of ensuring continuance of service of the existing employees of the University of Jammu  Kashmir and their allocation between the two succeeding universities and this problem was solved by the enactment of section 52 in the Act of 1969
That section in so far as material provided as follows 52
Continuance of service of the existing employees and their allocation Notwithstanding anything contained in this Act or any Statute or Regulation made thereunder or in any other law for the time being in force
1 all employees of the University of Jammu and Kashmir constituted under the Jammu and Kashmir University Act 1965 other than those serving on contract
or on deputation in the University or those serving m the Publication Bureau of the University who immediately before the commencement of this Act were holding or discharging the duties of any post of office in connection with the affairs of the said University shall subject to the provisions of sub section 2 continue in service on the same terms and conditions as regulated their service before such commencement 2 the Chancellor may in consultation with the pro Chancellor by order allocate the employees of the University of Jammu  Kashmir other than those serving on contract or deputation in the University or those serving in the Publication Bureau of the University between the University of Kashmir and the University of Jammu constituted under this Act in such manner as he may consider necessary and every such allocation shall be deemed to b e an appointment transfer or promotion as the case may beto the post or office by the competent authority under this Act Provided that in making such allocations the conditions of service of employment of such employees shall not be varied to their disad vantage 3 x x x x x 4 all persons who immediately before the commencement of this Act were holding or discharging the duties of any post or office in connection with the affairs of the Univer sity of Jammu and Kashmir on 49 contract basis or by virtue of their deputa tion to such posts or offices from other services in the State
unless otherwise or dered by the Chancellor after consulting the Pro Chancellor shall cease to hold such posts or to discharge such duties after 60 days from the commencement of this Act and all such contracts with or deputations to he University of Jammu  Kashmir shall stand terminated with effect from the expiry of the said period of 60 days
 Since most of the teachers had entered into an agreement of service with the University of Jammu  Kashmir as provided in Statute 2 and the rest were also treated as having en tered into such agreement of service by reason of the com pulsive force of Statute 2 though in fact such agreement of service had not been executed by them perhaps due to inad vertence the Chancellor took the view that all of them held their posts on contract basis and hence proceeding on the assumption that sub sec
4 of section 52 was attracted in their case he made an order dated 24th December 1969  directing that the appointments of the teachers set out in Schedule 1  which also included the respondent shall continue on the respective posts mentioned In that schedule on the terms and conditions embodied in Schedule II with effect from 9th January 1970
Schedule II contained the terms and conditions on which teachers mentioned in Schedule I were continued in service of the University of Jammu and clause 9ii of that Schedule read as follows The Vice Chancellor may when he deems it necessary suspend the teacher on grounds of misconduct insubordination inefficiency or unsatisfactory performance of duty when he suspends the teacher he shall report it to the university CouncilSyndicate at the next meeting
 The respondent and some other teachers were of the view that the terms and conditions set out in Schedule II effected a change in their conditions of service to their prejudice and hence they made a representation to the Chancellor and other authorities of the University of Jammu
It does not appear from the record as to what happened to this representation but presumably it was rejected
Now we come to the events which formed the immediate cause for the predicament of the respondent
It appears that certain complaints were received by the Vice Chancel lor against the conduct of the respondent and the Vice Chancellor took the view that these complaints were of a serious character and needed to be enquired into and pending such enquiry it was not desirable that the respondent should be allowed to continue to work as a lecturer
The ViceChancellor accordingly passed an order dated 21st May 1970 directing that the respondent be placed under suspen sion with immediate effect
This order was purported to be passed by the Vice Chancellor in exercise of the powers vested in him under clause 9ii of Schedule II of the Order dated 24th December 1969 and section 13 4 of the Act of 1969
It may be convenient at this stage before we proceed 50 further to refer to section 134 since considerable argument before us turned upon it Section 13 deals with the powers and duties of the Vice Chancellor and sub section 4 of that section reads as follows 4 The Vice Chancellor may take action as he deems necessary in any emergency which in his opinion calls for immediate action
He shall in such a ease and as soon as may be thereafter report his action to the officer authority or other body of the Uni versity concerned who or which would ordinari ly have dealt with the matter
 Sub section 6 of section 13 is also material and it is in the following terms 6  The Vice Chancellor shall give effect to the orders of the University Council and the Syndicate of the University concerned regarding the appointment dismissal and suspension of persons in the employment of the University and shall exercise general control over the affairs of the University
