HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.8327 of 2010 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------- Shri Hemanta Kumar Panda, Advocate, S/o Late Neerada Chandra Panda, AT: Bada Sahi, Gosaninuagaon, Berhampur, Dist: Ganjam … Petitioner -Versus- Commissioner-cum-Secretary to the Chancellor, Berhampur University, Raj Bhawan, New Capital, Bhubaneswar, Dist: Khurda and others … Opp. Parties For Petitioner : M/s. M.Panda & M.S.Panda For Opp. Parties : Mr. S.K.Padhi, Sr. Advocate (for O.P. 5 ) Mr. S.K.Das, Sr. Advocate & Mr.N.N.Mohapatra, S.K.Mohanty and O.N.Devdas ( for O.P. no.1) M/s B.S.Mishra (2), R.Mishra, A.P.Dhirsamanta & A.R.Mishra (for O.P. No.3) Mr. S.Mohanty (for O.P. No.4) ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Hearing: 21.12.2010 : Date of Judgment: 12.05.2011 B.N. MAHAPATRA, J. This writ petition has been filed for a direction to the Central Bureau of Investigation (for short, ‘CBI’) to investigate into the allegations basing upon which various reports have been submitted, i.e., R.C.Behera Inquiry Report (Annexure-2), State Women Commission Enquiry Report dated 16.05.2008 (Annexure-3) on the allegation of women students, State Women Commission Report dated 19.05.2008 (Annexure-4) on the allegation of a lady Professor, complaint dated 10.12.2008 (Annexure-6) of Miss Bhagyalaxmi Pradhan, Enquiry Report dated 19.2.2010 (Annexure-8) submitted by Commissioner-cum-Secretary, Higher Education Department and on daily media diary (Annexure-10). Further, prayer of the petitioner is to direct Special A.G. (Audit) to make audit of the accounts of the Berhampur University. 2. This writ petition in the nature of a Public Interest Litigation has been filed by a practising Advocate claiming himself as a social as well as human activist. According to the petitioner, after passing LL.B. and LL.M. from Berhampur University in 2009 he has registered his name in the same University for Ph.D. in Law. Besides his engagement in legal profession, he is also actively engaged in social and human rights activities and is deeply acting against the corruption, nepotism, favouritism in all governmental works to save the public funds from being siphoned by the corrupted government officials. 3. Petitioner’s case in a nut shell is that Berhampur University has been established in the year 1967 and during last 43 years it has been recognized as a premier University in India. There are twenty-one departments of different disciplines wherein around twelve hundred students are admitted every year. Initially, one hundred fifty teaching staff 2 were appointed, but due to deteriorating condition of the University in various fronts student strength has been reduced to eight hundred and teaching staff have also been reduced to one hundred. Gradual reduction of students as well as strength of teaching staff is solely attributed to rampant malpractices, corruption, irregularities, illegal appointment and promotion of teachers, blatant violation of University Rules and regulations and academic norms. All these have resulted in completely jeopardizing the faith of the people in the standard of education in Berhampur University. The Hon’ble Chancellor, Berhampur University on the request of the State government on several complaints has been pleased to appoint Sri R.C.Behera, the then Revenue Divisional Commissioner, Southern Range to hold an enquiry and furnish a report on the complaints made against Prof. (Dr.) B.K.Sahu (O.P. No.4) and others. Sri R.C.Behera, as enquiry officer, has conducted enquiry into the alleged commission of irregularities and submitted a report to the Hon’ble Chancellor, Berhampur University alleging various illegalities and irregularities like illegal appointment of Dr.B.K.Sahu as Professor of Marine Science, misutilization and misappropriation of funds, fake and fraudulent research conducted by Dr.B.K.Sahu, financial irregularities, manipulation in examination and criminal conspiracy, gross irregularities in the office of the D.O.D., illegal appointment of Dr.Dipak Ranjan Das, Research Associate and multi-crore scam in Marine Science Department along with various recommendations. According to the petitioner, the Hon’ble Chancellor on receipt of the R.C.Behera Enquiry Report vide letter 3 dated 17.08.1999 directed the Vice-Chancellor to place the enquiry report before the Syndicate. Pursuant to such direction of the Hon’ble Chancellor, Syndicate of the Berhampur University considered the enquiry report of Sri R.C.Behera and took action against the officials excluding Prof. Dr.B.K.Sahu (O.P. No.4) because of deep rooted conspiracy and unholy nexus. Dr.B.K.Sahu being a student of Chemistry could become a Professor of Marine Science by gaining favour of different authorities in the process of selection. Dr. B.K.Sahu even managed to become the Vice- Chancellor and has tried his level best to suppress and punish the popular, honest and academically excellent teachers and professors of the University so that he can reign in the University safely without any bottleneck and hindrance with ulterior motive of