[WRIT PETITION (CIVIL) 4436/2008] [Page 1 of 26] * IN THE HIGH COURT OF DELHI AT NEW DELHI + WRIT PETITION (CIVIL) 4436/2008 & CM APPL.8566/2008, 9382/2008, 11390/2008 & 731/2009 Reserved on : 6th April, 2009 Date of Decision: 21st May, 2009 PROFESSOR RAMESH CHANDRA ..... Petitioner Through : Mr.R.Venkataramani, Sr.Advocate with Mr.Aljo K.Joseph and Mrs. Neela Gokhale, Advocates. versus THE UNIVERSITY OF DELHI & ANR. ..... Respondents Through : Mr. V.P.Singh, Sr.Advocate with Mr.Mohinder Jit Singh Rupal and Mr.Amar Jyoti Srivastava, Advocates for R-1 & R-2. % CORAM: HON'BLE MR. JUSTICE MADAN B.LOKUR HON'BLE MR. JUSTICE SIDDHARTH MRIDUL 1. Whether reporters of local papers may be allowed to see the judgment? Yes. 2. To be referred to the Reporter or not? Yes. 3. Whether the judgment should be reported in the Digest? Yes. J U D G M E N T SIDDHARTH MRIDUL, J. 1. By way of the present writ petition under Article 226 of the Constitution of India, the petitioner seeks the following reliefs: [WRIT PETITION (CIVIL) 4436/2008] [Page 2 of 26] (a) Issue of a writ of Certiorari or any other writ or direction in the nature of Certiorari quashing the Resolution dated 21st March, 2007 passed by the Executive Council of the University and the Memorandum dated 22nd March, 2007 and all other orders issued in pursuance thereof by the Respondent University; (b) Declare that further charges referred to the Enquiry Officer contained in the Memorandums dated 26th August, 2007 and 16th October, 2007 to be illegal and the conduct of any enquiry in respect of the said charges are vitiated by malice in fact and in law and a writ of mandamus may kindly be issued restraining the holding of such enquiry. (c) Declare that the Petitioner is entitled to carry on his academic research and related activities initiated/supervised by him in his capacity of Director (officiating) ACBR and Professor, Department of Chemistry. 2. The facts as are necessary for the adjudication of the present petition are outlined as follows: a. The University of Delhi, under the auspices of the Ministry of Welfare, Government of India, [WRIT PETITION (CIVIL) 4436/2008] [Page 3 of 26] decided to set up Dr.B.R.Ambedkar Biomedical Research Centre (ACBR). b. The Petitioner, who holds the substantive post of Professor in the Department of Chemistry, University of Delhi, was made the Acting Director of ACBR by way of an additional charge which was communicated to him by the Assistant Registrar (E-NT) of the University vide letter dated 30th May, 1995. c. The Petitioner discharged both his substantive as well as additional duties till 20th September, 1999 on which date he left on deputation to join his new posting as Vice-chancellor of Bundelkhand University, Jhansi, Uttar Pradesh. d. In pursuance thereof, the Registrar, University of Delhi on 20th September, 1999, notified the appointment of Professor Vani Brahmachari as Acting Director of ACBR during the leave period of the Petitioner. It was, however, resolved that the Petitioner would continue to provide academic leadership to ACBR. e. Although the deputation period of the Petitioner was scheduled to expire on 31st July, 2005, he was removed from the post of Vice-Chancellor, Bundelkhand University, Jhansi on 16th July, 2005. [WRIT PETITION (CIVIL) 4436/2008] [Page 4 of 26] f. The Petitioner resumed the duties as Professor, Department of Chemistry, University of Delhi on 18th July, 2005. The Deputy Registrar of ACBR, on the same date, issued a notification to the effect that the Petitioner had fully resumed his charge as Director of ACBR. g. Although the University of Delhi subsequently allowed the Petitioner to resume his substantive duties as Professor in the Department of Chemistry, he was not allowed to join his duties as Acting Director, ACBR. h. By a letter dated 19th July, 2005 addressed by the Registrar, University of Delhi to the Deputy Registrar, ACBR, the University of Delhi questioned the appointment of the Petitioner as Director, ACBR by the Registrar of ACBR. i. Thereafter, by a resolution dated 25th July, 2005, the earlier Notification dated 18th July, 2005 issued by the Deputy Registrar of ACBR to the effect that the Petitioner had fully resumed charge as Acting Director of ACBR, was consequently withdrawn. j. The Executive Council of the University of Delhi, on 17th October, 2005 passed the following three resolutions against the Petitioner: 1. Professor Ramesh Chandra be not allowed to hold any administrative [WRIT PETITION (CIVIL) 4436/2008] [Page 5 of 26] position in Delhi University henceforth. 