IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7536 of 1999 ====================================================== Parsuram Upadhaya, son of late Pandit Sheetal Updhyaya, at present residing in P.R.D.A. Qr. No. 23/179, Road No. 12, Rajendra Nagar, P.S. Kadamkuan, Dist. Patna. .... .... Petitioner/s Versus 1. The State of Bihar through the Commissioner-cum-Secretary, Higher Education, Human Resources Department, Government of Bihar, Patna. 2. The Dy. Secretary, Human Resources Department, Government of Bihar, Patna. 3. The Chancellor, Universities of Bihar, Raj Bhawan, Bihar, Patna. 4. The O.S.D. to Governor, Raj Bhawan, Patna. 5. The Kameshwar Singh Darbhanga Sanskrit University through its Registrar, Darbhanga. 6. The Vice Chancellor, Kameshwar Singh Darbhanga University, Darbhanga. 7. The Registrar, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga. 8. The Patna University through its Registrar, Patna. 9. The Registrar, Patna University, Patna. .... .... Respondent/s ====================================================== Appearance : For the Petitioner :- Mr. Gyanand Roy, Adv. For the Respondent No. 5 to 8 :- Mr. Harendra Prasad Singh, Adv. For the Patna University :- Mr. Ajay Kumar Sinha, Adv. For the State :- Mr. M.K. Pathak, AC to GA-4 Mr. A.K. Prasad, AC to GA-4 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL JUDGMENT 29-08-2011 Heard Mr. Gyanand Roy, learned counsel for the petitioner, Mr. Harendra Prasad Sigh, learned counsel for the Kameshwar Singh Darbhanga Sanskrit University and Mr. Ajay Kumar Sinha, learned counsel for the Patna University as also Mr. M.K. Pathak, learned A.C. to G.A.-4 for the State. 2. The prayer of the petitioner in this writ application reads as follows:- “2(I) For quashing the order of the Chancellor 2 Universities of Bihar dated 9.5.97, communicated vide No. 1541 dated 13.5.97 under the signature of O.S.D. to Governor, contained in Annexure-1. II. For quashing the order contained in No. 716 dated 15.7.99 issued under the signature of Dy. Secretary to Govt. of Bihar, as contained in Annexure 1/1. III. For commanding the respondent-Patna University and its authorities to fix pension of the petitioner and further to make payment of arrears as well as current payment of arrears as well as current pension and other retirement benefits such as gratuity, provident fund amount etc. IV. For commanding the respondents-Kameshwar Singh Darbhanga Sanskrit University and its authorities to make payment of arrears of salary for the month of December, 1994 to 10.1.95 as Vice-Chancellor of the University; and further to make payment of Medical Leave, earned leave, Patna residence telephone bills for the last two months before his retirement and provident fund amount deducted from the salary of the petitioner as vice-Chancellor of the University.” 3. The facts giving rise to this writ application lie in a very narrow compass. The petitioner, while holding the substantive post of Professor in the Department of Sanskrit of Patna University, was appointed as Vice Chancellor of the Kameshwar Singh Darbhanga Sanskrit University, Darbhanga (hereinafter to be referred to as ‘the University’) vide notification dated 10.1.1992 for a fixed term and period of three years from the 3 date of assuming charge of the office of the Vice Chancellor and the petitioner had assumed charge of the post of Vice Chancellor of the University on 11.1.1992. While the petitioner was still holding the post of Vice Chancellor, he attained the age of retirement on the post of Professor in Patna University on 31.1.1994 but had still continued to hold the post of Vice Chancellor of the University. It is said that the petitioner, while functioning as Vice Chancellor of the University, was subjected to certain allegations for which the Chancellor, vide his letter dated 13.12.1994, had constituted a fact finding enquiry and subsequently on 5.1.1995, a Memorandum of Charge along with Articles of Charge was served on him. 4. From perusal of the Memorandum of Charge, it would appear that there were as many as twelve articles of charge, which reads as follows:- Article of charge Article-I That the said Sri Parsuram Upadhyay, vice chancellor, K.S.D. Sanskrit