r- HIGH COURT OF CHHATTISGARH BILASPUIl WPfs) N0. 6386 OF 2008 PETmONER Dr. L.S. Nlgam Versus RESPONDENTS State of Chhatttsgarh and others ORDER Post on W Januany. 2009 Sd/- Dhirendra Mishra Judge ^ .1.2009 /[•- 1 I ^^' ''^^^ss^^' HIGH COURTOF CHHATTISeARH BILASPUR WPIs^ N0.638fi OF 2008 Writ Petitton under Articto 22fi of tha Con«tllutionof India PETniONEIl RESPONDENTS 1. Dr. L.S. Nlgam, S/o Late Shrl G.P. Nigam, Aged about 59 years, Professor of Ancient Indian History, culture, Archaeology, Pt. Ravishankar Shukla Untverslty, Ralpur (Chhattlsgarh) Vewus State of Chhattisgarh, through the Secretary, Department of Hlgher Education, DKS Bhawan, Mantralaya, Ralpur (Chhattlsgarh) Chancellor, Pt. Ravlshankar University, Raipur (CG) Shukla 3. Pt. Ravlshankar Shukla Unlverslty, Through the Reglstrary, Raipur (Chhattlsgarh) 4. Dr. Lakshman Chaturvedl, Vice Chancellor, Pt. Ravlshankar Shukla Unlversity, Ratpur (Chhattlsgarh) Present: Mr. Kanak Tlwari, learned Sr. Advocate wlth Mr. Varun Sharma, Advocate for the petittoner. Mr. Arun Sao, leamed Govt. Advocate for the State. Mr. Pramod Verma, learned Sr. Advocate wlth Mr. Raghvendra Verma, Advocate for respondents No.2,3 &4. ORDER (Passed ono?03anuary, 2009) Dhirendra Mwhra. 3 Heard on IA No.04, appllcatlon for taklng addltlonal documents on record. 2. Not opposed. 3. The appllcatlon (IA No.04) is atlowed. Documents are taken on record. 4. This petltion Is dlrected agalnst the order dated 13.10.2008 (Annexure P/l) whereby, the petltloner has been suspended from r—-'- the post of Professor (Andent Indlan Hlstory) pendlng departmental enqutry. 5. Case of the petltloner, In brief, Is that he was appointed as Professor of Andent Indian Hlstory, Culture & Archaeology, on 20th September, 2003 by the respondent No.S/Universlty. His servlces were conflrmed w.e.f. 20th September, 2005. Respondent No.4 took overthe charge ofKulpatt (Vlce Chancellor) of the Unlvereity w.e.f. May, 2005. After becoming Kulpatl, respondent No.4 nourished III wtll towards the petltioner. He proposed to merge the Department of History wlth the Department of Anclent Indtan Hlstory, Culture & Archaeology. The petltioner submltted a dlssenting note agatnstthe proposed merger. The Kulpatidjvesfeed the petltioner of the responslblllty of In-charge of Legal Cell ofthe Universlty. The petitioner also opposed the resolution brought at the behest of Kulpati In the meetlng of the Academic Council on 15.4.2007 to recognize one Institute of Varanasi (UP) as Research Center of the respondenl/University, and the resolution could not be passed. Because of the aforesaid reasons, the Kulpatl dtvested the petltioner of the responsibillty of Head of the Department, which hewas dlschargtng slnce the date of his appolntment. 6. The petltioner was also removed from the charge of the Instltute of Tourtsm & Hotel Management. Thereafter, the Kulpatl introduced yet another resolution of the Academic Coundl/ whereby it was proposed that the postgraduate degree holders of certain subjects cannot conduct research or submlt thelr doctoral theses in any other subject. The petlttoner gave hts dlssenting opinion to thls proposal also and the matter was referred to the Chancellor of the Unlversity by the Academtc Coundl. 7. The petitloner was posted In Flying Squad at Jagdalpur at the behest of Kulpati and dlrected hlm to Joln hts duties at Jagdalpur withln 48 hours. However, on representatlon of the petitloner, Chancellor of the Unlverslty tntervened and forbade the Kulpati from postlng the petitioner's servlces In Flylng Squad at Jagdalpur. The petitioner and some other teachers contlnued to oppose the attempt of the Kulpati of uncalled for amendment In Ordinance 'k ^ No.45. The proposal of Kulpati, in respect of appointment of the petitioner as Reader In the Unlverslty, in the meetlng of the Executive Coundl could also not be carried out and because ofthe aforesald reasons, the petitloner was suspended by the Impugned order. 8. Respondent No.S/Unlverstty, In its return, has denled the adverse allegatlons contained In the petltlon. The allegation that the Kulpatl nourished a grudge agalnst the petltloner because of his stand in the Academic CouncH, has also been denled. It has been further averred that Kulpati of the Unlverslty 1s vested with the emergency power under sub-section (4) of Section 15 of C.G. Vishwavjdyalaya Adhintyam, 1973 (hereinafter referred to as wthe Act") and thls power also indudes power to suspend an employee of the University. Respondent No. 3 has admltted that the proposals submitted in the Academic Coundl could not be carried out because of oppositlon of themembers ofthe Coundl, including that of the petitioner, but allegatlon of malafides on that count has been spedflcally denied. 