OMP No. 267/2006 Dr. Ram Avtar Sharma v. Maharaja Agrasen College Page 1 of 35 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: 22.7.2009 Date of Order: 4th September, 2009 OMP No. 267/2006 % 04.09.2009 Dr. Ram Avtar Sharma ... Petitioner Through: Mr. Prem Kumar, Advocate Versus Maharaja Agrasen College ... Respondent Through: Mr. Raman Kapur, Advocate Mr. Munish Kumar & Mr. Amit Kumar, Advs. JUSTICE SHIV NARAYAN DHINGRA 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 judgment should be reported in Digest? Yes. JUDGMENT By this petition under Section 34 of the Arbitration & Conciliation Act, 1996 the petitioner has assailed an award dated 21st April, 2006 passed by an Appeal Committee, constituted by the Vice President of India acting in his capacity as Chancellor, Delhi University under Ordinance XII Clause 9(i) University Calendar. The Appeal Committee consisted of three members. 2. Brief facts relevant for the purpose of deciding this petition are that the petitioner was working as Principal of Maharaja Agrasen College, Delhi. The Governing Body found various irregularities and misconducts having been done by the OMP No. 267/2006 Dr. Ram Avtar Sharma v. Maharaja Agrasen College Page 2 of 35 Principal/Petitioner and he was given a charge-sheet of 23 charges. Inquiry was initiated against the petitioner. The Inquiry was assigned to a retired Judge of High Court of Delhi. The Inquiry Report submitted by the retired Judge held that 22 out of 23 charges against the petitioner were not proved. 23rd charge had various sub-heads consisting of 177 charges. The Presenting Officer of College pressed only 69 charges. Of these 69 charges, the Enquiry Officer gave a finding that 28 charges were not proved and of the remaining 41 charges, the Enquiry Officer found as under:  17 charges were found proved to the extent that Open Tender Inquiry was essential to make those purchases referred to in these charges or to have the civil works executed, as referred to in these charges – but they were not advertised. In fact, with respect to Charge 3.5.4, it is noted that there was no open tender inquiry and also the limited quotations called were only a showpiece.  9 cases were found proved to the extent that the purchases were made or civil works ordered, without calling for any quotation whatsoever.  In 15 cases of purchases / orders for civil works quotations were called – but not at all considered. Purchase was made or civil work was got done even before the quotations were opened for consideration. The Inquiry Authority observed that “Quotations were introduced as a showpiece or hoax as a cover up”. 3. The Inquiry Officer proposed a penalty of removal/dismissal of the petitioner from the service and the petitioner was removed from service. The petitioner assailed his removal from service by the Management Committee on the basis of Inquiry Report. Under Ordinance XII of University Calendar an Appeal Committee was constituted by the Chancellor. Before the Appeal Committee, the petitioner had taken almost the same stand which the petitioner had taken before this Court for challenging the award of the Appeal Committee. The Appeal Committee after considering various contentions of the petitioner at length had come to the conclusion that the charges OMP No. 267/2006 Dr. Ram Avtar Sharma v. Maharaja Agrasen College Page 3 of 35 against the petitioner in case of 41 sub heads were rightly held „proved‟ on the basis of evidence and material before the Inquiry Officer and the punishment awarded was in consonance with the conduct of the petitioner. 4. The petitioner has assailed the award of the Appeal Committee on following grounds: i) The Inquiry was vitiated since it was not made clear to the petitioner as to under which Rule/Ordinance enquiry was being conducted and action proposed was to be taken. Thus, there was violation of rules of natural justice. ii) The petitioner was not made clear whether CCS (CCA) Conduct Rules applied to the petitioner or not. iii) The charges framed against the petitioner were vague in nature and did not contain necessary material particulars with the result that the petitioner did not know what charges he had to meet. iv) The case proved against the petitioner during Inquiry was of procedural irregularities and not of illegalities therefore, major penalty of removal of service was not desirable and only a minor penalty could have been given to the petitioner. v) The Inquiry Report as accepted by the Governing Body show that college had not been put to any loss on account of purchases made under the charge- sheet and there was no mala fide proved on the part of the petitioner. The quality of material procured was not found to be inferior or excess of the OMP No. 267/2006 Dr. Ram Avtar Sharma v. Maharaja Agrasen College Page 4 of 35 actual requirement. Thus, the acts