University, Darbhanga, while functioning as Vice Chancellor during the period of January 1992 to January 1985 placed orders for the supply and the printing of four lakhs one thousand certificates for award of degree to students, in favour of Sri Biharilal Agarwal of 24 Parganas, West Bengal in the month of November 1994, which exceeded three times of the requirements at the rate of Rs. 3.10 per certificate on a total price of Rupees Twelve lakhs, without 4 calling for any Tender as mandated under Bihar Financial Rules and caused an advance of Rupees Four Lakhs to be paid in favour of the said dealer on 4.10.1994 with undue supplier, in violation of the provisions of the Financial Rules, in pursuance whereof no certificate has been supplied as yet, the date of supply whereof has been fixed as 5.1.1995 and Sri Parsuram Upadhyay, vice-Chancellor, K.S. Sanskrit University whose term in office expires on 9th January 1995, thus acted in undue haste for illegal gain, amounting to gross misconduct and misbehavior, as also misappropriation of University funds, unbecoming of the conduct of the office of the Vice-Chancellor. Article-II That during the aforesaid period and while functioning in the aforesaid office, the said Sri Parsuram Upadhyay in order to achieve illegal gain disbursed heavy amount in excess of requirement in the name of conduct of examination which was as follows:- Year Conduct of Examination Evaluation and Tabulation 1. 1991-92 - Rs. 1,37,150/- Rs. 4,50,000/- 2. 1992-93 - Rs. 73,100/- Rs. 2,79,000/- 3. 1993-94 - Rs. 80,000/- Rs. 1,84,000/- Thus Sri Upadhyay committed misconduct and dereliction of duty, unbecoming of the conduct of the office of the Vice chancellor. Article-III That during the aforesaid period and while functioning in the aforesaid office, Sri Parsuram Upadhyay gave undue favour to his casteman and relation, Sri Sripati Tripathi, Law-Incharge who has been paid Rs. 34,109/- as Traveling allowance from April 1993 to February 1994 and Rs. 34,580/- was paid towards his telephone from December 1992 to November 1993, as also by giving undue promotion to Sri Sripati 5 Tripathi to the rank of Reader, for which he was not eligible and by appointing him Member or Director in 10 out of 29 Enquiring Committees and making payment in his favour as advance for the conduct of Shastri and Upshastri Examination of an amount of Rs. 2,52,000/- and Rs. 2,05,085/- respectively. Sri Upadhyay has thus committed misconduct and misappropriation of funds, unbecoming of his office. Article-IV That during the aforesaid period while functioning in the aforesaid office, Sri Parsuram Upadhyay received Haltage of minimum 12 days and maximum 25 days for his stay at Patna on false pretext of official work at Patna leaving the headquarters without prior permission or information of the Chancellor and stayed at his residence while charging T.A. and D.A. Sri Parsuram Upadhyay has thus committed misbehavior and misconduct and misappropriation of University funds, unbecoming of his office. Article-V That the said Sri Parsuram Upadhyay while functioning as Vice chancellor during the aforesaid period made unjustified unreasonable and disproportionate expenditure of Rs. 1,72,851/- towards maintenance of car kept at his residence for personal use and thus committed misappropriation of University funds, unbecoming of the conduct of the office of the Vice-Chancellor. Article-VI That the said Sri Parsuram Upadhyay during the aforesaid period caused an expenditure of Rs. 1,94,158/- to be made for the printing of 38,000 copies of University almanac (Viswavidyalaya Panchanga) through the firm, namely, Mukter Mudranalaya Varanasi in 1993-94 and also for the printing of 24,825 copies of almanac on payment of Rs. 1,00,422/- to the aforesaid firm without calling for any Tender in violation of Financial Rules and by entrusting the work with 6 the same Firm in each year for wrongful gain for himself and wrongful loss to the University thus committing an act unbecoming of the conduct of the office of the Vice Chancellor. Article-VII That the said Sri Parsuram Upadhyay while functioning as Vice Chancellor during the aforesaid period caused the Answer Books for 1993 University