2. A show cause notice be issued to Professor Ramesh Chandra for - (a) suppressing information with regard to allegations on account of which he was removed from the post of Vice- chancellor of Bundelkhand University at the time of his premature return to Delhi University, and (b) unauthorisedly assuming the office of the Director, Dr.B.R.Ambedkar Centre for Biomedical Research, Delhi University for the period from 18th July, 2005 to 24th July, 2005 in contravention of the statutory provisions of the University; and 3. The decision, if any, taken by at the instance of Professor Ramesh Chandra, while unauthorisedly occupying the post of the Director, Dr.B.R.Ambedkar Centre for Biomedical Research, or thereafter, be treated as null and void. k. Aggrieved by the decision of the Executive Council dated 17th October, 2005, the Petitioner filed a writ petition No.16000/2006. The said [WRIT PETITION (CIVIL) 4436/2008] [Page 6 of 26] writ petition was dismissed by the judgment and order dated 11th April, 2008 passed by the learned Single Bench in writ petition 16000/2006. The said decision dated 11th April, 2008 was impugned by the Petitioner in LPA 229/2008 which was heard simultaneously with the present writ petition and has been decided by an independent judgment and order. l. Vide a resolution dated 21st March, 2007 the Executive Council of the University of Delhi initiated a disciplinary inquiry against the petitioner suspending his services in the meantime. m. The resolution dated 21st March, 2007 was communicated to the petitioner vide a Memorandum dated 22nd March, 2007. n. The resolution of the Executive Council of the University of Delhi dated 21st March, 2007 directing an inquiry against the petitioner and suspending his services in the meantime and the Memorandum dated 22nd March, 2007 declaring the suspension of the petitioner pending the inquiry was, inter alia, challenged by the petitioner in writ petition 2796/2007. o. The said writ petition No. 2796/2007 was dismissed as withdrawn by this Court on the [WRIT PETITION (CIVIL) 4436/2008] [Page 7 of 26] statement of learned counsel for the Petitioner vide order dated 24th September, 2007. p. On 27th August, 2007, the University of Delhi issued a fresh Memorandum to the Petitioner alleging therein that he had caused to be irregularly and unauthorisedly paid an amount of Rs.16,63,264/- by ACBR during the period 1999-2005 and calling upon him to file a reply. q. On 16th October, 2007, the University of Delhi issued another Memorandum to the Petitioner alleging that he was a signatory to subscribe his name to the proposed formation of a society having name Dr.B.R.Ambedkar Centre for Biomedical Research with the description of its office, the existing „ACBR‟ under University of Delhi as its building and calling upon him to give an explanation in this respect. r. The Petitioner is aggrieved by the decision of the Executive Council dated 21st March, 2007 and the Memorandums dated 22nd March, 2007, 26th August, 2007 and 16th October, 2007. 3. Mr.Venkatramani, learned Senior Advocate appearing on behalf of the petitioner, firstly submits that the replies to the Memorandums dated 27th August, 2007 and 16th October, 2007 were never placed before the Executive Council and that, [WRIT PETITION (CIVIL) 4436/2008] [Page 8 of 26] therefore, the said action on the part of the Respondents is unfair and unreasonable. 4. Learned Senior Advocate, next submits that the note purportedly placed before the Executive Council before its impugned resolution of 21st March, 2007 was never actually placed or circulated before the Executive Council. 5. It was further argued by learned Senior Advocate that the removal of the Petitioner was not because of charges of corruption or moral turpitude and that no case of misconduct is made out against the Petitioner. 