He shall be responsible for the discipline of the University in accordance with this Act Stat utes and Regulations
 The Vice Chancellor immediately after passing the Order of suspension placed it before the Syndicate at its next meeting held on 24th June 1970
The respondent had also in the meantime submitted his representation against the Order of suspension and this representation also came up before this meeting of the Syndicate
The Syndicate considered the Order of suspension made by the ViceChancellor as also the representation submitted by the respondent and passed a resolution rejecting the representation of the respondent recording the action taken by the Vice Chancellor and di recting that articles of charge be framed and communicated to the respondent and he may be required to submit his explanation in writing and a committee consisting of the Vice Chancellor and three other persons be appointed to investigate the matter and submit its finding to the Syndicate
The Registrar of the University thereafter passed an order dated 6th June 1970 declaring that during the period of suspension the respondent would not be enti tled to get full salary but he would be paid only subsist ence allowance at an amount equal to half pay and half dearness allowance in accordance with the usual practice followed by the University
It may be pointed out that with effect from 21st May 1971 that is after the expiry of a period of one year from the date of suspension the subsist ence allowance payable  to the respondent was raised to 75 of the pay and dearness allowance
A charge sheet contain ing twelve charges was then given to the respondent and he was required to submit his explanation
The respondent gave his explanation to the charges leveled against him and while doing so he also objected to the constitution of the Committee which was appointed to enquire into the charges
In consequence of his objection the constitution of the committee was changed and the Vice Chancellor was kept out of it
The enquiry by the Committee 51 commenced on 12th March 1971 and it went on for some time but before it could be completed the respondent filed a writ petition in the High Court of Jammu  Kashmir challeng ing the validity of the Order dated 24th December 1969 the Order dated 6th June 1970 in regard to payment of subsist ence allowance and also impugning the legality of the enquiry proceedings
There were various grounds taken by the respondent in the writ petition but it is not necessary to refer to them in detail having regard to the course which the appeal has taken before us
The writ petition was heard by a Single Judge of the High Court and by a judgment dated 28th April 1972 the learned Judge dismissed the writ petition
The respondent there upon preferred a Letters Patent appeal in the High Court
During the pendency of the appeal the departmental enquiry which was started against the respondent
was completed and the committee made a report absolving the respondent of all the charges except charges Nos 1 and 12 of which the respondent was found guilty
The syndicate after considering the report of the committee resolved to issue a notice to the respondent to show cause why the punishment for termination of his services from the University be not imposed on him on the ground of charges Nos 1 and 12
Pursuant to this resolu tion a show cause notice was issued to the respondent which led to the filing of a petition by the respondent in the Letters Patent appeal for taking notice of these subse quent events
The respondent in this petition challenged the report of the committee as also the resolution of the Syndicate on various grounds which are no longer material
The University filed its reply to the petition denying the allegations made against the committee and disputing the grounds on which the validity of the enquiry was challenged on behalf of the respondent
The Letters Patent appeal thereafter came to be heard by a Division Bench of the High Court and the Division Bench by a judgment dated 22nd October 1973 took the view that the Order dated 24th December 1969 was violative of section 52 sub section 1 of the Act of 1969 and the Order of suspension dated 21st May 1970 was defective for want of jurisdiction and other legal infirmities and these two orders were accordingly quashed and set aside by the Division Bench
The Division Bench also held that as a necessary corollary to our find ings on the two impugned orders and also in consequence of our observations on the legal aspect of the show cause notice issued to the appellant to terminate his service the same also deserves to be quashed The Division Bench accordingly allowed the appeal set aside the judgment of the learned Single Judge and issued a writ of certiorari quashing the Order dated 24th December 1969 and the Order of suspension dated 21st May 1970 as also the show cause notice issued to the respondent and directed the reinstate ment of the respondent
The University and the Vice Chan cellor thereupon preferred the present appeal with special leave obtained from this Court
The appeal was heard by this Court for some time on the points which were decided against the University and the Vice Chancellor and certain further points were also raised by the respondent in support of the order made by the Division Bench of the High Court
52 But it is not necessary to examine the arguments advanced on behalf of the parties on these various points since before the hearing of the appeal could be concluded a partial settlement was arrived at between the University and the Vice Chancellor on the one hand and the respondent on the other
It was agreed between the parties as a result of this settlement that the University should drop the disci plinary proceedings action against the respondent and that the respondent should be allowed to join service within fourteen days from the date of the order to be made by this Court and upon his joining his pay should be fixed as lecturer taking in view the increments which he would have earned but for the suspension