siphoning out the University funds. Dr.B.K.Sahu used a woman student against a very reputed and popular Professor, who was always a threat to his office and a strong contender for the post of Vice-Chancellor. The said woman student raised a very nasty allegation against the Professor that he misbehaved with her and such allegation was reported in the media by Dr.B.K.Sahu with a motive to demoralize the said Professor. Getting such allegation of misbehaviour in the Press, the then State Women Commission immediately rushed to the University and enquired into the said allegation and submitted an enquiry report to the Governor-Chancellor, Chief Minister and others on 19.05.2008(Annexure-3). Similarly, getting complaint from a lady Professor regarding misbehaviour by Dr.B.K.Sahu to her, the State Women Commission also enquired into the allegation. 4 The said enquiry report reveals that Dr.B.K.Sahu had misbehaved with the Lady Professor Dr.S.B.Padhi for not supporting him. Another woman student Miss Bhagyalaxmi Pradhan has submitted a written complaint on 10.12.2008 to the Hon’ble Chancellor against Dr.B.K.Saho. Several complaints on the allegation of corruption, mismanagement and nepotism etc. against the Vice-Chancellor-Dr.B.K.Sahu were also brought to the notice of the Hon’ble Chancellor. The Hon’ble Chancellor again appointed the Commissioner-cum-Secretary to Government, Higher Education Department as Fact Finding Enquiry Officer vide order No.U-III-7/09/460 dated 08.06.2009 to ascertain the truth of such allegation. Opp. Party No.2 also received hundreds of complaints against the Berhampur University on various allegations. Sri Madhusudan Padhi, Commissioner- cum-Secretary, Higher Education Department conducted an enquiry and submitted his report dated 19.02.2010 to the Hon’ble Chancellor on four issues such as—(a) process of implementation of e-governance project and payments thereof; (b) violation of O.R.V. Act and Rules etc.; (c) Purchase of chairs and other items for the newly constructed Auditorium Hall of the University; (d) fraudulent research on the project on Olive Ridley Turtles funded by Reliance Industries. Finally, petitioner’s prayer is for issuance of a direction for an independent authority like CBI to investigate into the allegation/finding of the R.C.Behera report for recovery of multi-crore funds and suitable action against Dr.B.K.Sahu as well as other officials of the University because they are likely to be unduly influenced by the delinquent Professor Dr.B.K.Sahu (O.P. No.4). 5 4. Mr. M.S. Panda, learned counsel for the petitioner submitted that even though three months have passed after submission of the first report vide Annexure-8, the Hon’ble Chancellor has not taken any action on the same. The Commissioner-cum-Secretary, Higher Education Department after submission of the report has also not taken into consideration the further points of allegation referred to him and concluded his enquiry. Therefore, opp. party No.2 be directed to conduct enquiry on rest of the issues and submit his final report. Because of the conduct of Dr.B.K.Sahu, image of the University has gone down seriously. Almost 50% of the seats are lying vacant for which the University is running under acute financial crisis and students are no more attracted by the academic excellence of the University. Dr. B.K.Sahu is living like a king in the official residence of the University. When all the required facilities of a Vice-Chancellor are available in the said Vice-Chancellor quarters, O.P. No.4 has additionally furnished the said quarter at the expense of the University funds with all luxurious, valuable and selected items of reputed brands which had been provided beyond the budget provision of the University. Mr. Panda further submitted that the issue of maintainability raised by opposite party no.4 is not sustainable as the same has been raised to escape from ultimate action of the enquiry reports. The present P.I.L. is aimed at redressal of genuine public harm and public injury. The allegation of personal grudge or vendetta of PIL petitioner against opp. party no.4 is unfounded, baseless, concocted and 6 imaginary. Since in spite of several approaches and representations, opp. party no.4 the then Vice-Chancellor and other authorities of the University did not publish the result of LL.M. Examination, the petitioner filed C.C. No. 100 of 2007 on 5.6.2007 against the Vice-Chancellor and other University authorities. The name of Smt. Namitarani Panda, wife of the P.I.L. petitioner did not find place in the select list for appointment of guest faculties. The wife of the petitioner and another Sri A. Shamaghana jointly filed Civil Suit No. 264 of 2007 before the Civil Judge (Sr. Division), Berhampur against the Chancellor, Vice-Chancellor, Registrar, Chariman P.G. Council etc. The P.I.L. petitioner does not know as to who is Biranchi Narayana Mohapatra and he has no relation with the said Mohapatra. Therefore, the allegation that there was unholy alliance between them is not correct. The sole aim of the petitioner is to save the public money being