IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 451 (SB) of 2001 Old No. 18430 of 1999 Dr. D.S. Bhargava …Petitioner Versus 1. University of Roorkee, district Haridwar, U.P., through its Registrar 2. Vice Chancellor, Roorkee University, Roorkee, district Haridwar, U.P. 3. Registrar, University of Roorkee, Roorkee, district Haridwar …Respondents Shri Pankaj Purohit, learned counsel for the petitioner. Shri Vipul Sharma, learned counsel for the respondents. Dated: December 23, 2009 Coram: Hon’ble Prafulla C. Pant, J. Hon’ble V.K. Bist, J. Hon’ble Prafulla C. Pant, J. (Oral) By means of this petition the petitioner has sought a writ in the nature of certiorari quashing the decision dated 08.02.1999 taken by the Syndicate of the University and consequential order dated 08.03.1999 (copy of which is annexued as Annexure-4 to the writ petition) passed by respondent no. 3. 2. Heard learned counsel for the parties and perused the affidavits on record. 3. Brief facts of the case as narrated in the writ petition are that the petitioner is a reputed scholar who retired as a Professor of Department of Civil Engineering Roorkee University. It has been stated that the petitioner earned various honors in his academic career. Several scholars have completed the research work under the guidance of the petitioner. It is alleged in the writ petition that the respondents created all sorts 2 of obstacles in the functioning of the petitioner as a professor by entertaining frivolous complaints against him. An inquiry was initiated against the petitioner vide decision dated 07.09.1994 taken by the Syndicate of the University. It is alleged that the committee who enquired into the matter did not give any opportunity of hearing to the petitioner. The petitioner was not aware of any report of the committee. It is further stated that the petitioner was awarded the impugned censure entry vide order dated 08.03.1999 without giving him any opportunity of hearing. Hence, this petition. 4. A counter affidavit has been filed on behalf of the respondents in which it has been stated that the University of Roorkee has now been converted into Indian Institute of Technology as per the provisions contained in the Institutes of Technology (Amendment) Act, 2002. It has been stated in the counter affidavit that the petitioner Dr. D.S. Bhargava joined the University as Reader on 03.02.1979. He was promoted as temporary professor on 01.07.1995 and was brought under the cadre of the regular professors. He remained in service of the University till 30th June 1998 on which date he superannuated from the service. It is alleged in the counter affidavit that the petitioner never took interest in the academic activities of the University. He did not cooperate with the Ph.D. Scholars as a guide. It is also alleged that the petitioner did not take interest in teaching the students, and the students made complaints against him. Though the petitioner made guide of several research scholars but he did not guide them well. On the report of Dr. M.P. Dave Committee, which included Professor K.G. Ranga Raju and A.S.R. Rao, a decision was taken by the Syndicate of the University to issue a show cause notice to the petitioner as why he may not be censured for his conduct. It is further stated in the counter affidavit that the petitioner did not offer any reply to the show cause notice, and the impugned decision and orders were passed. 3 5. In the rejoinder affidavit the petitioner has reiterated the averments made in the writ petition. 6. Before further discussions, we think just and proper to quote here the relevant provisions contained in the Regulations of the University. “34.11. The following penalties may, for good and sufficient reasons, and as hereinafter provided, be imposed on any employee; (a) Censure; (b) With holding of increment or promotion; (c) Recovery of the whole or part of any pecuniary loss caused to the University by negligence or breach of orders. (d) Reduction to a lower post or to a lower time scale, or to a lower stage in a time scale. (e) Compulsory retirement before reaching the age of sixty years. (f) Removal from service, which shall not be a disqualification for further employment. (g) Dismissal from service, which shall ordinarily be a disqualification for further employment in the University. 34.12. No order imposing on any employee any of the penalties specified in paras 11 (d) to 11(g) above shall be passed by any authority subordinate to that by which he was appointed. Further, without prejudice to the provisions of the Public Servants Inquiries Act 1850, no such order shall be passed on an employee unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged and which shall be so clear and precise as to give sufficient indication to the charged employee of the facts and circumstances against him. He shall be required, within a reasonable time which shall not be less than 15 days, to put in a “written statement” of his defence and to state whether he desires to be heard in person. If he so 4 desires, or if the competent authority so directs, an oral enquiry shall be held in respect of such of the charges as are not admitted. At this enquiry such oral evidence will be heard as the enquiring officer considers necessary. The person charged shall be entitled to cross examine the witnesses to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the enquiry may, for sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. After the enquiry has been completed, and after the competent authority has arrived at provisional conclusions in regard to the penalty to be imposed, the employee charged shall, if the penalty proposed is dismissal, removal, compulsory retirement, or reduction, be asked to show cause by a particular date, which affords him reasonable time, why the proposed penalty should not be imposed upon him. 34.13 No order imposing on any employee any of the penalties specified in sub- paras (a), (b) and (c) of para 11 above, shall be passed by any authority subordinate to that by which he was appointed and unless the employee concerned has been given an opportunity to make a representation to the appointing authority.” 7. The above provisions contained in para 34.13 makes it clear that for awarding the punishment as mentioned in para 34.11 (a) an opportunity is required to be given to the employee to make the representation. No doubt from the impugned syndicate decision, it appears that show cause notice was issued to the petitioner but it is not clear that whether such show cause notice was ever served on the petitioner or not. Annexure-7 to the counter affidavit shows that show cause notice issued to the petitioner was delivered to one Naresh (peon). In paragraph-22 of counter affidavit it has been stated that the show cause notice dated 07.11.1998 was received by peon of the Civil Engineering Department. Had the petitioner been in service, it could not have been said that the peon of the Civil Engineering Department must have handed over the 5 communication to him but admittedly the petitioner had already retired in June 1998 i.e. five months before the show cause notice was issued. As such, delivering the show cause notice to peon of Civil Engineering Department is of no help until and unless the respondents are able to show that said Naresh (peon) delivered the letter containing the show cause notice to the petitioner. That being so, it cannot be said that the provisions contained in paragraph-34.13 are complied by the authorities. Therefore, the impugned order of censure passed against the petitioner is bad in law. 8. For the reasons as discussed above, this writ petition is allowed. The impugned decision dated 08.02.1999 taken by the Syndicate of the University and the consequential communication dated 08.03.1999 issued by respondent no. 3 are hereby quashed. It is observed that the petitioner, if he so likes, may make a representation within a period of one month from today to the authorities concerned, and thereafter whether the representation is made or not, the authorities concerned within a period of further one month, may pass fresh orders in the matter. (V.K. Bist, J.) (Prafulla C. Pant, J.) VKG 23.12.2009