It was also declared in the settlement that there shall be no stigma whatsoever attached to the respondent and so far as the personal allegations made by him against the University authorities were con cerned they would stand withdrawn by him
The settlement also provided that the respondent should be given benefit of continuity of service and if the validity of the Order of suspension was ultimately upheld by this Court and it was held that the respondent was not legally entitled to any thing more than the subsistence allowance actually paid to him the matter would be left to the Chancellor to determine in his sole and
absolute discretion as to whether any additional amount at all and if so what amount may be paid to the respondent for the period of suspension ex gratia without any liability on the part of the University
The Chancellor was authorised to determine this matter in consultation with the Pro Chancellor or in such other manner as he thought proper and he could do so even without giving any opportunity to either party to make his or their submis sions in the matter
Having regard to this settlement the only two questions which remained to be resolved by this Court were first whether the Order of suspension was valid and secondly if the Order of suspension was valid whether the respondent was entitled to anything more than the subsistence allowance actually paid to him
These two questions we shall now proceed to decide
The first question is whether the Order of suspension made by the Vice Chancellor was a valid Order or it suffered from any legal infirmities
The respondent assailed the validity of the order of suspension on the ground that it was made in purported exercise of the power conferred under clause 9 ii of Schedule II to the Order dated 24th December 1969 but this Order w as itself void and inoper ative as it was in conflict with the provisions of section 52 subsection 1 of the Act of 1969
The argument of the respondent was that immediately before the commencement of the Act of 1969 he did not hold or discharge the duties of any post or office in connection with the affairs of the University on contract basis nor was he on deputation from any other service of the State of Jammu  Kashmir and he was therefore not covered by section 52 sub sections 4 under which the Order dated 24th December 1969 was purported to be made but his case was governed by section 52 subsection 1 which ensured him continuity in service on the same terms and conditions as before and hence the order dated 24th December 1969 altering his terms and conditions as set out in 53 Schedule II was invalid
This argument would have required us to consider whether the employment or the respondent under the University of Jammu  Kashmir immediately prior to the commencement of the Act or 1967 was on contract basis because the provision in regard to deputation being inapplicable it is only if the employment of the respondent was on contract basis that the Order dated 24th December 1969 could be justified under section 52 sub section 4
But we shall for the purpose of the present appeal proceed on the assumption that the case of the respondent was gov erned by subsection 1 and not sub section 4 of section 52 and the order dated 24th December 1969 in so far as it determined any different terms and conditions for the re spondent was not valid since we find that in the view which is being taken by us it is not necessary to examine this question
Undoubtedly the effect of tins assumption would be to put clause 9 ii of Schedule II to the order dated 24th December 1969 out of the way of the respondent and it would not be available to the University and the Vice Chancellor m support of the Order of suspension
But even so we think the Vice Chancellor had power to make the Order of suspension and he was within his authority in doing so
We have already pointed out that by reason of Statute 2 read with clause 6 of the Form of Agreement annexed to the Statutes made under the Act of 1965 the respondent was bound by any changes which might be made in the Statutes from time to time and no change made in the Statutes was to be regarded as having adversely affected the respondent
Now the Statutes made under the Act of 1965 continued to be applicable to the University by reason of section 51 but section 48 sub section 2 provided for making of modifica tions alterations and additions in the Statutes with a view to bringing them in conformity with the provisions of the Act of 1969
The Special Officer accordingly proposed certain modifications in the Statutes which were found necessary to bring the Statutes in conformity with the provisions of the Act of 1969 and
these modifications were approved by the Chancellor by an Order dated 24th December 1969 and by reason of section 48 sub section 2 they were deemed to have been made by the competent authority under the Act of 1969
This Order dated 24th December 1969 substituted Chapter iV in the Statutes by a new Chapter and Statute 24ii in the newly substituted Chapter made the same provision as clause 9ii of Schedule II to the Order made under sub section 4 of section 52
Now obvi ously if Statute 24ii were a valid provision the Vice Chancellor would have power to suspend a teacher on the ground of misconduct insubordination inefficiency or unsatisfactory performance of duty and the Order of suspen sion made against the respondent would be within the au thority of the ViceChancellor
The respondent there fore assailed the validity of Statute 24ii on the ground that it was not necessary for the purpose of bringing the Statutes m conformity with the provisions of the Act of 1969 and was hence not within the terms of section 48 subsection 2