6. The learned Senior Advocate has lastly submitted that the petitioner acted on the basis of the resolutions of the Governing Body of the ACBR and, therefore, no blame can be attached to the said actions of the Petitioner. 7. Per contra, Mr.V.P.Singh, learned Senior Advocate appearing on behalf of the Respondents submitted that the power to appoint Director rested only in the Executive Council and that the appointment of the Petitioner as Acting Director was made by the Vice-chancellor of the University of Delhi. 8. It was next urged on behalf of the Respondents that the Petitioner had no lien as the post of Director, ACBR was only an acting assignment. It was also urged that as the Petitioner had proceeded to Bundelkhand University as Vice-chancellor, Professor Vani Brahmachari had been appointed as Acting Director vide communication dated 20th September, 1999 and later on Dr.Daman Saluja had been appointed as Acting Director, ACBR with effect from 2006 to replace Professor Vani [WRIT PETITION (CIVIL) 4436/2008] [Page 9 of 26] Brahmachari, and that the Petitioner had not challenged the said appointments made in his place. 9. It was further argued on behalf of the Respondents that no jurisdictional error had been demonstrated while seeking the quashing of the resolution dated 21st March, 2007 and the Memorandums dated 22nd March, 2007, 26th August, 2007 and 16th October, 2007. 10. It was lastly argued on behalf of the University of Delhi that the Petitioner had suppressed in the present writ petition that he had earlier filed Writ Petition (Civil) No.2796/2007 challenging the resolutions dated 21st March, 2007 and Memorandums dated 22nd March, 2007, 26th August, 2007 and 16th October, 2007 and that the said writ petition had been dismissed as withdrawn without liberty on the 24th September, 2007 by this Court. It was, therefore, urged that the Petitioner being guilty of suppression was not entitled to any relief. 11. Before adverting to the rival submissions made on behalf of the parties it is necessary to extract the letters dated 30th May, 1995 and 20th September, 1999, whereby the Petitioner had been appointed as Acting Director of ACBR, and had been replaced by Professor Vani Brahmachari as Acting Director on the petitioner proceeding on deputation to the Bundelkhand University, Jhansi, Uttar Pradesh, respectively: “No.Estab. III/BRAC/95/1936 Delhi, the 30th May, 1995. Dr.Ramesh Chandra, Research Scientist (Professor), [WRIT PETITION (CIVIL) 4436/2008] [Page 10 of 26] Department of Chemistry, University of Delhi, Delhi – 110 007 Dear Sir, I am directed to inform you that the Vice Chancellor has been pleased to decide that you will act as the Director of Dr.B.R.Ambedkar Centre for Bio-medical Research, University of Delhi with immediate effect till regular appointment of a Director is made by the University. Yours faithfully, Assistant Registrar (E-NT) Copy for information to: 1. The Dean, Faculty of Science, University of Delhi, Delhi. 2. The Chairman, Board of Research Studies, Faculty of Science, University of Delhi, Delhi-7. 3. The Head of the Department of Chemistry, University of Delhi, Delhi. 4. The Assistant Registrar, A/CS-I), University of Delhi, Delhi. Assistant Registrar (E-NT) ****** “No.Estab.(T)/V/99/ACCR/35652 Delhi,the 20th September, 1995. NOTIFICATION The Vice-Chancellor has been pleased to appoint Prof.Vani Brahmachari as officiating Director (Hony.) of the Dr.B.R.Ambedkar Centre for Bio-Medical Research during leave period of Prof.Ramesh Chandra, who has joined as Vice- Chancellor of Bundelkhand University, Jhansi. He will however continue to provide academic Leadership. [WRIT PETITION (CIVIL) 4436/2008] [Page 11 of 26] (K.K.PANDA) REGISTRAR Prof.Vani Brahmachari, Dr.B.R.Ambedkar Centre for Biomedical Research, University of Delhi, DELHI – 110 007. Copy to: 1. The Director, University of Delhi, Delhi – 7. 2. The Finance Officer, University of Delhi, Delhi -7. 3. The Joint Finance Officer, University of Delhi, Delhi -7. 4. The Joint Registrar, University of Delhi, Delhi -7. 5. The Director, B.R.Ambedkar Centre for Biomedical Research, University of Delhi, Delhi – 7. 