9. Respondent No.3 has also admitted that meeting of the Executive Coundl was held on 13.10.2008, the date on whlch the petltioner was suspended. However, it has been stated that the said meeting was an adjourned meetlng, In which no fresh matter could be taken in the normal course. tt has also been stated that since the petitioner was not maintainlng the attendance regtster properly, he did not comply with the orders and he used language unbecoming for a professor In his representatton before the Chancellor agalnst his posting in the Flying Squad at 3agdalpur and he dld partldpate in the demonstration organized by the Universlty employees, therefore, he has been suspended In exercise of emergency powers. 10. Mr. Kanak Tiwari, learned Sr. Advocate appearing wlth Mr. Varun Sharma, Advocate, vehementty argued that suspenslon of the petltioner Is actuated by malice, as detalled above. After filling of the petltion, charge-sheet has been Issued to the petitioner. From bare perusal of the charge-sheet it would be evident that the charges refer to thealleged mtsconduct of the petltioner commltted between 10.3.2008 and 12.4.2008 whereas the petitioner has been suspended on 13.10.2008 on the purported exerclse of emergency powers under sub-sectlon (4) of Sectlon 15 of the Act wtthout mentloning any emergency. The appointing authority of the petitloner is the Executive Councll. Though, on 13.10.2008 meeting of the Executive Councll was held, but disdplinary action agalnst the petitloner was not placed before the Executive Councit on that date. 11. Referring to sub-sectton (4) of Section 15 of the Act, it was argued that before exerctsing emergency power, the Kulpati has to record an opinlon that such emergency has arisen, whlch requires immediate action. However, from bare perusal of the impugned order, It would be evident that there Is not even a whisper of exlstence ofemergent sttuation calllng for immedlate actton. The order even does not mentlon that suspenston of the petltloner is under sub-sectlon (4) of Section 15 of the Act. There is total non- compllance of the emergency provision, which mandates that action taken under sub-sectlon (4) of Section 15 of the Aet, is to be ptaced before the authority competent (that is, the Executlve CoundJ) to deal with the matter In the ordlnary course. However, the matterwas not placed before the Executlve Council, whlch was admlttedly convened on the same date. It was further argued that the emergency power does not extend to any matter retating to appolntments as per thlrd proviso to sub-section (4) of Sectlon 15 of the Act. As per Sectton 16 of the CG General Clauses Act, power to appolnt also indudes power to suspend and dlsmiss. 12. Repelling the contentlon of the respondents, Mr. Tiwari submttted that vide Amendment Act of 1991, the word wdisdpllnary action" contalned tn thlrd provlso to sub-sectlon (4) of Sectlon 15 of the Act, was subsequenfy omltted vlde Amendment of 1994 as the eariter expresslon did not make any harmonlous readlng and the word "disdplinary actlon" was superfluous. The Executive Councfl of the University, by virtue of being appolnting authority of the teachers of the Unlverslty, is the dlsdplinary authortty of the petitioner, whereas in the case of Class-III, Class-IV and other employees, the Registrar is the appointing and dtsdplinary authorlty. If the Kulpatl exercislng powers under second provlso to sub-section (4) of Section 15 of the Act is allowed to take disciplinary action, then the Executlve Coundl becom^ the appellate authority of all categories of employees, whtch ts against the express provlslon of the Act and the statute made thereunder. The Executive Coundl being the appolnting authority of the petitioner cannot be relegated to the status of being s own appellate authority. 13. Referring to sub-section (2) of Sectlon 15 of the Act, It was argued that duty Is caste upon the Kulpati to ensure that this Act, the Statutes, the Ordinances and the Regulations are faithfully observed and the Kulpati has alt the powers necessary for thls purpose. Thus, the above provision makes it obllgatory on the Kulpati to ensure that Statute 51 read wlth Statute 31 are falthfully observed. However, by suspending the petitioner in the purported exerdse of emergency power under sub-sectlon (4) of Sectlon 15, the Kulpati has, in fact, rendered the above provlsions redundant. The Kuipatl convened the meeting of Executlve Coundl on 28.11.2008 and put up matter of the petltfoner, but the same was never ratifled or approved by the Executive Coundl. In the meanwhile, charge sheet dated 24 11.2008 has been Issued by the Universlty to the petltloner at the behest of Kulpatl and the charge sheet is also not approved by the Executlve Coundl. 14. Reliance is placed on the judgment In the matters of Maratliwada Uaiversity Vs. Seshrao Balwant Rao Chavan1. 