Turning to the language of section 48 sub section 2 it is clear that the power conferred on the Vice Chancellor under 54 that provision to approve modifications in the  Statutes is a power which can be exercised only where the modifications are necessary for bringing the Statutes in conformity with the provisions of the Act of 1969 and if it is found that any modifications purported to be approved by the Chancel lor are plainly unnecessary from the point of view of bring ing the Statutes in conformity with the provisions of the Act of 1969  it would be outside the power of the Chancel lor to approve them
The Chancellor cannot say that it is for him to decide in his subjective opinion whether the modifications proposed to be made are necessary for bringing the Statutes in conformity with the Act of 1969 and that his subjective opinion is immune from scrutiny in a court of law
Of course if the view taken by the Chancellor is a reasonably possible view the Court would not interfere with the Order made by him approving the modifications but if what has been done by him is plainly and egregiously wrong the Court would certainly interfere on the ground that the order made by the Chancellor is beyond the power conferred on him by section 48 sub section2
The question which therefore arises for consideration is whether Statute 24ii could reasonably be said to be necessary for bring ing the Statutes in conformity with the provisions of the Act of 1969
We may first refer to section 13 sub section 4 of the Act of 1969 which confers power on the Vice Chancellor to take such action as he deems necessary in any emergency which in his opinion calls for immediate action
A similar provision was also made in section 13 sub section 4 of the Act of 1965
But the Act of 1969 introduced a new provision in sub section 6 of section 13 to the effect that the Vice Chancellor shall be responsible for the disci pline of the University in accordance with the Act Statutes and Regulations
The Vice Chancellor was thus entrusted under sub section 6 of section 13 with the task of main taining discipline in the University and the entrustment of this task carried with it by necessary implication power to
take whatever action was necessary for the purpose of main taining discipline provided of course such action was in accordance with the Act of 1969  and the Statutes and Regu lations
Since sub section 6 of section 13 was a new provision enacted in the Act of 1969 it was necessary to make Statutes for the purpose of enabling the Vice Chancel lor to effectively discharge the responsibility of maintain ing the discipline of the University and for that purpose vesting power in the Vice Chancellor to suspend a teacher pending departmental enquiry against him
It was with this object of bringing the Statutes in confirmity with sub section 6 of section 13 that Statute 24ii was added by way of modification in the Statutes by the Order dated 24th December 1969
We may concede straight away that if there was anything in the Act of 1969 which was inconsistent with the conferment of power of interim suspension on the Vice Chancellor Statute 24ii could not be approved by the Chancellor because no Statute can be made is in conflict with any provision of the Act
But we do not find anything in the Act of 1969 which militates against vesting of power in the ViceChancellor to order interim suspension of a teacher and hence Statute 24ii must be held to be a Stat ute validly approved by the Chancellor 55 within his authority under section 48 sub section 2
The view taken by the Chancellor that Statute 24ii was neces sary for bringing the Statutes in conformity with sub sec tion 6 of section 13 can not in any event be said to be so plainly erroneous that the Court would strike down Stat ute 24ii as invalid
Now if Statute 24ii is valid there can be no doubt that the respondent would be bound by it and in that event the order of suspension made by the ViceChancellor would be clearly within the power conferred on him by that Statute
It is true that the Order of sus pension did not recite StatUte 24ii as the source of power under which it was made but it is now well settled as a result of several decisions of this Court that when an authority makes an order which is otherwise within its competence it cannot fail merely because it purports to be made under a wrong provision of law if it can be shown to be within its powers under any other provision a wrong label cannot vitiate an order which is otherwise within the power of the authority to make Vide Hukamchand Mills Ltd vs State of Madhya Pradesh1 and P Balakotaiah vs Union of India2 We may also point out that the Order of suspension was in any event justified by the provision in section 13 sub section 4
The Order of suspension in fact recited that it was made in exercise of the power conferred under section 13 sub section 4
Sub section 4 of section 13 is general in terms and provides that the ViceChancellor shall be entitled to
take such action as he deems necessary in any emergency which in his opinion calls for
immediate action
It does not talk specifically of an order of interim suspension of a teacher but the width and amplitude of the language of the provision would clearly include action by way of interim suspension of a teacher  when there is in the opinion of the Vice Chancellor an emergency calling for immediate action
The respondent contended that the power to order interim suspension is a quasi judicial power and it would not be comprehended within the language of sub section 4 of section 13
But this contention is clearly falla cious and the premise on which it is based is unsound