12. Before proceeding further, it would be necessary to consider the referred extracts of the judicial pronouncements relied upon by the parties in support of the respective contentions. Learned counsel for the Petitioner relied on the following judgments: 1. In A.L.Kalra vs. Project and Equipment Corporation of India Ltd (1984) 3 SCC 316 the Supreme Court observed that:- “What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct.” 2. In UOI vs. J.Ahmed (1979) 2 SCC 286, the Supreme Court observed as follows:- [WRIT PETITION (CIVIL) 4436/2008] [Page 12 of 26] “In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik, (1966) 2 SCR 434, in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India, (1967) 2 SCR 566, the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta, (1964) 2 SCR 104, wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness [WRIT PETITION (CIVIL) 4436/2008] [Page 13 of 26] or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railway cabinman signals in a train on the same track where there is a stationary train causing head-on collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life. Misplaced sympathy can be a great evil [see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co-op. Department Stores Ltd. (1978) 19 G.L.R. 108 at 120]. But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.” 3. In Pankaj Bhargav vs. Mohinder Nath (1991) 1 SCC 556, the Supreme Court stated that:- “Suffice it to say that in a collateral challenge the exercise is not the invalidation of a decision, but only to ascertain whether the decision „exists‟ in law at all and to rely upon incidents and effect of its „non- existence‟. The authority of decided cases is to the effect that the permission granted must be presumed to be valid till set aside. Doctrine of collateral challenge will not apply to a decision which is valid ex-hypothesi and which has some presumptive existence, validity and effect in law. Such a decision can be invalidated by the right person in right proceedings brought at the right time. It is only a nullity stemming from lack of inherent jurisdiction or a proceeding that wears the brand of invalidity on its forehead that might afford a defence even against enforcement.” [WRIT PETITION (CIVIL) 4436/2008] [Page 14 of 26] 4. In Gokaraju Rangaraju vs. State of Andhra Pradesh AIR (1981) S.C. 1473, the Supreme Court referred to:- Black on judgments where it is said: “A person may be entitled to his designation although he is not a true and rightful incumbent of the office, yet he is no mere usurper but holds it under colour of lawful authority. And there can be no question that judgments rendered and other acts performed by such a person who is ineligible to a judgeship but who has nevertheless been duly appointed, and who exercises the power and duties of the office is a de facto judge, and his acts are valid until he is properly removed.” 5. In 69 L.Ed.1011, United States vs. Elmo R.Royer it was observed: “To constitute an office de-facto it was not a necessary pre-requisite that there should have been an attempted exercise of competent or prima facie power of appointment or election.” 6. In State of Punjab vs. V.K.Khanna & Ors. AIR (2001) SCC 343, the Supreme Court said:- “…33. While it is true that justifiability of the charges at this stage of initiating a disciplinary proceeding cannot possibly be delved into by any Court pending inquiry but it is equally well settled that in the event there is an element of malice or malafide, motive involved in the matter of issue of a charge-sheet or the concerned authority is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law [WRIT PETITION (CIVIL) 4436/2008] [Page 15 of 26] Courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law Courts ought to rise up to the occasion and the High Court in the contextual facts has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings. 34. The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an Inquiry Officer to substantiate the frame of mind of the authorities and thus depicting bias – What bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindset viz.: the inquiry shall proceed irrespective of the reply – Is it an indication