of the petitioner were bona fide and in the overall interest of the college. Removal of petitioner from the post of Principal on the basis of Inquiry Report was unwarranted. vi) Fact Finding Committee Report, a basis of initiating Inquiry, was not supplied to the petitioner. vii) It was the function of Purchase Committee to observe due procedure in the purchases to be made for the college. The petitioner being Principal could not be held solely responsible for the acts and deeds of the Purchase Committee. It is the members of the Purchase Committee who should have made their conduct clear rather than the petitioner. viii) It was the Purchase Committee who was to issue “Urgency Certificate” and not the Principal as is the conclusion arrived at by the Inquiry Officer and the Appeal Committee. ix) There was no charge framed against the petitioner of having committed financial irregularity therefore, the petitioner cannot be said to have committed any misconduct. x) The Inquiry Report despite holding of 41 sub charges proved under Charge No.3, against the petitioner, did not say that the petitioner had violated the provisions of General Financial Rules. xi) Charge No.3 as framed against the petitioner was very vague and silent as to which rules, procedures and regulations prevalent in University of Delhi were OMP No. 267/2006 Dr. Ram Avtar Sharma v. Maharaja Agrasen College Page 5 of 35 violated by the petitioner. There was no mention of General Financial Rules in Charge No.3, the Inquiry Authority therefore could not return a finding under sub-heads of Charge no.3 of 41 charges having been proved. xii) There were many defects and anomalies in the Charges regarding amounts, dates and parties and there was no co-relation between the charges and documents supplied. The Inquiry was therefore vitiated for vagueness of charges. The Appeal Committee ignored the fact that the charge-sheet was defective. The Appeal Committee failed to consider the defects in the charge-sheet and rather skirted the issue by placing the burden on petitioner to show if such defects had led to any prejudice or wrong proving of charges. xiii) The Appeal Committee ignored the fact that Ordinance XII of the University Calendar was not applicable in case of the petitioner and Ordinance XVIII was applicable in this case. Ordinance XVIII specifically provided that the engagement of the Principal may be determined by the Governing Body for „Misconduct‟ but shall not be determined except for „Good Cause‟. The Governing Body ignored these two basic ingredients of Ordinance XVIII and the Appeal Committee also ignored this. There was no adequate or proper reason justifying removal of the petitioner from the post of Principal. xiv) The Appeal Committee as well as Inquiry Officer acted contrary to Delhi University Act 1922. Under Delhi University Act, it is the Vice Chancellor, being the Principal Executive and Academic Officer of the University and ex officio Chairman of the Executive Council, the Academic Council and the OMP No. 267/2006 Dr. Ram Avtar Sharma v. Maharaja Agrasen College Page 6 of 35 Finance Committee, who has a duty to see that Ordinance or Regulations were duly observed and it is the Vice Chancellor who can take the actions against the Principal. The petitioner was wrongly dealt under Ordinance XII. The petitioner was required to be dealt under Ordinance XVIII which provided – “colleges other than those maintained by Government of India”, since Maharaja Agrasen College was not maintained by Government of India, only Ordinance XVIII would have been applicable and not Ordinance XII. No power of suspension or termination vested in the Governing Body of College under Ordinance XVIII. xv) The Governing Body could appoint Principal subject to approval of Executive Council under Ordinance XVIII thus, as a corollary, Principal could be removed only with the approval of Executive Council and Governing Body had no power to terminate the services of Principal on its own. xvi) The Appeal Committee fell in grave error of mis-conducting itself and not considering fundamental issue whether the provisions of General Financial Rules had been adopted by University of Delhi or not. xvii) Reliance on Circular No. F-DE-27(45)96-97/CB/Edn./1438-49 dated 06.06.1997 issued by Government of NCT of Delhi putting responsibilities on the college Principal of strictly observing codal formalities, abiding of provisions of the General Financial Rules as the term and condition of the grant and the direction/advice of the Delhi Government regarding utilizing the grant was wrongly relied upon by the Appeal Committee to the prejudice of OMP No. 267/2006 Dr. Ram Avtar Sharma v. Maharaja Agrasen College Page 7 of 35 the petitioner resulting in grave injustice to the petitioner. There was no legal sanction of such a circular. Since, it was