siphoned out by the vested interests and corrupt officials of the University. The present P.I.L. being well founded on the basis of the enquiry report, the same is neither vexatious nor frivolous and the same does not amount to abuse of process of law and forum of this Court. In the last Parliamentary Election, opp. party no.4 had campaigned in favour of Chandra Sekhar Sahoo, Ex-Minister of State, Government of India, who happens to be his close relation but when the enquiry was conducted neither the PIL petitioner was contacted by the inquiry officer nor an appropriate inquiry could be conducted due to influence of opposite party No.4. The PIL petitioner being the citizen of India was duty bound to complain before the Chief Election Commission 7 for the sake of free and fair election. Such activities of the petitioner cannot be held as personal dispute between them. Since the Hon’ble Chancellor has directed for taking appropriate action by the Syndicate of Berhampur University on the basis of inquiry report, the allegations are correct. Counteracting the averments made by opposite party no.4 in the counter affidavit, Mr. Panda submitted that the petitioner has no grievance against opposite party No.4 with regard to publication of LL. M. Examination. The case of the petitioner is in no way connected with opposite party no.4, because of some error in LL.M. Examination Certificate certain applications were filed for correction. There are several newspaper publications regarding the irregularities and mismanagement in Berhampur University which justifies the C.B.I. enquiry. 5. Mr. S.K. Das, learned Senior Advocate appearing on behalf of opposite party no.1 submitted that this P.I.L. is not maintainable. If there is any allegation against membership of any authorities or other bodies of the University then the Syndicate is empowered under Section 29 of the University Act to remove such person. 6. Mr. B.S. Mishra, learned counsel appearing for opposite party no.3 –Berhampur University submitted that the writ petition by efflux of time has become infructuous, as Dr. B.K. Sahu against whom almost all the allegations have been raised while he was acting as Vice- Chancellor of the University, is no more in the said post. The Hon’ble Chancellor having dropped Sri R.C. Behera Commission report, there is 8 no need to issue any direction to any authority to enquire about the R.C. Behera report afresh. Mr. Mishra emphatically argued that under Section 23 of the University Act, the accounts of the University shall be audited at least once in a year in accordance with the provisions of Orissa Local Fund Audit Act, 1948. The State Government shall also have power to conduct special audit if required in respect of utilization of funds granted by the Government to the University and such University shall comply with the direction issued by the Government on such audit report. In view of adequate provision for audit of accounts, there is no need to entrust the matter of alleged financial irregularities to C.B.I for enquiry. 7. Mr. R.K. Mohapatra, learned Government Advocate submitted that the writ petition has become infructuous, as Dr. B.K. Sahu against whom all the allegations have been levelled in the writ petition, is no more functioning as Vice-Chancellor of the University. Apart from that, the Government and the Chancellor have already dropped Sri R.C. Behera Commission report. 8. Mr. S. Mohanty, learned counsel appearing for opposite party no.4 raising preliminary objection with regard to maintainability of the writ petition submitted that the petitioner has no locus standi to file the present writ petition. It is submitted that opposite party no.4 worked as Vice-Chancellor of the Berhampur University from 27.7.2007 to 26.7.2010. Presently, he is working as Professor of Marine Sciences (Oceanography) in the Berhampur University. Placing reliance on the decisions of the apex Court in State of Uttaranchal v. Balwant Singh 9 Chaufal (supra), Balco Employees Union v. Union of India, AIR 2002 SC 350, Janata Dal v. H.S. Choudhury, AIR 1993 SC 892, Holicow Picture Pvt. Ltd. v. Prem Chandra Mishra and others, AIR 2008 SC 913, it was submitted that the present writ petition has been filed in the nature of P.I.L. with oblique motive and extraneous consideration and therefore, the same is liable to be dismissed. The petitioner–Hemanta Kumar Panda in the present writ petition and the petitioner-Biranchi Narayan Mohapatra in W.P.