of a free and fair attitude towards the concerned officer? The answer cannot possibly be in the affirmative. It is well settled in Service Jurisprudence that the concerned authority has to apply its mind upon receipt of reply to the charge-sheet or show-cause as the case may be as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative – the inquiry follows but not otherwise it is this part of Service Jurisprudence on which reliance was placed by Mr.Subramaniam and on that score, strongly criticized the conduct of the respondents here and accused them of being biased. We do find some justification in such a [WRIT PETITION (CIVIL) 4436/2008] [Page 16 of 26] criticism upon consideration of the materials on record.” 7. In Delhi Development Authority vs. H.C.Khurana, 1993 (2) SLR, 509 the Supreme Court stated:- “the question now, is: what is the stage, when it can be said, that „a decision has been taken to initiate disciplinary proceedings‟? We have no doubt that the decision to initiate disciplinary proceedings cannot be subsequent to the issuance of a charge-sheet, since issue of the charge-sheet is a consequence of the decision to initiate disciplinary proceedings. Framing the charge- sheet, is the first step taken for holding the inquiry into the allegations, on the decision taken to initiate disciplinary proceedings. The charge-sheet is framed on the basis of the allegations made against the Government Servant; the charge- sheet is then served to him to enable him to give his explanation; if the explanation is satisfactory, the proceedings are closed, otherwise, the enquiry is held into the charges; if the charges are not proved, the proceedings are closed and the Government Servant exonerated; but if the charges are proved, the penalty follows. 13. Mr.V.P.Singh, Sr.Advocate, relied on the following decisions: 1. In M.V. Janardhan Reddy vs. Vijaya Bank and Ors. (2008) 7 SCC 738, where the Supreme Court observed that :- “It is true that the Recovery Officer confirmed the sale in favour of the Petitioner. But as we have already noted, in view of the condition imposed by the Company Court, the [WRIT PETITION (CIVIL) 4436/2008] [Page 17 of 26] Recovery Officer did not have the power to confirm sale. An order passed by an officer having no authority of law has no effect. It neither creates any right in favour of a party for whom such order is made nor imposes any obligation on the opposite party against whom it was passed.” 2. In S.S. & Company vs. Orissa Mining Corporation Ltd. (2008) 5 SCC 772, the Supreme Court stated that :- “33. We are in complete agreement with the view taken by the High Court. As a matter of fact, for rejecting the allegation that the impugned amendment was introduced in Clause 8(i) of the NIT at the instance of the Managing Director, without obtaining prior approval of the Board of Directors we need not even go to the rebuttal- affidavit filed by the Addl. General Manager. The Board of Directors is the apex policy-making body. It may lay down broad guidelines but it is impossible to conceive that all the NITs (over a hundred in number) issued by the Corporation for different purposes every year should come before it for consideration and approval of their respective clauses or any amendment proposed in any clause in any of the NITs. (We fail to see any good reason why the matter should not be finalized by the Managing Director or, depending upon the nature of the contract, even at some lower level). 34. The normal work of any organization or government department would be seriously hampered if every tendering party would claim the right to raise objection that one or the other clause in a NIT or any amendment introduced in any of its clauses did not have the prior sanction of the highest policy-making body of the [WRIT PETITION (CIVIL) 4436/2008] [Page 18 of 26] organization. In this case particularly there is no occasion to go into that question as there is neither any material to suggest, even remotely, that the Managing Director harboured any malice against the Petitioner nor is the Managing Director made a party to this case in his personal capacity.” 3. In Triveni Shankar Saxena vs. State of U.P. and