not held that the petitioner had acted for personal gains or caused financial loss to the institution, non- observance of Financial Rules cannot be construed as a misconduct. xviii) The contravention of the provisions of General Financial Rules could not be the basis of holding the petitioner guilty of misconduct. The General Financial Rules were never treated as part of service conditions of petitioner, any infraction of provisions of General Financial Rules cannot attract misconduct. Delhi University was an autonomous institution and no rules of Government of India were applicable to Delhi University and its affiliated college. General Financial Rules could not be imposed on Maharaj Agrasen College Society. Tthe College had its own purchase procedure which was duly accepted by the Governing Body. xix) The Appeal Committee acted in a hyper technical and legalistic manner. Since no loss to the college or mis-utilization of funds was proved against the petition the irregularities in following procedure could not be construed as misconduct. Moreover, the petitioner was only one of the signatories to the issuance of cheques the other signatories were Bursar of the College. xx) There was no specific evidence about undue influence on record as was observed by Inquiry Authority. The Principal could not be held responsible for Open Tender Inquiry and it was the responsibility of Section Officer (Accounts), the technical error, if any, was due to negligence of SO OMP No. 267/2006 Dr. Ram Avtar Sharma v. Maharaja Agrasen College Page 8 of 35 (Accounts) and Bursar. The petitioner could not be held responsible for the same. The Appeal Committee ignored this fact and also ignored that SO (Accounts), who was the custodian of record and had tampered with the records by putting false and imaginary dates to save his own skin. xxi) The Appeal Committee could not have ignored the fact that Principal had to be guided by SO (Accounts) and Bursar and the petitioner could not be penalized by passing on buck to him for acts/omissions of SO (Accounts)/Bursar. xxii) The Enquiry Committee went wrong in observing that there had been repeated and persistent deviations and omissions in complying with the rules. The Inquiry Committee took totally disproportionate view of the punishment imposed on the petitioner by holding the removal of the petitioner. xxiii) The Vice Chancellor accorded his approval to the removal of the petitioner as Principal without defining the misconduct which was the central issue. There was non application of mind by the Vice Chancellor, who misconstrued infraction of procedural rules as misconduct without defining as to what constitutes misconduct. xxiv) The award was vitiated being against the Public Policy of India and the law of service juris prudence as applicable in India. 5. In order to consider the various grounds taken by the petitioner for challenging the award of the Appeal Committee it would be necessary to see what OMP No. 267/2006 Dr. Ram Avtar Sharma v. Maharaja Agrasen College Page 9 of 35 charges were proved against the petitioner in Inquiry. In brief, the various sub-heads of the charges and the holding of the Inquiry Committee are as under: Charge No.3.3.3 This charge was regarding construction of class room by M/s Bhardwaj and Associates on a price of Rs.1,18,108/-. The accusation against the petitioner was that no quotations were called for, Building Committee was not involved in ordering this work to the firm and there was no approval of the Governing Body of the College. The Inquiry Committee held that the said charge was proved against the petitioner as the requirement for calling up for tender/quotations even by way of limited inquiry was not called for by the petitioner. Charge No.3.3.7 This charge pertains to electrical work carried out by M/s Bhardwaj and Associates for Rs.16,335/-. The charge was that no quotations were invited for this work, the Purchase Committee was also not involved and the work was got done without the approval of the Governing Body. Also the Contractor had no experience nor was the verification of the work done. This charge was also established as quotation should have been invited and the same should have been routed through the Purchase Committee. There was an infraction of financial procedure of purchase. Charge No.3.4.1 This charge related to work of wall blackboards. Accusation in the charge was that no quotations were obtained nor any recommendation from the Building Committee was obtained and work was awarded without the approval of the Governing Body and the verification of the work was not done. It was found that there was infraction of procedure prescribed by the Financial Rules in not calling the quotations at all. The said charge was proved to the said limited extent. Charge No.3.4.2 This charge pertained to civil work done