15. On the other hand, Mr. P.K. Verma, learned Sr. Advocate with Mr. Raghvendra Verma, Advocate appearing for respondents No. 2,3 & 4 contended that Section 15 of the Act deals with the powers and duties of Kulpati. Sub-section (4) of Sectlon 15 confers power on the Kulpati tn emergent sltuatlon. It also casts a duty upon the Kulpati to report his actlon to such offlcer, authorlty, * (1989)38cc 132 ^s^^ /^-^' committee, or other body, who is competent to deal wlth such matter In the ordinary course at the eariiest opportuntty after the actlon is taken. The order of suspenslon of the petltioner was placed before the Executlve Council in Its meeting dated 28.11.2008. The petitioner had statutory right to prefer appeal against the aetlon of Kulpati withln a pertod of thirty days when the suspenslon order was communicated to hlm. However, the petltioner has approached thls Court without exhausttng the statutory alternatlve remedy avallable to hlm under second proviso to sub-section (4) ofSectlon 15 oftheAct. 16. It Is further argued that prior to amendment of 1994 In the third provlso to sub-sectlon (4) of Sectlon 15, It contained a provision that Kulpati's emergency power would not extend in the matters of a disclplinary action or appolntment, but word wa disciplinary action or" has been consdously omitted by the Amendment Act No.19 of 1994, thus, bringing the dlsdplinary action within the emergency power of the Kulpati. The matter regardlng suspenslon of the petitloner was placed before the Executlve Coundl in its meeting dated 28.11.2008 and since the Executlve Coundl did not refer the matter to the Kuladhipati (Chancellor), as provided under sub-sectjon (5) of Sectlon 15 and as no appeal has been filed by the petitloner agalnst hls suspension before the Executlve Councit, suspenslon of the petltioner by the Kulpati under sub-section (4) of Sectlon 15 of the Act shall be deemed to be an action taken by the appropriate authorlty i.e. the Executive Councll, as per sub-section (6) of Section 15 of the Act. 17. It was further contended that slnce the matter has now been placed before the Executive Coundl, as required under sub-section (4) of Section 15 and the Executive Coundl has accepted the report and did not refer It to the Kuladhipati, notwlthstandlng any irregularity in exerdse of emergency power, the petitioner stands suspended by the Executive Councll as per deemlng provlston of Section 15 of the Act. Further, the petitloner has already been served with the charge sheet on 24.11.2008, therefore, it Is open to the petitloner to reply to the charges and take approprtate ¥'; ^\ A. defences, induding the defence that the suspenslon Is acf&afed by malice. Since the charge sheet has been issued followlng suspension, the same cannot be quashed at the threshold. 18. I have heard learned counsel for the parties and perused the material on record. 19. The petltioner has impugned his suspension order on the following grounds: (i) that the emergency power of Kulpati does not extend to the power to suspend the employees/offlcers of the Unlverslty, (il) that even if It Is held that the Kulpati has emergency power to suspend its employees/offlcers, the same has been exerdsed malafldely as no emergent situatlon was exlsting on the date when the petitloner was placed under suspenslon. 20. Mr. Kanak Tlwari vehemently argued that third proviso to sub-sectlon (4) of Sectlon 15 exdudes the matter relating to appointment also. Referring to Section 16 of the General Clauses Act, it was argued that where any enactment confers power to make appolntment on any authority, then it also empowers the authority to suspend or dismiss any person appointed by it In exerdse of that power. 21. The questlon before this Court Is - whether Intention of the legislature jn omltting the word wdisdpllnary action" from the third proviso to sub-section (4) of Section 15 of the Act, was to give the earlier expression harmonious reading as the word wappointment" indudes disdplinary action also and the word "disdplinary action" was superfluous, or it was with an intentlon to extend the emergency power to Kulpati in the matters of disclplinary action agalnst the employees/offlcers of the Universtty? 22. In Prindples ofStatutory Interpretatlon, Eighth Edltion, 2001 by HonWe Shri Justice G.P.Singh (Former Chief Justice M.P. Hlgh a Court), there is a reference of "Rule in Heydon's case; purposive construction: mischief rule", under which It has been observed thus: WWhen the material words are capable of bearing two or more constructions the most firmly estabJished rule for construction of such words wof all statutes in general (be they penal or benefidal, restrlctlve or enlarging of the common law)" is the rule laid down In Heydon's case which has wnow attained the status ofa classlc. The rule which is atso known as 'purposive construction" or 'mischief rule7, enables consideration of four matters in construing an Act : (i) What was the law before the making of the Act, (ii) What was the mlschief or defect for whlch the law did not provlde, (iii) What is the remedy that the Act has provided, and (iv) What is the reason of the remedy. The rule then directs that the courts must adopt that construction whlch wshall suppress the mischief and advance the remedy". 