Examinations printed by Firm „Gopinath Badrinath‟ of Patna City without calling for any Tender and caused payment of an amount of Rs. 89,900/- made by cheque No. 752050 dated 16.7.93 for the supply of answer books in two installments in violation of the Financial Rules of calling for tender in such cases and thus committed wrongful loss for University for wrongful gain for himself as also misconduct and misbehavior unbecoming of the office of the Vice-Chancellor. Article-VIII That the said Parsuram Upadhyay, Vice Chancellor during the aforesaid period caused illegal payment of an amount of Rs. 2,54,668/- to be made to Indian Distributors, Patna without returning the unutilized books which were of no use and payment of which had not been sanctioned by the previous Vice Chancellor, for illegal and wrongful gain, in violation of the recommendation of the Library Committee, thus committing misconduct, unbecoming of the office of the Vice Chancellor. Article-IX That the said Sri Parsuram Upadhyay, Vice Chancellor caused illegal gain to be made from the income of the immovable property of Abadh Bihari Sanskrit Mahavidyalay Rabinpur and Sanskrit Mahavidyalaya Taraipali as also Nimbark Krishna Madhav Sanskrit Mahavidyalaya Dhanapith Kaobikram and suppressed the record to conceal and income for the purpose of causing wrongful loss to the University, thus 7 committing misbehavior, unbecoming of the conduct of the office of the Vice Chancellor. Article-X That the said Sri Parsuram Upadhyay, Vice Chancellor during the aforesaid period committed dereliction of duty in failing to preserve in proper manner the manuscripts and Museum of the K.S.D. Sanskrit University with the result that many a valuable manuscripts, relics of the post and valuable heritage of our culture have either been damaged or pilfered, thus committing misbehavior, unbecoming of the conduct of the office of the Vice Chancellor and also convert wrongful gain for himself and wrongful loss to the University. Article-XI That the said Sri Parsuram Upadhyay, Vice Chancellor during the aforesaid period made a number of illegal appointments in violation of section 35 Bihar State Universities Act for illegal and wrongful gain for himself and wrongful loss of the University committing misconduct, unbecoming of the office of the Vice Chancellor. Article-XII That Sri Parsuram Upadhyay, Vice Chancellor, K.S.D. Sanskrit University, Darbhanga made payment to the Profesor Incharge of the Brahmdeo Muni Udasin Sanskrit Mahavidalaya, Hazipur, Vaishali despite the direct in of the Chancellor to the contrary staying the order of payment vide letter of the Governor‟s Secretariat No. 92/OSD dated 6.9.94, thus violating the directive of the Chancellor in the interest of the University which is unbecoming of the conduct of the office of the Vice Chancellor.” 5. The petitioner, thereafter, had filed his written statement of defence on 15.2.1995 denying all the charges articlewise alongwith a detail of his performance and achievement 8 during his tenure as Vice Chancellor. It appears that the petitioner had completed the period of three years of his term of Vice Chancellor on 11.1.1995 whereafter he had filed his written statement of defence on 15.2.1995 denying all the charges. The Chancellor by his communication dated 16.10.1995, on consideration of the original Article of Charge and reply of the petitioner dated 15.2.1995, had modified the Article of Charge, which reads as follows:- “ARTICLES OF CHARGES Article-1. That Shri P. Upadhyaya, during his tenure as Vice- Chancellor K.S.D. Sanskrit University placed orders for printing 4,01,000 certificates which was not commensurate with the requirement. In his reply he failed to furnish adequate justification for not inviting tenders without assessing the requirement. The order was placed in favour of Shri Biharilal Agrawal of 24 Parganas, West Bengal in undue haste for illegal gain amounting to gross misconduct and misbehavior unbecoming of the conduct of the office of the Vice-Chancellor and his conduct as such caused pecuniary loss to the University and State Government. Article-2. That Shri Upadhyaya, during his tenure as Vice- Chancellor gave undue favour to his caste man