It is not correct to say that an order of interim suspension is a quasi judicial order and in any event the language of sub section 4  of section 13 is sufficiently wide and comprehensive to take within its scope and ambit every kind of action which may be considered necessary by the ViceChancellor in an emergency and there is no reason why such action should not include making of an order of interim suspension
The Vice Chancellor therefore clearly had power under section 13 sub section 4 to make an order of interim suspension if he thought it necessary to make such an order in an emergent situation which in his opinion called for immediate action
The respondent sought to contend that at the date when the order of suspension was passed there was no emergency which called for immediate action on the part of the ViceChancellor and therefore the foundation for taking action under section 13 sub section 4 was wanting and the order of suspension could not be justified under that provision
1  2  5 240SCI77 56 But this contention cannot be entertained by us since it has not been taken as a ground of challenge in the writ peti tion
Whether or not there was an emergency requiring immediate action on the part of the Vice Chancellor is entirely a question of fact and if the respondent wanted to contest the validity of the exercise of power by the Vice Chancellor under section 13 sub section 4 in making the order of suspension he should have pleaded in the writ petition that the order of suspension was outside the power conferred under section 13 sub section 4 as there was no emergency
The respondent was aware from the recital con tained in the order of suspension that it was made by the Vice Chancellor in exercise of the power conferred under section 13 sub section 4 and therefore if the respond ent wanted to challenge the exercise of this power on
the ground that there was no emergency justifying its exercise he should have made an averment to that effect in the writ petition
If such averment had been made in the writ peti tion the University and the Vice Chancellor would have had an opportunity of meeting it in the affidavit in reply filed by them but no such averment having been made in the writ petition the University and the Vice Chancellor were not called upon to meet it
Hence we cannot permit the re spondent to challenge the validity of the order of suspen sion on the ground that there was no emergency attracting the applicability of section 13 sub section 4
The order of suspension made by the Vice Chancellor was plainly and indubitably an order which the Vice Chancellor had power to make under section 13 sub section 4
It may be noted that immediately after making the order of suspension the ViceChancellor placed it before the Syndicate at its next meeting as required by the second part of section 13 sub section 4 and the Syndicate approved of the action taken by the Vice Chancellor by rejecting the representation of the respondent and recording the fact of the making of the order of suspension
We may also refer to one other contention urged on behalf of the respondent and that was that by reason of section 52 sub section 1 the respondent was entitled to continue in service of the University on the same terms and conditions as regulated his service before the commencement of the Act of 1969 and in view of the provide to sub section 2 of section 52 the conditions of service of the respondent could not be varied to his disadvantage and therefore neither Statute 24ii nor section 13 sub section 4 could operate to confer on the Vice Chancellor power to make the order of suspension which he did not possess under the old terms and conditions
This contention plausible though it may seem is in our opinion not well founded
Section 52 sub section 1 undoubtedly continued the service of a teacher on the same terms and conditions as regulated his service before the commencement of the Act of 1969 and that was subject to the provisions of sub section 2 of section 52 but this subjection to the provisions of sub section 2 did not import the requirement set out in the second proviso that the conditions of service of a teacher shall not be varied to his disadvantage
The words subject to the provi sions of sub section 2 employed in subsection 1 of section 52 were intended merely to clarify that a 57 teacher shall continue in service on the same terms and conditions but subject to any allocation which may be made by the Vice Chancellor under sub section 2 of section 52
Nothing in sub section 1 should be construed as in any way derogating from the power of the Vice Chancellor to make an allocation of the teacher under section 52 sub section 2
The proviso to sub section 2imposed a limi tation on the power of the Chancellor to make an allocation by providing that in making such allocation the conditions of service of the employee shall not be varied to his disad vantage and it could not be construed
as a substantive provision adding a requirement in sub section 1  that even though the terms and conditions of service may permit alter ation to the disadvantage of an employee such alteration shall be inhibited
We must therefore consider the impact of sub section 1 of section 52 unaffected by the provision to sub section 2
Now it is obvious that even if the respondent was entitled to continue in service on the same terms and conditions as before by reason of sub section 1 of section 52 these very terms and conditions provided that he would be bound by any changes which might be made in the Statutes from time to time Vide Statute 2 read with clause 6 of the Form of the Agreement annexed to the Statutes made under the Act of 1965
If therefore any changes were made in the terms and conditions of service of the respondent by Statutes validly made under the Act of 1969 the respondent could not complain of any infraction of the provision of sub section 1 of section 52