(C) No.8602 of 2010 have entered into an unholy alliance. Their sole aim is to see that opposite party no.4 should not continue for the second term as Vice-Chancellor of Berhampur University or any other important position. In a series of newspaper publications they raised a bogy of corruption and misappropriation of funds of the University and made this opposite party no.4 responsible for the same. They also wrote several letters to various authorities including the President of India, Prime Minister of India, Chancellor, Chief Minister and others without any evidence, materials and stale materials which were scrutinized by the judiciary and found to be of no consequence. On the basis of newspaper, reports they filed the writ petitions and gave wide publicity in the print and electronic media and defamed opposite party no.4. Bare perusal of the writ petition would show that the entire averment, prayer and interim prayer are directed against this opposite party. They have succeeded in their game plan. Name of this opposite party was short-listed for the post of Vice Chancellor of Shri Jagannath Sanskrit Vishwavidyalay, Puri, but due to pendency of this litigation, this 10 opposite party could not get the said post. This opposite party also could not get the post of Vice-Chancellor of Berhampur University for the second term in spite of his good performance for which he received a letter of appreciation from the Hon’ble Chancellor (Annexure-C/4). These two petitioners have done incalculable harm to this opposite party by filing frivolous and vexatious petitions and thus have abused the process of law and forum of this Court to settle their personal scores. 9. Mr.Mohanty further submitted that the dispute between the petitioner and this opposite party started with the selection to the post of Guest Lecturer in Lingaraj Law College under the administrative control of Berhampur University. Srimati Namitarani Panda, wife of Sri Hemanta Kumar Panda, petitioner in W.P.(C) No.8327 of 2010 applied for the post of Guest Lecturer in Lingaraj Law College, Berhampur for which interview was conducted on 17.11.2007 by a duly constituted selection Committee and she was not found suitable by the selection Committee. This opposite party was neither the Chairman nor a member of the Selection Committee. As the Vice Chancellor of the University he was the approving authority. Hemanta Kumar Panda approached this opposite party and requested to give appointment to his wife. When this opposite party turned down the request of Sri Panda, thereafter, Sri Panda did not miss any opportunity to embarrass this opposite party. Hemanta Kumar Panda, being an advocate by profession, has joined hands with Sri B.N. Mahapatra, who is a journalist in “Sambad Kalika” and started submitting imaginary stories of corruption and misappropriation of funds of the University in “Sambad 11 Kalika” and other news papers to create the ill-feeling against this opposite party among the local people. 10. Smt. Namitarani Panda, wife of Hemanta Kumar Panda filed C.S. No.264 of 2007 before the Civil Judge (Sr. Division), Berhampur praying for a declaration that the result published vide letter No.168 dated 21.11.2007 is illegal, void and inoperative and for a direction to the defendants (Berhampur University, Vice-Chancellor and others) to conduct fresh interview and restraining the defendants from giving effect to the result published through letter No.168 dated 21.11.2007. In the said suit, she also moved an application for injunction being I.A. No.143 of 2007. By order dated 12.08.2008, learned Civil Judge (Sr. Division), Berhampur was pleased to dismiss the same. 11. Sri Hemanta Kumar Panda lodged a complaint before the Chief Election Officer, Bhubaneswar alleging violation of model code of conduct by this opposite party while holding the office of Vice-Chancellor, Berhampur University. The office of the Hon’ble Chancellor by letter dated 15.04.2009 requested the Vice-Chancellor to furnish an exhaustive report in the matter. The allegation was enquired into and ultimately the same was dropped as it was found to be false. Sri Hemanta Kumar Panda filed a complaint before the District Consumer Disputes Redressal Forum, Ganjam being numbered as C.C. No.100 of 2007 with the allegation that certificate in LL.M. Examination given to him by the University did not bear the signature of this opposite party. This allegation was absolutely false as he himself 12 erased the signature and made complaint before the Consumer Forum, Ganjam to defame this opposite party in the eyes of general public by publishing the same in “Anupam Bharat”, an Odiya daily. Sri Hemanta Kumar Panda lodged a complaint before the Hon’ble Chancellor that this opposite party instructed all the Professors of the P.G. Department (Law), Lecturer of the University Law College not to sign the application form of Sri Panda to act as his guide for Ph.D. work. The complaint was forwarded to the University by the office of the Chancellor for inquiry and appropriate action. Matter was enquired into by the Chairman, P.G. Council, Berhampur University. Staff Council of P.G. Department of Law passed the following resolution: “Resolution to submit that the research being the exclusive prerogative of the faculty and the concerned scholar, there has been no chance for any direction/order from any authority whatsoever; in the current case there has been no pressure from any authority to any of the faculty of the P.G. Department of Law, to enroll or not to enroll any scholar.” Principal of Lingaraj Law College has communicated as follows: “……3. The teachers of Lingaraj Law College at the staff Council meeting held on September 25, 2008 stated that allegations made by Sri Hemanta Kumar Panda were false and baseless. The Hon’ble Vice- Chancellor had never instructed them to harass Sri Hemanta Kumar Panda by refusing to act as his guide/supervisor.” By letter dated 25.09.2008, Berhampur University intimated the Hon’ble Chancellor that the allegations of Sri Panda were false and baseless. Except news paper reports, which are not evidence according to law, as 13 laid down by the Hon’ble Supreme Court and his own appeal/ memorandum to the different authorities/dignitaries which are self serving documents, petitioner has not produced any evidence to substantiate the averments in the writ petition and as such the writ petition is liable to be dismissed at the threshold. 