and relation Sri Sripati Tripathi, Law Incharge, who worked as Law Incharge from 19.4.1988 to 15.1.1989 and Special Officer Incharge of Legal Section from 8.9.1990. Huge amounts were paid to Shri Tripathi as Travelling allowance for his visits mostly at Patna on the pretence that the visits were for discharging of official duties of the University. Shri Tripathi was given undue promotin to the rankof Reader from 1.1.1988 for which he was not eligible ashe had 9 not completed 8 years of service as Lecturer on that date. The actin of Shri Upadhyaya in appointing Shri Sridhar Tripathi, Director, Mithila Sodh Sangsthan, a caasteman and relation of Shri Upadhyaya as Member or Director in 10 out of 29 Enquiry Committees was not justified. The payment of advance in favour of shri Sripathi Tripathi of an amount of Rs. 2,50,000/- for conduct of Shashtri, Up-Shashtri Examination also caused pecuniary loss to the University as well as the Governmen Shri Upadhyaya thus committed gross-misconduct and pecuniary loss to the University as well as the Government. Charge No.3. That during the tenure of Shri Parsuram Upadhyay as Vice-chancellor of K.S.D. Sanskrit University, Shri Parsuram Upadhyaya used to stay at Patna for long period without official work for a minimum period of 12 days and for a maximum period of 25 days in a month without obtaining prior permission from the Chancellor at his residence, while charging traveling allowances and other allowances. Shri Upadhyaya thus committed gross-misconduct as also pecuniary loss to the University and the Government. Article-4 That Shri Parsuram Upadhyaya during the aforesaid period assigned the work of publication of the Vishwavidyalaya Panchang without inviting proper quotations. Thus, Sri Upadhyaya ignored the normal procedure and acted arbitrarily for wrongful gain. Thus he committed gross mis-conduct unbecoming of the office of the Vice-chancellor. Article-5 That the said Shri Parsuram Upadhyaya while functioning as Vice-Chancellor during the aforesaid period caused the Answer Books of University examinations of 1990- 93 printed from a particular supplier „Gopinath Badrinath‟ of Patna City without inviting quotations. Shri Upadhyaya thus committed gross mis-conduct misbehavior unbecoming of the office of the Vice-Chancellor. 10 Article-6 That the said Shri Parsuram Upadhyaya during his tenure as Vice-Chancellor caused illegal payment of an amount of Rs. 2,54,668/- to be made to Indian Distributors, Patna for the books which were unutilized and were of no use and payments of which have not been sanctioned by his predecessor. Although the file in which his predecessor‟s order for not making payment has been put up to him, he ordered the payment of rejected books without consulting the Finance Adviser. Article-7 That the said Shri Parsuram Upadhyaya made illegal and arbitrary appointments of 37 persons through his Memo issued to the Registrar during the period 17.9.1994 to 20.12.1994. Besides that Shri Upadhyaya appointed one Dr. Devendra Prasad Sinha as the Project Officer in the scale of Rs. 2200-4000/- for which he was not competent. He also made illegal appointment of one Thakur Birendra Kishore Singh, retired Executive Engineer, P.H.E.D. on monthly honorarium of Rs. 2000/-. All these appointments were made in violation of Section 35 Bihar State Universities Act by Shri Parshuram Upadhyaya rendering himself liable for recoveries as public demand under the provisions of Public Demand Recovery Act with regard to such illegal appointments. Thus Sri Upadhyaya has committed gross mis-conduct unbecoming of the office of the Vice-Chancellor, also causing pecuniary loss to the University and the Government. Article-8 That Shri Parshuram Upadhyaya during his tenure as Vice-Chancellor, K.S.D. Sanskrit University, Darbhanga made payment of pay and allowances to Shri Bashisht Narain Tripathi, Prof. Incharge of Brahmdeo Muni Udasin Sanskrit Mahavidyalaya, Hajipur, violating the directives of the Chancellor staying the order of payment vide Governor‟s Secretariat letter No. 92/OSD dated 6.9.1994 which had been received by the Vice Chancellor, Sri Parshuram Upadhyaya. 