Statute 24ii was as already pointed out above a Statute validly made under section 48 sub section 2 and hence the Vice Chan cellor was entitled to make the order of suspension against the respondent in exercise of the power conferred by that Statute
Section 13 sub section 4 of the Act of 1969 could also be availed of by the Vice Chancellor for sustain ing the order of suspension since it conferred the same power on the Vice Chancellor as section 13 sub section 4 of the Act of 1965 and exercise of the power conferred by it as against the respondent did not involve any violation of sub section  1  of section 52
We are therefore of the view that the order of suspension was a valid order made by the Vice Chancellor in exercise of the power conferred upon him under Statute 24ii as also section 13 sub section 4 of the Act of 1969
Now if the order of suspension was a valid order it suspended the contract between the respondent and the Uni versity and neither the respondent was bound to perform his duties under the contract nor was the University bound to pay any salary to him
The respondent was entitled to receive from the University only such subsistence allowance as might be payables under the rules and regulations govern ing his terms and conditions of service
The legal position in regard to the right of a master to suspend his servant is now well settled as a result of several decisions of this Court
The law on the subject was succinctly stated the following words by HegdeJ in V P Gindroniya vs State Madhya Pradesh 1 1 1970 3 SCR 448
58 The general principle is that an em ployer can suspend an employee of his pending an enquiry into his misconduct and the only question that can arise in such a suspension will relate to the payment of his wages during the period of such suspension
It is now well settled that the power to suspend in the sense of a right to forbid a employee to work is not an implied term in an ordinary contract between master and servant and that such a power can only be the creature either of a statute governing the contract or of an express term in the contract itself
Ordi narily therefore the absence of such a power either as an express term in the contract or in the rules framed under some Statute would mean that an employer would have no power to suspend an employee of his and even if he does so in the sense that he forbid the employee to work he will have to pay the employee s wages during the period of suspension
Where however there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder the order of suspension has the effect of temporarily sus pending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay
It is equally well settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct even though there is no such term in the contract of employment or in the rules but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which it could be withheld
The distinction between suspending the contract of a service of a servant and suspending him from performing the duties of his office on the basis that the contract is subsisting is important The suspension in the latter case is always an implied term in every contract of service
When an employee is suspended in this sense it means that the employer merely issues a direction to him that he should not do the service required of him during a par ticular period
In other words the employer is regarded as issuing an order to the employee which because the contract is sub sisting the employee must obey
 It will therefore be seen that where there is power con ferred on the employer either by express term in contract or by the rules governing the terms and conditions of service to suspend an employee the order of suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the employee is not bound to render service and the employer is not bound to pay
In such a case the employee would not be entitled to receive any payment at all from the employer unless the contract of employment or the rules governing the terms and conditions of service provide for payment of some subsistance allow ance
Here as we have held 59 the Vice Chancellor had the power to suspend the respondent under Statute 24ii or in any event under section 13 sub section 4 and hence the respondent could not claim payment of his salary during the period of suspension
The only  payment which the respondent could claim to receive from the University was subsistence allowance
if the rules governing the terms and conditions of his service made such a provision
The University stated that it had adopted as a matter of practice the rules relating to Civil Servants of the State of Jammu  Kashmir for the purpose of payment of subsistence allowance to its employees and in fact the University Council at its meeting held on 22nd February 1971 formally accorded approval to this practice
The respondent was therefore clearly not entitled to receive from the University anything more than the subsistence allowance actually paid to him which we are told was paid on the same basis as that prevailing under the rules relat ing to Civil Servants of the State of Jammu  Kashmir
These were the reasons for which we made our order dated 17th December 1976 upholding the validity of the order of suspension dated 21st May 1970 and holding that the respondent was not entitled to anything more than the subsistence allowance paid to him during the period of sus pension under the order of the Registrars dated 6th June 1970


Summary:
The Jammu and Kashmir University which was a university constituted under the Jammu and Kashmir University Act 1965 was bifurcated into two universities one for Jammu area and the other for Kashmir area by an act called the Jammu and Kashmir Universities Act 1969
Statute 2 made under the 1965 Act required every teacher to sign the pre scribed agreement of service with the University
