IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6245 of 2010 DR.RAVI PRAKASH "BABLOO" S/O LATE OM PRAKASH SINHA, R/O SUGHAR CHAPRA, P.S - MANJHI , DISTRICT-SARAN. Versus 1. THE CHANCELLOR, UNIVERSITIES OF BIHAR, RAJ BHAVAN, PATNA. 2. THE JAI PRAKASH UNIVERSITY, CHAPRA THROUGH ITS REGISTRAR. 3. THE VICE CHANCELLOR, JAI PRAKASH UNIVERSITY, CHAPRA . 4. THE REGISTRAR, JAI PRAKASH UNIVERSITY, CHAPRA . 5. SHRI RAM PRAVESH SHARMA, S/O LATE BATESHWAR SINGH, PRESENTLY THE VICE CHANCELLOR J.P. UNIVERSITY, CHAPRA, P.S - MUFASSIL, DISTRICT- SARAN. with CWJC No.6406 of 2010 DR. RAVI PRAKASH 'BABLOO' S/O LATE OM PRAKASH SINHA R/O SUGHAR CHAPRA, P.S.- MANJHI, DISTT.- SARAN Versus 1. THE CHANCELLOR, UNIVERSITIES OF BIHAR RAJ BHAVAN, PATNA 2. THE JAI PRAKASH UNIVERSITY, CHAPRA THROUGH ITS REGISTRAR 3. THE VICE-CHANCELLOR, JAI PRAKASH UNIVERSITY, CHAPRA 4. THE REGISTRAR JAI PRAKASH UNIVERSITY, CHAPRA 5. SHRI RAM PRAVESH SHARMA S/O LATE BATESHWAR SINGH PRESENTLY THE VICE-CHANCELLOR, J.P. UNIVERSITY, CHAPRA, P.S.- MUFASSIL, DISTT.- SARAN ----------- 4/ 14.05.2010 Petitioner in both the writ application is Dr. Ravi Prakash “Babloo”, who is Lecturer in Philosophy in the P.G. Department of Jai Prakash University, Chapra. C.W.J.C. No. 6406 of 2010 was filed by the petitioner for quashing of the Office Order, vide Memo No. 183(R) dated 25.02.2010, issued under the signature of Registrar, J.P. University, Chapra, transferring him from P.G. Department, J.P. University, Chapra to Narayan College, Goreyakothi, Siwan. C.W.J.C. No. 6245 of 2010 has been filed for quashing of the Office Order, vide Memo No. 407(R) dated 27.03.2010, issued under the signature of the Registrar, Jai Prakash University, Chapra, whereby the petitioner has been put under suspension, in exercise of power under Section 10(18) of the Bihar State Universities Act, 1976 2 and Clause 15(IV) of the Statutes. During the pendency of suspension, headquarter of the petitioner has been fixed in the office of the Principal, D.A.V. College, Siwan. Petitioner has also prayed for quashing of the order contained in Letter No. JPU-08/2010-889/GS(I) dated 31.03.2010, issued from the Governor‟s Secretariat, whereby Chancellor‟s approval to the suspension order, has been communicated to the petitioner. Both these orders have been challenged by the petitioner on the ground that they are malicious. The petitioner has alleged mala fide against the present Vice-Chancellor of J.P. University, Chapra, in the background, which relates to appointment of Principals of 20 constituent colleges of J.P. University, Chapra. Applications were invited for the post of Principals in 20 constituent colleges, in the pay scale of Reader, vide Advertisement No. 01/09. The petitioner had also applied for the post. As alleged, appointments were made, adopting large scale irregularities and bungling, persons not eligible for the post were appointed in violation of statutory provisions, on the post of Principals. These appointments were challenged by the petitioner and some other persons by filing C.W.J.C. No. 3828 of 2010. Petitioner‟s case is that a copy of the writ petition was served on the counsel for the Jai Prakash University, Chapra, intimating filing of the writ application. Immediately, thereafter, he was transferred from P.G. Department, J. P. University, Chapra to 3 Narayan College, Goreyakothi, Siwan, by office order dated 25.02.2010. The transfer order communicated to the petitioner indicated that in the academic interest of petitioner, it is being issued, which, in fact is against the academic interest of petitioner as well as the institution. Counsel for the petitioner submits that on being transferred from J.P. University, Chapra to an insignificant college, none of the petitioner‟s academic interest was going to be served. The transfer order was issued by the Vice-Chancellor, taking exception to the petitioner‟s act of filing writ application, challenging appointments of Principal, as such, the impugned transfer order is vindictive in nature. It has also been submitted by the petitioner‟s counsel that a transfer policy, dealing with the transfer of teachers of post-graduate department and the Principal of the colleges had been formulated by the Chancellor of the Universities, vide order dated 22.07.1982. None of the exigencies as mentioned in the letter dated 22.07.1982 exists for issuance of the impugned transfer order. The transfer order is going to be detrimental to the career of the petitioner, as there is no post-graduate teaching in the college level. It is also stated by the petitioner that he is guiding three research scholars for research work to get Ph.D. These research scholars are registered with him after clearing the pre-Ph.D. test. Research fellowship has been awarded to one of the research scholars. In this circumstance, if the transfer order is given effect to the research work of these research scholars, will suffer. In this way, the transfer order 4 cannot be termed to be in academic interest of any individual or in the interest of institution. The petitioner has also assailed the transfer order stating that the Chancellor, vide order bearing No. 2467 GS-I, dated 25.07.2008 has formulated common norms for intra-University transfer of teachers. Clause-4 of said letter provides that work-load of college shall be taken into consideration, while, deciding transfer of teachers but, this has also not been done in the present case. Petitioner was working against duly sanctioned post in the P.G. Department of