12. According to Mr.Mohanty, the petitioner is not a public spirited citizen. In the writ petition, no document has been annexed to show that the petitioner has done anything any where for upliftment/betterment of poor, downtrodden and needy people of the society. The petitioner has not averred in the writ petition as to who have suffered a legal wrong or a legal injury or as to whose legal right has been violated. In the writ petition, it is not disclosed as to who are socially or economically backward and unable to approach this Court for relief and for them the present petitioner has approached this Court. The allegations regarding manipulations, misappropriations, mal- practices and rampant corruption against opposite party no.4 are incorrect and based on no material. The petitioner is a busy body and his only aim is to defame opposite party no.4. 13. Finding of Sri R.C.Behera in his report with regard to appointment of opposite party no.4 in the post of Prof. Marine Science (Oceanography) of Berhampur University has been set at rest for all time to come by the judgment dated 20.12.1994 passed in O.J.C. No.6954 of 1993 and by judgment dated 18.3.1998 in O.J.C. No. 1425 of 1997 of this Court. The order dated 18.3.1998 passed in O.J.C. No. 1425 of 1997 was 14 challenged in a Special Leave Petition filed by the Vice-Chancellor, Berhampur University which was rejected by the Hon’ble Supreme Court. The finding given in R.C.Behera Inquiry report against this opposite party no.4 with regard to financial irregularities, i.e., misutilisation and misappropriation of funds, fake and fraudulent research by Dr. B.K. Sahu and multi crores scam in Marine Science Department was dropped as the same was not substantiated by the special audit conducted by the Department of Higher Education, Government of Orissa. The State Government after careful consideration rejected the suggestion given in the R.C. Behera Inquiry report. The averments made in paragraphs 9 and 10 of the writ petition are stated to be incorrect and hence denied. The finding of the Chairperson, State Commission for Women is based on no evidence. It is submitted that by virtue of judgment of this Court, which has been confirmed by the Hon’ble Supreme Court, controversy regarding appointment of opposite party no.4 to the post of Professor of Marine Science (Oceanography) of Berhampur University has been set at rest for all time to come. The Chairperson, Orissa State Commission for Women has given the finding without giving liberty of hearing to opposite party no.4. Hon’ble Chancellor was not satisfied with the report of the State Commission for Women and directed opposite party no.4 to submit a report after completion and finalization of departmental inquiry against the delinquent teacher. The allegation that opposite party no.4 misbehaved with Lady Prof. S.B.Padhy is incorrect. This opposite party has never instigated Miss. Pradhan to file a case against the mis-behaviour shown to her by Prof. A.K. Panigrahi at the 15 Police Station. In the report of Mr.M.S. Padhi, Commissioner-cum-Secretary, Higher Education Department, there is no finding with regard to corruption or financial irregularities against opposite party no.4. The delay in promotion of Sri Markand Karji to the post of P.A. to Registrar, Vice- Chancellor was due to the scrutiny of complaints made against Sri Karji. Sri Padhi in his report categorically stated that there has been no manipulation in purchase of Audi-II Chairs for Biju Pattnaik Auditorium of Berhmapur University. 14. Mr.Mohanty further submitted that a bare perusal of the final report based upon fact finding enquiry of Berhampur University dated 31.5.2010 by Sri Padhi would show that there is no finding against opposite party no.4. As per the law laid down by Hon’ble Supreme Court, the newspaper report does not constitute evidence and a petition based on newspaper report without invoking its authenticity should not normally be entertained. Opposite party no.4, as Vice-Chancellor, has availed himself all the facilities permissible under the University guidelines. Controversy which the petitioner has raised in the petitions stands concluded a decade ago by order of Government of Orissa in Higher Education Department, by order of Hon’ble Chancellor and by judgment of the High Court and Hon’ble Supreme Court of India. With these averments Sri Mohanty made a prayer