Clause 6 of the agreement stipulated that in all matters the teacher would abide by the statutes and regulations in force in the university from time to time
The proviso to this clause provided that no change in the statutes and regula tions in this regard shall be deemed to have adversely affected the teacher
Section 51 of the 1969 Act provides for continuing in force the statutes and regulations made under the 1965 Act but section 482 empowered a special officer to propose modifi cations necessary to bring the statutes made under the 1965Act in conformity with the provisions of the 1969 Act and if such modifications were approved by the Chancellor they were deemed to have been made by the competent author ity under the 1969 Act
Section 521 of the 1969 Act provides that all employees of the university employed under the 1965 Act shall continue in service on the same terms and conditions as regulated their service before the commence ment of the 1969 Act
Sub section 2 empowers the Chancel lor to allocate employees of the university other than those serving on contract between the two new universities and the allocation so made was deemed to be an appointment to the post under the 1969 Act
The proviso to this sub section provides that in making such allocations the condi tions of service of employment of such employees shall not be varied to their disadvantage
Sub section 4 provides that all persons who were employed under the former univer sity on contract shall cease to hold such posts after 60 days from the commencement of the 1969 Act and all such contracts with the former university shall stand terminated on the expiry of 60 days
Section 134 of the 1969 Act empowers the Vice Chancel lor to take such action as he deems necessary in any emer gency which calls for immediate action
Section 136 provides that the Vice Chancellor shall be responsible for the discipline of the University
Section 143 of the 1969 Act contained an identical provision as that contained in section 134 of the 1965 Act
To bring the statutes under the 1965 Act in conformity with the provisions of the 1969 Act modifications proposed by the special officer under section 482 of the 1969 Act were approved by the Chancellor by his order dated December 24 1969
This order substituted Chapter IV in the statutes by a new chapter
Acting under section 524 the Chancellor made an order on December 24 1969 directing that certain teachers shall continue on the respective posts in the new Universities on the terms and conditions embodied in Schedule II to the order
Clause 9ii of the Schedule empowered the Vice Chancellor to suspend a teacher on grounds
among others of misconduct
The respondent a teacher appointed under the 1965 Act was transferred to the Jammu area by the Chancellor s order dated December 24 1969
In exercise of the power under el
9ii of Schedule II of the Chancellor s order 44 and section 134 of the 1969 Act the Vice Chancellor by an order dated May 21 1970 suspended the respondent from service
By another order dated June 6 1970 the respondent was allowed a subsistence allowance amounting to half his pay and half DA which was later raised to 75 of his pay and allowances
The respondent s writ petition under article 226 of the Constitution challenging the suspension order of May 21 1970 as well as the order dated June 6 1970 was dismissed by a single Judge of the High Court
On appeal the Division Bench struck down the order of suspension as violative of section 521 of the 1969 Act
In appeal it was contended by the respondent that 1 since his case was governed by section 521 the order of Decem ber 24 1969 made under section 524 was invalid because the terms and conditions set out in Schedule H to the order altered his conditions of service 2 statute 24ii was invalid because it was not within the terms of section 482 and the statute was not necessary for bringing the statutes in conformity with the provisions of the 1969 Act 3 the power to order interim suspension was a quasi judicial power and it would not be comprehended within the language of section 134 and 4 section 521 entitled him to continue in service on the same terms and conditions as before and under section 522 his conditions of service could not be varied to his disadvantage therefore neither statute 24ii nor section 134 could confer power on the Vice Chancellor to suspend him which power the Vice Chancellor did not have under the earlier Act
Allowing the appeal HELD The Vice Chancellor had the power to make the order of suspension and he was within his authority in doing so
By reason of statute 2 read with el
6 of the form of agreement the respondent was bound by any changes made in the statutes from time to time and no change made in the statutes was to be regarded as having adversely affected him
Statutes made under the 1965 Act continued to be applicable by reason of section 51
To bring the statutes in conformity with the provisions of the 1969 Act modifica tions proposed by the special officer were approved by the Chancellor by his order dated December 24 1969 and by reason of section 482 they were deemed to have been made by the competent authority under the 1969 Act
This order substi tuted Chapter IV in the Statutes by a new Chapter and stat ute 24ii made the same provision as el
9ii of Schedule II to the order made under section 524
If statute 24ii were a valid provision the Vice Chancellor would have power to suspend a teacher and the order of suspension against the respondent would be within the authority of the Vice Chancellor
53D E Statute 24ii iS a statute validly approved by the Chancellor under section 482
54H 2a Section 136 has entrusted the Vice Chancellor with the task of maintaining discipline in the university and the entrustment of this task carried with it by neces sary implication the Vower to take whatever action was necessary for maintaining the discipline