by M/s Bhardwaj and Associates. The accusation was that two out of three quotations were not genuine, no verification was made, Building Committee was not involved in recommendation of the work and also the work was got done without approval of the Governing Body. The accusation related to not inviting an „Open Tender‟. It was held that there was violation of financial procedure in not obtaining quotations. The responsibility of the petitioner being the Head of the Institution was to enforce and follow the financial procedures, which was not done and there had been a lapse. OMP No. 267/2006 Dr. Ram Avtar Sharma v. Maharaja Agrasen College Page 10 of 35 Charge No.3.4.4 This charge pertained to repairs in the College. Allegations are that two out of three quotations received were not genuine and Building Committee was not consulted. It was found that bills were of earlier date than the recommendation of the name of the Contractor and opening of quotations. This clearly showed that procedure for considering quotation was not followed and the petitioner was responsible for infraction of procedure. Charge No.3.4.5 This charge pertained to purchase of computers. Accusation is that the Purchase Committee was not involved and two out of three quotations were not genuine. It was held that procedural irregularity was committed in the purchase and the petitioner was under a duty to have known that quotations were not given any consideration and the supply order was given without following the purchase procedure. Charge No.3.4.10 This charge related to construction work in the College. Accusation is that the Purchase Committee was not involved and two out of three quotations were not genuine. It was held that the work was done without quotations and the payments were clubbed with other bills. Non-calling of quotations was a violation of prescribed procedure in the General Financial Rules. This charge was established to this extent. Charge No. 3.4.15 This Charge pertained to purchase of books from Printmen. Accusation was that Purchase Committee was not involved and two out of three quotations were not genuine. It was established that there was clear infraction of prescribed financial procedure in purchasing books. Responsibility of the petitioner was to see that the quotations were considered prior to ordering supply. Charge No.3.5.1 The charge related to purchase of computers and other parts from M/s COMCAT. Accusation was that no quotations were called, purchase was not routed through the Purchase Committee. It was held that the petitioner sanctioned the bills without recommendation by Bursar. The responsibility of the petitioner for violation of GFR about these purchases was established. Charge No.3.5.3 This Charge was regarding purchase of Oscilloscope etc. Accusation was that no open tender inquiry was invited as required and the tenders were not considered by the Purchase Committee. It was held that the urgency as pleaded by the petitioner could not be justified as no certificate was recorded about the said urgency and in the absence of the OMP No. 267/2006 Dr. Ram Avtar Sharma v. Maharaja Agrasen College Page 11 of 35 same, open tender inquiry was imperative. The violation of procedure was established. Charge No.3.5.4 This charge was regarding purchase of tables and chairs. Accusation was that no open tender inquiry system was followed, two out of three quotations were not genuine and the purchases were not made through the Purchase Committee. It was held that open tender inquiry was required to be issued but was not issued. There was violation of procedure and the petitioner was responsible for the same. Charge No.3.6.2 This charge was regarding purchase of computer stationery. Accusation was that Purchase Committee was not involved and two out of three quotations were not genuine. Charge was established to a limited extent that the Purchase Committee was not involved in the purchaser before the purchase was made. Charge No.3.7.1 The charge was regarding printing of hard bound register from ABC Enterprises. Accusation was that two out of three quotations were not genuine. It was held that quotations were obtained after the goods were supplied only to make up the default as fake quotations. The charge was held proved. Charge No.3.8.7 It pertained to purchase of book cases. Accusation was that Purchase Committee was not involved and two out of three quotations were not genuine and there was no approval from the Governing Body. It was found that purchases were made without consideration of quotations and recommendation of the Purchase Committee and there was violation of procedure of General Financial Rules. Charge No.3.8.15 This charge pertained to purchase of water coolers. Accusation was that Purchase Committee was not involved and three out of four quotations were not genuine. The