23. It is not in dispute that the authortty whtch is competent to appoint a person Is also a dlsdplinary authority of a person so appolnted. In the instant case also, the power to take disdpllnary action against the petitioner lles with the Executive Coundl In the ordinary course. However, the legislature has conferred emergency power upon the Kulpati in emergent situation to take disciplinary action agalnst its errant employees/offlcers. The third proviso to sub-section (4) of Section 15 was inserted in the Statute by 23rd Amendment of 1991 and the emergency power to take dlsdpllnary action and the matters relating to appojntment were excluded from the emergency power of the Kulpati. However, the word "disdpllnary actlon" has been consdously omitted from the Statute. The only inference drawn from exdusion of the word wdisciplinary actlon" is that the Kulpati has power to take disdpllnary action under the emergent situatlon. However, to safeguard the Interest of the employees/ofHcers, a duty has been cast upon the Kulpati to place the actlon taken by him In exerdse of emergency power before the competent authority to deal with the matter In the ordinary course at the earliest opportunity after the action is taken, and such authority has been vested with the power to refer the actlon so taken, if It does not approve of it, to the Kuladhipati. —— 24. The purpose behlnd the provisfon of extending emergency power to Kulpati jn the matters of discipllnary action, is for the reason that meetlng of the Executive Council, conslsting large number of members, cannot be convened in a short notice to take immediate disciplinary action against the errant ofdcers/employees indulging In conduct prejudidal to the interest of the University and therefore, the word "disdplinary action" has been consdousjy omitted from the third proviso to sub-section (4) of Section 15 of the Act. 25. So far as the argument of Mr. Tiwari that right to appeal of the petitloner to the Executlve Coundl has been taken away as It has been made appellate authority, is concerned, from bare perusal of sub-section (4) of Section 15 it is evident that the action taken under emergency power is to be reported to the Executive Councll at the earllest opportunity and in case, it does not approve the action, the same Is to be referred to the Kuladhipati and if it Is approved by the Executlve Council, the concerned employee/ofFicer has a right to prefer an appeal before the Kuladhipati as per the statutory provision. Therefore, argument of learned counsel forthe petitioner that the power under sub-sectlon (4) of Section 15 does not extend in the matter of disdplinary action, is not acceptable. 26. Now, as for the next argument that since no emergent situation existed for exerdse of emergency power at the relevant time, action of the Kulpati was, in fact, actuated with malice, Charge No.l pertains to a letter dated 10.3.2008 whereby the petitioner has expressed hls inability to work as a member of Flying Squad constituted by the Kulpati to undertake surprtse inspection, Charge No.2 pertains to a letter dated 10.3.2008 wherein the petitioner has made allegation of ill will and prejudice against the University administration; Charge No.3 also pertains to letter dated 10.3.2008 wherein the petitioner has made allegations of mental and physical torture agalnst the University administration; and Charge No.4 also pertains to his letter dated 10.3.2008 wherein similar allegatlons, as above, have been leveled against the Kulpati. Charge No.5 is with regard to petitloner's avalling half-pay t0 ^ST^ yf^l. y ito;£;. \^-€/ "ssa^s^" leave to avoid the examination duties and his partidpation in the meeting of teachers" assodatlon, Charge No.6 pertains to conduct of the petitioner of past years as on inspection his slgnatures were not found in the attendance register, whereas Charge No.7 is in relation to hls letter dated 15.10.2007. Thus, all the mlsconduct alleged against the petitioner were allegedly committed by hlm more than six months' before the date of his suspension under the purported exerdse of emergency power by the Kulpati. 27. From the averments in the petition and the reply of the University, it is dear that the petitioner was one of the members of the Academic Coundl, he had successfully opposed certain proposals introduced in the Academic Coundl at the behest of Kulpati; he was divested of the charge of Head of the Department and some other posts by the Unlversity, and he was also made a member of Flying Squad for conctucting surprlse inspection In Jagdalpur In the month of March, 2008. The petitioner had approached the Kuladhipati against his indusion in the Flying Squad and addressed certaln letters attributing III will, prejudice and malafides against the University administration in general and Kulpati, in particular for making him a member of Flylng Squad at Jagdalpur. It is also evident that no action was taken against him for his refusal to be a member of Flying Squad at that time and only six months thereafter, he was suspended vide order of Annexure P/l, which has been passed by the Kulpati. However, the order impugned does not mention that suspenslon ts in exerdse of emergency power under sub-section (4) of Section 15 of the Act. Though the petitioner has admltted that the matter relating to him, was placed in the meeting of Executive Council convened on 28.11.2008, however, he has contended that no approval was accorded to the actlon of the Kulpati agalnst the petitioner. 