Since section 136 was a new provision it was necessary to make statutes for enabling the Vice Chancellor to discharge the responsibili ty of maintaining the discipline and for that purpose vesting power in him to suspend a teacher pending departmen tal enquiry against him
It was with this object of bring ing the statutes in conformity with section 136 that statute 24ii was added by way of modification in the statutes by the order of December 24 1969
Moreover there is nothing in the 1969 Act which militates against vesting power in the Vice Chancellor to order interim suspension of a teacher
The ChancellOr s view that statute 24ii was necessary to bring it in conformity with section 136 cannot be said to be erroneous
54F G b If statute 24ii is valid the respondent would be bound by it and in that event the order of suspension made by the Vice Chancellor would be within the power conferred on him by that statute
55B c Though the order of suspension did not recite stat ute 24ii it is wellsettled that when an authority makes an order which is otherwise within its competence it cannot fail merely because it purports to be made under a wrong 45 provision of law if it can be shown to be within its power under any other provision a wrong label cannot vitiate an order which is otherwise within the power of the authority to make it
55B C PBalakotaiah vs Union of India  fol lowed
3a It is not correct to say that an order of interim suspension was a quasijudicial order and in any event the language of section 134 is sufficiently wide and comprehensive to take within its scope and ambit every kind of action considered necessary by the Vice Chancellor in an emergency
The order of suspension
made by the Vice Chancellor was plainly an order which he had the power to make under section 134
55F b Section 134 does not talk specifically of an order of interim suspension of a teacher but the width and ampli tude of the language of the provision would clearly include action by way of interim suspension of a teacher when there is in the opinion of the Vice Chancellor an emergency calling for immediate action
55E c The respondent s contention that there was no emer gency which called for immediate action on the part of the Vice Chancellor and therefore the order of suspension could not be justified cannot be entertained by this Court because no such averment had been made in the writ petition
55H 4a The respondent could not complain of any infraction of the provisions of section 521
Since statute 24ii was a statute validly made the Vice Chancellor was entitled to make the order of suspension
The Vice Chancellor could also avail of section 134 for sustaining the order of suspen sion since it conferred the same power on him as section 134 of the 1965 Act and exercise of the power conferred by it as against the respondent did not involve any violation of the provisions of section 521
57D E b Section 521 continued the service of a teacher on the same terms and conditions as regulated his service before the commencement of the 1969Act and that was subject to the provisions of section 522
But this subjection to the provisions of sub section 2 did not import the requirement set out in the proviso that the conditions of service of a teacher shall not be varied to his disadvantage
The words subject to the provisions of sub section 2 in section 521 were intended merely to clarify that a teacher shall contin ue in service on the same terms and conditions but subject to any allocation which may be made by the Chancellor under section 522
Nothing in sub section
1 should be construed as in any way derogating from the power of the Chancellor to make an allocation of the teacher under section 522
The proviso imposed a limitation on the power of the Chancellor to make an allocation by providing that in making such allocation the conditions of service of the employee shall not be varied to his disadvantage and it could not be construed as a substantive provision adding a requirement in sub s1 that even though the terms and conditions of service may permit alteration to the disadvantage of an employee such alteration shall be inhibited
56H 57A c Even if the respondent was entitled to continue in service on the same terms and conditions as before by reason of section 521 these very terms and conditions provided that he would be bound by any changes which might be made in the statutes from time to time
If therefore any changes were made in the terms and conditions of service of the respondent by statutes validity made under the 1969 Act the respondent could not complain of any infraction of the provisions of section 521
57C D 5a The order of suspension suspended the contract between the respondent and the university and neither the respondent was bound to perform his duties under the contract nor was the university bound to pay any salary to him
The respond ent was entitled to receive only such subsistence allowances as might be payable under the rules and regulations govern ing his terms and conditions of service
57G b Where there is power in the employer either by an express term in the contract or by the rules governing the terms and conditions of service to 46 suspend an employee the order of suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the employee is not bound to render service and the employer is not bound to pay
In such a case the employee would not be entitled to receive any payment at all from the employer unless the contract of employment or the rules governing the terms and conditions of service provide for payment of some subsistence allow ance
58H In the instant case the Vice Chancellor had the power to suspend the respondent under statute 24ii and the respond ent could not claim payment of his salary during the period of suspension
P Gindroniya vs State of Madhya Pradesh 1970 3 SCR 448 followed