Appeal Committee noted that invoice for supply of water cooler as well as cheque of payment was bearing dates prior to the date of quotations. The quotations were thus considered a cover up. Charge No.3.9.5 This charge pertained to purchase of tables and chairs. Accusation was that the Purchase Committee was not involved and two out of three quotations were not genuine and quotations were not even opened prior to placing of orders and no open tender inquiry system was followed and no approval from the Governing Body was taken. The charge was proved to the limited extent that the purchase was made through „Limited Tender OMP No. 267/2006 Dr. Ram Avtar Sharma v. Maharaja Agrasen College Page 12 of 35 Inquiry‟ whereas it should have been made on the basis of Open Tender Inquiry. Charge No.3.10.2 This charge pertained to purchase of steel almirahs. Accusation was that Purchase Committee was not involved and two out of three quotations were not genuine and there was no approval of the Governing Body. It was held that calling of quotations were meaningless as the purchase was made without looking into the quotations at all. Charge No.3.10.3 This charge pertained to purchase of lab instruments. Accusation was that Purchase Committee was not involved and two out of three quotations were not genuine and there was no approval of the Governing Body and also that no open tender inquiry was called, though mandatory. It was held that the purchases were made for more than Rs.50,000/- and an open tender inquiry must have been made, however, only a limited tender inquiry was made. There was violation of GFR to this extent. The petitioner was held responsible for infraction of GFR. Charge No.3.10.4 This charge pertained to purchase of laboratory table. Accusation was that Purchase Committee was not involved and three out of four quotations were not genuine and there was no approval of the Governing Body and there was no open tender inquiry. The charge was proved to the extent that the no open tender inquiry was followed and the purchases were made without consideration of even limited quotations by Purchase Committee or anybody. Charge No.3.10.7 This charge pertained to purchase of chairs. Accusation was that Purchase Committee was not involved and three out of four quotations were not genuine and there was no approval of the Governing Body and there was no open tender inquiry. It was held that open tender inquiry was imperative. This was not advertised as required under the GFR. There was a clear violation of GFR to this extent. Charge No.3.10.9 This charge pertained to purchase of resistance boxes and laboratory equipments. Accusation was that Purchase Committee was not involved and no quotations were called for and there was no approval of the Governing Body. This charge was established to the extent that the procedure laid down in the GFR was not followed in the purchase and the petitioner had committed lapses in this respect. Charge No.3.10.10 OMP No. 267/2006 Dr. Ram Avtar Sharma v. Maharaja Agrasen College Page 13 of 35 This charge pertained to purchase of Cathode Ray Oscilloscopes. Accusation was that Purchase Committee was not involved and three out of four quotations were not genuine and there was no open tender inquiry. It was held that there was violation of procedure and open tender inquiry must have been called for. The Petitioner was responsible to see that the purchases were as per GFR and was held responsible for the lapses. Charge No.3.11.3 This charge pertained to purchase of printer. Accusation was that Purchase Committee was not involved and no quotations were invited. The charge was established to the extent that no quotations were called for the purchases and there was violation of procedure laid down in the GFR. Charge No.3.11.5 This charge pertained to purchase of Generator. Accusation was that Purchase Committee was not involved and three out of four quotations were not genuine and there was no approval of the Governing Body and there was no open tender inquiry. The letter ordering the supply and bill and the payment are of the same date. It was held that open tender inquiry should have been floated and there was a lapse on the part of the petitioner. Charge No.3.11.6 This charge pertained to purchase of micro processor kit. Accusation was that Purchase Committee was not involved and three out of four quotations were not genuine and there was no approval of the Governing Body. It was held that since the purchase of articles was of more than Rs.50,000/-, an open tender inquiry should have been invited, which was not done and there was violation of GFR. Charge No.3.11.11 This charge pertained to purchase of round table for Conference Room. Accusation was that Purchase Committee was not involved and three out of four quotations were not genuine and there was no approval of the