11 Despite the aforesaid directions, the payment was continued to be made and no care was taken to stop the payment in utter violation of the directive of the Chancellor. Thus, Sri Parshuram Upadhyaya has committed gross misconduct unbecoming of the office of the Vice-Chancellor.” 6. In the accompanying memorandum dated 16.10.1995, it was also made clear to the petitioner that the enquiry against the petitioner, in terms of Clause 30 of the Retirement Statutes read with Rule 43B of the Bihar Pension Rules, was to be conducted for which Sri Lalu Prasad Singh, a retired District and Sessions Judge, was appointed as Enquiry Officer. The documents on the basis of which the revised Article of Charge was to be proved were also enumerated in the same Memorandum reading as follows:- “1(a) List of number of students during the period of 1981 to 1984 gathered from the Tabulation Register-. (b) Copy of the concerned file for printing certificates. 2. T.A. Bills of Shri Sripati Tripathi for the period from April, 1993 to February, 1994. 3. T.A. Bills of Dr. Parshuram Upadhyaya during his tenure as Vice Chancellor, K.S.D. Sanskrit University, Darbhanga. 4. Concerned file regarding printing of Vishwavidyalaya Panchang. 5. Concerned file regarding the publication of Answer Book. 6. Concerned file regarding purchase of books for the Library. 12 7. Orders issued by the Vice chancellor regarding appointment of Class III & IV staff. 8. Concerned file regarding payment of salary to the teachers of Brahamdeomuni Udasin Sanskrit College, Hajipur.” 7. The petitioner claims that followed by the aforementioned Memorandum, he had submitted an application to the Enquiry Officer for extension of time for filing his revised statement of defence and on such an application, the date of enquiry was extended initially up to 16.11.1995 and thereafter till 7.12.1995. The petitioner is said to have, thereafter, submitted his show-cause reply on 7.12.1995 to the revised Article of Charge, whereafter, an enquiry was conducted on 7.12.1995, 18.12.1995, 26.12.1995, 27.12.1995, 10.1.1996, 12.1.1996, 16.1.1996, 17.1.1996, 29.1.1996, 30.1.1996, 31.1.1996, 8.2.1996, 9.2.1996, 15.2.1996, 29.2.1996, 8.3.1996, 9.3.1996 and 19.3.1996. 8. After the Enquiry Officer had submitted his enquiry report, the petitioner was also given an opportunity to submit his comments/reaction to the findings recorded in the enquiry report vide letter of the Chancellor’s Secretariat dated 2.5.1996, whereafter, the petitioner had also been granted additional time to file his show-cause reply up to 25.7.1996 and when the petitioner had filed his comments/reaction by way of reply to the enquiry report, he was given another show-cause 13 notice dated 31.10.1996 and 1.11.1996 by which he was called upon to submit the reply to the second show-cause notice within a period of fifteen days and the petitioner had also submitted his show-cause reply on 9.1.1997 and only then the impugned order dated 9.5.1997 was passed withholding the half of the amount of his pension and gratuity as also recovery of a sum of Rs. 2,85,383/- from the petitioner. 9. It is this order of punishment which has been assailed in this writ application with consequential relief already quoted above in the earlier portion of this judgment. 10. Mr. Roy, learned counsel for the petitioner at the outset would submit that the petitioner was a Professor of Patna University who had been given assignment on the post of Vice Chancellor and as such, when his services in the Patna University itself came to an end on 31.1.1994 and even the term of the post of Vice Chancellor was completed by him on 11.1.1995, the Chancellor had no jurisdiction to initiate a proceeding against him much less pass an order of punishment of either withholding his pension up to 50% permanently or making recovery from his due payable amount. 