the university, which was vacant at the time of his posting, as such, his services cannot be treated as surplus. The petitioner being aggrieved by the transfer order, represented before the Chancellor, on 05.03.2010 and again on 15.03.2010. The Chancellor‟s Secretariat vide Memo No. JPU- 08/2010-841 GS (1), stayed the transfer order, but subsequently, vide Letter dated 31.03.2010, addressed to the Vice-Chancellor, stay granted to petitioner‟s transfer order, was vacated. Petitioner‟s case is that since, transfer order dated 25.02.2010 was stayed by the orders of His Excellency, the Chancellor by order dated 25.03.2010, the respondent V.C. Magadh University, issued suspension order dated 27.03.2010. This suspension order was issued in violation of Clause 10 (ii) of the Statutes, which reads:- “ Where a University servant is being proceeded against departmentally on charges of gross-misconduct, bribery, corruption or dereliction of duty, the question of suspension should be considered with 5 reference to the prima facie evidence available against him. If there are good reasons to believe, on the basis of the material available at the time of the initiation of the proceedings, that the University servant has been guilty of gross-misconduct or dereliction of duty or bribery or corruption which, if proved, would lead to his dismissal or removal, he should be placed under suspension. In cases in which such prima facie evidence is lacking at the start, the question of suspension of the University servant may be kept pending till the findings of the enquiring officer are available”. Counsel for the petitioner further submits that the Clause 10(ii) of the Statute is very clear that only such university employees can be put under suspension, who has been departmentally proceeded. Unless, a departmental proceeding is initiated and there is prima facie evidence of serious charges like bribery, corruption and dereliction of duty, which may finally up end in punishment of dismissal or removal, a suspension order can be passed. In the present case, the suspension order was issued on 27.03.2010, in exercise of power under Section 10 (18) of the Bihar State Universities Act, as well as Clause 15(iv) of the Statute. Clause 15(iv) of the statutes deals with the punishment, which can be imposed upon the university employees, only on conclusion of a departmental proceeding. Suspension order issued before initiation of departmental proceeding, under Clause 15(iv) of the Statute amounts to punishment, without enquiry. Since, it has been done by issuing the impugned order of suspension, it is fit to be quashed. The counsel, representing Magadh University, controverting the submission of petitioner, contended that the 6 suspension order was issued in contemplation of the departmental proceeding. The respondents have taken this plea in the counter affidavit, that a corrigendum was issued to the office order dated 27.03.2010, vide Memo No. 428(R) dated 30.03.2010, to the effect that the petitioner shall remain suspended in view of pending disciplinary proceeding against him. Counsel for the petitioner submits that this statement is completely false. There is no document and material to show that the disciplinary proceeding was either initiated or pending against the petitioner, on 27.03.2010 or on 30.03.2010. The corrigendum brought on record, is apparently an act of fabrication of documents, which also proves mala fide on the part of respondents, specially, respondent No. 5. In the counter affidavit filed on behalf of the university, it is stated that a corrigendum to the office order dated 27.03.2010 was issued, on 30.03.2010, whereby the petitioner was put under suspension with immediate effect, on the ground of contemplated departmental proceeding. The order of suspension was also approved by the Chancellor, vide Letter No. 841/GS(1) dated 29.03.2010 and the stay granted to the petitioner‟s transfer was also vacated by the order dated 31.03.2010, thereafter, an order contained in Memo No. 504(R) dated 06.04.2010 was issued, whereby a departmental proceeding has been initiated against the petitioner, the Enquiring and Conducting Officers have been appointed and the charge sheet has also been framed and served to the petitioner. 7 In reply to this, counsel for the petitioner submits the respondents have made an attempt to show that by order dated 06.04.2010 an Enquiring and Presenting Officers have been appointed for the purpose of conducting disciplinary proceeding and charge sheet in Praptra-„Ka‟ has also been framed against the petitioner, which is enclosed to the letter dated 06.04.2010. The charge sheet annexed as Annexure-E/1 to the counter affidavit, bears signature of the Registrar, dated 27.04.2010. By no means, a letter dated 06.04.2010 can refer to a charge framed on 27.04.2010. it is evident that letter dated 06.04.2010 is a fabricated document, which have been anti-dated and issued in order to develop a case before the High Court, to show that suspension order was issued, pending disciplinary proceeding as such well within the statutory provision. In the writ application, the petitioner has alleged mala fide against respondent No. 5, stating that at his instance, the transfer order as well as suspension order was issued, under the signature of the Registrar, only because the petitioner had challenged the illegal appointments of Principals, made by respondent No. 5. In the counter affidavit, there is no clear denial to this fact, rather, the transfer order has