28. From the above undisputed facts, tt can be Inferred without hesitation that on 13.10.2008 when the petitioner was placed under suspension in the purported exerdse of emergency power under sub-section (4) of Section 15 of the Act, in fact, no such M emergency existed warranting exerdse of emergency power. The undisputed fact that on the same date meetlng of the Executive Council was convened and in the said meetlng, matter relatlng to the petltioner was not placed, also establishes the allegation of the petitloner that there Is complete non-comptlance of Section 15(4) of the Act. 29. So far as contention of Mr. Verma, learned Sr. Advocate appearing for the respondents that notwlthstanding any irregularity in exerdse of emergency power, slnce the matter was placed before the Executive Council on 28.11.2008 and it dld not refer the same to the Kuladhipatl, suspension of the petitioner is deemed to be passed by the Executlve Council, Is concerned, if the Kulpati, who is statutorily obliged to ensure that the Act, Statutes, Ordinances and the Regulations are falthfully observed and who is empowered to take necessary action for this purpose, has himself suspended a senior professor In purported exerdse of emergency power without there being any emergency, this Court Is compelled to draw an Inference that action of the Kulpati js actuated wlth malice. 30. In the matter of Marathwada University1 the Hon'ble Apex Court has underlined the role of Vice Chancellor of the Universtty. Paragraph-19 ofthe above judgment is reproduced as under: W19. The Vlce-Chancellor in every university is thus the conscience keeper of the University and constitutional ruler. He is the principal executive and academic officer of the University. He is entrusted with the responsibility of overatl administration of academic ss well as non-academic affairs. For these purposes, the Act confers both express and implled powers on the Vice-Chancellor. The express powers include among others, the duty to ensure that the provisions of the Act, Statutes, Ordinances and Regulations are observed by all concerned [Section ll(3)]. The Vice- Chancellor has a right to regulate the work and conduct of offfcers and teaching and other employees of the University [Section ll(6)(a)J. He has also emergency powers to deal with any untoward situation [Section ll(4)]. The power conferred under Section 11(4) 'is indeed significant. If the Vice-Chancellor believes that a situation calls fbr immediate action, he can take such action as he thinks necessary though in ^ the normal course he is not competent to take that action. He must, however^ report to the concerned authority or body who would, in the ordinary course, have dealt with the matter. That is not all. His pivotal position as the principal executive officer also carries with him the implied power. It is the magisterial power whfch /s, in our wew, plainty to be inferred. This power 'is essential fbr him to maintain domestic discipline in the academic and non-academic affa/rs. In a wide variety of situations in the relationship of tutor and pupilf he has to act firmly and promptly to put down indiscipline and malpractice. It may not be Megitimate if he could call to aid his implied powers and also emergency powers to deal with all such situations." 31. Thus, from the above, it is dear that Kulpati Is the guardian and father flgure In the University, he is responsible for overall welfare of the University as also its staff members and the students. He is also responslble to maintain the academic standard of the University and for this purpose, to ensure that the peaceful and harmonious academic atmosphere prevails In the campus. He is entrusted with the responsibllity of overall admjnistraUon of academlc as well as non-academic affairs and for the aforesaid purposes; the Act confers both express and Implied powers on the Kulpatl. It Is unfortunate that the professor of a Unlverslty is required to complain against hls own Kulpati to the Kuladhipati of harassment and vindlctive attitude. In these drcumstances, I am not inclined to justify the exerdse of emergency power by the Kulpati under sub-section (4) of Sectlon 15 of the Act. 32. It is settled law that even the powers which are conferred to be exercised on the subjective satisfactlon of a partlcular authority, the