11. It has to be noted that none has appeared for the office of the Chancellor but the counsel appearing on behalf of the 14 University and Patna University have supported the impugned order by explaining that the petitioner was a working employee of Patna University, when he was appointed on the post of Vice Chancellor and, therefore, when the Chancellor was also empowered to take any action against any teaching personnel of Patna University even after his retirement, it would be immaterial as to whether the said period of misconduct of the petitioner related to some performance of his working was beyond the precinct of Patna University. In this regard, Mr. Ajay Kumar Sinha, learned counsel for the Patna University, has explained that the appointment of the petitioner on the post of Vice Chancellor was byway of continuation in service in Patna University, inasmuch as, the petitioner was granted leave from the Patna University for taking an assignment on the post of Vice Chancellor in the Sanskrit University. He would, accordingly, submit that the petitioner still remained under the disciplinary control of the Patna University for which the Chancellor happens to be the highest functionary and, therefore, he was fully justified in initiating action against the petitioner, specially when very serious charge in relation to his performance of functioning of the period of Vice Chancellor in Sanskrit University had come to the notice of the Chancellor. 15 12. In the considered opinion of this court, the petitioner, being an employee of the Patna University and having retained his lien on the date of his appointment as Vice Chancellor in the Sanskrit University, cannot be heard to say that he was beyond the disciplinary control of the Chancellor only on account of his being assigned the post of Vice Chancellor in Sanskrit University. 13. The matter can be in fact viewed from another angle, inasmuch as, it is not in doubt that for any University servant for which there is no specific provision contained in the retirement statutes, the provision made in Bihar Pension Rules is applicable. Bihar Pension rules under Article 43A clearly contemplates that even future conduct of pensionary would be a guiding factor for deciding the reduction/withholding of pension. Here in this case, the petitioner, while functioning on the post of Vice Chancellor in the Sanskrit University, was said to have committed several irregularities and some of them having serious financial repercussion. 14. In that view of the matter, this Court would find no merit in the first contention of Mr. Roy that the Chancellor had no jurisdiction to initiate an enquiry against the petitioner. 15. Mr. Roy had then submitted that the Chancellor 16 had no jurisdiction to appoint an Enquiry Officer, who was not an officer of the Patna University or Sanskrit University and that since Lalu Prasad Singh was a retired District and Sessions Judge, his service could not have been availed as an Enquiry Officer. The aforesaid submission is also bereft of any merit, inasmuch as, from the power vested in the Chancellor under Section 9(2) & (3) of the Bihar University Act, 1976 which again para material to Section 10(2) and (3) of the Patna University Act, it would be clear that the Chancellor has not only power to inspect the University but also to direct for enquiry and to that extent, Section 9(2) and (3) being relevant are quoted herein below:- “9(2) The Chancellor shall have the powers to inspect the University, its buildings, laboratories, workshops and equipment, any college or hostel, the teaching or examination conducted, or any act done by the University, and to get such inspection done by such person or persons who may be directed by him and to inquire or to cause any inquiry made, in like manner, in respect of any matter connected with the University and it shall be the duty of the officers of the concerned University and College to render necessary assistance in such inspection: Provided that the Chancellor shall, in every case, inform the Vice Chancellor of his intention to inspect or inquire or to get inspection or inquiry conducted and the University shall be entitled to representation therein. 17 3.(a) The Chancellor may send the results of such inspection or inquiry to the Vice-Chancellor and the Vice-Chancellor shall communicate the views of the Chancellor to the Syndicate and the Academic Council. (b) The Syndicate and the Academic Council shall report to the Chancellor within the specified period, such action, if any as has been taken or is proposed to be taken upon the results of such inspection