been justified, stating that in view of rationalization of the work-load, the petitioner was transferred from P.G. Department, J.P. University, Chapra to Narayan College, Goreyakothi, Siwan. It is stated that the Governor‟s Secretariat had issued a letter, bearing Memo No. 2467 GS-I dated 25.07.2008, 8 whereby Vice-Chancellors of all the Universities of Bihar have been directed to transfer the teachers within the University, under their jurisdiction, considering the work-load and actual requirement of teachers, in order to improve academic atmosphere in colleges. It is also stated that in the department of Philosophy, J.P. University there is no admission in M.A. (Previous) in Session 2009-10, but at Narayan College, Goreyakothi, Siwan, there was no teacher and the department was running in absence of teachers. In the light of Chancellor‟s letter dated 25.07.2008, the petitioner was transferred in the academic interest of the institution and the order communicated by the Registrar through Memo No. 183(R) dated 25.02.2010. Counsel for the petitioner, in reply to this, has submitted that in the name of rationalization, the petitioner could not have been shifted from P.G. Department, J.P. University, chapra to insignificant college. In the P.G. Department even, if, there was no student, the petitioner was working as guide to three research students. In the colleges and the Universities besides teaching, research work is also an important function. On account of petitioner‟s transfer, the research work of the students will hamper and they will suffer a lot. It has been submitted by the petitioner‟s counsel that the transfer order and suspension order are interlinked to filing of the writ applications by the petitioner, challenging bungling and illegality in the appointments by the Vice-Chancellor. On perusal of entire materials, submissions and the statutory provisions, I find substance in the submission of the 9 petitioner‟s counsel so far suspension order is concerned. In the normal circumstance, it is not a punishment but, when, it is issued as a punishment, it requires interference of the Court. In the present case, the documents indicate that when the suspension order was issued, no departmental proceeding has been initiated. Clause 10(ii) of the statute is very specific, that once a departmental proceeding is initiated and prima facie evidence is there, in support of the severe charges, suspension order can be issued. The departmental proceeding is presumed to have been initiated when charges are framed and serve on the delinquent. The Enquiring and Conducting Officers are appointed, head office of the delinquent is fixed and the order is passed regarding payment of subsistence allowance. Unless these formalities are done, it cannot be said that departmental proceeding has been initiated. The suspension order, in the present case, has not been issued subsequent to initiation of departmental proceeding. Statement in the counter affidavit indicates that charges were framed on 06.04.2010, vide a letter singed and issued by Registrar on 27.04.2010. This in itself is unimaginable. The suspension order was issued much earlier on 27.03.2010. The provision under which the suspension order, as indicated, issued in exercise of power under Rule 10 (18) read with Clause 15(iv) to the Statute. A suspension order can be issued under Clause 15(iv) of the Statute, as a punishment, on completion of departmental enquiry. There is no dispute that on the date, the suspension order was issued, the departmental proceeding had not 10 begun, as such, the suspension order issued under Clause 15(iv) of the Statute will deemed to be an order, awarding punishment without enquiry. The respondent authorities have no jurisdiction to issue suspension order in violation of statutory provision as well as in violation of rule of natural Justice. In the facts and circumstances, the suspension order issued against the petitioner is not sustainable and it is quashed. The transfer order issued against the petitioner, though, said to be in academic interest, as per the direction of the Chancellor, regarding rationalization of the work-load but, while issuing this order, academic interest of research scholar has been ignored. There is no denial to this fact in the counter affidavit filed by the respondent university. Counsel appearing for the University giving reference to Rule 10 (xvi) & (xvii) of the Bihar State Universities Act, 1976, has contended that the Vice Chancellor has overall responsibility in maintaining good academic standard and promoting the efficiency and good order of the University. He has power to take disciplinary action against all employees of the colleges/university. No doubt, the Statutory provision is there but only when it is issued, in order to maintain the discipline and academic environment of the university, it is sustainable. Since, the facts of the case do not indicate that transfer order was issued in the academic interest of the petitioner, as mentioned in the transfer order, in the interest of all section of 11 students, the order of transfer dated 25.02.2010 contained in Memo No. 183(R), will remain in abeyance The respondent, Vice Chancellor of J.P. University, Chapra, is directed to review the order of transfer, issued on 25.02.2010. So far departmental proceeding initiated against the petitioner, it shall also remain stayed, subject to final order passed in the transfer order. Both the writ applications are allowed. Sanjeet/ (Mridula Mishra, J.)